JERE BEASLEY REPORT March 2019 I. After hearing the evidence, the jurors air pressure and tire sizes, but to no avail. sent a strong message to Ford that destroy- The Explorer was still defective and highly CAPITOL ing internal safety documents in an effort dangerous. There are still defective Ford OBSERVATIONS to hide critical and unfavorable evidence Exploders on our nation’s highways. The will not be tolerated. Kendall had this to defective design is still putting people at say about Tre and how the verdict will risk decades later and the Explorers con- help him to put his life back together: Record Jury Verdict Against Ford Motor tinue to seriously injure and kill people. Co. In Case Involving Explorer Rollover The case is Travaris D. Smith v. Ford We represent a 24-year-old young Motor Company, et al, 27-CV-2016- man who cannot be left alone to An Alabama jury found Ford Motor 900273.00 in the Circuit Court of Dallas care for himself in any way. This Company totally responsible for causing a County, Alabama. If you need more infor- verdict represents justice for Tre and rollover crash of a 1998 Ford Explorer that mation on the case contact Helen Taylor at his family. Thanks to a courageous left Travaris “Tre” Smith paralyzed and 800-898-2034 or by email at Helen.Taylor@ jury he will now be able to access awarded him $151,791,000. The verdict beasleyallen.com. basic necessities within his home includes $51,791,000 in compensatory and have access to the care he needs. damages and $100 million in punitive damages. The jury found that Ford failed Greg Allen, who is our firm’s senior to meet its own safety guidelines for the products liability lawyer, played a key role Explorer’s rollover resistance requirement in the trial. He says: IN THIS ISSUE and had covered up the vehicle’s defec- tive design. Ford should have spent money rede- I. Capitol Observations...... 2 Beasley Allen lawyers Greg Allen, LaBar- signing this dangerous SUV model II. Automobile News Of Note...... 3 ron Boone, Kendall Dunson, Stephanie rather than paying huge amounts to Monplaisir and Dan Philyaw, along with defend the cases. One expert for III. Opioid Litigation...... 4 Bill Gamble, a lawyer from Selma, repre- Ford has been paid over $75 million IV. The Talc Litigation...... 6 sented Tre in this case. LaBarron, who over the last 16 years to defend Ford took the lead in the case, had this to say in accidents like this one. V. Drug Manufacturers Fraud Litigation. . 8 about the outcome: The 1998 Ford Explorer has been at the VI. Purely Political News & Views. . . . .9 center of two historic safety recalls in the Tre had the misfortune of riding in a VII. Legislative Happenings...... 10 vehicle Ford knew could and did U.S. due to its defective design. The model hurt him, but the jury’s verdict will consistently failed the Consumer Union VIII. The National Scene...... 11 allow him to reclaim some level of testing because of its propensity to roll IX. The Corporate World...... 12 hope for a better future, with less over. Ford engineers had advised Ford it dependence on others. Ford failed needed to change the design, but the auto- X. Whistleblower Litigation ...... 12 Tre and so many other consumers. maker refused. Instead, Ford opted to XI. Product Liability Update ...... 14 The jurors in Dallas County held change the way the product was tested, XII. Mass Torts Update...... 15 Ford accountable for yet another moving from a real-world setting to a com- tragedy in a decades-long saga of puter-based simulation called ADAMS. Yet, XIII. Premises Liability Update...... 18 the company’s efforts to cover up the Ford destroyed the original input and XIV. Workplace Hazards...... 18 shoddy design and its refusal to ade- output data obtained through the ADAMS quately address the problems. testing, claiming it had no scientific value XV. Transportation Litigation...... 19 and was too expensive to maintain. LaBar- XVI. Healthcare Issues ...... 20 In August 2015, Tre was a passenger in a ron points out: 1998 Ford Explorer traveling on a public XVII. Update On Insurance Litigation. . . .21 highway in Dallas County. The driver We have seen bad conduct before swerved to miss an animal that crossed in but the egregiousness of Ford’s XVIII. Toxic Tort Litigation Concerns. . . . 23 the vehicle’s path, causing the driver to scheme to mislead the jury was stun- XIX. Update On Nursing Home Litigation . .25 lose control of the vehicle. The action is ning. Ford claimed the ADAMS data called an accident avoidance maneuver that would have proved the safety of XX. An Update On Class Action Litigation. .26 and because the Explorer’s design is prone this vehicle was destroyed because it XXI. The Consumer Corner...... 28 to rolling over, especially during these had no scientific value and was too XXII. Recalls Update...... 31 types of emergencies rather than sliding expensive to maintain. We provided out like other similar vehicles perform, proof that something as basic as a XXIII. Firm Activities...... 35 the Explorer rolled over two times before $100 thumb drive could have easily XXIV. Special Recognitions...... 36 landing on the shoulder of the road, right preserved the data. side up. As the vehicle was rolling over, XXV. Favorite Bible Verses...... 37 During the trial our lawyers also Tre was knocked unconscious and his explained that in Ford’s efforts to resist XXVI. Closing Observations...... 38 spine was snapped, leaving him paralyzed. redesigning the Explorer, the automaker His life was forever changed. XXVII. Our Monthly Reminders ...... 38 altered less expensive components such as XXVIII. Parting Words...... 39

2 BeasleyAllen.com II. What the jury understood is that it’s caution flags have been waved for all com- not enough to just equip a car with petitors and the general public as various AUTOMOBILE seat belts. The carmaker also has to vehicle accidents have come to light. Tesla NEWS OF NOTE make sure people can and will use Motors was the first to disclose a death them safely. from autonomous vehicle travel in 2016 after one of its Model S cars failed to Ms. Milburn filed her suit in Texas state detect an 18-wheeler crossing a highway $38 Million Verdict In Texas Against Honda court in December 2016. It was notewor- Over Defective Seat Belt and drove straight into its trailer. More thy that neither Yusufzai nor the pickup recently, in March 2018, an autonomous truck driver were seriously injured in the A Texas state court jury has found that a Volvo SUV owned and operated by Uber crash—only Ms. Milburn was seri- Honda minivan’s seat belt system was struck and killed a pedestrian in Tempe, ously injured. poorly designed and was a reason why a Arizona. Police records indicated that the The Plaintiff is represented by Charla G. Dallas woman was left paralyzed in a roll- safety driver responsible for monitoring Aldous and Brent R. Walker of Aldous over crash. The jury awarded Sarah the vehicle was streaming a television Walker LLP and James L. Mitchell of Payne Milburn, 27, $37.6 million in damages. She show on her cell phone. Mitchell Law Group. The case is Sarah was in the third-row middle seat of a Some innovators and policy makers Milburn v. American Honda Motor Co. Honda Odyssey driven by Uber driver across the country continue to champion Inc., (case number DC-16-16470), in the Arian Yusufzai on Nov. 15, 2015, when the th open use and testing of such vehicles on 116 Civil District Court in Dallas minivan was hit by a pickup truck. Ms. public roads. Other leaders and officials County, Texas. Milburn sustained cervical injuries result- think there is not enough regulatory over- ing in quadriplegia. Source: Law360.com sight of autonomous vehicle testing and Ms. Milburn alleged in her complaint caution that government bodies don’t fully that the seat belt system in the minivan understand the current state of the tech- was defective. It was a two-part system An Update on Commercial Autonomous nology and its limitations. Some have sug- requiring the passenger to connect a Vehicle Travel gested requiring that the vehicles be shoulder strap on the van’s ceiling to the painted bright colors so people can easily In December, Google parent company seat and then pull the belt across her hips identify autonomous vehicles on roads and Alphabet’s self-driving car unit Waymo and buckle it. Because of the defective better anticipate any erratic maneuvers. launched its first commercial self-driving seat belt, when the van was hit Ms. If you need more information, contact taxi service. The service, called Waymo Milburn was not safely restrained and her Dan Philyaw, a lawyer in our Atlanta One, functions similarly to other popular head flew forward into the seat in front of office, at 800-898-2034 or by email at Dan. ride-hailing apps and gives potential cus- her, causing her injuries. [email protected]. tomers rides for a price based on depar- The jury found that American Honda Sources: www.theguardian, Washington Post and ture and arrival points. Initially, the Motor Co. Inc., the company’s U.S. subsid- USA Today service has only been available to about iary, was negligent in designing the 2011 400 riders in the metro Phoenix area who Honda Odyssey seat belt system, and that were involved in the early stages of although the system complied with gov- GM Trust Submits New Ch. 11 Ignition Waymo’s trial program, but its cars are ernment regulations, those regulations Switch Settlement available for rides around the clock. A were inadequate to protect the public human driver is still present in the from unreasonable risks. The jury also The trust for General Motors’ unsecured vehicle; however, Waymo has indicated found that the driver Yusufzai—who was creditors has submitted a new proposal to that it does not anticipate these persons speeding and running a red light at the the New York bankruptcy court for a puta- having to take control. moment of the crash,—was negligent. The tive class action ignition switch defect set- There are signs that Waymo is looking jury found Honda to be 63 percent respon- tlement that could cost New GM $1 billion to expand its program in the coming sible for Ms. Milburn’s injuries, Yusufzai in stock. In its motion, the general unse- years. The company has placed orders for 32 percent responsible, and the Plaintiff cured creditors trust sent the court the 62,000 more of the Chrysler Pacificas it herself to be 5 percent responsible. latest revision of a proposed settlement of uses as the base for its autonomous tech- The jury award of $37.6 million in legacy ignition switch suits, under which nology. Other companies are projecting damages, included $8 million for past and the car owners claiming GM sold them the launch of their own driverless taxi ser- future mental anguish, $3 million for past defective vehicles will be seeking class vices in the coming years in other commu- and future physical pain, and nearly $20 certification for their claims. nities. General Motors has planned to start million in future medical expenses, In September the bankruptcy judge its service within the next year and Ford among other elements of damages. Charla ruled that a pending settlement that anticipates a start date sometime in 2021. Aldous, one of the Plaintiff’s lawyers, said would allow and estimate claims on behalf Another company called Drive.ai has been in a statement that Ms. Milburn had put on of 11.4 million people against the bank- giving short-distance rides in Frisco and her seat belt the same way that 50 out of ruptcy trust for Old GM cannot be Arlington, Texas. 53 people did in studies done for the approved without the victims first certify- As automotive, ride-hailing and technol- lawsuit. She noted that wearing the seat ing classes of car buyers whose vehicles ogy companies seek wider implementa- belt this way was more dangerous than lost value after the manufacturer admitted tion of autonomous vehicle travel on having no seat belt on at all. The lawyer in 2014 that millions of its old cars may America’s roads and highways, several said further: have ignition-switch defects. The Plain-

JereBeasleyReport.com 3 tiffs, who brought their claims in late are separated into two categories: One for Beasley Allen lawyers investigate 2016, well after the 2009 bankruptcy sale an engine software update, which con- vehicle fire claims regularly. If you and creation of “New GM,” had seen a tains around 2 million vehicles between encounter a vehicle fire and would like it similar settlement fail in 2017 after the both companies, and a far smaller recall to evaluated for class action defect purposes, trust backed out at the last minute under evaluate the installation of high-pressure contact Clay Barnett, a lawyer in our pressure from the company. fuel tubes to the fuel pump outlet and Atlanta office, at Clay.Barnett@beasleyal- The settlement proposals had been put potentially fix it. The recall to check the len.com or 800-898-2034. Clay handles forward to end a lengthy legal battle over installation covers about 100,000 vehicles class action litigation involving automo- claims that GM knowingly sold faulty vehi- per company. biles for the firm. cles before, during and after its historic The sister companies are calling the 2009 bankruptcy. Like the prior proposed software recall a “product-improvement settlements, the new proposal submitted campaign,” where an update to the engine to the court will require the trust to control unit will help it detect connecting III. accept additional claims that it has been rod bearing damage and wear—a topic OPIOID LITIGATION fighting the validity of for years. That, in that’s come up in discussions of the fires turn, could bring the total value of unse- in the vehicles’ engine bays. cured claims against Old GM up to more The companies said the update is for a Opioid Litigation Update than $35 billion, which would then “Knock Sensor Detection System” for the require New GM, under a Chapter 11 cred- “early detection of engine failure,” which U.S. District Judge Dan Aaron Polster itor payout scheme, to turn over 10 the carmakers said it does by sensing has agreed to once again postpone the million shares of common stock to pay vibrations indicating excessive bearing first bellwether trial in the opioid MDL in those claimants. wear. The system is supposed to alert the order to give both the Plaintiffs and the The trust said in the motion that as of driver about the vibrations, and then put opioid manufacturers and distributors the end of December there were about the vehicle into “Limp Home Mode.” more time to resolve ongoing discovery $31.8 billion in unsecured claims against Hyundai said the software recall disputes. The trial is now scheduled to the estate. Besides the class certification, includes “approximately 2 million start on Oct. 21, 2019. the other significant change in the pro- Hyundai vehicles, including all model year The amount of discovery in a case like posal was to drop a $15 million payment 2011-2018 Sonata and 2013-2018 Santa Fe this involving multiple Defendants is by the trust into a settlement fund and Sport vehicles with engines produced in unsurprisingly significant. The main issue raise the trust’s payment for noticing costs the U.S.,” and Kia’s update spans nearly 1.7 of contention thus far has been the speci- from the suit from $6 million to just over million Optima, Sorento and Sportage ficity of information the Defendants have $13.7 million. models between 2011 and 2018. requested from the Plaintiff and local gov- The Plaintiffs are represented by Brown Kia’s recall includes the following: 2011- ernment entities in Ohio, which include Rudnick LLP, Stutzman Bromberg Esser- 2018 Optima vehicles equipped with 2.4L the City of Cleveland and Summit County man & Plifka APC, Hagens Berman Sobol GDI and 2.0L T-GDI engines; 2012-2018 and Cuyahoga County. These discovery Shapiro LLP, Lieff Cabraser Heimann & Sorento vehicles equipped with 2.4L Gaso- disputes revolve around proving two key Bernstein LLP, Andrews Myers PC and line Direct Injection (GDI) and 2.0L Turbo- issues of the case: Cole Schotz PC. The cases are In re: charged GDI (T-GDI) engines; and • whether opioid manufacturers falsely General Motors Liquidation Co. et al., 2011-2018 Sportage vehicles equipped marketed their opioids resulting in (case number 1:09-bk-50026) in the U.S. with 2.4L GDI and 2.0L T-GDI engines. unnecessary prescriptions; and Bankruptcy Court for the Southern Dis- Both Hyundai and Kia have been the trict of New York, and In re: General subject of fire reports and calls to fix mil- • whether both manufacturers and dis- Motors LLC Ignition Switch Litigation, lions of vehicles for months now, with the tributors failed to prevent the diversion (case number 1:14-md-02543) in the U.S. Center for Auto Safety advocacy group of opioids for illegal use, which is pro- District Court for the Southern District petitioning the U.S. National Highway hibited by DEA regulations. of New York. Traffic Safety Administration (NHTSA) to Source: Law360.com investigate the fire claims in certain In October 2018, the Court ordered the Hyundai and Kia vehicles in June 2018. In Plaintiffs to identify specific prescriptions October, the center called on the compa- they alleged were “unauthorized, medi- cally unnecessary, ineffective, or harmful” Hyundai And Kia Recall For Risk Of Fire nies to recall 3 million vehicles for fire hazard, including all Sorento, Optima, so the Defendants could assess those Hyundai and Kia both recently issued Sonata, and Santa Fe models from the 2011 claims. The Court gave the Plaintiffs the complicated voluntary recalls in the U.S. to 2014 model years and all Kia Souls from option to either identify at least 500 illegal for millions of 2011 to 2018 car models, 2010 through 2015. prescriptions and at least 300 individuals which have been the subject of hundreds The Center’s press release claimed there who became addicted, or to expressly of reports about engine bay fires. Most of had been more than 220 complaints of state that the Plaintiffs would forgo pre- the recall, though, involves a software non-collision fires in the vehicles by then, scription data in its claim for damages and update to alert drivers that their engine and almost one per day in the four months instead,rely on aggregate data. might fail. before the release, with some complaints Attempting to gather this data directly Approximately four million Hyundai saying fires started while on the highway. from the government, distributor Defen- and Kia vehicles are affected. Both recalls dant McKesson sought production of the

4 BeasleyAllen.com entire Ohio Automated Rx Reporting January 2019, U.S. District Judge Dan appeals and allowed a completely unre- System, which tracks the dispensing and Aaron Polster decided Defendants would dacted version of the complaint to personal furnishing of controlled prescrip- not be allowed to appeal to the Sixth be filed. tion drugs to patients. Judge Polster Circuit in another attempt to keep RICO The unredacted version contains dis- denied McKesson’s motion to compel as allegations out of an upcoming bell- turbing allegations detailing the marketing overly broad and ordered McKesson and wether trial. techniques employed by Purdue, seeking the Ohio Board of Pharmacy to negotiate a The Plaintiff, Summit County, Ohio, to shift blame for the crisis to drug abusers more limited scope of production. alleges that the distributor Defendants had and criminals and, mostly shockingly, More recently, as reported in a previous knowledge of suspicious opioid sales demonstrating the indifference to the loss issue of the Report, Special Master Cohen amongst each other and participated in “a of life by those who overdosed on Pur- addressed a dispute concerning the identi- conspiracy of silence” in order to protect due’s products. The complaint explained fication of suspicious orders that should themselves. Defendants are painfully how the Sackler family allegedly oversaw have been halted but were, nonetheless, aware of the far-reaching implications of the marketing efforts and imposed higher shipped to a pharmacy or other dispenser such a decision and have vowed to fight and higher demands on its sales represen- in violation of federal law. The Plaintiffs every claim to the bitter end. tatives to visit more doctors and push used three different methodologies to Under RICO, it is possible for prevailing higher-dose opioids—all to increase identify orders they deemed were suspi- Plaintiffs to be awarded substantial profits. Those profits amounted to more cious. Because these methodologies amounts in damages. Defendants contend than $4 billion from April 2008 until 2016. resulted in between 5 percent and 86 that the possibility of incurring RICO pen- As more information is learned about percent of the orders being flagged, the alties essentially removes settlement as a the Sacklers’ misconduct, our lawyers Defendants argued the methodologies viable option and leaves them with no expect to see more lawsuits filed against were convoluted and were still unable to other option than to fight each claim them. Sadly, this is just another example of adequately analyze the orders. every step of the way. Judge Polster was unfortunate conduct some companies Special Master Cohen required the unpersuaded by the Defendants’ position exhibit solely for the sake of profit. If you Plaintiffs to identify 10 suspicious orders that the availability of RICO claims will need more information, contact Ryan Kral and provide additional information about hinder settlement efforts. The judge noted at 800-898-034 or by email at Ryan.Kral@ those orders including why they thought that the distributor Defendants were pro- beasleyallen.com. the Defendants’ oversight and monitoring ponents of a litigation track prior to the Source: https://www.npr.org/sections/health- systems were insufficient. inclusion of RICO claims. shots/2019/02/01/690556552/lawsuit-details-how-the- With the trial date pushed back seven If you need more information, contact sackler-family-allegedly-built-an-oxycontin-fortune weeks, the Court’s Case Management Jeff Price, one of the Beasley Allen lawyers Order No. 8 set the following deadlines: involved in the opioid litigation, at 800- 898-2034 or by email at Jeff.Price@beas- DOJ Takes First Of Its Kind Action Against • Plaintiff expert reports are due March leyallen.com. Pharmacies 25, 2019; Source: Law360.com The U.S. Department of Justice (DOJ) • Defendant expert reports are due May has taken a “first of its kind” action to stop 10, 2019; two Tennessee pharmacies whose alleg- Massachusetts Files Unredacted Complaint edly illegal opioid dispensing has been • Daubert and dispositive motions are due Against Purdue And The Sacklers June 28, 2019; and linked to the deaths of at least two people. Massachusetts became the first state to In its unsealed civil complaint, the DOJ • Final pre-trial hearing is set for sue individuals in charge at Purdue says that pharmacists at Dale Hollow Phar- Oct. 15, 2019. Pharma while the company fueled the macy and Xpress Pharmacy and their owner routinely dispensed controlled sub- If you have questions concerning any of opioid crisis by falsely marketing its stances while turning a blind eye to “red the above, contact Ryan Kral, one of the opioids. The suit named members of the flags,” such as unusually high doses of Beasley Allen lawyers involved in the liti- Sackler family who previously served on opioids and dangerous combinations of gation, at 800-898-2034 or by email at and controlled the company’s Board while prescriptions for controlled substances. [email protected]. directing Purdue’s marketing conduct. The State also named other Board The DOJ says they also filled prescriptions members, former CEOs, and the former for people who had traveled an unusually Vice President of Sales and Marketing. long distance to the pharmacies and to RICO Allegations Are Fair Game In people who paid high cash prices. Opioid MDL In June 2018, Massachusetts Attorney General Maura Healey filed suit against The lawsuit also alleges that the phar- macies, owner Thomas Weir, and pharma- Drug distributors, AmerisourceBergen Purdue and the Sacklers for their part in cists John Polston, Michael Griffith and Drug Corp., Cardinal Health Inc. and creating the opioid crisis. Many allegations Larry Larkin billed Medicare for prescrip- McKesson Corp., Defendants in the opioid in the complaint, however, were heavily tions without a valid purpose in violation litigation, have exhausted their attempts redacted due to Purdue’s concerns it con- of the False Claims Act. The DOJ said: to keep claims brought under the Racke- tained confidential information. Subse- teer Influenced and Corrupt Organiza- quently, several media outlets filed suit From 2012 through 2018, Medicare tions (RICO) Act in the Opioid against Purdue to force the release of paid Dale Hollow over $1.4 million Multidistrict Litigation (MDL) at bay. In information. The Court rejected Purdue’s for controlled substances, of which

JereBeasleyReport.com 5 over $1 million was for The Beasley Allen Opioid Litigation Team overturned on jurisdictional grounds, the opioids alone. evidence of the inherent dangers in Because of the enormity of the opioid talcum powder use cannot be ignored. In an interview with Law360 a DOJ offi- litigation, and Alabama’s personal involve- Leigh O’Dell, co-lead counsel for Plaintiffs cial said that this is the agency’s first Con- ment in the multidistrict litigation (MDL), in the multi-district litigation against J&J trolled Substances Act action against our firm put together an “Opioid Litigation on behalf of ovarian cancer victims, says: pharmacies. Jody Hunt of the DOJ’s Civil Team,” which includes these lawyers: Division, in a statement, said: Rhon Jones, Parker Miller, Ryan Kral, Rick We applaud these agencies for this Stratton, Will Sutton and Jeff Price. This investigation, and we know what Pharmacies and pharmacists have a team of lawyers represents the State of they will find. At trial we have pre- legal obligation to dispense con- Alabama, the State of Georgia, numerous sented the expert testimony and the trolled substances properly, so as local governments, as well as other enti- overwhelming scientific evidence not to put patients’ health at risk. ties in the MDL. Individual claims are that talcum powder use can cause The Department of Justice will use being handled on behalf of victims. If you ovarian cancer. We’ve also shown every available tool to stop individ- need more information on the opioid liti- the internal corporate documents uals and entities responsible for the gation, contact one of these lawyers at that reveal a decades-long pattern of improper distribution of controlled 800-898-2034 or by email at Rhon.Jones@ sabotage and subterfuge to deny substances. beasleyallen.com, Parker.Miller@beasleyal- that this threat exists for women It should be noted that between 2015 len.com, [email protected], around the world. [email protected], William. and 2018, Dale Hollow ordered enough Leigh and the other lawyers from [email protected] or Jeff.Price@ opioids from distributors to provide the Beasley Allen will cooperate with any gov- beasleyallen.com. equivalent of almost one and a half pills of ernmental requests for testimony, docu- maximum strength Vicodin for every man, ments and background information. Ted woman and child in Clay County, Tennes- Meadows, a member of the trial team that see. It’s alleged further in the complaint: IV. has secured substantial verdicts against Meanwhile, three doors down the THE TALC the company, had this to say: street from Dale Hollow, Xpress LITIGATION We’d urge J&J to come clean about Pharmacy—with the same owner— this risk, compensate these victims was on its own ordering enough and their families, and provide ade- opioids during the same period to quate warnings on its packaging or Beasley Allen Reacts To Federal provide the same residents the simply pull this product off the Investigations Into Talcum Powder equivalent of an additional half a shelves. There are safer alternatives tablet of maximum strength Perco- Johnson & Johnson (J&J) is being inves- that exist, including J&J’s own corn cet ... every day. tigated by the Justice Department (DOJ) starch-based powder. and the Securities and Exchange Commis- There are about 68,000 community The internal J&J documents revealed in sion (SEC) over safety concerns about its pharmacies in the United States according several trials, as well as in the initial talc-based products, including Johnson’s to the DOJ and only three of those bought reporting by Reuters and The New York Baby Powder. In a corporate securities more opioid doses per capita than Dale Times, clearly show attempts by J&J to filing, J&J said it was “cooperating with Hollow over the last three years. In addi- influence the U.S. Food and Drug Adminis- these government inquiries and will be tion to the two deaths, the Dale Hollow tration (FDA) and promote safety testing producing documents in response” to sub- and Xpress pharmacies are linked to a not sensitive enough to adequately detect poenas it had received. This is a most sig- number of overdoses of its customers. The contaminants such as asbestos in its nificant development and is good news for DOJ says one woman overdosed at Xpress talcum powder products. For decades J&J the thousands of cancer victims who have last year, but police were able to revive covered up and denied its knowledge been involved in the ongoing her with Narcan. shown in internal documents that its talc battle with J&J. The government is represented by Ross products could cause ovarian cancer. The inquiry was apparently spurred by Goldstein and Donald Lorenzen of the U.S. In February, Imerys Talc America, a numerous news reports in recent months Department of Justice’s Consumer Protec- major supplier of talc used by Johnson & revealing that J&J has been concerned for tion Branch, Scott Dahlquist of the U.S. Johnson and a Defendant in some of the decades about the risk of asbestos and Drug Enforcement Administration’s Office lawsuits, filed for Chapter 11 bankruptcy, other contaminants in its talcum powder of Chief Counsel and Ellen Bowden largely based on concerns over the litiga- products. That news coverage outlines McIntyre of the U.S. Attorney’s Office for tion. Currently, Johnson & Johnson faces J&J’s efforts to suppress regulatory and the Middle District of Tennessee. The case around 13,000 lawsuits in which its body public awareness of those poten- is United States of America v. Oakley powders are blamed for causing ovarian tial dangers. Pharmacy Inc. et al. in the U.S. District cancer or mesothelioma. More will be said For several years juries across the nation Court for the Middle District of Tennessee. on the Imerys bankruptcy in this issue. have found J&J liable for the ovarian Source: Law360.com In late January, Senator Patty Murray, cancer diagnoses of more than two dozen the top Democrat on the Republican-con- women, resulting in billions of dollars in trolled Senate Committee on Health, Edu- damages. While some verdicts have been

6 BeasleyAllen.com cation, Labor and Pensions, asked J&J CEO son’s motion to transfer the case to St. Blaes is one of thousands of consumers Alex Gorsky for documents and informa- Louis County. around the country who have claimed that tion regarding the company’s testing of Judge W. Brent Powell, writing for the Johnson & Johnson’s talcum powder prod- talcum powder products, and how that majority of the Missouri Supreme Court, ucts cause ovarian cancer, and his is one information is presented to regulators and said in the majority opinion that Blaes’ suit of many aiming to head to trial in St. Louis consumers. was only in St. Louis city court because it city court, where Johnson & Johnson has In December, Health Canada issued a was originally filed alongside the claims of suffered major trial losses, most recently a draft assessment to all health care provid- St. Louis city resident Valerie Swann. But record-breaking $4.69 billion verdict ers in the nation warning of the dangers of now that Blaes’ claims have been split off, awarded to 22 women. talcum powder use and proposed adding they belong in the venue where his wife Last month, the Missouri Supreme talc to the government’s list of toxic sub- supposedly used J&J’s talc, which is St. Court preliminarily granted another J&J stances that can pose risks to human Louis County. “Absent joinder of Blaes’ petition to stay an impending talc trial, health. Other countries, including India, claims to those made by other Plaintiffs agreeing to hear arguments about whether have announced similar efforts. named in the petition, venue for Blaes’ Judge Burlison erred in not granting It is time for J&J bosses to come clean claims is only proper in St. Louis County,” J&J’s request to sever 13 Plaintiffs’ claims and start telling the truth. This company’s Judge Powell wrote. “In every count and and force each Plaintiff to go to trial conduct is as bad as I have ever seen. The every claim brought against [J&J] by individually. more the public learns, the more outraged Blaes, Blaes alleges his wife was first they will become. injured in St. Louis County.” Three Missouri Supreme Court justices Other Activity In The Talc MDL Litigation dissented, going against their colleagues. Further Developments In The Talcum They said that Blaes should have been Despite the setback and stay of the Powder Litigation allowed to go to trial as originally planned. January trial in Missouri State Court, the Judge Paul C. Wilson in a 14-page dissent, talcum powder litigation continues to On Feb. 13, 2019, the Missouri Supreme joined by Chief Justice Zel M. Fischer, move forward in the MDL in federal court. Court granted Johnson & Johnson’s bid to wrote that majority opinion is a “sudden, There will be a Daubert hearing this move a talcum powder case out of St. unexpected and—in my view—unjustified summer allowing the court to determine Louis city court and into county court, detour in venue law.” Judge Wilson wrote: admissibility of the expert witnesses’ testi- ruling the case can’t go to trial in city mony and whether there is scientific evi- court just because it was joined with a city For the first time, the court holds dence to conclude that Johnson’s Baby resident’s suit. The trial court judge, Judge that no plaintiff or claim can be Powder and Shower to Shower products Rex Burlison, denied J&J’s request to joined with any other plaintiff or can cause ovarian cancer. All parties will move the case to county court. Now, in a claim unless venue can be estab- have disclosed their expert reports if 4-3 split opinion, the state’s highest court lished independently for each claim. defendants meet their Feb. 25 deadline. overruled Judge Burlison to grant In the future, numerous claims that Plaintiffs submitted expert reports on J&J’s petition. previously could have been filed Nov. 16 of last year. Defendants Johnson & Shawn Blaes started using Johnson & together in one action—and in one Johnson (manufacturer of talcum powder Johnson talcum powder products in 1973 venue—must now be filed sepa- products) and Personal Care Products when she was just 12 years old. She used rately, wasting judicial resources Council (trade organization) were sched- talc for more than three decades until she and the time and money of all uled to submit their expert opinions was diagnosed with ovarian cancer in parties involved. on Feb. 25. 2008, at the age of 48. Despite continued Judge George W. Draper III wrote in a The complexity of this litigation treatment, Ms. Blaes passed away on Jan. separate 16-page dissent that because requires multiple areas of expertise for 12, 2011. She was only 50 years old. In Blaes’ claims were properly joined with Plaintiffs to be able to meet their burden May 2016, on her behalf, her husband Swann’s case to begin with, and the law of proof. Amongst those experts necessary joined dozens of other Plaintiffs in a does not specify the proper venue for a are geology and mining experts—those lawsuit alleging that J&J talcum powder single case containing Plaintiffs injured who have studied the science of minerals products cause ovarian cancer. both in and out of Missouri, St. Louis City and have worked in the mining industry. Mr. Blaes’ case has been ready to go to is the proper venue for Blaes’ suit. This type of testimony is important to trial for nearly a year. The case originally Ted Meadows, one of the lawyers repre- include because there is evidence that lab went to trial in June 2017, consolidated senting Mr. Blaes, said in a statement that testing has found asbestos fibers, fibrous with several other Plaintiffs’ claims. Judge the Missouri high court’s ruling plays into talc, and heavy metals in the products, all Burlison declared a mistrial 15 days into the hands of “corporations seeking to of which are known carcinogens. Scien- trial, because of the U.S. Supreme Court’s deny and deflect their responsibilities for tists who understand the mining and min- ruling in Bristol-Meyers Squibb v. Supe- the countless number of dangerous prod- eralogy industry help us with the close rior Court of California. ucts marketed to consumers every day. association between asbestos, heavy Blaes’ case was then severed from the The court’s rationale will make it much metals and talc in mines that source talc other Plaintiffs and was set to go back to more costly, much less efficient, and take for Johnson & Johnson baby powder trial individually in October 2017, but the much longer for victims to gain justice, products. Missouri Supreme Court stayed the case, and these are qualities that no one should Recently in a California trial, a material pending its decision on Johnson & John- want reflected in our judicial system.” scientist and electron microscopist,

JereBeasleyReport.com 7 William Longo, presented evidence from increasing scrutiny by regulatory referred to as ERISA), which requires the his testing of Johnson & Johnson baby and public health agencies, as well fiduciaries to investigate all investments powder talc products (including Shower as in the courts. Given those devel- options, avoid conflicts of interest, and to Shower) that 61 percent of samples ana- opments, this action is yet another disclose and inform necessary information lyzed had asbestos fibers as a constituent. defensive attempt to avoid responsi- to participants. Asbestos is known to cause cancer and, as bility and deny compensation to Johnson & Johnson currently faces a constituent of the product as a whole, is very sick women and their surviv- thousands of lawsuits nationwide because one link in the causation chain between ing families but validates the claims of injuries and deaths caused by the com- the use of talcum powder products and these brave claimants have been pany’s talcum powder products. As part the correlating rise in ovarian cancer in making for the past several years. of the discovery process involved with the women who use them. pending litigation, Johnson & Johnson As stated, on Feb. 13, Imerys Talc Imerys’ America and Vermont units produced documents detailing presence America, Inc., the mining company that have combined assets of up to $500 of asbestos particles in the company’s talc was the sole supplier of talcum powder to million and liabilities nearing $100 products for several decades. During that Johnson & Johnson since 1989, filed million, according to the bankruptcy same time period, Johnson & Johnson’s Chapter 11 bankruptcy in federal court in filing. Imerys Talc America has been security filings contained statements reas- Delaware. The bankruptcy is still being named in thousands of lawsuits alongside suring class participants of the absence of organized and proceedings against Imerys Johnson & Johnson. The companies knew asbestos in its products. are stayed, but next steps in litigation for decades that their talc could cause In December, Johnson & Johnson’s against Imerys when it resumes will likely ovarian cancer and mesothelioma through stock plummeted when Reuters released a occur in bankruptcy court. Litigation, J&J products like Johnson’s Baby Powder report of its investigation into these docu- however, against Johnson & Johnson and and Shower to Shower body powder. In ments and Johnson & Johnson’s failure to Personal Care Products Council (PCPC) as fact, Imerys for decades has placed a disclose the asbestos content of their well as other Defendants will proceed in cancer warning on the containers of talc products. Perrone’s complaint states that both federal and state courts. shipped to J&J. Johnson & Johnson should have disclosed Sources: Wall Street Journal and Bloomberg Sources: Law360.com the presence of asbestos earlier and allowed Savings Plan participants to make their investment decisions with these facts J&J Employee Files ERISA Complaint Johnson & Johnson Talc Supplier Imerys incorporated into the value of the stock. Files Bankruptcy Beasley Allen lawyers continue to inves- Michael Perrone, a participant in tigate new cases involving women who Imerys Talc America, the supplier for Johnson & Johnson’s retirement plan, filed have suffered from ovarian cancer after Johnson & Johnson’s talc-containing prod- a class action lawsuit on Jan. 22 against using Johnson’s Baby Powder and Shower ucts, has filed for bankruptcy because of the company alleging that he and other to Shower. For more information, contact its involvement in lawsuits in the U.S. members of the class of plan participants Melissa Prickett or Brittany Scott at 800- alleging its talc causes ovarian cancer and were financially harmed by Johnson & 898-2034 or by email at Melissa.Prickett@ mesothelioma, a rare form of cancer Johnson’s failure to disclose the presence beasleyallen.com or Brittany.Scott@beas- caused by asbestos exposure. of asbestos in its talcum powder products leyallen.com. over the course of several decades. Two other subsidiaries of Paris-based Sources: https://www.law360.com/ Imerys SA—Imerys Talc Vermont and As part of their employment, many articles/1121193/j-j-baby-powder-cover-up-cost- Imerys Talc Canada Inc.—have also filed Johnson & Johnson employees are given workers-millions-suit-says; https://www.planadviser. com/johnson-johnson-faces-stock-drop-erisa-lawsuit/; for Chapter 11 protection in U.S. Bank- the opportunity to participate in a Savings Plan to assist in saving for retirement. As https://www.plansponsor.com/erisa-stock-drop- ruptcy Court in Wilmington, Delaware. lawsuit-filed-johnson-johnson/; Court Documents, Under the terms of the bankruptcy, part of their Savings Plan, the employees Perrone v. Johnson & Johnson, et al., case number Imerys proposes to establish a fund to have the option of investing in Johnson & 2:19-cv-00923; D. NJ. cover current and future lawsuits. Imerys Johnson stock options. As a result, the faces more than 14,600 lawsuits over value of each participant’s retirement cancer risks. savings is directly related to the value of V. Ted Meadows, who heads up the talc lit- Johnson & Johnson’s stock during their igation team for Beasley Allen, had this to investment period. DRUG say about the bankruptcy: Perrone’s complaint, filed in the United MANUFACTURERS States District Court for the District of This announcement by Imerys New Jersey, claims that by withholding FRAUD LITIGATION speaks to the serious nature of this information regarding the presence of ongoing litigation and the negli- asbestos in the company’s talcum powder gence and culpability the company products, Johnson & Johnson falsely Kentucky Attorney General Settles has in supplying a cancer-causing inflated the price of its stocks. In doing so, Medicaid Fraud Litigation With Nation’s product to consumers around the Perrone alleges the company violated its Largest Kidney Dialysis Provider For $10.3 world. We expect the manufactur- fiduciary duties to plan participants. This Million ing, distribution and marketing of duty arises under the Employee Retire- talc in all its forms to receive ever- ment Income Security Act (commonly On Feb. 21, 2019, Andy Beshear, Attor- ney General for the Commonwealth of

8 BeasleyAllen.com Kentucky, announced the settlement of This lawsuit was filed in September potential to be the leader among the the Medicaid fraud lawsuit against Frese- 2016. Lawyers with the Attorney General’s southern states and it’s now time for nius Medical Care Holdings Inc. Lawyers Office of Medicaid Fraud and Abuse Alabama to be that leader. at Beasley Allen had the privilege of oversaw the litigation and settlement. serving as contract counsel for the Attor- Beasley Allen lawyers Dee Miles, Lance ney General’s Office in this litigation Gould, Ali Hawthorne, Rachel Boyd and Former State Senator Myron Penn To against Fresenius. Lauren Miles had the privilege of working Challenge Nancy Worley The settlement resolves claims by Attor- with the Attorney General’s Office on this ney General Beshear that Fresenius, a Mas- case and are pleased with the successful Former State Senator Myron Penn will sachusetts-based dialysis provider, violated settlement. challenge Alabama Democratic Party Medicaid guidelines by failing to warn If you have any questions about our (ADP) Chairperson Nancy Worley in a Kentucky dialysis clinics and doctors from firm’s health care fraud practice, contact called special election that will occur very 2003-2012 that its hemodialysis product, Ali Hawthorne, a lawyer in our Consumer soon. The credentials committee of the GranuFlo, could result in dangerously Fraud & Commercial Litigation Section, at Democratic National Committee (DNC) increased bicarbonate levels. Attorney 800-898-2034 or by email at Alison.Haw- invalidated the Aug. 11 election of Mrs. General Beshear alleged that clinics and [email protected]. Worley and Vice-Chair Randy Kelley. Both doctors needed to know the risks of will remain in their positions until the increased bicarbonate levels from Granu- new election is held. Flo in order to properly treat patients and In the contested election, Mrs. Worley to not put them at harm. VI. won another four-year term as chair of the In response to the settlement, Attorney PURELY POLITICAL ADP defeating challenger Peck Fox, who General Beshear reported that Fresenius NEWS & VIEWS was nominated by US. Senator Doug Jones. did the right thing by settling with Ken- Peck, a Montgomery lawyer with strong tucky over its Medicaid fraud allegations Democratic ties, previously served on the and by working with the Food and Drug staffs of former U.S. Senator Howell Heflin The State Of The Nation Administration (FDA) to properly label and Governor Jim Folsom. Peck was a strong candidate only losing by 12 votes. It GranuFlo for clinics and doctors. The Our nation is badly divided today and appears Peck will not run again. He told Attorney General said: much of the division can be attributed to Inside Alabama Politics (IAP), “I think the hate factor that is all too prevalent in These allegations against Fresenius Myron will be great and fully support the U.S. All too often actions and reactions are very serious, and were not him.” Sen. Jones is also said to be support- by persons in positions of authority seem taken lightly by my office. I do ive of the Penn candidacy. to be motivated by hating some “thing” or commend the company for working In addition to calling for a new election, some “person” or some “group of people.” with us on a settlement that will the DNC also ordered a review of party This is totally unacceptable and cannot be give millions to the state’s Medicaid bylaws and will supervise the new elec- tolerated. The sad truth is that racism has program that helps provide health tion. Myron, who served in the Folsom once again reared its ugly head in our care to hundreds of thousands of administration as director of constituent country. The American people must take a adults and children in Kentucky. affairs, was elected Chairman of the stand, and reject racism. We must also Bullock County Commission in 2000 and The $10.3 million settlement will allow reject any persons who are responsible for was elected two years later to the Alabama Attorney General Beshear to return more their racist views, which are quite appar- State Senate representing District 28 than $5 million to the Kentucky Medicaid ent. We must all work together to bring where he served two-terms. Myron is a program. The remainder of the settlement about unity in our country. will go to the Commonwealth for various founding partner of the law firm Penn & funding, costs, and fees. Seaborn. The firm has offices in Clayton and Union Springs. Fresenius is the largest provider of The Ivey Administration kidney dialysis and renal care products, One source told Inside Alabama Poli- treatment, and services in the nation, with Kay Ivey has gotten off to a very good tics, “Myron is the man for the job. He is more than 2,200 dialysis clinics nation- start in her first elected term as Governor. both someone who can quickly raise wide, including more than 50 clinics in Her Administration inherited numerous money and unify the party, especially in Kentucky. Fresenius sold GranuFlo to its problems, many of which have been lin- light of the fast-approaching 2020 elec- own clinics, as well as independent clinics gering around for decades, and those tions.” When reached by IAP, Myron said: in Kentucky. problems must be dealt with and solved. I I’m running. And if elected I plan to Since taking office, efforts by the Attor- am confident that Gov. Ivey will realize raise tons of money and more ney General’s Office of Medicaid Fraud that some decisions she will be required importantly, spend it on the grass- and Abuse have resulted in the recovery of to make will be difficult. However, the roots level to organize our local more than $88 million in obligations to reality is that it is time for tough decisions bases and get the vote out. the state and federal Medicaid program, to be made in order to solve our state’s Medicare, Tricare, commercial payers, and many problems. Alabama is at a crossroads Former Executive Director of the ADP other entities through civil settlements and the direction taken by Gov. Ivey will Marsha Folsom is expected to run for the and criminal restitution. determine our future. Our state has the vice-chair position. Many political observ-

JereBeasleyReport.com 9 ers have said that Marsha may well be one place an annual license fee in the range of our state’s economic development. I fully of the best “politicians” in Alabama. I $100-$150 on vehicles using hybrid or support the badly needed increase in the would agree with that assessment. electric engines. gas tax and can say without reservation The entire DNC voted on the credential The gas tax in Alabama has not been that the legislature should do the right committee’s recommendation. It will be raised since 1992. Since that time, cars thing and pass the legislation. Alabama’s most interesting to see how this new elec- have become more fuel-efficient, translat- economic future in large part will tion winds up. It may well be a wake-up ing to a drop in the amount of revenue depend on it. call for the Democratic party in Alabama. that can be collected. In fact, Alabama Sources: Montgomery Advertiser, AL.com, Alabama Source: Inside Alabama Politics House Majority Leader Nathaniel Ledbet- Political Reporter, The Waterways Journal Weekly and ter told the Alabama Political Reporter BCA that in the past two years fuel tax collec- tions have decreased by 6 percent, even VII. though there are 22 percent more vehicles Alabama Arise 2019 Legislative Priorities LEGISLATIVE on Alabama’s roads and bridges, which are aging. Alabama Arise is one of the relatively HAPPENINGS The University of Alabama report notes few groups in Alabama that represents the that 8 percent of bridges in the state are interests of low-income citizens. Last Sep- “structurally deficient.” Bridges are typi- tember, more than 200 members of The Alabama Legislature Faces A Major cally designed to last 50 to 70 years. Alabama Arise met to choose the top legis- Challenge Almost half of the state’s bridges are more lative priorities that are important to than 50 years old. The report says about improving the lives of low-income Ala- As the Alabama State Legislature con- 20 percent of the state’s roads are in “mar- bamians. The group will urge lawmakers venes in its latest session, a key issue on ginal” condition—the research center’s to address seven issues when the Alabama the slate is a continuing debate over a pro- lowest rating. Legislature reconvenes this month. Those posed gas tax increase. Although Republi- Lack of infrastructure investment also issues are: cans are famously resistant to any tax affects the Port of Mobile, Alabama’s only increase—remember President George • Tax reform, including untaxing grocer- deep-water port, which handles 56 million Herbert Walker Bush saying, “Read my ies and closing corporate income tax tons of cargo annually. There is a pressing lips: No new taxes!”—Governor Kay Ivey, loopholes. need to deepen and widen the Mobile in her inaugural address, pulled the issue harbor to handle larger cargo vessels. This • Adequate funding for vital services like into the spotlight by expressing her has a direct impact on some of the state’s education, health care and child care, support for the concept. largest investors—the auto industry. The including approval of new tax revenue Gov. Ivey urged bipartisan support for a Business Council of Alabama points out to protect and expand Medicaid. gas tax increase, with an emphasis on the that while automobiles are the state’s need to improve the state’s infrastructure. • State funding for the newly created largest export, they are loaded onto ships She and other supporters of the increase Public Transportation Trust Fund. at ports in other states. warn the state could lose the momentum Ledbetter told the Alabama Political behind its economic development efforts • Consumer protections to limit high- Reporter, “… we have CEOs from Mer- if roads, bridges and waterways are not interest payday loans and auto title loans cedes get up and say if you don’t improve properly maintained and improved. in Alabama. your infrastructure we will stop expand- A report prepared by the University of ing in your state. A General said if we had • Legislation to establish automatic uni- Alabama’s Transportation Institute and known you weren’t going to expand your versal voter registration in Alabama. Alabama Transportation Policy Research infrastructure we would have stayed in Center warns that the state needs to make • Reforms to Alabama’s criminal justice Virginia.” major investments in infrastructure just to debt policies, including changes related The Montgomery Advertiser explains maintain its current needs. To be competi- to cash bail and civil asset forfeiture. the gas tax is a combination of three sepa- tive in the future, it needs to do even rate revenues with three separate distribu- more. The report, titled “Addressing Ala- • Reforms to Alabama’s death penalty tion formulas. Currently, about 45 percent bama’s Transportation Infrastructure: system, including a moratorium on of gas tax revenue goes to the state. The Roads and Bridges” estimates Alabama executions. rest goes to the cities and counties. That will need to invest at least $600 million money is divided up in a number of ways, Arise has been leading the charge to over the next 20 years. with a percentage going equally to cities improve state policies affecting low- None of this is news to legislators. The and counties, a percentage going to coun- income Alabamians and tackling eco- issue has been before Alabama’s governing ties based on their population, and a per- nomic injustice on many different fronts body in the past two legislative sessions. A centage of that divided up among cities for the last 30 years. Arise organizers Joint Legislative Infrastructure Study Task based on population. travel all over the state, holding listening Force was convened at the conclusion of It will be interesting to see what comes sessions to learn about circumstances that the 2018 regular session to study the issue. out of this debate in the current legislative hold struggling families back. These dis- Their recommendations would add an session. This is something that must be cussions also explore how policy change additional motor fuel excise tax of 8 to 12 resolved at last for the benefit of the state, can address these barriers to a better life. cents onto each gallon of motor fuel and and its citizens, as well as for the future of Members develop issue proposals over the

10 BeasleyAllen.com summer, then meet in Montgomery each lenges of the state’s tax structure. Ms. Department of Justice, and other law September for a full day of spirited discus- Hyden said: enforcement agencies to prosecute unlaw- sion before voting to choose their legisla- ful conduct. The Fraud Division will be tive agenda for the coming year. Alabama It’s time to modernize Alabama’s established following review and approval Arise executive director Robyn taxes by untaxing groceries and by the Office of Management and Budget Hyden said: requiring wealthy people and corpo- and the House and Senate Appropriations rations to pay a greater share of the Committees, as well as publication of the Public policy barriers block the path cost of education, health care and Order in the Federal Register. The USF to real opportunity and justice for other public services that make life consists of four programs: far too many Alabamians. We’re better for everyone. excited to unveil our 2019 blueprint • The High Cost program, providing to build a more just, inclusive state To track Arise’s success this legislative financial support to eligible telecommu- and make it easier for all families to session, to learn more about the group and nications carriers serving high- make ends meet. its mission, or to become an individual cost areas. member of Arise, visit them online at The lack of adequate health care cover- alarise.org or call 334-832-9060. • The Schools and Libraries Program (also age is one of the leading barriers prevent- Sources: Alabama Arise, Georgetown University’s known as the E-Rate program), provid- ing many families from achieving financial Center for Children and Families, University of North ing discounted communications ser- stability. Medicaid expansion would Carolina’s NC Rural Health Research Program, and vices to eligible schools and libraries. Institute on Taxation and Economic Policy (ITEP) extend that coverage to more than 340,000 Alabamians, including more than • The low-income program (also known 220,000 adults who fall in the state’s cov- as Lifeline), assisting low-income con- erage gap. Their wages are too high to VIII. sumers to pay for telephone and broad- band services. qualify for Medicaid, yet they don’t make THE NATIONAL enough to receive subsidies for coverage • The Rural Health Care Program, provid- through the Affordable Care Act’s SCENE ing discounted telecommunications and Marketplace. broadband services to rural health care Expanding Medicaid would save lives, providers. The commission is responsi- create thousands of jobs and pump hun- FCC Creates A New Fraud Division ble for implementing and oversee- dreds of millions of dollars a year into the ing the USF. state’s economy, Arise policy analysts A fraud division within the Enforcement explain. Some of the hardest hit areas in Bureau of the Federal Communications The FCC has strong rules against the Alabama are small towns and rural areas. Commission (FCC) is being created that misuse of funds in these programs. The They have among the highest rates of “codifies and reiterates the importance of Enforcement Bureau is tasked with pursu- uninsured low-income adult citizens in ongoing work by enforcement staff to ing those that fail to abide by those rules. the country. combat misuse of taxpayer funds.” Rose- The following are among its recent USF- States that expanded Medicaid saw mary Harold, chief of the Enforcement related enforcement actions: more than three times as large a decline in Bureau, had this to say: • The FCC proposed a fine of more than uninsured rates for low-income adults Protecting taxpayer dollars as we $63 million against American Broad- living in rural areas and small towns than use Universal Service Fund pro- band for apparent large-scale violations states that did not expand Medicaid grams to bridge the digital divide in the Lifeline program, including between 2008-09 and 2015-16, according lies at the heart of our work at the apparently creating fake accounts by to a recent study by Georgetown Universi- FCC. To ensure we are effective in enrolling deceased individuals and ty’s Center for Children and Families and that work, it is vital that we main- manipulating the personal information the University of North Carolina’s NC tain a steady eye on these programs of existing Lifeline subscribers. Rural Health Research Program. to address the unfortunate reality The Alabama tax structure, on average, that, over the years, too much • The FCC also recently proposed an forces families with low and moderate money that should have gone to $18.7 million fine against DataConnex incomes to pay twice as much of their connect American consumers and for apparently defrauding the Rural wages in state and local taxes as the businesses has been lost, stolen, or Health Care Program, including appar- highest earners. A study by the Institute misused. Establishing a Fraud Divi- ent use of forged, false, misleading, and on Taxation and Economic Policy (ITEP) sion within the Bureau will help us unsubstantiated documents to improp- shows that Alabamians earning less than combat waste, fraud, and abuse in erly seek funding from the fund. $18,600 a year pay 9.9 percent of their these important connectiv- income in state and local taxes on average, Hopefully, the creation of the new ity programs. whereas those earning $448,000 a year or Fraud Division will result in the FCC’s car- more pay an average of just 5 percent of The new Fraud Division will be dedi- rying out its responsibility to control their income in those taxes. And increases cated to investigating and prosecuting waste, fraud and abuse and to save tax- in court and other user fees often fall dis- fraud in the Universal Service Fund (USF). payer dollars. That must be a top priority proportionately on families struggling to This team will work closely with the FCC’s and the newly created division must see make ends meet, exacerbating the chal- Office of Inspector General, the U.S. that its work is highly productive. Source: Law360.com

JereBeasleyReport.com 11 IX. X. donate up to 85 percent of the cost of EHRs under set safe harbors. However, the THE CORPORATE WHISTLEBLOWER suits said such donations can’t be a condi- WORLD LITIGATION tion of business and can’t be given in exchange for referrals. The DOJ agreed that Miraca didn’t meet the safe harbors. HHS in 2013 withdrew the exemptions Shameful Conduct Involving The Sacramento Pathology Lab Agrees To $64 Million Kings’ Jeffrey David Settlement In DOJ Kickback Claims that allowed laboratories to make such donations. According to prosecutors, it The chief revenue officer (CRO) of the Inform Diagnostics has agreed to a has yet to be determined how much of the Sacramento Kings, Jeffrey David, was $63.5 million settlement to resolve whis- settlement the whistleblowers will get. responsible for generating revenue for the tleblower claims that it violated federal Inform Diagnostics noted that it did not professional basketball team from 2011 kickback laws by giving physicians subsi- have to enter into a corporate integrity through 2018. During this time, David gar- dies for electronic health records technol- agreement and that since 2017 it has nered much praise for generating millions ogy and consulting services in exchange changed its senior executives and board of dollars for the Kings by successfully for referrals, according to federal prosecu- members and “put compliance at the negotiating the sale of lucrative sponsor- tors. While the U.S. Department of Jus- center of everything we do.” The company ship deals. The praise for David, however, tice’s False Claims Act settlement is with said it now has a full-time compliance and has now come to a sobering end. That’s Inform Diagnostics, the company said the ethics officer, a team of compliance staff, because it has come to light that David payment will be made by its former and regular external audits of its compli- stole more than $13 million during the parent, Japan’s Miraca Holdings Inc. ance and billing practices. The litigation time he was employed as the Kings’ CRO. The misconduct took place before arose from three separate whistle- In January, David accepted a plea agree- Inform Diagnostics, then known as Miraca blower suits. ment containing detailed admissions of Life Sciences, changed hands in 2017. Jody • The first was filed in September 2013 by fact; he pled guilty to wire fraud and Hunt of the DOJ’s Civil Division, in a state- Paul Dorsa, who was senior vice presi- aggravated identity theft. From 2012 to ment, said: dent of commercial operations at Miraca 2016, David stole portions of payments Life Sciences. that were intended for the Kings and then The Department of Justice has long- standing concerns about improper laundered the money through a sham • The second was brought by a company financial relationships between company that he had created specifically called LPF LLC in June 2016, which health care providers and their for that purpose. This sham company pur- claimed to have personal knowledge of referral sources because those rela- ported to be an affiliate of the Kings, but the alleged fraud. in reality it was entirely under David’s tionships can alter a physician’s control. Through this sham company, he judgment about the patient’s true • The third complaint was filed in Decem- purchased several multi-million-dollar health care needs and drive up ber 2016 by dermatopathologists homes and investment properties. health care costs for everybody. In Michael Heaphy and Brian Hall, who Over a span of several years, David’s addition to yielding a substantial had worked at Miraca Life Sciences. crimes remained undetected despite inter- recovery for taxpayers, this settle- The government is represented by nal audits and the Kings’ other financial ment should deter similar conduct David T. Cohen and Jonathan T. Thrope of review mechanisms. Ultimately, it was in the future and help make health the DOJ’s Civil Division, and Christopher David who inadvertently outed himself. care more affordable. C. Sabis of the the U.S. Attorney’s Office Soon after his departure from the Kings, The suits claim the pathology labora- for the Middle District of Tennessee. LPF is David’s crimes were exposed by an tory exploited a government push for pro- represented by Frederick M. Morgan Jr., employee who happened to come across viders to switch to electronic health Chandra Napora and Jennifer M. Verkamp incriminating evidence that David records by, at first, giving physicians of Morgan Verkamp LLC. Heaphy and Hall neglected to delete from his work com- money to put toward EHR systems, and are represented by Daniel R. Miller of puter. It seems incredible that the scheme later giving free consultations to use that Berger Montague, and Lawrence S. was not uncovered by the Kings’ internal technology in a way that could earn physi- Klitzman of Klitzman Law Group PLLC. audit department. If the Kings’ employed cians incentive payments or help them Dorsa is represented by James F. Sanders, an external auditor, a potential claim for avoid penalties. This was all in exchange William T. Ramsey and Nathan C. Sanders, accounting malpractice would seem likely. for physicians sending patients the lab’s of Neal & Harwell PLC. The cases are U.S. That may be another story for another day. way, the suit claims. Miraca Life Sciences et al. v. Miraca Life Sciences Inc., (case Source: www.SI.com would then submit claims to government numbers 3:13-cv-01025, 3:16-cv-01355 and health care programs for those ill-gotten 3:18-cv-01207) in the U.S. District Court patients in violation of the Anti-Kickback for the Middle District of Tennessee. Statute and Stark Law, the com- Source: Law360.com plaints allege. In 2006, the U.S. Department of Health and Human Services (HHS) started allow- ing laboratories and other providers to

12 BeasleyAllen.com Pentec Health Inc. Pays $17 Million To care Inc.’s claims that it violated the False from the AmerisourceBergen case in Resolve Whistleblower Lawsuit Claims Act (FCA) by skimming drugs from March. The government had intervened overfilled vials meant for cancer patients only in the AmerisourceBergen case. The Pentec Health Inc. has agreed to pay the and then selling them to providers. U.S. U.S. Department of Justice reached a $625 U.S. government $17 million to settle a District Judge Nina Gershon allowed million settlement with AmerisourceBer- False Claims Act lawsuit. It was alleged Omni’s complaint against the distributor gen in October. that the compounding pharmacy submit- and one of its units to go forward, but dis- Omni is represented by George Carpi- ted false claims to Medicare and other gov- missed several subsidiaries, including US nello, Courtney Rockett, Teresa Monroe ernment health care programs. From Oncology Inc. The latter company, which and Lisa Sokolowski of Boies Schiller 2007-2018, according to the Department McKesson purchased in 2010, has already Flexner LLP. The case is U.S. et al. v. of Justice (DOJ), Pentec billed Medicare faced its own FCA litigation on largely the McKesson Corp. et al., (case number 1:12- and other federal health care programs for same allegations. cv-06440) in the U.S. District Court for the excessive amounts of product wasted Omni’s suit alleges that McKesson Eastern District of New York. during the compounding of Proplete, and would use syringes to take excess drugs Source: Law360.com it routinely waived patient copayments out of U.S. Food and Drug Administration and deductibles to induce the prescription (FDA)-approved vials that were deliber- and use of Proplete. Pentec also allegedly ately filled with more medication than the The Beasley Allen Whistleblower submitted duplicate and improperly coded label had listed. The drugmakers would Litigation Team claims to the Federal Employee Health ship the extra medication to ensure Benefits Program. U.S. Attorney William doctors would be able to withdraw the Health care fraud continues to be a huge McSwain said: full amount they needed, but the suit problem in our health care systems in this claims McKessson would instead sell that country. Our firm has increased its health We thank [Jean Brasher] for her excess separately. The drugs affected care whistleblower practice for this very invaluable contribution in this case. include branded and generic versions of reason with lawyers Lance Gould, Archie Together with her lawyers, they pro- Helsinn Therapeutics’ Aloxi, Janssen Prod- Grubb, Larry Golston, Andrew Brashier, vided vital assistance to the govern- ucts LP’s Procrit, Amgen Inc.’s Aranesp Leslie Pescia, Leon Hampton, Paul Evans ment throughout this case. Without and Neupogen, Sanofi’s Taxotere, and and Tyner Helms working in this area information from citizens like [her], Roche’s Kytril. known as “qui tam” cases. We recently detecting fraud and conserving gov- The judge dismissed all subsidiaries obtained a $14 million verdict in Birming- ernment program funds would be except Oncology Therapeutics Network ham Federal Court dealing with a health far more difficult. Corp., finding that the claims against them care whistleblower issue and continue to In addition to paying the U.S. $17 were time-barred. Those companies had pursue other cases throughout the million, Pentec also agreed to enter into a been named only in a second amended country involving abusive practices in the five-year Corporate Integrity Agreement complaint. Judge Gershon said: health care industry. (CIA) with the Department of Health and Events over the past several years have The statute of limitations, like the Human Services, which will subject the made it abundantly clear that whistleblow- first-to-file bar, encourages relators company to increased federal scrutiny. ers are the key to exposing corporate to come forward promptly with The CIA also subjects Pentec to exclusion wrongdoing and government fraud. Any information to help the government from all federal health care programs if it person who has first-hand knowledge of uncover fraud. This purpose would is found to have violated the agreement in fraud or other wrongdoing may have a be undermined if a relator were per- the future. whistleblower case. Before you report sus- mitted to add additional defendants The settlement resolves a whistleblower pected fraud or other wrongdoing— years later—and potentially after lawsuit filed under the False Claims Act in before you “blow the whistle”—it is the government has declined to the U.S. District Court for the Eastern Dis- important to make sure you have a valid intervene. trict of Pennsylvania by former Pentec claim and that you are prepared for what employee Jean Brasher. It is unclear at this Judge Gershon said Omni did meet the lies ahead. Beasley Allen has an experi- point how much of the $17 million settle- particularity requirements necessary even enced group of lawyers dedicated to han- ment the DOJ will award. Ms. Brasher is though it hasn’t yet shown any specific dling whistleblower cases. due huge credit for her bringing the whis- false claims submitted to the government A lawyer on our Whistleblower Litiga- tleblower lawsuit. Under the terms of the as a result of the alleged misconduct. She tion Team will be glad to discuss any False Claims Act, she is entitled to an said enough of a scheme has been out- potential whistleblower claim either in award of up to $4.25 million—25 percent lined that, if true, it would make sense for person or by phone. You can reach these of the total recovery. false claims to have been submitted, and lawyers by phone at 800-898-2034 or by Source: Law360.com that McKesson has information to find email at [email protected], those claims. [email protected], Lance. The suit was filed in March 2012 with [email protected], Andrew.Brash- McKesson Must Face FCA Suit Over Omni suing McKesson competitor Ameri- [email protected], Leslie.Pescia@beas- Drug Skimming sourceBergen Corp. The whistleblower leyallen.com, Paul.Evans@beasleyallen. amended its complaint in October 2012, com, [email protected] or A New York federal judge has ruled that adding McKesson, US Oncology and Tyner.Helms@beasleyallencom. McKesson Corp. must face Omni Health- others. The McKesson case was severed

JereBeasleyReport.com 13 XI. were available that would have prevented The jury found in favor of the city of the buckle failure that Ivan experienced. Seattle and state of Washington, clearing PRODUCT Mike felt strongly about this defect and them of any liability for the crash. The LIABILITY UPDATE the trial team was ready to try this case. Plaintiffs had alleged the city and state However, he is very glad Ivan’s claims were responsible because they had failed were settled so that Ivan can continue the to put concrete safety barriers on the work of putting his life back together. Aurora Bridge. During opening statements Beasley Allen Settles Rodriguez Case In Mississippi Mike worked closely with Judy Guice and in October, Roger McDowell of Ozark Corban Gunn, who are both excellent Scenic Tours, which later became Ride the Last month we wrote about the partial lawyers, with offices located along the Ducks International, had adapted the duck settlement of a case involving tragic work- Mississippi Gulf Coast. boat from a World War II troop transport place injuries that occurred at a Missis- Mike has previously handled a number called the DUKW. Unfortunately, he used sippi refinery. Now, following an of seatbelt buckle defect cases involving only his own experience, instead of extensive Daubert hearing and only a few heavy equipment, heavy trucks and pas- having any engineering expertise. weeks prior to trial, the remaining senger vehicles. He and his litigation team Karen Koehler, who represents 42 Plain- product liability claims have been did a tremendous job for Ivan Rodriguez, tiffs, including three who died, said that in resolved against the tractor-loader manu- whose life will be made better as a result. 2013 and 2014, RTD International was facturer and seatbelt manufacturer. aware that there were problems with the On Aug. 4, 2016, while on the job, Ivan left front axles of its vehicles, and that one Rodriguez was rendered a C6 ASIA-A quad- Jury Returns $123 Million Verdict Against duck boat’s front left wheel even fell off riplegic. Ivan now requires 24-hour Duck Boat Companies during a tour. Despite selling duck boats nursing care and can no longer enjoy life to franchisees and licensees around the with his wife, nor can he teach his young A Seattle jury found amphibious vehicle country, RTD International never acted son sports as he once dreamed of doing. tour company Ride the Ducks (RTD) Inter- like a vehicle manufacturer, never issued a On the day when Ivan’s catastrophic national and its Seattle licensee responsi- recall of possibly malfunctioning duck injuries occurred he was operating a front- ble for a duck boat’s collision with a tour boats, never provided repairs to their end loader with an open cab. While using bus that killed five people and injured owners, and never did any systematic the front-loader to move empty sandblast- many more. The jury awarded more than safety testing. ing bags, one of the bags blew into the $123 million in damages to dozens of A month into the trial, four of the Plain- open cab and became entangled on Ivan’s Plaintiffs. In the trial that lasted for four tiffs settled their claims for $8.25 million. foot. The other end of the bag was pulled months, the jury returned the verdict in Those Plaintiffs, Privando Putradanto, Jae under the tire of the moving front-loader favor of the 38 Plaintiffs, who included Won Jang, Florencia Irena and Na Ra Yoon, and began pulling Ivan from his seat. victims and surviving family members of settled their claims against RTD Interna- Although he was wearing his seatbelt, it victims of the September 2015 collision tional and RTD Seattle. The Herrmann unexpectedly unlatched and allowed Ivan that killed five people and injured over 60. Law Group represented the four Plaintiffs to fall out of the loader headfirst onto the The jury gave a range of damages awards who settled during the trial. ground below. to the Plaintiffs, with a high mark of $25.9 The case is The Dinh Plaintiff Group v. Mike Andrews, a lawyer in our firm’s million to Plaintiff Phuong Dinh. Ride the Ducks International et al., (case Personal Injury & Products Liability As previously reported, the crash number 15-2-28905-5 SEA), in the Superior Section, handled this case. Investigation occurred when the front left axle on the Court of Washington for King County. by Mike and our in-house investigators, duck boat, which was sold by Ride the Source: Law360.com along with expert testing, revealed a very Ducks International and operated by Ride dangerous design defect in the subject the Ducks Seattle, shattered. The broken axle caused the duck boat to veer into seat belt buckle. Even though the buckle Fort Worth Man Killed By Exploding was purportedly designed for use in harsh oncoming traffic on Seattle’s Aurora Vape Pen environments, the buckle is actually more Bridge, colliding head-on with a charter prone to release when used in environ- bus full of international exchange students Once again, a vape pen has claimed the ments where it can be exposed to from North Seattle College. life of yet another young man, leaving his debris—in short, it is defective and not fit The jury found that Ride the Ducks family in the wake of complete devasta- for its intended use. Seattle was 30 percent responsible and tion. In late January, William Brown sus- Testing conducted by engineering Ride the Ducks International 70 percent tained horrific injuries when his vape pen experts showed that debris can enter the responsible for the injuries of the Plaintiffs exploded as he sat in his parked car. The buckle and block the locking seatbelt pawl who were riding on the duck boat, and 33 explosion caused metal shards to lodge in from fully engaging the latch plate tongue. percent and 67 percent responsible, his face and neck. Brown, however, did As a result, the operator may hear an respectively, for the injuries of the Plain- not die instantly. audible “click” but the buckle may not tiffs on the charter bus. The jury found In what one could only imagine to be actually be fully latched. Sufficient pulling Ride the Ducks Seattle liable for negli- sheer and utter panic, it was reported that force may then cause the buckle to gence, and Ride the Ducks International Brown exited his car and struggled for unlatch at the very moment the user needs liable for violating a state products lia- balance before collapsing on the pave- it the most. Multiple alternative designs bility law. ment of the parking lot. After he was rushed to the hospital and immediately

14 BeasleyAllen.com put into a medically induced coma, it was specifically affecting the tablet’s nation’s best at unnecessary risk, and discovered that a part of the vape pen was battery pack.” caused unnecessary and preventable inju- lodged in his neck. The Plaintiffs in the suit seek compensa- ries as a result. Brown suffered a stroke before the nec- tion from Apple for wrongful death, strict The majority of suits have been filed in essary surgery could be performed and he liability, and survival action. The latter federal court in Minnesota, 3M’s home died the following day. According to the charge is allowable under the New Jersey jurisdiction, although other suits have death certificate, Brown died from cere- Survivor Act and seeks damages for the been filed in courts throughout the bral infarction and herniation that was “significant pain and suffering” Mr. Ireland country. The Judicial Panel on Multidis- caused by the metal shards slicing his left experienced between the onset of his trict Litigation will hear this matter in its carotid artery; he was only 24 years old. burn injuries until his death later in the March session, and will decide whether Unfortunately, this is not an isolated day. The lawsuit seeks compensatory the cases should be consolidated and, if incident. A man in Florida was killed by an damages, attorneys’ fees and other costs so, the appropriate forum for the cases. exploding vape pen last May; the explo- associated with the complaint from Apple. Matt Munson, a lawyer in our firm’s Mass sion caused metal debris to lodge into his Although explosions and fires stemming Torts Section, had this to say: head before catching his house on fire. At from lithium-ion batteries and battery this time, the model and/or type of vape packs used to power Apple devices are It’s bad enough that the product pen that killed Brown is unknown. What rare, it’s not rare for the powerful didn’t work. But the most egregious is known, however, is that these vape rechargeable batteries to malfunction in thing is that 3M knew it didn’t work, pens are extremely dangerous while their other consumer devices, such as laptops, yet allowed the product to remain popularity is on the rise. smartphones, hoverboards, e-cigarettes on the market. I believe they saw Based on a study published by Tobacco and battery packs. dollar signs with the post-9/11 involvement in Iraq and Afghani- Control, there were over 2,000 vape pen Source: NJ.com explosions from 2015 to 2017. It is unset- stan, and couldn’t bring themselves tling to imagine how many more deaths to do the right thing. these exploding contraptions will cause in Beasley Allen Investigating Defective 3M Beasley Allen lawyers continue to inves- the years to come. Combat Earplugs tigate these claims. For more information, If you need more information on this contact Melissa Prickett or Matt Munson, subject, Contact Will Sutton, a lawyer in The next time you thank a veteran for lawyers in our firm’s Mass Torts Section, at our Toxic Torts Section, at 800-898-2034 his service, he may not be able to hear 800-898-2034 or by email at Melissa.Prick- or by email at William.Sutton@beasley- you. Beasley Allen lawyers are investigat- [email protected] or Matt.Munson@ allen.com. ing claims related to defective combat ear- beasleyallen.com. Source: https://www.washingtonpost.com/ plugs manufactured by Minnesota-based health/2019/02/05/vape-pen-kills-man-after-exploding- 3M Company. The earplugs were issued to his-mouth/?noredirect=on&utm_term=.818847b298ce thousands of military personnel serving in and https://www.cnn.com/2019/02/05/health/ XII. exploding-vape-pen-death-trnd/index.html combat in Iraq and Afghanistan. The ear- plugs also were issued for use in training MASS TORTS exercises in the United States. Numerous soldiers are now complain- UPDATE Family Blames Apple For Deadly iPad Fire ing of permanent hearing loss related to The family of a New Jersey man who the defective ear plugs. Other soldiers A Look At The Drug Gadolinium And A died from severe burns in a fire allegedly have complained of tinnitus, commonly Related Disease caused by an iPad is suing Apple, alleging referred to as “ringing” in the ears. The dual-sided earplugs allegedly were the device was “unreasonably dangerous Many of our readers are likely some- improperly designed and manufactured, and unsafe” due to defects in its design or what familiar with Magnetic Resonance so that the earplugs did not fit snugly in manufacture or both. Bradley Ireland, 64, Imaging (MRI). For those who aren’t, the wearer’s ear canal. of Parsippany, New Jersey, was severely however, MRI is a medical imaging proce- Information available at press time indi- burned on Feb. 22, 2017, when the lith- dure that uses strong magnetic fields and cates 3M was aware of this problem as ium-ion battery pack in his Apple iPad radio waves to create images of the body’s early as 2000 or 2001, yet did nothing and exploded in the kitchen of his apartment. internal structures. For some MRI exams, allowed thousands of service men and This caused a fire that ultimately led to the IV drugs are used to change the contrast women to go through training and combat man’s severe burn injuries and his death of the image. Gadolinium is one without adequate ear protection. The ear later the same day. such agent. plugs were standard issue from 2003 In their lawsuit, Mr. Ireland’s daughter Gadolinium is a heavy metal that is through 2015. Julia Ireland Meo and son Benjamin found on the periodic table. Gadolinium is 3M, without admitting guilt, agreed last Ireland say that the iPad “was unreason- a contrast dye that can be combined with year to pay the United States $9.1 million ably dangerous and unsafe for its intended other chemicals to enhance the quality of to settle the government’s allegations that purpose by reasons of defects in its design MRI scans, and is administered intrave- the earplugs were defective. Beasley Allen and/or its manufacture and/or lack of ade- nously. However, after images are created and other firms are investigating claims quate warnings” when Mr. Ireland bought by MRI, gadolinium does not leave the for individual military personnel related to the device. It’s alleged: “The fire was body as quickly as manufacturers of the caused by a defect in the subject tablet, 3M’s deceptive conduct that put our

JereBeasleyReport.com 15 drug promised. This retention of Gadolin- inhibitor related injuries and we have pre- to implant a “Celect” model inferior vena ium has been linked to a medical condi- viously reported on the link between PPI cava (IVC) filter in preparation for spinal tion called “Gadolinium Deposition use and the development of kidney fusion surgery in 2009. In May 2011, she Disease.” disease such as acute interstitial nephritis began suffering from pain in her right Gadolinium Deposition Disease was and chronic kidney disease. thigh. A month later, she noticed some- first described by Dr. Richard Semelka in Studies have now linked gastric and thing protruding from her skin. When Ms. the December 2016 issue of Magnetic Res- esophageal cancer with long-term PPI use. Brand pulled it out, she realized it was onance Imaging. Gadolinium Deposition One study used a Hong Kong health data- part of the filter. A full body scan showed Disease occurs in individuals with normal base of individuals who underwent H. the filter had fractured inside of her and a or near-normal renal function. Symptoms pylori eradication therapy. These individu- piece had migrated near her spine. In can arise within a few hours or up to two als were followed for 7.5 years, and 153 October 2015, Ms. Brand had to undergo months after the administration of gado- patients eventually developed gastric an additional open surgery to remove linium-based contrast agents (GBCAs). cancer. The study noted that long-term the filter. Symptoms of Gadolinium Deposition proton pump inhibitor treatment carries a Ms. Brand sued Cook Medical Inc. and Disease are: a persistent headache; bone greater risk of gastric cancer while hista- other Defendants associated with the fil- and joint pain; “brain fog;” subcutaneous mine-2 receptor antagonist (H2RA) use ter’s manufacture and sale, claiming soft tissue thickening (skin that appears does not. Particularly, PPI users have a 43 among other things strict liability, negli- spongy or rubbery, without hardness and percent greater risk of developing gastric gent failure to warn, and negligent design redness); tendons and ligaments that are cancer. This risk increases when PPIs are defect. Cook Medical moved for summary painful and thickened in appearance; taken longer than three years. judgment on all claims and, in December, tightness in the hands and feet; and Previously published studies suggest U.S. District Judge Richard L. Young dis- burning, cutting, or pins and needles pain that long-term PPI use could increase missed most of the claims, saying the in the arms or legs, and torso. gastric atrophy, a condition that can Plaintiff had not met her burden of proof Gadolinium Deposition Disease is diag- precede gastric cancer, in patients with in showing that Cook Medical’s actions or nosed by a urine test confirming the pres- chronic H. pylori infection. The Hong lack of warning before or after her surger- ence of Gadolinium in the body. The test Kong database study is likely the first to ies caused her harm. However, Judge should be administered 30 or more days show long-term PPI use is associated with Young’s ruling left intact the design after the most recent GBCA was used. gastric cancer even after H. pylori eradica- defect claim. On Dec. 19, 2017, the U.S. Food and tion therapy. Furthermore, the study On Feb. 4, the Indiana federal court jury Drug Administration (FDA) issued a Drug shows the risk increases as duration and awarded Ms. Brand $3 million in the third Safety Communication warning that gado- dosage increase. A study from last year has bellwether trial in multidistrict litigation linium-based contrast agents can remain also linked long-term PPI use with an (MDL) alleging Cook Medical Inc.’s vein in the body, including the brain, for increased risk of developing esophageal filters inured patients. The jury found the months to years after administration. The cancer. This study looked at 796,492 defectiveness of the company’s product FDA approved new Medication Guides for adults in Sweden from 2005–2012. was the reason for the woman’s injury all GBCAs in May 2018. Beasley Allen lawyers are investigating when the filter broke apart in her body. Lawyers in our firm’s Mass Torts Section gastric and esophageal cancer in addition The first bellwether trial ended in a jury are currently investigating cases involving to kidney disease and stroke associated verdict for the Defense. The judge in the Gadolinium Deposition Disease. For more with PPI use. Currently, over 2,000 cases second bellwether trial found the claims information, please contact Melissa Prick- are currently pending in the New Jersey were time-barred and dismissed the case ett at 800-898-2034 or by email at Melissa. multidistrict litigation (MDL). Navan in March 2018. The verdict in the Brand [email protected]. Ward, Jr., a lawyer in our Atlanta office, case was solely on liability and compensa- Sources: https://www.fda.gov/Drugs/DrugSafety/ serves on the Plaintiff Executive Commit- tory damages. The jury declined to award ucm589213.htm; Semelka, et al., Gadolinium tee of the MDL. The MDL’s first Bellwether punitive damages. deposition disease: Initial description of a disease that trial is scheduled to begin in September Ms. Brand is represented by Ben C. has been around for awhile, Magnetic Resonance Imaging, Vol. 34, Issue 10 2020. For more information, Contact Martin of the Law Office of Ben C. Martin, Navan Ward or Melissa Prickett at 800- Denman Heard of Heard Law Firm PLLC, 898-2034 or by email at Navan.Ward@beas- Laura Baughman of Baron & Budd PC, leyallen.com or Melissa.Prickett@ Joseph N. Williams of Riley Williams & Common Heartburn Drugs Linked To Gastric beasleyallen.com. Piatt LLC, Michael W. Heaviside of Heavi- & Esophageal Cancer Source: http://www.njd.uscourts.gov/proton-pump- side Reed Zaic and David P. Matthews of Proton pump inhibitors (PPIs) are com- mdl-2789; https://gut.bmj.com/content/gutjnl/67/1/28. Matthew and Associates. The MDL is In re: full.pdf; https://gut.bmj.com/content/67/1/199.2; https:// Cook Medical Inc., (case number 1:14-ml- monly prescribed drugs used to treat dis- www.sciencedirect.com/science/article/pii/ orders including peptic ulcers, S1877782118300687 02570) and the bellwether case is Brand gastroesophageal reflux disease (GERD), et al. v. Cook Medical Inc. et al., (case and Zollinger-Ellison syndrome. PPIs number 1:14-cv-06018) in the U.S. District Court for the Southern District of Indiana. include the well-known drugs Prilosec, Jury Awards $3 Million In Cook Medical Beasley Allen lawyers continue to inves- Prevacid and Nexium, and are available Vein Filter MDL Bellwether both as prescription and over-the-counter tigate cases on behalf of those who have drugs. Beasley Allen lawyers have been Justice was a long time coming for suffered injury from retrievable IVC investigating cases involving proton pump Tonya Brand, who first underwent surgery filters, including migration, fracture and

16 BeasleyAllen.com perforation, leading to embolism, organ While Mrs. Emmet underwent a correc- that a warning label for birth defects is not damage, and wrongful death. For more tive procedure, her attorneys said the backed up by science. The company said information, contact Melissa Prickett or problems continued to repeatedly recur. the claims by the families that the Matt Munson at 800-898-2034 or by email In total, she underwent nine surgeries and company should have included such a at [email protected] or almost a dozen chemical cauterizations to warning are barred by federal preemption. Matt. [email protected]. address 14 mesh erosions she experienced The Plaintiffs, however, claimed the after being implanted. In closing argu- results of Japanese animal studies of the ments in the case, Kline described drug have never been formally presented $41 Million Verdict Against J&J’s Ethicon Emmet’s ordeal with the mesh implant as to the FDA. They said the possibility that In Mesh Case “hell.” He urged jurors to hold the the FDA’s opinion on Zofran’s label would company accountable for what he said be different if the agency had that infor- A Philadelphia jury has returned a $41 was a lack of clinical trials before putting mation is a fact in dispute. million verdict against Johnson & Johnson the implants on the market. GSK claimed it complied with FDA regu- subsidiary Ethicon Inc. The jury found The jury awarded $25 million in puni- lations concerning the disclosure of the that defects in a pelvic mesh implant man- tive damages as part of its verdict. The studies and that the data was not material ufactured by the company left Suzanne verdict also included $15 million in com- to the FDA’s decision. But Judge Saylor said Emmet with permanent injuries after the pensatory damages and $1 million in in his decision that it was “unclear” if GSK product sawed into her vagina. The jurors damages to Emmet’s husband for loss of had complied with the letter of the regula- agreed with the claims made by Mrs. consortium. tions and that GSK had provided no expert Emmet and her husband, Michael, that Mrs. Emmet and her husband, Michael, backing for its contention the data was Ethicon had negligently designed the are represented by Kila Baldwin, Thomas immaterial. mesh implants at issue in the case and had Kline, Elia Robertson and Thomas Bos- Judge Saylor said there were similar failed to provide proper warnings that the worth of Kline & Specter PC. The case is factual disputes regarding the disclosure devices could erode through soft tissue in Suzanne Emmet et al. v. Ethicon Inc. et of other study results and data and the the pelvis and cause permanent scarring al., (case number 130701495) before the effect disclosure would have had on the and other injuries. Court of Common Pleas of Philadelphia FDA’s decision. He said further: The Emmet case, filed in July 2013, is County, Pennsylvania. Under the existing legal framework, the eighth case over mesh-related injuries Source: Law360.com that Ethicon has faced in Philadelphia as this court understands and inter- County since December 2015. It is the prets it, the basic factual question sixth to end in a damage award against the underlying preemption—that is, GSK MDL Case Alleging Zofran Caused whether the FDA would have company. This award brings the grand Birth Defects Moves Forward total of damages Ethicon has faced in Phil- rejected the label had it been pre- adelphia to more than $145 million. A Massachusetts federal judge has sented with the evidence plaintiffs Approximately 90 mesh cases remain allowed the case against GlaxoSmithKline contend was withheld—must be pending in Philadelphia County as part of (GSK) to proceed in the multidistrict liti- resolved by a jury. a mass tort program, while Ethicon has gation (MDL). It is claimed in the case that The multidistrict litigation was consoli- faced thousands of claims in a federal mul- the anti-nausea drug Zofran led to birth dated in Massachusetts in 2015. The MDL tidistrict litigation program in West Vir- defects. U.S. District Judge F. Dennis panel found that 12 lawsuits, some of ginia. Thomas Kline, a lawyer for the Saylor IV found that GSK has not proven which are proposed class actions, war- Plaintiffs, stated: the U.S. Food and Drug Administration ranted consolidation as they all involved (FDA) would have rejected a stricter This is an important case because it common allegations that Zofran and its warning label. The judge denied the drug- demonstrates that when the evi- generic equivalent, ondansetron, a pre- maker’s motion for summary judgment, dence is marshalled it come out scription medication for the treatment of saying there remain questions of fact overwhelmingly in favor of the nausea, causes birth defects in children about whether GSK fully disclosed mate- plaintiffs. There were very devastat- when their mothers ingest the drug rial data about Zofran to the FDA and ing injuries caused to Suzanne while pregnant. whether the allegedly withheld data Emmet in this case, as there have The collection of complaints allege that would have swayed the agency’s decision been injures caused to tens of thou- GSK aggressively promoted Zofran for on the drug’s warning label. In this regard, sands of other women who have morning sickness despite lacking any evi- Judge Saylor said: used these products. dence of its safety for pregnant women In other words, GSK must essentially and only having FDA approval for its treat- Mrs. Emmet experienced severe compli- show that the FDA either had the ment of nausea related to cancer and cations after receiving three mesh disputed information, or that the surgery. According to the suits, GSK has implants to treat urinary stress inconti- disputed information would not received more than 200 complaints of nence and a condition in which both her have made a difference had it birth defects associated with Zofran but bladder and rectum were sagging against been provided. hasn’t updated the product’s warning her vagina. But in the weeks after receiv- label. GSK paid $3 billion in 2012 to settle ing the implants in May 2007, she began to GSK contended that the FDA did an allegations of off-label promotion involv- experience complications as a portion of exhaustive review of Zofran and claimed ing several drugs, including Zofran, which one of the devices eroded into her vagina. the U.S. Department of Justice said had

JereBeasleyReport.com 17 been illicitly promoted for morning sick- declined to provide an update on the ries and illnesses for every 100 full-time ness from 2002 through 2004. employee’s condition. employees. That is nearly twice the rate of The families are represented by Tobias Source: Fort Worth Star Telegram work-related injuries and illnesses for L. Millrood and Michael G. Daly of Pogust private industry as a whole. Hospital Millrood LLC, Kimberly D. Barone Baden employees also reported injuries and of Motley Rice LLC, M. Elizabeth Graham Nurse Severely Injured In Elevator illness resulting in days away from work and Thomas V. Ayala of Grant & Eisen- Accident more frequently than employees in both hofer PA, Robert K. Jenner of Jenner Law the construction and manufactur- PC and James D. Gotz of Hausfeld LLP. The A nurse was seriously injured in another ing sectors. case is In re: Zofran (Ondansetron) Prod- elevator accident that occurred in January Let all of this sink in—hospital workers ucts Liability Litigation, (case number at Fort Worth’s John Peter Smith Hospital are more likely to suffer an injury or 1:15-md-02657) in the U.S. District Court (JPS). The victim, 56-year-old Carren Strat- illness requiring days away from work for the District of Massachusetts. ford, a mother of two adult children, faces than what have always been considered Source: Law360.com permanent injuries. the most dangerous of occupations. In JPS Chief Executive Officer Robert response to this surprising data, OSHA Earley said the nurse’s right foot got created a series of resources to help hospi- caught in the elevator as it was going up. tals identify dangerous conditions and XIII. She was crushed, suffering brain and practices, as well as implement safety and PREMISES internal injuries. At press time, Ms. Strat- health management practices. ford was in the Intensive Care Unit. The After investigating hospital injuries and LIABILITY UPDATE hospital is considering filing a civil action illnesses further, OSHA determined that against the hospital’s elevator mainte- 48 percent of injuries resulting in days nance company, Thyssenkrupp, also away from work are caused by overexer- Nurse Files Suit After Elevator Accident known as TKE. Mr. Earley says he has lost tion or bodily reaction from lifting, confidence in TKE’s work, adding: bending or reaching. As one might expect, A nurse working in a Fort Worth hospi- this is largely related to the awkward posi- tal is suing Thyssenkrupp Elevator Corp. We are not elevator experts. You tions associated with patient handling. after the elevator she was riding in hire elevator experts. And we The injuries most often associated with plunged several floors causing her serious thought we had elevator experts. We patient handling are musculoskeletal in injuries. The lawsuit was filed in Tarrant have a contract that clearly spells nature. Although not accounted for in the County district court. out what elevator companies are work-related statistics, it bears noting that Rogena Wright is a nurse at Texas supposed to do for the safety and injuries to patients in transport and Health Harris Methodist Hospital and an security of everybody that works moving is common as well. These injuries administrative supervisor at Harris-Alli- here. So it’s been really devastating. can result from falls or drops, and cause ance. On Jan. 23, 2018, an elevator she fractures, bruises and cuts. was riding at Harris-Alliance fell several Frank Branson, a lawyer for Ms. Strat- As OSHA points out in its materials to stories “causing a violent landing” that ford’s family, at a news conference held at hospitals, injuries and illness to employees injured Ms. Wright, according to JPS Hospital, praised the hospital’s actions comes at a high cost. When an employee the lawsuit. after the accident. However, he said the gets hurt, hospitals pay the price in the The lawsuit also alleges there had been family is also planning a lawsuit against form of workers’ compensation, but also other incidents involving the elevator the elevator company. the associated time and expense of tempo- shortly before and after the incident that Source: NBCDFW.com rary staffing, backfilling, and overtime for injured Ms. Wright. The lawsuit didn’t go other employees when injured employees into detail about the other malfunctions. miss work. Also named in the lawsuit are two inspec- There is also a correlation with on the tors accused of failing to detect a danger- XIV. job injuries and decreased productivity ous condition in the elevator. WORKPLACE and morale as employees become emo- Thyssenkrupp, the lawsuit says, failed to HAZARDS tionally and physically drained. In properly maintain the elevator. response to these growing trends of on- Ms. Wright’s injuries included herniated the-job injuries at hospitals, OSHA has rec- discs, lower back pain, a left ankle injury, A Look At Workplace Safety Involving ommended the implementation by all bruised arms, headaches, dizziness and Hospitals hospitals of Safety and Health Manage- numbness/tingling in her head, back, ment Systems. Each hospital is encouraged arms and feet. According to OSHA, hospitals are one of to review past on-the-job injuries and Thyssenkrupp Elevator Corp. is the the most hazardous places to work. This develop practices to mitigate the risks same contractor that inspects and repairs may come as a surprise to many of our associated with those injuries elevators at John Peter Smith Hospital, readers. But when they read this they may going forward. where an employee was seriously injured now be shocked. In 2011, there were more OSHA supplies resources and materials on Jan. 20. The hospital has declined to than 250,000 work-related injuries and ill- to help address deficiencies. Additionally, say how the injuries occurred and has nesses recorded at U.S. hospitals, which OSHA encourages each hospital to build a equated to a rate of 6.8 work-related inju- culture of safety. OSHA breaks the safety

18 BeasleyAllen.com culture down into six sub categories or mechanics from two of the nation’s largest such as preventative maintenance. There steps a hospital should implement. air carriers, American Airlines and South- was some indication of this as early as west. The mechanics said they are consis- 2015 when the FAA shifted from relying • First, the overall culture of safety must tently pressured to ignore potential heavily on enforcement to compliance. start with vision, or a plan to implement aircraft safety issues and to “short-cut the Data shows that the number of enforce- a core value of safety. critical work they perform.” Complaints ment actions has declined by 70 percent • The next step is to build trust, respect submitted to the Federal Aviation Adminis- since 2014 and the FAA has relied more on and inclusion. OSHA instructs that this tration (FAA) by whistleblowers since airlines’ own safety programs, essentially starts with the hospital administrators 2015 corroborate the investigation’s find- allowing the airlines to police themselves. and board and runs all the way down to ings, prompting U.S. Senators to demand The sole airline passenger death occurred each individual patient room. answers from the agency regarding the last year, during this time frame of claims and how the agency handled them. reduced enforcement. • Thirdly, OSHA encourages the hospital In a letter to the FAA, Democratic Sena- Representatives from the Transport to engage the board of directors. The tors Ed Markey (Massachusetts) and Workers Union (TWU) and the Aircraft board must record and review the Richard Blumenthal (Connecticut) gave Mechanics Fraternal Association (AMFA), metrics that meaningfully assess organi- the agency until March 5 to provide addi- two leading unions, spoke out in support zational safety of the hospital. tional information about claims of undue of the mechanics, according to Aviation pressure on airline mechanics including Pros. The unions said, “A debt of gratitude • Next, it is important to prioritize safety how many complaints the FAA received is owed to them by the traveling public, when selecting and developing leaders. since Jan. 1, 2017, whether the FAA investi- their fellow technicians, and the airlines • Then, it is important to reward employ- gated the claims, and if the agency is themselves.” ees for prioritizing safety. investigating the claims discovered by the The unions also criticized the airlines CBS News investigation team. The sena- for their “disingenuous denials…that a • Finally, the hospital should establish tors’ letter also reminded the FAA of its problem even exists.” The joint statement organizational behavior expectations. mandate to investigate allegations of safety by the TWU and AMFA disagreed with standards violations and to require correc- American Airlines’ claims that almost all Senior leaders at the hospitals should tive action. aircraft whistleblower cases had been dis- essentially lead by example so that safety Mechanics, some whom spoke out missed. Rather, the aircraft mechanics had has a “trickle down” effect. Case studies of despite potential backlash and even the been required to accept non-disclosure hospitals implementing OSHA’s recom- loss of their jobs, said managers pressured agreements in order to settle their cases. mendations of a Safety Culture have them not to document maintenance The statement also noted at least one inci- proven results. Those hospitals saw a issues, to focus only on the work assigned dent where an American Airlines mainte- marked improvement in reducing on-the- to them and to get the planes back in the nance worker admitted to signing off on a job injuries. air as fast as possible since the airlines do fraudulent safety report and was subse- The bottom line is that hospitals are sur- not make money when aircraft aren’t quently promoted to a management posi- prisingly one of the more dangerous flying passengers. They reported that they tion. Further, the unions explained that working environments according to OSHA are constantly questioned about how long Southwest is “demanding the right to have data. That troubling trend may be reversed it takes to do their job and encouraged to its aircraft maintenance work performed with the implementation of safety cultures “skip a few steps.” The safety issues in foreign countries that do not safeguard at individual hospitals. involved significant violations such as the professional integrity and compliance If you need more information on this “[w]orn tires, worn brakes, [and] damage of [the] profession. subject, contact Evan Allen, a lawyer in to the fuselage.” With the declaration of a so-called our firm’s Personal Injury & Products Lia- Airline representatives stand by their national emergency by the Trump Admin- bility Section, at 800-898-2034 or by email airlines’ procedures and deny such safety istration and the diversion of resources to at [email protected]. violations. However, former National funding border security, it is highly likely Source: https://www.osha.gov/dsg/hospitals/ Transportation Safety Board (NTSB) that aviation passenger safety will con- member John Goglia told CBS News that tinue to witness even more shortcuts and “it’s unusual for so many mechanics to additional reductions in enforcement. XV. speak out publicly” and called it a “field of Sources: CBS News, U.S. Senate, Aviation Pros. red flags.” Washington Post TRANSPORTATION The industry has experienced an LITIGATION “unparalleled period of safety” with only one airline passenger death in decades, Wheelchair-Bound Woman Wins Lawsuit thanks to increased oversight and stronger Against United Airlines After Injury Senators Demand Answers From FAA Over regulations. However, as often happens Potential Safety Issues Ignored By Airlines when consumer safety improves, the Erica Fulton, a Florida woman traveling industry and regulators become compla- through Houston, has won her lawsuit An eight-month-long investigation by cent and take for granted the improve- against United Airlines. Mrs. Fulton, who CBS News revealed a disturbing trend ments in passenger safety. They begin to is disabled, was boarding her flight when regarding U.S. aircraft safety and mainte- question the investment of time and she says a flight attendant, who was nance. The news organization interviewed resources in enhanced safety procedures helping her to her seat, dropped her, injur-

JereBeasleyReport.com 19 ing her shoulder. Mrs. Fulton was traveling Railroad Faces Wrongful Death Lawsuit about illegitimate products it was sending to celebrate her son’s 30th birthday. United out. This includes not quarantining and claims it didn’t learn of this incident until The widow of a Union Pacific Railroad investigating suspect products and not six weeks after it happened, even though engineer who died in an October train col- maintaining records of investigations its internal call logs showed Mrs. Fulton lision west of Cheyenne has filed a wrong- related to those products. Rite Aid warned reporting the incident immediately. The ful death lawsuit against the company. the distributor that three of its pharmacies Plaintiff contended that the airline failed Union Pacific engineer Jason Martinez and in 2016 received bottles of prescription to even investigate the incident. Sean conductor Benjamin Brozovich died Oct. 4 opioids that instead contained Roberts, the lawyer representing Mrs. after their mixed-freight train’s brake other drugs. Fulton, says the airline’s post-incident system malfunctioned. Their train col- At two Michigan Rite Aid pharmacies, conduct caused the verdict to be higher lided with another train stopped on the 100-count bottles of oxycodone hydro- than it would have been. tracks. Nobody was in the stopped train at chloride tablets made by Mallinckrodt At the conclusion of the trial, Mrs. the time of the collision, which occurred were unsealed, and included only 15 Fulton was awarded nearly $4 million by about 18 miles west of town. Between the tablets of the over-the-counter painkiller the jury. “The way United painted their two trains, 66 cars derailed, causing $2.4 naproxen. At another Michigan Rite Aid, first-class passenger, as a malingerer and a million in damage, according to a report five bottles of oxycodone hydrochloride liar, I’m not surprised with how the jury from the National Transportation Safety were emptied of opioids and replaced reacted to that,” Roberts said. Board (NTSB). with a mix of naproxen and the antibiotic On the day of the accident, Martinez’s ciprofloxacin hydrochloride. Grocery train was heading east to North Platte, store chain Albertsons and drugmaker Settlement By CSX In Case Involving Death Nebraska, when the train’s crew realized GlaxoSmithKline also notified McKesson Of Film Worker the brakes were malfunctioning. The of similar tampering involving other crew radioed the Union Pacific dispatch medications. CSX Transportation has reached a settle- center to inform dispatch the train had An internal McKesson investigation ment with the family of Sarah Jones, the accelerated to 50 mph and was unable to showed that the tampering likely hap- camera assistant who was killed in 2014 stop. At press time, the NTSB was still pened while under its control, but the on the Georgia set of “Midnight Rider.” A investigating the accident. However, a pre- company didn’t try to find other products train struck crew members who were liminary report released by the board indi- that may also have been affected and shooting a scene on a rail track. This set- cates that something in the brake system didn’t contact other customers who may tlement will resolve the cases pending in malfunctioned. have received similar bottles, the agency Chatham County State Court in Savannah, Source: www.trib.com said. FDA Commissioner Scott Gottlieb Georgia. The terms of the settlement said in a statement: weren’t disclosed. A jury had awarded family members This is simply unacceptable. A dis- $11.2 million in 2017 in their wrongful XVI. tributor’s failure to have systems in death lawsuit. One of the Defendants in HEALTHCARE place to investigate and quarantine the case, CSX, was held to be 35 percent ISSUES suspect and illegitimate products liable for the damages. CSX operated the within their control is a violation train that was involved in the accident, of the law. but the company disputed its liability and The McKesson Rebuke Is A First The DSCSA requires drugmakers, appealed the verdict. Settlement negotia- For The FDA repackagers, distributors and dispensers, tions took place while the case was like pharmacies, to have policies to on appeal. The U.S. Food and Drug Administration address situations like this, and to notify Sarah Jones was 27 when she was killed (FDA) has taken action against McKesson companies it works with and the FDA of while working on the Randall Miller- Corp. in a first for the agency. The FDA illegitimate products when discovered. directed biopic of musician Gregg Allman. said McKesson Corp. failed to deal with Source: Law360.com Eight other crew members were also concerns that bottles of opioids it sold to injured in the accident. Production was pharmacies were emptied of the painkiller halted and the movie was ultimately aban- and replaced with other medications. This doned. Miller eventually served a jail sen- CDC’s Ownership of Vaccine Patents Raises was the first Drug Supply Chain Security Red Flags tence after pleading guilty to charges Act (DSCSA) warning letter issued by the including involuntary manslaughter. The FDA. The letter said the distributor didn’t The Centers for Disease Control and Occupational Safety and Health Adminis- address several instances of reported drug Prevention (CDC) has doubled the number tration (OSHA) also imposed fines on the tampering for medications including of required vaccines for children since the movie’s production company. The acci- opioids and treatments for HIV, seizures, mid-1980s, and some argue that these dent prompted multiple state and federal bipolar disorder and high blood pressure. 40-some-odd vaccinations given to chil- investigations and galvanized the film The FDA inspected McKesson’s San dren before the age of 2 are related to the industry, prompting calls for greater atten- Francisco corporate headquarters and an 10-fold increase in autism in the past 30 tion to safety on sets worldwide. Oregon distribution center over the years. It’s no surprise that with so many Source: Los Angeles Times summer and found that the company required vaccinations, the vaccine busi- didn’t sufficiently respond when notified

20 BeasleyAllen.com ness has ballooned into a $30 billion-a-year for Texas, the settlement is not a complete Senior U.S. District Judge Henry R. industry. win for the state. According to Xerox’s Wilhoit designated named Plaintiffs Susan But what most people don’t know is public securities filings, Texas initially Hicks and Don Williams as representatives that the CDC holds patents on 56 vaccines sought more than $2 billion in recovery of a class consisting of Kentucky-based including influenza, rotavirus, hepatitis A, and penalties from the company. The state insureds who received actual cash value pneumococcal disease, gastroenteritis, already was forced to reimburse the (ACV) payments from State Farm that SARS and Zika, according to investigative federal government more than $100 withheld depreciated labor costs during a news site Discerning the Mystery. Could million for the medical procedures. period spanning Feb. 28, 2013, through this be a conflict of interest? Texas hired a company later acquired by July 25, 2015. The news comes as the state of Wash- Xerox to evaluate applications for Medic- Judge Wilhoit said class certification is ington is under a public health emergency aid-funded dental procedures. The appropriate under the circumstances, due to an ongoing outbreak of measles— company was supposed to have dental noting that the class members’ claims one of the most infectious diseases. Most professionals carefully review each appli- revolve around a common issue: “whether of the 35 cases reported in Clark County, cation to make sure the tooth repairs were it is improper for State Farm to depreciate near Portland, Oregon, involve children medically necessary, the standard for Med- labor costs in calculating the ACV of struc- between the ages of 1 and 10 who had not icaid to cover them. tural damage claims in Kentucky.” Judge been vaccinated. However, according to the lawsuit, the Wilhoit wrote: Two years ago, President Donald Trump company did little more than rubber- announced he would name Robert F. stamp the paperwork. Under pressure to State Farm has admitted that its Kennedy Jr. to lead a commission to inves- keep pace with the exploding number of common practice until July 25, 2015, tigate the safety and scientific integrity of applications from dentists and orthodon- was to withhold labor depreciation vaccines. Kennedy had already shown tists, it hired untrained workers who often from ACV payments to its insureds. himself to be a vaccine skeptic when he barely glanced at the medical records, Moreover, through the Xactimate and actor Robert De Niro announced that molds and X-rays, spending only minutes estimating software program, State they would hand over a $100,000 reward on each application in some cases. Those Farm was able to calculate labor to anyone—researcher or otherwise— who didn’t keep pace were reprimanded. depreciation in a common, auto- who could prove that mercury used in The company employed a single dentist to mated manner. vaccines—known as thimerosal—was review and sign off on several hundred The judge’s order also appointed Mehr safe. Interestingly, both men claim they preapproval applications per day. Fairbanks & Peterson, Richardson & Smith are pro-vaccine and have vaccinated all The state’s lawsuit said the porous gate- PSC and Richardson Barber & Williamson their children. They say they were just keeping cheated Texas taxpayers out of PSC as class counsel. raising red flags about the volume of vac- hundreds of millions of dollars spent on Hicks and Williams alleged that State cines required and whether the mercury cosmetic tooth repairs that shouldn’t have Farm undervalued their claims by miscal- in them was potentially dangerous. been covered under the publicly funded culating the actual cash value of their Anti-vaxxers blame thimerosal, a mer- program. The company will pay the homes after they burned down in 2014. cury-based preservative, for causing $235,942,000 to Texas in installments, ACV is the total restoration cost minus autism and other brain development disor- with the final payment scheduled for depreciation—the amount by which any ders. According to the CDC, thiomerosal is July 2021. part of the property that must be replaced no longer used in children’s vaccines in Source: Houston Chronicle has declined in value since it was new. the United States, except in some types of State Farm took into account depreciation flu shots. of both materials and labor costs. Sources: Discerning the Mystery, VOX and CDC XVII. In a March 2015 order, Judge Wilhoit refused to dismiss the Plaintiffs’ breach of UPDATE ON contract claim, finding that the term Texas Announces Record $236 Million INSURANCE “depreciation,” which is not defined in Medicaid Fraud Settlement State Farm’s policies or a Kentucky regula- LITIGATION tion governing ACV calculations, is ambig- The State of Texas has announced the uous in this context. The judge said it settlement of a multi-billion-dollar lawsuit would not make sense for labor costs to be against one of its largest private contrac- State Farm Policyholders Get Win In Labor depreciated in the ACV calculations as tors. The case invovled what state and Costs Litigation labor “is not subject to wear and tear.” federal regulators claimed was a scheme Judge Wilhoit wrote in his prior order: that caused taxpayers to pay for thousands A Kentucky federal judge has certified a of unnecessary children’s dental and orth- class of State Farm policyholders who Indeed, the cost of labor to install a odontic procedures over nearly a decade. allege that the insurer improperly depreci- new garage would be same as Attorney General Ken Paxton said ated the costs of labor when determining installing a garage with 10-year-old Xerox Corporation—through a division it the actual cash value owed on their materials. In other words, depreci- later spun off as Conduent Business Ser- damaged or destroyed homes, finding that ated labor costs would result in vices—will pay the state $236 million to class treatment is appropriate because the underindemnification. As the insur- settle all of Texas’s claims against it. policyholders’ claims involve a common ance contract is one for indemnity, Although the amount represents a record legal question.

JereBeasleyReport.com 21 depreciating the cost of labor vio- whether [State Farm] will be found mined the profitability of Plaintiffs’ poli- lates the contract. liable under the relevant laws. cies, the Plaintiffs alleged that Transamerica increased MDRs to recoup State Farm filed an interlocutory appeal Judge Wilhoit did, however, decline the past losses and avoid its obligation to meet of the judge’s order, bringing the case Plaintiffs’ request to extend the class the high interest rates it guaranteed under before the Sixth Circuit. In an opinion period as far back as Feb. 28, 2004. The Plaintiffs’ policies. issued last October, a 2-1 panel of the claims of those proposed class members This consolidated class action litigation appellate court noted that courts around may run afoul of State Farm’s one-year lim- comprises a nationwide class of an esti- the country have split on whether insurers itations clause for contractual suits, the mated 69,000 Transamerica universal life can depreciate labor costs to reach their judge said. Judge Wilhoit wrote: policyholders who were subject to MDR ACV calculations. However, the majority increases in 2015 and 2016. The court said State Farm’s cited opinions were [W]ithout deciding the merits of plaintiffs’ arguments seeking to granted class certification to Plaintiffs issued by courts in states that approach more than a year ago. ACV issues differently from Kentucky. avoid State Farm’s one-year contrac- tual suit limitations clause for Transamerica agreed to settle the litiga- By contrast, the majority found persua- tion last year for $195 million. However, a sive several rulings favoring Hicks and certain proposed class members, the court finds that those arguments, handful of large institutional investor Williams’ position, as those cases were groups holding more than 500 in-force decided in states with laws or regulations even if successful, might result in a class that includes members who do policies opted out of the settlement, and mirroring the Bluegrass State’s. Under the relief that would have been distributed applicable insurance legal principles, it not satisfy the commonality require- ment. This is because the potential to those policyholders was subtracted held, Hicks and William’s interpretation of from the overall settlement fund. the term as excluding labor costs must be class members who must rely on exceptions to the suit limitations Ultimately, Transamerica will pay about accepted. Senior U.S. Circuit Judge Eugene $110.7 million into a common fund to be E. Siler Jr. wrote for the majority: clause may have to rely on proof that is not common to other class distributed to both customers whose poli- A reasonable construction of the members, thus defeating cies are in force and those whose policies insurance policies in this case is that commonality. were terminated or lapsed after the labor is not included in deprecia- increases first took effect. Transamerica tion. Thus, the district court cor- Therefore, the judge limited the class has also agreed not to impose any further rectly concluded that depreciating period to exclude claims for losses that increases in the monthly deduction rates labor does not make the policy- occurred more than one year before Hicks applicable to class members’ policies for a holder whole but rather frustrates and Williams filed suit on Feb. 28, 2014. period of five years unless ordered to do the indemnity purpose of Hicks and Williams are represented by so by regulators. ACV coverage. Erik D. Peterson, Philip Gray Fairbanks, M. The judge’s order also requires Trans- Austin Mehr and Bartley K. Hagerman of america to immediately pay the first $10 After the case was remanded, Judge Mehr Fairbanks & Peterson, J. Morgan million of attorneys’ fees and expenses Wilhoit held a hearing in December on the Smith of Richardson & Smith PSC, and awarded, with the remaining $18.7 million Plaintiffs’ class certification motion and Paula Richardson of Richardson Barber & to be paid out of the common fund. Each issued an oral ruling granting the motion. Williamson PSC. The case is Hicks et al. v. of the eight individual Plaintiffs were In last month’s written order, the judge State Farm Fire & Casualty Co., (case awarded service awards of $10,000 each. said all of the requirements for class certi- number 18-5104) in the U.S. Court of Transamerica is not the only insurance fication had been satisfied, including Appeals for the Sixth Circuit. company raising premiums and cost of numerosity, commonality and typicality. Source: Law360.com insurance in order to account for its finan- Judge Wilhoit pointed out that accord- cial losses. Multiple other life insurers ing to remarks by State Farm’s own have sent their universal life and/or flexi- counsel, the insurer withheld labor costs Transamerica Settles Universal Life ble premium policyholders letters inform- from about 11,800 ACV payments made on Insurance Case For $121 Million ing them of an upcoming raise in Kentucky properties between February costs—usually claiming these increases 2013 and July 2015. That number “easily A federal judge in the Central District of are due to “an increase in mortality rates.” satisfies” the numerosity requirement for California has approved a $121 million set- Beasley Allen lawyers have filed suits class certification, the judge said. More- tlement in Feller v. Transamerica Life against several other companies who have over, the core question of whether State Insurance Co., No. 2:16-cv-01378 (C.D. engaged in such conduct—including Farm’s practice of depreciating labor costs Cal.). The Plaintiffs in the Feller had case Banner Life Insurance Company, William was improper can be efficiently decided alleged that Transamerica dramatically Penn Life Insurance Company of New in a class action, the judge found. increased the applicable monthly deduc- York, and U.S. Financial Life Insurance He wrote: tion rate (MDR) in 2015 in order to induce Company—and we are currently investi- “shock lapses” and avoid paying out death gating others. This common question, posed in the benefits to Plaintiffs. The appeal came on If you have seen this practice by any life context of State Farm’s uniform Feb. 7, 2019. insurance company, there may be a claim claim handling practices, will yield Additionally, because Transamerica that lawyers in our firm would like to a common answer for the entire allegedly depleted its capital reserves, and investigate. Contact Andrew Brashier, class that goes to the heart of the low interest rate economy under- Rachel Boyd or Paul Evans, lawyers in our

22 BeasleyAllen.com Consumer Fraud & Commercial Litigation policies and related communications are This petition, however, is not the first of Section, at 800-898-2034 or by email at obtuse and confusing for the policyown- its kind. In September 2018, ADAO filed a [email protected], ers. Therefore, it is recommended you “Right to Know” petition under the Toxic [email protected], or Paul. seek legal counsel to ensure you under- Substances Control Act (TSCA) but it was [email protected]. stand the coverage you have and to deter- ultimately denied by the EPA the following mine whether labor costs may be December. depreciated from property loss claims Based on information provided in the Property Damage Claims And Depreciation under your respective policy. ADAO petition, the largest importer of Anyone filing a property damage claim asbestos neglected to notify the EPA of the Spring is around the corner and already with their insurance company is strongly amounts it was importing due to a loop- homeowners are taking a beating with urged to seek legal counsel before doing hole in the regulations exempting asbes- inclement weather. Hurricane Michael so. Your property damage claim may be tos from reporting requirements. The EPA, wreaked havoc during hurricane season shortchanged by the insurance company however, refused to acknowledge the and Wetumpka’s historic downtown suf- due to improper labor depreciation or loophole or address its far-reaching impli- fered from a catastrophic tornado only undervaluing the extent of your property cations. Recently, ADAO sent the EPA weeks ago. Warmer weather brings spring damages. Lawyers at Beasley Allen are Acting Administrator, Andrew Wheeler, a showers and the risk of straight-line winds experienced with insurance property letter seeking the reversal of his denial to and tornados. Although native Alabamians claims and are able to assist in the process its petition and addressing the errors of are used to these seasonal inconveniences, to help you get what you deserve. If you law and fact on which it was based. such weather can greatly impact your have any information and would like to If you need more information on this bottom line if your homeowner’s insur- speak with a lawyer, contact Andrew subject, contact Sharon Zinns, a lawyer in ance fails to properly adjust your claim. Brashier, Paul Evans or Rachel Boyd, our firm, at 800-898-2034 or by email at Many insurance companies utilize inter- lawyers in our Consumer Fraud & Com- [email protected]. nally or have their adjusters use Xactimate mercial Litigation Section at 800-898-2034 Source: Press Release: 15 Attorneys General Take software in order to adjust claims. This or by email at Andrew.Brashier@beasleyal- Action by Petitioning the EPA to Require Reporting on software is a tool making it easier for len.com, [email protected] or Asbestos Imports and Uses http://bit.ly/2RrmMzv adjusters to quickly estimate the amount [email protected]. of a property loss. However, several insur- ance companies are directing their adjust- Honeywell Settles Asbestos Lawsuit ers to modify the Xactimate settings so it Before Jury Awards $18 Million automatically depreciates the labor costs XVIII. to repair and replace the damages to con- TOXIC TORT Honeywell International has agreed to sumers’ properties. Such depreciation on settle claims that its automotive brakes labor is not allowed in many insurance LITIGATION caused a mechanic’s fatal mesothelioma. policies nationwide. CONCERNS The settlement was agreed to by the Beasley Allen lawyers are currently rep- parties after closing arguments and while resenting a manufactured home owner the jurors were deliberating. The federal who suffered a property loss in Alabama. Petition To EPA To Require Asbestos court jury found the company partially Our client was provided an estimate for Reporting On Imports And Uses liable for the man’s death. The Little Rock the damages to his manufactured home jury returned an $18 million verdict in and was subsequently denied payment of Asbestos is undeniably one of the most favor of Plaintiff Michael Lyn Thomas. The his claim due to his loss being less than dangerous materials in existence; accord- Plaintiff claimed that Honeywell and Ford his deductible after depreciation. Unfortu- ing to multiple government agencies, Motor Co. were responsible for the death nately for our client, the adjuster’s esti- there is no safe level of exposure. of his father Ronald Burlie Thomas from mate depreciated labor costs to repair and Research suggests that asbestos is related the asbestos-caused cancer. Honeywell replace a number of items to his manufac- to approximately 40,000 deaths in the U.S. predecessor Bendix Corp. produced the tured home and property, which led to each year. Asbestos importation to the brakes that the jurors found exposed the him barely not meeting his deductible. U.S., however, continues to thrive. Accord- worker to asbestos. Our client’s case is pending against All- ing to research conducted by the Asbestos The jury found that Ford was not state in the Northern District of Alabama Disease Awareness Organization (ADAO), responsible for the workers’ disease, but on behalf of all policyholders in Alabama asbestos imports actually increased in that Honeywell bore 18.75 percent of the with Allstate property insurance. 2018. Fortunately, the asbestos industry blame, and the worker himself bore 5 Consumers are strongly advised to may soon be required to file reports on its percent. The remaining blame was appor- review their homeowner’s policy to deter- asbestos imports and products containing tioned to non-parties, including Pneumo mine whether the insurance company has asbestos and to provide information Abex LLC, which settled the claims the express right to depreciate labor costs regarding their use and location. against it during jury selection. on property loss claims. Additionally, if a In late January, several attorneys general The jury awarded $5.55 million in consumer is filing a claim, it is important united and petitioned the Environmental damages to the Plaintiff for his father’s to keep a copy of all documents and com- Protection Agency (EPA) seeking report- pain and suffering, and $1 million each for munications, especially any adjuster esti- ing requirements and the disclosure of the mental anguish suffered by his three mate provided to you. Most insurance critical information regarding asbestos. children, Michael Thomas, Kara Bryant

JereBeasleyReport.com 23 and Joanne Scott. An additional $10 is too conservative and exceeds any rea- The Illegal Dumping Of Benzene Class million in punitive damages was returned sonable expectation of safety. A draft toxi- Action Suit Settles For Over $5 Million against Honeywell. cological profile for PFCs, released by the Ben Braly of Dean Omar Branham Agency for Toxic Substances and Disease As we have consistently reported in Shirley LLP told Law360 that the parties Registry (ATSDR) in June of 2018 sug- prior issues of this Report, benzene is an had reached a settlement that set the total gested limits that were 10 times lower the extremely toxic chemical that is known to amount of damages Honeywell would current lifetime health advisory. cause cancer. Published studies have also have to pay. But he could not disclose Despite these health concerns, the EPA linked long-term exposure to anemia, low what that amount was. Braly stated: has decided not to set a drinking water white blood cell counts and low blood limit for PFOA and PFOS at this time. platelet counts. Several decades ago, a leak I think the jury heard the evidence Instead, the EPA will continue to study caused a significant amount of benzene to that [Honeywell] supplied these these chemicals and plan to propose a reg- form an underground pool that spread products over a number of years ulatory determination later this year for underneath numerous homes and streets with the knowledge that these prod- public comment. in the town of Roxana. In 2012, two class ucts could hurt people, and that’s The Environmental Protection Agency action suits were filed against the Shell- what did it for them. Bendix [and] (EPA), however, has decided to add PFOA operated Wood River Refinery on behalf Honeywell were aware people were and PFOS to the list of hazardous chemi- of Roxana property owners affected by using their asbestos products, at a cals under the Superfund law. This is a the illegal dumping of benzene. time when they knew they could step in the right direction to ensure A settlement in excess of $5 million was cause disease, and they didn’t really funding is available to clean up an area approved by the U.S. District Court of do enough about it, and that’s what contaminated with these chemicals. Southern Illinois in August 2017. This the jury found. Unfortunately, it does nothing to prevent came about several years after the initial filing of the suit and Roxana property Ronald Thomas filed suit in August 2017 further injury caused by the continued owners are finally receiving settlement against 11 companies, alleging they had exposure to these highly toxic chemicals checks. Individual settlement amounts are sold asbestos-containing products or at dangerously high levels in drinking confidential, but were determined by the equipment that had caused his disease. He water. Until the EPA adds PFCs to the list loss of property value to each Plaintiff. died at age 72 in December 2017. His son of regulated substances under the Safe The Wood River Refinery is still operating had stepped in as Plaintiff in the suit. Drinking Water Act, a legal limit for the in Roxana, but under new ownership. The Ronald Thomas worked at two brake level in our drinking water will not be set. facility is currently owned by Phillips 66 repair facilities in Little Rock and North Alabama is one of many states that was and Cenovus Energy. Phillips 66 has Little Rock, Arkansas, during the 1970s directly affected by this devastating con- invested millions to ensure the refinery is and early 1980s, where he was exposed to tamination. Our firm, along with Roger H. operating safely and has pledged to con- asbestos in brake products and vehicles. Bedford of Roger Bedford & Associates, tinue operating the refinery with the The Thomas family is represented by Ben has filed lawsuits on behalf of the water integrity it requires. D. Braly and Mark J. Buha of Dean Omar systems in Gadsden and Centre, Alabama. Branham Shirley LLP, and George R. Wise These complaints allege that carpet and Source: https://www.thetelegraph.com/news/article/ textile companies, manufacturers, and Roxana-residents-finally-seeing-payments- Jr. of The Brad Hendricks Law Firm. The from-13515222.php case is Thomas v. Ford Motor Company chemical suppliers located upstream in et al., (case number 4:17-cv-00522) in the Dalton, Georgia are responsible for con- U.S. District Court for the Eastern District taminating the Coosa River and Weiss Lake. The lawsuits were filed to ensure Benzene Exposure Caused Former Guitar of Arkansas. Repairman To Develop Acute Lymphoblastic that these entities, not ratepayers in Source: Law360.com Leukemia Gadsden and Centre, would pay to decon- taminate their drinking water. In December 2018, a lawsuit was filed Beasley Allen lawyers are investigating EPA Will Not Set Drinking Water Limits For in the U.S. District Court for the Western other PFC contamination cases. If you PFOA And PFOS District of Washington against RPM Inter- have any questions about this subject, national Inc. and a number of other com- National concerns over the widespread contact Rhon Jones, Rick Stratton or Ryan panies on behalf of former guitar contamination of perfluorinated com- Kral, lawyers in our firm’s Toxic Torts repairman Albert Hesterman (Hesterman). pounds (PFCs), including perfluoroocta- Section, at 800-898-2034 or by email at Hesterman developed Acute Lymphoblas- noic acid (PFOA) and perfluorooctane [email protected], Rick.Strat- tic Leukemia (ALL) after he was exposed sulfonate (PFOS), continue to grow. [email protected] or Ryan.Kral@beas- to benzene-containing chemicals through- Studies have shown that PFCs are highly leyallen.com. out his employment as a guitar repair tech- toxic; they have been linked to neonatal Source: https://www.al.com/news/2019/01/trump-epa- nician at a Seattle music shop called The death, liver toxicity, immunity problems, wont-limit-chemicals-found-in-alabama-drinking- water-report-says.html and https://www.politico.com/ Trading Musician. endocrine disorders, and certain cancers. story/2019/01/28/epa-toxic-chemicals-drinking- In the complaint filed by Mr. Hester- The 2016 EPA health advisory recom- water-1124797 man, the causes of action are for negli- mended a limit of 70 parts per trillion gence. The Defendants are manufacturers, (ppt). Since then, several studies have sug- distributors and suppliers of benzene. Mr. gested that even this recommended limit Hesterman contends the Defendants were

24 BeasleyAllen.com either aware, or should have been aware, children are very concerned. After com- Nursing home residents are more likely of the dangers of benzene exposure. He pleting checks at 86 of the schools last to be in declining health and are often seeks damages for the loss of enjoyment of month, officials announced that 57 of unable to self-diagnose pain or symptoms life and for his pain and suffering; eco- them had lead or copper levels above the of illness. An undiagnosed, untreated or nomic relief is also sought by way of federal thresholds that require action to improperly treated medical condition has special damages and lost earnings. be taken. the potential to be life-threatening for a As previously reported, benzene is a Detroit officials believe the cause of the resident. Therefore, it is crucial that clear, highly flammable liquid with a contamination could possibly be aging nursing home staff be adequately trained sweet, gassy smell. It occurs naturally in pipes. Adding even more concern to the to identify potential health issues and to petroleum, and it is used as an organic parents of Detroit school children is that report them to the resident’s doctor and solvent to make a variety of other chemi- much of the thousands of miles of plumb- family. Failure to do so can have deadly cals and various plastics. It is also used in ing in the city’s schools is decades old, and consequences. the manufacturing of some types of rarely updated. Joints and other plumbing Lawyers at Beasley Allen recently filed a rubbers, varnishes, lacquers, lubricants, components often contain metals that can lawsuit in Superior Court of Fulton dyes, detergents, drugs and pesticides. leach into the water over time. To make County, Georgia, against the owners and Because benzene comes from petroleum, matters worse, the way water runs operators of Roswell Nursing and Rehab benzene is often found in oil-based paints, through pipes in schools—only intermit- Center in Roswell, Georgia, for the wrong- various degreasers, thinners, solvents and tently, rather than in a constant or fre- ful death of Allesia Johnson. The suit was fuels—including diesel, gasoline and kero- quent flow—adds to this problem. This filed on behalf of her mother, Cynthia sene. Persons working closely with has left many of Detroit’s citizens wonder- Johnson, and the decedent’s estate. benzene or benzene-containing products ing how long the problem existed before Ms. Johnson was admitted to Roswell in can be put at serious risk because their anyone started testing the water. October 2014 at the age of 49. At that time, exposure can occur at much higher levels Officials in Detroit claim to have found her medical records not only documented and for longer periods of time. The a solution; they plan to install filtration her personal history of breast cancer but medical literature indicates that benzene systems in every school. The cost of the also included a recommendation to causes multiple forms of leukemia and project is $3 million and is funded by phil- monitor the recent discovery of her lymphoma. anthropic donations; installation of the swollen left breast. Despite Roswell’s John Tomlinson, a lawyer in our firm’s new systems started last month. Today, awareness of her history of breast cancer Toxic Torts Section, has filed and is cur- many of the schools will be using tempo- and the need to monitor the resident, the rently investigating other benzene expo- rary water coolers to replace water foun- facility consistently failed to provide Ms. sure cases. If you need more information tains until the completion of the project. Johnson with the required follow-up care on this matter, contact John at 800-898- While this $3 million plan looks good for and necessary monitoring for a period of 2034 or by email at John.Tomlinson@beas- the future, many parents are wondering if almost two years. leyallen.com. it is too little, too late. The question still Ms. Johnson was ultimately diagnosed Source: https://harrismartin.com/article/24211/former- remains, how many children have been with stage III breast cancer in April 2016. guitar-repairman-files-complaint-says-exposure-to- exposed to these contaminates? The Unfortunately, the breast cancer was not benzene-caused-all/ answer may be one we don’t want to hear. diagnosed soon enough and within two Source: New York Times months of her diagnosis, her prognosis was noted to be terminal. Roswell had an Detroit Schools Without Water Due To A ample number of opportunities to provide Contamination the necessary treatment and the recom- XIX. mended monitoring that Ms. Johnson The water fountains in all 106 schools UPDATE ON required, but failed to do so. Due to run by the Detroit Public Schools Commu- Roswell’s extreme negligence and uncon- nity District have been dry since classes NURSING HOME scionable neglect, this woman died from began in August 2018. The superintendent LITIGATION her breast cancer on Feb. 9, 2017, at the of schools ordered water fountains shut age of 52. off as a pre-emptive measure, after testing This case is Johnson, Cynthia A. obo revealed elevated levels of copper and lead Wrongful Death Lawsuit Filed Against Allesia Anderson (dec.) v. Roswell in drinking water at some Detroit schools. Georgia Nursing Home Nursing & Rehab. File No. 201800006216. The State of Michigan is no stranger to Chris Boutwell is the lead lawyer for issues with its water supply. Just 60 miles Nursing homes and their staff are often Beasley Allen in the case. north, the nation has watched as the citi- the last line of defense for nursing home zens of Flint continue the years-long strug- residents who need long-term medical gle for clean water, where contaminated care. Residents depend on nursing home Reversal Of The Nursing Home water sickened residents while officials staff not only to provide care for their Arbitration Ban dismissed their concerns for months, existing medical conditions, but also to insisting that the water was safe. monitor them for changes in their medical The Obama Administration’s proposed Flint’s crisis prompted Detroit officials conditions and to diagnose new illnesses ban on the use of arbitration clauses in to start testing school water supplies in or conditions. nursing home admission contracts may 2016. Naturally, parents of Detroit school soon be reversed. In 2016, the Center for

JereBeasleyReport.com 25 Medicaid Services (CMS) announced a pro- represent the victims or families of those Exchange Commission (SEC) and U.S. posed ban on the use of arbitration con- who have suffered death or serious injury Department of Justice (DOJ) into the tracts to settle legal disputes between because of nursing home negligence, alleged wrongdoing, as well as made dis- residents and long-term care facilities, abuse and neglect. The team of lawyers in closures that Cobalt had overstated the including nursing homes and rehabilita- our firm handle nursing home litigation on amount of oil in certain wells. tion facilities that receive payments from a regular and recurring basis. Chris Bout- The DOJ and SEC have since stopped Medicare and Medicaid. However, despite well heads up the Nursing Home Litigation their investigations, but investors nonethe- widespread support of the ban by a Team; other members of the team cur- less reached settlements with three number of states and consumer rights rently are Susan Anderson and Leah groups of Defendants they claimed were advocates, the White House Office of Man- Robbins. Handling nursing home litigation involved in the alleged wrongdoing. The agement and Budget (OMB), is currently requires lawyers and support staff to have investors in October reached a $146.9 reviewing a final rule that will specific experience in this type case. million deal resolving allegations against a reverse the ban. If you have suffered serious injury, a group of Defendants, including Goldman In their comments to the Centers for loved one has been catastrophically Sachs Group Inc., that owned significant Medicare and Medicaid Services, the attor- injured or died, or you have any questions stakes in Cobalt; a $22.75 million settle- neys general of 16 states and the District about nursing home abuse and neglect, ment in November with investment banks, of Columbia stated that forced arbitration contact one of the team members at 800- including Morgan Stanley & Co. LLC, that is unfair to seniors and their families and 898-2034 or by email at Chris.Boutwell@ underwrote stock and note offerings for it limits residents’ basic right of access to beasleyallen.com, Susan.Anderson@beas- Cobalt; and a $4.2 million settlement with justice. The attorneys general also stated: leyallen.com or Leah.Robbins@beasley- Cobalt and its debtor affiliates. allen.com. The three settlement agreements were Pre-dispute binding arbitration approved by Judge Atlas along with the fee agreements in general can be proce- request. This appears to be a good result durally unfair to consumers and especially considering Cobalt’s can jeopardize one of the funda- XX. bankruptcy. mental rights of Americans; the An Update On The class is represented by Bernstein right to be heard and seek judicial Class Action Litowitz Berger & Grossmann LLP, Entwis- redress for our claims. This is espe- tle & Cappucci LLP and Ajamie LLP. The cially true when consumers are Litigation Cobalt Defendants were represented by making the difficult decisions Baker Botts LLP and Greenberg Traurig regarding the long-term care of LLP. The case is In re: Cobalt Interna- loved ones. These contractual provi- $173.8 Million In Settlements Approved In tional Energy Inc. Securities Litigation, sions may be neither voluntary nor Cobalt Energy Bribery Claims (case number 4:14-cv-03428), in the U.S. readily understandable for most District Court for the Southern Dis- consumers. U.S. District Court Judge Nancy Atlas, a trict of Texas. Texas federal judge, has approved $173.8 Apparently, widespread support for the Source: Law360.com million in settlements of investor class ban will not deter the OMB from moving action claims stemming from bribery alle- forward. According to the OMB, the new gations against now-bankrupt Cobalt rule provides stronger requirements con- Security Co. To Pay $130 Million To Settle International Energy Inc. In addition, cerning arbitration agreement transpar- Guards’ Meal Break Suit $43.45 million in fees for co-class leads ency. Unfortunately, once the ban is Bernstein Litowitz Berger & Grossmann, reversed, nursing home operators will be Security services provider G4S Secure Entwistle & Cappucci and others were allowed to once again impose pre-dispute Solutions will pay up to $130 million to approved. Judge Atlas said the request for arbitration contracts on their residents end a long-running class action in Califor- 25 percent of the settlement funds plus and thus deny them their constitutional nia state court alleging that it stiffed thou- just under $2 million in expenses was rea- right to a trial by jury as guaranteed by the sands of security officers on meal breaks sonable, considering the work they put 7th Amendment. Residents who are ignored and rest periods, the workers’ lawyers said into the case and the outcome they by negligent or other wrongful acts com- Monday. The settlement, which was achieved for the Plaintiffs. “Plaintiffs’ mitted by the facilities will be adversely reached following mediation, would put counsel conducted the litigation and affected if the ban is reversed. an end to nearly 15 years of litigation in achieved the settlements with skill, perse- which about 14,000 private security offi- Source: McKnights.com; The Hill verance and diligent advocacy,” she said. cers accused their onetime employer G4S The suit, filed in 2014, claimed a class of Secure Solutions (USA) Inc. of violating investors lost “billions of dollars” because California labor law when it didn’t provide The Beasley Allen Nursing Home Cobalt failed to disclose that it allegedly them with off-duty meal and rest breaks Litigation Team bribed Angolan officials to gain access to and didn’t give them proper wage local oil wells in violation of the Foreign Lawyers in our firm continue to fight to statements. Corrupt Practices Act and federal securi- protect the safety and well-being of The settlement, which the workers’ ties laws. Shares of the company declined nursing home residents in facilities around lawyers say is the largest California meal when it revealed information about inves- the country. Our nursing home lawyers and rest period class action settlement tigations by the U.S. Securities and ever, covers business practices that were

26 BeasleyAllen.com in place from January 2001 until Dec. 1, agreement is based on the mediator’s rec- over a 2016 payment card data breach. 2010, according to the Plaintiffs’ state- ommendations. The motion states: The financial institutions are led by First ment. The settlement must be approved Choice Federal Credit Union. The settle- by a Los Angeles Superior Court judge. Using a standard multi-trader ment resulted from a series of mediation A memorandum of understanding model to calculate aggregate sessions starting in May 2017 and running between the parties was signed, but no damages, losses here were estimated through November of last year. settlement documents were made public. up to $147 million by plaintiffs’ The settlement covers any financial The settlement follows previous settle- damages consultant. The $11.9 institution or other entity in the U.S. that ments of similar class actions in 2015 and million settlement, therefore, repre- issued payment cards that were flagged by 2017. Those agreements were resolved for sents a recovery of 8 percent, which Visa, MasterCard, Discover, American an aggregate total of $7.6 million. is above the median percentage of Express or JCB as being at risk due to The instant suit, which is part of recoveries in securities class action the 2016 data breach. That could cover broader litigation against G4S, was initially settlements. nearly 18 million cards, according to the filed in 2005 by named Plaintiff Nividia The settlement would bring an end to Plaintiffs. Lubin and other former security officers of the five-year-old suit, which was originally The projection is that if claims are sub- the Wackenhut Corp., which rebranded filed in January 2014 by investor Bradley mitted for all flagged cards, the payout itself as G4S Secure Solutions (USA) Inc. in Cooper. The district court dismissed the would be around $2 per claim; whereas, if 2010. The case eventually went to a Cali- case in November 2015, but the Ninth only 40 percent of eligible claims are sub- fornia state appellate court. A three-judge Circuit brought it back to life in October mitted, the payout would be closer to panel for the Second Appellate District 2017, finding that the shareholders had $4.80 for each claim. Members of the class ruled in 2016 that the Los Angeles judge sufficient grounds for claiming the would have 180 days from the notice dead- improperly granted a request by G4S to company misled them by hiding the line to submit a claim. Wendy’s said in a decertify the class following the U.S. device’s rising thrombosis rates. In May, statement that it expects to pay about Supreme Court’s 2011 decision in its land- U.S. District Judge Claudia Wilken certi- $27.5 million of the $50 million settlement mark Wal-Mart Stores Inc. v. Dukes case. fied the class of investors who purchased total out of its own pocket after exhaust- In Dukes, the high court decertified a Thoratec stock between May 2011 and ing its insurance coverage. class of 1.5 million female Walmart August 2014. She also appointed investor In addition to contributing to the $50 employees in a decision that was per- Todd Labak as lead Plaintiff and Pomer- million fund, Wendy’s has promised to ceived by many as raising the bar for Plain- antz LLP as lead counsel, according to take additional measures to protect cus- tiffs bringing classwide employment the filing. tomers’ payment data, including re-evalu- claims. In addition to the damages agreed upon, ating its information security protocols The class is represented by Jason Marsili the motion said Pomerantz will request 25 and setting high standards for franchise of Rosen Marsili Rapp LLP and Emily Rich percent of the settlement amount in attor- owners, as well as ensuring franchises of Weinberg Roger & Rosenfeld. The case neys’ fees as well as reimbursement of liti- have access to quality information secu- is Wackenhut Wage and Hour Cases, gation expenses up to $500,000. The rity services. Those measures are sup- (case number JCCP 4545) in Los Angeles investors also requested the appointment posed to last for two years under the Superior Court. of a settlement administrator to process settlement terms of the agreement. The Source: Law360.com claims and determine how much each financial institutions initially filed the suit class member who submits a claim will in April 2016, claiming Wendy’s owed receive from the net settlement fund. them for the expenses they incurred after Thoratec Reaches $11.9 Million Settlement They said between 20 percent and 25 being forced to reimburse customers for With Investors In Heart Device Lawsuit percent of the class is expected to fraudulent transactions that followed the file a claim. theft of payment card information for five Thoratec Corp. shareholders have asked The class is represented by Patrick V. months ending in March 2016. a California federal judge to give initial Dahlstrom, Leigh H. Smollar and Omar According to the suit, hackers were able approval to an $11.9 million settlement Jafri of Pomerantz LLP. The case is Cooper to install malware that allowed access to with the medical equipment company that v. Thoratec Corporation et al., (case credit and debit card information col- would resolve class action claims that Tho- number 4:14-cv-00360) in the U.S. District lected from customers who made pur- ratec hid risks related to its implantable Court for the Northern District of chases at the fast-food chain. Customers heart devices. The investors had accused California. began complaining of unauthorized trans- Thoratec of making misleading statements actions on their cards in January 2016, Source: Law360.com regarding the rates of fatal pump thrombo- according to the complaint, and the infor- sis in patients using its HeartMate II Left mation may have been used in connection Ventricular Assist Device. The investors with millions of purchases. The Wendy’s Co. Settles Hacked Payment said that caused the company’s stock to be The complaint accused Wendy’s of Data Claims traded at artificially high prices. failing to keep pace with security mea- According to the motion for preliminary The Wendy’s Co. has promised to pay sures adopted by retailers and restaurants approval, the settlement was reached fol- out $50 million to settle a proposed class in recent years to protect against data lowing extensive mediation efforts in the action brought by a group of financial theft, including the use of so-called EMV revived class action, and the resulting institutions in a Pennsylvania federal court chips that create unique codes for each transaction that cannot be used again in

JereBeasleyReport.com 27 the event the electronic transaction data cles that purportedly provide evidence of the payday lender rule as her first major is stolen. that the numerous CBS executives named policy act. The Plaintiffs are represented by Gary F. in the suit knew about and concealed the Lynch of Carlson Lynch Sweet Kilpela & growing sexual harassment scandal from Cuts to the heart of the rule Carpenter LLP and Erin Green Comite of shareholders. The proposal would slash the rule’s Scott & Scott Attorneys at Law LLP. The Named Plaintiffs Gene Samit and John requirement that payday lenders under- case is First Choice Federal Credit Union Lantz, both CBS investors, had filed sepa- write most of their loans—the heart of the v. The Wendy’s Co. et al., (case number rate suits last year alleging CBS and top rule established to protect consumers fol- 2:16-cv-00506) in the U.S. District Court executives misrepresented compliance lowing the financial crisis of 2008. The for the Western District of Pennsylvania. with internal anti-harassment policies, provision requires payday lenders to take Source: Law360.com inflating the stock price and causing inves- certain steps and verify borrowers can tors to lose money when it tanked after a pay back the loans in a timely manner and wave of allegations linked to the #MeToo still cover their basic living expenses CBS Bosses Sold $200 Million In Stock As movement. based on their income and existing debts. Sexual Abuse Claims Hit The Company Those accusations hit Moonves as well The rule was designed to keep consumers as other prominent figures associated from becoming trapped in a cycle of debt. Several executives at CBS Corp., includ- with the broadcaster, like news host For example, while the loans are short- ing former CEO Leslie Moonves, sold more Charlie Rose. The Samit and Lantz cases term and typically small, usually between than $200 million of company stock were consolidated in November. The $350-$500, the potential annual interest before its price began to drop sharply investors were initially given until late rates (APR) can amount to between 300 amid reports of widespread workplace December to file an amended complaint, and 400 percent. Therefore, a loan for sexual harassment, investors alleged in a but the court granted them two exten- $500 with a nearly 400 percent APR can consolidated class action filed in a New sions, ultimately pushing the deadline require the borrower to repay the full York federal court. Moonves was impli- to Feb. 11. amount plus an additional $75 two weeks cated in the reports. The amended com- Samit and Lantz are suing on behalf of from the date of the loan. The agency’s plaint, like the initial ones, alleges themselves and anyone else who bought own research shows that “[h]alf of all violations of the Securities and Exchange CBS stock between September 2016 and loans are in a sequence at least 10 loans Act for the purported misrepresentations Dec. 4, 2018. They are alleging a violation long.” The high cost of the loans forces CBS and its executives made about their of the anti-fraud provisions of the Securi- borrowers into a debt cycle that is very efforts to stop sexual harassment at the ties and Exchange Act as well as the provi- difficult to break. broadcaster. The new complaint contains sions that prohibit aiding in violations Director Kraninger’s proposal would claims that certain executives dumped of the law. also give the payday lending industry company stock because they knew about The case is Samit v. CBS Corporation et more time to fight the remaining rule by the effect the looming reports could have al., (case number 1:18-cv-07796) in the extending the compliance deadline from on its value. U.S. District Court for the Southern Dis- August 2019 to November 2020. Moonves, along with chief operating trict of New York. 90-day public comment period officer Joseph Ianniello, chief accounting Source: Law360.com officer Lawrence Liding and communica- The agency will accept public com- tions head Gil Schwartz – who left the ments for up to 90 days after the proposal company in September and isn’t named as is published. Comments should include a Defendant in the amended complaint – XXI. the agency name and docket number “collectively sold over 3.4 million shares of THE CONSUMER (CFPB2019-0006) or Regulatory Informa- CBS stock during the class period, totaling tion Number (RIN 3170-AA80) for this over $200 million in proceeds, to the CORNER rulemaking. unsuspecting investing public, thereby Comments can be submitted in the fol- profiting from their failure to disclose the lowing ways: truth to the market,” according to the suit. Federal Financial Watchdog Agency Proposes Gutting Payday Lender Rule • Electronic Specifically, the suit alleges Moonves Visit https://www.regulations.gov and sold more than $155 million worth of CBS I was not surprised to learn that the follow the instructions for submitting stock in 2017 and early 2018 as it became Consumer Financial Protection Bureau comments. apparent his purported sexual misconduct (CFPB) had sided with the industry over in the workplace would come to light, the people it is charged with protecting. • Email which it eventually did in a series of media In what can only be described as a Send comments to 2019-NPRM-Payday- reports that began in the summer of handout to the predatory lending industry [email protected] and include last year. by the federal watchdog agency charged Docket No. CFPB2019-0006 or RIN The suit also alleges that Ianniello sold with overseeing it, consumers have lost 3170-AA80 in the subject line of more than $28 million worth of stock, even more important protections. The the message. while Schwartz sold more than $15 new director of the CFPB and Trump million and Liding more than $2 million • Mail/Hand Delivery/Courier com- Administration appointee, Kathy Kran- during a similar time period. The com- ments to: inger, proposed rescinding key provisions plaint references a number of news arti-

28 BeasleyAllen.com Comment Intake, Bureau of Consumer CMS Proposes Rule Requiring Price practices that cost the states millions in Financial Protection Disclosures In Television Advertisements taxpayer dollars. 1700 G Street NW For Prescription Drugs Beasley Allen lawyers welcome the Washington, DC 20552 opportunity to investigate potential phar- The Centers for Medicare and Medicaid maceutical fraud litigation of which you Services (CMS) recently announced its may be aware. If you have any questions proposed rule to provide transparency Agency in turmoil about our firm’s pharmaceutical fraud into the prices of prescription drugs set by practice, contact Ali Hawthorne, a lawyer The proposal is yet another reversal of drug makers. The underlying purpose of in the Section, at 800-898-2034 or by the agency’s own policy. In 2017, with the CMS’s proposed rule is twofold: to give email at Alison.Hawthorne@beasleyallen. help of the U.S. Congress, it began yielding consumers the ability to make informed com. Ali has been heavily involved in this to the predatory lending industry’s heavy decisions based on drug costs, while also type of litigation. lobbying efforts to resist increased over- providing a moderating force to counter- Source: Centers for Medicare and Medicaid Services sight and regulation. The U.S. House of act increases in drug prices. Representatives voted to strike the rule’s The proposed rule applies to direct-to- consumer television advertisements and is provision for class action lawsuits against Scald Burns The Focus Of National Burn relatively straightforward. It would financial companies and the Senate fol- Awareness Week lowed suit shortly thereafter. The provi- require prescription drug makers to dis- sion would have restored the right of close the drug’s list price, known as the Every minute in the United States one American consumers to band together in Wholesale Acquisition Cost (WAC), in all person suffers scald burns or another type class-action lawsuits against financial insti- advertisements on TV (including cable, of burn injury serious enough to require tutions for wrongdoing such as actions broadcast, satellite or streaming) for any hospitalization. That means today, nearly that led to the 2008 financial crisis. drug that is paid for by Medicare or Medic- half a million people who are relatively In addition to trying to weaken its own aid. The disclosure of the list price must healthy will sustain a serious burn injury mandate, the CFPB’s recent leadership be in the form of a legible textual state- before the end of the year. That is a instability has also caused concern for ment at the end of the ad with a duration number that should get our attention. consumer advocates. After its first perma- that allows it to be read easily by the Because many of these burn injuries are nent director, Richard Cordray, resigned TV viewer. preventable, the American Burn Associa- last November, he recommended his “This historic proposal is an important tion designated the first full week in Feb- deputy director to be his replacement. way to create new incentives for drug ruary (Feb. 3-9) as National Burn However, a squabble with President companies to start lowering their list Awareness Week, with a special emphasis Donald Trump over who should lead the prices, rather than raising them,” said U.S. being put on scald burns. Calling attention agency resulted in the appointment of Department of Health and Human Ser- to burn injury risks and taking the proper Office of Management and Budget (OMB) vices (HHS) Secretary Alex Azar. Under preventative measures can spare thou- director Mick Mulvaney despite internal the proposed rule, the HHS Secretary sands of people from burns, which can resistance from agency staffers. would maintain a public list of drugs that cause excruciating pain and lead to life- Consumer advocates questioned Mul- were advertised in violation of this rule. long disabilities, disfigurement and vaney’s appointment because of his link to CMS, however, would provide an excep- even death. the payday lending industry, which tion to the requirement to post prices for Children younger than 16 years old donated tens of thousands of dollars in prescription drugs when the list price is account for more than a quarter of all political contributions to Mulvaney while less than $35 per month for a 30-day people admitted to U.S. hospitals every he was serving as a Congressman from supply or typical course of treatment. year for burn treatments. There are two South Carolina. Mulvaney held the posi- Since the release of the proposed rule, reasons why the rate of pediatric burn tion until the Senate confirmed Kran- CMS has been accepting comments on injuries is so high. inger’s appointment. Kraninger worked whether the regulation should apply to for Mulvaney at the OMB as an associate advertisements in other media forms such • First, children are more accident prone director for general government. as radio, magazines, newspapers, web- than most adults. Most pediatric burn The rule was the outcome of a five-year sites, and social networking sites. Such a injuries are caused by scald burns— process that began in 2012 to nationalize proposed rule has the potential effect of exposure to hot liquids or steam, and stronger regulations for the payday future litigation against prescription drug most scald burn injuries occur in the lending industry. Until the CFPB efforts, makers for false or misleading statements home, in connection with the prepara- the industry was regulated primarily at in the form of advertising if they fail to tion and serving of hot food and bever- the state level with 20 states outlawing the obey the price disclosure rule. ages. Children pulling pots of boiling industry altogether. Lawyers in Beasley Allen’s Consumer liquid from the stove or getting hold of other containers of hot liquid on tables Sources: New York Times, Washington Post, Fraud & Commercial Litigation Section Consumer Financial Protection Bureau and Chicago handle a variety of pharmaceutical pricing and counters are some of the most Tribune cases, having represented at least nine common ways scald burns occur. states through the office of their attorneys • Second, children have thinner skin that general in numerous lawsuits involving burns faster and at lower temperatures fraudulent, unfair and deceptive pricing than most adults. A cup of coffee, tea, or

JereBeasleyReport.com 29 hot chocolate, for example, is usually cisco-based startup now controls more e-cigarette vapor, several of which are served between 160-180 degrees— than three-quarters of the U.S. e-ciga- known carcinogens. enough to give a child a full thickness rette market. JUUL pods contain a greater amount of burn instantaneously when spilled. An However, JUUL acquired this lion’s benzoic acid, 44.8 mg/mL, compared to adult, on the other hand, is much less share not by converting adult smokers, but other e-cigarette brands, which are in the likely to suffer a severe burn from the by creating a new generation of nicotine range of 0.2 to 2 mg/mL. According to the same spill if the liquid is immediately addicts through shrewd and aggressive Centers for Disease Control and Preven- removed from the skin. social media campaigns, a clever and tion (CDC), benzoic acid is known to easily disguisable product design, and cause coughs, sore throat, abdominal As with young children, older adults are other business strategies that targeted U.S. pain, nausea, and vomiting if exposure is more susceptible to burn injuries for the teens and children. The liquid inside JUUL constant, which is the case when using a same reasons as young children. As people cartridges contains glycerol, propylene JUUL. This is due to how JUUL utilizes the age, their skin thins, making it prone to glycol, flavoring, benzoic acid, and 40 mil- properties of benzoic acid to increase the burn quicker and at lower temperatures. ligrams of nicotine. potency of the nicotine salts in its e-liquid. The ability to feel heat may also diminish Medical professionals are very con- JUUL devices have two components: due to medical conditions or medications, cerned because JUUL delivers higher con- the e-cigarette unit, which holds a so they may not realize that water is too centrations of nicotine than other rechargeable battery and vaporizer, and hot until a burn injury has occurred. e-cigarettes. According to a study pub- the “pod,” a small disposable cartridge Older adults may also have conditions lished in The Lancet, the e-liquid in JUUL that contains the e-juice or “pod juice.” that make them more susceptible to acci- is 5 percent nicotine by volume, which is However, the novelty of the JUUL is in dents—particularly to falls in the bathtub more than twice the concentration of nic- its design. or shower or while carrying hot liquids. otine in similar devices like the Blu e-cig Company engineers fashioned this new According to the American Burn Associa- cartridge (2.4 percent nicotine). This line of e-cigarettes to look like a USB flash tion, the most common regulatory stan- increases the risk of addiction; in fact, a drive. JUULs can also be recharged by dard for the maximum temperature of study done by the UK’s Royal College of plugging them into a USB port on a com- water delivered by residential water Psychiatrists showed that nicotine is about puter, just as you would a flash drive. heaters is 120 degrees F (48 degrees C). At as addictive as cocaine and even more JUUL’s resemblance to a USB flash drive this temperature, adult skin will suffer a addictive than alcohol and barbiturates allows high school and even middle full thickness burn after about five (anti-anxiety drugs). Not only is nicotine school students to hide their e-cigarettes minutes of exposure. highly addictive, but numerous scientific in plain sight. When the temperature of a hot liquid is studies show it is also toxic to fetuses and Adult smokers who start vaping as a way increased to 140 F/60 C it takes just five is known to impair brain and lung devel- to quit smoking would conceivably want a seconds or less for a serious scald burn to opment if used during adolescence. device that mimics the look, feel, and even occur. At temperatures of 155 F/68 C, it Nicotine also interacts with any cancer the flavor of a conventional tobacco ciga- takes a second or less of exposure for cells present in the body in a way that rette. But JUUL designed a device with people of any age to suffer a severe makes cancers worse, according to none of those qualities, possibly because it burn injury. Stanton Glantz, PhD, Director of the UCSF wanted to create unique and special Medical data indicate that the U.S. has a Center for Tobacco Control and Education. appeal among U.S. youth. If that was the long way to go in raising awareness of Nicotine also stimulates the nervous plan, it worked out extremely scald burns, which are the focus of this system and cardiovascular system, which well for JUUL. year’s National Burn Awareness Week. leads to heart disease. Youngsters who use JUUL devices are available in a variety From 2007 through 2017, the proportion nicotine have more asthma and more days of colors and can be covered with custom of U.S. burn center admissions has contin- off school. There is also evidence linking skins that feature school colors and ued to increase each year, from 29.8 e-cigarettes with chronic pulmonary mascots, artwork, photos of animals, car- percent to 34.7 percent. obstructive disease and other perma- toons, and even religious figures, to nent damage. name a few. While other brands use a chemically JUUL and other vape companies sell JUUL E-Cigarettes: A Rising Cause modified form called “freebase nicotine,” JUUL pods in a variety of fruit, candy, and For Concern JUULs use “nicotine salts” that more other sweet flavors that appeal to children closely resemble the natural structure of and teens. Fruit Loops, Strawberry Milk, JUUL e-cigarettes splashed onto the nicotine found in tobacco leaves. This Pumpkin Donut, Pancake Syrup, and market in 2015 with the stated mission of makes the nicotine more readily absorbed Bubble Gum are some of the hundreds of “improving the lives of the one billion into the bloodstream and makes the vapor pod juice flavors available for JUULs. adult smokers” on the planet. JUUL less harsh so that it is easier to inhale more Critics often point to these “fun” flavors as claimed its primary mission was to help nicotine for longer periods of time. evidence that JUUL never really intended those already smoking traditional ciga- Dr. Glantz told CNBC that although to target adults as its main consumer base. rettes and tobacco products to quit JUUL and other e-cigarettes “don’t have a A team of Stanford University research- smoking. Less than two years later, this lot of the bad things in tobacco, they have ers that study the impact of tobacco adver- latecomer to the already burgeoning e-cig- other bad things in them.” In addition to tising conducted a comprehensive analysis arette market had grown to become a the five main e-liquid ingredients, 42 addi- of the marketing techniques JUUL used $5-billion vaping empire. The San Fran- tional chemicals have been identified in right out of the gate all the way through

30 BeasleyAllen.com 2018. They concluded that JUUL’s market- CPSC Is Shifting Toward Voluntary recalls that should have been included in ing “was patently youth-oriented,” espe- Standards this issue. cially in the first six months and becoming more “muted” but still effective in youth It appears that the U.S. Consumer markets thereafter. Product Safety Commission (CPSC) is Automobile Recalls JUUL aggressively exploited social moving into dangerous territory and that media channels—Facebook, Instagram is because of a move toward voluntary Ford Motor Co. (Ford) is recalling nearly and Twitter—where U.S. school children standards. The Commission’s direction 1.5 million pickup trucks in North and teens spend much of their time, to and operations seem to be changing in a America because the transmissions can push its vaping products. The company manner that won’t be good for American suddenly downshift into first gear. The paid social media influencers—accounts consumers. recall covers F-150 trucks from the 2011 with large followings—to promote JUULs. Currently, Ann Marie Buerkle serves as through 2013 model years with six-speed It also created scores of JUUL-related acting chair of the CPSC. The tone and automatic transmissions. Officials with the hashtags that were included on images regulatory priorities at the CPSC appear to company say a glitch in sending a signal and videos of young people hanging out, be shifting to show a preference for volun- from the transmission speed sensor is the having fun, and vaping. tary standards and collaboration over man- cause. Ford has five reports of accidents, The impact JUUL has had on U.S. public datory rule-making and exacting higher including one that caused a whiplash health is staggering. Recent studies have civil penalties. Many observers expect injury from a sudden downshift. Owners found that e-cigarette use among high these trends to continue since there is will be notified by letter starting March 4. school students doubled between 2017 now a Republican majority on the CPSC. Dealers will update the powertrain and 2018—the highest increase in This will be the first full year of the control software to fix the problem. Ford’s smoking, drinking, and drug use ever CPSC under Republican leadership in over F-Series pickup is the top-selling vehicle in recorded in the U.S. The surge in vaping a decade. The leadership change will the United States. among U.S. middle and high school stu- likely mean a renewed focus on voluntary Ford Motor Company (Ford) is recalling dents correlates directly with JUUL’s standards, collaboration with stakeholders certain 2011-2013 F-150 vehicles equipped appearance on the market and its savvy and consumer education. It may also with a 6-speed automatic transmission. youth-oriented marketing campaigns. The address potential product safety questions The transmission may unexpectedly FDA says the rate of juuling and e-cigarette on the back burner. The CPSC should downshift into first gear, regardless of use among U.S. youth has become a make safety and the welfare and interest vehicle speed. Unexpectedly downshift- national epidemic, reversing decades of of consumers a very high priority. Unfor- ing into first gear may result in a loss of progress in preventing teen smoking. tunately, that priority may be in jeopardy. vehicle control, increasing the risk Smoking among U.S. high school stu- Beasley Allen lawyers in the firm’s Con- of a crash. dents has dropped to a record low of 8 sumer Fraud & Commercial litigation Section will monitor how these changes at percent, but vaping has more than filled Kia Motors America (Kia) is recalling the CPSC work out and hope for the best. that void, creating the largest generation certain 2011-2017 Optima, 2012-2017 All indications, however, based on the of nicotine addicts since the early 1960s. Sorento and 2011-2018 Sportage vehicles new make-up of the Commission, appear The total number of middle and high that previously received an engine replace- to be potentially bad news for consumers. school students using e-cigarettes in 2018 ment under recall number 17V-224, war- We will follow up on this subject in future rose to 3.6 million—an increase of 1.5 ranty, or the Knock Sensor Detection issues of this Report. million students vaping compared to pre- System (KSDS) Product Improvement vious year. Campaign. The high-pressure fuel pipe Dr. Gottlieb said that JUUL and the that connects to the fuel pump outlet may e-cigarette industry at large could face XXII. have been damaged, misaligned or harsh regulatory actions amounting to “an improperly torqued during the engine existential threat” if 2019 data shows that RECALLS UPDATE replacement procedure, possibly causing a youth vaping continues to rise. fuel leak. A fuel leak in the presence of an For more information on this subject, We are again reporting a large number ignition source can increase the risk contact Melissa Prickett, Will Sutton or of safety-related recalls in this issue. We of a fire. Matt Munson, lawyers in our firm, at 800- have included some of the more signifi- Nissan North America, Inc. (Nissan) is 898-2034, or by email at Melissa.Prickett@ cant recalls that were issued. A number of recalling certain 2015-2017 Altima vehi- beasleyallen.com, William.Sutton@beas- recalls were missed in December and cles, previously remedied under recall leyallen.com or Matt.Munson@beas- January because of the government’s shut- number 17V-040. The door latch-lock leyallen.com. down. We have included some of those cable may not have been routed properly Source: FDA, American Academy of Family that were missed, as well as other recalls Physicians, Gaspforair.com, CNBC, Rightingjustice. in the rear door when the remedy was in February. If more information is needed com, Mashable.com, JUUL Marketing (Stanford), applied. As a result, the cable may inter- on any of the recalls, readers are encour- Stanford University, Vox.com, National Institutes of fere with the window regulator causing Health and Thelancet.com aged to contact Shanna Malone, the Execu- the rear passenger door to unlatch and tive Editor of the Report. We would also inadvertently open without warning when like to know if we have missed any safety the window is lowered. If the rear passen- ger door opens while the vehicle is

JereBeasleyReport.com 31 moving, the rear passengers have an explode due to propellant degradation Subaru of America, Inc. (Subaru) is increased risk of injury. occurring after long-term exposure to recalling certain 2010-2014 Tribeca, WRX, absolute humidity and temperature Legacy and Outback vehicles, 2010-2011 Nissan of North America, Inc (Nissan) cycling. An inflator explosion may result Impreza vehicles and 2010-2013 Forester is recalling certain 2009 Murano vehicles. in sharp metal fragments striking the vehicles sold, or ever registered, in the The valves within the ABS Hydraulic driver or other occupants resulting in states of Alaska, Colorado, Connecticut, Control Units (HCU) may react with brake serious injury or death. Idaho, Iowa, Maine, Massachusetts, Michi- fluids containing specific corrosion pre- gan, Minnesota, Montana, New Hamp- ventative additives. This reaction may Subaru of America, Inc. (Subaru) is shire, New York, North Dakota, Oregon, cause the valves to not close properly. If recalling certain 2010-2013 Forester, 2010- Rhode Island, South Dakota, Utah, the valves do not properly close, addi- 2014 Tribeca, WRX, Outback, Legacy, and Vermont, Washington, Wisconsin, and tional brake pedal travel may be required 2010-2011 Impreza vehicles sold, or ever Wyoming. These vehicles are equipped to stop the vehicle, increasing the risk registered, in the states of Alabama, Cali- with certain air bag inflators assembled as of a crash. fornia, Florida, Georgia, Hawaii, Louisi- part of the passenger frontal air bag ana, Mississippi, South Carolina, Texas, modules used as original equipment or Hyundai Motor America (Hyundai) is Puerto Rico, American Samoa, Guam, the recalling certain 2011-2014 Sonata and replacement equipment. In the event of a Northern Mariana Islands (Saipan), and crash necessitating deployment of the pas- 2013-2014 Santa Fe Sport vehicles previ- the U.S. Virgin Islands. These vehicles are ously repaired under recall numbers senger frontal air bag, these inflators may equipped with certain air bag inflators explode due to propellant degradation 15V-568 and 17V-226. The high-pressure assembled as part of the passenger frontal fuel pipe that connects to the fuel pump occurring after long-term exposure to air bag modules used as original equip- absolute humidity and temperature outlet may have been damaged, mis- ment or replacement equipment. In the aligned, or improperly torqued during the cycling. An explosion of an inflator within event of a crash necessitating deployment the passenger frontal air bag module may engine replacement procedure, allowing of the passenger frontal air bag, these fuel to leak from the pipe. A fuel leak in result in sharp metal fragments striking inflators may explode due to propellant the front seat passenger, driver or other the presence of an ignition source can degradation occurring after long-term increase the risk of a fire. occupants resulting in serious exposure to absolute humidity and tem- injury or death. Daimler Vans USA, LLC (DVUSA) is perature cycling. An explosion of an infla- recalling certain 2015-2017 Freightliner tor within the passenger frontal air bag Mercedes-Benz USA, LLC (MBUSA) is Sprinter 2500 and 3500 and Mercedes- module may result in sharp metal frag- recalling certain 2014 C250, C300 4Matic, Benz Sprinter 2500 and 3500 vehicles. ments striking the front seat passenger, C350, C63 AMG, E350 4Matic Coupe, E350 These vehicles are equipped with certain driver or other occupants resulting in Cabrio, E350 Coupe, SLS AMG Cabrio, SLS air bag inflators assembled as part of the serious injury or death. AMG Coupe, 2014-2015 C250 Coupe, C350 driver frontal air bag modules used as orig- 4Matic Coupe, C350 Coupe, C63 AMG Subaru of America, Inc. (Subaru) is Coupe, GLK 350, GLK250 BlueTec 4Matic, inal equipment or replacement equip- recalling certain 2010-2014 Tribeca, WRX, ment. In the event of a crash necessitating GLK350 RWD, 2015-2017 E400 4Matic Outback, and Legacy vehicles, 2010-2011 Coupe, E400 Cabrio, E400 Coupe, 2014- deployment of the driver frontal air bag, Impreza vehicles and 2010-2013 Forester these inflators may explode due to propel- 2017 E550 Cabrio, and 2014-2016 E550 vehicles sold, or ever registered, in the Coupe vehicles sold, or ever registered, in lant degradation occurring after long-term states of Arizona, Arkansas, Delaware, Dis- exposure to absolute humidity and tem- the states of Alabama, California, Florida, trict of Columbia, Illinois, Indiana, Kansas, Georgia, Hawaii, Louisiana, Mississippi, perature cycling. An inflator explosion Kentucky, Maryland, Missouri, Nebraska, may result in sharp metal fragments strik- South Carolina, Texas, Puerto Rico, Ameri- Nevada, New Jersey, New Mexico, North can Samoa, Guam, the Northern Mariana ing the driver or other occupants resulting Carolina, Ohio, Oklahoma, Pennsylvania, in serious injury or death. Islands (Saipan), and the U.S. Virgin Tennessee, Virginia, and West Virginia. Islands or “Zone A.” Additionally, MBUSA Ferrari North America (Ferrari) is These vehicles are equipped with certain is recalling certain 2012-2014 C250, E350 recalling certain 2014 Ferrari California, air bag inflators assembled as part of the 4Matic Coupe, SLS AMG Cabrio, 2012-2015 2014-2015 Ferrari 458 Italia, 458 Spider, passenger frontal air bag modules used as C250 Coupe, C350 4Matic Coupe, C350 2014-2016 Ferrari FF, 2014-2017 Ferrari original equipment or replacement equip- Coupe, C63 AMG Coupe, 2011 C300, 2011- F12, 2015-2018 Ferrari California T, 2015 ment. In the event of a crash necessitating 2014 C300 4Matic, C350, C63 AMG, E350 Ferrari 458 Speciale A, 2016 Ferrari F60 deployment of the passenger frontal air Cabrio, E350 Coupe, SLS AMG Coupe, America, 2016-2017 Ferrari F12 tdf, 2016- bag, these inflators may explode due to 2015-2016 E400 4Matic Coupe, E400 2018 Ferrari 488 GTB, 488 Spider, and propellant degradation occurring after Cabrio, E400 Coupe, 2011-2016 E550 2017-2018 Ferrari GTC4Lusso vehicles long-term exposure to absolute humidity Cabrio, E550 Coupe, 2011-2015 GLK350 nationwide. These vehicles are equipped and temperature cycling. An explosion of 4Matic, GLK350 RWD, and 2013-2015 with certain air bag inflators assembled as an inflator within the passenger frontal air GLK250 BlueTec 4Matic vehicles ever reg- part of the passenger frontal air bag bag module may result in sharp metal frag- istered in the states of Arizona, Arkansas, modules used as original equipment or ments striking the front seat passenger, Delaware, District of Columbia, Illinois, replacement equipment. In the event of a driver or other occupants resulting in Indiana, Kansas, Kentucky, Maryland, Mis- crash necessitating deployment of the pas- serious injury or death. souri, Nebraska, Nevada, New Jersey, New senger frontal air bag, these inflators may Mexico, North Carolina, Ohio, Oklahoma,

32 BeasleyAllen.com Pennsylvania, Tennessee, Virginia, and other occupants resulting in serious adhere to the internal components of the West Virginia or “Zone B.” MBUSA is also injury or death. fuel pump, reducing its performance. recalling certain 2012-2014 C250, E350 Reduced fuel pump performance can 4Matic Coupe, SLS AMG Cabrio 2012-2015 BMW of North America, LLC (BMW) is result in an engine stall, increasing the C250 Coupe, C350 4Matic Coupe, C350 recalling certain 2015 X1 sDrive28i, X1 risk of crash. Coupe, C63 AMG Coupe, 2010-2011 C300, xDrive28i, and X1 xDrive35i vehicles. 2010-2014 C300 4Matic, C350, C63 AMG, These vehicles are equipped with air bag Chrysler (FCA US LLC) is recalling E350 Coupe, 2011-2014 E350 Cabrio, SLS inflators assembled as part of the driver certain 2013-2017 Ram 3500 and 2014- AMG Coupe, 2015-2016 E400 4Matic frontal air bag modules, used as original 2017 Ram 3500 Chassis Cab and Ram 2500 Coupe, E400 Cabrio, E400 Coupe, 2016- equipment or replacement equipment, vehicles. The outboard steering linkage 2017 E550 Cabrio, 2010-2016 E550 Coupe, that may explode due to propellant degra- jam nut may loosen, allowing one end of 2010-2015 GLK350 4Matic, GLK350 RWD, dation occurring after long-term exposure the drag link to separate. A drag link sepa- and 2013-2015 GLK250 BlueTec 4Matic to high absolute humidity, temperature ration can cause a loss of steering control, vehicles ever registered in the states of and temperature cycling. An inflator increasing the risk of crash. explosion may result in sharp metal frag- Alaska, Colorado, Connecticut, Idaho, Chrysler (FCA US LLC) is recalling Iowa, Maine, Massachusetts, Michigan, ments striking the driver or other occu- pants resulting in serious injury or death. certain 2019 Ram 1500 vehicles equipped Minnesota, Montana, New Hampshire, with adjustable pedals. The affected vehi- New York, North Dakota, Oregon, Rhode BMW of North America, LLC (BMW) is cles have a brake pedal that may move too Island, South Dakota, Utah, Vermont, recalling certain 2007-2013 X5 xDrive30i, far and separate from pedal assembly. If Washington, Wisconsin, and Wyoming or X5 xDrive35i, X5 xDrive48i, X5 xDrive50i the brake pedal separates from the pedal “Zone C.” These vehicles are equipped and X5 M vehicles, 2008-2014 X6 assembly, the driver may be unable to with air bag inflators assembled as part of xDrive35i, X6 xDrive50i and X6 M vehi- brake the vehicle, increasing the the passenger frontal air bag modules that cles, 2009-2013 X5 xDrive35d vehicles and risk of crash. may explode due to propellant degrada- 2010-2011 X6 ActiveHybrid vehicles. tion occurring after long-term exposure to These vehicles are equipped with certain Rosenbauer America (Rosenbauer) is high absolute humidity, temperature and air bag inflators assembled as part of the recalling certain 2017-2018 Fire Apparatus temperature cycling. An inflator explosion passenger frontal air bag modules used as vehicles, equipped with Whelen accessory may result in sharp metal fragments strik- original equipment or replacement equip- brake lights. Depending on the specific ing the passenger or other occupants ment. In the event of a crash necessitating wiring of the vehicle, these brake lights resulting in serious injury or death. deployment of the passenger frontal air may illuminate when the brake pedal has bag, these inflators may explode due to not been pressed. As such these vehicles Volkswagen Group of America, Inc. fail to comply to with the requirements of (Volkswagen) is recalling certain 2015 propellant degradation occurring after long-term exposure to absolute humidity Federal Motor Vehicle Safety Standard Passat, 2015-2016 Eos, 2015-2017 CC, 2016- FMVSS 108, “Lamps, Reflective Devices, 2017 TT Roadster, TT Coupe, 2017 Audi R8 and temperature cycling. An inflator explosion may result in sharp metal frag- and Associated Equipment.” If the brake Coupe, and R8 Spyder vehicles. Upon lights incorrectly illuminate, it can deployment of the driver’s frontal air bag, ments striking the driver or other occu- pants resulting in serious injury or death. confuse other drivers, possibly increasing excessive internal pressure may cause the the risk of a crash. inflator to explode. In the event of a crash General Motors LLC (GM) is recalling necessitating deployment of the driver’s certain 2010-2011 Chevrolet Malibu vehi- Corp. Micro Bird Inc (Micro Bird) is frontal air bag, the inflator could explode cles. In the event of a crash necessitating recalling certain 2015-2018 Micro Bird CT with metal fragments striking the vehicle deployment of the driver frontal air bag, Series buses, equipped with Freedman occupants potentially resulting in serious the air bag inflator may explode due to GO-ES Foldaway Seats, part numbers injury or death. being overpressurized. If the inflator 43705, 45467, 48923, and 75719. When the explodes, sharp metal fragments may back seat cushion is rotated from the BMW of North America, LLC (BMW) is stowed position to the upright position, recalling certain model year 2000-2003 strike the driver or other occupants result- ing in serious injury or death. the seat cushion may not remain locked 525i Sedan, 530i Sedan, 540i Sedan, 525i into place when under load, such as in a Sports Wagon and 540i Sports Wagon vehi- Honda (American Honda Motor Co.) is crash or a sudden stop. As such, these cles, and 2000-2004 X5 SAV 3.0i, X5 SAV recalling certain 2017-2019 Ridgeline vehicles fail to comply with the require- 4.4i, and X5 SAV 4.6is vehicles. This recall trucks. Exposure to acids, such as from ments of Federal Motor Vehicle Safety affects certain vehicles where the original car wash soaps, can result in the fuel Standard (FMVSS) number 207, “Seating steering wheel has been replaced with the pump feed port cracking. A crack in the Systems,” and number 210, “Seat Belt optional sports steering wheel. The sports fuel pump feed port can allow pressurized Assembly Anchorages.” In the event of a steering wheel has a frontal air bag infla- fuel to leak out, increasing the risk crash, if the seat back moves, the seat tor that may explode due to propellant of a fire. occupant has an increased risk of injury. degradation occurring after long-term exposure to high absolute humidity, tem- Honda (American Honda Motor Co.) is Daimler Trucks North America LLC perature and temperature cycling. An recalling certain 2016-2018 Acura MDX, (DTNA) is recalling certain 2017-2019 inflator explosion may result in sharp 2015-2019 Acura TLX and 2015-2017 Thomas Built Buses Saf-T-Liner C2 school metal fragments striking the driver or Honda Accord vehicles, equipped with a buses and transit buses. The roof adhesive 3.5L V6 engine. Particulates in fuel may that supports the roof header may not

JereBeasleyReport.com 33 have been properly applied. Improperly to the engine which may result in a fuel reverse. If the reverse alarm is muted, applied adhesive may affect the roof leak. A hydraulic brake fluid leak or a fuel pedestrians may not realize the vehicle is header joint strength, which, in the event line failure can increase the risk of a fire. reversing, increasing the risk of injury. of a rollover crash, can increase the risk of injury. Blue Bird Body Company (Blue Bird) is recalling certain 2016-2020 Blue Bird Other Product Recalls Forest River, Inc. (Forest River) is Vision transit buses equipped with the recalling certain 2019 Coachmen Apex Ford 6.8L V10 engines. The hydraulic recreational trailers. The inner hub bear- brake lines or transmission shifter cable Fisher-Price Recalls Children’s Power ings may not have been sufficiently may have been improperly routed, causing Wheels Barbie Campers greased, which can cause the bearings to the brake line to be exposed to excessive overheat and fail. If the bearings overheat, heat, and leak hydraulic brake fluid. Addi- Fisher-Price, of East Aurora, New York, the hub may fail, affecting handling and tionally, the transmission shifter cable has recalled about 44,000 Children’s increasing the risk of a crash. could contact the gasoline fuel supply line Power Wheels Barbie Dream Campers. to the engine which may result in a fuel The children’s ride-on Power Wheels can Forest River, Inc (Forest River) is recall- leak. A hydraulic brake fluid leak or a fuel continue to run after the foot pedal is ing certain 2019 Rockport vehicles. The line failure can increase the risk of a fire. released, posing an injury hazard. This Federal Placard may indicate an incorrect recall involves children’s Power Wheels Gross Axle Weight Rating (GAWR), which Gillig, LLC (Gillig) is recalling certain Barbie Dream Campers with model can allow the vehicle to be overloaded. As 2016-2017 Gillig Low Floor transit buses. number FRC29 with a grey foot pedal. The such, these vehicles fail to comply with As built, one of the emergency exit recalled ride-on vehicles are hot pink with the requirements of 49 CFR Part 567, “Cer- windows may not be able to be easily used blue accents and have the Barbie logo tification.” An overloaded vehicle may in the event of an emergency. As such, printed on the back. They are battery- cause operator to lose control of vehicle, these vehicles fail to comply with the operated and have a play kitchen, a fold increasing the risk of a crash. requirements of Federal Motor Vehicle out grill and pretend campfire. The model Safety Standard (FMVSS) number 217, “Bus number is printed on a label under the Blue Bird Body Company (Blue Bird) is Emergency Exits and Window Retention hood. Fisher-Price has received 17 reports recalling certain 2019 Blue Bird All Ameri- and Release.” An obstructed emergency of the power wheels continuing to run can and Vision school buses and transit exit can hinder passengers from vacating after the foot pedal was released. No inju- buses. The parking brake cable may disen- the bus in the event of an emergency, ries have been reported. gage from the foot pedal assembly, possi- increasing the risk of injury. The vehicles were sold at Walmart bly allowing the bus to unintentionally stores nationwide and online at Walmart. move. As such, these vehicles fail to Lifeworks Technology Group, LLC com from July 2018 through January 2019 comply with the requirements of Federal (Lifeworks) is recalling certain Armor All for about $400. Consumers should imme- Motor Vehicle Safety Standard (FMVSS) 12V Heated Seat and Backrest cushions, diately take the recalled Power Wheels number 105, “Hydraulic and Electric Brake part number AA-MJ-HE102B (UPC away from children, stop using them and Systems.” Unintended movement can 81235015365), 12V Heated Blankets, part contact Fisher-Price for a free repair. Con- increase the risk of a crash. number AA-MJ-HE100BW (UPC sumer Contact: Fisher-Price at 800-348- 81235014113), and 2-in-1 Heated Gel/ 0751 from 9 a.m. to 6 p.m. ET Monday Van Hool N.V. (Van Hool) is recalling Memory Foam Cushions, part number AA- through Friday or online at www.service. certain 2015-2018 Van Hool TD925 and MJ-HE106B (UPC 81235015366), sold mattel.com and click on “Recalls & Safety TDX25 vehicles, equipped with certain exclusively at Meijer stores. These heated Alerts” or www.fisher-price.com and click Kidde Technologies, Inc. (KTI) KDS-25 accessories may overheat and melt when on “Recalls” for more information. Pic- fire extinguishers as part of the optional plugged into the 12V lighter socket or USB tures available here: https://www.cpsc. fire suppression system. The actuator of port. Overheated wiring may melt, gov/Recalls/2019/Fisher-Price-Recalls- the extinguisher may not function prop- increasing the risk of a fire and injury. erly, preventing the fire extinguisher from Childrens-Power-Wheels-Barbie-Campers- discharging the fire suppression agent in Heartland Recreational Vehicles, LLC Due-to-Injury-Hazard the event of a fire. If the fire suppression (Heartland) is recalling certain Milestone system does not work as intended, it can recreational trailers, model 377MB. The DeWALT Recalls Drills increase the risk of injury in the event liquid propane (LP) gas hose for the water DEWALT Industrial Tool Company, of of a fire. heater may have been improperly secured Towson, Maryland, has recalled about with a zip tie. If the zip tie fails, the hose 122,000 DEWALT DWD110 and DWD112 Blue Bird Body Company (Blue Bird) is may contact the tire. If the LP hose con- recalling certain 2013-2020 Blue Bird drills. In addition, about 8,000 were sold tacts the tire, it can cause a propane leak, in Canada. The drill’s wiring can contact Vision school buses equipped with the increasing the risk of a fire. Ford 6.8L V10 engines. The hydraulic internal moving parts, posing a shock brake lines or transmission shifter cable Dennis Eagle Inc. (Dennis Eagle) is hazard. This recall involves the D e WALT may have been improperly routed, causing recalling certain 2017-2018 Dennis Eagle DWD110 and DWD112 3/8-inch variable the brake line to be exposed to excessive Elite refuse trucks equipped with reverse speed reversing drills. The drills are heat, and leak hydraulic brake fluid. Addi- alarm mute switches. Using the reverse yellow with black accents and have a tionally, the transmission shifter cable alarm mute switch will prevent the truck power cable connected at one end. Only could contact the gasoline fuel supply line from beeping when the vehicle is in drills with date codes 2017-37-FY through

34 BeasleyAllen.com 2018-22-FY are affected. If the drill is electronic online retailers nationwide listed above, visit our firm’s web site at marked with an “X” after the date code it from February 2017 through August 2018 BeasleyAllen.com or our consumer blog at has already been inspected and is not for between $125 and $200. Consumers RightingInjustice.com. We would also like affected. The model number is located on should immediately stop using the to know if we have missed any significant a label on the right side of the drill. The recalled hybrid power adapters and recall that involves a safety issue. If so, date code is etched into the body of the contact Dell for instructions on receiving please let us know. As indicated at the drill below the label. Consumers whose a free replacement adapter. Consumer outset, you can contact Shanna Malone at drill does not have a date code, or who Contact: Dell toll-free at 855-305-9057 [email protected] for cannot locate the date code should anytime or online at www.dellproduct. more recall information or to supply us contact the company. com, click Lookup, and enter the first 20 with information on recalls. The drills were sold at The Home characters of the manufacture code Depot, Lowe’s and other hardware stores without the dashes. Pictures are at nationwide, and online at Amazon.com https://www.cpsc.gov/Recalls/2019/Dell- and other online retailers, from Septem- Recalls-Hybrid-Power-Adapters-Sold-with- XXIII. ber 2017 through November 2018 for Power-Banks-Due-to-Shock-Hazard FIRM ACTIVITIES between $60 and $70. Consumers should immediately stop using the recalled drills Academy Sports + Outdoors Recalls and contact DeWALT to schedule a free Turkey Fryer Employee Spotlights inspection and repair. Consumer Contact: Academy, Ltd. doing business as DeWALT toll-free at 855-752-5259 from 8 Academy Sports + Outdoors, of Katy, a.m. to 5 p.m. ET, Monday through Friday, STEPHANIE BAILEY Texas, has recalled 3,000 outdoor Stephanie Bailey, who will celebrate her email at [email protected] or online at Gourmet Turkey Keg turkey fryers. The fourth anniversary at Beasley Allen in www.dewalt.com and click on Service turkey fryer spout can leak oil, posing a April, is currently Trial Staff Assistant for and Support then Safety Recall Notice fire hazard. This recall involves the the Talcum Powder Litigation team in the for more information. Pictures available Academy Sports + Outdoors Outdoor firm’s Mass Torts Section. When she first here: https://www.cpsc.gov/Recalls/2019/ Gourmet Turkey Keg which is a turkey joined the firm, Stephanie worked as Staff DeWALT-Recalls-Drills-Due-to-Shock- fryer made of stainless steel and powered Assistant for the Transvaginal Mesh Litiga- Hazard by propane. The fryer, including the legs, tion team. In her current role, she works Dell Recalls Hybrid Power Adapters measures 34 inches high by 17 inches closely with the Talc Litigation team and Sold With Power Banks wide. The item number is 157826 and is other staff to prepare cases for trial located on a label on one of the four legs. against Johnson & Johnson. Talcum About 8,900 Hybrid Power Adapters Academy Sports + Outdoors has received powder litigation clients include women sold with Power Banks have been recalled two reports of a Turkey Keg leaking. No who were either diagnosed with ovarian by Dell Inc. of Round Rock, Texas. The injuries or property damage have cancer or are surviving family members of hybrid power adapter casing can break been reported. women who died of ovarian cancer after and detach, exposing the internal metal The fryers were sold at Academy Sports years of using Johnson & Johnson talcum components, posing an electric shock + Outdoors stores and online at www. powder products. hazard. This recall involves Dell hybrid academy.com from October 2018 through “I can honestly say this is the most power adapters sold with power banks. December 2018 for about $150. Consum- rewarding position I have ever held,” The adapter is designed to be discon- ers should immediately stop using the Stephanie said. “It is an honor to be part of nected from the power bank via release recalled Outdoor Gourmet Turkey Keg a team that is doing everything they can to tabs. The recalled adapters were manufac- and return it to any Academy Sports + Out- get justice for these women and their tured from January 2017 through March doors store for a full refund and a $50 families.” 2017 and can be used separately from the Academy gift card. Consumer Contact: Stephanie graduated from the Univer- power bank while connected to a power Academy Sports + Outdoors toll-free at sity of North Alabama in 2011, earning a outlet. The adapter is black and darker in 888-922-2336 from 7 a.m. to 12 a.m. CT, degree in Communications and Public color than the power bank with a Dell Monday through Friday. Email at custom- Relations. She explained that working at logo on the back label. The adapters have [email protected] or online at the firm has helped her have a clearer the following manufacture code –“CN- www.academy.com and click on the direction for her professional goals. The 05G53P—LOC00—XXX—XXXX—AXX” “Product Recalls” at the bottom of the work has helped her realize her passion printed on the back of the unit, where “X” page for more information. Pictures are for law and she recently earned a Certifi- represents a numerical value. A full listing available at: https://www.cpsc.gov/ cate in Paralegal Studies from Auburn Uni- of the recalled adapter manufacture codes Recalls/2019/Academy-Sports-Outdoors- versity. She is currently studying for the included in the recall are listed on www. Recalls-Turkey-Fryer-Due-to-Fire-Hazard National Association for Legal Assistants dellproduct.com . Dell has received 11 (NALA) Paralegal Exam. reports of the hybrid power adapter break- As you can see, there have been a large The Montgomery, Ala., resident and her ing and exposing the internal compo- number of recalls since the last issue. We husband, Adam, just celebrated their first nents. No injuries have been reported. included most of them in this issue. Those wedding anniversary in October. Adam is The power banks were sold at Dell.com, we felt to be of the highest importance a Telecommunications Specialist for Amazon.com, Microcenter.com, and other and urgency are included. If you need Baptist Health Systems. The couple looks more information on any of the recalls

JereBeasleyReport.com 35 forward to starting a family one day but day-to-day responsibilities include han- Annual Conference. The award honors the until then, they are enjoying spoiling dling client calls, collecting and process- nation’s most outstanding trial lawyers Peewee, their four-legged baby, and Steph- ing plaintiff fact sheets, bookmarking who have been active in practice for more anie’s two precious nieces, ages 2 and 4. medical records, preparing time-sensitive than 30 years. It recognizes their excep- Away from the office, Stephanie enjoys documents for clients and organizing files. tional commitment to furthering the cause spending quality time with my husband, Prior to joining the firm, Amber used of justice, demonstrating outstanding skill friends, and her Beasley Allen co-workers, her talent and skills as a disc jockey (DJ) as an advocate and leader inside and many of whom have become close friends. for 23 years, including 12 years while she outside of the courtroom, as well as She also loves traveling to visit her parents owned a DJ business. Amber still enjoys having the highest reputation in terms of in Athens, Ala., and her sister, brother-in- providing entertainment for the occa- ethics and honesty. Such a description law and two nieces who live in Louisiana. sional wedding or birthday party. With her fully applies to my law partner. Greg’s Stephanie is a definite asset to the firm vocal talent, she also enjoys singing and is work and many successes over the years and we are fortunate to have her with us. currently competing in the Kowaliga Idol reflect, above all else, his passion for his contest, which is the largest singing com- clients and their best interests. ASHLEY HOGAN petition in Alabama. In 1979, Greg became the firm’s first Ashley Hogan joined the firm as an Amber is practically a newlywed and law clerk and agreed to work the rest of Intake Specialist in February 2016. Ashley she and her husband, Steve, live in Pratt- the year for free. That year turned into a is currently the lead Secretary for Mass ville, with their Chihuahua, Baby Dawg. lifelong career at the firm. Greg has Torts Director Melissa Prickett. She assists She is the mother of 23-year-old triplet devoted his career to taking on giant cor- Melissa and other Mass Torts attorneys by boys and grandmother to Wylder, the son porations on behalf of people who have communicating with referring lawyers, of Steve’s daughter, Chelsea. Amber’s son been seriously injured, especially in diffi- managing medical retrieval portals, creat- Kolby is in the Army and stationed at Fort cult and technical cases. And, while a ing weekly reports and processing Campbell, Ky. Her other two sons live in number of Greg’s cases have resulted in invoices and credit card statements. Nashville, Tenn. Despite living in Nash- eight- and nine-figure verdicts and settle- Ashley also handles the intake of new ville, Zachery is a member of the Alabama ments, he is focused more on what the clients, assists with various aspects of case Army National Guard and works for a outcome of a case means to the client and management including preparing deposi- beverage company. Morgan is a talented the broader implications. Greg knows that tion materials and helps with settlement musician, performing with three different a large verdict or settlement allows a administration. bands and is a chef at a Nashville res- client to afford the best medical care and Away from the office, Ashley enjoys taurant. ongoing care to improve their quality of watching her children, Kelsey (10), In addition to singing and entertaining life following a life-altering injury. Such Kendall (4) and Judson (3) participate in as a DJ, Amber also loves to crochet, outcomes also help spur industry-wide their activities including cheerleading and which has become another side business. changes, which help better protect con- other sports. They all enjoy spending time She and Steve also enjoy college football sumers and workers by preventing similar with their newest family member, a rescue but said they have a divided house when it tragedies. dog named Rufus. Ashley is also an avid comes to teams. Steve is a huge Alabama Throughout his career, Greg has pro- football fan and you’ll find her cheering fan and Amber loves her LSU Tigers! vided leadership within the legal profes- on the Holtville Bulldogs and her beloved Amber is another valuable employee who sion. He is a past president of the Alabama—Roll Tide. She also enjoys is dedicated to the clients she works with. Montgomery Trial Lawyers Association reading. Ashley is a very good employee We are fortunate to have her with and continues serving on the executive and we are fortunate to have her at the firm. committee for the Alabama Association for Beasley Allen. Justice (formerly the Alabama Trial Lawyers Association), in addition to AMBER PEDEN Amber Peden marked her fourth anni- XXIV. serving as chairman of the group’s journal versary with the firm last fall. Currently, committee. Greg also serves as a member she is the Staff Assistant for the Transvagi- SPECIAL of the board of directors and on the Exec- nal Mesh (TVM) team and has worked on RECOGNITIONS utive Committee for the Attorney’s Infor- seven of the TVM settlements. Amber also mation Exchange Group (AIEG). works with the Xarelto litigation team, Greg’s leadership, integrity and profes- sionalism inside and outside the court- helping the “Wave” teams prepare for Greg Allen Honored With Southern Trial room have been recognized nationally and depositions. She explained that a “Wave” Lawyers Association’s ‘War Horse’ Award team is composed of lawyers, Legal Assis- locally. The mock trial competition and tants and Staff Assistants who are assigned Greg Allen is the senior Products Liabil- law center at Faulkner University’s to groups of clients with cases that have ity lawyer at Beasley Allen, and many say Thomas Goode Jones School of Law, been remanded for trial. Amber assists the he is the best product liability lawyer in Greg’s alma mater, now bear his name as a teams as they prepare clients and experts the country. Greg received a high and tribute to his tireless work as an advocate. for testifying during depositions. This well-deserved honor last month. He was Greg has been selected to Alabama Super includes organizing medical records, presented with the “War Horse” award on Lawyers 2008-2017 and has been included depositions notices and plaintiff fact Feb. 21 by the Southern Trial Lawyers in The Best Lawyers in America from sheets, among other documents. Amber’s Association (STLA) during the group’s 2011-2018.

36 BeasleyAllen.com Greg also was named the Best Lawyers’ lawyers’ included Greg Allen, Mike Crow, afraid; do not be discouraged, for 2012 Montgomery Product Liability Litiga- Cole Portis, Dee Miles, Andy Birchfield, the Lord your God will be with you tion Plaintiffs’ Lawyer of the Year. Only a Rhon Jones, Ben Baker, David Byrne, wherever you go. Joshua 1:9 single lawyer in each specialty in each Kendall Dunson, Graham Esdale, Chris community is honored as the “Lawyer of Glover, Ben Locklar, Ted Meadows, Leigh And when you pray, do not be like the Year.” And, Greg was named one of O’Dell, Roger Smith, Gibson Vance, Navan the hypocrites, for they love to pray the firm’s Litigators of the Decade in Ward, and Frank Woodson. standing in the synagogues and on December 2010 and was recognized as the Additionally, eight Beasley Allen lawyers the street corners to be seen by National Law Journal’s Litigator of the were included on the Midsouth Super others. Truly I tell you, they have Month in 2002. Lawyers “Rising Stars” list. Those included received their reward in full. Greg’s work is truly extraordinary and Andrew Brashier, Alison Hawthorne, Dan- Mathew 6:5 has touched countless lives. I can attest to ielle Ward Mason, Parker Miller, and for Joseph VanZandt, a lawyer in our firm’s the fact that there is no better lawyer in the first time, Stephanie Monplaisir, Mass Torts Section, sent in his favor- the product liability field than Greg. Over Tiffany Birley, Ryan Kral and Leslie Pescia. ite verse. the years I have seen him in numerous trials and I can say without reservation, I Therefore, since we are surrounded have never seen anybody better at case by such a great cloud of witnesses, preparation and at trial. We are truly XXV. let us throw off everything that blessed to have Greg at Beasley Allen. FAVORITE BIBLE hinders and the sin that so easily VERSES entangles. And let us run with perse- verance the race marked out for us, Beasley Allen Lawyers Among 2019 2 fixing our eyes on Jesus, the Georgia Super Lawyers My friend, Ed Williams, a retired profes- pioneer and perfecter of faith. For sor from Auburn, furnished a verse for this the joy set before him he endured I am pleased to report that three firm section. Ed says we must put the needs of the cross, scorning its shame, and lawyers from our Atlanta office were others ahead of our own sat down at the right hand of the included in the 2019 Super Lawyers list for throne of God. Hebrews 12:1-2 Georgia. Those lawyers are Chris Glover, Do nothing from selfish ambition or Rob Register and Sharon Zinns. Chris and conceit, but in humility count others My daughter Julie Beasley sent in several Rob focus their practice on helping those more significant than yourselves. of her favorite verses for this issue. Julie, who have been seriously injured, or the Philippians 2:3 ESV as you may recall, retired early from the firm. Julie is now working fulltime in the families who have lost loved ones through Dee Miles, who heads up our firm’s no fault of their own. Rob’s practice area cutting horse business and is competing at Consumer Fraud & Commercial Litigation a very high level around the country. deals with complex product liability litiga- Section, sent in several of his favorite tion. Sharon’s practice is dedicated to verses this month. I can do all things through Christ securing justice for those who have been who strengthens me. Phil. 4:13 diagnosed with mesothelioma, a rare form “For I know the plans I have for of cancer caused by exposure to asbestos. you,” declares the Lord, “plans to Now may the God of peace who Chris manages the Atlanta office and his prosper you and not to harm you, brought up our Lord Jesus from the practice deal primarly with products lia- plans to give you hope and a dead, that great Shepherd of the bility cases. future.” Jeremiah 29:11 sheep, through the blood of the ever- Super Lawyers, a Thomson Reuters busi- lasting covenant. Heb. 13:20 ness, is a research-driven, peer-influenced The Lord is my shepherd, I lack rating service of outstanding lawyers who nothing. He makes me lie down in Be anxious for nothing, but in have attained a high degree of peer recog- green pastures, he leads me beside everything by prayer and supplica- nition and professional achievement. The quiet waters, he refreshes my soul. tion, with thanksgiving, let your mission of Super Lawyers is to bring visi- He guides me along the right paths requests be made known to God; bility to those lawyers who exhibit excel- for his name’s sake. Even though I Phil. 4:6,7 walk through the darkest valley, I lence in practice. Yet in all these things we are more will fear no evil, for you are with The Super Lawyers lists are published in than conquerors through Him who me; your rod and your staff, they Super Lawyers Magazines and in leading loved us. For I am persuaded that comfort me. You prepare a table city and regional magazines across the neither death nor life, nor angels before me in the presence of my country. The Super Lawyers Magazines nor principalities nor powers, nor enemies. You anoint my head with also feature editorial profiles of lawyers things present nor things to come, oil; my cup overflows. Surely your who embody excellence in the practice of nor height nor depth, nor any other goodness and love will follow me all law. For more information, go to super- created thing, shall be able to sepa- the days of my life, and I will dwell lawyers.com. rate us from the love of God which in the house of the Lord Lawyers in Beasley Allen’s headquarters is in Christ Jesus our Lord. forever. Psalm 23 in Montgomery were recognized last Romans 8:37-39. December by Super Lawyers for the 2018 Have I not commanded you? Be Midsouth regional category. Those strong and courageous. Do not be

JereBeasleyReport.com 37 XXVI. posed consent decree, which is in a As we have repeatedly reported, 30-day public comment period on the benzene is considered a known carcino- CLOSING Justice Department web site. gen by the EPA and International Agency OBSERVATIONS The violations stem from a May 2011 for Cancer Research, and has been linked inspection of the facility, in which the EPA to leukemia and other negative health con- and JCBH inspectors say they found a ditions. It is released in water, but evapo- number of violations relating to its han- rates quickly into the air. Benzene can also Drummond Company To Pay $775,000 In ABC Coke Benzene Pollution Settlement dling of benzene at the coke byproducts enter the air by way of tobacco smoke, processing facility, including “a number of auto emissions and petroleum products. As you may recall there has been a great deficiencies” in the company’s leak detec- According to the ABC Coke permit deal of media attention on some very tion and repair protocols, which are application, the plant creates coke by serious problems in Jefferson County, legally mandated by the Clean Air Act. superheating coal in a no-oxygen environ- Alabama, that involved several companies. Inspectors reported finding open-ended ment to remove volatile organic com- One of the companies, Drummond lines, equipment that was not properly pounds (VOCs) and other impurities. The Company (DC), at the center of attention, sealed and improperly monitored, and resulting coke is a high-carbon fuel used is one of Alabama’s largest coal compa- waste water streams that allowed signifi- in the steel-making process. The facility nies. DC has agreed to pay $775,000 in cant amounts of benzene to escape into uses a byproducts plant to recover those penalties relating to benzene air pollution the air without being reported. The EPA VOCs to create sellable products including violations just north of Birmingham. said in an information sheet about the coal tar and coke oven gas, some of which Drummond reached the settlement agree- settlement: is used to heat the plant’s coke ovens. The ment with the U.S. Environmental Protec- deficiencies in the benzene monitoring Based on the inspection, EPA and tion Agency (EPA) and the Jefferson program were detected in the byproducts JCBH alleged that Drummond did County Board of Health regarding processing facility. not identify and include in its TAB benzene pollution from the ABC Coke It appears that Drummond company [total annual benzene] calculation facility in Tarrant. This comes nearly eight may be getting off with what might be all benzene-containing waste water years after the EPA and county inspectors considered little more than a slap on its streams and that as a result of the found the plant was releasing more than corporate wrist. If that is an accurate failure to include those waste 10 times the amount of benzene it was appraisal, the period of time for comments streams, Drummond miscalculated reporting into the air. is even more important! the TAB to be under 1 Mg when it The errors were described in EPA docu- Source: AL.com was actually over 10 Mg, and failed ments as miscalculations based on not to take actions to properly control, including all waste streams at the facility reduce or eliminate the benzene in and from leaks that were not properly those streams as required. identified or repaired. Birmingham-based XXVII. environmental group Gasp has repeatedly According to the EPA press release, OUR MONTHLY challenged the ABC Coke air pollution Drummond had corrected several of the REMINDERS permit, arguing that the facility causes violations by 2017, which were verified in negative health impacts on nearby com- follow-up inspections. Additional mea- munities. Gasp Executive Director Michael sures to correct the violations are required If my people, who are called by my Hansen said these latest court filings high- by the consent order. name, will humble themselves and light the need for increased scrutiny over If the consent decree is finalized, pray and seek my face and turn ABC Coke. He had this to say: several conditions from the agreement from their wicked ways, then will I will be incorporated into ABC Coke’s Title hear from heaven and will forgive These are serious violations of their V air pollution permit, which is currently their sin and will heal their land. benzene control requirements. For up for renewal with the JCBH. Jonathan the past six years, we have been 2 Chron 7:14 Stanton, the JCBH’s director of environ- expressing concern about ABC mental health services, said the depart- Coke’s hazardous air pollutants, All that is necessary for the triumph ment is currently reviewing and including sounding the alarm about of evil is that good men do nothing. responding to public comments on the their benzene emissions. permit, which ended in November 2018. Edmund Burke According to a proposed consent order Director Hansen, who is quite knowl- filed last month, Drummond will pay half edgeable in his area of concern, made this Woe to those who decree unrigh- of the $775,000 to the EPA and half to the observation: teous decrees, Who write misfor- Jefferson County Board of Health (JCBH). tune, Which they have prescribed. This enforcement action is all the The company will also have to complete a To rob the needy of justice, And to more reason to strengthen the new supplemental environmental project take what is right from the poor of ABC Coke Title V air permit, which costing at least $16,000 to establish semi- My people, That widows may be has yet to be finalized, and make annual monitoring for leaks using a their prey, And that they may rob sure it is significantly more protec- thermal imaging camera. Drummond, the the fatherless. tive of public health for workers and EPA and the JCBH have agreed to the pro- residents. Isaiah 10:1-2

38 BeasleyAllen.com I am still determined to be cheerful In his December 1902 State of the America when we consider the present and happy, in whatever situation I Union address, Theodore Roosevelt and then look to our future. We should may be; for I have also learned from said of corporations: “We are not take a serious look at some of the problem experience that the greater part of hostile to them; we are merely deter- areas that hold us back. Those include our happiness or misery depends mined that they shall be so handled racism, gun violence, the breakdown of upon our dispositions, and not upon as to subserve the public good. We family values, the wrong kind of role our circumstances. draw the line against misconduct, models, abuses involving the internet and not against wealth.” social media, and the failure of our Martha Washington (1732—1802) churches to take a stand on many of the U.S. President Theodore Roosevelt, critical social and economic issues facing The only title in our Democracy December 1902 our nation. superior to that of President is the What is the real source of our hope? title of Citizen. The ‘Machine politicians’ have Our hope is not in isolation by America shown their colors..I feel sorry for and neither does it lie with our political Louis Brandeis, 1937 the country however as it shows the leaders. We face many monumental chal- U.S. Supreme Court Justice power of partisan politicians who lenges today and the problems are quite think of nothing higher than their evident. So, what is our answer? The The dictionary is the only place that own interests, and I feel for your answer to our problems is by persons, success comes before work. Hard future. We cannot stand so corrupt a including our elected leaders, living our work is the price we must pay for government for any great lives according to the Greatest Command- success. I think you can accomplish length of time.” ment as stated by Jesus in Matthew anything if you’re willing to pay 22:37-39: Theodore Roosevelt Sr., the price. Jesus replied: “‘Love the Lord your God December 16, 1877 with all your heart and with all your soul Vincent Lombardi and with all your mind.’ This is the first and greatest commandment. And the Kindness is a language which the second is like it: ‘Love your neighbor as deaf can hear and the blind can see. XXVIII. yourself.’ What would our country be like if each Mark Twain (1835-1910) PARTING WORDS of its citizens followed these command- ments daily? We would become united as a “I see in the near future a crisis Changes Needed In America nation. We would work through all of our approaching that unnerves me and problems. But we must put almighty God causes me to tremble for the safety I believe most Americans will agree that in control of our lives and live in such a of my country....corporations have we live in an ever-changing and troubled manner as to honor and glorify Him. been enthroned and an era of cor- world. We definitely have our share of There is no other way. ruption in high places will follow, major problems in America. It appears My prayer today is for America and its and the money power of the country there is far too much going on in our future. I believe we can overcome all that will endeavor to prolong its reign by country being motivated by either hate or faces us and holds us back. working upon the prejudices of the greed. On occasion the two will be in people until all wealth is aggregated combination. We should all be concerned. in a few hands and the Republic is However, there is hope for America and destroyed.” the world. U.S. President Abraham Lincoln, While many appear to have lost all hope Nov. 21, 1864 in our future, there definitely is hope for

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

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.