JERE BEASLEY REPORT December 2018 I. network and build relationships for The Sadie Grace Andrews Law everyone’s success. This year’s event CAPITOL offered fresh insights for the A new law requiring all restaurants and Alabama legal community with a commercial food establishments to have OBSERVATIONS focus on case and trial preparation safety features on their accessible outdoor and legal marketing tips for private grease traps to prevent injury or death is practice lawyers. now in effect. Food service establishments Beasley Allen Legal Conference that do not comply face daily mone- I discussed in a question and answer tary fines. Beasley Allen held its 12th annual Legal setting the important role lawyers play in The law, called the Sadie Grace Andrews Conference & Expo at the Renaissance improving society and protecting consum- Act, is named for the 3-year-old daughter of Montgomery Hotel & Spa at the Conven- ers. Special guest speakers included the Corrie and Tracy Andrews, of Auburn, tion Center last month. More than 1,600 Honorable Keith Watkins, Chief Judge, Alabama, who died October 2017 after Alabama lawyers in private practice regis- Middle District of Alabama; Retirement falling into a grease trap located in a grassy tered for the event. These lawyers learned Systems of Alabama CEO Dr. David picnic area outside Bruster’s Real Ice about cases our lawyers have successfully Bronner; and Alabama State Bar General Cream in Auburn. As Sadie Grace ran litigated over the past year. In addition Counsel Roman Shaul. across the grass, she stepped on the cover- there were presentations on a number of Attendees also visited with more than 20 ing of a hidden grease trap and fell into the emerging legal issues. The event also fea- of the nation’s top legal service providers 6-foot-deep, inground grease-filled pit. The tured a step-by-step explanation of the along with this year’s platinum sponsors, firm’s talc litigation against Johnson & Jackson Thornton Valuation and Litigation Johnson on behalf of women who develop Consulting Group, Physician Life Care IN THIS ISSUE Planning, Freedom Reporting, Inc., and ovarian cancer after using the company’s I. Capitol Observations...... 2 talc products. Baker Reporting. Representatives from other legal and community groups, includ- The trial-track presentation of an actual II. Automobile News Of Note...... 3 talc case helps reinforce takeaways for ing the Alabama State Bar and the Alabama conference participants. Last year, attend- Association for Justice, were on hand to III. Opioid Litigation...... 5 ees were taken through the steps of pre- offer attendees information about how paring for and litigating a products liability their organizations assist Alabama lawyers. IV. The Talc Litigation...... 6 case that resulted in a severe disabling Dawn Hathcock, Vice President, Desti- injury. Beasley Allen lawyer Leigh O’Dell, nation & Brand Development for the Mont- V. Purely Political News & Views. . . . .7 who is helping lead the talc litigation for gomery Area Chamber of Commerce had the firm’s Mass Torts Section, had this to say about the conference: VI. Court Watch...... 7 this to say: It is an honor to once again welcome VII. The National Scene...... 8 The success of the 2017 case review lawyers from across Alabama to reinforced the notion that attorneys Montgomery for the Beasley Allen VIII. Whistleblower Litigation ...... 10 Legal Conference. The Beasley Allen want real-world examples to take IX. Product Liability Update ...... 12 with them. We are excited to bring Legal Conference entertains around 1,500 lawyers from all over the state the latest in mass torts litigation to X. Mass Torts Update...... 14 our attendees and do not take lightly and each guest has an opportunity the opportunity to serve as a to see what Montgomery has to offer XI. Premises Liability Update...... 17 resource for our colleagues across as a destination, translating into the state in this area of litigation as return visits for vacations, events or XII. Workplace Hazards...... 17 well as the others we addressed additional meetings. An added this week. benefit of the state’s largest legal con- XIII. Transportation Litigation...... 18 ference being held in Montgomery is The November event is the largest of its that it provides a huge economic XIV. Toxic Tort Litigation Concerns. . . . 20 kind in the state and one of the top five impact in the River Region estimated legal conferences in the country. It offered to be roughly a million dollars. XV. Update On Nursing Home Litigation . .22 eight hours of free Continuing Legal Edu- cation (CLE) credit certified by the I wish all American citizens could have XVI. An Update On Class Action Litigation. .22 Alabama State Bar. As with years past, the heard Judge Watkins discuss the impor- XVII. The Consumer Corner...... 25 conference topics emphasized emerging tance of the rule of law in our country. He did a tremendous job. Dr. Bronner dis- areas of litigation and practice areas that XVIII. Cases Being Litigated in are crucial to trial lawyers’ success in cussed our country’s economic future and Beasley Allen Sections...... 26 obtaining justice for their clients. Practice as usual he gave great insight into what we are facing. We were truly blessed to have areas include Product Liability, Business XIX. Recalls Update...... 31 Litigation, Consumer Fraud, Toxic Torts, had these two “giants” on the program. and Medical Device and Drug litigation, as We look forward to next year’s confer- XX. Firm Activities...... 34 well as Legal Ethics. Beasley Allen lawyer ence. Each year I learn a great deal about Gibson Vance had this to say: “how to be a trial lawyer” and hopefully XXI. Special Recognitions...... 36 others feel the same way. I also want to We are excited to extend the opportu- thank all of the lawyers and employees XXII. Favorite Bible Verses...... 37 nity for fellow Alabama attorneys who played a role in making this confer- another year. It is important to not ence the best one so far. XXIII. Closing Observations...... 38 only share experiences but also XXIV. Parting Words...... 39

2 BeasleyAllen.com cover flipped back on top of the opening, The law went into effect June 1, 2018, Florida Man Sues Tesla Over Injuries concealing her body inside the trap. After but all restaurants and commercial food Sustained In Autopilot Crash a thorough search, her father discovered establishments had until Dec. 1, 2018 to be the pit’s overturned cover and found her in compliance. A Florida man who suffered severe spine body inside. Resuscitation efforts were Sources: Montgomery Advertiser, AL.com, Auburn and brain injuries when his Tesla Model S unsuccessful. Plainsman and OA News car crashed into a disabled vehicle at Senator Tom Whatley and Representa- highway speeds is suing the electric car tive Joe Lovvorn, both of Auburn, spon- maker. It’s alleged that the car’s autopilot sored the bill to require food feature lulls drivers into a false sense establishments to have a lock or security II. of security. mechanism and be heavy enough to Shawn Hudson, a resident of Winter prevent accidental opening or intrusion. In AUTOMOBILE Park, Florida, alleges in his lawsuit that April, with the Andrews family standing NEWS OF NOTE Tesla misleads its customers into thinking beside her, Governor Kay Ivey signed the they can rely on the autopilot system with bill into law. minimal driver input. It’s alleged: Grease traps are used by many food service establishments to collect used Young Boy Burned To Death In Car Crash Through a pervasive national mar- grease and solids products during cooking. keting campaign and a purposefully The mother of a teenager who burned to They are inspected by the city to ensure manipulative sales pitch, Tesla has death in a fiery car wreck in 2016 has filed that they are regularly emptied in order to duped consumers … into believing a wrongful death lawsuit against General prevent clogs in the city’s wastewater that the autopilot system it offers Motors (GM), saying the car was defective. system. Now the traps will also be checked with Tesla vehicles at additional cost Anthony Dunlap was killed after the 2006 to ensure restaurants are following the can safely transport passengers at Chevrolet Impala he was driving hit a curb new safety standards established by the highway speeds with minimal input and the base of a traffic sign before over- Sadie Grace Andrews Act. Among these and oversight from those passengers. turning and catching on fire. He burned to provisions are: death in the car. The suit, filed in Jackson At first skeptical of the Tesla dealership’s • All restaurants and commercial food County Circuit Court by Terri Dunlap, the claims that the car could essentially drive establishments that have accessible mother, alleges that the car was defectively itself, Mr. Hudson says he was convinced outdoor grease traps must have lids that designed and manufactured. of the car’s autonomous and crash-avoid- can withstand loads from traffic and are It was further alleged in the suit that ance capabilities after driving a loaner car inaccessible to children; those defects, “created a high probability the dealership provided to him one that in the event of a crash that flammable weekend. He paid $5,000 for the autopi- • The manhole covers on the grease traps materials from the engine compartment lot upgrade. must be constructed of materials that would spread to the passenger compart- Mr. Hudson was driving on Oct. 12 on will hold up to heavy traffic AND be ment causing death or injury, or in the the Florida Turnpike when, without stop- locked, bolted, heavy enough or other- alternative such spread would happen ping or slowing down, his Tesla Model S wise secured to prevent unauthor- much faster eliminating or reducing the slammed into a broken-down Ford Fiesta in ized access; chance of occupants to escape before the left lane. The Model S was traveling burning.” about 80 mph at the point of impact. The manhole covers must be secured at Derek Potts, the lawyer representing the It’s claimed in the lawsuit that Tesla’s all times. During routine health inspec- family, in a written statement, had autopilot has defective traffic awareness tions, the inspector will check the grease this to say: features, but that the real danger is hidden trap lid to ensure it is secure. in the way the company describes its auto- Earlier this year, Beasley Allen lawyers J. Unfortunately, this case is yet pilot system as extra driver assistance Cole Portis, Greg Allen and Jere Beasley another example of a dangerously intended as a safety backup. However, filed a lawsuit in Lee County Circuit Court defective and unsafe vehicle on our Tesla then sells it to drivers as more of a on behalf of the Andrews family, alleging roadways. A driver of a motor “self-driving feature.” the toddler’s tragic death occurred vehicle should not survive an auto Mr. Hudson’s complaint echoes a because the grease trap was not properly accident and then burn to death number of other cases alleging Tesla’s auto- constructed or maintained. Further, the after the fact. pilot led cars into collisions. In his com- grease trap’s lid was unreasonably danger- plaint, he blames Tesla for strict liability, Greg Allen and Graham Esdale in our ous and defective. Cole has this to say: negligence, breach of implied warranty, firm have handled a number of similar misrepresentation, misleading advertising, The Andrews family is a remarkable cases. Unfortunately, car crashes result in and violation of Florida’s Deceptive and family with a deep and abiding faith fires that in all too many cases kill occu- Unfair Trade Practices Act. There is also a in God. Corrie and Tracy Andrews pants of the vehicle. The failure to have a negligence claim in the complaint against care about others. They are pleased “firewall” between the engine and passen- Oscar Gonzalez-Bustamante for allegedly that this bill was signed into law and ger compartments is a major safety defect failing to perform his duty to remove his expect the lives of many will be that presents severe safety problems. disabled car from the left travel lane before saved. Sadie Grace Andrews died Source: Kansas City Star the Hudson car crashed into it. needlessly, but her death will not be There have been other incidents involv- in vain. Already, many lives have ing Tesla. The following are some of them: been impacted by the faithful testi- mony of the Andrews family. The • A deadly incident involving a 2017 Tesla lawsuit was filed to ensure other Model X in March on a Califor- children do not needlessly die. nia highway.

JereBeasleyReport.com 3 • A fatal 2016 crash outside Williston, asked the Dallas County court to reduce The consolidated complaint alleges that Florida, in September. the punitive damages part of the $242 the primary chain (the timing chain) in million award in order to stay within the BMW’s vehicles had a plastic guide assem- • A woman sued the company in a Utah state’s damages cap. The Reavis family bly made mostly of a defective polycarbon- state court after she rear-ended stopped asked for the rest of the jury’s decision to ate composition that becomes brittle and traffic while operating a 2016 Model S in remain intact and Judge Tillery upheld it. It breaks apart, lodging in the crankshaft autopilot mode appears that the Toyota Defendants will drive sprockets and causing the chain to • In May, Tesla agreed to pay Model S and continue their battle to overturn the break or skip and damage or destroy Model X drivers in California $5.4 entire verdict. the engine. million to settle claims that the company The Plaintiffs are represented by Frank The secondary chain, which connects delayed safety features and an expensive L. Branson, Debbie Dudley Brason, Eugene the oil pump and balance shaft assemblies upgrade to its autopilot system, and A. “Chip” Brooker Jr. and Eric T. Stahl of to the crankshaft, was said to also fail pre- instead rolled out cars with defective The Law Offices of Frank L. Branson PC. maturely because it is made of insufficient traffic awareness features. The case is Benjamin Thomas Reavis et materials that are unable to prevent high- al. v. Toyota Motor Sales USA Inc. et al., resistance wear. The drivers said this Tesla Inc. has settled most of a pur- (case number DC-16-15296) in the District causes the chain to stretch out prema- th ported class-action lawsuit filed by custom- Court of Dallas County, Texas, 134 Judi- turely, damaging the chain sprocket and ers who alleged that their Model S and cial District. causing chain slippage. BMW says it has Model X vehicles would suddenly acceler- Source: Law360.com redesigned this secondary chain at least ate, which in some cases resulted in acci- twice. The drivers claimed BMW has been dents. Six of the Plaintiffs in the lawsuit concealing the problems with its primary are dropping their claims. The remaining and secondary chain assemblies BMW Must Face Engine Defect Class Plaintiff and his son will only pursue indi- since 2013. vidual claims and will not pursue any Action The drivers have sought to represent a claims on behalf of other Tesla drivers. At nationwide class of consumers as well as A New Jersey federal judge has ruled press time, the settlement terms had not subclasses of consumers in New Jersey, that BMW must face most all of a consoli- been disclosed. However, the narrowing of Illinois, Florida, Utah, New York, Colorado, dated putative class action alleging the the case to only a California Plaintiff Texas, Alabama, Oklahoma, Massachusetts, automaker knowingly sold vehicles with means that Tesla can’t be held liable for California, Wisconsin, Oregon and defective chain assemblies that caused pre- any alleged defects under the laws of other North Carolina. mature engine failure and profited off states, including Florida and New Jersey, The Plaintiffs are represented by Joseph repairs not covered under warranty. U.S. that were part of the class-action R. Santoli, Gary S. Graifman and Jay I. District Judge William H. Walls partly complaint. Brody of Kantrowitz Goldhamer & Graif- granted and partly denied a motion to Mike Morgan, Steven E. Nauman and man PC; Bruce H. Nagel and Randee M. dismiss from BMW of North America LLC Branden Weber, lawyers with Morgan & Matloff of Nagel Rice LLP; and Thomas P. and its German parent BMW AG. The con- Morgan PA, are handling the Florida case. Sobran of Thomas P. Sobran PC. The case solidated putative class action involves 21 The case is Hudson v. Tesla Inc. et al., is Gelis et al. v. Bayerische Motoren Plaintiffs in 14 states. Judge Walls kept (case number 2018-CA-011812-O) in the Werke Aktiengesellschaft et al., (case alive most of the claims for breach of war- Circuit Court for the Ninth Judicial Circuit number 2:17-cv-07386) in the U.S. District ranty, consumer fraud and unjust enrich- of Florida. Court for the District of New Jersey. ment. However, the judge rejected a Sources: Law360.com and Bloomberg negligent misrepresentation and certain Source: Law360.com individual claims from Plaintiffs who did not have standing to sue. Toyota Crash Verdict Reduced To Meet The 21 vehicle owners accused BMW of Lawsuit Says Ford Trucks Are ‘Ticking Time Texas Damages Cap concealing inherent design defects in the Bombs’ chain assemblies of engines in its model Toyota will have to pay $209 million to a years 2012-15 vehicles with the N20 and A group of drivers who bought Ford family after Judge Dale B. Tillery reduced a N26 direct injection turbocharged diesel trucks with high-pressure fuel jury verdict in their case. The case engines, which are four-cylinder engines. pumps from 2011 onward have filed a pro- involved two children who suffered head Affected models include certain X3 SUVs, posed class action in a California federal trauma when the front seats in a Lexus col- 528xi sedans and 328i sedans. Additionally, court, claiming the automaker sold the lapsed on them in a collision. Judge Tillery BMW only provided the owners with an vehicles knowing they were “ticking time ruled that the Texas cap on damages original express warranty lasting four bombs” prone to catastrophic engine required the verdict to be reduced by more years or 50,000 miles, whichever came failure. The pump, designed by auto parts than $30 million to stay within the limit. first, knowing full well that was not ade- manufacturer Bosch, is not designed to As a result, Toyota Motor Corp. and Toyota quate and that the serviceable life of the handle American diesel fuel. As a result, it Motor Sales will pay $194.4 million and vehicles should’ve lasted at least 15,000 shoots metal shavings into the fuel injec- $19.4 million, respectively—which miles or 10 years, whichever came first. tion system, leading to engine failure amounts to $208.9 million. Judge Walls also ruled that the drivers’ without warning. The Reavis children suffered skull frac- federal Magnuson-Moss Warranty Act It appears that Ford Motor Company has tures and traumatic brain injuries during a claim would survive and move ahead. known about the problem for a long time. rear-end collision that happened two years However, claims by one of the named The automaker did nothing to remedy the ago. The front seats in the family’s sedan, a Plaintiffs and the Wisconsin, Colorado, problems, while it falsely represented the 2002 Lexus ES 300, malfunctioned and fell Oregon and North Carolina subclasses vehicles as being durable. Bosch’s CP4 backward on the children, who were 3 were rejected and dismissed by pump worked well in Europe, the drivers and 5 years old at the time. The family had Judge Walls. said, but “unfortunately for the American

4 BeasleyAllen.com public, the easiest way for Ford to succeed chased American depositary receipts tribution of opioid market share data to the was to cheat American consumers on dura- through VW between November 2010 and counties and cities in the litigation, so that bility and overall vehicle functionality by January 2016. He appointed the Arkansas they could make such a determination. equipping the class vehicles with a defec- State Highway Employees’ Retirement In other news, the bellwether trial Plain- tive fuel injection pump that dooms the System and the Miami Police Relief and tiffs still await confirmation of the Report modern Ford Power Stroke diesel engine Pension Fund as class representatives. Ber- & Recommendation of Magistrate Judge system from day one.” nstein Litowitz Berger & Grossmann LLP David A. Ruiz. The report to District Court Zachary J. Farlow and 14 other Califor- was selected as class counsel. Judge Aaron Polster recommended that the nia resident Plaintiffs, all current and The litigation arose from the revelation bulk of the claims against the defendants former owners or lessees of 2011-2018 Ford in September 2015 that Volkswagen was survive the motion to dismiss. Judge Ruiz diesel vehicles with a Power Stroke 6.7L equipping some of its diesel vehicles with recommended dismissing one claim and engine and CP4 fuel injection pump, are devices that would allow the cars to pass partially dismissing another of the com- claiming fraud by concealment, violations government-mandated emissions tests, plaint’s 11 claims. The dismissed claims of California’s Unfair Competition Law and then emit more pollution once they hit are relatively narrow grounds based on Consumer Legal Remedies Act and unjust the roads. nuances on local law rather than any over- enrichment, among other counts. The Soon after the U.S. Environmental Pro- arching defect in the government’s claims. Plaintiffs are seeking compensation for tection Agency (EPA) went public with the Both sides in the litigation have filed diminished value of their vehicles, claim- allegations, VW acknowledged it had numerous motions in the interim, includ- ing they overpaid for them because of the installed the defeat device software in at ing asking that Judge Polster certify certain defect and the cost of repairs. least 11 million vehicles, nearly 600,000 of pertinent questions to the Supreme It’s alleged further that Ford partnered which had been sold in the U.S. The gov- Court of Ohio with Bosch in 2004 and learned almost ernment filed a Clean Air Act suit against The State of Alabama, the counties of from the start that Bosch’s European fuel VW and its subsidiaries in January 2016. Summit (Ohio), Cabell (West Virginia); pumps did not work with American diesel Several class actions, filed by drivers, Monroe, Michigan and Broward (all fuel. Communications and correspondence dealerships and stockholders, followed. Florida); and the City of Chicago were all also show that Ford was alarmed at the The instant suit was first filed in Virginia selected as bellwether cases for motion to financial hit the company would sustain if federal court in September 2015 by the dismiss practice to determine the viability the problem was covered under warranty. City of St. Clair Shores Police and Fire of threshold legal issues that may assist in It’s alleged that Ford has known that the Retirement Systems. Along with several the settlement negotiations and to prepare pumps are incompatible with U.S. diesel similar cases, it was moved to California in the test cases for trial in the event that a fuel since about 2005 and that the engine December 2015 by the U.S. Judicial Panel settlement does not occur. Judge Polster failure can cost anywhere from $8,000 to on Multidistrict Litigation. selected cases that represent a variety of $20,000 for owners to fix. The repairs are The investors are represented by James jurisdictions, Plaintiffs, Defendants and not covered by vehicle warranty. Consum- A. Harrod, Jai Chandrasekhar, Adam D. issues. Summit and Cuyahoga counties and ers who choose diesel-engine pay a lot Hollander, Ross Shikowitz and Kate W. the City of Cleveland were selected to more for their vehicles because they Aufses of Bernstein Litowitz Berger & conduct discovery and prepare their cases promise to last longer—anywhere from Grossmann LLP. The case is In re: Volk- for trial, which has tentatively been set for 500,000 to 800,000 miles—and be more swagen “Clean Diesel” Marketing, Sales March 2019. The State of Alabama is fuel-efficient and more powerful. Such was Practices and Products Liability Litiga- gearing up in expectation that it will be not the case here, the drivers said. tion, (case number 3:15-md-02672) in the appointed as a bellwether case in the The drivers are represented by Jeff D. U.S. District Court for the Northern Dis- second round of bellwether trials. Alabama Friedman, Steve W. Berman and Sean R. trict of California. is the only state currently litigating this Matt of Hagens Berman Sobol Shapiro LLP; Source: Law360.com case in the MDL. and Robert C. Hilliard and Rudy Gonzales Alabama has been particularly hard-hit Jr. of Hilliard Martinez Gonzales LLP. The by the crisis. The state has one of the case is Zachary J. Farlow et al. v. Ford highest prescription rates for opioids in Motor Company (case number 3:18-cv- III. the nation, with 1.2 prescriptions per 06967) in the U.S. District Court for the person, nearly twice the national average Northern District of California. OPIOID LITIGATION of 0.72 prescriptions per person. Accord- Source: Law360.com ing to the National Institute on Drug abuse, there were 343 opioid related over- Update On Opioid Litigation dose deaths in Alabama in 2016, and at least 282 deaths were attributed to opioid Approval Of VW’s $48 Million Investor Judge Aaron Polster has extended the overdoses in Alabama the previous year. Settlement Over Emissions deadline for local governments to amend On a national level, the effects of the their complaints to add or remove Defen- opioid epidemic are startling. A study pub- Volkswagen AG’s $48 million settlement dants in the Opioid multi-district litigation lished in the journal JAMA Network Open, with investors in the multidistrict litigation to March 16, 2019. Judge Polster previously suggests opioid abuse in the U.S. is now (MDL) over its diesel emissions-cheating had set the deadline as Nov. 16, 2018. responsible for 20 percent of deaths scandal was preliminarily approved by U.S. However, many local governments have among young adults—up from just 4 District Judge Charles R. Breyer, a Califor- not had access to drug manufacturer percent in 2001—a far greater pace than nia federal judge, on Nov. 28. This ends market share data and have thus been any other age group. Comparatively, one in claims that VW knowingly issued false unable to make an informed decision every 65 adults in the U.S. suffered deaths financial reports about its compliance with about what particular manufacturers were associated with an opioid in 2016—a 292- environmental laws. a problem in their region of the country. percent increase since 2001. Due to the Judge Breyer also conditionally certified Simultaneously with the order extending continued deterioration of the addiction the proposed class of investors who pur- the deadline, Judge Polster ordered the dis- crisis nationwide, the researchers con-

JereBeasleyReport.com 5 cluded the U.S. lost a total of 1,681,359 entities in the MDL, and individual claims Plaintiffs argued that only Gorsky could years of life in 2016 alone. on behalf of victims. If you need more testify regarding the basis of his public However, loss of life, as tragic as that is, information on the opioid litigation statements and his actions in response to isn’t the only toll the opioid crisis takes on contact one of these lawyers at 800-898- the emails and adverse event reports. communities. According to the Centers for 2034 or by email at Rhon.Jones@beasleyal- Johnson & Johnson opposed Plaintiffs Disease Control and Prevention (CDC), the len.com, [email protected], motion to compel, stating: opioid epidemic costs the U.S. about $78.5 [email protected], Rick.Strat- billion a year in health care, lost productiv- [email protected], Will.Sutton@beas- • That Gorsky has no unique knowledge ity, addiction treatment, and criminal leyallen.com or Jeff.Price@ related to talc and that the deposition justice involvement. beasleyallen.com. was an improper “attempt to harass and More than 1,000 cases are currently embarrass [Gorsky].” pending in the opioid MDL filed by cities, • That Gorsky has never worked for counties, states and even Indian tribes Johnson & Johnson Consumer, Inc., the accusing manufacturers and distributors of IV. subsidiary responsible for talcum the powerful painkillers, and pharmacies, THE TALC powder products and that any questions of inflating the effectiveness of the medica- Plaintiffs might ask him would be better tions and downplaying their addictive LITIGATION directed to lower level employees. properties, creating conditions ripe for abuse and misuse. As a result, the lawsuits • That Gorsky’s public statements refer- claim, tens of thousands of citizens have enced by Plaintiffs were only general An Update On The Talc Litigation died or required of medical care, creating a statements made by the CEO in response crippling financial burden to communities A great deal of activity is ongoing in the to litigation and were not based on any across the country. massive talc litigation on several fronts. We personal knowledge of talc. In 2017, President Trump declared the will supply an update on the litigation in • That Gorsky’s receipt of adverse event opioid epidemic a national public health the January issue. Both the individual cases reports and emails related to talc safety emergency. Earlier this year, then Attorney and the MDL are progressing extremely were simply to apprise him of the status General Jeff Sessions announced a new well. The cases are getting even stronger of the litigation. Prescription Interdiction & Litigation (PIL) as additional discovery by lawyers in our Task Force established by the U.S. Depart- firm and others is uncovering even more • That the court should consider the ment of Justice to aggressively coordinate damaging information. When I thought the burden on Gorsky and on the company all available criminal and civil law enforce- worst had been discovered, I find that I if he had to prepare and appear for a ment tools to reverse “the tide of opioid was wrong. The latest information is even deposition. overdoses in the United States.” The task worse than what we had previ- force will focus on the activities of opioid ously learned. After reviewing the arguments of all manufacturers and distributors. Attorney parties, Judge Burlison has issued an order General Sessions also assigned 12 assistant granting Plaintiffs’ motion to compel the U.S. attorneys to spend three years focus- deposition. The judge found that Plaintiffs ing exclusively on investigating and prose- Missouri Judge Orders Johnson & Johnson met their burden in demonstrating the cuting health care and fraud related to CEO To Submit To Talc Deposition deposition was necessary. The order spe- prescription opioids. cifically referenced an affidavit provided Johnson & Johnson Chairman and Chief Because of the enormity of the opioid by Gorsky, which indicated that “he had Executive Officer Alex Gorsky will now litigation, and Alabama’s personal involve- discussions and communications regarding have to appear for a deposition in a talcum ment in the MDL, Beasley Allen Law Firm the talcum powder products at issue to powder lawsuit, which is currently has put together an “Opioid Litigation ensure that he was aware of the decision- pending in St. Louis, Missouri. In an Oct. Team,” which includes attorneys Rhon making process regarding the products 29 order, Judge Rex Burlison, who has pre- Jones, Ryan Kral, Rick Stratton, Parker and to convey Johnson & Johnson’s corpo- sided over numerous talc trials, granted a Miller, Will Sutton and Jeff Price. This team rate viewpoint.” motion filed by Plaintiffs’ lawyers to of lawyers represents the State of Alabama Judge Burlison found that Plaintiffs’ compel Gorsky to present himself for and numerous local governments and request to depose Gorsky on these prod- deposition. In August, Plaintiffs’ lawyers other entities in the MDL, as well as indi- ucts was proper and that the information issued a deposition notice for Gorsky, but vidual claims for victims. needed could not be obtained from Johnson & Johnson’s lawyers argued the Sources: Law360.com and U.S. District Court of Ohio another source. However, the court’s order notice was improper and that Gorsky also acknowledged the potential burden would not appear without an order from on Gorsky and Johnson & Johnson and the judge. ordered that the deposition be limited, The Beasley Allen Opioid Litigation Team In their motion to compel, filed with the both in time and content, to minimize court on Sept. 11, Plaintiffs argued that that burden. Because of the enormity of the opioid Gorsky has “unique and personal knowl- Beasley Allen lawyers continue to inves- litigation, and Alabama’s personal involve- edge regarding the safety of talc.” In tigate new cases involving women who ment in the multidistrict litigation (MDL), support of their argument, Plaintiffs cited have suffered from ovarian cancer after our firm has put together an “Opioid Litiga- several public statements by Gorsky using Johnson’s Baby Powder and Shower tion Team,” which includes these lawyers: defending the safety of talc and arguing to Shower. For more information, contact Rhon Jones, Parker Miller, Ryan Kral, Rick that it does not contain asbestos. Addition- Ted Meadows, Leigh O’Dell or Melissa Stratton, Will Sutton and Jeff Price. This ally, Plaintiffs’ motion referenced Gorsky’s Prickett, lawyers in our Mass Torts Section, team of lawyers represents the State of direct receipt of adverse event reports and at 800-898-2034 or by email at Ted. Alabama, the State of Georgia, and numer- emails relating to talc safety. ous local governments, as well as other [email protected], Leigh.Odell@

6 BeasleyAllen.com beasleyallen.com or Melissa.Prickett@beas- Thousands of women are suffering the many serious problems that face our leyallen.com. and dying of ovarian cancer because country. The President must make a drastic Sources: https://www.bloomberg.com/news/ of a lack of knowledge. Despite change and, if possible, become a real articles/2018-10-31/j-j-ceo-must-face-questioning- numerous credible scientific studies, leader. With or without the president, the over-public-defense-of-baby-powder; Motions and companies such as Johnson & leadership in both the House and Senate Order, Young et al., v. Johnson & Johnson, et al., Johnson have never warned con- must find common ground and work 1522-CC-09728-02, Division No. 10, Missouri Circuit sumers about an increased risk of together in all areas of concern. Hopefully, Court, Twenty Second Judicial Circuit (St. Louis). ovarian cancer stemming from they will cast aside petty politics and con- genital talc use. sider the welfare and best interests of the people for a change. While the report does not address causa- Study Finds Lack Of Ovarian Cancer tion, beyond the question of family history, Awareness Heightens Mortality Worldwide The State Of Alabama numerous medical studies over the past A recently published study of more than four decades have documented how The statewide elections in Alabama 1,500 women shows a “woeful” lack of talcum powder applied to the genital area came out pretty much as predicted. Inter- awareness of the symptoms, causes and can travel to the ovaries and lead to estingly, the voter turnout was much treatments for ovarian cancer. Research by ovarian cancer. That research shows that greater than I anticipated it would be. The the World Ovarian Cancer Coalition found women who have used talcum powder for victories by Gov. Kay Ivey, Lt. Governor- that two-thirds of the women surveyed did genital hygiene are at a 30-60 percent elect Will Ainsworth and Attorney General not even know about the condition before increased risk of developing ovarian Steve Marshall were quite impressive. being diagnosed with the deadly disease. cancer compared to those who have never Justice Tom Parker’s election as Chief With almost 250,000 new cases reported used it. One medical expert calculates that Justice of the Alabama Supreme Court was annually worldwide, ovarian cancer is the this use of talcum powder leads to nearly equally impressive. I believe the outcome seventh-most common cancer diagnosis 10 percent of the new ovarian cancer cases in that race surprised some of our politi- and the eighth-most common cause of reported annually in the United States. cal pundits. female death worldwide. Source: PRNewswire.com While state government in Alabama The survey revealed women with appears to be in very good hands, there ovarian cancer believe their treating physi- are huge problems that must be dealt with cians did not provide adequate consulta- and solved in the areas of public educa- tion and information at the time of V. tion, mental health and prison reform, and diagnosis. According to the study, there PURELY POLITICAL public infrastructure. It is quite apparent are wide-ranging regional disparities in the that our state’s tax structure must be use of family history and genetic testing, NEWS & VIEWS reviewed and some badly needed factors that could help catch the disease changes made. earlier and help boost survival rates. I have confidence in Governor Kay Ivey, For instance, women in the U.S. waited Lt. Governor-elect Will Anisworth, Senate A Look At The Nov. 6 Elections And The more than three months on average after President Pro Tem Dell Marsh and Speaker Effects On America first experiencing symptoms before visit- of the House Mac McCutcheon. However, ing a doctor. However, they were also the they must provide leadership and develop programs that will solve the serious and most likely to undergo genetic testing. In National contrast, women in Japan have one of the lingering problems our state faces. As my shortest times to diagnosis, but very little It was very clear that in most states the friend Dr. David Bronner said recently: access to genetic testing. The lack of mid-term elections were a referendum on “we haven’t just kicked the can down the awareness and delay in treatment contrib- President Trump. It appears that the road in Alabama; instead, we have just utes to the study’s conservative estimate outcome was in large part a repudiation of ignored the problems.” I totally agree with that one in six women (40,000) will die the president. The House of Representa- David’s assessment. Hopefully, at the end within three months after diagnosis of the tives, having picked up about 40 seats, will of 2022, our state will be in much better disease. Leigh O’Dell, a lawyer in our be firmly controlled by Democrats in shape and our future brighter than ever. firm’s Mass Torts Section who is the January. However, the Republicans were Co-Lead Counsel for consolidated Multidis- able to hold the Senate. trict Litigation in a New Jersey federal A look at races for governor around the court, says: country reveals a move toward Democrats VI. in a good number of states. Those wins by COURT WATCH This report is truly troubling and Democrats should greatly concern the shows how much more needs to be president, who is already campaigning done to make women and medical very hard for 2020. Georgia Voters Approve Amendment To professionals aware of the science The post-election responses from the and symptoms surrounding White House have vacillated between Establish Business Courts ovarian cancer. shock and disbelief. Reportedly, it is most Georgia voters recently approved an difficult for the president to feel good Leigh is heavily involved in the MDL, amendment to establish a special business about the Nov. 6 outcome. From all which concerns talcum powder’s link to court with state-wide jurisdiction. It was accounts, it appears that the White House ovarian cancer. Approximately 10,000 reported that 69 percent of voters checked is in turmoil. cases are pending in the MDL, which is in “Yes” to approve the amendment. Judges Regardless of the Nov. 6 outcome the U.S. District Court in Trenton. on the new court will be appointed. The leaving Congress divided, I believe the Leigh says: amendment appeared on the ballot American people want the Executive as follows: Branch and Congress to work together on

JereBeasleyReport.com 7 Shall the Constitution of Georgia be in September 2017, said that he “simply taxes it paid during the same period amended so as to create a state-wide [had] no choice” but to apply a precedent last year. business court, authorize superior set by the Washington federal appeals Specifically, AbbVie paid $1.28 billion in court business divisions, and allow court in 1977. The court in that case found taxes in 2017. So far this year, the company for the appointment process for that the White House must provide due only owes $57 million. I don’t believe con- state-wide business court judges in process when revoking a reporter’s sumers expected this from the so-called order to lower costs, improve the effi- credentials. tax reform touted by President Trump. ciency of all courts, and promote Judge Kelly also said the White House Among the drugs fueling AbbVie’s predictability of judicial outcomes had violated Acosta’s Fifth Amendment profits is its top-selling arthritis drug in certain complex business disputes right to due process by revoking his White Humira, which brings in $50 million in for the benefit of citizens of House access without explanation or a sales every day. Humira year-end sales for this state? chance for CNN to appeal. 2018 are expected to top $6.3 billion. Even In the Nov. 7 press conference, Acosta AbbVie’s cancer drug Imbruvica, for which Details for implementing the business attempted to ask Trump a question about AbbVie partnered with Johnson & court will be worked out in the upcoming the Russia investigation. Trump repeatedly Johnson, has racked up $972 million in legislative session. The governor will deflected the question. Instead of answer- sales. Its newly approved Oriliss to treat appoint judges for five-year terms, subject ing the reporter, Trump hurled insults at endometriosis pain is expected to reach to confirmation by State House and Senate the reporter, calling Acosta “a rude, terri- billion-dollar blockbuster status by 2020, Judiciary committees. ble person” and said CNN should be and $2 billion by 2025. We will be most interested in the imple- “ashamed of itself having you working Could this tremendous tax savings mentation and development of the new for them.” bestowed on Big Pharma companies like business court. Acosta and CNN sued to have the press AbbVie mean lower drug costs, as prom- Beasley Allen lawyers handle complex credentials restored, alleging Trump vio- ised by President Trump? It hasn’t yet. business cases. For more information on lated the reporter’s First Amendment Since Trump took office in January 2017, our business litigation practice, or to rights and sought to punish him based on the prices of more than 2,500 medications discuss a potential case, contact Dee Miles, his affiliation with CNN, which Trump has have increased by at least 10 percent and Clay Barnett, Parker Miller, Archie Grubb publicly bashed as “fake news.” nearly 40 of them have increased by more or Lance Gould at 800-898-2034 or by The Acosta lawsuit was widely sup- than 100 percent, according to an analysis email at [email protected], ported by several major media outlets, released earlier this year by Sen. Cory [email protected], Parker. which view Trump as hostile to the free Booker. Booker’s analysis involved an [email protected], Archie.Grubb@ press, particularly news organizations and examination into fourth-quarter earnings BeasleyAllen.com or Lance.Gould@Beas- reporters who are critical of Trump’s poli- calls, press releases and public statements leyAllen.com. cies. Trump called the FBI’s Russia probe from 10 U.S.-based drug companies, includ- Source: https://ballotpedia.org/Georgia_ “a hoax” in claiming that he didn’t hear ing AbbVie, as well as Johnson & Johnson, Amendment_2,_Establish_a_State_Business_Court_ Acosta’s question. Pfizer, and Bristol-Myers Squibb. Amendment_(2018), https://www.wtoc. Despite the court’s restraining order, the All 10 companies said they would be com/2018/10/23/amendment-proposing-statewide- Trump Administration wasted little time in announcing price reductions in light of business-court-georgia/ and https://www.wabe.org/ gop-gov-deal-wants-special-court-businesses-hell- renewing its attack on Acosta, saying after Trump’s generous tax cut. But Booker’s need-aid-democrats/ Judge Kelly’s ruling that it planned to report suggests that the drug companies revoke Acosta’s White House press badge have done nothing to lower the cost of permanently once the restraining order their medications. In fact, one survey expired. The move prompted CNN to showed that Pfizer alone had 116 drug VII. request an emergency hearing with the price increases during that time. federal court. More than half of Americans say that THE NATIONAL But on Nov. 19, the White House walked slashing drug prices should be a “top prior- SCENE back on its threat, saying it would not ity” for Trump and Congress. However, the revoke Acosta’s hard pass again, but would U.S. remains the only country among its instead implement a set of new rules gov- peers that doesn’t regulate the cost of pre- erning the protocol of reporters in White scription drugs. We are also one of the Judge Restores CNN Reporter’s White House press conferences. Maybe they need very few countries that allows drug com- House Access one for a president who is largely out panies to advertise prescription drugs of control. direct to consumers. That is both dumb I am a firm believer in a free and inde- Sources: National Law Journal, USA Today, YouTube and hurtful. pendent “press” and believe most Ameri- and Fox News Sources: FiercePharma and USA Today cans, if asked, would agree. We should have learned from history that when gov- ernments in foreign countries attempted to control the press, the public interest and Big Pharma Reaps Great Benefits From The Pharmaceutical Companies Must Be Forced people generally suffered. A recent event So-Called Trump Tax Reform To Disclose Prescription Drug Prices On in our Nation’s Capital put the issue in per- Advertising spective. A federal judge has ordered the President Donald Trump’s tax reform Trump Administration to restore CNN has been a boon for Big Pharma. The new More than a decade ago Democrats in political reporter Jim Acosta’s access to the law cut corporate tax rates from 35 Congress attempted to pass legislation to White House after it revoked his press cre- percent to 21 percent, which translated require pharmaceutical companies to dentials over an alleged breach in decorum into a 96 percent tax break for pharmaceu- negotiate prices with Medicare and Medic- during a Nov. 7 press conference. tical company AbbVie. In the first nine aid. However, a contingent of Republicans U.S. District Judge Timothy Kelly, whom months of 2018, the Illinois-based drug was able to derail and defeat that legisla- Trump appointed to the federal trial bench maker paid just 4.5 percent of the income tion. Interestingly, most of the Republicans

8 BeasleyAllen.com and staff involved in that battle left Con- authority to issue regulations related to Our law firm has represented a number gress to work for the pharmaceutical drug pricing transparency, CMS is of states over the past several years in liti- industry as lobbyists. CBS had a great 60 issuing the proposed rule pursuant to gation involving the overpricing of medica- Minutes show on the battle. President sections of the Social Security Act that tions to State Medicaid programs. We were Trump has now entered the fray and says provide HHS with the authority to issue successful in every State. Our firm did he wants to fight Big Pharma over drug regulations “for the efficient administra- resolve many cases for the State of pricing. The U.S. Department of Health tion of functions” under the act and “as Alabama in the litigation but at the same and Human Services (HHS) has just may be necessary to carry out the time the Alabama Supreme Court reversed released proposed rule-making to start up administration of the insurance pro- more than $410 million in verdicts our the battle. grams” under Medicare. fraud attorneys attained in four separate On Oct. 15, the Centers for Medicare & jury trials in Montgomery on behalf of Ala- Medicaid Services released a proposed rule • First Amendment Considerations— bama’s Medicaid system. regarding the disclosure of pricing infor- Apparently anticipating that the pro- HHS said that its rule may “counteract mation in direct-to-consumer television posed rule will elicit objections under prescription drug increases” by arming ads for prescription drugs and biologics the First Amendment, CMS takes the consumers with more information about reimbursable by Medicare and Medicaid. position that requiring the disclosure of drug prices. That could allow Americans The proposed rule would amend relevant pricing information in DTC television “to signal in some cases that prescription Medicare and Medicaid regulations to advertisements is consistent with First drug prices have risen beyond their will- require Direct to Consumer (DTC) televi- Amendment jurisprudence. ingness to pay,” the rule said. sion ads (including broadcast, cable, • Lanham Act Considerations— The American Medical Association also streaming and satellite communication) of Enforcement of this proposed rule may got involved, saying that the rule would prescription drug and biological products be significantly limited due to the stand- provide “a small dose of transparency.” for which reimbursement is available ing requirements and elements of a The rule has a 60-day comment period through or under Medicare and Medicaid Lanham Act claim. With regard to stand- and, if finalized, it would take effect 30 to include the list price, defined as the ing, consumers do not have standing days later. wholesale acquisition cost (WAC), of that under the Lanham Act, and challenges Source: Law360.com drug or biological product. More specifi- would need to be brought by competi- cally, the proposed rule would: tors or others who can demonstrate • Apply to any prescription drug or biolog- commercial harm caused by the Defen- ‘Secret’ Gulf Oil Leak Eclipsing BP’s ical product with a list price of at least dant’s advertising. Deepwater Horizon Spill $35/month for a 30-day supply or typical • State Law Preemption—With respect We all know about BP’s Deepwater course of treatment that is distributed in to preemption of state laws, CMS’s pro- Horizon oil spill, which played out like a the U.S. and for which payment is avail- posed regulations state that “[n]o State nightmare for the U.S. when it erupted in able under Medicare or Medicaid; or political subdivision of any State may 2010. The results were devastating. establish or continue in effect any • Require television ads for such covered However, six years before that oil disaster, requirement that depends in whole or in pharmaceuticals to contain a textual another uncontained oil release was flood- part on any pricing statement required statement indicating the WAC for a ing the Gulf of Mexico off the Louisiana by this subpart.” In the preamble, CMS typical 30-day regimen; Coast. That oil leak quietly continues to this explains that its proposed rule is day and is eclipsing BP as the one of the • Require that the disclosure use the most intended to preempt state-law-based worst environmental disasters in U.S. history. current list price as of the date of publi- claims to enforce the new disclosure The Taylor Energy oil spill has been cation/broadcast; and requirement as follows: spewing between 300 and 700 barrels consistent with our not including (12,600-29,400 gallons) of oil a day into the • Allow the U.S. Department of Health & any HHS-specific enforcement mecha- Gulf just 40 miles from where BP’s Deep- Human Services to maintain a public list nism in this proposal, we are propos- water Horizon rig once stood. The tower- of drugs and biological products adver- ing ... that this rule preempt any ing 40-story Taylor rig toppled in 2004 tised in violation of the rule. state-law-based claim which depends when Hurricane Ivan ripped through the in whole or in part on any pricing CMS says it “anticipate[s] that the area, damaging a system of 28 wells about statement required by this rule. primary enforcement mechanism will be 450 feet below the surface. the threat of private actions under the The precise scope of preemption by the Taylor reported the spill to federal Lanham Act” for unfair competition in the CMS rule is unclear. Some state-law- authorities in 2004, but the government form of false or misleading advertising. based claims, such as a claim brought didn’t disclose it to the public for more CMS adds that “the Lanham Act … is the under California’s well-known Unfair than half a decade. Only when researchers most appropriate mechanism for enforcing Competition Law, would potentially surveying the BP oil spill by air in 2010 against deceptive trade practices.” provide a more effective avenue for chal- noticed a second oil slick did the Taylor Among other things, CMS seeks com- lenging a competitor’s omission of spill come to light. ments regarding the price disclosure state- pricing information than the When the U.S. Coast Guard’s National ment’s content and various other aspects Lanham Act. Response Center divulged the spill to the of the proposed rule. If the rule ultimately public using data from Taylor Energy, it passes, we can expect extended litigation While there are many other consider- estimated size of the leak was one to 55 over the rule. The litigation will likely ations to work through, we can count on barrels per day—drastically smaller than include these issues: another big battle being waged by Big independent analyses showed. Pharma against many provisions of this Many of the Taylor Energy uncapped • Scope of CMS Authority to Issue the proposed rule. wells are now buried under 150 feet of Rule—Despite the absence of specific mud from an underwater mudslide created

JereBeasleyReport.com 9 by Hurricane Ivan. Attempts to stop and tions, including impotence, prostatitis, and Employee Benefit Plans. If you have any contain the oil have failed. Federal officials erectile dysfunction, when in actuality the question about our firm’s pharmaceutical now say the Taylor Energy site could con- FDA never approved the drugs nor have fraud practice, please contact Ali Haw- tinue to blast oil into the Gulf for the rest there been clinical studies demonstrating thorne, a lawyer in our firm’s Consumer of this century. the drugs’ safety and effectiveness. Fraud & Commercial Litigation Section, at Taylor Energy, now a one-person Apparently, the Defendants’ drugs 800-898-2034 or by email at Alison.Haw- company, is unable to cover the enormous contain an undisclosed ingredient, silde- [email protected]. costs of cleanup and remediation, let alone nafil, which is the active ingredient in the Source: United States Department of Justice whatever technologies are needed to stop prescription drug Viagra. The labeling on the spill. Many of the smaller, financially the Defendants’ unapproved drugs did not at-risk offshore drillers could find them- reveal the potentially adverse conse- selves in the same boat as Taylor Energy quences that may result from using a U.S. Supreme Court Will Take on False one day. For every 1,000 wells in state and product containing sildenafil. Despite Claims Timeliness Uncertainty federal waters, there are about 20 blow- knowing their drugs have not been FDA outs resulting in uncontrolled releases of approved and do not disclose vital safety The U.S. Supreme Court will take on a oil—a stark fact to face as tropical storms information on the labeling, the Defen- three-way circuit split involving a False become more frequent and violent than dants have allegedly been using more than Claims Act timeliness rule. The outcome at ever due to our dependence on fossil fuels. 100 different websites to market and dis- the High Court will have practical ramifi- When offshore oil drillers are not tech- tribute their unapproved drugs to consum- cations for litigants. The contractors’ peti- nologically and financially equipped to ers in the United States. tion said that by ruling that a repair a blowout, U.S. taxpayers will be on The DOJ’s suit accused the Defendants whistleblower timely accused contractors the hook for remediation costs. The of being in direct violation of the Federal of perpetrating a bid-rigging scheme, the roughly 4,000 oil platforms from Texas to Food, Drug, and Cosmetic Act (FDCA). U.S. Court of Appeals for the Eleventh Mississippi also leave coastal communities The Defendants failed to respond to the Circuit Court of Appeals exacerbated the prone to economic and environmental DOJ lawsuit and never appeared before the split with other circuit courts that would catastrophe. Court. Therefore, the Court granted a have rejected the case. Why hasn’t this most serious environ- default judgment and issued an injunction The case filed by a whistleblower, Billy mental and economic disaster received requiring the Defendants to cease the dis- Joe Hunt, gives the Supreme Court an widespread media attention? More impor- tribution of their unapproved and mis- opportunity to establish nationwide uni- tantly, why hasn’t the federal government branded drugs. formity on false claims timeliness. That gotten more involved and taken the Acting Assistant Attorney General of the will be welcomed by all sides. Competing needed action? I believe because of the Justice Department’s Civil Division, Chad interpretations have caused uncertainly seriousness of this matter, these questions A. Readler, assured consumers by stating and accusations of “forum shopping.” demand answers. that “Compliance with the Food, Drug, A Plaintiff may file a False Claims Act complaint within six years of the date on Sources: Washington Post and RightingInjustice.com and Cosmetic Act is necessary to ensure that consumers have complete confidence which a violation occurred, or three years in the safety and effectiveness of the drugs after the date when facts material to the they use,” and “The Department of Justice alleged fraud are known or reasonably VIII. and FDA will continue to work together to should have been known by a relevant gov- enforce labeling requirements and protect ernment official. WHISTLEBLOWER consumers from the dangers of undis- Contractors Parsons Corp. and Cochise LITIGATION closed ingredients in drugs.” Consultancy Inc. claimed in their petition Lawyers in our firm’s Consumer Fraud & that the Hunt case would have failed in the Commercial Litigation Section have repre- Fourth, Fifth or Tenth circuits, which don’t sented at least nine states through the allow a whistleblower to rely on the three- DOJ’s Efforts In Stopping The Distribution states’ attorney general’s office in various year period if the government hasn’t inter- Of Unapproved And Misbranded Drugs pharmaceutical and health care litigation vened against a Defendant. However, case involving fraudulent, unfair and deceptive filed in the Third or Ninth circuits may The United States Department of Justice practices that cost the states millions in rely on the three-year period as long the (DOJ) was recently successful in getting a taxpayer dollars. Beasley Allen is currently complaint is filed within three of years of federal court to permanently enjoin Defen- representing Louisiana and Mississippi in when the whistleblower knew or should dants Just Enhance and R Thomas Market- seven different cases involving almost 100 have known about the alleged fraud. ing LLC from distributing unapproved and Defendants involving similar “unapproved The case is Cochise Consultancy v. misbranded drugs to consumers in drugs” litigation. Our unapproved drugs United States ex rel. Hunt, U.S., (No. our country. cases have been filed again the nation’s 18-315). The petition was granted on Nov. The DOJ brought suit against the Defen- largest pharmaceutical manufacturers that 16 and the case is now in the dants in 2017 in the U.S. District Court for have engaged in fraudulent and deceptive Supreme Court. the District of New Jersey. DOJ’s complaint practices of falsely reporting their drugs as was brought at the request of the U.S. Food covered outpatient drugs approved by the and Drug Administration (FDA) and FDA, causing Medicaid to reimburse for Abbott And AbbVie Pay $25 Million In accused the Defendants of marketing and drugs that it never should have. Settlement Involving Off-Label Promos And distributing drugs that were never We are fortunate to handle these cases, Kickbacks approved by the FDA and failed to disclose and many other pharmaceutical fraud pertinent safety information to consumers. cases, for the state attorneys general and Abbott Laboratories and AbbVie Inc. will The Complaint alleged that the Defendants welcome the opportunity to investigate have to pay more than $25 million to settle were representing to consumers that their potential pharmaceutical fraud litigation a whistleblower’s False Claims Act (FCA) drugs can treat or prevent serious condi- for the states, municipalities, and lawsuit alleging off-label promotion of the

10 BeasleyAllen.com triglyceride drug TriCor and unlawful kick- cv-04264) in the U.S. District Court for the statement to Reuters that the company backs in the form of gift baskets and gift Eastern District of Pennsylvania. investigated the overbilling by former cards. The U.S. Department of Justice Source: Law360.com employees and reported it to the govern- (DOJ) says the settlement ends a nine-year ment. The contractor added: case brought by former Abbott sales repre- sentative Amy Bergman. The settlement— The improper charging was in direct which stems from allegedly improper Northrop Grumman Subsidiary Settles Air violation of company policies, proce- billing of Medicare, Medicaid and Force Overbilling Investigations dures and training. There should be Tricare—is significant in amount for an no doubt, the misconduct of those FCA case that the government Northrop Grumman Systems Corpora- former employees does not reflect declined to join. tion, a subsidiary of the defense contract- the values of our company. Amy Bergman, the whistleblower, will ing giant Northrop Grumman, has agreed to pay $31.65 million to settle criminal and Even though Northrop Grumman admits receive $6.5 million from the settlement. the fraudulent conduct by its employers, The settlement resolves a case originally civil investigations into the fraudulent overbilling of the U.S. Air Force. The and attempts to say those employees were filed in 2009 and it covers conduct from more or less operating on their own, the 2006 through 2008. During that time, company admitted that its employees deployed to an airbase in the Middle East sort of conduct described above cannot be TriCor was approved to treat conditions tolerated. Surely the company has safe- related to elevated triglyceride levels, but inflated the number of hours worked on its Battlefield Airborne Communications guards in place to prevent or at least Abbott promoted it for unapproved uses “catch” that sort of activity. If they don’t, related to cardiac health risks. In addition, Node (BACN) contract. Hours were also padded for those working on the Dynamic it’s time for the bosses at this company to the DOJ says Abbott used kickbacks in the make the necessary changes. Cheating the form of meals, gift baskets and gift certifi- Re-tasking Capability contracts. Both con- tracts are for battlefield communications government and the American taxpayers cates to encourage doctors to write cannot be tolerated and must be stopped. prescriptions for TriCor and it improperly systems. Northrop Grumman describes encouraged or rewarded prescribers BACN on its website: Source: Reuters with paid consulting and speaking In theater operations, mountainous arrangements. terrain inhibited line-of-sight com- Abbott now focuses on diagnostics, munications; diverse weapon The Beasley Allen Whistleblower Litigation medical devices and brand-name generic systems were unable to communi- Team drugs. AbbVie was spun off from Abbott cate with each other; each operating several years ago and specializes in tradi- unit could see only a limited set of It has become abundantly clear that tional brand-name drugs, including the the complete picture. BACN bridges whistleblowers are the key to exposing immunosuppressant Humira, the world’s the gaps between those systems, corporate wrongdoing and government best-selling drug. In 2014, a Pennsylvania enabling essential situational fraud. A person who has first-hand knowl- federal judge said Ms. Bergman had sup- awareness from small ground units edge of fraud or other wrongdoing may plied “myriad details of Abbott’s marketing in contact up to the highest have a whistleblower case. Before you statements that contradict its FDA- command levels. report suspected fraud or other wrongdo- approved label.” ing—before you “blow the whistle”—it is In 2012, Abbott agreed to a $1.5 billion From January 2011 to October 2013, important to make sure you have a valid criminal and civil settlement that centered employees charged exactly 12 or 13.5 claim and that you are prepared for what on kickbacks and off-label promotion of hours a day, seven days per week, when lies ahead. Beasley Allen has an experi- anti-seizure drug Depakote. This year, employees were not actually working all enced group of lawyers dedicated to han- AbbVie has found itself involved in a note- those hours. The U.S. Attorney’s Office in dling whistleblower cases. The lawyers on worthy fraud case alleging “classic” kick- San Diego says that instead of working, our firm’s Whistleblower Litigation Team backs in the form of money and meals as employees were engaged in leisure activi- are Archie Grubb, Larry Golston, Lance well as “sophisticated” kickbacks in the ties during some of that time, including Gould, Andrew Brashier and Paul Evans. form of marketing assistance for physician golfing, skiing, visiting local amusement A lawyer on our Whistleblower Litiga- practices. parks, dining out, shopping or patronizing tion Team will be glad to discuss any The U.S. is represented by Charlene the five-star hotels where they were potential whistleblower claim either in Keller Fullmer, Elizabeth Rinaldo and housed. The overbilling put money in the person or by phone. You can reach these Gregory B. David of the DOJ, Edward M. employees’ pockets that they did not earn, lawyers by phone at 800-898-2034 or by DeHarde of the U.S. Office of Personnel authorities said. One employee in an email email at [email protected], Management, Paul St. Hillaire of the Office summed up the billing scam: “work about [email protected], Lance. of the Inspector General for the OPM, and 6-8 hours and charge 13,” and that pretty [email protected], Andrew.Brash- Leigh A. Bradley of the U.S. Department well tells the story! [email protected] or Paul.Evans@beas- of Defense. It appears that employees at one site leyallen.com. Ms. Bergman is represented by Robert alone overbilled by more than $5 million. N. Nicholson and Parker D. Eastin of Nich- The company has agreed to pay $27.45 olson & Eastin LLP, Marc S. Raspanti, million to settle civil claims that it violated Michael A. Morse and Pamela Coyle Brecht the False Claims Act. Additionally, the of Pietragallo Gordon Alfano Bosick & Ras- company agreed to forfeit $4.2 million in a panti LLP, and John J. Uustal and Cristina separate agreement to settle the criminal M. Pearson of Kelley Uustal PLC. investigation into fraudulent billing on the The case is U.S. ex rel. Bergman v. BACN contract. “Federal contracts are not Abbott Laboratories (case number 2:09- a license to steal from the U.S. Treasury,” U.S. Attorney Adam Braverman said in a statement. Northrop Grumman said in a

JereBeasleyReport.com 11 IX. Cause of Vehicle Fires Improving Tire Technology The National Fire Protection Association PRODUCT (NFPA) in the US reports that about one Automobile technology has advanced in fifth of all fires reported are motor vehicle many ways over recent decades. The indus- LIABILITY UPDATE fires, and the majority of vehicle fires are try now has rollover activated air curtains, not related to crashes. These fires do air pressure monitoring sensors, naviga- not seem to attract much attention or tion systems, satellite radio, and electronic Automobile Fires Kill Thousands investigation because they do not usually stability control to prevent vehicle roll- result in injury or property claims beyond overs just to name a few recent innova- Tens of thousands of lives have been lost the vehicle replacement cost. tions. Rarely do you hear about new tire globally in the last few decades due to car Vehicle fires usually progress slowly in technologies that are being developed to entrapment deaths. In this section, we will the early stages, allowing occupants time enhance overall automobile safety. analyze the threat of vehicle fires and to escape injury. Injury or fatalities usually However, some tire manufacturers are provide advice on how to act in these occur in cases where an occupant is looking at new developments in tire tech- emergencies. Data from the United States asleep, disabled, intoxicated or too young nology that could improve the driving reveals the importance of awareness about to escape. experience. this threat to safety on the road: Most vehicle fires start in the engine One of the new technologies being compartment. A motor vehicle contains examined is called “Contact Area Informa- • More people die in vehicle fires than in many flammable materials, including flam- tion Sensing,” or CAIS. This technology apartment fires each year in the United mable liquids like gasoline and oil as well would add a sensor to the interior of the States where nearly 1 out of 5 fires as solid combustibles such as upholstery. tire that would provide monitoring infor- involves motor vehicles. Fuel leaks from ruptured fuel lines also mation to the driver including telling the • U.S. fire departments responded to an can rapidly ignite. driver of roadway conditions such as dry, estimated 278,000 vehicle fires in the Leakage of fuel, motor oil, transmission wet or icy pavement conditions. This infor- United States during 2006. These fires fluid, power steering fluid, brake fluid or mation would appear on a visual screen caused an estimated 490 civilian deaths even coolant can lead to engine fires, and located in the vehicle. CAIS could also and 1,200 civilian injuries. the leakage of a flammable or combustible provide interactive information informing liquid in an engine compartment results the driver of tread conditions as well as air • Of those fires, 75 percent were caused from some kind of failure. The failure may pressure data to help keep the driver up to by bad maintenance, mechanical or elec- be a result of normal wear and tear, failure date on current tire conditions. trical failures or malfunctions. Collisions of a mechanic to make repairs safely, It is well known within the tire industry or overturns caused only 3 percent of design failure that leads to rupture or abra- that tires lose approximately two pounds these fires but 57 percent of the associ- sion of hoses or manufacturing defects in of pressure a month from normal use and ated deaths. hoses, gaskets or fluid connections. the expected permeation of air through When a brand new vehicle (or one that the rubber tire components. Technology is • Older teens and young adults are age has had very recent repairs) burns, failure currently being used in heavy machinery groups at highest risk of highway of the manufacturer (or a mechanic) to and military vehicles that automatically vehicle fire death. safely tighten all fluid connections is the monitors tire pressure and has the ability to add or decrease air pressure depending • One-third of non-fatal vehicle fire inju- most likely cause. on the conditions. A low-tech version of ries occurred when civilians attempted Car batteries pose a fairly unique this technology is being considered for use to fight the fire themselves. hazard—hydrogen gas involved in the elec- trolysis reaction ignites readily in fire con- in passenger vehicles. The technology Nature of the threat: ditions and can result in an explosive would include a tire ring valve that While explosions from car fires are rare, dispersion of battery acid. squeezes the ring as the tire rotates. the true danger is the toxic fumes. Motor About 15 percent of motor vehicle fires Squeezing of the ring would occur during vehicles are made of many synthetic mate- originate in the passenger compartment. rotation of the tire to allow it to determine rials that emit harmful and deadly gases The main causes of these are electrical whether to add or decrease tire pressure. when they burn. A main by-product of short circuits and cigarettes. Because many consumers are not fires is a lethal concentration of carbon To prevent injuries and fatalities, road trained in evaluating when tires need to be monoxide, which is an odorless, colorless authorities recommend that vehicle replaced, a very low-tech technology is and tasteless gas. owners should be equipped with auto being considered to enhance driver safety. Fire can cause fatal or debilitating burn escape tools. These simple tools could save The “discolor tire” is a method that would injuries. A vehicle fire can generate heat lives, protect in case of emergencies and be used to inform consumers about the upwards of 1,500 F. Flames in vehicles can give peace of mind for travelers. condition of their tires through a color often shoot out distances of 10 feet or We are placing on our firm’s website a system on the outside of the tire. When more. Parts of the vehicle can burst number of recommendations concerning purchased, the tire looks like any other because of heat, shooting debris great dis- vehicle fires that you will need to be aware normal black tire. However, as the tread tances. Bumper and hatchback door unit, of. The recommendations will cover a wears down to a minimum level of safety, two-piece tire rims, magnesium wheels, number of specific areas. If you need more the outer surface turns a bright orange to drive shafts, grease seals, axle, and engine information on this subject contact Greg indicate to the consumer that it is time to parts all can become lethal shrapnel. Fires Allen or Graham Esdale, lawyers in our replace the tires. This is a technology that may also cause air bags to deploy. Hazard- firm’s Personal Injury & Products Liability is simply baked into the tire during the ous materials such as battery acid can Section, at 800-898-2034 or by email at normal manufacturing process. cause injury even without burning. [email protected] or Graham. Finally, some manufacturers are examin- [email protected]. ing and experimenting with airless tires. Source: Arrive Alive Some consumers may have seen these types of tires being used on ATVs or lawn

12 BeasleyAllen.com equipment. These tires are not susceptible Plaintiffs, like the folks we represent, affected the number of cases bound for to punctures. The treads are supported by have a right to obtain discoverable infor- trial. See James E. Rooks, Jr., 55 S.C. L. Rev. flexible rubber spokes that can absorb mation through the rules of civil proce- 859 (2004). road impacts. However, this type of tire dure. Sharing of such information At Beasley Allen, we believe that public does not typically have as smooth of a ride (appropriately) not only effectuates an knowledge of wrongdoing and dangers is as existing tire technology. Nonetheless, expedited and cost-effective discovery essential to making our communities a this type of tire uses less rubber than exist- process, but also protects the public from safer place. We desire to see wrongdoers ing tires, has the ability to last up to three defective products and corporate held accountable for their actions. We times longer than regular tires and has misconduct. desire for the public to know about the better resistance to hydroplaning. Due to If you need more information on this wrongful conduct so that people can make the many benefits of this type of tire, a subject contact Ben Keen, a lawyer in our wise and informed decisions about number of manufacturers are currently Atlanta office, or Cole Portis or Ben Baker, their safety. working to offer a version that has a better lawyers in our Montgomery office, at 800- If you need more information on this ride quality and is much more similar to 898-2034 or by email at Ben.Keen@beas- subject contact Cole Portis, who heads up existing tire designs in ride quality. leyallen.com, Cole.Portis@beasleyallen. our Personal Injury & Products Liability Tires are an important part of automo- com or [email protected]. Section, or Dan Philyaw, a lawyer in our tive safety. Hopefully manufacturers will Atlanta office, at 800-898-2034 or by email begin to adopt some of these new technol- at [email protected] or Dan. ogies to enhance the overall safety of auto- [email protected]. A Look At Confidential Settlements mobiles. If you need more information, contact Ben Baker, a lawyer in our firm’s When our firm resolves lawsuits, the Personal Injury & Products Liability corporate Defendants often request confi- $26 Million Settlement Reached In Section, at 800-898-2034 or by email at dentiality. For many reasons, we may also Exploding Pressure Cooker Suit [email protected]. He will be recommend to our clients that the amount glad to talk with you. of the settlement remain confidential. A $26 million settlement with Lifetime Source: Nationwide.com, blog, January 8, 2018 However, too often corporate Defendants Brands has been reached in a lawsuit will try to broaden the scope of the confi- involving an exploding pressure cooker. It dentiality. For example, a corporate Defen- was claimed that the company hid a faulty Protective Orders Can Be Harmful To The dant may seek to keep its name, its lock that caused a girl to suffer burns and documents, or even the fact there was a Public multiple amputations. Samantha Gonzalez, settlement confidential. To acquiesce to now 5 years old, was badly burned by the During litigation, a party to a lawsuit can the corporate Defendants’ demands will contents of a Vasconia brand eight-quart request a Court to enter a Protective harm other victims of corporate wrongdo- pressure cooker that had a defective lock Order. Rule 26 (c) of the Federal Rules of ing and the public will remain in the dark mechanism allowing it to open while Civil Procedure discusses the rules to about wrongful conduct. under pressure. The company, realizing follow before a protective order is entered. There are several ways that lawyers and there was a problem with the pressure The Court may, for good cause, issue an their clients can resist the use of blanket cooker, changed the part without inform- order to protect a party or person from confidentiality clauses in settlements. ing the public or the Consumer Product annoyance, embarrassment, oppression, or First, stress the necessity of transparency. Safety Commission (CPSC). undue burden or expense when providing Typically, one of our client’s main goals is A Florida circuit court judge in Broward discovery in a pending lawsuit. Addition- to expose the wrongdoing of the Defen- County approved the settlement last ally, the court might order that a trade dant. Thus, if corporate defendants insist month. The child developed sepsis while secret or other confidential research, on a harsh confidentiality clause then our she was hospitalized for her burns, result- development, or commercial information clients are amenable to the idea of litigat- ing in the amputation of her left leg, most not be revealed. The burden on the party ing the facts in an open court of law. of her right foot, her left hand and all the seeking the protective order must establish It is important for our clients and for the fingers on her right hand. a good cause for the Court to limit any corporate defendants to understand early The Plaintiff is represented by John discovery. in the process that a strict confidentiality Uustal, Michael Hersh and Catherine Corporate Defendants will often seek a clause will never be considered. If a corpo- Darlson of Kelley/Uustal PLC. The case is protective order and include anti-sharing rate Defendant attempts to insert such a S. E.G. minor by and through her parents provisions in product liability cases. This clause into a release after the agreed upon v. Lifetime Brands Inc. (case number means that the Defendant does not want settlement then we always strike the lan- 16-016685) in the Circuit Court of the Sev- the discovery to be shared with other guage. If the parties cannot resolve the enteenth Judicial Circuit in and for lawyers who handle similar cases. To limit dispute then Courts are not inclined to Broward County, Florida. the disclosures is often without merit. For- insist on confidentiality. Source: Law360.com tunately, Courts generally disfavor anti- Proponents of confidentiality clauses in sharing provisions. That’s because sharing settlement agreements often argue that a discovery makes courts more efficient, reduced ability to make matters confiden- more transparent and more effective at tial will “chill” settlements. These com- finding the truth. One court stated: mentators argue that restrictions in litigation secrecy will significantly impede Of the courts that have considered the settlement process and strain courts as protective orders of the nature pro- more cases are set for trial. Yet, there is not posed by the defendant, an over- factual evidence to support these conten- whelming majority have refused to tions. Actually, those studying this issue grant any type of protection from have found that more transparency in set- dissemination. tlement agreements has not significantly

JereBeasleyReport.com 13 X. traditional manual document review. In 75-100 mg once a day for 90 days, followed one study, human reviewers missed by aspirin alone. MASS TORTS between 20 percent and 75 percent of all The trial was stopped in August 2018 on relevant documents. Another study found recommendation of the independent Data UPDATE that when one manual reviewer deter- Safety Monitoring Board (DSMB) following mined a document to be relevant, there a preliminary analysis of available data. was only about a 50 percent chance that a The trial findings suggested an imbalance The Role Of Advanced Discovery second reviewer would agree. Unlike between the two study groups in all-cause Technology In The Bone Cement Litigation manual review, predictive coding technol- mortality, thromboembolic, and bleeding ogy allows lawyers to objectively evaluate events (see table). In 2018, Beasley Allen lawyers filed five the computer’s performance and adjust it if These results are preliminary and based HV Bone Cement cases in federal courts in necessary. on incomplete data collection. The final North Carolina, Louisiana and Texas. The bone cement litigation will involve study data will be assessed by regulatory These cases are now being primed for the comprehensive discovery with millions of authorities as soon as they are available, discovery phase. Discovery will involve documents. Modern discovery technology, including an assessment of any implica- some of the world’s largest medical device such as predictive coding, can dramati- tions for approved indications. Lawyers in manufacturers, including DePuy, Stryker, cally reduce the number of documents our firm and others involved in the Xarelto Howmedica Osteonics, Biomet, DJO that need to be reviewed manually, reduce litigation will promptly communicate all Global, and even some foreign manufactur- costs and improve results. Our lawyers relevant updates from the assessment. ers. Presently, the parties are discussing look forward to working with electronic logistics to establish a protocol based on discovery experts and utilizing this Table: Preliminary findings of Study 17938 modern best practices for document pro- advanced technology in cases Rivaroxaban group Antiplatelet group duction. One of the main concerns is how involving HV Bone Cement. Event (n=826) (n=818) document production will be compatible Beasley Allen lawyers con- Death or first with modern discovery technology. tinue to investigate cases thromboembolic events 117 (11%) 87 (9%) Modern discovery technology is now involving early knee replace- All-cause death 56 (7%) 27 (3%) capable of analyzing and categorizing mil- ment failure due to high-vis- Primary bleeding events 36 (4%) 21 (2%) lions of documents by predictive technolo- cosity bone cement. If you or a Data are number of events (% patients) gies. There are two basic types of loved one has experienced e-discovery technologies: (1) search and complications from knee (2) classification technology. Search tech- replacement surgery, requiring revision Xarelto is not approved for prevention of nology uses keyword searches and returns surgery, contact Roger Smith or Ryan blood clots in patients with prosthetic “matching” documents based on the exact Duplechin, lawyers in our firm’s Mass heart valves. In a letter to healthcare pro- terms specified by the attorney. Search Torts Section, at 800-898-2034 or by email viders, Dr. Tristan P. Cooper, Medical technology will not return a document at [email protected] or Ryan. Director of Bayer Ltd. instructed doctors unless the lawyer already knows or can [email protected]. that Xarelto treatment in patients who figure out what terms are contained in the undergo transcatheter aortic valve replace- Sources: American Association for Justice: Annika K. ment (TAVR) should be stopped and relevant document. In contrast, classifica- Martin, How to Stop Worrying and Love Predictive tion technology provides context by classi- Coding, Trial (2016), South Carolina Law Review: switched to standard of care. Xarelto is the fying documents into groups or categories Charles Yablon & Nick Landsman-Roos, Predictive subject of more than 16,000 lawsuits for based on predictive technology. One type Coding: Emerging Questions and Concerns, 64 S.C. various claimed injuries in a consolidated of classification technology is known as L. Rev. 633, 637 (2013), and American Bar multidistrict litigation (MDL) in New “predictive coding.” Association: Aaron Goodman, Predictive Coding: A Orleans. Andy Birchfield, who heads up Better Way to Deal with Electronically Stored our Mass Torts Section, is the co-lead Predictive coding is a type of technol- Information, 43 Litigation 23 (2016). ogy-assisted review that relies on input counsel for the coordinated litigation in from the attorney to predict how docu- the MDL. ments should be classified. Services our Source: UK MHRA website lawyers and staff use every day, such as Xarelto Clinical Trial Halted Because Of Amazon and Netflix, already use similar Increased Deaths And Bleed Events technology to predict our choices. Similar Appeals Court Upholds $2.5 Million to how Amazon uses input from you (your There has been a halt in the clinical Risperdal Verdict searches, views, purchases, and product trials involving the drug Xarelto. Study ratings) to predict what you might like 17938 (GALILEO) was a randomized, open label, active-controlled, multicenter, phase The Pennsylvania Superior Court upheld next, predictive coding software uses a $2.5 million jury verdict against Johnson input from a lawyer’s coding of a small set 3 trial that aimed to assess clinical out- comes after successful transcatheter aortic & Johnson in a lawsuit claiming the com- of documents to predict how that lawyer pany’s antipsychotic drug Risperdal caused would code the rest of the documents. valve replacement (TAVR) in patients ran- domly assigned to receive either a Xarelto an Alabama boy with autism to grow Once predictive review is complete, the breasts. The case was returned to a lower technology’s review can be measured for (rivaroxaban)-based anticoagulation strat- egy or an antiplatelet-based strategy. The court to determine whether the family was accuracy. entitled to punitive damages as well. While this technology-assisted review is first group was assigned to receive Xarelto 10 mg once a day and aspirin 75-100 mg The three-judge panel of the Superior faster and more cost-effective (in large Court of Pennsylvania rejected multiple volume cases) than traditional document once a day for 90 days followed by mainte- nance with Xarelto 10 mg once a day. The arguments by J&J subsidiary Janssen Phar- review, many lawyers might question maceuticals Inc., which sought to overturn whether those benefits give way to accu- comparator group was assigned to receive Plavix (clopidogrel) 75 mg and aspirin the February 2015 verdict that the racy. Recent studies have shown that pre- company had failed to warn Phillip Austin dictive coding is more accurate than Pledger’s family and physicians that Risp-

14 BeasleyAllen.com erdal elevated a hormone called prolactin trials devoted solely to puni- U.S. District Court for the District of Mas- and created an increased risk of gyneco- tive damages. sachusetts, and In re: Stryker LFIT CoCr mastia, or breast-tissue growth in boys. V40 Femoral Heads Hip Implant Litiga- Senior Judge Eugene B. Strassburger, It appears Janssen has left the door open tion, (case number 624, docket number writing for the unanimous panel, said: for another appeal. The Pledgers are repre- BER-L-7859-17) in the Superior Court of sented by Stephen A. Sheller of Sheller PC, Bergen County, New Jersey. At the time Dr. [Jan] Mathisen ini- and Tom Kline, Chip Becker, Christopher tially prescribed Risperdal to Austin, A. Gomez and Ruxandra M. Laidacker of Source: Law360.com Dr. Mathisen had no reason to Kline & Specter PC. The case is Pledger et believe that Risperdal would have al. v. Janssen Pharmaceuticals et al., any different effect on Austin’s pro- (case number 2088 EDA 2016) in the Supe- DaVita Settles Dialysis Lawsuits lactin level than any other drug in rior Court of Pennsylvania. its class. This is clearly not ‘substan- Source: Law360.com National dialysis chain DaVita Health- tially the same’ knowledge that the care Partners Inc. has reached a settlement risk of gynecomastia was 23 times with the families of three patients who what Dr. Mathisen reasonably won a $384 million jury verdict in suits believed it to be. Settlement Reached In Stryker Hip claiming their relatives died when DaVita Replacement Suits knowingly used a dangerous solution The Pledgers’ case was considered a during their treatment. A joint motion was bellwether case for a large number of law- The makers of Stryker hip replacement filed in Colorado federal court by the fami- suits nationwide connecting Risperdal to components have reached a confidential lies and DaVita telling U.S. District Judge R. gynecomastia. It was the first case to go all settlement with patients who had surgery Brooke Jackson the parties had reached a the way to a verdict in the family’s favor. to replace those components. The confi- settlement in the three lawsuits. The Janssen sought to overturn the verdict on dential settlement includes a multidistrict motion asked for more time to get all the various grounds, including casting doubt litigation (MDL) case in Massachusetts necessary signatures before filing the on the qualifications of the Pledgers’ federal court and a multicounty litigation required dismissal paperwork. expert witness linking Austin’s use of Risp- in New Jersey state court. These cases A jury awarded the families of Irma erdal to his development of breasts. were consolidated in 2017. About 125 Menchaca, Gary Saldana and Deborah The Pledgers filed their own appeal cases dealing with Stryker’s unique LFIT Hardin, all DaVita patients, just under $384 seeking a new trial exclusively on Janssen’s Anatomic Cobalt Chromium V40 femoral million. The jury found that DaVita was punitive liability and any damages it might heads have been centralized in Massachu- negligent and committed fraud by conceal- owe, since a lower court judge had said setts federal court since the U.S. Judicial ment when it used a solution during the New Jersey law applied to punitive Panel on Multidistrict Litigation decided in patients’ dialysis that it knew could cause damages and outweighed Pennsylvania April to allow plaintiffs to consolidate life-threatening reactions. Each of the fam- law, granting summary judgment on puni- their claims. More than 140 other cases ilies received $125 million in punitive tive damages to Janssen. have been consolidated in New Jersey damages in the verdicts. Hardin’s family The Superior Court panel noted that the state court. was awarded $5 million in compensatory appeals court had remanded other similar The Stryker component, used for artifi- damages, Menchaca’s family received $2 Risperdal cases where the lower courts cial hips, was manufactured by Howmed- million and Saldana’s family received had only considered whether Pennsylvania ica Osteonics Corp. and was subject to two $1.5 million. or New Jersey law applied, rather than also separate recalls after patients complained The suits, which had a joint jury trial, considering the law of the Plaintiffs’ home of pain, difficulty walking and tissue claimed DaVita knew that the solution it states. The court had remanded those damage from corrosion of the products was using during its patients’ dialysis, cases to reconsider conflict-of-law princi- that required further surgery. GranuFlo, could cause cardiac arrest. It ples between New Jersey and the home U.S. District Judge Indira Talwani wrote was alleged that DaVita learned about the state and did the same for the Pledgers, in an order last month that Archer Systems risks before the U.S. Food and Drug Admin- whose home state was Alabama. LLC will be the settlement administrator. istration (FDA) did, but it failed to stop Tom Kline and Chip Becker, lawyers Judge Talwani said discovery in the litiga- using GranuFlo and also failed to warn its with Kline & Specter PC, who represent tion will be stayed until July 31, 2019, physicians to watch for the reactions. the Pledgers, said in a statement: unless Howmedica exercises its settlement Menchaca and Hardin died in the middle walk-away rights. Judge Talwani previously of dialysis at their local DaVita clinics, and We are pleased that the Superior had scheduled the first bellwether trial to Saldana died shortly after he received dial- Court has affirmed the jury verdict begin in September 2019. ysis at another DaVita clinic. The FDA in favor of Austin Pledger, whose The Plaintiffs were represented in the recalled GranuFlo, which is made by Frese- case was the first bellwether Risp- settlement negotiations by Peter J. Flowers nius Medical Care North America, in 2012. erdal trial. This is now the third of Meyers & Flowers, Brenda S. Fulmer and The cases went to trial in June, and the plaintiffs’ verdict in which the suffi- C. Calvin Warriner III of Searcy Denney jury came back with its verdict on June 27. ciency of the evidence has been Scarola Barnhart & Shipley, Walter Kelley The Plaintiffs are represented by Molly affirmed by the Superior Court and of Bernheim Dolinsky Kelley, Michael L. Booker and Robert Carey of Hagens the case remanded for punitive McGlamry and M.J. Blakely of Pope Berman Sobol Shapiro LLP and Stuart damages proceedings, and the McGlamry Kilpatrick Morrison & Paynter and Sara Willingham of Paynter second published opinion where the Norwood, Joseph Osborne of Osborne & Law Firm PLLC. The lead case is White v. court categorically rejects a Frye Francis, Ashleigh Raso of Meshbesher & DaVita Healthcare Partners Inc., (case challenge to plaintiffs’ expert causa- Spence and Ellen Relkin of Weitz number 1:15-cv-02106) in the U.S. District tion testimony. This litigation has & Luxenberg Court for the District of Colorado. unquestionably turned strongly in The cases are In re: Stryker LFIT V40 Source: Law360.com the plaintiffs’ favor with many addi- Femoral Head Products Liability Litiga- tional listings ahead, including two tion, (case number 1:17-md-02768) in the

JereBeasleyReport.com 15 NHL Now Facing Lawsuits Relating To CTE already had a concussion this new season. that Dr. George Petit, her surgeon, kept up Issues But it’s hard to track just how many con- with medical literature and that complica- cussions NHL players experience, because tions from the device were well-known in It has been quite evident that in many teams are not required by the league to the medical community. Judge professional and amateur sports, athletes publicly release injury news. As a result, it Erdos added: face a heightened risk of head impacts and is difficult to ascertain just how well the traumatic brain injuries (TBI). A TBI is NHL’s updated policies and procedures Therefore, he may have known the caused by a blow or other head trauma are working. true risks of harm associated with that changes how a brain normally func- A number of our firm’s clients have suf- the TVT-Secure despite appellant’s tions. Without properly addressing TBIs, fered TBIs. It has been because of their failure to warn pelvic floor surgeons over time athletes can develop Chronic experiences in litigation that our lawyers directly. Moreover, it became clear at Traumatic Encephalopathy (CTE), which is understand the severity of the injuries and trial that Dr. Petit did not communi- caused by repeated head impacts over a the importance of access to services. In cate to [Adkins] all of the risks that number of years, or chronic TBIs. It is an fact, some of our lawyers provide leader- [Ethicon] did make known to sur- incurable and fatal degenerative brain ship and guidance on the Alabama Head geons like Dr. Petit. disease that can only be diagnosed after Injury Foundation’s state and local boards. Judge Erdos said the jury could find that death, during an autopsy. If you have a case involving a traumatic adequate warnings would not have Recently, football has been front and brain injury, contact Mike Andrews, a changed Dr. Petit’s decision to recommend center in the debate regarding concussions lawyer in our firm’s Personal Injury & the device or his discussion with Ms. in both youth and professional sports. In Products Liability Section, at 800-898-2034 Adkins. The lawsuit was filed in July 2013 fact, the NFL has responded to chronic or by email at Mike.Andrews@beasleyal- seeking damages after a portion of the traumatic encephalopathy concerns by len.com, or Rachel Boyd, a lawyer in our TVT Secur implant eroded into the paying out more than $765 million to settle firm’s Consumer Fraud & Commercial Liti- woman’s vaginal canal, leaving her in sig- lawsuits brought by retired players, as well gation Section, at 800-898-2034 or by nificant pain. The mesh erosion resulted in as scrambling to improve training and email at [email protected]. . her undergoing surgery to remove a equipment, and even fundamentally portion of the implant in September 2012. changing rules to try to eliminate the most Ethicon’s victory at trial came after violent collisions. New J&J Pelvic Mesh Trial Ordered In losses in four prior mesh-related cases Although it is discussed far less, the Pennsylvania dating back to December 2015 that have National Hockey League (NHL) is also left the company facing nearly $50 million facing criticism and lawsuits related to the Philadelphia Court of Common Pleas in damages. League’s complicated relationship with Judge Michael Erdos ordered a new trial in Ms. Adkins is represented by Bryan Ayl- concussions and CTE. In 2013, former a woman’s suit alleging she was injured by stock, Daniel Thornburgh and James hockey players brought a lawsuit against a pelvic mesh implant made by a Johnson Barger of Aylstock Witkin Kreis & Over- the NHL claiming the League should have & Johnson unit. Judge Erdos previously holtz PLLC and Lee Balefsky of Kline & - done more to educate them about concus overturned part of the verdict that had Specter PC. The case is Kimberly Adkins sion-related risks inherent in the sport. been in the company’s favor. A 2017 jury v. Ethicon Inc. et al., (case number While the NFL has taken great effort to had found that while the Ethicon pelvic 130700919) in the Court of Common Pleas reduce the risk of concussions and CTE in mesh Plaintiff Kimberly Adkins was of Philadelphia County, Pennsylvania. players, the NHL is still fighting its lawsuit implanted with was defectively designed, Source: Law360.com five years later. the company didn’t cause the injuries that NHL commissioner Gary Bettman has both sides acknowledged. Last year Judge said the suit “doesn’t have merit” and he Erdos ruled that the jury verdict was denies a link between blows to the head inconsistent and overturned that part of Onglyza Cases Centralized In The Eastern and CTE. A series of trials is currently the verdict. He said the jury’s finding that a District Of Kentucky scheduled for 2019, but reportedly the design defect wasn’t a proximate cause of parties are attempting to move closer to the Plaintiff injury went against the weight The Judicial Panel on Multidistrict Litiga- settlement. of the evidence and entitled the Plaintiff to tion (JPML) in February consolidated all While still not admitting a link between a new trial. Onglyza lawsuits in the United States Dis- head injuries and CTE, the NHL has gotten Both the Plaintiff’s expert, obstetrician- trict Court for the Eastern District of Ken- more serious about brain injury along with gynecologist Dr. Bruce Rosenzweig, and tucky. There are 220 lawsuits pending in the rest of the sporting world, banning her treating physician testified that Eth- the Onglyza MDL as of October 2018. checks to the head from a lateral or blind- cion’s so-called TVT Secur pelvic mesh, Onglyza was first introduced to the side position and following the NFL in which Kimberly Adkins had implanted in market in July 2009 as a treatment for Type introducing designated “concussion spot- July 2010 to treat her urinary stress incon- II Diabetes Mellitus. The drug works pri- ters”—trained officials whose duty it is to tinence, caused her pain, burning and irri- marily by attempting to reduce the A1C watch games and identify players who may tation. Judge Erdos pointed out that levels to a normal, healthy level. Onglyza have suffered a head injury. The NHL has Ethicon’s own expert conceded that the has been the subject of recent litigation also updated its concussion protocol to mesh injured Adkins, necessitating surgery because of the drug’s association with include “central spotters” watching every to remove it. increased risk of congestive heart failure, game from NHL offices. The jury also found that Ethicon’s warn- acute hypoxic respiratory failure, and cor- Although the NHL has a reticence to ings were inadequate, but Judge Erdos said onary artery disease (among other cardio- admit a link between CTE and blows to the that a new trial was warranted on that vascular-related complications already head, it cannot be disputed that without claim, saying that the jury’s findings on common in Type II diabetics). proper rules and training, games can be that issue don’t necessarily mean that When Onglyza was first introduced to dangerous for players. To date, there is a those warnings caused Adkins to be the market in 2009, it did not adequately growing list of NHL players who have injured. The judge said there was evidence warn patients or doctors about the link to

16 BeasleyAllen.com these significant side effects. It wasn’t until drugs and pancreatic cancer was “inconsis- The Pennsylvania Public Utility Commis- after the drug was sold to patients across tent with the current data” and that the sion’s Bureau of Investigation and Enforce- the country that the U.S. Food and Drug “current knowledge is adequately ment has filed notice that it wants to fine Administration (FDA) required additional reflected” in the product labels. UGI $2.1 million over the explosion. The warnings, which were added in April 2016. Plaintiffs contended that the FDA’s posi- investigators claim UGI failed to properly Onglyza lawsuits have been filed in a tion article was not determinative of the react to the leak by shutting off the gas number of federal courts across the causation issue, and the article itself main to the neighborhood. country. At the time of consolidation, there acknowledged as much, stating that the Source: Pennlive.com were 84 cases pending in more than 30 FDA had not reached a “final conclusion at federal district courts. The Judicial Panel this time regarding such a causal on Multidistrict Litigation (JPML) decided relationship.” to centralize these suits in the Eastern Dis- The trial court agreed with Defendants’ Wife Of Worker Killed In Explosion trict of Kentucky because it was relatively interpretation of the article and granted Files Suit accessible to both sides and the longest summary judgment in Defendants’ favor. pending Onglyza action was already However, the appellate court saw things The wife of Omar Solis, who was killed pending in this court. differently, and reversed the trial court. on Nov. 3 in an explosion in Chicago, has Onglyza is just one of many Type II dia- The court determined, among other filed a wrongful death lawsuit against betes drugs facing litigation in recent things, that the evidence offered by Defen- Metro Transit Co., the commuter rail years. Others include Invokana and dants did not reach the high bar of “clear agency in the city. Sandy Zavala filed her Farxiga, which are in a class known as evidence” needed to establish that the FDA suit in Cook County claiming that Metro SGLT2 inhibitors. Invokana was manufac- would have rejected any proposed label failed to provide her husband, who was a tured and marketed by Johnson & Johnson warning by Defendants. Metro track inspector, with a reasonably and has been linked to a significantly The California state court consolidated safe place to work. increased risk for amputations, diabetic cases have now been reinstated and dis- The lawsuit also contends among other ketoacidosis and acute kidney injury. covery has resumed. This outcome is con- allegations that Metro violated engineering Johnson & Johnson recently agreed to sistent with the Federal multidistrict rules regarding the use of flammable gas settle a number of Invokana cases with the litigation (MDL) Court’s ruling late last tanks and failed to provide sufficient man- amounts of settlements being confidential. year. Those cases are again moving power to perform the assigned tasks. The If you need more information, contact Liz forward as well. If you need more informa- Plaintiff filed an emergency motion to Eiland, a lawyer in our firm’s Mass Torts tion on this matter, contact David Dearing, inspect and preserve evidence, including Section, at 800-898-2034 or by email at Liz. a lawyer in our firm’s Mass Torts Section, trucks, welding equipment and rail- [email protected]. at 800-898-2034 or by email at David. road tracks. [email protected]. The decedent and another worker were Sources: United States Judicial Panel on Multidistrict using torches to make repairs to elevated Litigation, Onglyza US Consumers Website and Beasley Allen “Invokana” tracks when the explosion occurred. Solis, a father of two boys, was pronounced dead XI. at a local Illinois hospital about 30 minutes after the explosion. The second man Incretin Therapy (Byetta, Januvia, Janumet, PREMISES working at the scene was taken to a local Victoza) Consolidated State Court Claims LIABILITY UPDATE hospital in critical condition. Update The decedent, who was from a railroad family, started working at Metra when he We will give you an update on the Incre- was 20 and had a 17-year-long career with tin Therapy Litigation because of an impor- Lawsuit Filed Over Natural Gas Explosion the agency. It should be noted that railroad tant ruling on preemption. The California workers in Illinois are not subject to state Court of Appeal (Second Appellate Dis- The widow of a UGI Utilities employee workers’ compensation laws. trict) reversed the trial court’s summary who was killed in a July 2017 natural gas judgment order last month, reinstating explosion that destroyed a house in Penn- approximately 300 cases involving Incre- sylvania has filed a wrongful death suit tin therapy. Plaintiffs had alleged state-law over her husband’s death. Plaintiff Kim XII. claims asserting that pharmaceutical man- Bouder sued Honeywell International Inc. ufacturers failed to warn consumers that a and other Defendants in Philadelphia WORKPLACE class of diabetes medication commonly County Court. She says a defective part HAZARDS known as “incretin-based drugs” increases made by Honeywell caused the explosion. the risk of pancreatic cancer. Richard Bouder, 54, was killed by flying The manufacturers moved for summary debris when the explosion occurred as he judgment arguing that Plaintiffs’ claims investigated a gas leak at the home. Workplace Hazards—Transportation Is The were preempted under Wyeth v.Levine It’s alleged in the complaint that the Leading Cause Of On-The-Job Fatalities (2009) 555 U.S. 555, saying the undisputed blast can be traced to a defective T cou- evidence showed the Food and Drug pling made by Honeywell that connected In 2016, 5,190 US workers were killed on Administration (FDA) would not have per- the home to the gas supply line. The gas the job according to Occupational Safety mitted a warning for pancreatic cancer was leaking from that tee, according to the and Health Administration (OSHA). That had one been submitted by the manu- suit, which also names Contractors Group averages out to approximately 99 people facturers. Inc., a Wilkes-Barre firm that installed the per week, or more than 14 people per day. Defendants’ contentions were based pri- tee, as a Defendant. It’s alleged that PPL, a Unfortunately, fatal work injuries have marily on a 2014 publication by FDA scien- named Defendant, was at fault for not been on the rise for three consecutive tists suggesting that evidence for the turning off the electricity to the home years. Contemplating those stats likely proposed causal association between the until after the blast.

JereBeasleyReport.com 17 leads one to think about heavy industry • Avoid aggressive driving. control system and tells it if the plane is in and other seemingly “dangerous jobs.” danger of stalling. However, many of those deaths are suf- • Keep your cool in traffic! In its latest iterations of the 737 (MAX 8 fered by those working much more innoc- • Be patient and courteous to and 9), Boeing incorporated a new auto- uous occupations. In fact, the most other drivers. mated stall-prevention system called a common on-the-job cause of death is auto- Maneuvering Characteristics Augmenta- mobile accidents. Truck and delivery • Do not take other drivers’ actions tion System (MCAS) as part of the flight drivers along with traveling sales workers personally. control system. The MCAS can push the are among the occupations with the plane’s nose down unexpectedly, even highest on-the-job fatality rates. • Reduce your stress by planning your when the aircraft is in the manual opera- Forty percent of the 5,190 on-the-job route ahead of time (bring the maps and tional mode, CNN reported. While Boeing fatalities were attributed to automobile directions), allowing plenty of travel said pilots can override the automatic accidents. Interestingly, this is more than time, and avoiding crowded roadways action by using extra force, safety experts construction and heavy industry deaths and busy driving times. and U.S. officials disagree. They explain combined. Falls and deaths caused by that the automatic system can push the Lawyers in our firm routinely see acci- machinery or equipment were beat out by nose down so strongly that flight crews dents resulting in serious injuries and violence as the second most likely cause of cannot pull it back up. In fact, new data death due to careless and distracted on-the-job deaths. The occupation with the released by Indonesian investigators drivers. Hopefully OSHA’s campaign will second highest on-the-job death rate was showed pilots of Flight 610 were pulling decrease the number of on-the-job automo- farmers, ranchers and other agricul- back on the control column with a force of bile accident fatalities. If you need more tural workers. as much as 100 pounds of pressure, information, contact Evan Allen, a lawyer In response to the high rates of automo- Fortune reported. in our firm’s Personal Injury & Product Lia- bile-related on-the-job fatalities, OSHA Within seconds after takeoff, numerous bility Section at 800-898-2034 or by email issued a safety bulletin titled “Safe Driving warnings began blasting in the cockpit of at [email protected]. Practices for Employees.” It is not uncom- the doomed flight, including a stick shaker mon for OSHA to issue safety recommen- Sources: https://www.nsc.org/work-safety/tools- on the captain’s side. The stick shaker is a dations to employees; however, it is resources/infographics/workplace-fatalities and https:// loud device that thumps and vibrates the interesting in the context of safe driving. www.osha.gov/Publications/Safe_Driving_Practices. control column to let pilots know they are pdf These OSHA recommendations overlap in danger of losing lift on the wings. It with many of the Department of Transpor- appears that the device was activated by tation’s recommendations and guidelines an erroneous reading from the malfunc- for commercial carriers, yet OSHA has no XIII. tioning AOA sensor on the captain’s side, authority to enforce most of these recom- which indicated that the plane’s nose was mendations. Moreover, many of the recom- TRANSPORTATION too high. Although the AOA sensor on the mendations are common sensical and/or co-pilot’s side did not reflect the same already law. Nevertheless, due to the stag- LITIGATION reading, nor did it activate the copilot’s gering numbers of workers killed on the stick shaker, the erroneous reading trig- road, OSHA issued the following gered the MCAS to lower the air- guidelines. The Tragic Lion Air Crash: A Recipe For craft’s nose. Disaster Despite the fluctuations in altitude, the Stay Safe flight crew was able to control the plane The crash of a two-month-old Boeing for the first 10 minutes of the flight, but • Use a seat belt at all times—driver and 737 MAX 8 jet claimed the lives of 189 pas- the crew was not able to override the sys- passenger(s). sengers and crew members on Oct. 29, just tem’s final plunge. It is clear that the pilots 13 minutes after takeoff from Jakarta, Indo- were fighting a losing battle trying to keep • Be well-rested before driving. nesia. The airplane for Lion Air Flight 610 the plane in the air during the final • Avoid taking medications that make had logged only 800 hours and is touted to minutes prior to the crash. you drowsy. be the “top of the line” and “one of the The initial findings prompted Boeing to best you can buy.” So, its short life has issue warnings as part of the Operations • Set a realistic goal for the number of raised grave concerns about several factors Manual Bulletin. The U.S. Federal Aviation miles that you can drive safely each day. that seem to have contributed to the Administration (FAA) followed with Air- tragedy. At press time, the actual cause of worthiness Directive 2018-23-51. The • If you are impaired by alcohol or any the crash had not officially been deter- warnings were issued to all owners, opera- drug, do not drive. mined. However, as the investigation tors and air carriers using the 737 MAX Stay Focused unfolds, findings by the Indonesian Trans- about the potential for erroneous readings portation Safety Committee appear to from flight-control software on the air- baffle many in the aviation industry. • Driving requires your full attention. craft. The manufacturer claimed its Avoid distractions, such as adjusting the warning reinforced procedures that were radio or other controls, eating or drink- Malfunctioning hardware and software included in the aircraft’s flight manual. ing, and talking on the phone. After recovering the flight data record- ers, investigators zeroed in on malfunc- Boeing’s alleged failure to inform • Continually search the roadway to be tioning angle of attack (AOA) sensors, However, Bloomberg reported the three alert to situations requiring quick action. according to Bloomberg. The AOA sensors largest pilots’ unions in the U.S., including tell the flight crew the plane’s angle or the Southwest Airlines Pilots Association, • Stop about every two hours for a break. degree of ascent or descent. The sensors’ the Allied Pilots Association at American Get out of the vehicle to stretch, take a data is communicated to the plane’s flight Airlines Group Inc. (APA) and the Air Line walk, and get refreshed. Pilots Association (representing United

18 BeasleyAllen.com Continental Holdings Inc.’s flight crews), At least one family has pushed for faster who was allegedly known to be a reck- along with Lion Air, refute Boeing’s asser- accountability and has filed the first of less driver. tions about the warning. They claim that what will likely be many lawsuits. The Pearson and Eddie McPherson are repre- Boeing withheld critical information about family of Dr. Rio Nanda Pratama has filed sented by John Hull and Brent Goudarzi of the new system and that the first time they suit against Boeing in the Circuit Court of Goudarzi & Young LLP. The case is learned about it was through the warnings Cook County Illinois, which serves as the McPherson v. Jefferson Trucking et al., issued by Boeing and the FAA following headquarters for Boeing. (case number 16-00247) in the District the Lion Air crash. The discovery has If you need additional information on Court of Upshur County, Texas, 115th Judi- prompted the unions and their members the above subject, or any other matter cial District. to question what other information they dealing with aviation litigation, contact Source: Law360.com have not been privy to about the new 737 Mike Andrews, a lawyer in our Personal models and how they can operate a plane Injury & Products Liability Section, at 800- without knowing about all the systems 898-2034 or by email at Mike.Andrews@ on board. beasleyallen.com. Mike, who leads the The Overused Defense In 18-Wheeler Truck The new MCAS system was designed to team of lawyers handling aviation litiga- Wreck Cases Of Sudden Medical Emergency operate only in rare conditions while tion for the firm, will be glad to pilots are flying the aircraft in manual talk with you. There seems to be an increased ten- operational mode. It is, most likely, for this dency in 18-wheeler drivers and trucking Sources: CNN, Bloomberg, Fortune, Boeing, Federal companies in civil litigation who blame reason Boeing didn’t include the critical Aviation Administration (FAA) and USA Today information in the flight manual for the their collisions on sudden medical emer- 737. The pilots are demanding that the gencies. They often claim that medical information is added and have said Boe- complications such as syncope, heart Jury Awards $260 Million In Wrongful ing’s withholding of the information vio- attacks, diabetic events, seizures, strokes, lated the aviation industry’s “safety Death Lawsuit severe sneezing, cramps, reactions to med- culture.” Additionally, although it isn’t icine, and even mental delusions caused A Texas jury has awarded $260 million clear why, the 737 is fitted with a separate the incident. Many of these events can be in a lawsuit involving the death of a man component that makes it more difficult to medically confirmed, but many go undiag- killed when his van ran into the side of a pull back if a stall has been indicated. nosed and cannot be confirmed with tractor-trailer positioned across all four objective medical testing. lanes of a highway. On Feb. 13, 2016, the The Sudden Medical Emergency defense Cleared to fly despite persistent 21-year-old victim, Riley McPherson, was falls in the category of defenses known as problems driving a 2008 Chevy Express van south- an “Act of God.” The thought is that those Further, Flight 610 was not the first time bound on Highway 271 at 5:35 a.m. when a motor vehicle accidents are unavoidable the aircraft encountered problems. It expe- tractor-trailer driven by Eric Wayne Jeffer- and could not have been prevented with rienced airspeed and altitude problems on son “suddenly” pulled out of a private reasonable human care. its last four flights including a flight from driveway, positioning itself to back in once This defense is often an excuse for an Manado, in North Sulawesi, to Denpasar, more. As Jefferson’s truck sat blocking the event that was very avoidable. Lawyers in Bali, the day before Flight 610. Airspeed two northbound and two southbound our firm have been litigating one such case problems prompted technicians to change lanes, Riley McPherson crashed into the for some time. In that case, the truck the AOA sensors as instructed by the side of the trailer and was killed in the col- driver had a history of falling-asleep acci- Boeing troubleshooting manual. The plane lision. The truck driver had been driving at dents, sleep apnea and excessive daytime was then declared fit to fly. On its next that point for 17 hours, much longer than sleepiness. Despite those facts, the truck flight, despite the roller-coaster takeoff, the maximum allowed by federal law. driver instead claimed he had a syncope which would have sent some pilots back to The jury awarded $80 million to the event that caused him to lose conscious- the airport, the flight continued to its des- father, Eddie McPherson, for past and ness. The driver failed to tell anyone on tination, Jakarta, Indonesia. Along the way, future loss of companionship and $60 the accident scene of his problem and his the plane experienced more of the same million for his past and future mental doctor could not confirm the diagnosis problems with airspeed, altitude and its anguish; $60 million to the mother, Karen with any testing. AOA sensors. On the ground in Jakarta, Pearson, for past and future loss of com- This defense attempts to show that the maintenance crews addressed a problem panionship and $60 million for her past truck driver or trucking company was with the pitot tubes, which measure air and future mental anguish. placed in a hazardous situation due to no rushing over them to help determine air These amounts will be reduced by 5 fault of their own. This means that they speed. The plane was, once again, declared percent to account for the percentages of went without any warning symptoms or fit to fly—sealing the fate of Flight 610 and fault assigned by the jury. The jury said knowledge that such an event could occur. the 189 souls on board. that Eric Jefferson was 65 percent respon- However, showing that there were sible for the crash, Jefferson Trucking was warning symptoms or knowledge defeats Victims’ families seeking answers and 20 percent responsible, Timothy Jefferson the Defense and puts liability on the truck justice as Eric Jefferson’s employer was 10 percent driver and trucking company. The investigation is just beginning and responsible and Riley McPherson was 5 Quite often it’s possible to show that the typically takes a year or longer to com- percent responsible. driver’s so-called medical event was really plete. Investigators will continue to The jury also said that Eric Jefferson was driver fatigue. This can be accomplished examine the myriad factors that appear to an employee and acting as an employee of through the driver’s past driving record, have contributed to the deadly flight, in Jefferson Trucking and of Timothy Jeffer- medical records and driver logs. addition to understanding how separate son, and that all three Defendants and the Another avenue to defeat these claims is flights with similar conditions and prob- decedent Riley McPherson were negligent. to show that the medical event was fore- lems ended so differently, to give the fami- The lawsuit focused on Jefferson Truck- seeable to the driver or trucking company lies of those who perished the answers ing’s negligence in hiring Eric Jefferson, due to a history or signs of the problem. they are seeking.

JereBeasleyReport.com 19 Discovery aimed at the company can If you would like more information to grant additur in a mesothelioma verdict uncover some most interesting about these cases, you can contact John against asbestos product manufacturer information. Tomlinson or Grant Cofer, lawyers in our Jenkins Bros. In the original trial, the jury Chris Glover, who heads up our Atlanta firm’s Toxic Torts Section, at 800-898-2034 awarded the family of Thomas McGlynn office, is one of the lawyers in the firm or by email at John.Tomlinson@beasleyal- $1.8 million in past pain and suffering. Mr. who handle truck wreck cases. Chris can len.com or [email protected]. McGlynn died from mesothelioma caused be reached at 800-898-2034 or by email at Sources: WSJ.com and Law360.com by asbestos exposure before trial. [email protected]. After the trial, Judge Martin Shulman granted a motion for additur, increasing both the awards for past and future pain Recent Verdicts Find Asbestos Product and suffering, marking the first time in XIV. Manufacturers Responsible For New York City Asbestos Litigation Development Of Mesothelioma (NYCAL) history that a jury’s award was TOXIC TORT judicially increased. Litigation In recent months, Courts around the Recently, New York’s First Department country have delivered awards to victims Appellate Division unanimously upheld CONCERNS diagnosed with mesothelioma due to work- Judge Martin Shulman’s post-trial decision place and associated secondary exposure. to increase the award for past pain and suf- Recently, a jury in North Carolina fering, raising the total value of the Plain- Plaintiffs Throughout The Country Continue Federal Court found Covil Corporation tiff’s verdict to $6.8 million (increasing the liable for the Plaintiff’s mesothelioma. The To File Lawsuits Alleging Their Use Of past pain and suffering award to Plaintiff, Franklin Finch, worked at Fires- Roundup Weedkiller Gave Them Cancer $4 million). tone Tire factory from 1975-1995, insulat- Additionally, the Court also affirmed the Glyphosate (the main ingredient in ing pipes. The insulation Mr. Finch worked decision that Defendants cannot elicit tes- Roundup) is the most commonly used with contained asbestos and he handled timony from Plaintiff’s expert witnesses to weed killer in the world. In 2015, the Inter- these materials daily for 20 years. Mr. prove their specific causation burden. national Agency for Research on Cancer Finch’s widow was awarded $37.7 million They will in fact now be forced to actually (IARC) found that glyphosate is “probably in compensation for Covil Corp.’s negli- meet their burden of proof and potentially carcinogenic to humans.” Since then, thou- gence, which caused Mr. Finch’s death. waive their medical defenses if they sands of Plaintiffs throughout the country Similarly, a jury in New Orleans attempt to point their fingers at settled have filed lawsuits against Monsanto (now returned a verdict concerning asbestos Defendants at trial. The Court also owned by Bayer) alleging that exposure to containing insulation. In October, the affirmed the recklessness finding and Roundup caused them or their relatives to family of the Plaintiff Donald Foret was established a standard that the Defendant develop Non-Hodgkins Lymphoma and awarded $5.5 million for Mr. Foret’s expo- need not be aware of merely the hazards of that Monsanto failed to warn them of sure to asbestos while working as an insu- their products to the Plaintiff, but also to the risks. lator at Main Iron Works. similarly situated individuals. Finally, the The first such case to go to trial alleging A jury in Oakland, California awarded a Court denied the argument that all settled that exposure to Roundup weedkiller Plaintiff who developed mesothelioma due parties must appear on the verdict sheet. causes cancer resulted in a combined $289 to a more indirect exposure to asbestos. For more information about asbestos million jury verdict in California state The Plaintiff Barbara Barr and her husband exposure or mesothelioma, contact court in August 2018. Though that verdict owned and operated an automobile store Beasley Allen mesothelioma lawyer Sharon was subsequently reduced by the court to in the 1980s. While Mrs. Barr worked in J. Zinns, who is in our Atlanta office, at $78.6 million, the court upheld the jury’s the office area, her husband performed the 800-898-2034 or by email at Sharon. finding that Roundup caused the Plaintiff’s automotive work in the auto parts section [email protected]. cancer and that Monsanto had acted of the store. Mrs. Barr’s exposure resulted with malice. from the changing of brakes made with asbestos, specifically ESI brakes, in the At the end of August there were approxi- California Issues New PFOA And PFOS mately 8,700 lawsuits pending against auto shop and from simply opening the Guidelines Bayer across the country, with this number boxes containing the brakes. The jury found the brake manufacturers, Parker- having jumped to 9,300 filings as of late The California State Water Resources October. Bayer has disclosed that the Hannifin and Standard Motor Products, strictly liable and awarded more than $8.6 Control Board has released its revised number of lawsuits continues to rise and drinking water guidelines following the that it expects the filings to continue to million to Mrs. Barr. If you would like more information discovery of PFOA and PFOS in the state’s grow. Bayer has continued to vigorously drinking water. PFOA and PFOS are used contest each lawsuit, arguing that scien- about these cases or have any questions concerning asbestos related illnesses, you in the production of consumer products tific evidence does not establish a link for waterproofing, stain-resistance, and between Roundup and cancer. can contact Ashtyne Traylor, a lawyer in the Toxic Torts Section. She can be non-stick surfaces as well as in firefighting A California judge has granted a couple’s foam used at airports and military bases. request to expedite the trial schedule for reached at 800-898-2034 and by email at [email protected]. While effective, these chemicals pose risks their lawsuit alleging Monsanto’s Roundup to both the environment and and Ranger Pro herbicides gave them human health. cancer, saying their health could impact The new guidelines established by the their ability to pursue their claims. The New York First Department Appellate Win Board create a notification level of 14 parts trial was set for March 18. The ruling could Against Jenkins Brothers per trillion (ppt) for PFOA and 13 ppt for make it the third product liability case of PFOS. When the notification levels are its kind over Monsanto’s Roundup and Last month an Appellate Court in New exceeded, it is recommended that the Ranger Pro set to go to a jury. York City affirmed a trial court’s decision water source be removed from service and

20 BeasleyAllen.com treated. Although this is merely a prelimi- cation with the Judicial Panel of employee of Duke Energy Corp. developed nary advisory, California is yet another Multidistrict Litigation (JPML) requesting Myelodysplastic Syndrome (MDS) as a state to set advisory levels far below the 70 that the fire-fighting foam lawsuits be des- result of exposure to benzene-containing ppt established by the U.S. Environmental ignated as a multidistrict litigation (MDL). products. In the complaint filed last month Protection Agency (EPA) in 2016. The The use of AFFF during routine fire extin- in the U.S. District Court for the Western Board used the EPA’s 70 ppt to set a guishing exercises has contaminated District of North Carolina, the Plaintiffs response level which requires the water drinking water supplies of local communi- stated that the exposure happened in source to be removed from service entirely ties surrounding military bases around the North Carolina and, therefore, personal if it is unable to reduce PFOA and PFOS country. There has been documented use jurisdiction exists. Rhyne, et al. v. U.S. levels below the limit. of the firefighting foam at hundreds of Steel Corp., et al., No. 18-00587 Newly promulgated regulations will also sites where fire training and crash training (W.D. N.C.). require businesses to adequately warn exercises have been conducted Plaintiffs Gordon E. and Carol Rhyne employees who may be exposed to PFOA for decades. filed the lawsuit, noting that it was origi- or PFOS. Starting in November 2018, com- AFFF contains perfluorinated chemicals nally first filed in Pennsylvania state court. panies doing business in California with 10 (PFCs), which are highly toxic and have In their complaint, the Plaintiffs said that or more employees are required by the Cal- been linked to neonatal death, liver toxic- Gordon Rhyne was exposed to benzene- ifornia Office of Environmental Health ity, immunity problems, endocrine disor- containing products in both an occupa- Hazard Assessment to provide adequate ders and certain cancers. The tional and a non-occupational capacity. Mr. warning to their employees before know- Environmental Protection Agency (EPA) Rhyne in part said he came into contact ingly exposing them to PFOA or PFOS con- has suggested that exposure to PFCs may with the products while working with taminants. These chemicals were included lead to adverse effects including, but not Duke Energy Corp. at its Riverbend Facility under the State’s Proposition 65 list of con- limited to, low birth weight, accelerated from March 1970 to May 2006. During the taminants known to cause reproductive puberty, and immune and thyroid disor- course of his employment, he worked with toxicity. Regulation under Proposition 65 ders. The Plaintiffs, including individuals penetrating solvents, oil, paint thinners, subjects businesses to civil penalties up to and municipalities, allege that the manu- lubricating oil, and other benzene-contain- $2,500 per violation per day as well as an facturers were aware of the hazardous ing products used for maintenance and award of attorneys’ fees if they fail to nature of these toxic chemicals mechanical activities. conform to the new regulations. for decades. As a result of the exposure, Mr. Rhyne Both states and the federal government The manufacturers seek the transfer of said he developed MDS. While the com- have made significant progress in updating the cases to the U.S. District Court for the plaint was pending in Pennsylvania state their toxicological profiles of PFOS and District of Massachusetts or to the South- court, Defendant CRC Industries moved to PFOA and recommending new or stricter ern District of New York. The majority of dismiss the action, arguing that the Plain- exposure limits. As this occurs, we expect Plaintiffs do not oppose the consolidation tiffs are residents of North Carolina and an increase in the number of lawsuits filed of the cases but did file a response with that all of the alleged exposures occurred by water systems and individuals whose the JPML requesting that the cases be in North Carolina. The Pennsylvania Court drinking water has been contaminated. transferred to the Northern District of of Common Pleas for Philadelphia County Our firm, along with Roger H. Bedford Alabama. Approximately 85 cases are cur- sided with the Defendant and granted the of Roger Bedford & Associates, has filed rently pending in the district courts of motion to dismiss without prejudice with lawsuits on behalf of the water systems in several states. The number of court filings leave to re-file the action in North Carolina Gadsden and Centre, Alabama. These com- is growing steadily, and some cases have “or any other appropriate jurisdiction.” plaints allege that carpet and textile com- progressed into the discovery phase. John Tomlinson, a lawyer in our firm’s panies, manufacturers, and chemical The JPML agreed to hear oral arguments Toxic Torts Section, has filed a number of suppliers located upstream in Dalton, on Nov. 29 over whether to consolidate benzene exposure cases. He is currently Georgia are responsible for contaminating and centralize the lawsuits. If the JPML investigating other potential cases. If you the Coosa River and Weiss Lake. The law- granted the request for the creation of an need more information on this contact suits were filed to ensure that these enti- MDL, the cases will be consolidated and John at 800-898-2034 or by email at John. ties, not ratepayers in Gadsden and Centre, transferred to one court for pretrial pro- [email protected]. would pay to decontaminate their drink- ceedings. Both parties agree that the con- Source: Harris Martin Publishing ing water. solidation and centralization of the cases in Beasley Allen lawyers are investigating one court will prevent contradictory other PFC contamination cases. If you have rulings and prevent duplicative discovery. any questions about this subject, contact If you have any questions concerning Wrongful Death Suit Filed Against Turtle Rhon Jones, Rick Stratton or Ryan Kral, this matter, contact Rhon Jones or Megan Wax Inc. lawyers in our firm’s Toxic Torts Section, Robinson, lawyers in our firm’s Toxic Torts at 800-898-2034 or by email at Rhon. Section, at 800-898-2034 or by email at A Plaintiff in Madison County, Illinois, [email protected], Rick.Stratton@ [email protected] or Megan. has filed suit against Turtle Wax Inc. alleg- beasleyallen.com or Ryan.Kral@beas- [email protected]. . ing that the car wax manufacturer’s failure leyallen.com. to exercise reasonable care in the develop- ment and sale of its car wax products Sources: Bloomberg News caused the death of her husband Rodney Plaintiffs Re-File Benzene Complaint In Alford. According to the complaint, the North Carolina Court decedent regularly applied Turtle Wax car Potential Consolidation Of Aqueous Film- polish on his vehicles throughout his life- Forming Foam Lawsuits Recently, benzene Plaintiffs have re-filed time, and thereby unknowingly exposed their lawsuit in a North Carolina federal himself to benzene within the product The manufacturers of aqueous film- court after a Pennsylvania state court dis- through inhalation and dermal contact forming foams (AFFF) have filed an appli- missed their claims on forum non conveni- with the polish. The lawsuit alleges as a ens grounds, arguing that a former

JereBeasleyReport.com 21 result of years of using Turtle Wax’s auto- able and completely dependent upon supervision and monitoring while she mobile polish, Mr. Alford was diagnosed nursing home staff to meet most or all was eating. with Acute Myeloid Leukemia in 2000 and their needs, including personal needs and subsequently died from the obtaining needed medical care, treatment, • We are also handling a case for the disease in 2016. and services. All nursing home residents family of a Georgia woman who because Benzene is one of the 20 most widely have the right to live in a safe environment of the nursing home’s failure to prevent, used chemicals in the United States, and is that supports each resident’s individuality properly treat, and seek additional a naturally occurring part of crude oil and and ensures they receive care that meets medical care allowed her to develop a gasoline. Human exposure to benzene has or exceeds medical standards and are bed sore that became septic causing her been associated with a range of acute and treated with respect and dignity. to suffer tremendous pain and suffering long-term effects and diseases, including Although many nursing homes provide for more than two years and ultimately cancer and aplastic anemia. Benzene is a good care to their residents, maltreatment, caused her death. known carcinogen, based on evidence abuse and neglect of residents can and Our firm is fighting to protect the safety from both human and animal studies, and does occur. One type of neglect that and rights of elderly and infirm Americans has been linked to the development of occurs is when a nursing home fails to and to promote better, more responsible acute myeloid leukemia (AML), acute lym- provide the resident with all the necessary care practices in nursing homes by repre- phocytic leukemia (ALL), chronic lympho- medical care and services to meet the resi- senting those injured by abuse or neglect cytic leukemia (CLL), and other dent’s unique health needs. in litigation. blood-related cancers such as aplastic Beasley Allen lawyers have recently filed anemia or multiple myeloma. a number of nursing home lawsuits. Our Plaintiff Marilyn Alford, the decedent’s lawyers also are handling cases involving surviving spouse, alleges that Turtle Wax is catastrophic injury or death of nursing The Beasley Allen Nursing Home Litigation responsible for her husband’s death home residents resulting from delayed or Team because Turtle Wax used benzene in its poor nursing care. A brief summary of products when safer substitutes were these cases are set out below: Lawyers in our firm continue to fight to readily available, and furthermore failed to A lawsuit was filed on behalf of the protect the safety and well-being of provide adequate warnings that its prod- family of a Georgia woman who died nursing home residents in facilities around ucts contained hazardous substances such because of extreme nursing home neglect. the country. Our nursing home lawyers as benzene. Ms. Janet Standley was a long-time resident represent the victims or families of those If you would like more information of a nursing home in Clay County, Georgia. who have suffered death or serious injury about these cases, you can contact John She suffered from a heart condition that because of nursing home negligence, Tomlinson or Grant Cofer, lawyers in our required that she have a pacemaker. Tragi- abuse and neglect. The team of lawyers in Toxic Torts Section, at 800-898-2034 or by cally, the nursing home failed to ensure our firm handle nursing home litigation on email at [email protected] that Ms. Standley received periodic pace- a regular and recurring basis. Chris Bout- or [email protected]. maker checks and attended yearly follow- well heads up the Nursing Home Litigation Team; other members of the team cur- Source: https://madisonrecord.com/ up visits to her cardiologist. Ms. Standley’s stories/511622457-wrongful-death-suit-filed-against- pacemaker battery became depleted and rently are Susan Anderson and Leah car-wax-manufacturer she died from the resulting complications Robbins. Handling nursing home litigation of her heart condition. The nursing home’s requires lawyers and support staff to have failure to ensure Ms. Standley received the specific experience in this type case. necessary medical care and services to If you have suffered serious injury, a XV. keep her pacemaker functioning is espe- loved one has been catastrophically cially egregious and heartbreaking. The injured or died, or you have any questions UPDATE ON case is currently pending in the Superior about nursing home abuse and neglect, NURSING HOME Court of Clay County, Georgia. contact one of the team members at 800- 898-2034 or by email at Chris.Boutwell@ LITIGATION • Our lawyers represent the family of a beasleyallen.com, Susan.Anderson@beas- Wilcox County man who died as a result leyallen.com or Leah.Robbins@beasley- of his nursing home failing to provide allen.com. adequate care for his condition or trans- Beasley Allen Lawyers Represent fer him to another medical facility Residents Injured By Nursing Home Neglect where he could get the necessary Nursing homes and other long-term medical treatment necessary to save XVI. facilities serve an important role in the his life. An Update On American health care system. However, • Another of our cases contains claims nursing homes differ from most other seg- that the nursing home failed to ade- Class Action ments of the health care system in that the quately treat and care for our client’s Litigation goal of long-term care is not to cure illness, bed sore, causing her extreme pain and but to allow individuals who have lost other injuries. some capacity for self-care because of chronic illness or disabling condition to be • Our lawyers also represent a family of a GM 2014-2016 Full Sized Truck/SUV Brake cared for. Long-term care encompasses a deceased woman in Jefferson County, Defect Class Action wide array of medical, social, personal and Alabama, in a lawsuit alleging that the supportive, and specialized housing nursing home failed to take the neces- In October, a team of firms including services. sary precautions to prevent her from Beasley Allen filed a class action on behalf Many of the 1.5 million Americans who choking, including providing adequate of a California couple in California federal live in nursing homes are helpless, vulner- court alleging that General Motors (GM)

22 BeasleyAllen.com knowingly sold Cadillac, Chevrolet and Virgin America Flight Attendants Ask $85 were decided from Virgin’s then-headquar- GMC SUVs and pickups with dangerously Million In Wage Class Victory ters in the Golden State. Virgin has since defective brakes. been bought by Alaska Airlines, which is The California Plaintiffs claim GM has A class of flight attendants have asked a based in Seattle. known for at least three years that the California federal judge to make Virgin In July, Judge Tigar ruled that his previ- braking system installed in its full-sized America Inc. pay $85 million in damages, ous rulings in the case and the weight of SUV and pickup models contains a defec- penalties and interest following a summary evidence provided by Plaintiffs entitled the tive vacuum pump that can fail unexpect- judgment in their favor. The airline failed flight attendants to summary judgment. edly, causing the vehicles’ brakes to to pay for hours worked and shorted their The judge’s orders indicated that future suddenly lose vacuum assisted power. overtime pay. The largest portion of the proceedings, either by the court or by a The Plaintiffs purchased a new 2017 requested amount would come from jury, will determine damages based on the Chevrolet Suburban SUV that suffered damages, restitution and interest for Vir- flight attendants’ regular rate of pay. from the defective power assisted brake gin’s failure to pay for hours worked, The flight attendants are represented by system. Specifically, the Suburban’s which total more than $18 million for the Monique Olivier of Olivier Schreiber & vacuum pump lost prime depriving the class and an additional $18 million for a Chao LLP, Alison Kosinski and Emily brake booster of the negative pressure California subclass. The California sub- Thiagaraj of Kosinski & Thiagaraj LLP and needed to generate mechanical force on class is also seeking $8.4 million for the James E. Miller, Kolin C. Tang, Chiharu G. the master cylinder. Under healthy opera- failure to pay overtime. The class is Sekino and James C. Shah of Shepherd Fin- tion this vacuum-based force compounds seeking more than $9.4 million in penal- kelman Miller & Shah LLP. The case is Ber- the pedal pressure created by the driver, ties for Virgin’s failure to provide accurate nstein et al. v. Virgin America Inc., (case allowing for much shorter braking wage statements and an additional $12.3 number 3:15-cv-02277) in the U.S. District distances. million for a failure to pay on time. The Court for the Northern District of Plaintiffs claim that in April of 2018 their class had won the summary judgment in California. Suburban’s brake pedal unexpectedly stiff- July, leaving only the amount of damages Source: Law360.com ened and lost responsiveness, the brakes to be determined. did not slow the vehicle as expected and Many of the requested payouts were they struck another vehicle. Following the reached in agreement with Virgin, but pay- wreck a GM dealership inspected the ments in other areas, notably the amount Recent Class Action Settlements vehicle. GM representatives denied the that should be paid under the Private There have been a number of recent set- existence of a defect, despite the dealer- Attorney General Act, are still in conten- tlements in class action litigation. The fol- ship’s mechanics reporting brake booster tion. In arguing for the penalties, the lowing is a brief summary of some of these malfunction due to loss of proper class said: settlements. vacuum levels. Service bulletins indicated that GM was Virgin received over $10 million to aware of the defect since February 2015. In train its employees and, in exchange, Utility Reaches $2 Billion Settlement these internal documents, GM warned committed to hiring and training Involving Failed Nuclear Plant dealers about failure of vacuum pumps and local workers and add jobs to the SCANA Corp. and South Carolina Elec- brake boosters in 2015-2016 Suburbans, California economy. Yet Virgin has tric & Gas (SCE&G) Co. have reached 2015-2016 Chevrolet Tahoes, 2015-2016 willfully failed to comply with even a $2 billion settlement with customers Cadillac Escalade SUVs, 2015-2016 GMC the most basic California wage pro- who claimed the utility charged them Yukon pickups, 2014-2016 Chevrolet Sil- tections and has engaged in massive extra for years to finance a proposed verados and 2014-2016 GMC wage theft from its California-based nuclear plant before abandoning the Sierra pickups. flight attendant workforce. project. Class representatives agreed Since 2014 the company has received In the suit, filed in 2015, lead Plaintiff to the settlement, which will create a brake failure complaints through the U.S. Julia Bernstein claims Virgin failed to pay common benefit fund with $2 billion National Highway Traffic Safety Adminis- its flight attendants for all the time spent for future rate relief, as well as $115 tration (NHTSA), Better Business Bureau before, after and between flights, for million that had originally been (BBB), online forums, and their dealers writing up incident reports, for time spent created as a fund for SCANA’s execu- and customers. The case, filed in the in training and for undergoing required tives. The real estate and proceeds United States District Court, in the Central drug tests. The class also alleges Virgin from property sales will be added to District Court of California, Eastern Divi- does not allow flight attendants to take the class fund. sion is Scott and Samantha Peckerar v meal or rest breaks, failed to pay overtime General Motors, LLC 5:18-cv-0214. and minimum wages and failed to provide The suit, filed in August 2017, said Clay Barnett, from our firm, along with accurate wage statements. SCANA and SCE&G took advantage of Paul R. Kiesel, Jeffrey A. Koncius and In November 2016, U.S. District Judge the Base Load Review Act enacted by Nichole Ramirez of Kiesel Law LLP; F. Jon S. Tigar certified a class that included South Carolina in 2007 to charge cus- Jerome Tapley, Ryan Lutz and Adam W. California-based flight attendants who tomers extra, with the proceeds going Pittman of Cory Watson PC; and James C. worked for the airline on or after March to finance a nuclear power plant the Wyly and Sean F. Rommel of Wyly-Rommel 18, 2011. His order also certified a Califor- company was planning to build with PLLC make up the litigation team. If you nia resident subclass and a “waiting time Westinghouse Electric Co. at the have any questions about the case, contact penalties” subclass for individuals who Virgil C. Summer Nuclear Station in Clay Barnett in our Atlanta office at 334- have left the job since March 18, 2012. Jenkinsville, South Carolina. 269-2343 or by email at Clay.Barnett@beas- Judge Tigar had rejected Virgin’s summary The case is The State of South Caro- leyallen.com. judgment motion, ruling in January 2017 lina et al. v. South Carolina Electric that California labor law applied to all and Gas Co., a Wholly Owned Sub- work that happened in California and in sidiary of SCANA, case number situations where employment policies

JereBeasleyReport.com 23 2017CP2500335, in the Court of SIBOR- and SOR-linked derivatives in Times investigation in 2011. The Common Pleas for Hampton County, or around New York. Times’ investigation, published in South Carolina. early 2012, caused the biggest drop in $432 Million Settlement In Auto Walmart’s shares in years. Multiple JPMorgan And Citi Reach $182.5 Parts MDL investigations by U.S. and Mexican Million Settlement In Euribor authorities followed. Walmart also Dozens of auto parts manufacturers Investor Suit faces several billion dollars in losses will pay a total of $432.8 million to from the suspected corruption, A $182.5 million settlement by JPMor- car buyers to settle cases in the including legal fees and potential gan Chase & Co. and Citigroup Inc. pending multidistrict litigation (MDL). enforcement penalties. along with several other big banks, The companies were accused of con- which manipulated the Euro Inter- spiring to fix prices and rig the market $44 Million Settlement In NIBCO bank Offered Rate (Euribor). for various auto parts. Of the 33 com- Lawsuit Deutsche Bank AG, Barclays PLC and panies named in the monetary settle- HSBC Holdings PLC previously had ment of 29 cases, Japanese car part A class of consumers has reached a their own combined $309 million set- maker Mitsuba Corp. will pay the $43.5 million settlement with NIBCO tlement with Euribor investors. The most, more than $72 million, to end Inc., a plumbing products company, banks conspired to rig the interest payors— consumers who bought cars to end claims that its tubings, fittings rate benchmark. The total recovery is made with the parts, or who pur- and clamps are defective. The settle- now up to $491.5 million. chased replacement parts – in suits ment comes after almost five years of over fan motors, radiators and other litigation and numerous mediation ses- The proposed settlement involved a components. JTEKT Corp., at $47.4 sions. The consumers claim the com- class of investors that purchased sold, million, will be next in line on pany’s polyethylene plumbing tubes, held or traded Euribor-linked prod- amounts to be paid. the brass fittings required to connect ucts between 2005 and 2011, compris- the tubing together, and the stainless ing funds including the California This round of settlements is the latest steel clamps that join the tubing and State Teachers Retirement System. in the MDL filed in the aftermath of fittings fail prematurely. the U.S. Department of Justice’s anti- Along with the settlement amount, trust investigation into price-fixing Wells Fargo Settles RMBS Trustee the two banks have agreed to cooper- and bid-rigging in the auto parts Litigation For $43 Million ate with the investors in pursuing industry, a probe that was launched in claims against foreign Defendant 2011 in conjunction with Japanese Wells Fargo Bank NA has agreed to banks that were dismissed from the and European authorities. pay $43 million to settle claims it action in February 2017 for a lack of failed to protect investors from bil- This settlement also required the com- personal jurisdiction. lions of dollars in losses as the trustee panies to cooperate with the Plaintiffs for hundreds of residential mortgage- in related ongoing litigation, including $21 Million SIBOR Rigging Suit backed securities (RMBS). The settle- sharing documents and data, and Settlement ment was reached with certain offering witness testimony. Other institutional buyers, including funds CitiGroup Inc. and JPMorgan Chase & companies named in the settlement affiliated with BlackRock Inc. and Co. will pay nearly $21 million to include Robert Bosch GmbH, which PIMCO. The settlement resolves two settle a putative class action over an will pay more than $33 million in class action lawsuits in New York, in alleged conspiracy to manipulate the suits over windshield wipers and federal and state court, alleging that Singapore Interbank Offered Rate spark plugs, among other parts, and the bank failed to meet a contractual (SIBOR). A settlement class of “at least Bridgestone Corp., which previously duty set forth in servicing agreements hundreds, if not thousands” of those agreed to pay $29.6 million to settle to require lenders to repurchase or who purchased, sold, held, traded or price-fixing allegations for anti-vibra- cure delinquent or shoddy home otherwise had any interest in SIBOR tion rubber components. mortgage loans bundled into the secu- or SIBOR-based derivatives from 2007 rities—which led to heavy losses to 2011 would pull from a pool Walmart To Pay $160 Million To settle during the 2008 financial crisis. created by the $9,990,000 payment Investor Suit The settlement agreement, which is from Citi and the $10,989,000 from subject to approval by the court, resolves a JPMorgan. Walmart Stores Inc. will pay $160 million to settle with a class of inves- significant portion of the claims asserted The suit, brought by Sonterra Capital tors who sued the company after its against the company in connection with Master Fund Ltd. and FrontPoint Asian stock fell sharply in the wake of its role as trustee for RMBS trusts. Specifi- Event Driven Fund LP, accuses some claims that it had bribed officials in cally, it includes claims brought by the of the world’s top banks, including Mexico. The lawsuit involves a class of BlackRock and PIMCO plaintiffs for 271 Bank of America, JPMorgan Chase and potentially thousands of members. RMBS trusts created between 2004 UBS, of manipulating both SIBOR and and 2008. the Singapore Swap Offer Rate, or The suit alleged that the company After the federal court dismissed some SOR, from 2007 through 2011. The withheld any and all information claims, the investors filed a new putative banks allegedly submitted fraudulent regarding the possible Foreign class action in New York state court in rates daily in order to move the Corrupt Practices Act (FCPA) viola- December 2016, which includes claims benchmarks in ways that would tions from the Securities and related to those dismissed in federal court. benefit their trading positions. Other Exchange Commission (SEC), the The state court case is also resolved in the banks were included in the suit Department of Justice and sharehold- settlement. In their suits, BlackRock, because they allegedly transacted in ers until it learned of The New York PIMCO and others claimed that the trustee

24 BeasleyAllen.com banks knew that the bonds they oversaw lenged Ameritrade’s $2.7 billion share Mrs. Cunningham was able to receive contained faulty loans because they saw of a $4.1 billion joint acquisition of the treatment at a cost of $92,082.19 evidence of widespread abuses by the Scottrade Financial. The agreement through personal funding. The Cunning- loans’ originators and substandard bond would end litigation over stockholder hams mortgaged their home and set up a deals created by issuers. claims that Ameritrade’s controlling GoFundMe page to help pay the remaining The cases covered by the settlement shareholder and deal partner, TD balance. Before Mrs. Cunningham’s death agreement are Blackrock Allocation Bank, secured an unfairly low $1.375 slightly more than a year from her initial Target Shares: Series S Portfolio et al. v. billion price for its part of the transac- diagnoses, scans showed that the tumor Wells Fargo Bank NA, (case number 1:14- tion, forcing up the amount Ameri- was shrinking and the treatment cv-09371) in the U.S. District Court for the trade had to pay to meet the overall was working. Southern District of New York; and Black- transaction amount. The evidence at trial showed that none rock Core Bond Portfolio et al. v. Wells of the medical directors at Aetna read the Fargo Bank NA, (case number Vero Beach Police Officers’ Retire- insurance contract before denying the 656587/2016) in the Supreme Court of the ment Fund filed the derivative claims claim. It was also revealed the Aetna State of New York, County of New York. on behalf of TD Ameritrade, which doctors had never heard of the duty of Federal and state cases alleging similar provides securities brokerage services good faith, never received any training claims filed by certain other institutional and other financial services to retail related to obligations owed by Aetna to its investors are not part of the settlement. investors and advisers. insureds under Oklahoma law, and were receiving sizable bonuses each year, based Medtronic Unit Agrees To $54.5 Million in part on the profits of Aetna. All three Settlement medical directors acknowledged during XVII. the trial that they spent more time prepar- Medtronic PLC unit HeartWare Inter- THE CONSUMER ing for the lawsuit than reviewing the national will pay $54.5 million to woman’s medical case. investors to settle claims that it misled CORNER It was reported that Aetna lawyer John them about the prospects of its MVAD Shely said in closing arguments that the heart pump and overstated its efforts insurance giant was proud of the three to fix problems with the device. The Oklahoma Jury Hits Aetna With A $25.5 medical directors who denied coverage. settlement requires court approval. Million Bad Faith Verdict He even turned to thank them as they sat Investors who are members of the in the front row of the courtroom. class will have the opportunity to After 12 days of trial, a jury in Oklahoma After considering the evidence, the jury object. After considering any objec- awarded $25.5 million to the family of a determined Aetna breached its contract tions, the judge will grant or withhold cancer patient denied coverage by Aetna. with the Cunninghams and recklessly dis- final approval. Jurors said the verdict was meant as a regarded its duty of good faith and fair message for Aetna to change its ways. dealing owed the Cunninghams in investi- KYB And Maruyasu Get Approval For The case involved the 2014 denial of gating and evaluating coverage for the $34 Million Settlement coverage for Orrana Cunningham, who requested proton therapy. had stage four nasopharyngeal cancer near The jury awarded compensatory A Michigan federal judge has tenta- her brain stem, adjacent to multiple “criti- damages for out-of-pocket expenses and tively approved KYB Corp.’s $29 cal structures” in her head including her emotional distress caused by Aetna’s million settlement and Maruyasu brain, optic nerves and brain stem. Her repeated denials and awarded Mr. Cun- Industries Co. Ltd.’s $5.3 million set- doctors at MD Anderson Cancer Center ningham $500,000.00 individually and tlement to end proposed consumer submitted a request for coverage of proton awarded Mrs. Cunningham’s estate class actions. It’s alleged the compa- beam therapy, a targeted form of radiation $15,000,000.00. The jury awarded another nies conspired to fix the prices of that could pinpoint her tumor without the $10,000,000.00 in punitive damages. The shock absorbers and steel tubes in potential for blindness or other side effects total verdict was $25,592,089.19. The antitrust multidistrict litigation. The of standard radiation. award is believed to be the largest verdict judge granted motions from end-payor The Cunninghams’ insurer, Aetna, the in an individual “bad faith” insurance case Plaintiffs—consumers who bought or nation’s third-largest insurer, denied Mrs. in Oklahoma history. It could have major leased vehicles containing the KYB Cunningham’s coverage by calling the ramifications across the country for proton and Maruyasu-manufactured parts— therapy investigational and experimental. beam therapy. seeking preliminary approval of the This was despite that proton coverage was The Plaintiffs are represented by Doug settlements. clearly provided by contract under the Terry of Doug Terry Law and Justin D. Meek and Tom Paruolo of DeWitt Paruolo Under the Maruyasu settlement, Cunninghams’ insurance plan. Meek. The case is Ron Cunningham et al. $108,000 will be allocated to a class of According to the testimony of Mrs. Cun- v. Aetna Life Insurance Company, (case individuals and businesses that had ningham’s treating oncologist at MD Anderson, the Aetna medical director number CJ-2015-2826) in the District Court bought the parts in the fuel injection of Oklahoma County, State of Oklahoma. systems complaint and approximately responsible for denying Orrana’s initial $5.2 million will be for the Plaintiff claim admitted during a “peer to peer” tel- Source: Law360.com class for the steel tubes complaint. ephonic call that he knew the oncologist was right, but he had to deny the claim anyway. Evidence presented during the Ameritrade And Investors Reach $18 Suit Filed Against Apple Involving An trial revealed the two medical directors Million Settlement who denied the subsequent appeals have Exploding IPhone never treated a single patient with radia- TD Ameritrade and an investor class A New York City resident has filed a suit tion of any kind. have agreed to a $17.95 million settle- against Apple Inc. in a New York state ment in a derivative suit that chal-

JereBeasleyReport.com 25 court alleging that he was “caused to suffer in each instance. An email address for each Contact: Cole.Portis@beasleyallen. and sustain severe bodily injuries” when lawyer is provided or you can call them at com or Chris.Glover@beasley- his iPhone 6S exploded. The Plaintiff, 800-898-2034. allen.com. James Guerrero, said in his complaint that he was using the iPhone “in accordance Honda Air Bag Cases—Our lawyers with its intended use” on July 19, 2017, are also handling Honda airbag cases Personal Injury & Products Liability when the very popular smartphone with smaller injuries that normally Section “exploded,” causing him to suffer severe would not qualify for claims under bodily injuries. Mr. Guerrero says he “suf- our usual review process. That would fered pain, shock and mental anguish, and Product Liability—Lawyers in the include an injury that does not appear that his injuries and their effects will be Section continue to focus on accident to be permanent or life-threatening. permanent.” As a result of the injuries, the cases involving automobiles and Contact: Chris.Glover@beasley- Plaintiff says he has been “caused to incur, heavy equipment. Cases involving allen.com. and will continue to incur, expenses for consumer products are also being Defective Tires—Tire failure can medical care and attention” and has been handled. Some of the motor vehicle result in a serious car crash and even a rendered “unable to perform [his] normal cases involve single-vehicle crashes, vehicle rollover accident, causing activities and duties.” while others involve multiple-vehicle serious injury or death to vehicle The Plaintiff is suing for breach of war- accidents. Quite often the incident occupants. Air, heat and sunlight can ranty, strict product liability and negli- actually involves a defective product cause the rubber in tires to break gence and is seeking unspecified damages or component part. This gives rise to down. When a tire is defective, poten- as a result of the incident. Ms. Guerrero a Product Liability claim. Our lawyers tially serious problems like detreads says Apple “warranted” that its product would like to review any case involv- and blowouts can occur long before was “safe to use in every respect,” and ing catastrophic injury or death. the tire would be expected to wear “warranted that it was good, safe and Truck Accidents—There are signifi- out. If the tire failure is the result of proper to use.” It’s alleged that Apple Inc. design or manufacturing defects, and “breached its warranties of merchantabil- cant differences between handling an interstate trucking case and other car the manufacturer is aware of the ity and fitness for intended use of the said problem, they have an obligation to product which warranties were both wreck cases. It is imperative to have knowledge of the Federal Motor alert consumers to the potential express and implied.” danger. Contact: Ben.Baker@beasley- Apple has been sued in similar litigation Carrier Safety Regulations, technol- ogy, business practices, insurance allen.com or Labarron.Boone@beas- before, including one filed in August by a leyallen.com. South Carolina man who said he was coverages, and to have the ability to severely burned after an exploding iPhone discover written and electronic Heavy Truck Product Liability 6 battery set his clothes on fire; and one by records. Expert testimony is of utmost Claims—Tractor trailer and other a Delaware woman who sued Apple years importance. Accidents involving semi- heavy trucks are not required to ago, claiming she was injured when her trucks and passenger vehicles often contain many of the same protections iPhone exploded in her back pocket. result in serious injuries and wrongful for occupants as smaller passenger Nearly a decade ago, the French govern- death. Trucking companies and their cars. They can contain dangerous ment took Apple to task over exploding insurance companies almost always defects putting the truck driver or iPhones, with then-Secretary of State for quickly send accident investigators to passengers at risk of serious injury or Trade and Consumer Affairs Herve Novelli the scene of a truck accident to begin death. These trucks many times have meeting with Apple executives and ques- working to limit their liability in these particularly weak roofs that crush in tioning them over reports of shattering or situations. Our lawyers, staff and in- rollovers. The passenger compart- cracking screens on iPhones. house accident investigators immedi- ments are often not protected by The Plaintiff is represented by Mark E. ately begin the important task of effective cab guards, and this allows Seitelman of Mark E. Seitelman Law Offices documenting and preserving the evi- loads to shift into the truck cab. PC. The case is James Guerrero v. Apple dence. We would like to review any Lawyers in the Section would like to Inc., (case number 160390/2018) in the case involving catastrophic injury or review any case involving cata- Supreme Court of the State of New York death. Contact: Chris.Glover@beasley- strophic injury or death. Contact: Ben. for the County of New York. allen.com, Ben.Baker@beasleyallen. [email protected] or Kendall. com or Ben.Locklar@beas- Source: Law360.com [email protected]. leyallen.com. Aviation Accidents—Aviation litiga- Takata Airbag Recall—The largest tion can be extremely complex and XVIII. automotive recall in history centers often involves determining the on the defective Takata airbags found respective liability of manufacturers, CASES BEING in millions of vehicles manufactured maintainers, retrofitters, dispatchers, by Honda, BMW, Chrysler, Daimler pilots and others. In some circum- LITIGATED IN Trucks, Ford, General Motors, Mazda, stances, the age of the aircraft BEASLEY ALLEN Mitsubishi, Nissan, Subaru, and involved can limit or completely pre- Toyota. The defect results in shrapnel- clude an injured party from compen- SECTIONS like metal shards and airbag compo- sation. Soaring through the sky nents being propelled throughout the hundreds of miles an hour, thousands vehicle interior. This frequently We are again writing in this issue on the of feet above the ground in an air- results in lacerations and blunt force plane or helicopter leaves little room wide range of litigation that lawyers in the trauma that can cause injury or death. four sections at Beasley Allen are currently for error. One small mechanical Our lawyers would like to review any problem, misjudgment or faulty working on. A lawyer contact will be listed claim involving injury or death.

26 BeasleyAllen.com response in the air can spell disaster posed to be in the business of provid- of talcum powder. Talc is a mineral for air passengers and even unsus- ing skilled nursing care to elderly and made of up various elements includ- pecting people on the ground. Our disabled residents. Unfortunately, sta- ing magnesium, silicon and oxygen. lawyers are handling cases involving tistics indicate residents in nursing Talc is ground to make talcum all types of aircraft, military and civil- homes suffer abuse and neglect more powder, which is used to absorb mois- ian. Contact: Mike.Andrews@beas- and more frequently at the hands of ture and is widely available in various leyallen.com. nursing home corporations. In many products including baby powder and cases residents have died or have been adult products including body and On-the-job Product Liability—Many severely abused as a result of neglect. facial powder. Talc products used reg- times product claims arise in work- They may suffer physical abuse, emo- ularly in the genital area increase the related incidents that also have a tional or psychological abuse, or risk of ovarian cancer. In February worker’s compensation claims. After neglect. We are investigating cases 2016, a jury found Johnson & Johnson we investigate the circumstances that involving serious injury or death knew of the cancer risks associated caused the injuries, many times we resulting from nursing home abuse or with its talc products but failed to discover a defective machine may be neglect. Contact: Chris.Boutwell@ warn consumers, and awarded the the cause of the injuries. Contact: beasleyallen.com. family of our client $72 million. She [email protected] or died of ovarian cancer after using J&J [email protected]. Mass Torts Section talc-containing products for more than 30 years. Contact: Ted. Premises Liability—In premises lia- Opioids—Opioid abuse has reached bility claims, patrons of establish- [email protected] or Leigh. epidemic proportions in the United [email protected]. ments are often injured because the States. According to the Department premises, for some reason, was of Health & Human Services, 12.5 Zofran—Manufactured by GlaxoS- unsafe. Premises liability claims can million people misused prescription mithKline, Zofran (ondansetron) was take many forms, including when opioids and 33,091 Americans died approved to treat nausea during che- severe injury or death results when a from opioid overdose in 2015 alone. motherapy and following surgery. building or structure collapses, mer- These medications provide important Zofran (ondansetron) works by block- chandise falls, during swimming pool pain relief for many. However, over ing serotonin in the areas of the brain accidents, due to poor lighting, falling the years, drug companies inflated the that trigger nausea and vomiting. debris, unsecured fixtures and furni- effectiveness of delayed-release medi- Between 2002 and 2004, GSK began ture that falls or tips over, unsecure cations like OxyContin and down- promoting Zofran off-label for the drainage that creates drowning or fall played their addictive properties, treatment of morning sickness during hazards, slippery surfaces, and inade- creating conditions ripe for abuse. pregnancy, despite the fact the drug quate maintenance. Beasley Allen has Lawyers in the Section are investigat- has not been approved for pregnant successfully handled a number of ing cases involving opioid-related women and there have been no well premises liability cases, and we would deaths and overdose requiring hospi- controlled studies in pregnant like to investigate any cases where talization, as well as cases involving women. The FDA has received nearly severe injury or death results. treatment for addiction to prescrip- 500 reports of birth defects linked to Contact: Mike.Crow@beasleyallen. tion opioids. Contact: Rhon.Jones@ Zofran. Birth defect risks include cleft com, [email protected] beasleyallen.com, Roger.Smith@beas- palate and septal heart defects. or [email protected]. leyallen.com or Liz.Eiland@beasley- Contact: Roger.Smith@beasley- Negligent Security—Under the law, allen.com. allen.com. owners of establishments owe a duty Opioids and Infants—The opioid Xarelto—Lawsuits filed against to patrons and guests to ensure that epidemic has also taken its toll on the Johnson & Johnson subsidiary Janssen the premises are reasonably safe and most vulnerable among us. According Pharmaceuticals and Bayer Corp. over secure from anticipated dangers. to the National Institute on Drug the blood thinner Xarelto have been These cases normally take the form of Abuse, every 25 minutes a baby is consolidated in Louisiana federal shootings, fights, stabbings, or other born addicted to opioids—a condition court. Xarelto has been linked to physical violence (including sexual called Neonatal Abstinence Syndrome serious side effects including internal assault) where severe injury or death (NAS). Babies with NAS suffer painful bleeding, gastrointestinal bleeding, occurs due to the establishment symptoms of opioid withdrawal in the brain bleed and death. The Xarelto owner’s failure to take reasonable hours and days after they are born and lawsuits come on the heels of the safety measures. When this occurs, are more likely to suffer long-term recent $650 million Pradaxa settle- the establishment owner, as well as complications like developmental ment. Researchers linked Pradaxa, those contractors charged with secu- delays and hearing or vision impair- also a blood thinning medication, to rity, may be held responsible for the ment, compared to babies born to more than 500 deaths. Xarelto blood injuries suffered by individuals or mothers who did not use opioids. We thinner litigation has been consoli- groups of individuals on the premises. are investigating cases on behalf of dated before U.S. District Judge Eldon While the laws vary from state to children who were born with NAS Fallon in the Eastern District of Louisi- state, our firm is actively investigating after their mothers were prescribed ana, who presided over suits against and litigating these cases where opioids before or during pregnancy. Merck & Co. over its medication severe injury or death results. Contact: [email protected]. Vioxx. The Vioxx litigation resulted in Contact: Parker.Miller@beasley- a $4.85 billion settlement in 2007. allen.com. Talcum powder and ovarian Contact: David.Byrne@beasleyallen. cancer—As many as 2,200 cases of Nursing Home Abuse and com or Joseph.Vanzandt@beas- ovarian cancer diagnosed each year leyallen.com. Neglect—Nursing homes are sup- may have been caused by regular use

JereBeasleyReport.com 27 Testosterone Replacement tis (AIN), which is a condition where cations. We are investigating all cases Therapy (TRT) products for men the spaces between the tubules of the involving metal-on-metal hip implants, have been linked to an increased risk kidney cells become inflamed. The including the DePuy Orthopaedics of death, heart attack and stroke. injury appears to be more profound in ASR XL Acetabular System and the Researchers found men who used tes- individuals older than 60. While indi- DePuy ASR Hip Resurfacing System, tosterone therapy were 30 percent viduals who suffer from AIN can recalled in August 2010; the Stryker more likely to have a heart attack, recover, most will suffer from some Rejuvenate and ABG II modular-neck stroke, or die after three years of use. level of permanent kidney function stems, recalled in July 2012; the A second study found that men had a loss. In rare cases individuals suffer- Stryker LFIT Anatomic v40 Femoral significant increase in risk of heart ing from PPI-induced AIN will require Head (recalled August 29, 2016); the attack and stroke in just the first 90 kidney transplant. Contact: Navan. Zimmer Durom Cup, the Wright Con- days of testosterone therapy use. Fur- [email protected]. serve, and the Biomet M2A “38mm” thermore, men who started the study and M2A-Magnum hip replacement with clear, unobstructed coronary Taxotere—Taxotere (docetaxel) is a systems, which have not been arteries were just as likely to have a chemotherapy drug approved in the recalled. Reported problems include heart attack, stroke or die as men who treatment of breast cancer along with pain, swelling and problems walking. entered the study with established other forms of cancer. It is adminis- Contact: Navan.Ward@beasley- coronary artery disease. Testosterone tered intravenously through a vein, allen.com. therapy, such as the prescription and is a member of a family of drugs topical treatments Androgel, Testim called taxanes. In 2007, manufacturer IVC Filters—Retrievable IVC filters and Axiron, are used to help boost tes- Sanofi-Aventis issued a press release are wire devices implanted in the tosterone levels in men who have a touting the efficacy of Taxotere based vena cava, the body’s largest vein, to deficiency of the male hormone. on a clinical study. However, Sanofi- stop blood clots from reaching the Symptoms of low testosterone include Aventis failed to inform the FDA, heart and lungs. These devices are decreased libido and low energy. health care providers, and the public used when blood thinners are not an Contact: Matt.Teague@beasley- that permanent hair loss was option. Manufacturers include Bard, allen.com. observed in a number of the patients Cook and Johnson & Johnson. While taking Taxotere. In December 2015, permanent IVC filters have been used Bone Cement—The type of bone the FDA announced it had ordered since the 1960s with almost no cement used during knee replacement Sanofi-Aventis to change Taxotere’s reports of failure, retrievable IVC surgery affects the outcome of that label to warn patients of the risk of filters were introduced in 2003, pro- surgery. High viscosity bone cement permanent hair loss. While hair loss moted for use in bariatric surgery, (HVC) boasts shorter mixing and during chemotherapy is expected, trauma surgery and orthopedic waiting times and longer working and patients undergoing chemotherapy surgery. Risks associated with the hardening phases, meaning surgeons with Taxotere were not warned they retrievable IVC filters include migra- can handle and apply the cement could potentially experience perma- tion, fracture and perforation, leading earlier than with low- or medium-vis- nent hair loss. Permanent hair loss is to embolism, organ damage and cosity cements. Although HVC may be an extremely debilitating condition, wrongful death. Contact: Matt. more convenient to use, there is especially for women. We are cur- [email protected]. mounting evidence that the bond it rently investigating claims for women produces is not as strong. Researchers who suffered permanent hair loss fol- Physiomesh—Intended for hernia have observed more early failures lowing chemotherapy with Taxotere repair, Physiomesh is a flexible poly- with the use of HVC, even when used for breast cancer. Contact: Beau. propylene mesh designed to reinforce in combination with a previously well- [email protected]. the abdominal wall, preventing future performing implant. Complications hernias from occurring. Though there associated with knee replacements Risperdal, an atypical antipsychotic are several types of hernias, most performed with HVC include loosen- drug used to treat schizophrenia and occur when an organ or tissue pro- ing and debonding (where the implant certain problems caused by bipolar trudes through a weak spot in abdom- fails to adhere to the cement interface disorder, has been linked to the devel- inal muscles. The condition often on the shin or thigh bone), which opment of gynecomastia in boys and requires surgery where mesh, like requires revision surgery. Other young men. Gynecomastia is a condi- Physiomesh, which is intended for lap- reported problems include new onset tion that causes boys to grow breasts. aroscopic use, is used to fill in a hole chronic pain and instability. Contact: The drug is manufactured by Johnson in the abdominal muscle or laid over [email protected] or Liz. & Johnson. Contact: James.Lampkin@ or under it to prevent any further pro- [email protected]. beasleyallen.com. trusions. Independent studies have found Physiomesh to lead to high Proton Pump Inhibitors—Proton Metal-on-Metal Hip Replacement rates of complications including pump inhibitors (PPIs) such as parts—The FDA has ordered a review hernia reoccurrence, organ perfora- Nexium, Prilosec and Prevacid were of all metal-on-metal hip implants due tion, mesh migration, sepsis and even introduced in the late 1980s for the to mounting patient complaints. Prob- death. In May 2016, Ethicon issued a treatment of acid-related disorder of lems with metal-on-metal include, but market withdrawal of Physiomesh in the upper gastrointestinal tract, are not limited to loosening, metallo- the U.S. and recalled the product in including peptic ulcers and gastroin- sis (ie: tissue or bone death), fractur- Europe and Australia. We are cur- testinal reflux disorders, and are avail- ing, and/or corrosion and fretting of rently investigating cases involving able both as prescription and these devices, which require revision serious injury or death as a result of over-the-counter drugs. Beasley Allen surgery. Many patients that require Ethicon’s Physiomesh. Contact: Matt. lawyers are currently investigating revision surgery due to these devices [email protected]. PPI-induced Acute Interstitial Nephri- suffer significant post-revision compli-

28 BeasleyAllen.com Consumer Fraud & Commercial duty under ERISA. We are looking into Health Care Fraud—Our lawyers are Litigation Section these cases on behalf of self-funded looking at cases of fraud in the health plans. Contact: Alison.Hawthorne@ care industry. These may include beasleyallen.com. cases dealing with pricing, off-label False Claims Act / Whistleblower- prescriptions, or other health care We are handling and investigating Supplemental Disability Insurance abuse. Contact: Alison.Hawthorne@ whistleblower claims of government Denial—Our lawyers have success- beasleyallen.com. fraud ranging from Medicare/Medic- fully litigated bad faith denial of bene- aid to military contracts, and any fits cases for years in the disability Employment Law—The Section is other type of fraud involving a govern- insurance area and we are interested handling employment cases. Situa- ment contract. Under the False Claims in reviewing cases involving denial of tions that may be addressed in this Act (FCA) the whistleblower is enti- Individual and Group disability insur- area include minimum wage and over- tled to a percentage of the recovery. ance. These cases can be either time pay, unfair labor practices, all Studies show that as much as 10 employee sponsored benefit plan poli- types of discrimination, employee percent of Medicare/Medicaid charges cies (ERISA), individually owned poli- benefits, and whistleblower claims. are fraudulent. Common schemes cies or non-ERISA governed Contact: Lance.Gould@beasleyallen. involve double-billing for the same supplemental insurance. Contact: com or Larry.Golston@beasley- service, inaccurately coding services, [email protected]. allen.com. and billing for services not performed. Additionally, the Commission on Auto Defect Class Actions—We are Fair Labor Standards Act (FLSA)— Wartime Contracting has warned that continuing to work on numerous auto We are working several cases involv- the lack of oversight of government defect class actions against many of ing FLSA violations. The FLSA cases contractors has led to massive fraud the major automobile manufacturers are brought on behalf of clients whose and waste. Contact: Lance.Gould@ like VW, Toyota, General Motors, Ford job title is misclassified by their beasleyallen.com, Allison.Haw- and even some suppliers like Takata. employers so that employees are not [email protected], Larry. These cases continue to be filed compensated for overtime worked. [email protected] or because of corporate misconduct in Cases may also involve unequal pay, [email protected]. designing and manufacturing unsafe where women are paid less for doing vehicles that are purchased by con- the same job as men. Contact: Lance. Life Insurance Fraud—We have sumers, corporations and state agen- [email protected] or Larry. uncovered alleged fraudulent account- cies. We continue to investigate these [email protected]. ing practices by life insurance compa- automobile problems for class relief nies concerning premium increases. treatment. Contact: Dee.Miles@beas- Toxic Torts Section The accounting method may result in leyallen.com, Clay.Barnett@beasleyal- the policyholder being charged exces- len.com or Archie.Grubb@ Opioids—In addition to individual sive insurance premiums. A client that beasleyallen.com. cases of serious injury and death has a life insurance policy and has related to opioid abuse, Beasley Allen been notified of a substantial increase Sexual Harassment—Sexual harass- lawyers are representing a number of in premium payments, or if they have ment is outlawed by Title VII of the local governments in Alabama against been told their policy’s “cost of insur- Civil Rights Act of 1964 because it is a both manufacturers and distributors ance” has increased, they may have a form of discrimination, as explained of opioids for increased costs faced by valuable legal claim that our firm by the Equal Employment Opportu- local governments related to the would like to investigate. Contact: nity Commission (EEOC). The agency opioid epidemic. Providing city and [email protected], says “[u]nwelcome sexual advances, county resources to battle the opioid [email protected] or requests for sexual favors, and other crisis causes local governments to [email protected]. verbal or physical conduct of a sexual sustain economic damages and nature constitute sexual harassment ongoing significant financial burdens. Pharmaceutical Pricing—We are when this conduct explicitly or The crisis was created by the pharma- continuing to handle claims involving implicitly affects an individual’s ceutical industry, which instead of chain pharmacies falsely reporting employment, unreasonably interferes investigating suspicious orders of pre- their generic pricing transactions to with an individual’s work perfor- scription opiates, turned a blind eye state Medicaid agencies. This miscon- mance, or creates an intimidating, in favor of making huge profits. They duct has led to millions of dollars in hostile, or offensive work environ- intentionally misled doctors and the overpayments by Medicaid agencies ment.” We are looking at any claim public about the risks of these danger- for generic drugs to the chain pharma- involving extreme sexual harassment ous drugs. Municipal governments are cies. Contact: Alison.Hawthorne@bea- or sexual assault. Contact: Larry. left struggling to cope with the conse- sleyallen.com or Leslie.Pescia@ [email protected]. quences. Contact: Rhon.Jones@beas- beasleyallen.com. leyallen.com or Ryan.Kral@ Antitrust—We are handling claims beasleyallen.com. Self-funded Health and Pharmacy related to the violation of federal and Insurance Plans—Third Par t y state antitrust laws. We are currently Mesothelioma—Mesothelioma is a Administrators and Pharmacy Benefit involved in claims alleging a wide highly aggressive and rare form of Managers may have been charging array of anticompetitive conduct, cancer usually affecting the lining of unauthorized fees to self-funded insur- including illegal tying, exclusive the lungs (pleural) or abdominal ance health and pharmacy benefit dealing, monopolization, and price cavity (peritoneal). Occasionally, it plans. These extra fees may be in vio- fixing. Contact: Archie.Grubb@beas- also may affect the lining of the heart lation of the contracts with the self- leyallen.com or Alison.Hawthorne@ (pericardial). The only known cause funded plan and a breach of fiduciary beasleyallen.com. of mesothelioma is exposure to asbes-

JereBeasleyReport.com 29 tos. About 2,000 new cases of meso- obliterans, sarcoidosis, berylliosis or Governmental Entity Litigation— thelioma are diagnosed in the United chronic beryllium lung disease, metal Lawyers in our firm have represented States each year. For years, asbestos lung disease, hypersensitivity pneu- numerous states throughout the was widely used in many industrial monitis, pneumoconiosis, and non- country in civil litigation. These cases products and in building construction smoker’s lung cancer and emphysema. have been handled through the attor- for insulation and fire protection. These are grave diseases that often- neys general of the states and have When asbestos is broken or disturbed times result in either death or a lung involved various types of civil actions. it can release microscopic fibers that transplant, and they are frequently Many times individuals are barred can be inhaled or ingested, posing a caused by exposure to dusts, fibers, from bringing a consumer fraud type health risk, including the develop- metals, chemicals, vapors, food flavor- claim, but the state government is not. ment of asbestos diseases and meso- ing additives or other tiny particles in We recently successfully concluded thelioma. Contact: Sharon.Zinns@ the workplace or as a result of a defec- litigation in six of eight states we rep- beasleyallen.com or Rhon.Jones@bea- tive product. Often overlooked, these resent for a recovery dealing with sleyallen.com. can be very good cases. Contact: medical fraud, with two states remain- [email protected] or ing with litigation pending. Leukemia and Benzene expo- [email protected]. sure—Benzene is widely used in a Our firm is currently representing the number of industries and products, PFC Contamination in Water states of Alabama and Georgia in the yet many people remain unaware of Systems—In May 2016, the U.S. Envi- opioid litigation. We also represent the toxic danger of this chemical sub- ronmental Protection Agency (EPA) states and certain local governments stance. Exposure to products contain- issued new lifetime health exposure in environmental or toxic exposure ing benzene, whether through guidelines for perfluorooctane sulfo- claims. These government cases may inhalation or skin absorption, can nate (PFOS) and perfluorooactanoic involve issues of environmental catas- cause life-threatening diseases includ- acid (PFOA) in the water supply. After trophe, or some other type of ing Acute Myeloid Leukemia (AML), the EPA issued the new exposure pollution. Myelodysplastic Syndrome (MDS), limits, an advisory warning was pro- lymphomas and aplastic Anemia. vided to eight water systems in Some of the most notable cases Some of these diseases do not mani- Alabama and more than 50 nation- handled by Beasley Allen lawyers on fest themselves until several years wide. The EPA advisory focused on behalf of states and municipalities for after exposure to benzene. Due to PFOA and PFOS, man-made chemical environmental issues include the PFC certain statute of limitations for bring- compounds that are used in the manu- water contamination and BP Oil Spill ing a claim of this nature it is impor- facture of non-stick, stain-resistant, litigation. tant to contact an attorney as soon as and water-proofing coatings on fabric, For more information, contact Rhon. possible if you believe your condition cookware, firefighting foam, and a [email protected], Dee.Miles@ is a result of benzene exposure. variety of other consumer products. beasleyallen.com or Alison.Haw- Contact: John.Tomlinson@beasleyal- Exposure to the chemicals over time, [email protected]. len.com or Grant.Cofer@beasley- even in trace amounts, could promote allen.com. serious health problems, the EPA Alternative To Lawyer Contacts warns. Contact: Rhon.Jones@beasley- Roundup / glyphosate—Roundup is allen.com, Rick.Stratton@beasleyal- the most widely used herbicide in the len.com or Ryan.Kral@ If you have difficulty reaching the world and the second-most used weed beasleyallen.com. contact lawyer listed for each Section killer for home and garden, govern- and have an urgent need, you can ment and industry, and commerce. It E-cigarette Explosions—We are contact the Section Director who will was introduced commercially by Mon- investigating cases involving severe put you in touch with a lawyer appro- santo Company in 1974 and is used by injuries caused by exploding e-ciga- priate for your contact. They can be landscapers, farmers, groundskeep- rette devices and exploding e-ciga- reached at 800-898-2034 or by their ers, and commercial gardeners. The rette batteries. These explosions have email address listed below. These primary ingredient in Roundup is been linked to faulty e-cigarette prod- Directors are listed below: glyphosate, a chemical that kills ucts, defective lithium-ion batteries, weeds by blocking proteins essential and insufficient warnings for users. • Sloan Downes, Director, Personal to plant growth. It has been linked to Although these cases do involve per- Injury & Products Liability—Sloan. a type of cancer called non-Hodgkin sonal injury including serious burn [email protected]; lymphoma. We are investigating cases injuries, please contact our Toxic involving non-Hodgkin lymphoma Torts section for assistance with cases • Melissa Prickett, Director, Mass Torts related to the commercial application you may have involving these devices. —[email protected]; of Roundup/glyphosate. Contact: Contact: William.Sutton@beasley- • Sandra Walters, Director, Toxic [email protected] or allen.com. Torts—Sandra.Walters@beas- [email protected]. leyallen.com; Representing State and Local Governments Severe Lung Disease—Beasley Allen • Michelle Fulmer, Director, Consumer lawyers are investigating numerous In addition to cases listed above, lawyers Fraud & Commercial Litigation— cases involving severe lung disease, in our firm represent state governments Michelle. [email protected]. including where a client has received and local governments in several areas of any of the following diagnoses: any litigation. The following will set out those Our Directors do a tremendous job of interstitial lung disease, pulmonary specific areas. making sure the sections operate effec- fibrosis (whether idiopathic or not), tively and have the resources available to silicosis, black lung, bronchiolitis handle the cases on behalf of clients. Each

30 BeasleyAllen.com section has support staff, including legal Chrysler (FCA US LLC) is recalling certain are deactivated, it can increase the risk of assistants and investigators, which is criti- 2018 Jeep Wrangler four-door vehicles. injury in the event of a crash. cal to the mission of the section. The right rear passenger door latch may not be in the correct location, possibly pre- General Motors LLC (GM) is recalling venting the door from latching properly. If certain 2019 Buick Encore, Chevrolet the right rear passenger door opens unex- Spark, Traverse, and Trax vehicles. The XIX. pectedly, it can increase the risk of injury. Sensing Diagnostic Module (SDM) on these vehicle may not have been turned off of RECALLS UPDATE Chrysler (FCA US LLC) is recalling certain “manufacturing mode,” preventing the air 2018 Jeep Grand Cherokee Street and bags from deploying in the event of a Racing Technology (SRT) and Trackhawk crash. If the air bags do not deploy in the We are again reporting a large number vehicles. The driver’s floor mat may have event of a crash, it can increase the risk of safety-related recalls. We have included insufficient clearance between the mat of injury. some of the more significant recalls that and the accelerator pedal, possibly pre- were issued in November. If more informa- venting the pedal from returning to the Subaru of America, Inc. (Subaru) is tion is needed on any of the recalls, readers idle position. If the floor mat prevents the recalling certain 2018 Subaru Legacy and are encouraged to contact Shanna Malone, accelerator pedal from returning to idle, Outback vehicles. Due to a software error, the Executive Editor of the Report. We there would be an increased risk the low fuel warning light may not illumi- would also like to know if we have missed of a crash. nate at the intended remaining fuel level any safety recalls that should have been and the miles-to-empty display may incor- included in this issue. Eaton Corporation (Eaton) is recalling rectly indicate a positive number despite certain ECA heavy-duty truck clutches, the tank being empty. The inaccurate fuel Auto Recalls part numbers 122002-35, 122002-35A, display may cause a driver to unexpectedly 122002-42, and 122002-42A, for use in run out of fuel and the vehicle to stall, Ford Motor Company is recalling certain automated manual transmission vehicles. increasing the risk of a crash. 2018 Ford Explorer vehicles equipped with An internal component in the clutch 2.3L or 3.5L GTDI engine. Due to an assem- assembly may fail, possibly resulting in Subaru of America, Inc. (Subaru) is bly error, the fuel pressure sensor may leak unintended vehicle movement. Unin- recalling certain 2012-2014 Subaru fuel. A fuel leak in the presence of an igni- tended vehicle movement can increase the Impreza, 2012-2013 Impreza Stationwagon, tion source can increase the risk of a fire. risk of a crash. 2013 Subaru BRZ, XV Crosstrek and Toyota Scion FR-S vehicles. The engine valve Ford Motor Company (Ford) is recalling National Van Builders, Inc. (National springs in these vehicles may fracture certain 2010 Ford Fusion, Mercury Milan Van) is recalling certain 2015-2018 Ford causing an engine malfunction or a possi- and 2010-2012 Lincoln MKZ vehicles that Transit vehicles equipped with Freedman ble engine stall. An engine stall can previously received a replacement passen- GO-ES Foldaway Seats, part numbers increase the risk of a crash. ger air bag under recall 16V-384, 17V-024 43705, 45467, 48923, and 75719. When the or 18V-046. In the event of a crash requir- back seat cushion is rotated from the Suzuki Motor of America, Inc. (Suzuki) is ing deployment of the passenger air bag, stowed position to the upright position, recalling certain 2010-2013 Suzuki Kizashi the bracket that secures the air bag inflator the seat cushion may not remain locked vehicles. Dust can enter the vent line that to the module housing may deform, allow- into place when under load, such as in a provides fresh air to the carbon canister ing the gas that inflates the air bag to leak crash or a sudden stop. As such, these vehi- restricting its air flow and possibly creat- out. If the air bag does not inflate as cles fail to comply with the requirements ing excessive negative pressure in the fuel intended, there is an increased risk of of Federal Motor Vehicle Safety Standard tank which may result in the fuel tank injury in the event of a crash. (FMVSS) number 207, “Seating Systems.” In cracking. A cracked tank may leak fuel, increasing the risk of a fire. Honda (American Honda Motor Co.) is the event of a crash, if the seat back moves, recalling certain model year 2018 and 2019 the seat occupant has an increased risk Kia Motors America (Kia) is recalling Honda Odyssey vehicles. The latch assem- of injury. certain 2018 Kia Stinger vehicles. The blies for the power sliding doors may stick Lotus Cars Limited (Lotus) is recalling front wiring harness located in the engine and not properly latch to the door strikers. certain 2018 Lotus Evora vehicles. Due to and passenger compartment may get If the power sliding door fails to latch, the an assembly error, in the event of a frontal damaged from contacting a burr on the left doors may open while moving, increasing collision the steering column may not fender body panel. The damaged wiring the risk of injury. properly collapse to absorb some of the harness may short circuit, increasing the risk of a fire. Honda (American Honda Motor Co.) is impact energy. If the steering column does recalling certain 2017-2019 Acura MDX, not collapse as intended in a crash, it can Kia Motors America (Kia) is recalling 2017-2018 Acura MDX Sport Hybrid, 2018- increase the risk of injury. certain 2019 Kia Forte vehicles equipped 2019 Honda HR-V and Honda Odyssey, and Toyota Motor Engineering & Manufac- with LED headlights. The headlights may 2016 Honda HR-V vehicles. The rear turing (Toyota) is recalling certain 2004- not have been manufactured with the brake caliper pistons may have an insuffi- 2006 Toyota Scion xA vehicles. The air bag correct low beam aiming. As such, these cient coating, causing gas pockets to form, control module for the supplemental vehicles fail to comply with the require- reducing brake performance. As such, restraint system (SRS ECU) may experi- ments of Federal Motor Vehicle Safety Stan- these vehicles fail to comply with the ence an internal short, possibly causing dard (FMVSS) number 108, “Lamps, requirements of Federal Motor Vehicle the air bags to unintentionally deploy, or Reflective Devices, and Associated Equip- Safety Standard (FMVSS) number 135, become deactivated. If the air bags and/or ment.” If the headlights are not properly “Light Vehicle Brake Systems.” A reduction seat belt pretensioners unintentionally aimed, the driver may have reduced visibil- of braking performance increases the risk deploy, it can increase the risk of a crash. If ity, increasing the risk of a crash. of a crash. the air bags and/or seat belt pretensioners

JereBeasleyReport.com 31 Hickory Springs Manufacturing equipped with Whelen accessory brake Other Motor Vehicle Recalls Company (HSM) is recalling certain HSM lights. Depending on the specific wiring of NextGen 45” 3PT school bus seats, part the vehicle, these brake lights may illumi- Ducati North America (Ducati) is recall- number GenQ3-45 LH. The bolts that nate when the brake pedal has not been ing certain 2017-2019 Ducati Supersport secure the rear of the seat pedestal to the pressed. As such, these vehicles fail to motorcycles. Vibrations may distort the floor may fracture, allowing the pedestal comply with the requirements of Federal images in the mirrors, reducing the driv- to detach from the bus floor. As such, Motor Vehicle Safety Standard (FMVSS) er’s visibility. Reduced rearward visibility these vehicles fail to comply with the number 108, “Lamps, Reflective Devices, can increase the risk of a crash. requirements of Federal Motor Vehicle and Associated Equipment.” If the brake Kidde Technologies, Inc. (Kidde) is Safety Standard (FMVSS) number 210, lights incorrectly illuminate, it can confuse recalling certain fire extinguishers, model “Seat Belt Assembly Anchorages.” If the other drivers, possibly increasing the risk number 83-133002-500 with part numbers floor pedestal disconnects from the floor of a crash. 421220-11 and 421220-12, used in certain during a crash, it can increase the risk fire suppression systems installed in buses of injury. BMW of North America, LLC (BMW) is recalling certain 2013-2018 BMW 328d and and passenger coach vehicles. The actua- Mercedes-Benz USA, LLC (MBUSA) is 328d xDrive, 2014-2018 328d Sports tor of the extinguisher may not function recalling certain 2019 Mercedes-Benz Wagon and 328d xDrive Sports Wagon, properly, preventing the fire extinguisher C300, C300 4Matic, C300 4Matic Cabrio, 2014-2016 535d and 535d xDrive, 2015 from discharging the fire suppression C300 4Matic Coupe, C300 Coupe, C300 740Ld xDrive, 2015-2017 X3 xDrive28d agent. If the fire suppression system does Cabrio, C43 AMG, C43 AMG Cabrio, C43 SAV and 2014-2017 X5 xDrive35d SAV vehi- not work as intended, it can increase the AMG Coupe, CLS450, CLS450 4Matic, cles equipped with an Exhaust Gas Recir- risk of injury in the event of a fire. CLS53 AMG 4Matic, E53 AMG 4Matic, E450 culation (EGR) module with an integrated Dexter Axle Company (Dexter) is recall- 4Matic, E450 4Matic Coupe, E53 AMG cooler. If the EGR cooler leaks internally, ing certain D28H, D35, D40, and D44 4Matic Coupe, G550, and G63 AMG vehi- the coolant can mix with diesel engine trailer axles. The inner hub bearings may cles. The Central Powertrain Controller soot. The high EGR temperatures may not have been sufficiently greased, which (CPC) control unit could reset while result in these particles possibly smolder- can cause the bearings to overheat and fail. driving, possibly causing an engine stall. ing and melting the intake manifold. The If the bearings overheat, the hub may fail, An engine stall can increase the risk melting intake manifold can increase the affecting handling and increasing the risk of a crash. risk of a fire. of a crash. Daimler Trucks North America (DTNA) Southeast Toyota Distributors, LLC Keystone RV Company (Keystone) is is recalling certain 2017-2018 Freightliner (SET) is recalling certain 2017-2019 Toyota recalling certain 2019 Keystone Montana Cascadia vehicles. The brake lights on 4Runner vehicles that SET modified to be recreational trailers with the Legacy these vehicles may remain activated after equipped with a TRD wheel package. The package. The fasteners that secure the disc the brake pedal is released. If the brake Gross Vehicle Weight Rating (GVWR) on brake assembly may fail. If the fasteners lights remain activated, other drivers may the certification label may be incorrect, fail, the trailer would lose all braking be unaware that the vehicle is actually possibly resulting in the vehicle being ability, increasing the risk of a crash. slowing or stopping, increasing the risk overloaded. As such, these vehicles fail to of a crash. comply with the requirements of Federal Triple E Recreational Vehicles (Triple E) Motor Vehicle Safety Standard (FMVSS) is recalling certain 2019 Triple E Unity Daimler Vans USA, LLC (DVUSA) is number 110, “Tire Selection and Rims.” An motorhomes, models U24MB, U24CBB, recalling certain 2018 Freightliner Sprinter overloaded vehicle can increase the risk U24TB, U24IX and U24FX. The driver-side 2500 and 3500 and Mercedes-Benz Sprinter of a crash. front trans-mount leveling jack support 2500 and 3500 vehicles. The right side bracket may contact the brake line causing door latches may have been built with Porsche Cars North America, Inc. a brake fluid leak, thereby reducing incorrect components. As a result, when (Porsche) is recalling certain 2019 Porsche braking ability. A reduction in braking the doors are electronically unlocked, the Cayenne vehicles. The passenger side rear ability can increase the risk of a crash. right-side doors may not be able to be seat belt buckle may break under load, opened from inside or outside of the such as in the event of a crash. As such, Thor Motor Coach (TMC) is recalling vehicle. In the event of a crash, if the right these vehicles fail to comply with the certain 2018-2019 Thor Four Winds, side doors cannot be opened, it could requirements of Federal Motor Vehicle Chateau, and Freedom Elite vehicles. The increase the risk of injury. Safety Standard (FMVSS) number 209, liquid propane (LP) hose may not have “Seat Belt Assemblies.” If the seat belt adequate space between the floor and the Isuzu Technical Center of America, buckle breaks in the event of a crash, the metal plate on the refrigerator, causing Inc. (Isuzu) is recalling certain 2018-2019 occupant will not be properly restrained, damage to the hose and possibly creating a Chevrolet Low Cab Forward 6500XD and increasing their risk of injury. propane leak. A propane leak can increase Isuzu FTR vehicles. The cab may not the risk of a fire. provide an adequate warning to lock the Proterra is recalling certain 2016-2017 cab tilt-lock after servicing. If the cab tilt- Proterra Catalyst 40 transit buses equipped Thor Motor Coach (TMC) is recalling lock is not engaged, the cab can tilt with axles with radial air disk brakes. certain 2017 Tuscany XTE and 2017-2019 forward while driving. If the cab tilts Surface roughness of a guide pin in the Venetian, Aria, Tuscany, and Palazzo forward while driving, it can increase the radial brake calipers may cause the brake motorhomes built on Freightliner Custom risk of a crash or injury. carriage guide pin support bolt to break. Chassis Corporation chassis. The Power Breakage of the guide pin can cause loss of Distribution Module (PDM) may have been Pierce Manufacturing (Pierce) is recall- braking ability or loss of tire pressure, damaged during manufacturing, possibly ing certain 2017-2018 Pierce Arrow XT, increasing the risk of a crash. resulting in the rear marker lights, brake Dash, Enforcer, Impel, Quantum, Saber, lights, or turn signals not functioning. Velocity, and Commercial vehicles

32 BeasleyAllen.com Nonfunctioning lights can increase the Altec Industries (Altec) is recalling and Recalls, www.blackanddecker.com risk of a crash. certain 2014-2018 DHH and DHB Digger click Safety Recalls, or www.bostitch.com Derrick vehicles. The Zone Rating System click Safety Recalls for more information. Forest River, Inc. (Forest River) is recall- may not alert the operator that the load Pictures available here: https://www.cpsc. ing certain 2018-2019 Forest River Berk- being handled exceeds the rated load for gov/Recalls/2019/Black-and-Decker- shire recreational vehicles and StarTrans the unit’s specific position. Without an Recalls-Hammer-Drills-Due-to- PS2 transit buses and 2019 Glaval Legacy alert, there is a greater risk of unit instabil- Injury-Hazard. transit buses. The brake caliper mounting ity or a loss of load control, increasing the bolts may have been insufficiently tight- risk of injury. Altec Industries Inc. (Altec) is recalling ened. Loose brake caliper mounting bolts certain 2009 Altec LSS 60 or LSS 70 Eleva- can reduce brake effectiveness, increasing Altec Industries, Inc. (Altec) is recalling tor Aerial devices. The elevator riser the risk of a crash. certain 2018 Altec DM45, DM47B, DC45 assembly may crack and fail. If the elevator and DC47 Digger Derricks and TA50 and riser fails, it can increase the risk of Forest River, Inc. (Forest River) is recalling TA60 Aerial Devices. The high strength fas- injury or death. certain 2018-2019 Cherokee Alpha Wolf teners used to secure the pedestal to the and 2019 Cherokee Arctic Wolf recre- turn table may fail. If the fasteners fail, the ational trailers. The awnings may have pedestal may separate from the turn table, MCS Industries Recalls Glacier Bay been mounted with fasteners that are increasing the risk of injury. insufficient in length and/or quantity, pos- Medicine Cabinets sibly resulting in the awning arm detach- Heartland Recreational Vehicles, LLC ing from the wall. If the awning arm (Heartland) is recalling certain 2019 Heart- About 15,400 Glacier Bay Bi-View medi- detaches, it can increase the risk of injury land Pioneer recreational trailers, model cine cabinets have been recalled by MCS or a crash. BH280. A flexible liquid propane (LP) hose Industries Inc. of Easton, Pennsylvania. was installed on the outside cooktop The mirror can detach from the medicine Forest River, Inc. (Forest River) is recall- running into the firebox of the stove cabinet door, posing a laceration hazard to ing certain 2017-2019 Forest River George- instead of a rigid metal tube supply line. consumers. This recall involves Glacier town and FR3 motorhomes, 2018-2019 Heat from the cooktop can damage the Bay bi-view medicine cabinets. The medi- Berkshire motorhomes and 2018 Charles- hose, increasing the risk of a fire. cine cabinets are 30 inches wide x 26 ton motorhomes. The motorized wind- inches high and contain a silver beveled shield roller shade at the driver’s seating Other Consumer Recalls mirror. Only medicine cabinets that have position may unroll without warning one-piece, plastic brackets for the inside while driving. If the windshield roller Black & Decker Recalls Hammer Drills shelves are included in this recall. MCS has shade unrolls while driving, it could block received 94 reports of mirrors detaching the driver’s visibility, increasing the risk Black & Decker (U.S.) Inc., of Towson, and breaking, including two reports of lac- of a crash. Maryland, has recalled about 641,000 erations to hands and fingers and six Black & Decker, Bostitch and Porter-Cable reports of property damage. Keystone RV Company (Keystone) is Hammer Drills and Drill Drivers. The side The cabinets were sold at The Home recalling certain 2019 Crossroads Cruiser handle sold with the drill can slip or break, Depot stores nationwide and online at recreational trailers with the water heater leading to a loss of control of the tool, homedepot.com from January 2018 installed under the slide out. The exhaust posing an injury hazard. This recall through August 2018 for about $185. Con- location for the water heater may result in involves side handles supplied with Porter- sumers should immediately stop using the carbon monoxide or propane gas entering Cable brand model PC70THD ½ Inch VSR recalled medicine cabinets and contact the living quarters. If carbon monoxide or 2-Speed Hammer Drills, Black & Decker MCS for instructions on sending the propane gas enters the living quarters, it brand model DR560 ½ Inch Drill/Drivers, product back to MCS free of charge and can increase the risk of injury. and Bostitch brand models BTE140 and receiving a free replacement. MCS is con- tacting all known purchasers directly. Grand Design RV, LLC is recalling certain BTE141 ½ Inch Hammer Drills. The side 2018-2019 Reflection fifth wheel trailers, handles are black plastic and attach to the Contact MCS Industries at 800-833-3058 models 28BH and 29RS. The circuit for the drill to help provide stability. The Porter- (select option 6) from 8:30 a.m. to 5 p.m. power converter does not have over-cur- Cable hammer drills are gray with red ET Monday through Friday or email rent protection. An electrical short circuit accents, the Black & Decker drill/drivers [email protected] or online at www. in the unprotected circuit can increase the are orange with black accents, and the mcsframes.com and click on “Recalls” on risk of a fire. Bostich hammer drills are yellow with the bottom of the page for more informa- black accents. Black & Decker has received tion. Pictures available here: https://www. Silverstone Associates LLC (Silverstone) 11 reports of side handles slipping or cpsc.gov/Recalls/2019/MCS-Industries- is recalling certain Ride Eazy DOT Sleek breaking and one report of a torn rotator Recalls-Glacier-Bay-Medicine-Cabinets- helmets, sizes M and XL. These helmets cuff injury. Due-to-Laceration-Hazard-Sold-Exclusively- may not adequately protect the wearer in The tools were sold at The Home Depot, at-The-Home-Depot the event of a head impact during a motor- Lowe’s, major home and hardware stores cycle crash, or the helmet may detach nationwide, and online at Amazon.com and other online retailers from January from the wearer. As such, they fail to More Than 600,000 A. O. Smith Water comply with the requirements of Federal 2010 through July 2018 for between $50 Heaters Recalled Motor Vehicle Safety Standard (FMVSS) and $100Consumers should immediately number 218, “Motorcycle Helmets.” A stop using the drills and contact Black & A.O. Smith Corporation, out of Milwau- helmet that does not adequately protect Decker for a free replacement side handle kee, Wisconsin, has recalled about 616,000 the wearer from an impact or becomes Contact Black & Decker at 888-284-3070 of their Ultra-Low NOx water heaters due detached can increase the risk of injury in from 8 a.m. to 5 p.m. ET, Monday through to fire hazard. According to the company, the event of a crash. Friday, at [email protected] or online at the heater’s gas burner screen develops www.portercable.com click Safety Notices tears and can create excess radiant heat,

JereBeasleyReport.com 33 posing a fire hazard if the water heater is Recalls-Dining-Tables-Due-to-Lacera- 2015 and Samford University’s Cumberland installed directly on a wood or other com- tion-Hazard School of Law. While at Cumberland, bustible floor. Included in the recall are Andrew was a member of the law school’s 30-, 40- and 50-gallon natural or propane As we stated at the outset of this section, nationally ranked trial team, a member of gas-fired Ultra-Low NOx emission gas there have been a large number of recalls Cumberland’s arbitration team, an execu- water heaters with the first four digit serial since the last issue. While we weren’t able tive officer of the law school’s trial advo- numbers between 1115 and 1631. The to include all of them in this issue, we cacy board and an Associate Justice for the heaters were sold under the American, included those of the highest importance Cumberland Honor Court. A.O. Smith, Kenmore, Reliance, State, U.S. and urgency. If you need more information Although a relatively new lawyer with Craftsmaster and Whirlpool brand names on any of the recalls listed above, visit our the firm, Andrew says he has observed the and manufactured from April 8, 2011, firm’s web site at www.BeasleyAllen.com firm’s fundamental goal is to achieve the through Aug. 1, 2016. The brand name, or our consumer blog at www.RightingIn- best possible outcome for clients and he model number and serial number can be justice.com. We would also like to know if believes that’s what sets the firm apart. found on the data plate on the product we have missed any significant recall that Andrew says: located next to the gas control valve/ther- involves a safety issue. If so, please let us mostat while the brand name is printed know. As indicated at the outset, you can Every single person at this firm has near the top of the water heater. contact Shanna Malone at Shanna.Malone@ a goal to achieve the best possible If you do happen to have one of the beasleyallen.com for more recall informa- outcome for our clients and works recalled products, you are advised to tion or to supply us with information hard every day to reach that goal. immediately turn off and stop using it and on recalls. While some firms are just about contact A.O. Smith to determine if a free making a profit, we are about repair is necessary. So far, A.O. Smith has making a difference to people. received six reports of fires occurring XX. Andrew is an avid Florida State Semi- from a water heater installed directly on a noles fan and enjoys playing golf in his combustible surface. No injuries have been FIRM ACTIVITIES spare time. He is a hardworking lawyer reported. Consumers can look up their who does outstanding work. We are fortu- water heater’s serial number to see if it is nate to have Andrew with the firm. affected by this recall at www.waterheater- Employee Spotlights recall.com. TYNER HELMS Tyner Helms, a lawyer in our firm’s Con- ANDREW BANKS sumer Fraud & Commercial Litigation IKEA Recalls Dining Tables Andrew Banks is a lawyer in the firm’s Section, marked his first anniversary with Toxic Torts Section. Currently, Andrew is the firm in October. He is primarily IKEA Supply AG, of Switzerland, has handling cases for municipalities whose working on litigation related to Fiat Chrys- recalled about 8,200 GLIVARP extendable water systems have suffered various forms ler emission cheating software and the qui dining tables. The table’s glass extension of environmental harm after exposure to tam litigation. Prior to joining Beasley leaf can detach and fall unexpectedly, corporate pollution. Prior to joining Allen, Tyner was a law clerk for a private posing a laceration hazard. This recall Beasley Allen, Andrew worked as a law practice attorney and two civil litigation involves IKEA GLIVARP extendable dining clerk for the Jefferson County District law firms. tables in white. The recalled tables have Attorney’s Office in Birmingham, Alabama, Tyner says he became a lawyer because four steel legs and a glass table top with an where he gained valuable trial experience. of the challenge practicing law presents to extension that can be pulled out to the Andrew was also selected as a judicial the professional and the impact it has on side. They measure about 29 inches tall by intern for U.S. District Judge Madeline people’s daily lives. He says: 49 inches long. The glass table top exten- Haikala in the Northern District sion measures about 25 inches long. The of Alabama. Lawyers can be movers and shakers supplier number (12003) is printed on a Andrew says he knew from a very young in society and they have the poten- sticker on the underside of the table frame. age that he wanted to do something with tial to change the status quos “GLIVARP” and the IKEA logo are also his life that had a positive impact on the through the legal process. Lawyers printed on the sticker. IKEA has received community. He began to understand there are often in unique positions to help three reports of the table’s glass extension are many people who, when facing real people resolve problems, restore leaf detaching and falling unexpectedly, problems, do not have the ability to make their clients’ lives, and are often the one of which included a minor injury their voices heard. Andrew says he has only thing standing between their where no medical attention was needed. made it his duty to be there for them, client and an injustice. The tables were sold exclusively at IKEA giving them a voice. He wants to use his Tyner says these same principles drive stores nationwide and online at www.ikea- skills and knowledge to help them to the his passion for practicing law as a trial usa.com from February 2017 through best of his ability. Andrew says: lawyer. He adds: October 2018 for about $300. Consumers should immediately stop using the recalled When I go to bed each night, I hope The feeling that I am doing some- dining tables and return them to any IKEA to feel confident that what I did that thing meaningful that impacts peo- store for a full refund or free replacement day had a positive impact on ple’s day-to-day lives is my favorite table. Contact IKEA toll-free at 888-966- another person’s life. part about practicing law. I also love 4532 anytime or online at www.ikea-usa. The Maitland, Florida, native now calls the challenge that practicing law com and click on Press Room at the Montgomery home. He made his way to presents. As a lawyer, you have to bottom of the page, then on Product the Capital City and to Beasley Allen by apply a wide variety of skills to be Recalls at the top of the page for more way of Florida State University where he good at your job and, in that sense, information. Pictures available here: earned his Bachelor of Science degree in you will never get to a point where https://www.cpsc.gov/Recalls/2019/IKEA- you have ‘seen it all’. It forces you to

34 BeasleyAllen.com keep learning and developing per- opportunity to ensure his clients are nately, many of our clients have sonally as you progress in treated fairly and receive the justice they experienced traumatic life events. I your career. deserve. He said his favorite parts of prac- am particularly passionate about ticing law are “working with good folks helping our clients through these A 2017 graduate of the University of and successfully resolving cases.” Jeff also events. Being able to provide the Alabama School of Law, Tyner served as says he enjoys working at the firm because relief our clients need is my favorite senior editor of the Civil Rights and Civil of “the great staff who are very passionate part about practicing law. Liberties Law Review, interned at the about what they do.” school’s Elder Law Legal Aid Clinic and Jeff is married to the former Kathleen As with many of the firm’s lawyers, assisted a professor in developing a journal Crawley of Prattville, Alabama, and they Ben’s approach to his law practice mirrors article on the False Claims Act’s applica- enjoy spending time with their dog, “Lilly.” that of the firm’s—keeping a client’s inter- tion to customs fraud. He earned his They now reside in Prattville, Alabama. est at the forefront and treating them as accounting degree from Auburn Univer- Jeff is a very good hard-working lawyer, part of the Beasley Allen family. He appre- sity in 2013. who is passionate about what he does. He ciates the family-style culture the firm In describing our firm, Tyner says that is a valuable asset to the firm. We are fortu- fosters. Ben says: the value Beasley Allen places on provid- nate to have Jeff with us. ing a benefit to the community through its Beasley Allen is unique in that the firm considers their clients and legal services is what makes the firm BEN KEEN employees part of the Beasley Allen unique. Tyner says: Ben Keen, a lawyer in the firm’s Per- family. I find the word family to be sonal Injury & Products Liability Section, is The firm takes the mindset that no an accurate representation because in our Atlanta office. He handles cases problem is too small to listen to, and Beasley Allen, like a family, gives involving serious injuries and defective no case is too big or intimidating to equal attention and diligence to any products including tractor trailer acci- take on. It takes the approach that if issue whether it be legal, within the dents. Prior to joining the firm and during you focus on working hard, treating community, or personal. his time in law school, Ben gained experi- people fairly, and maintaining good ence as a law clerk for law firms practicing character, the other things will come The Georgia native enjoys spending his in civil litigation and criminal defense. into place. free time with family and close friends. He The Samford University Cumberland also enjoys listening to music, watching Tyner resides in Montgomery and School of Law graduate’s desire to practice Ole Miss football, hunting and fishing. attends The First Baptist Church. We are law was shaped by his father, also a lawyer. We are most fortunate to have Ben in most fortunate to have Tyner in the firm. Ben says: our firm and especially in our Atlanta He is an outstanding young lawyer who is office. He is a most welcome addition After observing my father practice truly committed to his work and the there. Ben is dedicated to helping others law for decades, my admiration clients he represents. and making sure his clients are well-repre- transformed into an understanding sented and have an opportunity to obtain of the responsibility and commit- JEFF PRICE justice. We also predict a bright future for ment necessary to successfully prac- Jeff Price, a lawyer in our Toxic Torts Ben in Georgia as a trial lawyer. Section, joined the firm in 2012. He is cur- tice law. My observations made my rently a member of our Opioid Litigation decision to practice an easy one. DAN PHILYAW Team. The team represents the State of Today, I honor my responsibility and Dan Philyaw is a lawyer who also is in Alabama and the State of Georgia in the commitment as an attorney. the firm’s Atlanta office. He represents opioid litigation. The opioid crisis, which While at Cumberland, Ben studied at injured individuals and their families in a has reached epidemic proportions, was Cambridge University, Sidney Sussex wide range of serious injury cases as a created by the pharmaceutical industry. College in Cambridge, England, as part of member of the firm’s Personal Injury & Responding to the crisis has caused local the law school’s study abroad program. He Products Liability Section. Prior to joining and state governments to incur tremen- was consistently included on the Dean’s the firm, Dan gained practical experience dous economic losses, which are continu- List and was a member of Cumberland’s by serving as a summer clerk for then- ing as a significant financial burden. National Arbitration and National Trial Judge Charlie Bethel at the Court of Jeff is also a member of the firm’s teams, an Associate Judge of the law Appeals of Georgia. As a student at the Uni- Nursing Home Litigation team. Previously, school’s Trial Advocacy Board, a member versity of Georgia School of Law, Dan also Jeff represented individuals, property of the Cordell Hull Speakers Forum and a represented survivors of family violence in owners and business owners across the member of the Judge James Edwin Inn of the law school’s Family Justice Clinic. Gulf Coast, helping them recover millions Court. During his senior year of law Dan graduated cum laude from Georgia of dollars in compensation for the losses school, Ben served as class President and Law in May. In addition to his work in the they suffered following the explosion of Graduation Commencement Speaker. law school’s Family Justice Clinic, Dan was the Deepwater Horizon oil rig. Earlier in his life, Ben earned his Screen a standout advocate in both moot court The Montgomery native is also a (non- Actors Guild (SAG) card after landing the and mock trial competitions while at practicing) Certified Public Accountant in role of Wingate quarterback, Tony, in Georgia Law. He won Best Oralist at the Alabama. He graduated with a B.A. from Warner Brothers Entertainment, Inc.’s 2017 Georgia Intrastate Moot Court Com- Tulane University and holds a J.D. from “The Blindside.” Now, Ben loves practicing petition and was also named Best Oral Cumberland School of Law, and an LL.M. law and following in his father’s footsteps. Advocate at the 2017 Billings, Exum & Frye in federal taxation from the University of He says what he admires about practicing National Moot Court Competition. Miami School of Law. law is the privilege of advocating for Additionally, Dan won Georgia Law’s J. Jeff said he chose to become a lawyer others. Ben says: Melvin England Mock Trial Tournament in because he believes in justice and fairness 2016 and finished as runner-up in the J. and, he added, he also likes to argue. He As a lawyer, I have a duty to seek the Ralph Beaird Closing Argument Competi- says that practicing law allows him the best interest for my clients. Unfortu- tion during the same calendar year. Due to

JereBeasleyReport.com 35 these successes, Dan was inducted to the Political Science and Psychology. She dent of the following organizations: Ameri- Order of Barristers upon graduation as one earned her law degree from Thomas M. can Association for Justice, Montgomery of the 10 best advocates in his law Cooley School of Law and holds a Master of Trial Lawyers Association, the Alabama school class. Business Administration from American Civil Justice Foundation and the Montgom- Ben also served as a research assistant to Public University. ery County Bar Association. Gibson is also evidence scholar Ronald L. Carlson and Shaynea is mother to 5-year-old Dallas an Alabama State Bar Commissioner, repre- studied as a pupil in the Joseph Henry who she says is “an amazing and brilliant senting the 15th Judicial Circuit. Gibson and Lumpkin American Inn of Court. Dan boy.” She is also a newlywed. She and her Kate have two children, Carter and earned bachelor’s degrees in finance and husband, Terry Willis, were married in Andrew and they attend First Baptist international studies from the University of June. Since March 2017, Shaynea is an Church in Montgomery. Missouri in 2014, graduating magna cum aspiring comedian and has performed in laude and cum laude, respectively. several major venues. Dan says giving a voice to others who Faulkner University’s Jones School Of Law cannot advocate for themselves is what Celebrates 90 Years drew him to the practice of law. He says: “I want to use my strengths to help others in XXI. We are featuring Jones School of Law their time of need.” SPECIAL this month. For those who don’t already Practicing law at Beasley Allen, Dan know, the school, which was established said, allows him to pursue his passion of RECOGNITIONS in 1928, is located in Montgomery on the advocating for those with the greatest campus of Faulkner University. We asked need because of the firm’s commitment to Charles Campbell, Interim Dean at Jones its clients and community. Dan says: Gibson Vance Honored By Troy University School of Law, to write a piece on the law Beasley Allen has the size and school for this issue of the Report. He strength of a large law firm but Gibson Vance has been named a 2018 obliged and we appreciate it very much. treats its clients and employees like Troy University Distinguished Alumni of Because of the importance of the law family. The members of the firm are the Year. Gibson, a 1987 graduate, now school to our state, and specifically to the truly committed to making a posi- provides leadership to the University as a legal community in our area, the entire tive impact in the lives of those member of its Board of Trustees. Gibson article appears below. had this to say: around them. Faulkner University’s Jones School of Additionally, Dan said the practice of I am honored by this recognition. Law is celebrating 90 years of legal law allows him to be a life-long learner and The education and fundamental education in Montgomery this year. he appreciates the opportunity to continu- professional values I acquired while Established in 1928, the school is ally learn about the law, industry, technol- at Troy placed me on a path full of named in memory of Thomas Goode ogy and the community. opportunities. I am proud to repre- Jones (1844-1914). sent the school and to support its In his spare time, Dan enjoys writing Thomas Goode Jones was a Montgom- music and plays guitar, piano and cello. He work in preparing the next genera- tion of professionals and leaders. ery Civil War veteran who first came is also a long-distance runner and a proud to prominence after the war by urging Eagle Scout. Dan enjoys watching SEC Troy Chancellor Jack Hawkins presented national reconciliation. “We can sports and worked for a sports marketing the award during the Homecoming foot- bequeath our children nobler lega- firm before going to law school. ball game last month. A long-time sup- cies,” he said, “than discord and hate.” Dan is a great addition to our Atlanta porter of Troy University, Gibson and his He served in the Alabama legislature office. He is an extremely talented individ- wife, Kate, will soon establish the Kate and two terms as governor of ual who works very hard for his clients. and Gibson Vance Study Abroad Scholar- Alabama. President Theodore Roos- We are pleased to add Dan as a lawyer in ship, enabling students who wish to evelt appointed him to be a federal our firm. It’s our belief that Dan has an expand their learning experience beyond district judge for the Northern and extremely bright future as a trial lawyer the classroom to do so by helping offset Middle Districts of Alabama in 1901, in Georgia. certain expenses. Previously, Gibson estab- on the recommendation of Booker T. lished an endowment to the College of Washington. As a federal judge, Jones SHAYNEA WILLIAMS Arts and Sciences, which launched a Dis- was known for attempting to end the Shaynea Williams is an E-Discovery Spe- tinguished Lecturer Series to provide stu- peonage system and for encouraging cialist who joined the firm in August 2017. dents interested in pursuing a career in the the use of federal law to She advises lawyers and legal staff on dis- legal profession the opportunity to hear punish lynching. covery processes to ensure legal compli- from the field’s most influential figures. ance in the development, implementation Gibson joined Beasley Allen in 2000 and Judge Jones’s son, a Montgomery and support of efficient and cost-effective he practices in the firm’s Personal Injury & County circuit judge for many years, discovery processes. Shaynea has devel- Products Liability Section and Consumer began holding law classes in the oped best practices and procedures for Fraud & Commercial Litigation Sections. county courthouse in 1924, and he database management and provided guid- His law practice focuses on actions against officially established the law school in ance in selection of appropriate software those who negligently or intentionally 1928, naming it after his father. and vendors. Additionally, Shaynea helps harm others. Gibson has participated in Leading Montgomery attorneys and with electronic document productions, dozens of jury trials in his legal career, judges taught the classes, which provides support during hearings, deposi- many of which have resulted in extremely quickly moved out of the courthouse tions and trials, and coordinates lawyer large verdicts for his clients. and into a series of locations in down- and legal staff trainings. Gibson is the President of the Southern town Montgomery. Early students A graduate of Spelman College, Shaynea Trial Lawyers Association and a past-presi- recalled having keys to the capitol earned her Bachelor of Arts degrees in building so that they could use the

36 BeasleyAllen.com Alabama Supreme Court’s library to having some of the best undergradu- XXII. study. Eventually, the law school ate grades in the law school’s history.

found a home (and its own library) in th FAVORITE BIBLE a building on Hull Street, right behind As Jones celebrates its 90 anniver- the Jones home on Adams Avenue. sary, it is also looking forward to its VERSES next 90 years. It is launching a capital After the death of its founder in 1963, campaign and exploring reopening a the law school passed through a series part-time program. For more than 70 Allison Hunnicutt, a lawyer in our firm, of owners. Faulkner University pur- years, Jones operated as a part-time furnished two verses for this issue. Allison chased it in 1983 and, in 1996, con- evening program; students attended says that she was led to 1 Peter 5:8 by a structed a new building for it that was classes in the afternoon and evening, friend who was helping her deal with a expanded in 2001 and again in 2011. while most maintained their full-time problem in her life. Allison says she is now The law school obtained provisional jobs. The law school added a tradi- having good success in her battles involv- approval from the American Bar Asso- tional full-time program in 2000. With ing spiritual warfare. ciation in 2006, followed by full ABA approval, the full-time day Be alert and of sober mind. Your approval in 2009, making Jones the program became so popular that the enemy the devil prowls around like third ABA-accredited law school school began phasing out the part- a roaring lion looking for someone in Alabama. time program in 2008. to devour. 1 Peter 5:8 After 90 years, Jones has more than Now, a decade later, technology is Recently, Allison says that she received 2,500 alumni, many of whom have transforming legal education. In independent confirmation that God hears risen to the top of the Alabama bench August 2018, the ABA doubled the her prayers! After a particularly disturbing and bar. Four graduates have served number of credit hours that may be encounter, Allison says she felt the weight on the Supreme Court of Alabama, offered online. A third of the 90 hours of her burden and lifted her eyes and and three more have served on the required to graduate from Jones may prayers heavenward with overwhelming state courts of appeals. Nearly 40 now be taken online, from home. sadness in her heart. She then asked God Jones graduates have served as state Online distance education makes it to please lift her heavy burden and to help and federal trial judges; nine currently possible to design a curriculum that her. Allison says: serve as district attorneys. Hundreds would allow part-time students to of Jones alumni are employed in complete much of their coursework I remembered to do something public service. Many more are in from home, with much less commut- important. I prayed that the Lord private practice at some of the best ing to campus. A part-time program would bless my enemies. Less than firms in the state, such as Beasley, could serve students throughout an hour later, here is the message Allen, Crow, Methvin, Portis & Miles, Alabama as well as Georgia, Missis- from another friend that came P.C., where, led by Greg Allen, more sippi, and the Florida panhandle, across my computer email with the than 30 Jones graduates now practice. making legal education available to subject line “Prompted:” many more students, especially those Students at Jones come from a variety working full time and those from Good Afternoon! Sending love and of backgrounds—from careers in busi- rural areas. The school has therefore blessings to you and asking the ness, the military, education, and law commissioned a market research Father to wrap His arms around you enforcement, in addition to those study to gauge interest in such to refresh and overwhelm coming straight from college. They a program. you. Love you. engage in substantial public service while in law school through the elder The law school’s 90th anniversary will Allison says: law, family violence, and mediation culminate with a celebration at its annual Wow! God heard me, He is listening, clinics, as well as other pro bono Barristers’ Dinner at 6 p.m. on Thursday, He knows and He is with me! I service opportunities and student March 7, 2019, at the Warehouse and Ball- believed it before because of my organizations. In fact, the school’s room at Alley Station in downtown Mont- faith, but to experience independent legal clinics recently won the Gold gomery. All alumni and friends of Jones real world confirmation that my Medallion award from the Montgom- School of Law are invited. All of us at tearful request was routed by the ery County Bar Foundation Volunteer Beasley Allen are very proud of the many Holy Spirit to God and then trans- Lawyers Program for the third successes and accomplishes achieved by mitted in some heavenly communi- year in a row. Jones School of Law and its graduates. The que to another person who reached school is very important to the Capital City out and pinged me with that knowl- The law school has built a national and to the State of Alabama without a edge—I was and am still truly over- reputation in trial advocacy. The most doubt. It has definitely been very good for whelmed. This doesn’t mean that I recent U.S. News rankings rated the Beasley Allen. th won’t encounter further trials and trial advocacy program 17 in the If you are interested in supporting Jones trouble. It just means that if I depend nation. The faculty continue to build School of Law, contact Interim Dean on God, I know He hears my prayers solid reputations for scholarship, Charles Campbell at ccampbell@faulkner. and He will deliver me from all of teaching, and service, and regularly edu or 334-386-7528. participate in academic conferences them, in His own time. and publish in top law reviews. Over The following are several verses from the past two years, the law school has Lamentations (3:22-26) that Allison says significantly improved the entering remind her of God’s great and unfailing qualifications of its incoming stu- compassion for us: dents, with the current first-year class

JereBeasleyReport.com 37 Because of the Lord’s great love we to wallow, knowing that God himself Spirit with the other Apostles are not consumed, for his compas- is the final test for truth. He is an (Acts 2:1-4). sions never fail. They are new every invariable moral standard; His truth is morning; great is your faithfulness. I not always convenient or personally Matthias was basically on “the waiting say to myself, “The Lord is my beneficial. God inspires dignity and a list” to be an Apostle. This verse portion; therefore I will wait for love that belies the best about our- helped me understand God’s plan him.” The Lord is good to those selves and others. Mother Teresa doesn’t always align with the timing whose hope is in him, to the one who gracefully explains why this Philippi- we expect, but our time will come if seeks him; it is good to wait quietly ans verse is so resonating and sustain- you have faith. And, hearing his story for the salvation of the Lord. Lamen- ing to me: “In the final analysis, it is made me realize God listens to you, tations (3:22-26) between you and God. It was never and responds if you pay attention. between you and them anyway.” Phi- Angie Taylor, a legal secretary in our lippians 4:8 Mass Torts Section, sent two verses for this issue. She says God led her to this scrip- Though he heard his prayers, God XXIII. ture not long after her Dad went home to allowed Paul to endure this suffering be with the Lord. Angie says as it comforts in order to keep him humble. His CLOSING her, she prays that it comforts others. She grace is enough to “enlighten and OBSERVATIONS wants us to know that Jesus is always with enliven us, sufficient to strengthen us and we are never alone. and comfort in all afflictions and dis- tresses. His strength is made perfect Dangerous Shortage Of State Troopers But I would not have you to be igno- in our weakness.” I constantly must rant, brethren, concerning them remind myself that God doesn’t give Creating Unsafe Alabama Highways which are asleep, that ye sorrow not, you more than you can handle, and Traffic accidents and resulting fatalities even as others which have no hope. even the worst day is an opportunity have surged across Alabama in the last four For if we believe that Jesus died and to learn, grow and better yourself in years alongside a “dangerously low” level rose again, even so them also which order to better those around you. It’s of state troopers. In August, Alabama State sleep in Jesus will God bring with also very much like a biblical version Trooper Sgt. Steve Jarrett told Birming- him. For this we say unto you by the of every rap song telling you to ham’s WBRC that there were 352 state word of the LORD, that we which are embrace your haters and get after troopers patrolling all of Alabama. By alive and remain unto the coming of your goals, and I like the link to November, that number had plummeted the LORD shall not prevent them modernity. 2 Corinthians 12:10 which are asleep. For the LORD even further to 250. himself shall descend from heaven When I was applying to law schools, I The Alabama State Troopers Association with a shout, with the voice of the was originally placed on waiting lists (ASTA) told the Montgomery Advertiser archangel, and with the trump of for my two top choices. Despite my that recent studies suggest a state the size God: and the dead in Christ shall parents’ assurances I should try to of Alabama needs 1,000 state troopers to rise first: Then we which are alive pursue law school by either waiting to effectively patrol the highways and keep and remain shall be caught up hear from these schools or reconsider motorists safe. Currently, there is just one together with them in the clouds, to any of the other schools I had already state trooper patrolling every 214 square meet the LORD in the air: and so been accepted into, I couldn’t see past miles in Alabama. shall we ever be with the LORD. what I perceived as rejection. I felt ASTA data shows that funding for Ala- Wherefore comfort one another with that waiting was beneath me, and bama’s state troopers has declined by these words. 1 Thessalonians 4:13-18 because I had exceeded these schools’ nearly 25 percent in the last four years. At stated standards for admission, if they the same time, auto accidents have Angie says, as a Christian, she struggles hadn’t said yes to me immediately, I increased by 18 percent and fatalities have with jumping ahead of God. She says she should just consider pursuing some shot up by 28 percent. does it often enough that God gave her a other profession. Apparently, God With the number of personnel in new life scripture this year. This scripture found my hubris amusing as the day decline, state troopers have to work is on her desk and on the wall of her home after expressing these sentiments to increasingly larger territories and longer as a reminder that she should always wait my parents, we went to Mass together work days—as many as 12 to 16 hours per patiently on the Lord for all things. and I first heard the story of Matthias. day in some circumstances, such as when Acts 1:12-26: The Story of Matthias: severe weather blows through the state. Be still and know that I am God. The aging fleet of patrol vehicles is also Psalm 46.10 Acts reveals that Matthias accompa- another enormous problem Alabama state Lauren Miles, a lawyer in our Consumer nied Jesus and the Apostles from troopers face. With longer shifts and larger Fraud & Commercial Litigation Section, the time of the Lord’s Baptism to his patrol areas, wear and tear has taken a toll furnished several verses for this issue. Ascension and that, when it became on the cars, many of which are a decade Lauren had this to say: time to replace Judas, the Apostles old and have more than a quarter cast lots between Matthias and million miles. It’s so easy to let myself wallow in the another candidate, St. Joseph Bars- The predicament is not just deadly for terrible things that happen in the abbas. St. Jerome and the early Alabamians and other motorists passing world, like the fraud and corruption Christian writers Clement of Alex- through the state, it’s also taking its toll on rampant with greed, and the ugliness andria and Eusebius of Caesarea the troopers. Senator Cam Ward of Alabas- of “fake news” and political propa- attest that Matthias was among the ter told WBRC in August: ganda. I know I can’t change every 72 disciples paired off and dis- wrong I witness. Philippians 4:8 patched by Jesus. Soon after his It’s a big stress on troopers. They offers some respite to the temptation election, Matthias received the Holy have a very dangerous job. They are

38 BeasleyAllen.com trying to cover more territory than experience that the greater part of own interests, and I feel for your what was intended for their jobs. our happiness or misery depends future. We cannot stand so corrupt a They are stressed to a break- upon our dispositions, and not upon government for any great length ing point. our circumstances. of time.” ASTA President David Steward told the Martha Washington (1732—1802) Theodore Roosevelt Sr., Decem- Advertiser that ASTA Executive Director ber 16, 1877 Neil Tew has called on Alabama’s govern- The only title in our Democracy ment officials to increase funding to bring superior to that of President is the patrols up to needed levels. But if Gover- title of Citizen. nor Kay Ivey’s proposed investment of $3.2 million—enough to fund a new class of 30 Louis Brandeis, 1937 XXIV. additional state troopers—is any indica- U.S. Supreme Court Justice PARTING WORDS tion, it’s unlikely Alabama will reach the appropriate level of funding for state The dictionary is the only place that troopers any time soon. Thanksgiving Day has passed and we success comes before work. Hard I am hopeful that Gov. Ivey will increase find ourselves in early December. This is a work is the price we must pay for the budget request and help to make great time to look back as the year is success. I think you can accomplish Alabama highways safer. I believe that the nearing its end and count our many bless- anything if you’re willing to pay Governor will do this and she should have ings. We all have so much to be thankful the price. the support of legislative leaders in both for. I believe it is appropriate for us to put the House and Senate. Safety on our state’s Vincent Lombardi our entire focus now on how good and highways and saving lives should be a top faithful God really is. The good news is priority in 2019. that God is readily available to each of us Kindness is a language which the Sources: Montgomery Advertiser and WBRC on a daily basis. deaf can hear and the blind can see. I am truly blessed to be a part of God’s Mark Twain (1835-1910) family. He has been so good to me and to my family that words alone are insufficient Our Monthly Reminders to express how thankful and eternally “I see in the near future a crisis grateful I am for all of those many provi- approaching that unnerves me and If my people, who are called by my sions and blessings. I must confess that all causes me to tremble for the safety of name, will humble themselves and too often I take God’s goodness and mercy my country....corporations have been pray and seek my face and turn for granted. We should all sit back, take enthroned and an era of corruption from their wicked ways, then will I stock of things, and then acknowledge all in high places will follow, and the hear from heaven and will forgive that God has done for us. God is our pro- money power of the country will their sin and will heal their land. vider and the supplier of all that is good endeavor to prolong its reign by and helpful in life. He will sustain us at all 2 Chron 7:14 working upon the prejudices of the times in all things and under every cir- people until all wealth is aggregated cumstance. in a few hands and the Republic is My prayer for the upcoming New Year is All that is necessary for the triumph destroyed.” of evil is that good men do nothing. for a return to unity in our country, an end to the rampant racism that plagues the U.S. President Abraham Lincoln, United State and further divides our Edmund Burke Nov. 21, 1864 people, and for love to replace what appears to be hate in the hearts of a few of Woe to those who decree unrighteous In his December 1902 State of the the leaders in our nation’s capital. It is decrees, Who write misfortune, Union address, Theodore Roosevelt important for all who truly love America to Which they have prescribed. To rob said of corporations: “We are not stand up to those in government who the needy of justice, And to take hostile to them; we are merely deter- would do damage to our country by their what is right from the poor of My mined that they shall be so handled recklessness and irresponsible actions. We people, That widows may be their as to subserve the public good. We must demand that the rule of law be prey, And that they may rob the draw the line against misconduct, upheld in all instances and that morally fatherless. not against wealth.” based decency be the order of the day for all of our elected leaders. Isaiah 10:1-2 The ‘Machine politicians’ have shown their colors..I feel sorry for I am still determined to be cheerful the country however as it shows the and happy, in whatever situation I power of partisan politicians who may be; for I have also learned from think of nothing higher than their

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On January 15, 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 nearly 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 250 people, including more than 75 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.