JERE BEASLEY REPORT February 2020 I. II. plane and pilots didn’t respond correctly, it could cause a crash. The company may be CAPITOL UPDATE ON required to separate the bundles before the aircraft can be cleared to resume service OBSERVATIONS THE BOEING depending on the company’s findings. The LITIGATION wiring issue could also affect the MAX’s predecessor the 737 NG, which may also require repairs on the 6,800 planes 2020 Census To Make Big Difference For in service. More Trouble For Boeing And Its 737 MAX Alabama Further, the MAX engines are manufac- tured by CFM International (a joint venture An audit of the Boeing 737 MAX in This year Alabamians have a huge oppor- between General Electric and Safran). The December revealed more safety issues and tunity to affect the state’s future in a major company told the FAA it discovered a weak- concerns over the plane’s design. The inter- way. The 2020 Census will dictate the dis- ness in one of the engines’ rotors that could nal audit was conducted at the request of tribution of more than $675 billion in cause the part to shatter. The FAA told the Federal Aviation Administration (FAA) federal funding to local and state govern- Boeing to inspect as many MAX engines as after European Union Aviation Safety ments. This funding supports schools, possible before its service resumes but Agency (EASA) regulators rejected Boeing’s health care, infrastructure, community hasn’t required an immediate fix for the documentation regarding its latest pro- assistance and more. Its impact can last for weakened rotors yet. However, the agency posed software fix late last year. Findings decades and will affect the state in more from the audit were released last month ways than one. revealing previously unreported problems The census, which dates all the way back IN THIS ISSUE with wiring that helps control the aircraft’s to 1790, counts every person—both adults tail, according to The New York Times. It I. Capitol Observations...... 2 and children—living in the United States. also identified weaknesses in one of the The information gathered is then used to II. Update On the Boeing Litigation . . . .2 engine’s rotors and a manufacturing defect monitor changes in communities, identify that left the plane vulnerable to light- III. An Update On the Talc Litigation. . . .4 and address public service needs such as ning strikes. IV. An Update On the Opioid Litigation. . .5 health care, education, public safety, Additionally, last month, Boeing released housing, food, and rural access to broad- V. Legislative Update...... 6 more than 100 pages of documents expos- band. The Census Bureau also uses the data ing damning internal conversations among VI. Court Watch...... 7 to determine the number of seats each state employees regarding the 737 MAX to con- has in the U.S. House of Representatives. VII. An Update On the gressional investigators, The New York Whistleblower Litigation ...... 8 That is of critical importance. Times also reported. The documents were Starting March 12, each Alabama house- VIII. Product Liability Update ...... 10 released just days after Boeing said it would hold will receive a postcard from the U.S. recommend simulator training for 737 MAX IX. An Update On the JUUL Litigation . . .11 Census Bureau. It will contain instructions pilots before the aircraft resumes service. for how to complete the census. Residents X. Mass Torts Update...... 13 The move on Boeing’s part was a complete can respond online, by phone or via tradi- XI. Business Litigation...... 14 reversal of its previous efforts to discourage tional paper form. The survey takes less airline customers from demanding addi- XII. An Update On Securities than 10 minutes to complete. Each partici- tional pilot simulator training and to Insurance and Finance Litigation. . . 15 pant’s information is protected by law. deceive regulators into agreeing to no addi- XIII. Employment and FLSA Litigation. . . 15 The Alabama Counts! 2020 Census Com- tional training requirements. mittee, an organization dedicated to the XIV. Premises Liability Update...... 15 As discussed in previous editions of this Census and its importance to the state, is Report, 737 MAX planes were globally XV. Workplace Hazards...... 17 leading the effort to ensure Alabamians are grounded last March after two of the air- prepared to complete and return the form. XVI. An Update On Transportation craft crashed in separate incidents killing a Litigation...... 18 The committee was created by Gov. Kay total of 346 people. Both MAX crashes Ivey in an executive order in August 2018. XVII. Healthcare Issues ...... 20 were linked to problems with the MCAS, a Participation in the census is of the flight control software, that caused it to XVIII. Toxic Tort Litigation Concerns. . . . 21 highest importance, since the next 10 years misfire and inadvertently sent the planes of federal funding will be determined by XIX. An Update On the Roundup Litigation. 21 into a nosedive shortly after takeoff. Con- the survey. It is estimated that in 2016 more XX. Update On Nursing Home Litigation . .22 gress launched investigations into the than $13 billion was allocated to the state development and certification of the MAX XXI. An Update On Class Action Litigation. .22 of Alabama from programs affected by the following the second of the two deadly previous census. The 2020 census will have XXII. The Consumer Corner...... 26 crashes involving the aircraft. The U.S. even more money at stake for families in XXIII. Current Case Activity at Beasley Allen. .27 Department of Justice (DOJ) is also con- Alabama. Government employees, teachers, ducting a criminal probe. XXIV. Resources To Help Your Law Practice. 31 church leaders, business owners, and resi- XXV. Practice Tip Of the Month dents alike have much at stake. Alabama New safety risks uncovered. Counts! encourages everyone to talk to For Trial Lawyers...... 32 those in their communities about the 2020 The additional safety risks regarding the XXVI. Recalls Update...... 33 wiring that were previously unreported Census and its importance to them and XXVII. Firm Activities...... 36 their families. More information is available involve two bundles that may be too close at www.census.alabama.gov. together. Boeing is trying to determine if XXVIII. Special Recognitions...... 37 the close proximity of the bundles could XXIX. Favorite Bible Verses...... 37 Source: ADECA cause a short circuit and how likely it is that this scenario could occur during flight. XXX. Closing Observations...... 38 If a short circuit occurred in this area of the XXXI. Parting Words...... 39

2 BeasleyAllen.com will require Boeing to address the manufac- dent in your region for other MAX approving the MAX for service. One of the turing defect that exposes the aircraft to customers. more contentious areas of concern was the lightning strikes and therefore exposes the need for increased pilot training. Foreign fuel tank and fuel lines to increased risk of Lion Air flight 610 was the first of the regulators favored simulator training and catastrophic fire. The New York Times two fatal MAX crashes. Shortly after the indicated they would not allow the MAX’s reported that Boeing workers at its Renton, crash, information about the new flight return to service in their respective coun- Washington, plant “ground down the outer control software MCAS, which has since tries without such a requirement. shell of a panel that sits atop the engine been determined defective and a major con- Also last month, regulators from various housing in an effort to ensure a better fit tributor to both crashes, surfaced along countries outside the U.S. were scheduled into the plane.” This step removed the with the fact that no one outside of Boeing to travel to Seattle. The company planned coating that protects the fuel tank and fuel was informed about the software. In 2016, to test the new software in a flight simula- lines in the event lightning strikes the air- Mr. Forkner convinced the FAA to remove tor. The regulators’ visits signaled to indus- craft while in flight. mention of the MCAS from the pilot’s try insiders that the regulators may be manual, leading the regulatory agency to ready to give the MAX’s changes a serious Internal documents embarrassing believe the system would engage in only evaluation. and damaging to Boeing. rare cases. Clearly, those with inside knowledge of There is no way to determine if addi- Boeing’s newer leadership. the MAX knew it was dangerous even tional training would have prevented the The company’s new CEO, David before the latest audit’s findings. In one of Lion Air crash. Likewise, there is also no Calhoun, took the reins last month and has the recently released internal documents, a way to determine if additional pilot training tall order for fixing the defectively designed Boeing employee tells another that they could have helped the pilots better navigate MAX, as well as repairing the reputation of would not put their family on the 737 MAX. the deadly situation created by Boeing’s a once highly respected company in the Yet, no adequate steps were taken to defective aircraft. Boeing took that option U.S. Mr. Calhoun has served on the compa- address the danger or warn the flying off the table for its customers. ny’s Board of Directors since 2009 so he is public. In fact, the messages demonstrate Boeing’s about-face on simulator not exactly an outsider, nor is he new to the the willingness of some employees to training. company’s leadership. Regardless, he has deceive Boeing customers and regulators. implemented changes and shifted the com- The documents reveal a corporate culture Boeing finally conceded and recom- pany’s public tone to one of a more concil- gone awry. mended to the FAA additional simulator iatory nature compared to the demanding Several messages detail conversations training for 737 MAX pilots before the air- tone under its previous CEO, Dennis Mui- about requiring additional pilot training craft resumes service, The New York Times lenburg, who was fired in December. The and specifically on simulators, according to reported. The cost of one simulator is $6 exiting CEO, despite the crisis he plunged Forbes. From the beginning, Boeing million to $8 million dollars and an addi- the company into and two of the deadliest rejected the idea of providing pilots with tional $400-$500 per hour of training due crashes occurring on his watch, walked additional training because increasing pilot to labor and maintenance costs, according away with a $62-million compensation training requirements would ultimately to the Financial Times. The FAA will make package. It was yet another devastating reduce the company’s profits. the final decision but is expected to blow to families of victims killed in the two Boeing’s former 737 Chief Technical Pilot approve the recommendation. MAX crashes. Mark Forkner wrote an email in March The release of the damning internal com- Beasley Allen lawyers have filed a 2017, saying: munications showing employees attempt- number of lawsuits for families of victims ing to protect Boeing’s bottom line of the Ethiopian Airlines crash. Mike I want to stress the importance of combined with recent flight tests where Andrews, a lawyer in our Personal Injury & holding firm that there will not be pilots for a number of U.S. and international Products Liability Section, focuses much of any type of simulator training airlines failed to use prescribed emergency his practice on aviation litigation. He is rep- required to transition from NG to procedures to overcome MCAS problems resenting a number of families in this litiga- MAX. Boeing will not allow that to likely encouraged the company’s about- tion. Currently, Mike is also investigating happen. We’ll go face to face with any face. Now that Boeing is committed to other potential cases. He visited the crash regulator who tries to make that a increased training it and regulators will site and surrounding areas several times requirement. have to contend with the limited number of last year and was overwhelmed at the available MAX simulators. Originally, carnage left behind after Flight 302 hurled In previously released messages, Mr. because Boeing didn’t plan on such Forkner also boasted that he was “jedi-mind itself and passengers 30 feet into the earth. required additional training, it created few If you would like to have more informa- tricking regulators into accepting the train- training simulators. Currently, there are ing that I got accepted by F.A.A.” tion on the Boeing litigation, or any other only 34 simulators worldwide and with aspect of aviation litigation, contact Mike at A separate set of messages between Mr. thousands of pilots needing the additional Forkner and Lion Air representatives in 800-898-2034 or by email at Mike. training, the scheduling constraints could [email protected]. Mike also has June 2017 just before the airline received likely cause further delays for the MAX’s the aircraft shows that Mr. Forkner talked written a book on litigating aviation cases return to service. to assist other aviation lawyers, “Aviation the airline out of additional pilot training. Still, international regulators are more Mr. Forkner stated: Litigation & Accident Investigation.” The likely to agree to software and other book offers an overview to the practitioner I am concerned that if [Lion] chooses changes and approve the MAX’s return to about the complexities of aviation crash to require a MAX simulator for its service now that Boeing supports requiring investigation and litigation. simulator training. In the months following pilots beyond what all other regula- Sources: The New York Times, Forbes, Financial the Ethiopian Airlines crash, many global tors are requiring that it will be cre- Times and NPR ating a difficult and unnecessary regulators broke from the decades-long tra- training burden for your airline, as dition of following the FAA’s lead regarding well as potentially establish a prece- aviation safety. The agency has been the subject of intense scrutiny over its role in

JereBeasleyReport.com 3 III. St. Louis and Florida in the second Colgate And Auto Parts Companies Settle half of 2020. Asbestos Case And Avoid Trial AN UPDATE ON For additional information on these cases, contact Brittany Scott or Melissa Colgate-Palmolive and several auto parts THE TALC Prickett at 800-898-2034 or by email at Brit- companies have settled claims that asbestos LITIGATION tany.Scott@beasleyallen or Melissa.Prick- in Colgate’s talc products and auto parts [email protected]. caused a woman’s fatal mesothelioma. The settlement avoids a trial that had been set to begin last month. Update On Talcum Powder Litigation The trial would have put the claims of Johnson & Johnson Settles Talc Case surviving family members of Anne J. Midtrial As we start the new year, Beasley Allen LeVesque, who died of mesothelioma at the lawyers are anticipating Daubert rulings age of 81 in 2017, to trial against Colgate- Johnson & Johnson (J&J) ended one of from Judge Freda Wolfson in the multidis- Palmolive Co., AutoZone West LLC, its latest talc trials last month with a mid- trict litigation (MDL) to come down at any Genuine Parts Co., Pneumo Abex LLC and trial settlement. The jury had been one of time. In Federal courts, along with many Union Oil Co. of California. the first to hear about the U.S. Food and state courts, Daubert rulings are used by Mrs. LeVesque was exposed to asbestos Drug Administration’s (FDA) October the trial court to act as a sort of “gate- from her daily use of the talcum powder finding of asbestos in a bottle of talcum keeper” to the admission of expert scien- beauty product Cashmere Bouquet made by powder. J&J made sure the jurors wouldn’t tific testimony. The trial court uses these Colgate and from asbestos brought into the have a chance to weigh in on that informa- rulings to ensure that scientific testimony family home by her husband and children, tion and return a verdict against the is not only relevant, but reliable. Under who worked with asbestos-containing company. The jury was told that the case Daubert, experts’ conclusions must have auto parts. had been settled before the trial was to been arrived at “in a scientifically sound Colgate over the last few years has shown resume on Jan. 6. and methodologically reliable fashion,” and a willingness to settle cases alleging its talc The Plaintiffs, Linda and Mark O’Hagan, this is what the judge will be looking at contains asbestos before they get to trial, a said Linda’s mesothelioma, a cancer of the when it comes to our experts. While await- contrast with Johnson & Johnson—the lining of the lungs, was caused by asbestos ing these rulings, new studies have been other primary Defendant in such cases. in J&J baby powder. The trial began Dec. 2 published. Those additional supportive The LeVesque family is represented by but took a lengthy break for the holidays studies have also been submitted to Judge David Amell, a lawyer from Maune, Raichle, starting Dec. 20, and the trial was to Wolfson for consideration. Hartley, French & Mudd LLC. The case is resume on Jan. 6. The jury heard during In the meantime, Beasley Allen lawyers Robert LeVesque et al. v. Colgate-Palmol- opening statements about the FDA’s are moving ahead with more state court ive Co. et al., (case number RG17884440) October announcement that a blind test of trials throughout the country. Our firm cur- in the Superior Court of California for J&J talc had found chrysotile asbestos in rently has a case in Philadelphia with a pre- Alameda County. trial conference scheduled for Feb. 7. one sample. As previously reported, the Ideally, we will try this case in the first half FDA and J&J each announced on Oct. 18 Source: Law360.com of the year. We should have a firm date that the company would voluntarily recall a shortly. The Philadelphia case will be the large lot of the powder. first trial that includes Rite Aid, a Pennsyl- The O’Hagan jury had been expected to J&J CEO Made To Testify In Talc Trial be one of the first that would be able to vania-based retailer, as a Defendant. Rite Weighing Punitive Damages Aid made its own talcum powder products directly weigh that information in its delib- for years but has now completely swapped erations. Linda O’Hagan was diagnosed Johnson & Johnson CEO Alex Gorsky has out these products for cornstarch. Even with mesothelioma in August 2018, was testified in a New Jersey state trial weigh- after changing its own products, Rite Aid given an estimated year and a half to live ing punitive damages, but only because has played a key role in the conspiracy to and has since undergone multiple rounds of Superior Court Judge Ana C. Viscomi continue selling a known or suspected dan- chemotherapy and immunotherapy without ordered him to testify. The case involved gerous product in J&J’s Baby Powder. managing to stop the spread of the cancer. four people who claimed J&J talcum Spring 2020 looks to be a busy time for The midtrial settlement signals an powder was contaminated with asbestos our talcum powder litigation team. Beasley increased trial risk Johnson & Johnson and caused them to develop a deadly form Allen lawyers have a wrongful death case faces from the FDA’s recent finding of of cancer. In September, a separate jury set to start trial in Illinois in early Spring. In asbestos in its talc. J&J has consistently told ordered J&J to pay the Plaintiffs $37.3 this case, we have also named Walgreens as juries that trustworthy sources like federal million in compensatory damages. a Defendant and have been conducting sub- regulators have never found the carcinogen Judge Viscomi found that previous state- stantial discovery against them as the local in its talc. However, one of J&J’s own litiga- ments made by the chief executive indi- retailer. Walgreens has partnered exten- tion experts has found several fibers of cated he had personal knowledge that sively with J&J over the years and it contin- chrysotile asbestos in a J&J baby powder would help jurors better evaluate whether ues to advertise and sell its talc-based sample while under contract with the U.S. Johnson & Johnson acted maliciously or dis- products. Food and Drug Administration. regarded Plaintiffs’ rights. For example, Finally, the Brower case in Georgia has The O’Hagans are represented by Moshe during a December 2018 interview on been reset for the later this Spring. As you Maimon of Levy Konigsberg LLP, and John CNBC’s “Mad Money,” Gorsky denied that may recall, this is the case that our firm Langdoc and Arcelia Hurtado of Kazan the company’s talc-containing products tried last fall in Fulton County that ulti- McClain Satterley & Greenwood APLC. The contained asbestos. Judge Viscomi said: mately resulted in a hung jury. case is Linda O’Hagan et al. v. Johnson & We anticipate trying all three of the cases Johnson et al., (case number RG19019699) The court does not view this as discussed above in the first half of this year. in the Superior Court of the State of Califor- ending with the time period of use by In addition to these cases, we are also nia, County of Alameda. the Plaintiffs, but rather at issue in a moving toward additional trial settings in Source: Law360.com

4 BeasleyAllen.com punitive damages phase is whether tion’s (DEA) system to monitor the flow of when those Defendants settled with the the conduct is ongoing. controlled substances, called the Automa- counties for $260 million. tion of Reports and Consolidated Orders Judge Polster told the pharmacies to As widely published, on Oct. 18, 2019, System (ARCOS). produce records for all of Ohio next, fol- Johnson & Johnson recalled one lot of its Alabamians received more prescribed lowed by Kentucky and West Virginia, two iconic Johnson’s Baby Powder after the opioids per person than residents of any other states that figure prominently in the Food and Drug Administration (FDA) found other state in 2018, according to data next bellwether trials. The judge said the the powder was contaminated with trace recently released by the U.S. Centers for pharmacies should then turn over complete amounts of asbestos, a known carcinogen. Disease Control and Prevention. Patients in nationwide records as soon as they can, The company has since rejected the test Alabama received 97.5 prescriptions per although the Cuyahoga and Summit trial results, and still claims its talc products 100 people. The national average was 51.4 will be “limited to Ohio data.” are safe. prescriptions per 100 people, according to Special Master David Cohen on Jan. 27 Gorsky has repeatedly defended the the most recent surveillance data. outlined what data pharmacies have to turn safety of Johnson & Johnson’s talcum Several states have enacted even stricter over to local governments in the litigation, powder products, but refused to testify regulations on prescription opioids. Fifteen including information on non-opioids that under oath at a U.S. congressional hearing states imposed seven-day limits on pre- are associated with “doctor-shopping.” to address the FDA’s findings. scriptions for acute pain, including Okla- Special Master Cohen said that the phar- Interestingly, Alex Gorsky told the jury homa, Louisiana, South Carolina and macies have to produce data for 14 benzodi- in his testimony in the ongoing punitive Missouri. Some states have imposed five- azepines and four muscle relaxers, along damages trial that he had not read all the day limits. These limits are not intended for with the prescription data for opioids. internal J&J documents related to potential patients already taking opioids long-term According to the Ohio Board of Pharmacy, asbestos contamination in J&J’s Baby for chronic pain. the most glaring “red flag” combinations Powder. Asked by one of the plaintiffs’ The MDL is In re: National Prescription involve mixing opioids with a benzodiaze- lawyers whether he read all documents Opiate Litigation, (case number 1:17-md- pine and a muscle relaxer, Cohen said. linked to the damaging Reuters report, 02804) in the U.S. District Court for the Gorsky replied, “I did not read all the docu- Northern District of Ohio. ments but I would rely on the experts in these fields.” Source: Law360.com AmerisourceBergen Loses Bid To Shield The cases are Barden et al. v. Brenntag Opioid Documents North America et al., case number L-1809- 17, Etheridge et al. v. Brenntag North Large Pharmacies Must Disclose 14 Years In a potentially far-reaching decision, on America et al., (case number L-932-17) Of Opioid Data Jan. 13 the Delaware Chancery Court McNeill-George v. Brenntag North ordered AmerisourceBergen Corp. to America et al., (case number L-7049-16) Some of the nation’s largest pharmacy provide stockholders with records on its and Ronning et al. v. Brenntag North chains must turn over an unprecedented 14 compliance with opioid drug distribution America et al., (case number L-6040-17) in years’ worth of nationwide opioid prescrip- controls. Vice Chancellor J. Travis Laster the Superior Court of the State of New tion records to cities and counties that have rejected company claims that investor Jersey, County of Middlesex. filed suits against them over their role in demands were too broad and lacked a “proper purpose.” The decision concluded Sources: Law360.com and National Law Journal the opioid epidemic. Judge Dan Aaron Polster, the Ohio federal judge overseeing that the investors representing two worker the multidistrict litigation (MDL), ordered benefit funds had ample right to seek and Walgreen Co., CVS Health Corp., Rite-Aid inspect formal board materials under IV. Corp., Walmart Inc. and other pharmacy Section 220 of Delaware’s corporation laws. retailers to produce records dating back to Further, the court authorized a deposi- AN UPDATE ON 2006 that will show how many customers tion to scope out other potential sources of THE OPIOID obtained opioids from them and what safe- information not yet identified because of guards were in place to ensure those pre- the company’s refusal to cooperate. The LITIGATION scriptions were legitimate, medically Vice Chancellor wrote in his order: necessary and complied with the Con- In this case, the flood of government trolled Substances Act, among other things. investigations and lawsuits relating The order mandating unprecedented New Data Shows 100 Billion Opioid Pills to AmerisourceBergen’s opioid-distri- levels of pharmacy data disclosure sets the Flooded U.S. Over Nine Years bution practices is sufficient to estab- stage for massive production both in the lish a credible basis to suspect 2020 bellwether lawsuit in Cleveland Data previously available only to federal wrongdoing warranting further involving these chains and for potentially agencies shows that opioid industry distrib- investigation. thousands of similar cases across the U.S. utors and pharmacies unleashed 100 billion That case, by the way, was continued and pain pills across the country over a nine- AmerisourceBergen is the nation’s sec- reset for Nov. 9, 2020. year span. The 100 billion figure adds ond-largest drug distributor. There is a Judge Polster told the pharmacies to first another 24 billion pain pills distributed wave of public, regulator and political turn over records for Cuyahoga and Summit nationwide in 2013 and 2014 to previous concern over addiction and deaths caused Counties, the two Ohio jurisdictions cur- data showing 76 billion pain pills spread by the types of drugs that flooded the rently leading the charge in the MDL. between 2006 and 2012. The updated infor- nation for more than a decade. The Those counties are scheduled to conduct mation was released on Jan. 15 by the Plain- company was recently named as a Defen- the first trial in the MDL in October, against tiffs’ executive committee in the Opioid dant in some of the more than 1,600 law- the pharmacy Defendants. An earlier trial multidistrict litigation (MDL). suits now consolidated in federal against drug manufacturers that had been The public now has online access as of multidistrict litigation (MDL) in the North- scheduled for October 2019 was avoided Jan. 15 to the two additional years of data ern District of Ohio. Vice Chancellor on the U.S. Drug Enforcement Administra- Laster said:

JereBeasleyReport.com 5 The plaintiffs have not approached $175 million settlement to resolve claims The Beasley Allen Opioid Litigation Team AmerisourceBergen as part of an the company’s board failed in its oversight indiscriminate fishing expedition or of opioid sales even after incurring millions Because of the enormity of the opioid liti- out of mere curiosity. Amerisource- in fines for previous compliance failures. gation, and Alabama’s personal involvement Bergen is suffering a significant cor- The stockholders told Chancery Court in the multidistrict litigation (MDL), our porate trauma, as evidenced by its Judge Sam Glasscock III, they had submit- firm has put together an “Opioid Litigation recent offer (along with the two other ted the settlement to a California federal Team,” which includes these lawyers: Rhon largest opioid distributors) to pay court for preliminary approval. A prelimi- Jones, Parker Miller, Ryan Kral, Rick Strat- $10 billion to settle with the state nary approval hearing was held on Jan. 21. ton, Will Sutton and Jeff Price. This team of attorneys general who are pursuing A hearing on final approval was set for lawyers represents the State of Alabama, claims in the MDL. April 21. The settlement covers all the the State of Georgia, and numerous local parties to both the Delaware and Cali- governments, as well as other entities in Opioid misuse and addiction, the Vice fornia suits. the MDL, and individual claims on behalf of Chancellor said, “is a matter of national sig- McKesson also would implement a victims. If you need more information on nificance. There is a credible basis to number of reforms, including separating the opioid litigation contact one of these suspect that AmerisourceBergen’s situation the roles of CEO and chairman, term-limit- lawyers at 800-898-2034 or by email at did not result from an ordinary business ing directors, and reforming “the composi- [email protected], Parker. decision that, in hindsight, simply turned tion, mandate, and training of McKesson’s [email protected], Ryan.Kral@beas- out poorly.” But a responsible stockholder compliance committee.” In addition, the leyallen.com, Rick.Stratton@beasleyallen. cannot identify all of the potential uses for company would undergo “improvements in com, [email protected] or books and records “before knowing what reporting to the compliance committee and [email protected]. the books and records reveal,” the Vice reporting by the compliance committee, Chancellor said, acknowledging that find- revisions to the company’s compensation ings from the company’s initial releases of clawback policy, and enhancements to the information could prompt additional company’s disclosures relating to lobbying V. demands. The Vice Chancellor said further: concerning controlled substances and LEGISLATIVE The record is inadequate to deter- adjustments to executive compensation mine whether the plaintiffs can based on legal or compliance costs.” UPDATE inspect any other materials because A number of stockholders filed similar AmerisourceBergen refused to suits in California federal court in 2017, alleging McKesson did not have proper provide any discovery into what The Legislative Session In Alabama—What’s oversight mechanisms in place to identify types of books and records exist, how On The Agenda In 2020? they are maintained, and suspicious orders of the powerful opioid painkiller it sold even after entering into who has them. By the time you receive this Report, the regulatory settlements with federal authori- 2020 legislative session has already gotten ties in 2008. Later, a similar suit was filed in Strong circumstantial evidence suggests underway. Alabama’s legislators returned to Delaware Chancery Court and the Califor- that, by various means, AmerisourceBergen the State House on Feb. 4. As usual, they nia actions were consolidated. moved opioids into distribution channels it will have a full plate. It remains to be seen The shareholder suits followed a 2015 knew, or should have known, would lead to how much they can get accomplished. settlement with the U.S. Drug Enforcement diversion and improper use. “Whether a There are several critically important issues Administration (DEA), the U.S. Department corporation has engaged in this type of that will make prioritizing difficult. of Justice (DOJ) and several U.S. Attorney wrongdoing is a legitimate matter of Topping the list are issues of prisons and offices. That resulted in a $150 million civil concern that is reasonably related to the criminal justice reform, rural health care, penalty for McKesson and new obligations Plaintiffs’ interests as stockholders,” the mental health services, and of course edu- to strengthen its programs for monitoring Vice Chancellor said. cation, which has also re-introduced the and reporting suspicious opioid shipments. Lebanon County Employees’ Retirement debate over a state lottery as a funding Investors claimed the settlement, which fol- Fund and Teamsters Local 443 Health Ser- source. Drilling down, there are also a lowed several previous enforcement vices & Insurance Plan are represented by number of specific bills already proposed. actions, harmed the company at the Samuel L. Closic and Eric J. Juray of Prickett These include a call to eliminate the expense of investors. Jones & Elliott PA, Eric L. Zagar, Michael C. grocery tax, which proponents say places The Plaintiffs were represented by Reed Wagner and Christopher M. Windover of an undue burden on the poor, and a bill R. Kathrein, Steve W. Berman and Ronnie S. Kessler Topaz Meltzer & Check LLP and that would establish law enforcement offi- Spiegel of Hagens Berman Sobol Shapiro Frank R. Shirripa, Daniel B. Rehns and cers as a protected class under Alabama’s LLP and James S. Notis and Meagan Farmer Hillary Nappi of Hach Rose Schirripa & hate crimes law. Cheverie LLP. of Gardy & Notis LLP. Plaintiff Vladimir The case is Lebanon County Employees’ Gusinsky is represented by Jeffrey C. Block Prisons and criminal justice reform Retirement fund et al. v. AmerisourceBer- and Joel Fleming of Block & Leviton LLP. gen Corp., (case number 2019-0527) in the The case is In re McKesson Corp. Deriv- Alabama Speaker of the House Mac Court of Chancery of the State of Delaware. ative Litigation, (case number 4:17-cv- McCutcheon told Alabama Daily News he Source: Law360.com 01850) in the U.S. District Court for the has spoken to Gov. Kay Ivey about prioritiz- Northern District of California. ing prison reform issues, which include Source: Law360.com understaffing and the need to upgrade “decaying” facilities. McCutcheon says he McKesson And Stockholders Reach $175 hopes to get support for a bipartisan plan Million Settlement In Opioid Suit that would address prison reform in a similar fashion to the State’s successful Stockholders suing pharmaceutical dis- passage of the gas tax increase for infra- tributor McKesson Corp. have reached a structure. The Rebuild Alabama Act, which

6 BeasleyAllen.com included a 10-cent gas tax increase to proficiency in reading during the 2017-18 tee last go-round but didn’t get a vote by repair roads and bridges was a focus of the school year. Some educators have com- the full Senate. 2019 legislative session. plained about the act, calling it an There’s a lot to watch during the session But while legislators and the public can “unfunded mandate.” that will have serious impacts on Alabama’s connect the dots between a tax on the gas The Education Department had hoped to future. I encourage all Alabama citizens to that powers their vehicles and the roads secure a federal grant to fund a key part of get involved, find out more about these they drive those vehicles on, the link the program—training approximately issues, and talk to their legislators about the between funding and prisons may be a 3,000 teachers—but that didn’t happen. issues that affect them. Members of the harder sell. Especially when so much atten- Mackey says about $21 million of the ask House and Senate are there to represent the tion is focused on education. Prisons are a would go toward training every K-3 teacher people of Alabama. It’s important for all necessary part of infrastructure, but in the state in the science of reading; $18.5 Alabamians to make their voice heard. nobody wants to think about them—until million to implement summer reading pro- Sources: Alabama Daily News, Al.com, BamaPolitics. there’s a problem. Can the legislature show grams for K-3 students identified with com and WSFA-TV the public that time is now? reading deficiencies, and $7.7 million to improve mental health services in K-12 Rural health care schools, in cooperation with the Alabama Department of Mental Health. VI. Thirteen hospitals in Alabama have Other education requests before the leg- closed within about a decade, according islature include investment in pre-K educa- COURT WATCH the Alabama Hospital Association. Seven of tion, an increase for four-year universities, those were in rural parts of the state. If a performance-based funding in higher edu- rural community cannot financially cation, and a funding increase for opera- High Court To Hear Ford’s Challenge To support a hospital, how do we fill the gap tions and maintenance in the Alabama State Defect Suits to ensure the folks who live in those com- Community College System. munities receive adequate medical care? The need for money to fund education The U.S. Supreme Court agreed last Proposed solutions include establishing once again raises the issue of a state lottery. month to hear Ford’s challenge to two deci- smaller medical clinics within communi- The issue was before the legislature in 2019 sions that allowed Plaintiffs to bring defect ties, utilizing telemedicine to allow patients but died over concerns by some legislators suits in states where the auto giant says it to virtually connect with physicians in about legalizing gambling, as well as argu- does not have a sufficient connection. The larger cities, and establishing a medical ments about whether or not to allow elec- high court consolidated separate appeals of transportation system to bring people to tronic gambling machines at dog tracks to Minnesota Supreme Court and Montana hospitals for care. compete with casinos operated by the Supreme Court decisions, both of which While this all sounds easy enough, what Poarch Band of Creek Indians. allowed courts in those states to have spe- about funding? There are a large number of Without any doubt, Alabama has under- cific personal jurisdiction over Ford, as people in rural communities who are unin- funded public education for decades, have many other jurisdictions where Ford sured, even with the Affordable Care Act— which has contributed to the vast list of tried this tactic. for as long as that lasts. Both McCutcheon problems currently holding Alabama back The automaker is trying to obtain a and President Pro Tempore Sen. Del Marsh economically and socially. It’s high time for ruling that is both illogical and legally inde- have said they do not intend to present this legislature to properly fund education. fensible. Such a standard would result in Medicaid expansion as a solution. While Hopefully, the legislators will meet the gross injustice to the American people and Gov. Ivey could expand Medicaid, the legis- challenge. to the owners of businesses throughout the lature would have to vote to fund it. nation. Many other state courts have denied Alabama Hospital Association Executive Bills of note Ford’s efforts to avoid responsibility for Vice President Danne Howard told WSFA products alleged to be defective where that most recent estimates say 350,000 Ala- The legislature will once again consider a Ford claimed the courts did not have juris- bamians would receive health care cover- proposal to eliminate the grocery tax. diction over Ford even though Ford sold age if Medicaid is expanded. And While a lot of people support this idea in tens of thousands of vehicles in the states. telemedicine? Many rural communities do theory, Rep. Steve Clouse (R-Ozark), the The issue before the high court is one not have the infrastructure to support the Chairman of the House Ways and Means dealing with state rights and individ- broadband connection required. Gov. Ivey General Fund Budget Committee, said the ual rights. signed two bills in the 2019 session under issue is a lot more complex than most In the Minnesota case, Adam Bandemer an “Internet for All” initiative to expand people realize. The grocery tax makes up a was a passenger in a 1994 Crown Victoria access to this technology, which is a step in portion of the total sales tax—4%—which when the driver rear-ended a snow plow the right direction, but it will take time. is combined with other local sales taxes. and the car ended up in a ditch. He alleged Cutting the grocery tax in Alabama would in his state court suit that the passenger Education leave a deficit of about $400 million in side air bag didn’t deploy and that he suf- revenue. Right now, that money goes to the State Education Department Superinten- fered a severe brain injury in the state education budget, which obviously 2015 accident. dent Eric Mackey has asked the legislature will need to make up the funding somehow. for nearly $50 million to implement the Minnesota’s high court found there was a Sen. Chris Elliott, from Fairhope, is bring- substantial connection between Ford, the Alabama Literacy Act, which has the goal of ing back a bill he sponsored in the 2019 helping students learn to read proficiently state of Minnesota and Bandemer’s claims, session, which would increase penalties for because the automaker sold thousands of by the fourth grade by ensuring early learn- those who commit crimes against law ers get a solid foundation in reading. The Fords and hundreds of thousands of other enforcement officers. Senate Bill 44 would cars in the state, collected data on how its act was passed last spring and will require add officers as a protected class under Ala- third-graders to read on grade level starting cars performed, and marketed and adver- bama’s hate crime laws. The bill was tised to Minnesotans. with the 2021-22 school year. In Alabama, approved by the Senate Judiciary Commit- 52% of 57,000 third-graders did not reach The Montana case involves a wrongful death suit brought by the estate of

JereBeasleyReport.com 7 Markkaya Jean Gullett, who died in 2015 in ments on Jan. 10. The more than $3 billion and Exchange Commission (SEC) Whistle- a rollover crash in Minnesota of a Ford was recovered in the fiscal year ending blower program. Explorer. Similarly, the Montana high court Sept. 30, 2019, the DOJ said in a press Source: AL.com ruled that as long as Ford advertises, sells release. The DOJ said recoveries since and services vehicles in Montana, it can be 1986, when Congress strengthened the sued in the state on any claim that involves civil False Claims Act, now total more than a Ford vehicle. Ms. Gullett was driving her $62 billion. SEC Whistleblower Program Awards $60 1996 Ford Explorer along a Montana Ms. Hunt said the number of settlements Million In 2019, Nearly $400 Million Since highway in May 2015 when the tread on and judgments show that the agency has Inception, But Faces Threats From Within one of her tires separated, causing Gullett placed a high priority on deterring fraud to lose control of the vehicle and roll into a and making sure that tax dollars are law- In December, we wrote about the Com- ditch. She died at the scene. Her estate rep- fully spent. She stated: modity Futures Trading Commission’s resentative, Charles Lucero, sued Ford in (CFTC) 2019 annual report for its whistle- Cascade County, Montana, in 2018. The continued success of the depart- blower program and described in some The law has always allowed injured ment’s False Claims Act enforcement detail how the program works. This month victims to sue in the state where they were efforts are a testament to the tireless we will look at the U.S. Security and injured if the manufacturer of the alleged efforts of the civil servants who inves- Exchange Commission’s (SEC) whistle- defective product did business in the state. tigate, litigate, and try these impor- blower program and its results for 2019. However, Ford is attempting to take away tant cases as well as to the fortitude The SEC’s 2019 annual report on its whistle- those rights and asking the Supreme Court of whistleblowers who report fraud. blower program noted that the SEC paid to require an injured party to sue the manu- awards totaling $60 million to eight indi- Of the more than $3 billion recovered, viduals who provided key information for facturer only in the manufactures home $2.6 billion came from cases that involved state. If Ford were to prevail, injured enforcement actions. Included in that total the health care industry, including drug was a $37 million award to a single individ- parties seeking redress by defective prod- and medical device manufacturers, ucts would be required to travel to the ual. Since 2011, the SEC has awarded more managed care providers, hospitals, pharma- than $387 million to whistleblowers who places where the products were manufac- cies, hospice organizations, laboratories tured to make a claim. Such a rule would be helped the SEC recover funds in and physicians, the DOJ said. The amounts fraud actions. unworkable in the real world where many included in the total number reflect only products are imported and manufactured Both the CFTC and SEC programs were federal losses, but in many cases there was created by the Dodd-Frank Wall Street abroad in places like China. Countries also money recovered for state Medic- where injured parties may not have the Reform and Consumer Protection Act in aid programs. 2010, so they share a lot in common. Like consumer protection laws like those here Encompass Health Corporation, formerly in the United States. the CFTC’s program, Dodd-Frank directed known as HealthSouth Corporation, is the the SEC to make monetary awards to eligi- Gullett’s estate is represented by Deepak country’s largest operator of inpatient reha- Gupta and Gregory A. Beck of Gupta ble individuals who provide information bilitation facilities (IRF). According to about fraud. Wessler PLLC. Bandemer is represented by information from the DOJ, the company Kyle W. Farrar, Wesley Todd Ball and Mark To qualify for an award, the whistle- paid $48 million in June to settle claims blower must voluntarily provide original Bankston of Kaster Lynch Farrar & Ball LLP. that some of its IRFs provided inaccurate The cases are Ford Motor Co. v. Montana information (i.e. information not already information to Medicare to maintain their known to the SEC) about violations of Eighth Judicial District Court et al., (case status as an IRF, and to earn a higher rate of number 19-368) and Ford Motor Co. v. federal securities laws. The information reimbursement. There were also claims must lead to a successful enforcement Bandemer, (case number 19-369) in the that some admissions to those IRFs were U.S. Supreme Court. action by the SEC or certain other “related not medically necessary. actions” resulting in the collection of mone- Source: Law360.com The DOJ acknowledged in the press tary sanctions over $1,000,000. release that the False Claims Act is the gov- The related actions that qualify for award ernment’s main tool for recovering federal are those brought by other federal or state VII. funds and property. In 1986, Congress agencies, a self-regulatory organization like strengthened the Act by increasing incen- the Financial Industry Regulatory Authority AN UPDATE tives for whistleblowers to file lawsuits (FINRA), and even actions brought by alleging false claims on behalf of the gov- foreign securities and law enforcement ON THE ernment. Hopefully, the DOJ will resist authorities. However, in order to qualify for WHISTLEBLOWER efforts from others in the federal govern- the whistleblower award, the information ment who apparently don’t share Ms. must still be given to the SEC, and then LITIGATION Hunt’s beliefs relating to the FCA. shared by the SEC with those other entities Qui tam whistleblowers continued to be in their discretion. the driving force behind FCA cases in fiscal Also like the CFTC program, a commonly 2019, as they have been since the mid- unknown aspect of the SEC’s program is $3 Billion Recovered In Fraud Cases By 1990s. They helped the government recoup Department Of Justice that the person giving the information does $2.1 billion and were collectively awarded not have to be an “insider” to qualify for an $265 million for their role, the department award. Persons who have never worked The Department of Justice (DOJ) recov- said. Ms. Hunt says: “Whistleblowers con- ered more than $3 billion in settlements with or for the subject of the eventual SEC tinue to play a critical role identifying new action can provide information that and judgments from civil cases involving and evolving fraud schemes that might oth- fraud and false claims against the federal exposes fraud and still be eligible for an erwise remain undetected.” We will take a award. The 2019 annual report notes recipi- government during the last fiscal year. separate look below at the U.S. Securities Assistant Attorney General Jody Hunt of the ents who have been victim investors, pro- Department of Justice’s Civil Division fessionals working in the industry, announced the multi-billion-dollar settle- individuals with a personal relationship

8 BeasleyAllen.com with the wrongdoer, and persons with the Center for Market Competitiveness of York denied Teva’s motion for summary special expertise in the market who the U.S. Chamber of Commerce. judgment. In denying the motion, the Court provide analysis. Like all other whistleblower and qui tam found that the “Relators . . .introduced sub- Finally, like all whistleblower laws, programs, the SEC framework is compli- stantial evidence that Teva did, in fact, Dodd-Frank provides protections for SEC cated and must be followed to entitle an track speakers’ prescription writing,” and whistleblowers. If a whistleblower is fired, individual to an award. Competent repre- that “sales representatives linked prescriber harassed, demoted, or discriminated sentation is invaluable in these cases and, habits with their retention as paid speakers against because of the information or help as noted above, mandatory if an individual for Teva.” The parties reached a settlement he or she provides, he or she can file an wishes to report misconduct anonymously. only after extensive pre-trial motions were action seeking reinstatement, double back If you are aware of fraud in the securities filed and trial preparation was underway. pay, and all costs of litigation, including industry or in a publicly traded company, Source: National Law Review & PRNewsire.com attorneys’ fees. As an added protection, the you could be rewarded for reporting the program permits whistleblowers to make fraud to the SEC. ResMed Settles FCA Suits Over anonymous claims. Whistleblowers are also If you have any questions about whether Referral Fraud For $39.5 Million permitted to be represented by counsel you qualify as a whistleblower, contact one ResMed Corp., a California-based medical through the process to protect their rights, of the lawyers on our firm’s Whistleblower equipment manufacturer will pay $39.5 however, if a whistleblower is making an Litigation Team for a free and confidential million to settle five False Claims Act (FCA) anonymous claim, they are required to be evaluation of your claim. A lawyer on the lawsuits claiming it paid suppliers, sleep represented by counsel. team will be glad to discuss the potential labs and health providers illegal kickbacks If all qualifications are met, the whistle- claim with you either in person or to sell more of its products for sleep disor- blower is entitled to a minimum of 10% of by phone. ders. The settlement ends five qui tam law- the recovery obtained by the SEC, and can suits filed by whistleblowers in federal receive up to 30% in the discretion of the courts in California, South Carolina, New SEC, which will consider the significance Some FCA Settlements Of Note York and Iowa alleging the company vio- of the information, the degree of assistance lated the Anti-Kickback Statute by provid- provided by the whistleblower, the SEC’s The following are recent settlements that ing sleep labs with free airway pressure deterrence interest in violations of the law were reached under the FCA. These are masks and diagnostic machines and non- involved, and other factors. indications of the importance of whistle- sleep specialist physicians with free home But the SEC whistleblower program as it blowers in the efforts to combat fraud sleep testing in exchange for patient refer- has always been known is facing a potential against the government. rals. All of those items were then charged rule change, proposed by the SEC, that to Medicare, Medicaid and TRICARE, giving could limit awards in certain cases. While Pharmaceutical Company Pays $54 rise to the FCA violations, according to the Dodd-Frank mandates that the award must Million To Settle FCA Kickback government. The government will receive be between 10-30%, as noted above, the Allegation $37.5 million while various states will get SEC has discretion where to place the Teva Pharmaceuticals has agreed to pay $2 million from the settlement. award within that range. $54 million to settle a False Claims Act The proposed rule would permit the SEC Source: Law360.com (FCA) case. The FCA complaint was filed by to consider the overall size of the recovery former Teva sales representatives Charles $27 Million Recovered Under The as a factor in deciding how much to award. Arnstein and Hossam Senous in 2013. The False Claims Act For Illegal Further, in cases where the SEC recovery is drug maker paid doctors to prescribe multi- Transportation Of Materials In Iran greater than $100 million, the award would ple sclerosis drug Copaxone and Parkin- be limited to $30 million, unless that would Unitrans International Inc. (Unitrans), a son’s medication, Azilect. Doctors were be below the 10% minimum set by Virginia defense contracting company, has paid “sham” speaking fees to over-prescribe Dodd-Frank. agreed to pay $27 million to resolve a civil the medication. The settlement comes less Counterintuitively, the rule will reduce False Claims Act (FCA) suit filed by Rory than a year after the drug maker settled an the percentage of award in larger cases: Maxwell, John Bush, and Supreme Foodser- Oklahoma opioid case for $85 million. paying less to the whistleblower and per- vice GmbH. Along with the FCA claim, Uni- The whistleblowers alleged that many of mitting the SEC to keep more. Not a single trans was separately charged with criminal the doctors were paid honorariums for pre- public company, investor advocacy group, obstruction. However, as part of the global sentations that were never made and events public interest group, expert or whistle- resolution, Unitrans entered into a non- that never took place. It appears that blower has come out in support of such prosecution agreement with the Depart- doctors who refused to prescribe the medi- a change. ment of Justice (DOJ) to resolve the cations at a high rate were taken off the It’s significant that Senator Charles Grass- obstruction charges in exchange for agree- speaker’s list. To get back on the list, the ley (R-Iowa), Chair of the Senate Finance ing to pay $31.5 million in criminal penal- doctors would have to undergo a special Committee and Chairman of the Senate ties and victim compensation. The $27 training and start writing more prescrip- Whistleblower Caucus, wrote a letter to million civil settlement involving the FCA tions. Both medications were covered by a SEC Chairman Jay Clayton opposing the claims credits $13.5 million of Unitrans’ federal health care program, which made measure and stating the SEC “has not $31.5 million payment under the non-prose- the unlawful payments a violation of the pointed to any compelling reason to veer cution agreement. As a result, Unitrans is Anti-Kickback Statute and the False Claims from award levels that are working and that required to pay an additional $13.5 million Act. The complaint alleges that some are comparable to other federal award to resolve the FCA claims. doctors were paid as much as $216,000 programs.” The case involves a government procure- yearly in speaking fees. As Senator Grassley notes, “there would ment contract award by Defense Logistics The U.S. government declined to inter- be no recovery at all…were it not for the Agency (DLA) to Anham FZCO, a company vene in the case, but the whistleblowers whistleblower,” so they should be awarded that is incorporated under the laws of the continued to take on the pharmaceutical over other priorities of the SEC. The main United Arab Emirates, to provide logistical company. On Feb. 27, 2019, Judge Colleen support of the rule change has come from support and construction materials to McMahon of the Southern District of New United States troops in Afghanistan. The

JereBeasleyReport.com 9 DLA contract required Anham to certify lawyers by phone at 800-898-2034 or by Takata Recalls 10 Million More Air Bag compliance with United States laws that email at [email protected], Inflators prohibit the shipment of materials through [email protected], Paul. Iran. From November 2011 to May 2012, [email protected], Leslie.Pescia@ Takata is recalling 10 million more air Unitrans provided the logistical services for beasleyallen.com, Leon.Hampton@beasley- bag inflators that could explode and shoot Anham and transported construction mate- allen.com, [email protected] off shrapnel in what’s possibly the last rials through Iran to Afghanistan. The con- and [email protected]. phase of the largest recall in U.S. history. struction materials Unitrans shipped The recalled inflators were interim reme- through Iran were for purposes of con- dies installed in air bags until a more per- structing a warehouse in Afghanistan used manent solution could be found following by Anham to perform troop support under VIII. the initial worldwide recall of about 50 the DLA contract. million Takata air bags, according to a The $27 million agreement with Unitrans PRODUCT report posted on the National Highway resolves claims made pursuant to the FCA LIABILITY UPDATE Traffic Safety Administration that alleged Unitrans, along with Anham, (NHTSA) website. fraudulently induced DLA, as well as the ​​​​​​The 10 million figure is an estimate of United States Army, to award wartime con- the amount of inflators made for the U.S. tracts for certain materials, including Ikea To Pay $46 Million To Settle Furniture market, according to Takata. While the trucks and food, by falsely certifying com- Tip-Over Death Suit recalled inflators use the same chemical pliance with United States sanctions against compound found in the faulty inflators that Iran. The agreement also resolves multiple The family of a 2-year-old boy who died have killed at least 25 people worldwide other claims that Anham falsely repre- when an Ikea dresser fell on him has and injured hundreds, Takata said it is not sented construction progress on its ware- reached a $46 million settlement with Ikea. aware of any ruptures of the interim infla- house in order to induce the DLA to award Attorneys for the family of Jozef Dudek tors. Takata said it does not know how the contract to Anham to supply food to believe it to be the largest wrongful death many vehicles are affected by the most United States troops in Afghanistan. settlement for a child in U.S. history. The recent recall and that many of the interim settlement resolves a 2018 suit filed in Source: www.justice.gov inflators were never installed. Pennsylvania state court by Dudek’s family, The inflators were sold to 14 automakers, and nearly amounts to the $50 million Ikea including Audi USA, Subaru of America Inc. agreed to pay in 2016 to the families of and BMW of North America. Some auto- The Beasley Allen Whistleblower three young boys who died in similar makers have already announced their own Litigation Team incidents. recalls, according to NHTSA’s report According to the suit, Craig Dudek found The cheap but volatile ammonium nitrate Fraud against the federal government his son Jozef pinned between the drawers used by the company to inflate air bags was continues to be a huge problem, involving of a Malm dresser that had fallen on top of prone to misfire, especially in humid condi- many industries in this country. As we have him in their California home in May 2017. tions. The deaths and injuries caused by the previously reported, our firm is heavily Jozef was later pronounced dead at West faulty air bags prompted the worldwide involved in the whistleblower litigation. Anaheim Medical Center. The Dudeks recall that, according to NHTSA, involved Beasley Allen lawyers Lance Gould, Larry alleged that Ikea had known about tip-over about 37 million vehicles and 19 Golston, Paul Evans, Leslie Pescia, Leon hazards and incidents associated with their automakers. Hampton, Tyner Helms and Lauren Miles dressers for years, including the death of a Along with the worldwide recalls, Takata are working in this area of law known as 20-month-old girl as early as 1989. pled guilty to wire fraud in 2017, agreed to “qui tam” cases. They make up the Whistle- The Dudeks further claimed that Ikea’s pay $1 billion in fines and restitution and blower Litigation Team. efforts to recall the dressers were too little acknowledged it ran a scheme to use false As we have consistently stated, whistle- and too late to prevent further tragedy. In reports and other misrepresentations to blowers are the key to exposing corporate June 2016, Ikea began recalling roughly 29 convince automakers to buy air bag systems wrongdoing and government fraud. A million chests and dressers with a propen- that contained faulty, inferior or otherwise person who has first-hand knowledge of sity to tip over and trap children under- defective inflators. fraud or other wrongdoing may have a neath, following the deaths of six children Under the terms of the settlement, Takata whistleblower case. Before you report sus- and nearly 30 injuries. The Dudek family also agreed to pay a $25 million criminal pected fraud or other wrongdoing—before said they never received word of the recall. fine and to establish a $125 million restitu- you “blow the whistle”—it is important to Under the terms of the settlement, Ikea tion fund for people who were injured or make sure you have a valid claim and that will also meet with an advocacy group that will be injured by a malfunctioning Takata you are prepared for what lies ahead. pushes for mandatory stability standards. air bag inflator. The company also agreed Beasley Allen has an experienced group of Additionally, Ikea has promised to broaden to create an $850 million fund to benefit lawyers dedicated to handling whistle- its outreach related to the recall. The automakers who received the falsified data blower cases. Dudeks have stated they will donate $1 and reports or who purchased the poten- If you are aware of fraud being commit- million from the settlement to consumer tially dangerous inflators. ted against the federal or state govern- organizations advocating for more rigorous In 2015, NHTSA also levied a $200 ments, you could be rewarded for reporting stability testing for dressers. million fine on Takata—its largest ever—in the fraud. If you have any questions about The case is Dudek v. Ikea U.S. Retail a deal that saw the company admit that it whether you qualify as a whistleblower, LLC, (Case No. 171204131) in the Court of failed to tell the agency about the defect, contact a lawyer at Beasley Allen for a free Common Pleas of Philadelphia County, despite knowing about it, and withholding and confidential evaluation of your claim. Pennsylvania. important information. The inflators A lawyer on our Whistleblower Litigation Source: Law360.com sparked massive litigation, with consumers Team will be glad to discuss any potential first filing suit against Takata and auto man- whistleblower claim with you either in ufacturers in 2014. The company filed for person or by phone. You can reach these

10 BeasleyAllen.com bankruptcy in Delaware and Japan in million, finding it to be excessive and • School district cases; June 2018. unreasonable. • County or municipality cases; and Source: Law360.com U.S. Circuit Judges Michael S. Kanne, Joel M. Flaum and Diane S. Sykes sat on the • Attorney general cases. panel for the Seventh Circuit. Ms. Kaiser was represented by Mark R. Miller, Edward $20 Million Pelvic Mesh Award Against A. Wallace and Timothy Jackson of Wexler Johnson & Johnson Upheld Wallace LLP, Jeffrey Kuntz of Wagstaff & The Federal MDL Cartmell LLP, and Thomas O. Plouff of A Seventh Circuit Court of Appeals panel Costello McMahon Burke & Murphy LTD. The JUUL multidistrict litigation (MDL) has upheld a $20 million judgment in favor The case is Barbara Kaiser et al. v. was formed on Oct. 2, 2019 and assigned to of a woman who was harmed by the com- Johnson & Johnson et al., (case number Judge William Orrick in the Northern Dis- pany’s Prolift pelvic mesh device. The 18-2944) in the U.S. Court of Appeals for trict of California. The MDL consists of indi- panel rejected a “flurry of arguments” made the Seventh Circuit. vidual personal injury cases, school district by Johnson & Johnson (J&J) in its unsuc- public nuisance cases, county and munici- Source: Law360.com cessful bid to convince the court to throw pality cases, and class action cases. Approx- out the judgement. The three-judge panel imately 300 cases have already been filed in described the appeal by J&J subsidiary or transferred to the MDL; thousands of Ethicon Inc. as a “broad-spectrum attack” Jury Absolves Ethicon In A Pelvic Mesh Suit additional cases are expected. JUUL Labs, on the judgment of the Indiana federal In Florida Altria, Phillip Morris, and PAX Labs are cur- court that handed out the $20 million rently Defendants in the MDL. Judge Orrick award in Aug. 2018, reducing the $35 A Florida federal court jury found last recently appointed a 21-attorney Plaintiff million jury verdict in the case. month that Johnson & Johnson subsidiary Steering Committee—including Beasley The unanimous opinion by U.S. Circuit Ethicon wasn’t liable in a woman’s suit Allen’s Joseph VanZandt—to lead the litiga- Judge Diane S. Sykes first dealt with Ethi- alleging a defective pelvic mesh caused her tion on behalf of Plaintiffs nationwide. con’s contention that federal law trumps constant pain. The jury found that Char- JCCP—California State Court Litigation Indiana’s state product liability laws. The lotte Salinero had failed to show that the JUUL also faces an active consolidated lit- opinion said: “Federal law did not stop Artisyn Mesh was defectively designed. The igation in California state court. Judge Ann Ethicon from satisfying its state-law duties Plaintiff had claimed that the pelvic mesh Jones of the Superior Court of Los Angeles regarding Prolift’s design.” product was inserted in 2012 and had to be County has been assigned to manage the The panel also addressed Ethicon’s argu- removed five years later because of fistulas, California state court litigation against ment that it was wrongly barred from pre- fecal incontinence and severe pain. It JUUL, which also contains dozens of indi- senting evidence from the U.S. Food and appears that the Plaintiff had other health vidual, class action, and school district Drug Administration (FDA) that its pelvic problems and surgeries that could have cases against JUUL. An active Judicial mesh was safe and effective. Rejecting that affected the jury’s verdict. Council Coordination Proceeding (JCCP) argument, the judges said: “It was reason- The Plaintiff is represented by James L. litigation against JUUL in Los Angeles able to conclude that the probative value of Ferraro, James L. Ferraro Jr., Daniel J. means that JUUL will likely face multiple this evidence was minimal at best and that DiMatteo and Leslie Rothenberg of The trials in federal court in San Francisco and admitting it would precipitate a confusing Ferraro Law Firm PA. The case is Salinero state court in Los Angeles. Judge Jones held sideshow.” et al. v. Johnson & Johnson et al., (case an initial hearing on Jan. 28, 2020, and is Finally, the panel found that the lower number 1:18-cv-23643) in the U.S. District expected to appoint Plaintiff leadership for court judge had erred by using a federal Court for the Southern District of Florida. the JCCP soon. standard rather than a state standard when Source: Law360.com reviewing the damages award. But the judges said “the error was harmless” School District Litigation because the award “was not excessive under Indiana law.” The judges also said IX. In the past several months, Beasley Allen there was “no basis to disturb the jury’s lawyers have been engaged in conversa- conclusion that Ethicon’s conduct war- AN UPDATE ON tions with teachers, principals, superinten- ranted punitive damages.” THE JUUL dents and school boards about the impact Indiana resident Barbara Kaiser filed the of JUUL and vaping on our children and our suit in 2012, alleging that contrary to Ethi- LITIGATION schools. Universally, our public schools con’s marketing to the medical community have a mandate to deliver educational ser- and patients, the Prolift device has high vices in an atmosphere that is safe, healthy failure, injury and complication rates and The litigation against vape device manu- and conducive to learning. Because JUUL has caused severe injuries to a “significant” facturer JUUL continues to grow exponen- has exposed a new generation of children number of women. Kaiser was implanted tially. This is an extremely important to record levels of nicotine addiction, with the Prolift device in January 2009 to litigation for the health and safety of an schools are being uniquely impacted and treat her pelvic organ prolapse, according entire generation of young people in this have been forced to incur a multitude of to court documents. Two years later, she country. Beasley Allen is honored to be at costs to address this problem and are also learned from a doctor that her complaints the forefront of this important litigation. faced with the challenge of how to remedy of low pelvic pain could be tied to the There are several different types of state and abate the situation. implant, she said. and federal lawsuits that constitute the Rather than continue to be victimized, An Indiana jury awarded Kaiser and her JUUL litigation: dozens of school districts around the husband $10 million in compensatory • Individual personal injury cases; country have turned to the legal system to damages and $25 million in punitive hold JUUL accountable for the harm damages in March 2018, but the trial court • Class action cases; inflicted upon our educational environ- judge reduced the punitive award by $15 ment. Beasley Allen has already filed multi-

JereBeasleyReport.com 11 ple cases on behalf of school districts. The demic. In 2016, Professor Halpern-Felsher It Is Not Enough To Only Raise The Legal school district cases are poised to play a developed a Tobacco Prevention Toolkit Age To 21 In An Effort To Stop A Flavor key role in both the MDL and California that is being used by educators in every Ban—The Tobacco Industry Backs It state court litigations against JUUL. state and five countries; reaching at least 300,000 youth throughout the 2018-2019 President Trump has signed into law a school year. federal spending package that includes a Professor Halpern-Felsher by 2018 had provision that raises the legal age to pur- State Attorney General Suits created an online prevention class and chase tobacco from 18 to 21. This law Similar to suits filed in the opioid litiga- updated her toolkit to include the JUUL, covers cigarettes, cigars, loose tobacco, tions, JUUL Labs is facing claims from a the biggest vape manufacturer in the vape devices and other electronic nicotine growing number of state attorneys general, country. JUUL had just been publicly delivery systems (ENDS), nicotine gels and including in North Carolina, New York, Cal- blamed by public health advocates and reg- dissolvables. The Tobacco 21 bill was origi- ifornia, Illinois and Washington D.C., in ulators for an entire generation’s new addic- nally introduced by none other than Senate state court on behalf of state residents. In tion. At the same time, JUUL was shopping Majority Leader Mitch McConnell, who has the suits, the AGs argue that JUUL’s aggres- around its own school curriculum, an anti- received financial backing from the sive advertising of its multi-flavored prod- vaping campaign, and was offering schools tobacco industry and has been a stanch ucts contributed to a public health crisis thousands of dollars to implement it. supporter of the industry. that has left countless state residents, many Professor Halpern-Felsher was shocked You may be surprised to learn that Big of whom are teenagers, addicted to its to discover JUUL had included some of her Tobacco supported the legislation. Altria products and fighting for their health. toolkit slides without permission. Not only (Marlboro) and vaping giant JUUL lobbied These suits point out the fact that in 2010, were they being used without approval, hard for the bill. Critics surmise the the U.S. Surgeon General concluded that JUUL was also using slides that downplayed support is to avoid harsher crackdowns on nicotine has the same effect on the brain as the addictive quality of JUUL. Halpern- underage vaping, specifically flavor bans. cocaine and heroin. The suits further allege Felsher says that the slides did not present President Trump previously announced that even infrequent use of nicotine prod- the chemicals contained in JUUL pods as plans to ban all flavors but has wavered ucts is enough to put teens at risk for addic- harmful, nor did they include the informa- after objections from vaping advocates and tion due to the fact that their brains are still tion that one JUUL pod contains as much conservative groups. developing and are therefore prone to nico- nicotine as a pack of cigarettes. JUUL also Matthew L. Myers, President, Campaign tine addiction at a much lower concentra- associated itself with the Stanford curricu- for Tobacco-Free Kids is critical of the tion than in adults older than 26. AG suits lum, giving the appearance that Professor failure to ban flavors. In a state- also point out that in 2016 roughly one- Halpern-Felsher had helped it create ment, he said: third of surveyed teens reported that they its program. Raising the tobacco age to 21 is a pos- thought JUUL products were harmless. It is Professor Halpern-Felsher said there’s itive step, but it is not a substitute for further argued that JUUL has seized upon nothing inherently wrong with teaching prohibiting the flavored e-cigarettes Big Tobacco’s advertising and flavoring teens about nicotine addiction, “aside from that are luring and addicting our tactics allowing it to profit at the expense the fact you can’t steal someone else’s cur- kids. Juul and Altria have hijacked of the health of state residents. riculum and pretend it’s yours and push the tobacco 21 issue for their own The suits are: back when we tell you not to.” The real problem, in her view, was this: nefarious reasons as a shield to fight • State of North Carolina v. Juul Labs, Inc., efforts to prohibit flavored e-ciga- in the Superior Court of Durham County Even though the class acknowledged rettes. It is deeply disappointing that North Carolina. that nicotine is highly addictive, it the budget agreement gives these failed to connect the dots to Juuling. tobacco companies what they want • People of the State of New York v. Juul It didn’t mention, for instance, that a without addressing the crisis caused Labs Inc. in the Supreme Court of the single 5% Juul pod contains as much by flavored e-cigarettes. To reverse State of New York, County of New York. nicotine as a pack of cigarettes— the e-cigarette epidemic, policy more than many other e-cigarettes makers must prohibit flavored e-cig- • People of the State of California v. Juul on the market, and almost triple the arettes and cannot be limited by Labs Inc. in the Alameda County Supe- legal maximum for pods in Europe. If what the tobacco industry says is rior Court. you’re really trying to prevent people acceptable. from using your product, then your • People of the State of Illinois v. Juul Labs curriculum would be about the The evidence is clear that flavored Inc., Case No.: 2019CH14302, in the harms of your product. We know e-cigarettes are driving the youth epi- Circuit Court of Cook County. they do not make any of those demic. Most youth e-cigarette users • District of Columbia v. Juul Labs, Inc. and connections. use flavored products and cite Pax Labs, Inc., in the Superior Court of flavors as a key reason for their use. Stanford’s lawyers sent JUUL a cease-and- the District of Columbia. As long as flavored e-cigarettes desist letter in April 2018, but JUUL contin- remain available, kids will find ways Source: https://blog.counselfinancial.com/finance- ued to use versions of the school’s to get them and this epidemic will corner/author/elizabeth-dinardo-esq-kelly-anthony- materials. JUUL has since abandoned the continue. Altria, Juul and other e-cig- esq program, under scrutiny of health advo- arette manufacturers know this, cates and government regulators. which is why they are pulling out all The Tobacco Prevention Toolkit and the stops to fight efforts to prohibit all JUUL Accused Of Theft Of Work Product trainings are free of charge to parents and flavored e-cigarettes. educators. Visit http://med.stanford.edu/ Bonnie Halpern-Felsher, a Stanford pro- tobaccopreventiontoolkit.html. Over 5.3 million kids now use e-ciga- rettes and this epidemic gets worse fessor, has spent more than 20 years of her Source: Buzzfeed News career trying to prevent tobacco use. Her every day, with recent trends indicat- current focus is on the teen vaping epi- ing that nearly 5,000 more kids start

12 BeasleyAllen.com using e-cigarettes each day. We will employees in 1960s New York smoked More advanced imaging showed that the not solve this crisis without prohibit- openly in their offices and throughout the abnormalities were primary in the retinal ing flavored e-cigarettes. building. The only difference is JUUL pigment epithelium. The Emory team noted employees are using a more dangerous that their clinic has seen 156 patients with Once the tobacco companies gave their product than the cigarettes smoked by their interstitial cystitis not treated with Elmiron, blessing, other more aggressive bills that fictional counterparts. and that those patients did not demonstrate were supported by health advocacy groups JUUL employees’ addiction to their own the pigmentary maculopathy observed in suddenly lost traction. In nine months of products is even more alarming consider- the Elmiron group. 2019, JUUL spent more than $3.1 million in ing the potential cost associated with Later in the year, two larger studies were lobbying fees, nearly double the 2018 vaping at their office. Reportedly, staffers released, strengthening the association budget, and Altria spent approximately $4.7 receive a warning for a first infraction, fol- between Elmiron and retinal damage. In million. American Lung Association (www. lowed by a cut to their bonus for second October 2019, researchers at Kaiser Perma- lung.org) says on its website: and third infractions, and could be fired for nente identified 140 Kaiser patients who While Tobacco 21 is an important a fourth violation. These financial sanctions had taken Elmiron for a minimum of five policy, because the youth vaping epi- pale in comparison to the health risks JUUL years. Ninety-one of those patients agreed demic is at an all-time high, there is use creates both to the public and to the to an eye examination. Researchers much more work to be done to save user. The U.S. Surgeon General warned that observed that 24% of these patients showed lives. In addition to Tobacco 21 we vaping exposes bystanders to heavy metals eye damage, with the level of damage need to eliminate all flavored and other substances that cause health increasing with increased exposure tobacco products, stop online risks. Other reports link vaping to to Elmiron. (remote) sales and increase taxes on lung disease. In November 2019, researchers at the all tobacco products including e-ciga- Sources: New York Post and Wall Street Journal Emory Eye Center used data from a U.S. rettes. In addition, [the U.S. Food and medical claims database to identify long- Drug Administration] FDA must term users of Elmiron. That team found begin its premarket review of all that patients who took Elmiron for seven e-cigarettes, hookah, cigars and X. years or more had a significantly increased pipe tobacco. risk of developing atypical maculopathy. A MASS TORTS case study published the same month by Legal age restriction is a start, but it is UPDATE Dr. Rachel Huckfeldt describes the progres- not enough to bring an end to this epi- sion of retinal maculopathy in a patient demic. The American people are demand- who had been taking Elmiron for 18 years. ing action to put an end to the tobacco and Dr. Huckfeldt observed continued progres- now the vaping industry running the show Long-Term Use Of Elmiron Linked To sion of maculopathy in her patient for up to in Congress and at the FDA. Retinal Maculopathy six years after she discontinued use Sources: WTTW.com, CNN, TobaccoFreeKids.org and of Elmiron. In the last year, researchers have noticed American Lung Association Researchers have emphasized an urgent an association between long-term use of need for additional research on this associa- Elmiron (pentosan) with an eye disease tion. They encourage Elmiron users who called retinal maculopathy. We will say are experiencing vision changes to consult New Vaping Laws Fail To Change Habits Of more about this drug before discussing its with their health care providers and ask for JUUL Employees association to a very serious eye disease. an evaluation by an ophthalmologist. Elmiron is a medication approved to treat Elmiron was first approved in September Based on Beasley Allen’s involvement in bladder pain or discomfort associated with 1996. The new drug application (NDA) is the JUUL litigation, we have learned interstitial cystitis. Interstitial cystitis is a currently held by Janssen Pharmaceuticals. without any doubt the JUUL products are chronic condition where the nerves that The makers of Elmiron have never warned highly addictive. However, some folks may communicate with the brain cause suffer- users about the risk of developing retinal not yet be totally convinced. If you are in ers to experience the urge to urinate more maculopathy. the latter category, and wonder whether often than most people. Interstitial cystitis Beasley Allen lawyers are investigating these products are addictive, consider the can cause bladder pressure and pain, as cases involving individuals who have been very real addiction of JUUL employees to well as pelvic pain. Symptoms range from diagnosed with retinal maculopathy after their own product. minor discomfort to severe pain. Elmiron is taking Elmiron. For more information, According to reports in the New York one treatment. Other approaches to treat- contact Frank Woodson, Liz Eiland or Post and the Wall Street Journal, JUUL ing the symptoms of interstitial cystitis Melissa Prickett, lawyers in our Mass Torts employees continue vaping at their desks include physical therapy, nonsteroidal anti- Section, at 800-898-2034, or by email at and in their office despite a wave of new inflammatory drugs, tricyclic antidepres- [email protected], Liz. laws in California and New York designed sants, and antihistamines. [email protected] or Melissa.Prick- to prohibit the vaping in public places such In May 2019 a team of researchers from [email protected]. as office buildings. According to these Emory University submitted a case series Sources: Mayo Clinic, IC-network.com, Review of reports, vaping in the JUUL offices initially report at the American Urology Associa- Ophthalmology and FDA declined after passage of these laws, but tion’s Annual Meeting in Chicago. The did not last long. series reported 10 patients with interstitial Founders James Monsees and Adam cystitis who had taken Elmiron and devel- Bowen are reported to vape “openly” at oped macular disease. These patients work while many other employees vape at ranged in age from 38 to 68. The Elmiron their desk. One employee reportedly com- group reported symptoms such as difficulty pared the scene at JUUL’s offices to those of reading and difficulty adapting to dim light- the fictional advertising agency depicted in ing. On examination, the team noted sym- the once popular TV show Mad Men, where metric pigmentary changes in the retina.

JereBeasleyReport.com 13 XI. Justice (DOJ), and received fines totaling We find it difficult to believe that the up to more than $150 million. parties intended to foreclose recovery BUSINESS The direct purchaser settlement with by businesses that suffered spill- Kemet and Shizuki wasn’t the only settle- related losses mere months after LITIGATION ment on the table on Jan. 6. The indirect finally resurfacing from the Gulf purchasers moved for final approval on a Coast’s previous catastrophe, Hurri- nearly $31 million settlement bundle with cane Katrina. Capacitor Buyers Seek Approval For $63 Elna Corp., Matsuo Electric Corp., Nichicon Normal businesses were granted awards Million Settlement With Kemet And Shizuki Corp. and Panasonic. Two Defendants are still actively fighting if they could prove that profits during the Direct purchasers have moved for pre- the indirect buyers’ side of the case: Shinyei spill year were less than profits from previ- liminary approval of a $63 million settle- Kaisha and Taitsu Corp. Two more, Nissei ous years. Under the settlement agreement, ment bundle with electronics companies Electric Co. Ltd. and Toshin Kogyo Co. Ltd., a startup business was defined as a business Kemet Corp. and Shizuki Electric Co. Inc. are in default. “These settlements, if finally with less than 18 months of operating This is in the fourth round of settlements to approved, resolve the electrolytic side of history at the time of the Deepwater come out of price-fixing multidistrict litiga- the case. Shiyei and Taitsu are alleged to Horizon disaster. The settlement agreement tion (MDL) in California federal court have participated in the film capacitor allows startups to receive awards if they against capacitor manufacturers. In this set- industry. could prove their profits during the spill tlement, Kemet will pay $62 million and The direct purchasers are represented by year were less than their profits in subse- Shizuki will pay $1 million. More than $200 the Joseph Saveri Law Firm Inc. The indi- quent years. million in settlements have already rect purchasers are represented by Cotch- This is the second Fifth Circuit appeal received preliminary or final approval in ett Pitre & McCarthy LLP. The consolidated battle that BP lost to Walmart in January. A the case involving “22 different corporate action is In re: Capacitors Antitrust Litiga- panel had ruled earlier in the month that a families,” according to a motion filed tion, (case number 3:14-cv-03264), in the Louisiana district court was right to refuse on Jan. 6. U.S. District Court for the Northern District BP’s challenge to Walmart’s bid to collect The buyers said that the latest settle- of California. The master file is case $15 million from the Deepwater Horizon ments, which still leave direct purchaser number 3:17-md-02801, also in the U.S. Dis- settlement plan. It said BP’s arguments that claims pending against the likes of Pana- trict Court for the Northern District of Walmart stores hadn’t provided enough sonic Corp. and Sanyo Electric Co. Ltd., California. accounting information to the claims administrator were unconvincing. meet all the requirements necessary for Source: Law360.com approval and are in line with previous set- As we previously reported, the multibil- tlements in the case. It was stated in lion-dollar Deepwater settlement was the motion: reached in March 2012, nearly two years Walmart Keeps $800,000 BP Payout For after the spill, to resolve hundreds of thou- [T]he $63 million in cash payments ‘Startup’ Damage sands of claims composing most of the alone from this round of settlements property damage, economic loss and is over 12% of the single damages The Fifth Circuit Court of Appeals ruled medical claims that became part of multi- estimate calculated by the class’ last month that Walmart is entitled to a district litigation. BP challenged the settle- expert. The 11 settling defendants to more than $800,000 payout for a Missis- ment, but it was upheld in two split date, including Kemet and Shizuki sippi Gulf Coast store that qualified as a decisions by the Fifth Circuit. The U.S. (out of 22 corporate defendant fami- “startup business” under a settlement Supreme Court in 2014 refused to take the lies), will have provided over 52% of program stemming from the 2010 explo- case. Beasley Allen represented the State of the damages estimated by the class’ sion and spill aboard BP’s Deepwater Alabama, numerous other governmental experts—with some of the most cul- Horizon oil rig. A three-judge panel decided entities and business owners in the BP liti- pable parties not having yet settled. 2-1 that a Louisiana district court didn’t gation. We also represented lots of home- abuse its discretion by denying BP PLC’s owners on the Gulf Coast. The case continues against the remaining request that the court review whether the Walmart is represented by J. Hoke non-settling Defendants. The case is set for retailer’s Mississippi location qualified Peacock III and Neal S. Manne of Susman trial on March 2, 2020. Direct and indirect under the settlement program as a startup Godfrey LLP. The case is BP Exploration & buyers have accused overseas manufactur- business. BP’s claims didn’t establish that Production Inc. et al. v. Claimant ID ers of conspiring to fix prices for alumi- the misapplication of the startup label to 100354107, (case number 18-31275) in the num, tantalum and film capacitors over a Walmart was a recurring issue, so the lower Fifth Circuit Court of Appeals. decade. U.S. District Judge James Donato court was not obligated to review the case, Source: Law360.com agreed in November 2018 to certify a class U.S. Circuit Judge Stuart Kyle Duncan of direct buyers, a certification currently wrote for the majority. under challenge based on claims of new The Mississippi store first opened in evidence showing a large segment of the 2003 but was forced to close because of class can’t demonstrate any antitrust injury. damage it suffered in 2005 from Hurricane The litigation dates to July 2014, when Katrina. The store was rebuilt and eventu- Chip-Tech filed the first suit in the consoli- ally reopened in October 2009, just six dated case, which has resulted in some set- months before the BP Deepwater Horizon tlements. The federal government has also disaster. Because of this pause in opera- taken an interest in the alleged price-fixing, tions, the settlement agreement program conducting its own investigation and filing qualified the store as a startup and awarded charges against eight manufacturers it it $817,392.13. But BP argued it should have alleged participated in the scheme. All pled qualified as a normal business and received guilty, according to the U.S. Department of nothing. Judge Duncan wrote:

14 BeasleyAllen.com review, not of first view.” “The Second XII. Circuit did not address the[se] argument[s], XIV. AN UPDATE ON and, for that reason, neither shall we,” the PREMISES court wrote in its per curiam opinion. SECURITIES The workers are represented by Samuel LIABILITY UPDATE INSURANCE AND E. Bonderoff, Jacob H. Zamansky and James Ostaszewski of Zamansky LLC. The federal FINANCE government is represented by U.S. Solicitor Propane Leak Missed By Local Gas Company LITIGATION General Noel J. Francisco and Jonathan Y. Causes Severe Burn Injuries To Alabama Ellis of the U.S. Department of Justice. The Man; Gas Company Settles Case One Week case is Retirement Plans Committee of Before Trial IBM et al. v. Jander et al., (case number Supreme Court Sends IBM Stock-Drop Case 18-1165) in the Supreme Court of the Propane is a liquefied petroleum gas, also nd Back To 2 Circuit United States. known as LPG. It is a gas that is normally Source: Law360.com compressed, stored and delivered as a The U.S. Supreme Court has refused to liquid and is non-toxic, colorless and virtu- hear the question of whether companies ally odorless. Propane is a safe, reliable and with their own stock in employee retire- clean energy source. Understanding how to ment plans have an ERISA-imposed obliga- XIII. properly use and store propane, as well as tion to act on insider information that could how to detect warning signs of a gas leak lower the stock’s price. But the ruling in a EMPLOYMENT AND can significantly reduce the risk of a pro- case involving IBM offers insight into how FLSA LITIGATION pane-related hazard in your home. It is the court might answer in the future. In important that homeowners are aware of concurring opinions issued alongside a per basic safety tips. curiam decision, which remanded the case One of the safety features of propane is to the Second Circuit due to inadequate Ninth Circuit Affirms Walmart Truckers’ its unique smell—rotten eggs, a skunk’s development of the record, Justices Elena $55 Million Wage Jury Verdict spray or a dead animal. Ethyl mercaptan, a Kagan and Neil Gorsuch offered opposing sulfur-based compound, is added to takes on what the Employee Retirement The Ninth Circuit Court of Appeals has propane so that it can be detected when Income Security Act (ERISA) requires of affirmed a $54.6 million jury verdict for propane is in use. If you are concerned that “insider-fiduciaries”—company executives truckers who accused Walmart of violating you or others in your home may have diffi- who also manage employee stock plans. California law by failing to pay them during culty smelling propane, consider installing Justice Kagan said that executives must breaks and other work interruptions. A a propane gas detector. These detectors act on insider information that could affect three-judge panel rejected Walmart’s con- sound an alarm if they sense the propane the plan when doing so wouldn’t violate tention that the Northern District of Cali- concentration at the detector. securities laws. Justice Gorsuch said no fornia lacked jurisdiction to hear the case Though it is rare, one of the most impor- such responsibility should exist and that and that the workers weren’t owed pay for tant things a homeowner can do is to make insider-fiduciaries should keep their roles layovers, rest breaks and inspections as a sure that everyone in their home knows separate: Justice Gorsuch said if they learn matter of law. what do if they suspect a propane leak. If information while wearing their “corporate The panel said the lead Plaintiffs were you suspect a leak in your home, verify officer hat,” they shouldn’t have to use it adequate class representatives and that Cal- there are no open flames, leave your home when they put on their “fiduciary hat.” ifornia law let the drivers seek pay for these and go a safe distance away. Do not turn He added: interruptions under certain circumstances, off/on lights, appliances or use a telephone which the jury found were present in this or mobile phone as it could create a spark Because ERISA fiduciaries are liable case. “It is improper for this court to play only for actions taken while ‘acting or ignition source. armchair district judge,” said Judge Eugene If it is safe, turn off the main valve on as a fiduciary,’ it would be odd to Siler, a member of the Sixth Circuit who sat hold the same fiduciaries liable for your propane tank. Lift the lid of the tank on the Ninth Circuit panel by designation. and turn the valve clockwise to turn off the ‘alternative action[s they] could have “In the end, while Wal-Mart makes some taken’ only in some other capacity. gas supply. From outside the home call 911 compelling points, Wal-Mart raises no to report a suspected propane leak. Stay But it was also telling that the Supreme reversible error.” outside of your home and a safe distance Court didn’t reverse the Second Circuit’s The panel was unanimous on most facets away until a trained professional has indi- opinion, which had revived claims that IBM of the complex case, though Judge Diar- cated it is safe to re-enter your home. For insider-fiduciaries flouted ERISA by failing muid O’Scannlain said the trial court peace of mind, have your system inspected to disclose earlier that IBM’s microelectron- should have let the jury resolve one dispute by a trained technician to ensure your ics business was bleeding money. the court decided in the drivers’ favor. system is running safely and efficiently. If Hopefully the Supreme Court will even- Source: Law360.com the gas has been turned off at your home, tually rule on how the duties of corporate never turn it back on yourself. There are insiders under securities law intersect with national safety codes that require qualified their fiduciary duties. While the high professionals to test your propane system court’s opinion didn’t provide a resolution before turning the gas back on and relight- to the question of how insider-fiduciaries ing pilots. should manage benefit plans, an answer Another way to remain safe is to not run may come later. out of propane as it can cause a serious The Supreme Court sent the case back safety hazard. If an appliance valve or gas because the legal arguments hadn’t been line is left open when there is no propane, addressed by the Second Circuit. The high a leak could occur when your tank is filled. court reminded all that it is “a court of Air and moisture can infiltrate into an

JereBeasleyReport.com 15 empty tank, which can cause rust build-up work, running to the bank, to the store, or last minute, reaction time is greatly inside the tank. Rust can reduce the con- to home again, parking lot safety may be reduced, thereby increasing the chance centration of the odor of propane, making the last thing on your mind. But the truth of serious accident. All must be able to it harder to smell. If you run out of propane, is, all these activities may involve making see traffic signs and crosswalks. Visibility pilot lights on appliances will go out. This your way through some of the most notori- can also reduce criminal activity. Crimi- can be extremely dangerous if not ously crime-ridden and dangerous areas of nals are less likely to victimize patrons if handled properly. your city or town: parking lots and they can be monitored easily. For these Propane delivery companies are trained parking garages. reasons, the parking lot owner and to check for leaks in gas lines before deliv- According to the U.S. Department of designer should review the premises and ering to a new customer, or one who has Justice (DOJ) and the Bureau of Justice Sta- determine if traffic signs are visible, and been without gas for some time. tistics, about half a million crimes occur in whether any structures could block Lawyers in our firm’s Personal Injury & parking lots every year in the U.S.—about pedestrian or driver from seeing each Products Liability Section recently settled a 1,400 per day. In fact, parking facilities other. They should also survey the prop- case with a gas company that failed to rank number three in places where crimes erty to eliminate any hiding places that follow this safety protocol when it deliv- most often occur. Property crimes such as criminals could use to ambush unsus- ered propane to our Alabama client in the theft and vandalism are the most frequent pecting patrons. early winter months of 2016. crimes occurring in parking lots, but In our case, the gas company admitted people are also vulnerable to more violent • Surveillance: Perhaps the most effec- that it knew delivering gas without a crimes such as robbery and assault, espe- tive means of discouraging speeding, proper check for leaks could cause an cially when the owners and operators of shoplifting, and criminal victimization is explosion. LaBarron Boone, who led the lit- the parking facility don’t take adequate through a well-trained, onsite security igation for Beasley Allen, deposed the com- security measures. Countless more people guard. In addition, installing surveillance pany’s corporate representative and are killed and maimed in parking lot vehic- cameras to keep watch in key areas of confirmed that a leak test should always be ular accidents every year because of poorly the parking area can serve to discourage done before delivery of gas to a new cus- designed and maintained parking lots. criminal activity and reckless behavior. tomer. If the customer is not at home at the Property owners put themselves at enor- • Signage: Understandably, people can get time of the delivery the system should be mous risk of liability when they fail to caught up in their lives and forget basic red-tagged and locked out until a complete ensure proper security and safety measures safety measures that prevent accidents, safety check is done. This will prevent are in place to protect their guests and so a little reminder can go a long way in homeowners from attempting to light employees. Consider the parking lot or preventing a serious incident. Reminding the pilot. garage of a shopping area. What are some pedestrians and motorists to behave Beasley Allen lawyers produced expert of the things owners of the property should responsibly, to avoid distracted driving testimony on behalf of the Plaintiff in our have in place to protect people walking to and walking, to yield to pedestrians, case that these policies are in line with and from their cars? mind the speed limit, lock the car, and industry procedure. However, the gas put valuables out of sight, can enhance company did not comply with its own • Adequate lighting: Dimly lit or dark parking lot safety. safety policies and delivered gas to our cli- parking lots encourage criminals seeking to preyon people and property. In fact, ent’s house without checking for leaks. • Multiple entrances and exits: Pedes- darkness may be the most important When our client tried to light the pilot, trian accidents are commonly caused by accomplice for thieves and robbers, there was an explosion that threw him poor traffic flow control in parking lots. because it allows them to operate in down the hallway and caused severe burn When traffic flow is compromised, silence. Poor lighting also increases the injuries all over his body. perhaps from limited entry and exit risk of accidents, especially during the The case was settled for a confidential options, heavier congestion can lead to busiest times of the day and year, amount after mediation, which followed a low visibility, more distractions, and ulti- because it affects depth perception and pretrial hearing. Labarron Boone, Kendall mately, accidents. The danger is further visibility of drivers and pedestrians. Dunson and Stephanie Monplaisir from compounded if this heavier congestion Beasley Allen represented the Plaintiff, • Speeding: Most of the time, when we occurs in or near a pedestrian zone. along with Paula Pringle Stokes, a McCalla, think of speeding, we focus on the Having multiple exits and entrances to a AL, lawyer. The Plaintiffs litigation team driver, but other factors are at play when parking lot will help facilitate put together a compelling document trail it comes to parking lot safety. For traffic flow. of the company’s reckless misconduct. instance, speeding can be greatly dis- Being proactive about parking lot safety Lawyers in our firm will continue to couraged—if not eliminated entirely—by and addressing any problems as they occur investigate any gas explosion and hold using traffic signs, well-marked and can drastically reduce the chance of crimes those who fail to follow safety protocols placed speed bumps, breaking up long and accidents on your property while low- responsible for their actions. If you need straight runs, and controlling how traffic ering your liability. Business owners may more information, contact LaBarron Boone is funneled into pedestrian-sensitive not associate parking lot safety with the at 800-898-2034 or by email at Labarron. zones. Most people do not want to speed reputation of their business, but they [email protected]. in parking lots—but the lower speeds should. If a premise is considered unsafe, Source: https://www.rhoadsenergy.com/propane- can make it hard to perceive how fast patrons may choose to avoid visiting alto- safety/ they are actually going and whether gether, thereby causing a reduction in busi- those speeds are safe. ness. Even worse, someone could be • Visibility: Visibility is extremely impor- severely injured or killed, which could lead Parking Lot Liability: Proven Safety tant to parking lots. Pedestrians need to to serious business liability. Measures Lower The Risk Of Serious Injury be able to see vehicles clearly so they can If you need more information, contact determine how fast or close a vehicle is Parker Miller, a lawyer in our Atlanta office, When you get caught up in your busy day to them. The same is true for drivers. If a at 800-898-2034 or by email at Parker. dropping the kids off at school, rushing to driver cannot see pedestrians until the

16 BeasleyAllen.com [email protected]. Parker handles led to Mr. Johnson’s permanent and dis- on/off switch to ensure that power was premises liability cases for the firm. abling injuries. isolated until the job was finished. Sources: Bureau of Justice Statistics, Criminal Lawyers in Beasley Allen’s Personal • Next, any components not scheduled to Victimization in the United States, Security Today and Injury & Products Liability section often The Realtime Report find when a worker is seriously injured or be cleaned would have red barrier tape killed on the job, a defective product is placed around them to signal to our involved. What may appear to be a worker’s client and the other cleaners that his unit compensation claim may actually involve was on, electricity was flowing, and it XV. third-party liability claims for dangerous or was not to be touched. WORKPLACE defective machinery or other equipment. • Finally, before our client cleaned inside For more information on this case, contact the component, the contractor would HAZARDS Mike Andrews in our Montgomery office or use a device to ensure there was no elec- Ben Keen in our Atlanta office. They can be tricity flowing. reached by phone at 800-898-2034 or by email at Michael.Andrews@beasleyallen. Using this process, hundreds of units Machine Operator Sues Forklift Maker com or [email protected]. The were cleaned without incident until the day Over Dangerous Design Defects Johnson case was filed in the U.S. District our client was injured. That morning Court, Northern District Atlanta Division, started like all the other mornings. Units to Beasley Allen lawyers have filed a lawsuit case number 1:20-cv-00304-MLB. be cleaned were identified, power was in a Georgia federal court against forklift turned off and locks were placed on the maker Crown Equipment Corporation. The unit. Red barrier tape was used on compo- case involves a defectively designed and nents not intended to be cleaned. Our malfunctioning forklift that ejected its Workplace Electricity Related Injuries client reported because he had placed his operator and crushed him against a beam. lock on the units to be cleaned, he was Kenan Johnson was operating the defective Electricity is our nation’s most important certain he was safe. forklift at a distribution warehouse near source of power. However, contact with Additionally, the worker saw no red Atlanta in February 2018. Mr. Johnson is electricity will often result in serious injury barrier tape around the unit he was represented by Beasley Allen’s Mike or death. Hundreds of workers die each instructed to clean next. The supervisor Andrews and Ben Keen. year and thousands more are injured due to had not used the detection device because Mr. Johnson is young, with his whole life exposure to electricity. Oftentimes, those he was occupied doing something else. ahead of him, yet the injuries caused by the who are fortunate enough to survive an After suit was filed on our client’s behalf, defendant’s forklift have permanently dis- electrical shock suffer injuries that affect the Defendants’ primary argument was that abled him and severely limited his future their ability to work and enjoy life. Anyone our client contributed to his own injury by job opportunities. Crown Equipment knew working around electricity should respect not waiting for the supervisor to use the the product is dangerous, but chose to risk the clear and present danger it presents. device before he started cleaning the workers’ safety rather than address the The best way to avoid injury or death asso- components. defects in its product’s design. Crown ciated with electricity is to recognize the Kendall countered with testimony from Equipment must be held accountable for hazard, follow safety procedures to prevent our client and other workers that a differ- the poorly designed forklift and its disre- injury, and to utilize available safety equip- ent procedure was established with respect gard for safety. ment designed to eliminate or mitigate the to using the device. Sometimes the supervi- On the day of the crash, Mr. Johnson was hazard. Sometimes, however, even that is sor would use the device out of the pres- moving the forklift in a forward direction. not enough. ence of the cleaners, and he would tell In what was a routine act, he lifted his foot Beasley Allen lawyer Kendall Dunson them it was safe to clean. On the day of the off the forklift’s accelerator expecting the recently resolved the case of a client who injury, the supervisor told our client the machine to stop. However, the forklift did worked as an electrician’s helper responsi- next one was ready to be cleaned and good not stop. Instead, it threw Mr. Johnson off ble for cleaning electrical components at a to go. He interpreted his communication as the machine and against a beam. Witnesses power facility. For this job, the power facil- an indication that no electricity was say the forklift continued at full speed, in ity owner followed all of the Occupational flowing. Additionally, our client had placed Mr. Johnson’s direction. Unable to move out Safety and Health Administration’s (OSHA) his lock and he saw no red barrier tape. of the way, Mr. Johnson was pinned against requirements. It hired a contractor experi- Our client’s contact with live electricity the beam by the forklift, which crushed his enced in this type of work. It coordinated resulted in thousands of volts of electricity left leg, knee and foot. As a result of his with the contractor to implement a plan to traveling through his body. The doctors injuries, Mr. Johnson remained in the hospi- prevent electrical contact and it partici- were amazed that he survived. Today, our tal for a month. He has been unable to pated in training all employees who would client has permanent nerve damage affect- return to work following the incident and be involved in the cleaning process, includ- ing his physical ability to work, as well as a thus far has incurred more than $550,000 ing our client. Each entity and individual healthy fear of electricity rising to the level in medical bills and related costs. displayed a healthy respect for hazards of PTSD preventing him from working The lawsuit alleges that the forklift is posed by electricity. The safety plan con- around electricity. Due to his injuries, a defective and “has an unreasonable ten- sisted of the following steps: vocational expert opined he could not dency to injure operators in ordinary and • Each morning the owner and the con- return to his job as an electrician’s helper emergency operation.” The machine is sold tractor would identify which electrical and likely would not be able to find gainful to customers without a door, which could components would be cleaned that day. employment in the future. Our client is have prevented Mr. Johnson from being now only 29 years old. Fortunately, we thrown from the machine. Further, it is • Next, the owner would lead the contrac- were able to resolve the case and provide equipped with a brake system that is not tor to the room where the components him with sufficient funds to compensate adequate for “its intended and foreseeable to be cleaned would be turned off. Then him for his injuries and to replace his lost use.” This combination of design defects the owner, contractor and our client ability to earn income. would all place their own locks on the

JereBeasleyReport.com 17 Lawyers in our Personal Injury & Prod- ing noise level” on any vehicle with “an her school bus, which then rolled over on ucts Liability Section have handled similar obstructed view to the rear.” Interestingly, her. Blue Bird Global Corporation’s disre- cases where no precautions were taken to the only regulation in place does nothing to gard for human life resulted in a young protect workers. In this instance, precau- address the underlying issue of the driver child never returning home to her family. tions were taken but a serious injury not being able to see behind them, and The company failed to make its product occurred anyway. Contact with electricity simply requires an alarm to alert workers to safe and failed to warn the public about the must be taken seriously due to the likeli- get out of the way. danger. Sadly, our client’s young daughter hood of death or serious bodily injury. The Although this was a good measure at the paid the price for the Defendant’s failures. expert Kendall hired to evaluate our cli- time it was enacted, more can be done. The On Jan. 29, 2018, Arlana, a first-grader, ent’s conduct and the conduct of the Defen- 1926.601 regulation is insufficient given was riding on a school bus on her way dants opined that the plan was solid, but modern technology. Just as has been done home from Parkwood Elementary School. the lack of execution of the plan resulted in in passenger cars, back-up cameras should The bus was heading downhill and the injury. The expert also opined our become standard on heavy trucks and approaching a curve. Despite the bus driv- client was not at fault because he was not heavy equipment. er’s efforts to steer the 2000 Blue Bird All in control. He had no responsibility beyond It is somewhat counterintuitive that pas- American school bus, its top-heavy design placing his lock where he was told to place senger cars, with relatively few blind spots, caused the bus to slide off the road and it and cleaning what he was told to clean. are now required to have back-up cameras, begin to roll over onto its right side. As a The Defendants were responsible for and heavy trucks and industrial machinery result of the bus rollover, Arlana was vio- putting up the red barrier tape and testing with completely obstructed views have no lently thrown from her seat and ejected the units with the devices. After the case such requirement. While back-up alarms through the bus front door. She was rushed settled, Kendall asked our expert what are certainly a good start, much more can to the hospital where she succumbed to her facts would have changed his opinion be done. Back-up cameras would allow the fatal injuries hours later just after midnight. about the conduct of our client. He stated driver to see the surroundings and prevent Blue Bird Global Corporation knew that only one; if our client was provided a detec- backover incidents. the bus was dangerous and that it was tion device and failed to use it, his opinion Additionally, object sensing technology unstable and prone to roll over due to its would have changed. This expert works in has come a long way in recent years. Just as design. Prior to Arlana’s death, this Defen- the industry supervising cleaning crews back-up cameras have become standard dant had other similar lawsuits filed against and is an advocate of providing the cleaners equipment on passenger vehicles, rear it. The company was well aware that the with the detection devices to allow them to sensing devices are becoming more feasible dangerously designed bus was injuring and test the units before cleaning them. After as well. Importantly, as rear-view cameras killing unsuspecting passengers. The all, it is the life of the worker that is on and object-sensing devices become more company knew if the bus rolled over that the line. prevalent on passenger vehicles, the tech- unbelted students could be violently If you know of anyone working in this nology will become more inexpensive. ejected from their seats, thrown out of the industry, the detection devices can be pur- If rear-view cameras or object-sensing bus and rolled over by the bus. This is what chased online for less than $100.00. When devices could cut the number of backover happened in our case. dealing with electricity, it would be money fatalities in half, that would be a drastic The family of Arlana Haynes is repre- well spent. improvement. The technology is available sented by Kendall Dunson and Donovan If you need more information on this and affordable. Accordingly, it is time for Potter, Sr. from Beasley Allen, along with subject, contact Kendall Dunson, a lawyer OSHA to push forward regulations that are two very good Macon, Georgia lawyers, in our firm’s Personal Injury & Products Lia- on par with the times and save dozens of David Dozier of the Dozier Law Firm and bility Section, at 800-898-2034 or by email lives each year. Rick Sizemore of Clark, Smith & Sizemore. at [email protected]. If you need more information, contact The lawsuit is filed in The State Court of Kendall has successfully handled a tremen- Evan Allen, a lawyer in our firm’s Personal Bibb County, Georgia, (case number dous number of workplace cases involving Injury & Products Liability Section, at 800- 20-SCCV-090917). both injuries and deaths of workers. 898-2034 or by email at Evan.Allen@beas- leyallen.com. Evan has successfully handled a number of cases involving workplace inju- FMCSR New Entry Level Driver Training ries and deaths. On The Job Injuries: Backover Incidents Rules Source: Safety and Health Magazine Since 2011 between 57 and 81 lives have The Entry-Level Driver Training rule will been lost each year due to backover inci- go into effect on Feb. 7, 2020. The rule will dents in the workplace, according to the be referred to by the acronym ELDT. The Bureau of Labor Statistics. A backover inci- XVI. purpose of the ELDT Rule is to establish dent is simply when a motor vehicle or AN UPDATE ON new minimum training requirements for piece of heavy equipment runs over or those who are striving to obtain a commer- strikes a worker while being driven TRANSPORTATION cial driver license (CDL), or obtain a pas- in reverse. senger, school bus or hazardous materials In 2016, the “Preventing Backover Inju- LITIGATION endorsement. Individuals who obtain a ries and Fatalities Standard,” was drafted commercial learner’s permit (CLP) on or and proposed by the Occupational Health after Feb. 7, 2020 will have to satisfy the and Safety Administration (OSHA). Lawsuit Filed Over Georgia School Bus applicable requirements. The ELDT require- However, it, along with many other OSHA Crash That Killed A 6-Year-Old ments do not apply to individuals holding a regulatory updates were blocked by the valid CDL or a Passenger (P), School Bus (S) Trump administration. Beasley Allen lawyers filed a lawsuit on or Hazardous Materials (H) endorsement Currently, there is only one OSHA regula- behalf of the family of a 6-year-old girl who issued before the compliance date of the tion in effect relating to backover incidents was killed in a Georgia school bus crash. In final rule. The rule also does not cover indi- (1926.601). That regulation requires only a January 2018 the child was ejected from backup alarm “audible above the surround-

18 BeasleyAllen.com viduals for whom states have waived the • Identification and Diagnosis of 2. Public Road CDL skills test under 49 CFR 383. Malfunctions • Veh icle Controls including: Left Under the new requirement, an entry- •  Roadside Inspections Turns, Right Turns, Lane level driver must successfully complete a • Maintenance Changes, Curves at Highway prescribed program of Theory (knowledge) Speeds, and Entry and Exit on and behind the wheel (BTW) (range and 5. Non-Driving Activities the Interstate or Controlled public road instruction). The training must • Handling and Documenting Access Highway be provided by an entity listed on the Cargo* • Shifting/Transmission Federal Motor Carrier Safety Administra- • En vironmental Compliance Issues* • Communications/Signaling tion’s (FMCSA) Training Program Registry • H ours-of-Service Requirements • Visual Search (TPR) prior to taking the state adminis- • Fa tigue and Wellness Awareness • Sp eed and Space Management tered CDL Skills test and prior to taking the •  Post-Crash Procedures* • Sa fe Driver Behavior knowledge test. The rule applies to com- • External Communications* •  Hours-of-Service (HOS) mercial motor vehicle (CMV) operators in • Whistleblower/Coercion* Requirements interstate and intrastate com- • Trip Planning* •  Hazard Perception** merce who are: • Drugs/Alcohol* • Railroad-Highway Grade • Medical Requirements* Crossing** • Applying for a Class A or Class B CDL; * On March 5, 2019, the FMCSA amended •  Night Operation** • Upgrading their CDL (e.g., a Class B CDL the level of theory training for individuals • Extreme Driving Conditions** holder seeking a Class A CDL); or who are upgrading from a Class B to Class A • Sk id Control/Recovery, Jack- CDL by removing eight topics within the knifing, and Other • Obtaining a Passenger (P), or School Bus area of “Non-Driving Activities.” However, Emergencies** (S) or Hazardous Materials (H) endorse- Class B CDL holders upgrading to a Class A ment for the first time. **These topics must be discussed during CDL are free to choose to complete the public road training, but not necessarily BTW and Theory training may be pro- Class A theory instruction standard curricu- performed. Driver-trainees are not required vided by different training providers so lum. This amended rule applies only to to demonstrate proficiency in these skills. long as the trainer is listed on FMCSA’s TPR. Class B CDL holders. Individuals obtaining The instructor must engage in active The BTW portions however must be com- a Class A CDL who do not already hold a two-way communication with driver-train- pleted by the same training provider. (i.e. Class B CDL must complete the full Class A ees during all active BTW public road train- range and public roads portion must be by theory standard curriculum. ing sessions. A driver-trainee’s proficiency the same training provider). Although Driver Trainees for Passenger Endorse- is determined by the instructor providing Theory training is required, there is no ment, School Bus Endorsement and Haz Mat the training. The instructor must also docu- minimum number of hours that driver- Endorsement have their own topics that ment the total number of clock hours each trainees must spend on the theory instruc- must be covered in Theory Training. driver-trainee spends to complete the BTW tion. The five areas of theory instruction Regardless of the endorsement the entry curriculum. Additional and/or other and the training topics for Class A or Class level driver is striving for, the rule requires requirements are required for a school bus B CDL applicants are: that driver-trainees demonstrate their endorsement and passenger endorsement. understanding of the material by achieving The TPR will include all entities that reg- 1. Basic Operation an overall minimum score of 80% on the ister with FMCSA and self-certify they meet • Orientation theory assessment (written or electronic). the curriculum, instructor and facility • Control Systems/Dashboard There is also no minimum number of requirements for providing CDL training. • Pr e-Trip and Post-Trip hours that driver-trainees must spend on FMCSA emphasizes, however, that merely Inspections the BTW elements of the Class A, Class B, because a training provider is listed on the • Basic Control or P or S endorsement instruction. All BTW TPR does not mean that the Agency certi- • S hifting/Operating training must be conducted in the class of fies or otherwise “approves” that provider’s Transmissions commercial motor vehicle the trainee operations. • Backing and Docking intends to use for their CDL skills test. The Therefore, prospective entry-level drivers • Co upling and Uncoupling rule does not permit BTW training to be are encouraged to perform their own due (Class A only) conducted by using a driving simulation diligence before selecting a suitable train- device, and a driver-trainee may not use a ing provider. This may be an avenue to 2. Safe Operating Procedures simulation device to demonstrate profi- pursue if an entity hires an entry level • Visual Search ciency. However, simulators may be used in driver but did not act with due diligence in • Communication Theory training. determining if training was done by an • Distracted Driving The instructor must cover all training approved TPR. • Speed Management topics listed in the Class A Or Class B CDL If you need more information, contact • Space Management BTW curriculum, which includes: Ben Keen, a lawyer in our Personal Injury • Night Operation & Products Liability Section and who is in • Extreme Driving Conditions 1. Range • Vehicle Inspection Pre Trip/En our Atlanta office, at 800-898-2034 or by 3. Advanced Operating Procedures Route/Post Trip email at [email protected]. • Hazard Perception • St raight Line Backing • Sk id Control/Recovery, Jack- • Alley Dock Backing knifing, and Other Emergencies (45/90 Degree) Lithium Electric Car Batteries Pose Danger • Ra ilroad-Highway •  Off-Set Backing To Motorists Grade Crossings • Parallel Parking Blind Side • Pa rallel Parking Sight Side On Dec. 19, 2019, the National Transpor- 4. Vehicle Systems and Reporting • Coupling and Uncoupling tation Safety Board (NTSB) released a Malfunctions (Class A only) report on a fiery Tesla crash that killed two

JereBeasleyReport.com 19 teenagers in Fort Lauderdale in May 2018. 898-2034 or by email at William.Sutton@ and clinicians mistakenly view FDA The driver, Barrett Riley, and a passenger, beasleyallen.com. approval as [an] indication that a product is Edgar Monserratt Martinez, both 18 years Source: Local10.com komonews.com and ttnews.com fully safe and effective…Nothing could be old, were killed. According to investigators, further from the truth. We learn tremen- the electric vehicle’s design shares some of dous amounts about a product only once the blame in the fatal crash. it’s on the market and only after use among The car was traveling at 116 mph XVII. a broad population.” moments before impact according to the In a 2017 study, researchers found that NTSB report. Riley lost control on a curve HEALTHCARE “Compared with standard pathway drugs, of a street in Fort Lauderdale, where the ISSUES expedited pathway drugs had a 48% higher speed limit was 25 mph. rate of changes to boxed warnings and con- Among the key points made in the report traindications, the two most clinically was that both the driver and front seat pas- important categories of safety warnings.” senger died of thermal injuries, meaning Potential Pitfalls To FDA Accelerated While the drugs may be novel, the studies they were killed in the fire that was a result Drug Approval showing the risks of accelerated approval of the crash, not the crash itself. are not. In 2014, researchers determined Firefighters arrived at the accident scene We have mentioned the term “fast track” that, since legislation was passed in 1992 to four minutes after receiving the first emer- in previous issues when discussing issues facilitate faster drug approval, there has gency call. They reported that the heat involving the pharmaceutical industry. This been an increase in black box warnings from the fire was intense and they could term may not be fully understood by lay and complete market withdrawal. Reason- see electrical arcing. Despite attacking the persons who do not deal very often with able minds could argue the rapid advance- blaze with 200 to 300 gallons of water and this politically powerful industry. The term ment in science over the last 30 years could foam, the battery reignited twice. has a specific meaning in the approval of be part of the reason, but if our gold stan- The crash is one of several under review drugs by the government. “The United dard is complete safety and efficacy testing, by the NTSB in which fires erupted in the States Food and Drug Administration (FDA) where do we draw the line? highly flammable lithium-based batteries defines Fast Track as a process designed to The motivation of manufacturers is, at used in vehicles, namely Teslas. The facilitate the development and expedite the least in large part, profit, so speed for them reviews include the following: review of drugs to treat serious diseases means a quicker pathway to revenue before and fill an unmet medical need.” The intent expending the large resources required for • In April 2019, a Tesla Model S burst into and purpose of the Fast Track approval a new drug approval. Though manufactur- flames while sitting in a parking garage process was good, but on occasion the ers are required to do testing after a fast in Shanghai. process has been abused by drug track approval, something Aaron Kessel- companies. • In February 2019, a Davie, Florida, man heim, an associate professor of medicine at The broader questions is, does this Fast died after his Tesla crashed into a tree Harvard, calls a “grand bargain,” this is not Track approval compromise patient safety? and ignited. First responders were always completed in a timely fashion. “[In] To many people who have a disease for reportedly not able to open the car’s a study of 22 drugs fast-tracked by the FDA which there is no approved treatment, the extendable door handles. between 2009 and 2013, Kesselheim and potential reward may outweigh the poten- other researchers found that three years • In December 2018, a woman in New tial, unknown safety risks. Fast track drugs after the last drug’s approval, just half of Hampshire died after her car ignited fol- have shorter requirements for safety and the required post-approval studies had lowing a crash. efficacy testing, and some of the testing is been completed.” not done in a clinical setting (i.e., in With these numbers, vigilance before According to Reuters, there have been at patients), but with blood tests and surro- selecting a therapy brings on another least a dozen more instances of Tesla cars gates. Drugmakers only must show that the dimension. The FDA, probably one of the catching fire since 2013, with the majority drug is “reasonably likely: to have most dangerously misunderstood govern- occurring after a crash. any benefit. ment agencies in operation, is not the Most of these Tesla fires seem to be While it is commendable to seek to treat grand arbiter of safety and effectiveness caused by the electric vehicle’s battery suf- patients with “orphan drugs” as they are that most believe it to be. It is an organiza- fering some kind of trauma, sometimes by called, there is a concern for a slippery tion that grants approval if certain boxes crashing at high speeds. This provides a slope. Which drugs make it into this cate- are ticked by a manufacturer. The DMV of unique challenge for rescue experts, who gory, and are they truly novel? In 2019, 44% the health care industry, it doesn’t guaran- have ramped up efforts to teach first of the drugs cleared by the FDA were cate- tee safety, just that one passed the responders around the world the best prac- gorized as orphan drugs, and the percent- minimum requirements imposed by an anti- tices for fighting lithium-ion-battery fires. age of orphan drugs approved continues to quated and underfunded system demon- Battery fires can burn hotter and longer rise. However, not all of these new thera- strating that the driver may be able to than those of gasoline-powered counter- pies went to treat an incurable deadly perform at the minimum levels of safety, parts. Tesla’s own documentation for first disease with no or few treatment options. but we really don’t know until they are out responders says a fire in the Model S can Though some did, others were treatments on the road. take up to 3,000 gallons of water to estab- for osteoporosis, low sexual desire, low tes- If you need more information or have lish sufficient cooling for the battery. tosterone, and migraine headaches, just to questions, contact Lisa Courson, a lawyer Families of the teens killed in the Fort name a few. in our Mass Torts Section, at 800-898-2034 Lauderdale crash have sued Tesla. The Though these conditions can be life alter- or by email at Lisa.Courson@beasley- safety board is planning to release a report ing, if not debilitating, are they worth the allen.com. on the battery fires in 2020. If you need any unknown risk? Is the general public aware Sources: NCBI, BMJ, FDA, NPR, Public Radio more information on this subject, contact of the shortcuts being taken in the approval International Will Sutton, a lawyer in our firm, at 800- process? According to Dr. Caleb Alexander from Johns Hopkins Center for Drug Safety and Effectiveness, “All too often, patients

20 BeasleyAllen.com XVIII. More epithelioid cells generally means a • Authorizes the National Guard to use better prognosis. Around 30% of pleural funds to address PFOA and PFOS expo- TOXIC TORT and 25% of peritoneal tumors are sure and contamination caused by biphasic cell. Department of Defense (DOD) activities LITIGATION The specific mesothelioma diagnosis will around military bases; CONCERNS influence the treatment options. Different treatments may be available, depending on • Phases out PFAS in food packaging; the location of the cancer and, possibly, the • Expands reporting of PFAS discharges cell type, including surgery, chemotherapy through the Toxic Release Inventory; and A Basic Lesson On Mesothelioma and radiation. While this elementary lesson on different Expands monitoring for PFAS in tap and Many people only know the term meso- types of mesothelioma may be of little to no ground water. thelioma from television commercials, but importance to lawyers in their legal prac- By including these PFAS requirements in few likely have a clear understanding of tice, it is important to their clients who the NDAA, Congress has forced the U.S. what it is. We believe it will be helpful to receive the diagnosis. Just as each client is Environmental Protection Agency (EPA) to have at least a basic understanding of what unique, so is each mesothelioma diagnosis. accelerate the pace of actions already under this disease is. The following will provide a If you need additional information, consideration in the agency’s PFAS Action basic explanation of the disease contact Sharon Zinns, a lawyer in our Plan, which was released in early 2019. The mesothelioma. Atlanta office. Sharon handles asbestos liti- NDAA represents Congress’ first major Mesothelioma is a tumor that is caused gation for the firm. She can be reached at response to public concern about PFAS, and by inhaling asbestos fibers and can form in 800-898-2034 or by email at Sharon.Zinns@ its provisions signal that much more is to a number of areas in a number of different beasleyallen.com. come from Congress. Indeed, this month areas of the body. Primary types of meso- the House of Representatives will consider thelioma by location are pleural mesotheli- the PFAS Action Act (H.R. 535), which oma (lungs), peritoneal mesothelioma would designate PFAS as hazardous sub- (abdomen), pericardial mesothelioma Federal Defense Spending Bill Fails to stances and regulate PFAS air releases. (heart), and testicular mesotheli- Include Stringent PFAS Regulation Beasley Allen lawyers are currently inves- oma (testes). tigating and handling PFAS contamination Pleural mesothelioma is the most In the past few years, public concerns cases. If you have any questions about this common mesothelioma. Approximately over per- and polyflouralkyl substances subject, contact Rhon Jones, Rick Stratton, 70% to 75% of cases occur in this area. (PFAS) have grown significantly as people or Ryan Kral, lawyers in our firm’s Toxic More research has been conducted on this discovered how much of the nation’s drink- Torts Section, at 800-898-2034 or by email type of tumor than any of the others. Peri- ing water was contaminated with these at [email protected], Rick. toneal mesothelioma accounts for 10% to chemicals, which are used in numerous [email protected], or Ryan.Kral@ 20% of mesothelioma cases. There is less consumer products. They have been linked beasleyallen.com. research available on peritoneal compared to a variety of health concerns including to pleural; however, the prognosis for this kidney and testicular cancer, thyroid tumor type is better. Pericardial mesotheli- disease, and pregnancy-induced oma, developing in the heart, is extremely hypertension. rare. Testicular mesothelioma develops in Congress, feeling the heat, began to XIX. the lining of the testes. This form of meso- address the issue in a variety of ways An Update On thelioma is the most rare. through the more than 30 pieces of legisla- th Primary types of mesothelioma by cell tion that were introduced in the 116 Con- The Roundup type are epithelioid mesothelioma (epitheli- gress. The Senate and House versions were Litigation oid cells), sarcomatoid mesothelioma (sar- ultimately wrapped up in the National comatoid cells), and biphasic mesothelioma Defense Authorization Act (NDAA) because (epithelioid and sarcomatoid cells). significant PFAS contamination of water Epithelioid mesothelioma makes up supplies has been identified at or around Roundup Mediator Optimistic About approximately 70% to 75% of all cases of numerous military installations. Unfortu- Settlement asbestos-related mesothelioma cancers. nately, the legislation that emerged from This type has the best prognosis, tending to the House-Senate conference to reconcile Washington, D.C.-based attorney Ken be less aggressive and not spreading as the differences in PFAS provisions was far Feinberg, the mediator appointed to resolve quickly as sarcomatoid and biphasic cell less ambitious than what many had hoped the thousands of lawsuits filed against Mon- disease. About 50% of pleural mesotheli- and expected. Specifically, two major pro- santo Co. involving its Roundup weedkiller, oma and 75% of peritoneal mesothelioma is visions were left out of the bill: (1) designa- says he is optimistic about settling the epithelioid. tion of perfluorooctanoic acid (PFOA) and cases. Ken recently told members of Sarcomatoid mesothelioma is the least perfluorooctane sulfonate (PFOS) as “haz- the press: common mesothelioma cell category. It is ardous substances” under the Comprehen- There are talks with various lawyers the most aggressive and difficult to treat. It sive Environmental Response, Compen- around the nation who have signifi- accounts for 10% to 20% of all mesotheli- sation, and Liability Act; and (2) require- cant inventories of Roundup cases. oma diagnoses. About 20% of pleural ments to promulgate PFAS drinking water I’m optimistic we can reach a com- tumors are sarcomatoid, while 1% of perito- standards. prehensive settlement of this neal mesothelioma are sarcomatoid. On Dec. 20, 2019, 2020 NDAA was litigation. Biphasic mesothelioma refers to tumors signed into law. It has the following provi- that contain epithelial and sarcomatoid sions governing PFAS: While I have great confidence in Ken’s cells. Life expectancy after diagnosis with ability to get complicated litigation settled, biphasic mesothelioma depends upon • Prohibits the use of firefighting foams that contain PFAS after Oct. 1, 2024; there are some observers who see settle- which cell predominates in the tumor. ments by Bayer in a different manner. One

JereBeasleyReport.com 21 such person is Carl Tobias, a University of tunity to speak with you regarding a poten- mation accessible and understandable, CMS Richmond law professor who teaches about tial claim. For more information, contact is empowering consumers to make the mass-tort litigation. Bayer may be trying to one of the members of the Roundup Litiga- right decisions for themselves and their negotiate individual lawyers’ cases rather tion Team: John Tomlinson (who heads up loved ones. than dealing with all 42,700 cases in a the team), Michael Dunphy, Danielle If you have any questions or need any structured settlement program to hold Ingram or Rhon Jones, all lawyers in our additional information, contact Alyssa down the total payout, according to Profes- Toxic Torts Section, at 800-898-2034 or by Baskam, a lawyer in our Atlanta office. sor Tobias. email at [email protected], Alyssa handles nursing home litigation for As previously reported, German pharma- [email protected], Dani- the firm. She can be reached at 404-751- ceuticals giant Bayer acquired St. Louis- [email protected] or Rhon. 1162 or by email at Alyssa.Baskam@Beasley- based Monsanto, the inventor and [email protected]. Allen.com. manufacturer of Roundup, for $63 billion in 2018. Chris Loder, a spokesman for Bayer, says “the mediation process is con- The Beasley Allen Nursing Home tinuing diligently and in good faith to XX. explore resolution under the auspices of Litigation Team Ken Feinberg.” UPDATE ON Alyssa Baskam in our Atlanta office heads Their use of Roundup by the Plaintiffs in NURSING HOME Beasley Allen’s Nursing Home Litigation the cases caused them to develop non- Team. Currently, Susan Anderson also Hodgkin’s lymphoma. Bayer—and Mon- LITIGATION serves on the team. In order to properly santo before it—was well aware of the handle nursing home litigation, lawyers and dangers the chemical posed, but refused to support staff must have specific experience warn consumers. In 2015, the World Health Nursing Home Compare’s Abuse Icon Is Live and expertise in this type case. Organization’s International Agency for Alyssa, who says she became a trial Research on Cancer classified glyphosate as In December, the Nursing Home lawyer so she could help people get a probable carcinogen based on studies of Compare website received its first regular through unimaginable hardships, is dedi- farmers exposed to glyphosate who devel- data update since the Centers for Medicare cated to representing the elderly and infirm oped non-Hodgkin’s lymphoma. Bayer lost & Medicaid Services implemented its who can’t fight back when they suffer at the first three cases that went to trial, all in “abuse” alert icon, with a second update in the hands of inadequate care and deficient California, which resulted in a total of more January 2020. inpatient facilities. If you have a case involv- than $2.4 billion in damages. Judges later In late October 2019, CMS began use of a ing abuse or neglect at a nursing home or reduced the damages, and Bayer has new “abuse icon” on Nursing Home other inpatient facility, Alyssa would like to appealed the verdicts. Compare. Consumers using the website talk with you about working together on Major Bayer investors, such as U.S.-based will now be alerted when a nursing home the case. You can contact Alyssa or Susan at billionaire Paul Singer’s Elliott Management has been cited for an abuse violation in the 800-898-2034 or by email at Ayssa. Corp., have urged the company to drop its past year or during each of the past two [email protected], or Susan.Ander- defend-at-all-cost approach to the suits and years, depending on the level of harm. [email protected]. consider a settlement. Several trials in Cali- CMS is advising consumers who come fornia and Missouri have been postponed, across this new icon to “ask the administra- which lawyers said reflects the Bayer’s tor or other staff about what they are doing effort to resolve the massive litigation expo- to keep residents safe from abuse, neglect, XXI. sure it took on with the 2018 purchase mistreatment or exploitation.” of Monsanto. While CMS is making a great effort to An Update On A fourth Roundup trial scheduled to start help consumers identify nursing homes on Jan. 21 in St. Louis was continued so that with a history of abuse, consumers need to Class Action the medication process could proceed. We be reminded that the absence of an abuse Litigation take that as a good indication for a global icon on Nursing Home Compare does not settlement because the case was in St. necessarily indicate the absence of abuse. Louis, home territory for Monsanto. Federal reports in the last few decades have There has been a great deal of activity Beasley Allen lawyers, led by John Tom- documented that state survey agencies around the country recently in the class linson, a lawyer in our Toxic Torts Section, have missed problems and failed to cite vio- action litigation. A good number of settle- are currently representing thousands of lations. Moreover, violations indicating the ments have been reached in this litigation. clients who have been exposed to Roundup existence of abuse or potential abuse may We will discuss some of them below. and developed non-Hodgkin’s lymphoma. be cited under other federal tags, resulting One of those clients is a Montgomery resi- in their exclusion from this initiative. dent whose case is set for trial in October Providers have said they support efforts $1 Billion Vereit Settlement Gets Approval of this year. to improve transparency but decried the Source: Bloomberg nature of the icon. A CMS spokesman U.S. District Judge Alvin K. Hellerstein responded, “Visual icons are a key transpar- has signed off on a $1.025 billion settlement ency resource to alert patients to issues between Vereit Inc. and investors who say they may want to investigate while making Roundup Litigation Team the real estate investment firm lied about critical decisions about their care.” its books. This critical move toward improved Beasley Allen lawyers are currently rep- The judge heard a day of argument as transparency is a way CMS is delivering on resenting hundreds of clients who have lawyers for Vereit (formerly American the Agency’s five-part approach to ensuring been exposed to Roundup and developed Realty Capital Properties) and for lead class safety and quality in nursing homes, non-Hodgkin’s lymphoma. Our Roundup Plaintiff TIAA-CREF pushed to finalize announced in April 2019 by CMS Adminis- Litigation Team would welcome the oppor- stock-drop litigation settlements over trator Seema Verma. By making this infor-

22 BeasleyAllen.com claims that the company and its principals Richman, Alexander G. Tievsky, Rafey S. better under the arbitration program rather defrauded investors. Balabanian and Lily Hough of Edelson PC, than in court,” the drivers said. Ford has The litigation was filed after American Susan K. Alexander, Shawn A. Williams, already paid $47.4 million to class members Realty Capital Properties disclosed in 2014 Paul J. Geller, Stuart A. Davidson, Lucas for claims proceeding under the settle- that some of its financial reporting was Olts, Christopher C. Gold, John H. George, ment’s repurchase remedy. overstated. Subsequently, two of its top Patrick J. Coughlin, Ellen Gusikoff Stewart The drivers are represented by Ryan H. executives lost their jobs. The news and Randi D. Bandman of Robbins Geller Wu of Capstone Law APC, Russell D. Paul of reduced the company’s stock price by Rudman & Dowd LLP and Lawrence Sucha- Berger & Montague PC and Thomas A. Zim- nearly 36%, leading to investor claims of row, Michael P. Canty, Corban S. Rhodes merman of Zimmerman Law Offices PC. fraud and mismanagement. The Real Estate and Ross Kamhi of Labaton Sucharow LLP. The case is Vargas et al. v. Ford Motor Co., Investment Trust’s (REIT) market melt- The district court case is In re: Facebook (case number 2:12-cv-08388) in the U.S. down also led to criminal charges. Biometric Information Privacy Litigation, District Court for the Central District of Judge Hellerstein also approved a related case number 3:15-cv-03747, in the U.S. Dis- California. $286.5 million settlement to end share- trict Court for the Northern District of Source: Law360.com holder derivative claims against Vereit. That California. money will come from former Vereit princi- Source: Law360.com pals including former CEO Nicholas Schorsch and from accounting firm Grant Experian Agrees To Pay $24 Million To Thornton, and will help fund the main set- Payday Loan Customers tlement. “Both the derivative settlement Ford Drivers Seek Final Approval Of $77 and the class action settlement are fair and Million Settlement A class of more than 100,000 payday loan reasonable,” the judge said. “I approve customers has reached a $24 million settle- them both.” Ford drivers have asked a California ment to resolve claims that consumer- The class action Plaintiffs are repre- federal judge to approve a $77 million set- reporting giant Experian threatened sented by Debra J. Wyman, Darren J. tlement over defective transmissions in customers’ credit history by reporting Robbins, Michael J. Dowd, Jonah H. Gold- certain models, saying that class members debts on disputed loans. The settlement stein and Jessica T. Shinnefield of Robbins have already received more than $47 appears to be “one of the largest in history Geller Rudman & Dowd LLP. The derivative million in payments. The drivers said that relating to inaccurate reporting violations Plaintiffs are represented by Robert under an arbitration program, class under the Fair Credit Reporting Harwood, Matthew Houston and Benjamin members have received more than $47.4 Act (FCR A).” Sachs-Michaels of Glancy Prongay & Murray million for repurchase claims, which makes If approved, the $24 million settlement LLP. The case is In re American Realty it reasonable to expect that many additional fund will be used to make automatic pay- Capital, (case number 1:15-mc-00040) in members will receive cash payments after ments to each of the participating members the U.S. District Court for the Southern Dis- final approval of the settlement. Under the of the class without the need to file a claim. trict of New York. arbitration process, drivers can receive up Lead Plaintiff Demeta Reyes, a Georgia resi- to $25,000 for returning a car and in some dent, first took out a $2,600 loan from Source: Law360.com circumstances, they might not have to tribe-affiliated Western Sky Financial LLC possess the car in order to receive in 2012, but said she later stopped making a payment. payments after learning that Georgia’s Facebook And Illinois Users Reach Record The settlement ends claims that Power- Attorney General was bringing a consumer $550 Million Biometric Privacy Settlement shift transmissions in 2011 to 2016 Ford protection action against the company. Fiesta models and 2012 to 2016 Ford Focus Western Sky Financial, which is owned Facebook has agreed to pay a record models were defective, making the cars by a member of the Cheyenne River Sioux $550 million to resolve a biometric privacy buck or jerk when accelerating. There is a Tribe, avoided state usury laws as a tribe- class action by Illinois users. The settle- separate cash payment that has a guaran- affiliated lender and charged higher inter- ment ends a dispute that was on the verge teed minimum of $30 million. Overall, the est rates. Delbert Services Inc. would of a trial in California federal court. settlement’s value was said to surpass service the loans issued by Western Sky Pursuant to the proposed settlement, $100 million. Financial. Another company, Cash Call Inc., Facebook would be required to establish a Drivers who made three or more service provided the financial backing. $550 million cash fund to compensate mil- visits to Ford dealers can receive payments Plaintiff Reyes sued Experian Informa- lions of Illinois users who claim the social for up to $2,325, or a discount certificate tion Solutions Inc. in 2016, claiming that media giant breached the state’s unique toward the purchase of a new Ford. U.S. the company purposefully failed to “follow Biometric Information Privacy Act by using District Judge Birotte initially approved the reasonable procedures to assure maximum facial recognition without their consent to settlement in 2017, which was then valued possible accuracy” in violation of the FCRA. fuel its tag suggestion feature, according to at $35 million, but it was met by objectors She claims that Experian continued report- the trio of Plaintiffs firms that led the suit. who claimed the settlement was too small. ing delinquent loans serviced by Delbert The proposed settlement will be pre- Those drivers have now withdrawn their even after Delbert shut down and asked the sented to U.S. District Judge James Donato objections and support the settlement. credit agency to stop using its data. for preliminary approval. The settlement, if The amended settlement removed limita- Plaintiffs Reyes contends that Experian’s approved by the court, would be the largest tions under which drivers could receive failure to delete the Delbert accounts ren- cash settlement ever resolving a privacy- money for repurchase claims, such as a pre- dered consumers’ reports materially mis- related lawsuit. The settlement also vious requirement that allowed Ford to leading and inaccurate. In 2017, Experian includes injunctive relief that would make one final try at a repair after receiv- prevailed against Reyes on summary judg- require Facebook to obtain full consent ing an arbitration notice from a driver who ment. U.S. District Judge Andrew J. Guil- from Illinois users before any collection of had made three or fewer attempts at repair, ford ruled that the agency’s credit reports their biometric information takes place. according to the motion. “Due to the settle- weren’t “unduly misleading” and that the The Facebook users are represented by J. ment’s consumer-friendly rules and speed evidence presented didn’t appear to Aaron Lawson, Jay Edelson, Benjamin of resolution, most class Members would do support that Experian “willfully” failed to

JereBeasleyReport.com 23 comply with the FCRA. But Reyes success- After Tenet filed its lawsuit, CHS made a tification in July that SCANA concealed fully revived the suit on appeal in 2019. In series of public statements attempting to reports of problems with the nuclear May, a Ninth Circuit panel reversed the “lull” investors into thinking everything reactor project, first estimated to cost lower court’s decision over doubts about was fine, according to the allegations in the roughly $5.4 billion. They said mismanage- whether Experian intentionally continued instant suit. But CHS Chief Financial Officer ment forced the project past deadlines that to report on the Delbert portfolio—con- Larry Cash told an analyst that the hospitals prevented it from taking advantage of a $1.4 taining more than 128,000 accounts—after actually did use the Blue Book. CHS’ stock billion tax credit and other incentives. the servicer urged the agency to delete fell 35% after the Tenet suit was filed and As a result, the Virgil C. Summer Nuclear the accounts. Cash made his statement. The company Generating Station in South Carolina Experian agreed to stop using the limped along through the summer before project was halted in 2017. The project was Delbert accounts in early 2015, but did not another incident in October 2011. At that meant to be one of the first new nuclear delete them until more than a year later, time, the company issued a press release projects in the country, but when it ran into continuing to publish credit reports based showing its revenues were lower as it was trouble, the problems were hidden even on debts that were no longer verifiable, the decreasing its inpatient treatments to closer after Bechtel Corp. was hired to assess the appellate court wrote in its reversal. In match the hospital standard. The stock fell project and found problems, the investors October, Judge Guilford certified a class of another 11% on Oct. 27, the day after said. When the issues were belatedly more than 100,000 payday loan customers that release. revealed over time, the stock price corre- who claim Experian jeopardized their The retirement funds filed a consolidated spondingly slid. credit history when it reported debts on suit over the investors’ losses in July 2012 The proposed settlement class consists of disputed loans. The proposed settlement and amended that suit in 2015. In the all people and entities who purchased or class includes tens of thousands of people instant case, the funds alleged that otherwise acquired publicly traded SCANA whose Experian consumer report con- although CHS executives sold their shares common stock from Oct. 27, 2015, through tained an account from Delbert reflecting before the stock fell sharply, the funds Dec. 20, 2017, and were damaged. delinquency on a loan originated by were stuck taking $891 million in losses During the proposed class period, the Western Sky after Jan. 21, 2015. once the Medicare fraud allegations came investors said more than 1 million shares of Reyes and the class are represented by to light. the company’s stock were traded each Norman E. Siegel and J. Austin Moore of The district court dismissed the instant week, demonstrating how many investors Stueve Siegel Hanson LLPand Daniel S. Rob- suit in 2016 after finding the shareholders were potentially involved. In addition, inson of Robinson Calcagnie Inc. The case hadn’t sufficiently shown that Tenet’s investors said the underlying issues that is Demeta Reyes v. Experian Information lawsuit caused the stock to drop and trig- caused investor losses were common Solutions Inc., (case number 8:16-cv- gered their losses, but the Sixth Circuit among the proposed class. They said mis- 00563) in the U.S. District Court for the revived the case in 2017. U.S. District Judge leading public statements inflated the price Central District of California. Eli J. Richardson granted class certification of the stock, which then took a hit when Source: Law360.com in July and appointed NYC Funds as class the truth trickled out. representative. The suit was filed in 2017 over the com- NYC Funds is represented by Barbara J. pany’s “failed $9 billion decade-long effort” Hart, David C. Harrison and Scott V. Papp to build the reactors. SCANA contracted Hospital Chain Reaches $53 Million of Lowey Dannenberg PC and Michael with Westinghouse Electric Co. and others Settlement To End Stock Drop Suit Hamilton of Provost Umphrey LLP. to build the project, but the quality of that The case is Norfolk County Retirement work was called into question. Community Health Systems Inc. (CHS) System et al. v. Community Health On Oct. 22, 2015, Bechtel told SCANA has agreed to a $53 million settlement to Systems Inc. et al., (case number 3:11-cv- that the project couldn’t be finished in time resolve a class action brought by pension 00433) in the U.S. District Court for the to qualify for tax credits and that “further funds and other shareholders who claimed Middle District of Tennessee. delays and cost increases are inevitable.” they lost $891 million when the company’s Source: Law360.com Even with this report, the company higher- share price plummeted after allegations of ups still told investors things would be OK. Medicare fraud came to light. CHS and the Eventually, the problems were revealed lead Plaintiff in the case—a group of New to the public. For example, in March 2017, York City pension funds collectively known SCANA Investors Reach $192 Million Morgan Stanley issued a report that said the as NYC Funds—have asked a Tennessee Settlement In Nuclear Plant Suit cost for the project could be billions more federal court to grant preliminary approval than SCANA’s estimate. SCANA also of the settlement. The trouble started in Investors in SCANA Corp. have asked a announced “significant challenges” and 2011, when CHS, one of the nation’s largest South Carolina federal judge to approve a eventually said the effort would be aban- hospital companies, sought to acquire $192 million settlement resolving class doned. When SCANA announced the Tenet Healthcare Corp. Tenet rejected CHS’ claims the company and its executives project was scrapped, hundreds of Westing- offer, prompting CHS to initiate a hostile misled the public about long delays and house workers lost their jobs, according takeover. Tenet then filed a lawsuit in April massive cost overruns in a $9 billion to reports. 2011 alleging that the claims CHS was nuclear reactor project. The $192.5 million The investors are represented by Marlon making in an attempt to win over Tenet settlement would be the largest securities E. Kimpson, William S. Norton and Joshua shareholders were false and misleading. class action recovery in the District of C. Littlejohn of Motley Rice LLC, James W. That separate lawsuit pointed to what South Carolina, according to the investors’ Johnson, Michael H. Rogers, Irina Tenet alleged was CHS’ real source of motion. The settlement allocates $160 Vasilchenko, James Christie and Philip J. profit: its so-called Blue Book, a nonstan- million in cash and $32.5 million in freely Leggio of Labaton Sucharow LLP and John dard guide it created to prompt doctors to tradable Dominion Energy Inc. common C. Browne, Jeroen Van Kwawegen, Lauren treat Medicare patients in inpatient settings stock or cash at the option of SCANA. Ormsbee, Michael M. Mathai and Kate W. where other hospitals, following standard The investors, which include the West Aufses of Bernstein Litowitz Berger & guidelines, might have treated them in out- Virginia Investment Management Board, Grossmann LLP. patient settings. told the court in their request for class cer-

24 BeasleyAllen.com The case is In re: SCANA Corp. Securi- Reliance Trust Agrees To Settle Stock-Buy VW’s $57 Million Suspension Defect ties Litigation, (case number 3:17-cv-02616) ERISA Lawsuit Settlement With Drivers Gets Final in the U.S. District Court for the District of Approval South Carolina. Reliance Trust Co. has reached a settle- Source: Law360.com ment with a proposed class of RVNB Hold- A Florida federal judge has given final ings Inc. workers who had accused the approval to the $57 million settlement that company of allowing them to grossly ends a class action alleging Volkswagen overpay for their employer’s stock. Reliance knowingly sold CC model sedans with sus- Allergan To Pay $300 Million To Settle is the trustee for the RVNB stock owner- pension defects. Birth Control Antitrust Case ship plan. The proposed class action was U.S. District Judge Robert N. Scola Jr. filed in June 2018. Former employees of the granted final approval on the $57 million Allergan has agreed to pay several groups storage and moving company, Jessica Casey settlement that included free tire rotations of Loestrin buyers a total of $300 million in and Jason Coleman, alleged the company and reimbursements for previous rotations settlement. This settlement will avoid a trial had violated its fiduciary duties under the for consumers. The certified settlement over claims that a pair of Allergan subsidiar- Employee Retirement Income Securities class includes more than 300,000 vehicle ies delayed generic alternatives to the birth Act (ERISA) by making workers pay too owners and lessees. control drug. A trial was set to commence much—$85 million—for shares of the com- The settlement ends litigation that in a Rhode Island federal court on Jan. 6 pany’s stock. started in 2017 alleging certain 2009 to over claims that Warner Chilcott and The parties asked U.S. District Court 2017 Volkswagen CC sedans were equipped Watson Pharmaceuticals violated antitrust Judge Amos L. Mazzant III, to stay all dead- with a defective suspension system that law through patent settlements and other lines in the lawsuit for 60 days to allow couldn’t be readjusted when the tires natu- conduct that allegedly kept competing them to “formalize the settlement agree- rally crept out of alignment and caused the generic versions of Loestrin off the market. ment” that they reached in principle on Jan. tires to quickly and unevenly wear down in The class told the Third Circuit in 10. If they can formalize the settlement, an effect described as “cupping” or December that it had reached an undis- they told the court they would be filing “feathering.” closed settlement with the Allergan subsid- documents asking the court to approve it Despite allegedly knowing about the iaries to settle its claims. That class includes within 60 days. problem, the drivers claimed Volkswagen 47 members that bought the drug between In November, U.S. Magistrate Judge Caro- ignored it and told dealerships and repair 2009 and 2015, with classwide damages line Craven recommended the case shops to simply replace the vehicles’ tires, estimated to be $625 million, or nearly $1.9 proceed in federal court, and not in arbitra- which quickly wore down again. A 2017 billion after the automatic trebling that tion as Reliance had urged in a March filing. amended complaint asserted claims under applies in federal antitrust cases. There is Judge Craven held that the former employ- the Magnuson-Moss Warranty Act for also a class of end payors and others with ees had made the case that Reliance added common law fraud and breach of implied claims against Warner Chilcott and Watson an arbitration clause to their 2012 employee and express warranty, and also sought to that Allergan said are covered by this stock ownership plan without telling them. form multiple state subclasses for claims settlement. They learned about the clause after they under various state laws covering con- A third drugmaker, Lupin Pharmaceuti- filed the suit against Reliance in sumer protection, product liability, adver- cals, was initially involved in the litigation, federal court. tising, warranty and deceptive or unfair but it reached a settlement with a group of Judge Craven ruled that the participants trade practices. retailers in May and settled with end payors in the suit weren’t bound by the arbitration The drivers claimed that Volkswagen for $1 million shortly afterward. clause as a result of it being added after learned about the alleged defect when they Allergan said in a statement that the set- Reliance was sued. Reliance had argued in complained to dealers, directly to the auto- tlement covers classes of direct and indi- trying to compel arbitration that plan par- maker, to the National Highway Traffic rect buyers, as well as direct buyers that ticipants didn’t need to consent to the Safety Administration and on online opted out of the class. The class settlements amendment to make it valid and that in message boards, as well as through its own will need court approval. accepting the plan’s benefits they were maintenance records. In October, Allergan agreed to pay $750 agreeing to its terms and any subsequent The consumers are represented by Peter million in a separate litigation over claims amendments. The workers had argued that Prieto, Matthew P. Weinshall and Alissa Del that its Forest Laboratories unit used anti- just because they kept assets in the plan Riego of Podhurst Orseck PA, Peter J. competitive conduct to keep generic ver- didn’t mean they consented to arbitration. Kreher and Francesco P. Trapani of Kreher sions of Alzheimer’s drug Namenda off the Casey and Coleman alleged in the lawsuit & Trapani LLP, and Harris L. Pogust of market. Allergan is also currently seeking that Reliance violated its fiduciary duties Pogust & Braslow LLC. approval for a planned $63 billion merger under ERISA by failing to perform due dili- The case is Wilson et al., v. Volkswagen with AbbVie Inc. that was announced gence when the plan acquired 100% of Group of America Inc. et al., (case number last year. RVNB’s common stock in 2012 for an $85 1:17-cv-23033) in the U.S. District Court for The end payor class is represented by million note, which was later revalued at the Southern District of Florida. Hilliard & Shadowen LLP, Miller Law LLC, $24 million, according to the complaint. Source: Law360.com Motley Rice LLC and Cohen Milstein Sellers The proposed class is represented by & Toll PLLC. The direct purchasers are rep- Gregory Y. Porter, Ryan T. Jenny, James L. resented by Hagens Berman Sobol Shapiro Kauffman and Alexandra L. Serber of Bailey LLP, Kessler Topaz Meltzer & Check LLP, & Glasser LLP and Thomas R. Ajamie and Berger Montague and Faruqi & Faruqi LLP. John S. Edwards Jr. of Ajamie LLP. The case The case is Loestrin 24 FE Antitrust Litiga- is Jessica Casey et al. v. Reliance Trust Co., tion, (case number 1:13-md-02472) in the (case number 4:18-cv-00424) in the U.S. U.S. District Court for the District of District Court for the Eastern Dis- Rhode Island. trict of Texas. Source: Law360.com Source: Law360.com

JereBeasleyReport.com 25 XXII. Ring devices have become a wildly Johnson & Johnson intentionally con- popular target for hackers. After the Ring cealed the risks of its pelvic mesh THE CONSUMER hack in Mississippi, Motherboard investi- implant devices. It robbed women gated and found hackers have made dedi- and their doctors of their ability to CORNER cated software for illicitly accessing Ring make informed decisions about cameras and speakers. The blog reports whether to permanently implant the that demand for the software is high. products in patients’ bodies. Today Hackers Terrorize Families Through Ring Despite the ease with which hackers can we achieved justice for the women Security Devices breach the devices, Ring has “refused to and families forever scarred by implement even the most basic security Johnson & Johnson’s dishonesty. Ring camera devices are supposed to add precautions to secure their customers’ a level of security to homes, but a mounting accounts,” according to the Jan. 3 lawsuit. Judge Sturgeon wrote that J&J kept its number of lawsuits claim the devices have The Plaintiffs filed the lawsuit saying knowledge of the most serious risks secret opened Plaintiffs’ homes to intruders who they want “to hold Ring responsible for its from doctors and patients, sending out spy on their children, taunt them, and defective devices and systems, require that “deceptively incomplete” information in threaten their families. Ring take all necessary measures to secure the instructions for use that accompanied In a proposed class action filed in a Cali- the privacy of user accounts and devices, each Ethicon device, which was meant to fornia federal court Jan. 3, Mississippi Plain- and compensate Plaintiffs and the class help doctors understand the risks of the tiffs Ashley LeMay and Dylan Blakely say a members for the damage that its acts and device. The judge wrote: hacker accessed the Ring device in their omissions have caused.” They seek unspeci- The evidence at trial shows that 8-year-old daughter’s bedroom that she fied damages, court costs and attorney fees. rather than disclose what it knew shares with her two younger sisters, Sources: Law360, WMCA News and Vice News about some of the severe risks of turning it into “a living nightmare.” The pelvic mesh in its labeling and mar- activity started just four days after they keting materials, J&J has instead installed the device. J&J Owes $344 Million For False Mesh taken active, willful measures for The hacker played the Tiny Tim cover of nearly twenty years to suppress infor- Marketing “Tiptoe Through the Tulips,” a song used in mation and conceal serious risk and the horror film “Insidious” through the A California judge has ordered Johnson & complication information from phy- device. He also told the girl he was Santa sicians and patients. and wanted to be her friend, encouraged Johnson subsidiary Ethicon Inc. to pay nearly $344 million in civil penalties. San her to misbehave, and shouted racial slurs As for the state’s request for an injunc- Diego Superior Court Judge Eddie Sturgeon at her. Footage of the incident shows the tion that would bar J&J from making decep- found that Ethicon had misled consumers hacker may have been able to see every- tive statements about its mesh, Judge about the true risks of its pelvic mesh prod- thing going on inside the girls’ bedroom. Sturgeon wrote that as the company is still ucts. The ruling came after a bench trial in It’s alleged in the lawsuit against Ring: selling the TVT and has not acknowledged the “trailblazing suit” brought by California or disavowed its deceptive marketing, an Attorney General Xavier Becerra. Ring has not disclosed the identity of injunction may be necessary. Judge Stur- In his statement of decision, Judge Stur- this unknown hacker to the [family], geon asked the parties to file supplemental geon sided with California Attorney who have no way of knowing the briefs on the issue of injunctive relief General Becerra and found that J&J and motives of the digital intruder or by Feb. 18. Ethicon had violated the state’s false adver- whether he still poses a threat to the California is represented by Jinsook tising and unfair competition laws. safety of their family. Ohta, Tina Charoenpong, Monica Zi, Daniel Judge Sturgeon wrote that the state had Osborn, Devin Mauney, Laurel Carnes, Jon Todd Craig and Tania Amador of Texas “proven by a preponderance of the evi- Worm and Gabriel Schaeffer of the Califor- are also Plaintiffs in the proposed class dence that Defendants deceptively mar- nia Attorney General’s Office. The case is action. They say a strange voice came keted their pelvic mesh products in the California v. Johnson & Johnson et al., through their indoor Ring camera, saying state of California and that their marketing (case number 37-2016-00017229-CU-MC- “I’m outside your front door.” The hacker was likely to deceive reasonable doctors CTL) in the Superior Court of the State of than threated them with “termination” if and reasonable lay consumers, including California, County of San Diego. they didn’t pay a ransom, the com- potential patients and their friends and plaint alleges. family, about the risks and dangers of these Source: Law360.com In another class action against Ring, a products.” unit of Amazon, Plaintiff John Baker Orange The judge found that the Defendants had of Alabama says his kids were outside lied to Golden State consumers and doctors Undercover Investigation Shows playing basketball when a voice came about the safety of two lines of mesh prod- Discrimination In Housing through the Ring speaker and told them to ucts made with polypropylene: Tension- get closer to the camera. free Vaginal Tape or TVT, launched in 1998 A three-year investigation uncovered All the Plaintiffs say Ring hasn’t gone to treat stress urinary incontinence, and the widespread evidence of discrimination by after the hackers, revealed their identifies, Prolift, launched in 2005 to treat pelvic real estate agents in Long Island, New York. or taken any meaningful measures to fix organ prolapse. J&J stopped selling the pro- In one of the most comprehensive investi- the defect. The Plaintiffs say the problem lapse-treating mesh in 2012. gations into housing discrimination since potentially affects thousands of people who In a statement relating to the decision, the enactment of the Fair Housing Act of use the popular security device. They also Attorney General Becerra said that J&J 1968, Newsday found widespread evidence propose a subclass of consumers whose knew of the dangers of its mesh products, of unequal treatment of minority homebuy- Ring accounts were accessed by cybercrim- but had prioritized its profits over women’s ers. The investigation’s findings are the inals, alleging that “Instead of helping fami- health. He said: result of “paired-testing”—a method used lies protect their homes, Ring security by the federal government to measure the devices have had the opposite effect.” extent of discrimination in housing. The

26 BeasleyAllen.com probe’s paired testing involved two under- lawyers are currently working on. The firm On-the-job Product Liability—Many cover testers—for example one Caucasian operates in four separate Sections with times product claims arise from worker’s and one Hispanic—who separately solicit a each Section focusing on a specific area of compensation claims. After we investigate real estate agent’s assistance in litigation. The four Sections are Personal the circumstances that caused the injuries, buying houses. Injury & Products Liability, headed by Cole many times we discover a defective Newsday conducted 86 paired tests in Portis; Mass Torts, headed by Andy Birch- machine may be the cause of the injuries. areas stretching from the New York City field; Toxic Torts, headed by Rhon Jones; Contact: Kendall.Dunson@beasleyallen. line to the Hamptons and from Long Island and Consumer Fraud & Commercial Litiga- com or [email protected]. Sound to the South Shore. Thirty-nine of tion, headed by Dee Miles. Information on the tests paired African American and Cau- the current litigation will be set out below Boeing Litigation—Lawyers in the casian testers, 31 matched Hispanic and for each Section. Section, led by Mike Andrews, are investi- Caucasian testers and 16 paired Asian and gating and filing suits arising out of the two Caucasian testers. In 40 percent of the tests crashes involving Boeing planes that have performed, evidence suggested that real received tremendous public interest and Personal Injury & Products Liability estate brokers subjected minority testers to concern. The first suit was filed on June 13. disparate treatment when compared to Section Mike is handling the litigation and has filed Caucasian testers. several other lawsuits. Others are being The personal Injury & Products Liability African American testers experienced prepared for filing. Contact: Mike. Section is handling cases in a number of disparate treatment 49 percent of the time [email protected]. areas. Currently, the Section has 18 lawyers compared with 39 percent for Hispanic and and 31 support staff. Sloan Downes is the Aviation Accidents—Aviation litigation 19 percent for Asian testers. In seven of Section Director. The lawyers and support can be extremely complex and often Newday’s tests—8% of the total—agents staff are working on the areas of litigation involves determining the respective liabil- accommodated Caucasian testers while set out below. The primary lawyer contact ity of manufacturers, maintainers, retrofit- imposing more stringent conditions on will be listed for each type case. Following ters, dispatchers, pilots and others. In some minorities that amounted to the denial of is the list of current activity in the Section. circumstances, the age of the aircraft services for minority testers. involved can limit or completely preclude Further, in seven cases, real estate agents Product Liability—We continue to focus an injured party from compensation. refused to provide house listings or home on accident cases involving automobiles, Soaring through the sky hundreds of miles testers unless they met certain financial heavy equipment and consumer products. an hour, thousands of feet above the qualifications that weren’t imposed on Some of these auto cases involve single- ground in an airplane or helicopter leaves their counterparts. In 24% of cases agents vehicle crashes, while others involve multi- little room for error. One small mechanical directed Caucasians and minorities to dif- ple-vehicle accidents. We would like to problem, misjudgment or faulty response in fering communities through house listings review any case involving catastrophic the air can spell disaster for air passengers that essentially steered the buyers to areas injury or death. Contact: Cole.Portis@beas- and even unsuspecting people on the based on race or ethnicity. leyallen.com, Greg.Allen@beasleyallen. ground. We are handling cases involving all For example, one real estate agent told an com, [email protected], Chris. types of aircraft, military and civilian. African American customer a neighbor- [email protected], Mike.Andrews@ Contact: [email protected] hood known to have gang activity has some beasleyallen.com, Graham.Esdale@beasley- or [email protected]. of the “nicest people” in order to persuade allen.com, Labarron.Boone@beasleyallen. the customer to consider the neighbor- com or [email protected]. Heavy Truck Product Liability Claims— hood. In contrast, the real estate agent Tractor trailers and other heavy trucks are emailed the paired Caucasian about the Truck Accidents—There are significant not required to contain many of the same same neighborhood and said, “please differences between handling an interstate protections for occupants as smaller pas- kindly do some research on the gang trucking case and other car wreck cases. It senger cars. They can contain dangerous related events in that area for safety.” is imperative to have knowledge of the defects putting the truck driver or passen- If you are aware of fraud, abuse or waste Federal Motor Carrier Safety Regulations, gers at risk of serious injury or death. These being committed against the federal gov- technology, business practices, insurance trucks many times have particularly weak ernment or a state government and are coverages, and to have the ability to dis- roofs that crush in rollovers. The passenger interested in pursuing a whistleblower cover written and electronic records. compartments are often not protected by lawsuit, contact Larry Golston, a member of Expert testimony is of utmost importance. effective cab guards, and this allows loads our firm’s Whistleblower Litigation Team. Accidents involving semi-trucks and pas- to shift into the truck cab. We would like to Larry can be contacted at 800-898-2034 or senger vehicles often result in serious inju- review any case involving catastrophic by email at Larry.Golston@beasley- ries and wrongful death. Trucking injury or death. Contact: Ben.Baker@beas- allen.com. companies and their insurance companies leyallen.com or Greg.Allen@beasley- Source: Newsday.com almost always quickly send accident investi- allen.com. gators to the scene of a truck accident to begin working to limit their liability in Defective Tires—Tire failure can result in these situations. Our lawyers, staff and in- a serious car crash and even a vehicle roll- XXIII. house accident investigators immediately over accident, causing serious injury or begin the important task of documenting death to vehicle occupants. Air, heat and CURRENT CASE and preserving the evidence. We would sunlight can cause the rubber in tires to like to review any case involving cata- break down. When a tire is defective, ACTIVITY AT strophic injury or death. Contact: Chris. potentially serious problems like detreads BEASLEY ALLEN [email protected], Mike.Crow@bea- and blowouts can occur long before the tire sleyallen.com, Dan.Philyaw@beasleyallen. would be expected to wear out. If the tire com or [email protected]. failure is the result of design or manufactur- The following is the January 2020 update ing defects, and the manufacturer is aware on the types of cases that Beasley Allen of the problem, they have an obligation to

JereBeasleyReport.com 27 alert consumers to the potential danger. The Mass Torts Section earlier than with low- or medium-viscosity Contact: [email protected] or cements. Although HVC may be more con- [email protected]. The Mass Torts Section is handling a venient to use, there is mounting evidence number of cases involving pharmaceuticals that the bond it produces is not as strong. Premises Liability—In premises liability and medical devices. Currently, there are Researchers have observed more early fail- claims, patrons of establishments are often 32 lawyers and 87 support staff in the ures with the use of HVC, even when used injured because the premises, for some Section. Melissa Prickett, a lawyer, serves as in combination with a previously well-per- reason, was unsafe. Premises liability the Section Director. The lawyers and forming implant. Complications associated claims can take many forms, including support staff are working in the areas of liti- with knee replacements performed with when severe injury or death results when a gation set out below. The contact lawyer HVC include loosening and debonding building or structure collapses, merchan- will be supplied in each case. The follow- (where the implant fails to adhere to the dise falls, during swimming pool accidents, ing are the current areas of litigation in cement interface on the shin or thigh due to poor lighting, falling debris, unse- the Section. bone), which requires revision surgery. cured fixtures and furniture that falls or Other reported problems include new tips over, unsecure drainage that creates Talcum powder and ovarian cancer—As onset chronic pain and instability. Contact: drowning or fall hazards, slippery surfaces, many as 2,200 cases of ovarian cancer diag- [email protected], Ryan.Duple- and inadequate maintenance. Beasley Allen nosed each year may have been caused by [email protected] or Melissa.Prick- has successfully handled a number of prem- regular use of talcum powder. Talc is a [email protected]. ises liability cases, and we would like to mineral made of up various elements investigate any cases where severe injury or including magnesium, silicon and oxygen. Zantac and cancer risk—For nearly four death results. Contact: Mike.Crow@beasley- Talc is ground to make talcum powder, decades, tens of millions of consumers allen.com, [email protected], which is used to absorb moisture and is have used Zantac as an antacid to help treat [email protected], or Ben. widely available in various products includ- symptoms of acid reflux. However, the [email protected]. ing baby powder and adult products includ- public is now learning that studies have ing body and facial powder. Talc products long shown that Zantac is linked to cancer Negligent Security—Under the law, used regularly in the genital area increase in animals and humans. Lawyers at Beasley owners of establishments owe a duty to the risk of ovarian cancer. In February Allen are currently investigating claims of patrons and guests to ensure that the prem- 2016, a jury found Johnson & Johnson those who have used Zantac and have sub- ises are reasonably safe and secure from knew of the cancer risks associated with its sequently been diagnosed with cancer. anticipated dangers. These cases normally talc products but failed to warn consumers Contact: [email protected] take the form of shootings, fights, stab- and awarded the family of our client $72 or [email protected]. bings, or other physical violence (including million. She died of ovarian cancer after Proton Pump Inhibitors—Proton pump sexual assault) where severe injury or death using J&J talc-containing products for more inhibitors (PPIs) such as Nexium, Prilosec occurs due to the establishment owner’s than 30 years. This case was the start of the and Prevacid were introduced in the late failure to take reasonable safety measures. litigation that followed. Ted Meadows heads 1980s for the treatment of acid-related dis- When this occurs, the establishment up our talc litigation team handling individ- order of the upper gastrointestinal tract, owner, as well as those contractors charged ual claims. Leigh O’Dell heads up the team including peptic ulcers and gastrointestinal with security, may be held responsible for of lawyers handling the talc multidistrict reflux disorders, and are available both as the injuries suffered by individuals or litigation (MDL). Contact: Ted.Meadows@ prescription and over-the-counter drugs. groups of individuals on the premises. beasleyallen.com, Leigh.Odell@beasleyal- Beasley Allen is currently investigating PPI- While the laws vary from state to state, our len.com, [email protected] induced Acute Interstitial Nephritis (AIN), firm is actively investigating and litigating or [email protected]. which is a condition where the spaces these cases where severe injury or death between the tubules of the kidney cells results. Contact: Parker.Miller@beasleyal- JUUL vaping devices—The use of JUUL become inflamed. The injury appears to be len.com, [email protected] or and other vaping devices has reached epi- more profound in individuals older than 60. [email protected]. demic levels, especially among teenagers While individuals who suffer from AIN can and young adults. JUUL and other vape Nursing Home Abuse and Neglect— recover, most will suffer from some level of device manufacturers fueled this epidemic permanent kidney function loss. In rare Nursing homes are supposed to be in the by targeting and deceiving youth and ado- business of providing skilled nursing care cases individuals suffering from PPI- lescents with misleading social media mar- induced AIN will require kidney transplant. to elderly and disabled residents. Unfortu- keting and sweet, fruit-flavored pods nately, statistics indicate residents in Contact: [email protected] or containing high levels of nicotine. Use of [email protected]. nursing homes suffer abuse and neglect these products has been associated with more and more frequently at the hands of numerous adverse health effects, such as Metal-on-Metal Hip Replacement nursing home corporations. In many cases seizures, nicotine addiction, nicotine poi- parts—The FDA has ordered a review of all residents have died or have been severely soning, breathing problems, behavioral and metal-on-metal hip implants due to mount- abused as a result of neglect. They may psychological problems, and other serious ing patient complaints. Problems with suffer physical abuse, emotional or psycho- health conditions. Contact: Joseph.Van- metal-on-metal include, but are not limited logical abuse, or neglect. We are investigat- [email protected], Sydney.Everett@ to loosening, metallosis (ie: tissue or bone ing cases involving serious injury or death beasleyallen.com or Melissa.Prickett@beas- death), fracturing, and/or corrosion and resulting from nursing home abuse or leyallen.com. fretting of these devices, which require neglect. Contact: Alyssa.Baskam@beasley- revision surgery. Many patients that require allen.com. Bone Cement—The type of bone cement revision surgery due to these devices suffer used during knee replacement surgery significant post-revision complications. We affects the outcome of that surgery. High are investigating all cases involving metal- viscosity bone cement (HVC) boasts shorter on-metal hip implants, including the DePuy mixing and waiting times and longer Orthopaedics ASR XL Acetabular System working and hardening phases, meaning and the DePuy ASR Hip Resurfacing surgeons can handle and apply the cement

28 BeasleyAllen.com System, recalled in August 2010; the Stryker lia. We are currently investigating cases eight states for a recovery dealing with Rejuvenate and ABG II modular-neck stems, involving serious injury or death as a result Medicaid fraud. In addition, we are repre- recalled in July 2012; the Stryker LFIT Ana- of Ethicon’s Physiomesh. Contact: Melissa. senting five states in related pharmaceuti- tomic v40 Femoral Head (recalled August [email protected]. cal pricing litigation. For more information, 29, 2016); the Zimmer Durom Cup, and the contact [email protected] or Biomet M2A “38mm” and M2A-Magnum hip Opioids—Opioid abuse has reached epi- [email protected]. replacement systems, which have not been demic proportions in the United States. recalled. Reported problems include pain, According to the Department of Health & False Claims Act / Whistleblower- We swelling and problems walking. Contact: Human Services, 12.5 million people are handling and investigating whistle- [email protected] or Melissa. misused prescription opioids and 33,091 blower claims of government fraud ranging [email protected]. Americans died from opioid overdose in from Medicare/Medicaid to military con- 2015 alone. These medications provide tracts, and any other type of fraud involv- IVC Filters—Retrievable IVC filters are important pain relief for many. However, ing a government contract. Under the False wire devices implanted in the vena cava, over the years, drug companies inflated the Claims Act (FCA) the whistleblower is enti- the body’s largest vein, to stop blood clots effectiveness of delayed-release medica- tled to a percentage of the recovery. Studies from reaching the heart and lungs. These tions like OxyContin and downplayed their show that as much as 10% of Medicare/ devices are used when blood thinners are addictive properties, creating conditions Medicaid charges are fraudulent. Common not an option. Manufacturers include Bard, ripe for abuse. We are investigating cases schemes involve double-billing for the same Cook and Johnson & Johnson. While per- involving opioid-related deaths and over- service, inaccurately coding services, and manent IVC filters have been used since the dose requiring hospitalization, as well as billing for services not performed. Addi- 1960s with almost no reports of failure, cases involving treatment for addiction to tionally, the Commission on Wartime Con- retrievable IVC filters were introduced in prescription opioids. Contact: Melissa. tracting has warned that the lack of 2003, promoted for use in bariatric surgery, [email protected], Roger.Smith@ oversight of government contractors has trauma surgery and orthopedic surgery. beasleyallen.com or Liz.Eiland@beasley- led to massive fraud and waste. Contact: Risks associated with the retrievable IVC allen.com. [email protected], Larry. filters include migration, fracture and per- [email protected], Leslie.Pescia@ foration, leading to embolism, organ Opioids and Infants—The opioid epi- beasleyallen.com or Tyner.Helms@beas- damage and wrongful death. Contact: demic has also taken its toll on the most leyallen.com. [email protected]. vulnerable among us. According to the National Institute on Drug Abuse, every 25 Pension Plan Litigation (ERISA)—Many Zofran—Manufactured by GlaxoSmith- minutes, a baby is born addicted to opi- large corporations are improperly funding Kline, Zofran (ondansetron) was approved oids—a condition called Neonatal Absti- their Employee Benefit plans and / or trans- to treat nausea during chemotherapy and nence Syndrome (NAS). Babies with NAS ferring these Pension Plans to other entities following surgery. Zofran (ondansetron) suffer painful symptoms of opioid with- that cannot properly fund the plans. The works by blocking serotonin in the areas of drawal in the hours and days after they are result is that employees’ life savings for the brain that trigger nausea and vomiting. born and are more likely to suffer long-term retirement is either lost, compromised or Between 2002 and 2004, GSK began pro- complications like developmental delays reduced substantially. These transfers and moting Zofran off-label for the treatment of and hearing or vision impairment, com- inadequate funding measures are all morning sickness during pregnancy, pared to babies born to mothers who did designed to increase earnings for the cor- despite the fact the drug has not been not use opioids. We are investigating cases porations at the expense of its employees. approved for pregnant women and there on behalf of children who were born with Our firm is committed to pursuing the have been no well controlled studies in NAS after their mothers were prescribed preservation of employee benefits / retire- pregnant women. The FDA has received opioids before or during pregnancy. ment by challenging these abuses through nearly 500 reports of birth defects linked to Contact: Melissa.Prickett@beasleyallen. ERISA litigation and class actions. For more Zofran. Birth defect risks include cleft com, [email protected] or Liz. information contact Dee.Miles@beasleyal- palate and septal heart defects. Contact: [email protected]. len.com, [email protected] [email protected] or Melissa. or [email protected]. [email protected]. Auto Defect Class Actions—We are con- Physiomesh—Intended for hernia repair, Consumer Fraud & Commercial Litigation tinuing to work on numerous auto defect Physiomesh is a flexible polypropylene Section class actions against many of the major mesh designed to reinforce the abdominal automobile manufacturers like VW, Toyota, wall, preventing future hernias from occur- The Consumer Fraud & Commercial Liti- General Motors, Ford and even some suppli- ring. Though there are several types of gation Section has 14 lawyers and 20 ers. These cases continue to be filed hernias, most occur when an organ or support staff. Michelle Fulmer is the because of corporate misconduct in design- tissue protrudes through a weak spot in Section Director. Lawyers and support staff ing and manufacturing unsafe vehicles that abdominal muscles. The condition often in the Section are working on the litigation are purchased by consumers, corporations requires surgery where mesh, like Physio- areas set out below. The primary lawyer and state agencies. We continue to investi- mesh, which is intended for laparoscopic contact will be supplied for each type case. gate these automobile problems for class use, is used to fill in a hole in the abdomi- relief treatment. Contact: Clay.Barnett@bea- State and Municipalities Litigation—Our nal muscle or laid over or under it to sleyallen.com, Dee.Miles@beasleyallen. firm has represented numerous states prevent any further protrusions. Indepen- com, [email protected] or throughout the country. These cases have dent studies have found Physiomesh to lead [email protected]. been handled through the Attorneys to high rates of complications including General and have involved various civil hernia reoccurrence, organ perforation, Life Insurance Fraud—We have uncov- actions. Many times, individuals are barred mesh migration, sepsis and even death. In ered alleged fraudulent accounting prac- from bringing a consumer fraud type claim, May 2016, Ethicon issued a market with- tices by life insurance companies but the state government is not. We drawal of Physiomesh in the U.S. and concerning premium increases. The recently concluded litigation in seven of recalled the product in Europe and Austra- accounting method may result in the poli-

JereBeasleyReport.com 29 cyholder being charged excessive insur- macies falsely reporting their generic Tracie Harrison is the Section Director. ance premiums. A client that has a life pricing transactions to state Medicaid agen- Lawyers and support staff are working on insurance policy and has been notified of a cies. This misconduct has led to millions of the areas of litigation set out below. The substantial increase in premium payments, dollars in overpayments by Medicaid agen- primary contact lawyer for each type case or if they have been told their policy’s “cost cies for generic drugs to the chain pharma- will be listed. of insurance” has increased, may have a cies. Contact: Alison.Hawthorne@ valuable legal claim that our firm would beasleyallen.com, James.Eubank@beasleyal- Roundup / glyphosate—Roundup is the like to investigate. Contact: Dee.Miles@bea- len.com or [email protected]. most widely used herbicide in the world sleyallen.com, Rachel.Boyd@beasleyallen. and the second-most used weed killer for com, or [email protected]. Antitrust—We are handling claims related home and garden, government and indus- to the violation of federal and state antitrust try, and commerce. It was introduced com- Property Insurance Fraud—Insurance laws. We are currently involved in claims mercially by Monsanto Company in 1974 companies nationwide are unjustly depreci- alleging a wide array of anticompetitive and is used by landscapers, farmers, ating labor costs on adjusted property conduct, including illegal tying, exclusive groundskeepers, and commercial garden- claims (roof or fence damage for example). dealing, monopolization, and price fixing. ers. The primary ingredient in Roundup is The depreciation of labor costs is contrary Contact: [email protected], glyphosate, a chemical that kills weeds by to many insurance policy forms and leads [email protected], blocking proteins essential to plant growth. to policyholders either being undercom- [email protected] or Leslie. It has been linked to a type of cancer called pensated for their claims or not compen- [email protected]. non-Hodgkin’s lymphoma. We are investi- sated at all as they fail to meet their gating cases involving non-Hodgkin lym- deductible once labor costs are depreci- Sexual Harassment—Sexual harassment phoma related to the commercial ated. If you have had an insurance claim on is outlawed by Title VII of the Civil Rights application of Roundup/glyphosate. your property in the past six years, then we Act of 1964 because it is a form of discrimi- Contact: John.Tomlinson@beasleyallen. would like to review the adjuster’s estimate nation, as explained by the Equal Employ- com, [email protected], and your homeowner’s or manufactured ment Opportunity Commission (EEOC). [email protected] or home policy as you may have a case. The agency states “[u]nwelcome sexual [email protected]. Contact: [email protected], advances, requests for sexual favors, and [email protected] or Paul. other verbal or physical conduct of a sexual State and Municipalities Litigation—Our [email protected]. nature constitute sexual harassment when firm is representing the States of Alabama this conduct explicitly or implicitly affects and Georgia in the opioid litigation. We also Supplemental Disability Insurance an individual’s employment, unreasonably represent states and certain local govern- Denial—We have successfully litigated bad interferes with an individual’s work perfor- ments in environmental or toxic exposure faith denial of benefits cases for years in the mance, or creates an intimidating, hostile, claims. Many times, individuals are either disability insurance area and we are inter- or offensive work environment.” We are barred from bringing an environmental ested in reviewing cases involving denial of looking at any claim involving extreme claim or it is not a practical solution. These Individual and Group disability insurance. sexual harassment or sexual assault. types of government cases may involve These cases can be either employee spon- Contact: [email protected], issues of environmental catastrophe, or sored benefit plan policies (ERISA), individ- [email protected] or Leon. some other type of pollution. One of the ually owned policies or non-ERISA [email protected]. most notable cases handled by Beasley governed supplemental insurance. Contact: Allen on behalf of states for environmental [email protected], Rachel. Employment Law—We are handling issues is the BP Oil Spill litigation. For more [email protected], James.Eubank@ employment cases. Situations that may be information, contact Rhon.Jones@beasley- beasleyallen.com or Paul.Evans@beas- addressed in this area include minimum allen.com. leyallen.com. wage and overtime pay, unfair labor prac- tices, all types of discrimination, employee Opioids—Beasley Allen is representing Health Care Fraud—We are looking into benefits, and whistleblower claims. Alabama and Georgia against both manu- cases of fraud within the health care indus- Contact: [email protected], facturers and distributors of opioids for try. These may include cases dealing with [email protected] or Leon. increased costs related to the opioid epi- pricing, off-label prescriptions, or other [email protected]. demic. These lawsuits allege the crisis was health care abuse. Contact: Alison.Haw- created by the pharmaceutical industry, [email protected], James.Eubank@ Fair Labor Standards Act (FLSA)—We which instead of investigating suspicious beasleyallen.com or Dee.Miles@beasley- are working several cases involving Fair orders of prescription opiates, turned a allen.com. Labor Standards Act (FLSA) violations. The blind eye in favor of making a profit. They FLSA cases are brought on behalf of clients intentionally misled doctors and the public Self-funded Health and Pharmacy whose job title is misclassified by their about the risks of these dangerous drugs, Insurance Plans—Third Party Administra- employers so that employees are not com- and state governments are left struggling to tors and Pharmacy Benefit Managers may pensated for overtime worked. Cases may cope with the consequences. Contact: have been charging unauthorized fees to also involve unequal pay, where women are [email protected], Jeff.Price@ self-funded insurance health and pharmacy paid less for doing the same job as men. beasleyallen.com or Rick.Stratton@beasley- benefit plans. These extra fees may be in Contact: [email protected], allen.com. violation of the contracts with the self- [email protected], or Lauren. funded plan and a breach of fiduciary duty [email protected]. Mesothelioma and asbestos-related dis- under ERISA. We are looking into these eases—Mesothelioma is a highly aggressive cases on behalf of self-funded plans. and rare form of cancer usually affecting Contact: Alison.Hawthorne@beasleyallen. the lining of the lungs (pleural) or abdomi- Toxic Torts Section com or [email protected]. nal cavity (peritoneal). Occasionally, it also The Toxic Torts Section has a number of may affect the lining of the heart (pericar- Pharmaceutical Pricing—We are continu- dial). The only known cause of mesotheli- ing to handle claims involving chain phar- ongoing projects at present. Currently, the Section has 10 lawyers and 27 support staff. oma is exposure to asbestos. About 2,000

30 BeasleyAllen.com new cases of mesothelioma are diagnosed leyallen.com or Rhon.Jones@beas- Aviation Litigation & Accident Investigation in the United States each year. For years, leyallen.com. asbestos was widely used in many indus- Beasley Allen lawyer Mike Andrews dis- trial products and in building construction E-cigarette Explosions—We are investi- cusses the complexities of aviation crash for insulation and fire protection. When gating cases involving severe injuries investigation and litigation. The veteran liti- asbestos is broken or disturbed it can caused by exploding e-cigarette devices gator offers an overview to the practitioner release microscopic fibers that can be and exploding e-cigarette batteries. These of the more glaring and important issues to inhaled or ingested, posing a health risk, explosions have been linked to faulty e-cig- be aware of early in the litigation based on including the development of asbestos dis- arette products, defective lithium-ion bat- years of handling aviation cases. He pro- eases and mesothelioma. Contact: Sharon. teries, and insufficient warnings for users. vides basic instruction on investigating an [email protected] or Rhon.Jones@ These cases involve personal injury includ- accident, preserving evidence, and insight beasleyallen.com. ing serious burn injuries. Please contact our into legal issues associated with aviation Toxic Torts section for assistance with claims while weaving in anecdotal Defective 3M Earplugs—Beasley Allen cases you may have involving these devices. instances of military and civilian crashes. lawyers are investigating claims related to Contact: [email protected]. defective combat earplugs manufactured by Minnesota-based 3M Company. The ear- You should have no difficulty in getting plugs were issued to thousands of military through to a lawyer in our firm on a spe- Tire Litigation: A Primer personnel serving in combat in Iraq and cific case. However, if you do have diffi- Afghanistan and used in training exercises culty reaching any of the lawyers listed Although tire failures, blowouts and in the United States. Numerous soldiers are above as the primary contact for a specific detreads are foreseeable and preventable now complaining of permanent hearing case, you can contact one of our four events, all too often consumers are loss related to the defective ear plugs. Section Directors and she will put you in unaware of the potential dangers from Other soldiers have complained of tinnitus, touch with a lawyer in her Section who is defective, old or degraded tires. Beasley commonly referred to as “ringing” in the working on the specific case you are Allen lawyer Ben Baker provides lawyers ears. The dual-sided earplugs allegedly asking about. guidance on evaluating tire litigation and were improperly designed and manufac- The Section Directors at Beasley Allen do underscores the importance of inspecting tured so that the earplugs did not fit snugly a tremendous job for our firm. The Direc- the tires of all vehicles involved in a crash. in the wearer’s ear canal. Contact: Rhon. tors are Melissa Prickett, Mass Torts [email protected], William.Sutton@ Section; Sloan Downes, Personal Injury & beasleyallen.com or Danielle.Ingram@beas- Products Liability Section; Michelle Fulmer, Nursing Home Abuse & Neglect Brochure leyallen.com. Consumer Fraud & Commercial Litigation Section; and Tracie Harrison, Toxic Torts Long-term care facilities, including Leukemia and Benzene exposure— Section. The directors can be reached at nursing homes, are rife with abuse and Benzene is widely used in a number of 800-898-2034 or by email at Melissa.Prick- neglect and alarmingly high rates of under- industries and products, yet many people [email protected]; Sloan.Downes@beas- reporting. To assist families and lawyers remain unaware of the toxic danger of this leyallen.com, Michelle.Fulmer@ pursuing justice for victims, Beasley Allen chemical substance. Exposure to products beasleyallen.com; and Tracie.Harrison@ has prepared a brochure with information containing benzene, whether through inha- beasleyallen.com. to help identify the signs of abuse and lation or skin absorption, can cause life- neglect, and advice about how to threatening diseases including Acute file a claim. Myeloid Leukemia (AML), Myelodysplastic Syndrome (MDS), lymphomas and aplastic XXIV. Anemia. Some of these diseases do not manifest themselves until several years Resources to Co-Counsel E-Newsletter after exposure to benzene. Due to certain Help Your Law statute of limitations for bringing a claim of Beasley Allen also sends out a Co-Coun- this nature it is important to contact an Practice sel E-Newsletter, which is specifically tai- attorney as soon as possible if you believe lored with lawyers in mind. It is emailed your condition is a result of benzene expo- bi-monthly to subscribers. Co-Counsel pro- Beasley Allen has been recognized as one sure. Contact: John.Tomlinson@beasley- vides updates about the different cases the of the country’s leading law firms involved allen.com. firm is handling, highlights key victories in complex civil litigation, representing achieved for our clients, and keeps readers PFC Contamination in Water Systems— only claimants. We are both honored and informed about the latest resources offered In May 2016, the U.S. Environmental Pro- humbled to have received that recognition. by the firm. tection Agency (EPA) issued new lifetime By choice, our firm does no defense work. health exposure guidelines for perfluorooc- Beasley Allen has truly been blessed and we understand the importance of sharing tane sulfonate (PFOS) and perfluorooacta- The Jere Beasley Report noic acid (PFOA) in the water supply. After resources and teaming with peers in our profession. The firm is committed to invest- the EPA issued the new exposure limits, We also consider The Jere Beasley ing in resources, including books authored Beasley Allen filed suit for two water Report to be a service to lawyers as well as by our lawyers, to help our fellow lawyers. systems impacted in Alabama. The EPA the general public. We provide the Report For those who may be looking to work with advisory focused on PFOA and PFOS, man- at no cost monthly, both in print form and Beasley Allen, or simply are seeking infor- made chemical compounds that are used in online. You can get it online by going to mation that will help their law firm with a the manufacture of non-stick, stain-resis- https://www.beasleyallen.com/publishing/ case, the following are among our most tant, and water-proofing coatings on fabric, jere-beasley-report/. cookware, firefighting foam, and a variety popular resources. The names of the books of other consumer products. Contact: Ryan. and the authors are set out below. You can reach Beasley Allen lawyers in [email protected], David.Diab@beas- the four sections of our firm by phone toll

JereBeasleyReport.com 31 free at 800-898-2034 to discuss any cases of wonder whether they are getting the infor- act in a way that would make them think interest or to get more information about mation they need to decide what’s true and your case isn’t serious or that you and the resources available to help lawyers in what’s not—and, more importantly, which opposing counsel are simply their law practice. To obtain copies of any party (or lawyer) is doing the most to help “play-acting.” of our publications, visit our website at bea- them get that truthful information. This of sleyallen.com/publishing. course brings us to juror-belief number • Don’t Try to Impress with Lawyer- two; namely, the perception that lawyers Speak—The language we choose to use have a financial incentive to overemphasize or not use in the courtroom can play a evidence that helps their side and down- huge role in how jurors view us and XXV. play evidence that hurts their case. In other whether they feel connected to us. For words, jurors are naturally skeptical about example, how many of us have used the PRACTICE TIP OF our motives and they wonder if they can following “lawyerly” line when question- THE MONTH FOR ever believe in us as individuals—much less ing a witness: “What, if anything, did believe in what we say. you do next?” I’m sure most of us have at TRIAL LAWYERS So how do we use personal advocacy to some point—and most of us learn over overcome these two juror concerns? I’ve time that it’s a mistake to talk that way in thought about that question quite a bit over court. There is no need to try and As previously stated, we have been asked the years and the conclusion I’ve reached is impress jurors with fancy legal jargon to supply practice tips each month in this that we don’t have to be superb orators or and technical or scientific terms. Instead, report. This month, David Byrne, a lawyer brilliant legal scholars to connect with your job is to communicate your case in a in our Mass Torts Section, will discuss some jurors and to have courtroom success. But way that every one of your jurors can important things he has learned over the we absolutely must be straight shooters understand it. Yes, there will be times in years. I believe this will help lawyers suc- who fervently believe in our clients and the every trial when you and your witnesses cessfully try their cases. cases we try for them. Here are several tips (particularly expert witnesses) must and strategies that I’ve learned with the discuss things that are complicated or help of my mentors and partners at difficult to grasp. But it’s your job to Making It Personal Beasley Allen: make that information understandable and manageable for each juror, without As trial lawyers, our ability to form per- • Pick Your Battles—For most of us, this insulting their intelligence or sonal connections with juries is our great- advice seems to go against everything “dumbing it down.” est courtroom weapon. These personal we’ve been trained to do (and think) as connections are often far more important lawyers. We are taught to fight for our • Be Committed to Your Client’s —Last but not least, it is impera- than the facts of our case or the applicable clients and present every possible argu- Cause tive that you always communicate in a law. That’s an easy truth to miss, even for ment we can to try to gain an advan- way that drives home your personal veteran trial lawyers—and it’s the main tage—no matter how flimsy the belief that your client is right, and that reason why we should take off our “lawyer- argument might be. But in the court- their cause is just. I’m not suggesting that hats” occasionally and try to see things room, it doesn’t always pay to fight the you violate the rules by expressing your from a juror’s perspective. Because unless battles that don’t need to be fought—and own opinions in court on ultimate issues. we take the time to examine our cases (and it can seriously hurt your credibility if Nor am I advising you to flail around the ourselves) the way jurors do, we will never you fight battles that can never be won. courtroom or to argue as loudly as possi- hope to make a personal connection with So, decide right from the start which ble. What I’m suggesting is that you them at trial. arguments and themes are critical to speak and present your case with real So how exactly do jurors view our cases your client’s case and which ones aren’t. passion from start to finish. Never forget and, more importantly, us as lawyers? The Then, be willing to concede non-essen- that jurors always want to know whether best explanation I’ve come across is in tial points in front of the jury whenever you are saying what you are saying Herbert Stern’s fantastic trial advocacy possible. Don’t rattle off multiple objec- because it’s true, or because you simply book, Trying Cases to Win. There, the tions to evidence and testimony if it want to win. author points out that every juror, in every doesn’t really harm the central themes of your case. Over time, the jury will begin case, comes into the courtroom believing So, don’t be afraid to speak to your jurors to see you as a credible and fair-minded two basic things: First, that the lawyers in the most personal manner that the rules person who is worthy of their trust—and know more about the facts, the evidence will permit. Use phrases like “I submit” and their verdict. and the witnesses than they do; and, “I suggest” whenever possible and always Second, that the lawyers are being paid (or, • Don’t Get Chummy with Your Oppo- refer to your clients as “Mr. ____” or “Ms. at least hope to be paid) for presenting nent—One of the biggest mistakes a _____, rather than “My Client.” Above all, their case. Let’s take a moment to examine lawyer can make is to be overly friendly though, speak from the heart and let your both beliefs and the implications and with opposing counsel in the presence of jurors know that presenting this case is the opportunities they create for us as lawyers. the jury. Treat the other side with most important thing in the world to you. To begin with, it’s true that most jurors respect, dignity and formality from the In the end, if your jurors believe that you don’t have (and never will have) as much moment you enter the courthouse—but wouldn’t want to be anywhere else, doing information about a case as the lawyers leave the back slapping and friendly con- anything else, they will feel a personal con- who try it. After all, lawyers spend months, versation for another day in a less impor- nection with you and with your cli- if not years, preparing their cases for trial. tant setting. Remember, trials are about ent’s case. And as the trial goes on, some witnesses are separating right from wrong and decid- excluded; testimony may be cut short; and ing what’s true and what’s false. Jurors exhibits draw objections for a variety of must believe that a trial (especially your reasons that only the lawyers seem to trial) is an important matter that understand. So naturally, jurors are left to deserves their careful attention. So never

32 BeasleyAllen.com XXVI. These inflators may explode due to propel- inflators containing phase stabilized ammo- lant degradation occurring after long-term nium nitrate (PSAN) propellant that were RECALLS UPDATE exposure to high absolute humidity, high used as interim remedy parts for previous temperatures, and high tempera- Takata recalls. These inflators may explode ture cycling. due to propellant degradation occurring We are again reporting a large number of after long-term exposure to high absolute safety-related recalls. We have included Subaru of America, Inc. (Subaru) is humidity, high temperatures, and high tem- some of the more significant recalls that recalling certain 2009-2013 Forester, 2003- perature cycling. were issued in January. If more information 2006 Baja, 2004-2011 Impreza, 2004-2014 is needed on any of the recalls, readers are WRX (STI included), 2003-2014 Legacy and Toyota Motor Engineering & Manufac- encouraged to contact Shanna Malone, the Outback, and 2005-2006 Saab 9-2X vehicles turing (Toyota) is recalling certain 2018- Executive Editor of the Report. We would originally sold, or ever registered, in the 2019 4Runner, Highlander, Camry, Land also like to know if we have missed any states of Alabama, California, Florida, Cruiser, Sequoia, Sienna, Tacoma and safety recalls that should have been Georgia, Hawaii, Louisiana, Mississippi, Tundra, and Lexus RC 300, RC 350, GS 350, included in this issue. South Carolina, Texas, Puerto Rico, Ameri- GX 460, IS 300, LC 500, LS 500, LX 570, RX can Samoa, Guam, the Northern Mariana 350, and 2019 Toyota Avalon and Corolla, Islands (Saipan), and the U.S. Virgin Islands and Lexus NX 300, ES 350, and GS 200T or “Zone A.” These vehicles had their pas- vehicles. The low-pressure fuel pump Motor Vehicle Recalls: senger frontal air bag inflators previously inside the fuel tank may fail. If fuel pump replaced under a prior recall using inflators fails, the engine can stall while driving, Mercedes-Benz USA, LLC. (MBUSA) is of the same design. The inflators may increasing risk of a crash. recalling certain 2015-2018 CLA250 and explode due to propellant degradation is recalling CLA250 4MATIC, and 2017-2018 CLA45 occurring after long-term exposure to high General Motors LLC (GM) certain 2007-2008 Chevrolet Silverado 2500 AMG vehicles. The Occupant Classification absolute humidity, temperature and tem- and 3500 and GMC Sierra 2500 and 3500 System (OCS) may have been improperly perature cycling. vehicles equipped with non-desiccated, calibrated, which may prevent the proper Subaru of America, Inc. (Subaru) is passenger frontal air bag inflators contain- deployment of the front passenger air bag. recalling certain 2009-2013 Forester, 2003- ing phase stabilized ammonium nitrate Chrysler (FCA US LLC) is recalling certain 2006 Baja, 2004-2011 Impreza, 2004-2014 (PSAN) propellant that were used as 2020 Jeep Renegade and Fiat 500X vehicles. WRX (including STI), 2003-2014 Legacy interim remedy parts for previous Takata The right rear brake caliper could have and Outback, and 2006 Saab 9-2X vehicles recalls. These inflators may explode due to been fractured during the casting process. originally sold, or ever registered, in the propellant degradation occurring after states of Arizona, Arkansas, Delaware, Dis- long-term exposure to high absolute humid- Mazda North American Operations trict of Columbia, Illinois, Indiana, Kansas, ity, high temperatures, and high tempera- (Mazda) is recalling certain 2019-2020 Kentucky, Maryland, Missouri, Nebraska, ture cycling. Mazda3 vehicles. The Smart Brake System Nevada, New Jersey, New Mexico, North (SBS) can falsely detect an obstacle while Carolina, Ohio, Oklahoma, Pennsylvania, BMW of North America, LLC (BMW) is driving, activating the automatic emer- Tennessee, Virginia, and West Virginia or recalling certain 2008-2013 128i and 135i gency braking system and suddenly stop- “Zone B.” These vehicles had their passen- Convertibles, 128i, 135i, and M Coupes, ping the vehicle. ger frontal air bag inflators previously 2007-2010 X3 30si and X3 xDrive30i, 2013- replaced under a prior recall using inflators 2015 X1 sDrive28i, X1 xDrive28i and X1 Subaru of America, Inc. (Subaru) is of the same design. The inflators may xDrive35i, 2007-2013 328i, 328i xDrive, recalling certain 2009-2013 Forester, 2003- explode due to propellant degradation 335i, 335is, 335i xDrive and M3 Coupes, 2006 Baja, 2004-2011 Impreza, 2004-2014 occurring after long-term exposure to high 2006-2011 328i, 328xi, 328i xDrive, 325i, WRX (including STI), 2003-2014 Legacy absolute humidity, temperature and tem- 325xi, 330i, 330xi, 335i, 335xi, 335i xDrive and Outback, and 2005-2006 Saab 9-2X perature cycling. and M3, 2009-2011 335D, 2006-2012 325xi, vehicles originally sold, or ever registered, 328i, 328xi and 328i xDrive, 2010-2011 X6 in the states of Alaska, Colorado, Connecti- Nissan North America, Inc. (Nissan) is ActiveHybrid, 2007-2013 328i, 335i, 335is, cut, Idaho, Iowa, Maine, Massachusetts, recalling certain 2001-2003 Maxima, 2002- M3 Coupes, X5 30si, X5 xDrive30i, X5 Michigan, Minnesota, Montana, New Hamp- 2006 Sentra, 2002-2004 Pathfinder, 2007- xDrive35i, X5 48i, X5 xDrive48i, X5 shire, New York, North Dakota, Oregon, 2011 Versa Sedan and Versa Hatchback, xDrive50i and X5 M, 2009-2013 X5 Rhode Island, South Dakota, Utah, 2001-2004 Infiniti I30 and I35, 2002-2003 xDrive35d and 2008-2014 X6 xDrive35i, X6 Vermont, Washington, Wisconsin, and Inifiniti QX4, 2003-2008 Infiniti FX35 and xDrive50i and X6M vehicles equipped with Wyoming or “Zone C.” These vehicles had FX45 and 2006-2010 M35 and M45 vehicles. non-desiccated driver frontal air bag infla- their passenger frontal air bag inflators pre- The vehicles are equipped with non-desic- tors containing phase stabilized ammonium viously replaced under a prior recall using cated, frontal passenger air bag inflators nitrate (PSAN) that were used as interim inflators of the same design. The inflators containing phase stabilized ammonium remedy parts for previous Takata recalls. may explode due to propellant degradation nitrate (PSAN) propellant that were used as These inflators may explode due to propel- occurring after long-term exposure to high interim remedy parts for previous Takata lant degradation occurring after long-term absolute humidity, temperature and tem- recalls. These inflators may explode due to exposure to high absolute humidity, high perature cycling. propellant degradation occurring after temperatures, and high tempera- long-term exposure to high absolute humid- ture cycling. Takata Corporation (Takata) is recalling ity, high temperatures, and high tempera- certain PSPI, PSPI-2, PSPI-6, PSPI-L, SPI, ture cycling. BMW of North America, LLC (BMW) is PSDI, PSDI-4, PSDI-5, and SDI non-desic- recalling certain 2009-2012 X5 xDrive35d, cated, frontal air bag inflators containing Ferrari North America, Inc. (Ferrari) is 2008-2012 X6 xDrive35i, X6 xDrive50i and phase stabilized ammonium nitrate (PSAN) recalling certain 2009-2011 California and X6 M, 2007-2012 X5 30si, X5 xDrive30i, X5 propellant that were used as interim 2010-2011 458 Italia vehicles equipped with xDrive35i, X5 48i, X5 xDrive48i, X5 remedy parts for previous Takata recalls. non-desiccated, passenger frontal air bag xDrive50i and X5 M and 2010-2011 X6

JereBeasleyReport.com 33 ActiveHybrid vehicles equipped with non- absorb moisture, causing the inflators to xDrive vehicles. The outboard rear seat belt desiccated, passenger frontal air bag infla- rupture or the air bag cushion to pretensioners may not lock as intended tors containing phase stabilized ammonium underinflate. during a crash. nitrate (PSPI-2) propellant that were used as interim remedy parts for previous Takata Toyota Motor Engineering & Manufac- Mercedes-Benz USA, LLC. (MBUSA) is recalls. These inflators may explode due to turing (Toyota) is recalling certain 2011- recalling certain 2018 S560 and S450 vehi- propellant degradation occurring after 2019 Corolla, 2011-2013 Matrix, 2012-2018 cles. These vehicles may be equipped with long-term exposure to high absolute humid- Avalon, and 2013-2018 Avalon Hybrid vehi- front brake components (brake discs, cali- ity, high temperatures, and high tempera- cles. During certain crashes, the air bag pers, and pads) with different dimensions ture cycling. electronic control unit (ECU) may malfunc- than specified for the vehicle. tion, possibly disabling the deployment of BMW of North America, LLC (BMW) is the air bags and/or seat belt pretensioners. Autocar, LLC (Autocar) is recalling certain recalling certain 2000-2005 323iT, 325iT, 2015-2020 Xspotter vehicles. The headlamp 325xiT, 320i, 323i, 325i, 325xi, 328i, 330i Toyota Motor Engineering & Manufac- relay may disconnect from the fuse box, and 330xi and 2000-2006 323Ci, 325Ci, turing (Toyota) is recalling certain 1998- causing the headlights to shut off. 328Ci, 330Ci, M3 Coupe, 323Cic, 325Cic, 2000 RAV4, 1998-1999 RAV4 EV and Celica Autocar, LLC (Autocar) is recalling certain 330Cic, and M3 Convertible vehicles and 1997-1998 Supra vehicles. These vehi- 2013-2020 Xpeditor vehicles. The ignition equipped with non-desiccated frontal cles were equipped with Non-Azide Driver relay may fail without warning, causing the Takata PSAN inflators and PSPI passenger air bag Inflators (NADI) and do not contain vehicle to stall. frontal air bag inflators containing phase phase stabilized ammonium nitrate (PSAN) propellant. Due to a manufacturing issue, stabilized ammonium nitrate (PSAN) pro- Chrysler (FCA US LLC) is recalling certain the NADI inflators may absorb moisture, pellant that were used as interim remedy 2014-2019 Ram ProMaster vehicles causing the inflators to rupture or the air parts for previous Takata recalls. These equipped 3.6L engines. The transmission bag cushion to underinflate. inflators may explode due to propellant shifter cable may separate and disconnect degradation occurring after long-term Mitsubishi Motors North America, Inc. from the transmission, causing the vehicle exposure to high absolute humidity, high (MMNA) is recalling certain 1998-2000 to not perform shifts intended by the driver temperatures, and high tempera- Montero vehicles. These vehicles were and the gear shift lever position not match- ture cycling. equipped with Non-Azide Driver air bag ing the actual transmission gear. Isuzu Technical Center of America, Inc. Inflators (NADI) and do not contain phase (Isuzu) is recalling certain 2020 Isuzu NPR stabilized ammonium nitrate (PSAN) pro- HD, NPR XD, NQR and NRR and Chevrolet pellant. Due to a manufacturing issue, the Tire Recalls: 4500HD, 4500XD, 5500HD and 5500XD NADI inflators may absorb moisture, and 2019 Isuzu NPR HD GAS, NPR GAS and causing the inflators to rupture or the air Michelin North America, Inc. Chevrolet 4500 and Chevrolet 3500 vehi- bag cushion to underinflate. (Michelin) is recalling certain CrossCli- cles equipped with a dual mode belt mate+ tires in size 225/60R17 103V XL tires Daimler Vans USA, LLC (DVUSA) is locking mechanism seat belt assembly. Due with Department of Transportation (DOT) recalling certain 2019 Mercedes-Benz to a manufacturing issue, the seat belt date code 4618. The tires are not marked Sprinter and Freightliner Sprinter vehicles. webbing locking mechanism may not prop- with the required UTQG treadwear, trac- The lashing rails on the side walls may not erly restrain the occupant as intended. tion or temperature gradings. In addition, have been properly installed, possibly on the designated outboard sidewall and on Honda (American Honda Motor Co.) is resulting in the lashing rails detaching. the inboard sidewall, the DOT certification recalling certain 2001-2002 Acura 3.2CL, PACCAR Incorporated (PACCAR) is symbol, which precedes the TIN (Tire Iden- 2000-2003 Acura 3.5RL, 2000-2001 Acura recalling certain 2020 Kenworth T800, tification Number) has not been molded 3.2TL, Honda CR-V and Honda Odyssey, T880 and W990 and Peterbilt 348, 367, 389, into the sidewall. As such, these vehicles 2001-2002 Acura MDX and 2000 Accord 520, and 567 vehicles. The forward rear fail to comply with the requirements of Coupe, Accord Sedan, Civic Coupe, and axle output shafts may have been improp- Federal Motor Vehicle Safety Standard Civic Sedan vehicles. These vehicles may erly heat-treated during manufacturing, (FMVSS) number 139, “New Pneumatic have received a replacement driver frontal possibly resulting in the shafts fracturing. Radial Tires for Light Vehicles.” Without the air bag module as part of a vehicle repair. proper markings, the tires many not be Due to a manufacturing issue, the replace- Subaru of America, Inc. (Subaru) is used in the appropriate driving conditions, ment NADI inflator may absorb moisture, recalling certain 2016-2017 Outback vehi- increasing the risk of a crash. causing the inflator to rupture or the air cles. A replacement air bag control module bag cushion to underinflate. may have been installed that is not compati- Cooper Tire & Rubber Co. (Cooper Tire) ble with the passenger air bag module, pos- is recalling certain Cooper Evolution Tour, Honda (American Honda Motor Co.) is sibly affecting air bag deployment. Mastercraft SRT Touring, Hercules Road- recalling certain 1997-1998 Acura 2.2CL, tour 455 Sport, Starfire Solarus AS and Mas- 1998-1999 Acura 2.3CL, 1997-1999 Acura SVI Trucks is recalling certain vehicles tercraft Stratus AS tires, all in size 3.0CL, 2001 Acura 3.2CL and Acura MDX, built on 2019 Spartan Emergency Response 225/50R17 and with DOT date code 3019. 1998-2000 Honda Accord Coupe, Accord MetroStar chassis. The brake relay valve The subject tires were manufactured with Sedan, Civic Sedan, Odyssey and Acura may have an air flow restriction, which an improper sidewall component. The 3.5RL, 1999-2000 Acura 3.2TL, 1996-2000 may result in an increased stopping dis- improper sidewall component may cause Civic Coupe, 1997-2000 CR-V, 1997-1998 EV tance. As such, these vehicles fail to comply tire deflation and tread separation, increas- Plus, and 1998-1999 Isuzu Oasis vehicles. with the requirements of Federal Motor ing the risk of a crash. These vehicles were equipped with Non- Vehicle Safety Standard (FMVSS) number Azide Driver air bag Inflators (NADI) and 121, “Air Brake Systems.” Cooper Tire & Rubber Company Europe do not contain phase stabilized ammonium Ltd. (Cooper Europe) is recalling certain nitrate (PSAN) propellant. Due to a manu- BMW of North America, LLC (BMW) is Avon Cobra Chrome motorcycle tires, size facturing issue, the NADI inflators may recalling certain 2019-2020 330i and 330i 240/50R16, manufactured April 8, 2018,

34 BeasleyAllen.com through June 1, 2019 (DOT date codes inches wide. The power bank’s lithium-ion the Libbey Glass 33.5 oz. Milk Bottles. They 1418-2119). The innerliner gauge may be battery can overheat and ignite, posing fire are clear colorless glass bottles with no too thin, possibly resulting in a rapid defla- and burn hazards. markings that measure about 8½ inches in tion of the tire. Rapid tire deflation can height by 3¼ inches in width at the base. reduce vehicle control and increase the risk STIHL Recalls Pressure Washers Due to The recalled bottles can be identified by of a crash. Injury Hazard. This recall involves the their original packaging. Bottle cartons spray wand supplied with STIHL RE 90 with item number 92129 and manufactur- Michelin North America, Inc. Pressure Washers. The pressure washer is ing dates of either Aug. 15, 2019, or Aug. 31, (Michelin) is recalling certain CrossCli- gray and orange with “STIHL RE 90” 2019. If your establishment received these mate+ tires in size 225/60R17 103V XL tires printed on the front. The recalled spray bottles after Aug. 15, 2019, contact your dis- with DOT date code 4618. The tires are not wand measures 15 inches long and attaches tributor to determine if you received marked with the required UTQG tread- to the spray gun. Interchangeable nozzles affected bottles. The bottles can break wear, traction or temperature gradings. In connect to the spray wand. The pressure unexpectedly during use, posing a lacera- addition, on the designated outboard side- washer nozzle can disconnect from the tion hazard. wall and on the inboard sidewall, the DOT spray wand when under pressure during certification symbol, which precedes the use, posing an injury hazard. Thesaurus Global Marketing Recalls TIN (Tire Identification Number) has not Tricycles Due to Violation of the been molded into the sidewall. As such, Varidesk Recalls Stand2Learn Stools Federal Lead Paint Ban; Risk of Poison- these vehicles fail to comply with the Due to Fall Hazard. This recall involves ing; Sold Exclusively at Amazon.com requirements of Federal Motor Vehicle adjustable-height stools designed for stu- (Recall Alert). This recall involves Little Safety Standard (FMVSS) number 139, “New dents of any age. The height ranges from 19 Bambino 4 in 1 canopy children’s tricycles. Pneumatic Radial Tires for Light Vehicles.” to 33 inches. The gray steel stools have a The three-wheeled tricycles can be used as black padded seat, four stabilizing cross- a push stroller or a push, training and bars supporting the legs and adjustable classic tricycle. They were sold in blue, footpads for leveling. The model number pink or red and have a back handle, an Other Consumer Recalls: 42058 is located underneath the seat, and elongated back rest, a basket, a canopy and the UPC code is 8-13866-02360-7 is printed a bell on the front handle. The Little Four infant incline sleepers recalled on the packaging. The foot support on the due to suffocation risk. The federal Con- Bambino logo is on the front of the tricycle. stool was improperly welded and can Model BW204 and UPC code sumer Product Safety Commission (CPSC) break, posing a fall hazard to consumers. along with four different companies have 653981740030, 653981740092, recalled more than 165,000 infant incline Baby Trend Recalls Tango Mini Stroll- 653981740108, 656857123326, sleepers due to risk of suffocation. The ers Due to Fall Hazard. This recall 656857123333 or 656857123340 can be companies impacted by the recall include; involves four models of black Tango Mini found on the product packaging. Paint on Summer Infant, Graco, Delta Enterprises Strollers, each with its own model number the canopy’s frame contains levels of lead Corp, and Evenflo. The recalled products and identifiable by a uniquely colored that exceed the federal lead paint ban and include the following; Summer Infant’s bonnet top sold in Quartz Pink (Model tricycle components contain levels of lead SwaddleMe By Your Bed Sleeper, Model Number ST31D09A), Sedona Gray (Model that exceed the federal lead content ban. number 91394; Graco Little Lounger Number ST31D10A), Jet Black (Model Lead is toxic if ingested by young children Rocking Seat, Model numbers; 1872034, Number ST31D11A), and Purest Blue and can cause adverse health issues. 1875063, 1875102, 1877160, 1882081, (Model Number ST31D03A). Model Boston Warehouse Trading Corp. 1896313, 1908957, 1914283, 2047734 and numbers are printed in black on a white Recalls Holiday Travel Mugs Due to Fire 1922809; Delta Enterprise Corp. Deluxe sticker located on one of the stroller’s legs. Hazard; Sold Exclusively at Meijer Incline Sleeper, Model numbers; 27404- Both of the stroller’s hinge joints can Stores. This recall involves Holiday Travel 2255, 27404-437, 27404-758, and 27404-942; release and collapse under pressure, posing mugs with lids. They have a decal with “Let and Evenflo Pillo Portable Napper, Model a fall hazard to children in the stroller. it Snow” or “Merry and Bright” in gold number 12132125. At this time no injuries metallic lettering. The bottom portion of or deaths have been reported with the The Thompson’s Company Recalls Aerosol Waterproofing Wood and the mugs is red or green and the top half current recall, according to the CPSC. The portion is white. The lids are black. They agency urges consumers to immediately Masonry Protectors Due to Fire Hazard. This recall involves Thompson’s WaterSeal measure 7 inches tall. “Microwave safe” is stop using the products and contact the written on the backstamp under the glaze specific companies for refund options. The waterproofing wood and masonry protec- tors in aerosol cans. The products are used and on the wrap band. The mugs are misla- products included in the recall were sold beled as microwave safe. If microwaved, nationwide online through merchant web- to coat exterior wood to prevent water damage. The aerosol cans are 11 ounces the metallic print on the mug can spark, sites including Amazon and at various retail posing a fire hazard. stores including Target and Walmart. The and have a green or blue cap. “Thompson’s Graco Little Lounger Rocking Seat was also WaterSeal,” “Wood Protector” or “Masonry As you can see, there have been a large sold in Mexico. Protector,” the item number and UPC code number of recalls since the last issue. We are printed on the can. The contents of the included many of them in this issue. Those PCNA Recalls Power Banks Due to Fire cans can react with the package, causing we felt to be of the highest importance and and Burn Hazards—This recall involves rust to form along the can seam, which urgency are included. If you need more the Spare Power Bank used to charge elec- could spread to other areas of the can and information on any of the recalls listed tronic devices. They have a 10,000 mAh create pinhole leaks. Leaking propellant above, visit our firm’s web site at BeasleyAl- Grade A lithium ion battery, LED indicator poses a fire hazard when it comes into len.com. We would also like to know if we lights, and a flashlight. The power banks contact with sources of ignition. Leaking have missed any significant recall that are white and are decorated with various sealer can also result in property damage. involves a safety issue. If so, please let us logos. PO number 1813582 is printed on the know. As indicated at the outset, you can back of the power bank. The power banks Libbey Glass Recalls Milk Bottles Due to Laceration Hazard. This recall involves contact Shanna Malone at Shanna.Malone@ measure about 5 1/2 inches long by 2 1/2 beasleyallen.com for more recall informa-

JereBeasleyReport.com 35 tion or to supply us with information that is planning a firm event or helping By Design: Reconciling the AEMLD’s on recalls. someone with an insurance question. ‘Mixed’ Design-Defect Approach,” was also Working for a company that makes such a published in Volume 8, Issue 2 of the difference in our community brings me so Faulkner Law Review. Ryan also authored much joy and I am thankful to be here.” pieces on the opioid litigation and FDA clin- XXVII. Mary is another hard worker who is dedi- ical trials for the Petrie-Flom Center for cated to her work. Taking care of Beasley Health Law Policy, Biotechnology, and Bio- FIRM ACTIVITIES Allen employees requires both hard work ethics at Harvard Law School. and a dedicated effort. We are blessed to Ryan is a member of the Alabama State have Mary with us. Bar, where he currently serves as Co-Chair Employee Spotlights of the Membership Relations Task Force RYAN DUPLECHIN and as a member of the Executive Commit- LINDA BELL Ryan Duplechin, a lawyer in our firm’s tee of the Young Lawyers Section. He is Linda Bell, a Staff Assistant in our Toxic Mass Torts Section, started in the Section as also a member of the Montgomery County Torts Section, has been with the firm for a a law clerk in 2015. He was hired as a Bar Association Young Lawyers Section, little more than a year. Her duties are lawyer in 2017. Ryan primarily focuses on American Association for Justice where he related to Roundup litigation where she cases involving high-viscosity bone serves on the Publications Committee for works with the back-office team providing cements, which are causing early revision the New Lawyers Division, Alabama Associ- whatever assistance is needed. surgeries due to mechanical loosening. ation for Justice, the Montgomery Volunteer Linda grew up in a large family in Ramer, Ryan also works on cases involving defec- Lawyers Program and the American Inns of Alabama. Her father’s hand is replicated in tive dietary supplements. Ryan says: Court, Hugh Maddox Chapter. gold and on display at the Rosa Parks Ryan is also active in his community. He I’ve wanted to be an attorney since I Museum as part of Hands Uplifted for was a volunteer coach of the Saint James was 11 years old. Back then, I wanted Freedom and Justice. Mr. Charlie “Pete” Bell School trial team. His team competed in the to become an attorney because I received that honor for being one of the YMCA Youth Judicial, a statewide high wanted to be like my dad. As I first African American Voters in Montgom- school mock trial competition held at the matured, I realized I wanted to ery County, as well as being a leader of the Federal Courthouse in Montgomery. He is become a lawyer to bring hope to Montgomery Improvement Association. also a member of the YMCA Boys Work people who desperately need help. In Linda’s spare time, she enjoys spend- Committee, which is a group of young pro- ing time with family and close friends, The Florida State University grad finished fessionals in Montgomery who raise money baking and gardening. When asked what his undergraduate work in only two-and-a- for youth football. her favorite thing is about working at half years at the age of 20. While at Florida Ryan says the environment of selfless- Beasley Allen, Linda said, “it is the opportu- State, Ryan was selected to multiple ness fostered at Beasley Allen along with nity to learn and grow in my second career national academic honor organizations and the common goal of doing the right thing is field. After decades of work in all facets of was a member of Kappa Alpha Order. what he believes sets the firm apart. the Broadcasting Industry, I have switched Ryan received his Juris Doctor with Ryan enjoys spending time with his gears and this is an important step. I also Honors from Faulkner University’s Thomas family and friends, playing golf and visiting appreciate Jere Beasley for his daily emails Goode Jones School of Law. During law the beaches of the Florida panhandle. bringing our attention and focus back to school, Ryan served as Associate Editor of Ryan is a very good lawyer who has a Jesus Christ.” the Faulkner Law Review and was elected bright future with the firm. He is dedicated Linda is a hard-working employee who is twice as President of the Alabama Young to the rule of law and to seeing that people dedicated to helping clients receive justice. Lawyers Student Division. He also served as receive justice. We are fortunate to have We are blessed to have Linda with the firm. Senator-at-Large in the Student Bar Associa- Ryan at Beasley Allen. tion. As a member of the Board of Advo- MARY CAUSEY cates, Ryan was selected to the Capitol City CARA MORALES Mary Causey, who has been with the National Trial Team and competed in Wash- Cara Morales has been with the firm firm since August 2018, works in the HR/IT ington, D.C. since May 2017. She is a Legal Assistant in Section as a HR/IT Analyst. She facilitates Ryan says there are many aspects of prac- the Mass Torts Section and currently is New Hire Training, assists with Employee ticing law that he enjoys. He loves that working on Talcum Powder Extremis cases. Giveaways, plans firm events and assists IT practicing law is challenging and requires Cara says that she is driven to work hard on Personnel with various projects. lawyers to step out of their comfort zones. behalf of the women who have battled Mary and her husband Adam have been He explained that every day teaches him cancer because they have been through married for 14 years and have a daughter, more than she can imagine. nd something new and he appreciates how Abby James (8) who is in the 2 Grade at “the law continues to evolve” which, he Cara has a daughter, Joni, and a son, Pike Road School. They also have a 1-year- says, “invites new ideas and perspectives.” Matthew. Joni lives in Montgomery and has old Maltipoo named Cricket. Ryan has authored several publications been with Montgomery Foot Care Special- Mary’s family attends Century Church in that have been cited in legal treatises and ists for 14 years. Matthew is a student at the Pike Road where you can find her leading other national law journals, including University of South Alabama where he is Welcoming Ministry Teams as well as co- American Law of Products Liability, Owen studying to become a psychologist. leading a Life Group. Mary loves reading, & Davis on Products Liability, University of Cara says she enjoys spending time with traveling and hanging out with family and Kansas Law Review, Kentucky Law Journal, family and friends and is an avid dog lover. neighbors who are like family. and NYU Law Review. Cara says, “as I have gotten older, I realize When asked what her favorite thing is Ryan is the author of “The Emerging how fortunate we are to share our lives about working at Beasley Allen, Mary says, Intersection of Products Liability, Cyberse- with those dearest to us, and I take advan- “I love working with people, so interacting curity, and Autonomous Vehicles,” pub- tage of every opportunity to spend time with our employees brings me a lot of joy. I lished by the University of Tennessee with my loved ones.” also enjoy how diverse my job is and the College of Law in Volume 85 of the Tennes- When asked what her favorite thing is different hats that I get to wear whether see Law Review. His work titled “Divided about working at Beasley Allen, Cara says,

36 BeasleyAllen.com “my favorite thing about working at Beasley Beasley Allen Names Three New Principals and whistleblower claims. He cur- Allen is the people. Although we come rently serves as the President-Elect of from different walks of life, we share the Three Beasley Allen lawyers have the Alabama Lawyers Association. same objective that allows us to work well recently become principals in the firm. Our Leon is also an executive board in unison.” firm’s Managing Attorney Tom Methvin member for the Capital City Bar Asso- Cara is another talented, hard-working says: “These attorneys have demonstrated ciation and a member of the Alabama employee who is dedicated to assisting our excellence in their commitment to the firm State Bar and the Montgomery County clients receive justice. We are fortunate to and its work. We are thankful for their hard Bar Association. Leon was recently have her with the firm. work and dedication to pursuing justice selected for the Alabama State Bar’s and demanding accountability on behalf of Leadership Forum Class 15. He our clients.” I was asked recently by a friend attended Alabama A&M University and to explain exactly what a “principal” is at Samford University’s Cumberland XXVIII. Beasley Allen. I told my friend it’s not like School of Law. being the principal of a high school. SPECIAL Instead, it indicates ownership in the firm by an individual lawyer. The new Beasley RECOGNITIONS Tyner Helms Becomes A Beasley Allen Allen principals are Liz Eiland, Jennifer Emmel and Leon Hampton Jr. Associate

Larry Golston Installed As 91st President Beasley Allen also named a new associate Liz Eiland Of Montgomery County Bar Association in January. The firm named Tyner Helms, a Liz Eiland joined the firm’s Mass Torts lawyer in our Consumer Fraud & Commer- Larry Golston, a lawyer in our firm’s Con- Section in 2012. She is currently han- cial Litigation Section, as a new Associate in sumer Fraud & Commercial Litigation dling cases for individuals harmed by the firm. st Section, has become the 91 President of opioids, including infant clients born the Montgomery County Bar Association with neonatal abstinence syndrome Tyner Helms (MCBA). He joins Tom Methvin (the firm’s (NAS) and other opioid-related compli- Tyner joined Beasley Allen in October managing attorney) and Kendall Dunson cations. Liz was recently named by 2017. His work in the Section primarily who also served in this important position. The National Trial Lawyers to the involves handling litigation related to Larry is also the second African American Alabama Top 40 Under 40 and was Fiat Chrysler emission cheating soft- to hold the office of President, Kendall selected for the Alabama State Bar’s ware and class action litigation against being the first. Leadership Forum Class 15. She is a Voya Financial. Tyner is a member of Larry previously served as President of member of the Alabama State Bar, the the Southeast Alabama Area Health both the Alabama Lawyers Association and Montgomery County Bar Association Education Board and he is a mentor for the Capital City Bar Association. He is also and the Alabama Association for Flowers Elementary School in Mont- the former chairman of the Adams-Shores Justice. Liz attended Troy University gomery. Tyner attended Auburn Uni- Caucus of the Alabama Association for and Samford University’s Cumberland versity and the University of Alabama Justice and is a member of the Federal Bar School of Law. Association. School of Law. He has a bright future at Beasley Allen, and we are fortunate As his first official act, Larry rolled out Jennifer Emmel the MCBA Board of Directors’ agenda for to have him with us. the upcoming year. The theme for the year Jennifer Emmel joined us in 2013 is “equipped to serve” and will focus on and primarily focuses on cases consoli- equipping the members of the bar with dated in multidistrict litigation (MDL) tools, resources and information they will in New Jersey federal court involving XXIX. need to serve the public, improve the inter- the link between talcum powder and FAVORITE BIBLE est of justice and increase the public’s ovarian cancer. She is a member of our understanding of and respect for the rule of Mass Torts Section. Jennifer is active in VERSES law. Larry explained that the group plans to the American Association for Justice engage in several initiatives to help prepare and serves on Southeast Alabama Area its members to be successful in those areas. Health Education Center’s (AHEC) My friend Cecil Spear furnished one of Larry also serves on the Board of Direc- Board of Directors. Jennifer also volun- his favorite verses this month. Cecil, an tors for the Montgomery YMCA-Bell Road teers for the Alabama State Bar as well Auburn University graduate, is an engineer. Branch and regularly serves as a volunteer as the Montgomery County Volunteer He was an owner of a highly successful head coach for youth football and youth Lawyers Program. She attended the Montgomery-based Steel Fabrication basketball with the YMCA. Additionally, he University of Wisconsin, University of Company, which was sold to Trinity Indus- volunteers his time to speak to high school South Carolina School of Medicine and tries. Cecil is now retired and enjoying and middle school students about the law, Gonzaga University School of Law. living in Auburn. the importance of getting a good post-sec- Jesus Christ is the same yesterday, ondary education, and the importance of Leon Hampton Jr. today, and forever. Hebrews 13:8 the judicial branch of government. The Bir- mingham, Alabama, native attended the Leon Hampton Jr. first joined Beasley Kristi Smith, a Legal Assistant in our University of Alabama and the University of Allen while in law school, working as Toxic Torts Section, supplied Joshua 1:9 for Alabama School of Law. Larry is a talented a law clerk. He is now in the firm’s this issue. Krisi says this verse truly helps lawyer who works hard to see that his Consumer Fraud & Commercial Litiga- her anytime she is overwhelmed whether it clients receive justice. He will do an out- tion Section having joined the Section is a health scare, worry or just life in standing job in his role as president of in August 2017. Currently, Leon is general. Kristi says she reminds herself that the MCBA. working on class action, employment God loves her and has created her in his

JereBeasleyReport.com 37 image to be strong and courageous and to cient mental health services, an incon- They can’t afford to fail to act, must do so lean on his protection always. She says God sistent education system, an in a timely and meaningful manner. is with her always and that Joshua 1:9 was underfunded state police program, It’s easy to identify the problems facing also her Dad’s favorite verse. and the lack of adequate revenue to Alabama, but it will take courage to do that address these issues. I may sound like a which is required to fix them. Our leaders Have I not commanded you? Be broken record at this point, because I must make some tough but necessary deci- strong and courageous. Do not be have been talking and writing about sions, in order to get the job done. Gov. Kay afraid; do not be discouraged, for the many of these issues for over forty Ivey has the desire, as well as the courage, LORD your God will be with you years. The difference: I now have hope required. This governor’s experience, wherever you go.” Joshua 1:9 that we may do something to finally knowledge, and talent will enable her to Brent Waren in our firm’s Technology fix these problems. tackle and solve our state’s problems. I Department sent in his favorite verse. He believe Gov. Ivey will act decisively with I have this hope because of our strong conviction. I also believe the leadership in says this verse has stuck with him for years current leadership. We have a gover- and years. Brent says: “I’ve loved this one the House and Senate will follow the gover- nor who, as I pointed out last month, nor’s lead. Hopefully, the people of since I first read it. When we delight our- has already taken bold steps to address selves in the Lord or pursue the Lord and Alabama will get actively involved and let our infrastructure problems and seems our political leaders know that they must His teachings over and above everything poised to go even further in address- else we find great peace, joy, comfort and move Alabama forward without delay so ing Alabama’s long-standing problems. that our state can reach its fullest potential. character (just to name a few) in our lives.” Governor Kay Ivey is not scared to Source: The Advisor Delight yourself in the LORD and He make the tough decisions that will shall give you the desires of your help to improve the state of Alabama. heart. Psalms 37:4 Lieutenant Governor Will Ainsworth is Our Monthly Reminders Ryan Kral, a Beasley Allen lawyer, sent in determined to transform a somewhat Luke 14:11 as his favorite verse. He says “no powerless office into a platform to If my people, who are called by my matter our profession, our upbringing, or bring about change to the state. The name, will humble themselves and with whom we associate, we are all human President Pro Tem of the Senate, Del pray and seek my face and turn from beings. Humility is one of the most impor- Marsh, is a seasoned leader with the their wicked ways, then will I hear tant virtues one can exhibit—it grounds us skills and experience needed to navi- from heaven and will forgive their and reminds us that no accomplishment is gate passing controversial legislation sin and will heal their land. so great as to put us on a higher pedestal in the Senate. The Speaker of the House, Mac McCutcheon, uses his than our fellow brothers and sisters in 2 Chron 7:14 Christ. This verse exhibits that beautifully.” experience as a hostage negotiator to lead the 105 members in the House For he who exalts himself will be from diverse and opposed ways of All that is necessary for the triumph humbled, and he who humbles thinking to points of common ground. of evil is that good men do nothing. himself will be exalted. Luke 14:11 There are many others in both the House and Senate that have exhibited Edmund Burke great leadership in working towards the betterment of the state. Woe to those who decree unrighteous decrees, Who write misfortune, Alabama has had great leaders in XXX. Which they have prescribed. To rob various positions in the past, but this is the needy of justice, And to take what CLOSING the first time we have had so many is right from the poor of My people, leaders that are all working together. I OBSERVATIONS That widows may be their prey, And encourage these leaders to keep that they may rob the fatherless. moving forward. Work together to find ways to raise the revenue to fix Ala- Isaiah 10:1-2 Words Of Wisdom From Dr. David G. bama’s broken systems. Bronner But, the work does not rest solely with I am still determined to be cheerful Dr. David G. Bronner, the Chief Execu- Alabama’s political leaders. We the and happy, in whatever situation I tive Officer of Retirement Systems of people must get involved as well. Do may be; for I have also learned from Alabama, wrote an excellent piece for the what is necessary to support these experience that the greater part of latest issue of The Advisor. David is one of leaders as they make the tough deci- our happiness or misery depends the most knowledgeable persons around sions necessary to better our great upon our dispositions, and not upon when it comes to the State of Alabama’s state, the great state of Alabama. It is our circumstances. problems, as well as the state’s potential. time to stop talking about our state’s For the edification of our readers I will set great potential, and attack the “historic Martha Washington (1732—1802) out below what David had to say old problems” of our state. about 2020. The only title in our Democracy supe- I am in full agreement with David’s rior to that of President is the title assessment relating to the problems facing 2020: A Chance For Meaningful of Citizen. Alabama and of the state’s vast potential. I Change also agree that our current political leaders Louis Brandeis, 1937 Alabama is a great state, but we have must face up to the problems and then take U.S. Supreme Court Justice long ignored many problems facing the steps necessary to solve the problems our state, such as failing prisons, defi- that have largely been ignored for years.

38 BeasleyAllen.com Injustice anywhere is a threat to The ‘Machine politicians’ have shown Times article on the 50th anniversary of his justice everywhere. their colors..I feel sorry for the death. The Times asked readers who were country however as it shows the alive at the time of King’s assignation to There comes a time when one must power of partisan politicians who recall what they remember. The memories take a position that is neither safe think of nothing higher than their were mixed: nor politic nor popular, but he must own interests, and I feel for your take it because his conscience tells future. We cannot stand so corrupt a “As a young white woman living in him it is right. government for any great the South when Dr. King was assassi- length of time.” nated, I saw glee, satisfaction and The ultimate tragedy is not the weeping in equal parts. He caused oppression and cruelty by the bad Theodore Roosevelt Sr., Decem- my blind eyes to see.”— Ina McDon- people but the silence over that by the ber 16, 1877 ald, Houston good people. “I was a freshman and in the Phi Mu Martin Luther King, Jr. “The opposite of poverty is not sorority suite at Memphis State when wealth; the opposite of poverty I heard it on the radio. Some girls The dictionary is the only place that is justice.” walked into the room talking and success comes before work. Hard Bryan Stevenson, 2019 laughing about it. I remember cars work is the price we must pay for honking and a general feeling of cele- success. I think you can accomplish bration around me. I felt bad but anything if you’re willing to pay was too stupid and gutless to speak the price. up”. —Martha Asbury Wilson, XXXI. Memphis Vincent Lombardi PARTING WORDS More than a half-century later, Dr. King, from Heaven, knows the impact of the Kindness is a language which the work he sacrificed his life for. In Montgom- deaf can hear and the blind can see. ery, where our firm’s home office is Reflections On The Rev. Dr. Martin Mark Twain (1835-1910) located, this man’s legacy feels very close. It Luther King was here that Dr. King preached at a church in shouting distance of the Alabama Alabama and much of the nation cele- “I see in the near future a crisis State Capitol, working in peaceful protest brated Martin Luther King Day last month. approaching that unnerves me and of Jim Crow laws and the inhumanity of Having been around during the years when causes me to tremble for the safety of segregation. We are reminded every day of Dr. King was doing his good and badly my country....corporations have been the sacrifices made by Dr. King—and so needed work. I saw firsthand public reac- enthroned and an era of corruption many others who worked with him side-by- tions to this great man. Sadly, the reactions in high places will follow, and the side—in a quest for equality. Today, we are during those days in Alabama and other money power of the country will badly divided in America. Racism has parts of the country were mixed. endeavor to prolong its reign by reared its ugly head again and that has The Rev. Dr. Martin Luther King is, no working upon the prejudices of the become a serious problem in our country. doubt, looked back upon as a courageous people until all wealth is aggregated I pray that as Americans we will continue leader and a national hero who pushed in a few hands and the Republic is to push against “the current” and promote against “the current” to bring about badly destroyed.” positive change for our fellow Americans needed change in the treatment of African regardless of their race, gender, religion, U.S. President Abraham Lincoln, American citizens. According to a 1966 nationality, or sexuality. I fear our nation is Nov. 21, 1864 Gallup poll, only a third of Americans at a turning point of division. In remember- viewed Dr. King in a positive light. Sadly, ing Dr. King, we must also understand that there were many resistors to the change he In his December 1902 State of the we are together what makes this country was promoting. Union address, Theodore Roosevelt great—free, diverse, one nation under God. When Dr. King was gunned down that said of corporations: “We are not Source: New York Times hostile to them; we are merely deter- fateful day of April 4, 1968, on the second- mined that they shall be so handled floor balcony of the Lorraine Motel in as to subserve the public good. We Memphis, Tennessee, by James Earl Ray, draw the line against misconduct, America reacted with “Glee, Satisfaction not against wealth.” and Weeping,” according to a New York

To view this publication on-line, add or change an address, or contact us about this publication, please visit our Website: BeasleyAllen.com

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

JereBeasleyReport.com 39 218 COMMERCE STREET (36104) Presorted Standard POST OFFICE BOX 4160 U.S. Postage MONTGOMERY, ALABAMA 36103-4160 PAID Montgomery, AL TOLL FREE 1 (800) 898-2034 Permit No. 275 BEASLEYALLEN.COM

CHANGE SERVICE REQUESTED

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.