JERE BEASLEY REPORT January 2019 I

JERE BEASLEY REPORT January 2019 I. providing hundreds of hours of pro-bono ready to pick up her older son at the legal work to low-income residents, donat- library. While Ms. O’Connor was still gath- CAPITOL ing millions of dollars to charitable organi- ering her things and her toddler son—a OBSERVATIONS zations, and committing countless hours period of only a few minutes—Maggie and to community service, as well as time and Grant got into the car. While Ms. resources to revitalization efforts in the O’Connor was still in the house, the 2004 City’s downtown area. The lawyers in our Suburban the children were sitting in Beasley Allen Celebrates 40 Years Of Atlanta firm are already making their mark shifted from park to neutral, rolled down Helping Those Who Need It Most on the community, serving folks in the family’s driveway and hit some trees. th Georgia beyond the courtroom. Maggie died in the crash. Beasley Allen will celebrate its 40 God has blessed our law firm and we Bernard Pitterman, the administrator of Anniversary this month. After an unsuc- are deeply grateful. As we look forward to Maggie O’Connor’s estate, and the family cessful run for governor of Alabama in what the future holds, we will strive to filed the lawsuit in Connecticut state 1978, I was faced with the challenge of continue seeking justice for all and serve court in June 2014, and it was removed to starting a law practice all over again. I had as a leading citizen in our community for federal court the following month. In tried to get a job with several law firms in generations to come. January, Judge Hall declined GM’s request the Capital City, but nobody was inter- to have the Connecticut Supreme Court ested. With no other option, I opened an weigh in on whether state law required office in Montgomery on Jan. 9, 1979. I soon started to get a feel for practicing II. law in Montgomery. I never realized how IN THIS ISSUE much I missed the courtroom until I got MORE back into the active practice of law. I was AUTOMOBILE I. Capitol Observations...... 2 determined to use my skills as a lawyer to II. More Automobile News Of Note. . . . 2 build a career “helping those who need it NEWS OF NOTE most.” That later became the official motto III. Opioid Litigation...... 4 of the firm. The firm was established to provide General Motors Settles With Family In IV. The Talc Litigation...... 6 legal service to individuals who have been Gear Shift Lawsuit wronged by no act of their own, a protec- V. Legislative Happenings...... 7 tion provided by the Seventh Amendment General Motors (GM) has settled with to the United States Constitution—the the family of an 8-year-old girl who was VI. The National Scene...... 8 right to a trial by jury. This is one of the killed when a Chevrolet Suburban shifted VII. Whistleblower Litigation ...... 8 most important rights a citizen has. That’s out of park. A jury had returned a $2.88 million verdict in the case. U.S. District because it levels the playing field for the VIII. Product Liability Update ...... 10 average person who have to take on big Judge Janet C. Hall will vacate the jury corporations. verdict and other rulings in the cases. The IX. Mass Torts Update...... 13 What started as a one-lawyer firm has verdict was on appeal to the Second grown to a firm of more than 90 lawyers Circuit Court of Appeals. The automaker X. Business Litigation...... 14 and over 200 support staff in Montgomery and the family of Maggie O’Connor had and Atlanta. Everybody at Beasley Allen reached a conditional settlement on those XI. An Update On Securities Insurance works tirelessly to represent clients from rulings by the court with the verdict being and Finance Litigation...... 15 all over the nation. Through the years, the vacated. The appeals court had ordered firm has gained a national reputation for the parties to go through its mediation XII. Premises Liability Update...... 15 being at the forefront of consumer litiga- program and as a result the case XIII. Transportation Litigation...... 17 tion. Beasley Allen has secured more than was settled. The terms of the settlement were not $26 billion in verdicts and settlements for XIV. Toxic Tort Litigation Concerns. . . . 19 our clients. We have helped to improve disclosed in the ruling granting the workplace safety and the safety of myriad parties’ joint request. However, Judge Hall XV. Update On Nursing Home Litigation . .21 products for consumers worldwide. I am did say she was informed that the finan- very proud of the work we have done— cial settlement was “satisfactory” to GM XVI. An Update On Class Action Litigation. .22 and continue to do—that makes a differ- and the O’Connor family. The judge said ence the lives of people, and helps to that setting aside a judgment is an XVII. The Consumer Corner...... 26 make their lives better. “extraordinary remedy” that should only People often come to us at one of the be granted in “exceptional circum- XVIII. Recalls Update...... 29 stances.” But she said the facts justified most difficult times in their life, facing XIX. Firm Activities...... 34 great pain and loss. If someone can leave her granting the parties’ request. A Connecticut federal jury in July 2017 our offices better off than when they XX. Special Recognitions...... 35 came in, we are accomplishing our found that GM’s failure to warn about the mission and making a difference. I dangers of the shifters in Chevrolet Subur- XXI. Favorite Bible Verses...... 37 couldn’t ask for more than that. bans caused the accident that killed Our lawyers and support staff have also Maggie and injured her brother, Grant. In XXII. Closing Observations...... 38 been an integral part of the community, July 2011, Rose O’Connor was getting XXIII. Parting Words...... 39

2 BeasleyAllen.com the automaker to warn drivers of the gear- brakes allegedly failing suddenly and Agnello PC, Kantrowitz Goldhamer & shift risk after the sale. The judge had con- without warning. Graifman PC, and Kessler Topaz Meltzer & cluded that the O’Connor family could The Plaintiff is represented by Scott D. Check LLP as lead settlement move forward on that theory, citing the Righthand of Law Office of Scott Right- class counsel. Second Circuit’s 2002 decision in Dens- hand PC. The case is Davis v. Harley- The drivers are represented by Carella berger v. United Technologies Corp. Davidson Motor Co. Group LLC, (case Byrne Cecchi Olstein Brody & Agnello PC, The O’Connor family is represented by number RG15782921) in the Superior Kessler Topaz Meltzer & Check LLP, Kan- Joram Hirsch of Adelman Hirsch & Court of California, Alameda County. trowitz Goldhamer & Graifman PC, Connors LLP. The case is Bernard Pitter- Source: Law360.com Thomas P. Sobran PC, Mazie Slater Katz & man et al. v. General Motors LLC, (case Freeman LLC, Seeger Weiss LLP, Baron & number 3:14-cv-00967) in the U.S. District Budd PC, and Podhurst Orseck PA. The Court for the District of Connecticut. case is In re: Volkswagen Timing Chain VW Faulty-Engine Settlement Gets Final Product Liability Litigation, (case Source: Law360.com Approval number 2:16-cv-02765) in the U.S. District A New Jersey federal judge has signed Court for the District of New Jersey. Harley-Davidson Settles Brake Defect Suit off on a settlement in the consolidated Source: Law360.com class action against Volkswagen and Audi Harley-Davidson Motor Co. Groups LLC involving claims that the automakers con- and the wife of a man who died from inju- cealed a timing chain system defect in Kia And Hyundai Defect Can Cause Cars To ries sustained in a motorcycle accident certain vehicles that can cause “cata- “Erupt In Flames” agreed to a confidential settlement last strophic” engine failure. Chief U.S. Dis- month on the eve of a California jury trial. trict Judge Jose L. Linares granted the A proposed class action has been filed The settlement resolves claims that an parties’ application for final approval of in a California federal court against anti-lock braking system defect in the the class action settlement, finding that Hyundai Motor Co., Kia Motors Corp. and motorcycles contributed to the man’s the proposed deal is “fair, reasonable and related companies. Kia and Hyundai knew death. A jury had been selected when the adequate” and consistent with all applica- about an engine defect that led to hun- case settled. The wrongful death lawsuit ble requirements. “The settlement is in dreds of their vehicles “spontaneously was filed by Plaintiff Vita Davis against the best interests of all class members and bursting into flames,” but the companies Harley-Davidson, the City of Oakland, the Defendants,” Judge Linares said failed to warn customers. It’s alleged that a County of Alameda and the State of Cali- in an order. defect in certain vehicles with gasoline fornia in August 2015. The Plaintiff’s The lawsuit alleged that when the direct injection engines can cause the cars husband, Irvan Jude Davis, died from inju- timing chain system of the vehicles in to catch fire in “non-collision” circum- ries in the motorcycle crash in questions fails, drivers might not be able stances, meaning drivers have an August 2014. to accelerate or maintain their speed or “increased risk of accident, injury or Irvan Jude Davis was driving his 2008 could experience “catastrophic engine death.” While the companies did issue CVO Ultra Classic Electra Glide 3 Harley- failure.” It was contended: technical service bulletins and conduct Davidson motorcycle at about 45 mph as safety recalls of some of the affected vehi- he approached an intersection. The traffic Drivers and occupants of the class cles, they never conducted a needed lights at the intersection weren’t working. vehicles are at risk for rear-end col- “widespread” recall or adequately fixed Davis tried to brake, but the motorcycle’s lisions or other accidents caused by the defect, a group of drivers said in the anti-lock braking system and throttle the inability to maintain an appro- suit. The drivers said in the complaint: failed, causing a collision that led to his priate speed, and the general public death. The claims against Harley-Davidson is also at risk for being involved in The catastrophic engine failure and included strict liability, failure to warn, an accident with a class vehicle that fire risk is the direct result of a failure to recall and breach of implied war- suddenly stops or is unable to main- defect concealed by, and still unrem- ranty. The jury would have had to deter- tain an appropriate speed. edied by Hyundai and Kia. mine the percentage of fault attributed to Pursuant to the settlement agreement Vehicles that could have this defect Harley-Davidson. The damages sought Volkswagen and Audi will reimburse include the 2011-2019 Hyundai Sonata, were for past and future economic loss, drivers who went to an independent 2013-2019 Hyundai Santa Fe and Santa Fe non-economic loss, emotional distress and service station as much as $6,500 for Sport, 2011-2019 Kia Optima, 2012-2019 exemplary damages. engine repairs and $2,000 for timing Kia Sorento, 2012-2019 Kia Soul and 2011- In February, Harley-Davidson recalled chain system repairs. The automakers will 2019 Kia Sportage. The proposed class approximately 175,000 2008-2011 also extend the timing chain warranties includes everyone in the U.S. who pur- Touring, CVO Touring and VSRC motorcy- on the affected vehicles to cover them for chased or leased an affected vehicle, cles equipped with anti-lock brakes over 10 years or 100,000 miles. excluding those individuals with personal concerns the brakes will fail due to poor Judge Linares certified a settlement injury claims. That includes more than maintenance. The recall came two years class of persons and entities that pur- 350 drivers who reported fires in their after the National Highway Traffic Safety chased or leased certain 2008 through affected cars to the National Highway Administration (NHTSA) launched an 2014 Volkswagen and Audi vehicles in the Traffic Safety Administration (NHTSA). investigation into Harley-Davidson’s U.S. and Puerto Rico. Judge Linares also Kia and Hyundai are accused of breach motorcycles with anti-lock braking appointed 32 drivers as class representa- of implied warranty as well as violating systems in 2016. This came after receiving tives for the settlement class, and named California’s unfair competition law, false dozens of consumer complaints about the Carella Byrne Cecchi Olstein Brody & advertising law and Consumer Legal Rem-

JereBeasleyReport.com 3 edies Act, which allows consumers to seek received the organization’s highest rating since halogen lights are reported to better damages after being harmed by unfair or of “good.” This figure is actually an reduce glare from oncoming traffic. If you deceptive business practices. The suit improvement from IIHS testing performed need more information about the above, names eight lead Plaintiffs from around in previous years. contact Cole Portis or Dan Philyaw, the country who’ve purchased affected When IIHS conducted its first headlight lawyers in our firm, at 800-898-2034 or by cars. Several said their cars burst into tests in 2016, only two of 95 headlight email at [email protected] or flames in noncollision incidents. systems were given a “good” rating. Of the [email protected]. Engine lines associated with the defect remaining 2018 vehicle models most Sources: IIHS, CED Communications include Theta II, Gamma, Nu and Lambda recently tested, 58 were rated “accept- II, which were introduced in the U.S. able,” 32 were rated “marginal,” and 43 between 2009 and 2013. The defect were rated “poor.” causes problems when it restricts oil flow The list of vehicles with “poor” per- III. to key engine parts, and the lack of oil forming headlights was not limited to one OPIOID LITIGATION lubrication then causes these parts to particular type or cost of vehicle. Cars, break. Sometimes the broken parts punch trucks, and SUVs from foreign and domes- a hole in the engine block, allowing tic manufacturers, including luxury An Update On The Opioid Litigation engine fluids to leak and ignite. Besides brands, were found at the bottom of the the safety hazard, the defect often leads to rankings. Court Upholds a Majority of Governments’ a total loss of the cars, the suit said. Several pickup trucks were among the In 2015 and again in 2017, Hyundai worst performing vehicles, with “poor” Claims Against Defendants recalled about a million of its vehicles and rated headlights the only ones available Local governments designated as Track issued technical service bulletins for their for the Ford F-150, Chevrolet Silverado 1 cases received a favorable ruling from repairs. In March 2017, Kia also recalled 1500, Chevrolet Colorado, GMC Canyon, U.S. District Court Judge Dan A. Polster 600,000 of its vehicles. In October 2018, and Nissan Frontier. Other “poor” rated when he adopted a majority of the report Kia sent car owners “Product Improve- models ranged from the Audi Q3 SUV to and recommendation (R&R) issued by ment Campaign” letters. But the suit said the Dodge Charger, to the 2-door Honda Magistrate Judge David A. Ruiz in October. none of these recalls or notices adequately Civic. However, there were some success The ruling upheld most of the claims tackled the defect. In October, the Center stories. The Hyundai Genesis G90 sedan asserted by Summit County, Ohio and the for Auto Safety demanded a recall of and Lexus NX SUV were given top ratings City of Akron but, importantly, rejected nearly 3 million 2011-2014 Kia and across all options packages. the R&R’s dismissal of the County’s com- Hyundai vehicles. But that didn’t happen. Often, “good” rated headlights are only mon-law public nuisance claim. In November, Hyundai’s and Kia’s CEOs available on more expensive vehicle trim The R&R was the first major victory for refused a request to testify at a U.S. Senate lines or options packages. But David Aylor, the plaintiffs in the opioid multidistrict lit- hearing, saying that the senate should manager of active safety testing at IIHS, igation (MDL) consolidated in Cleveland, investigate noncollision fires in all auto- has stated that consumers shouldn’t have Ohio. Judge Polster designated several dif- makers, not just in their cars. to buy a fully loaded vehicle in order to ferent governmental entities as Track 1 The suit seeks reimbursement to get good headlights. Replacing vehicle cases to brief threshold legal issues that owners of affected vehicles for all headlights can also be costly. For a major- may assist in settlement negotiations or expenses associated with repairing or ity of vehicles with good-rated headlights, prepare the test cases for trial. The R&R replacing the cars, including time off replacing just one front headlight can run was the first ruling from a court on work. It also asks for Hyundai and Kia to upward of $1,000. motions to dismiss the bellwether Plain- be ordered to repair, recall or replace all The tests performed by IIHS engineers tiffs’ claims. affected vehicles. analyzed the reach of vehicle headlights Judge Polster disagreed with the R&R’s The Kia and Hyundai customers are rep- on straight roads and around curves. recommendation to dismiss the Summit resented by Christopher R. Pitoun and Sensors on IIHS’s test track measured the County’s common law public nuisance Steve W. Berman of Hagens Berman Sobol length and intensity with which vehicle claim, concluding that the Ohio Product Shapiro LLP. The case is Leslie Flaherty et headlights illuminated the surface and sur- Liability Act did not abrogate the claim. he al. v. Hyundai Motor Company et al., rounding areas. Glare from oncoming Court also held that the County’s statutory (case number 8:18-cv-02223) in U.S. Dis- vehicles was also tested. Each vehicle’s public nuisance claim is limited to injunc- trict Court for the Central District of headlights were tested as received from tive relief. Moreover, the order adopted California. the dealer. In the evaluation, the perfor- the dismissal of Akron’s drug-related nui- Source: Law360.com mance of low beams was weighted more sance claim for lack of standing, reasoning heavily than high beams since low beams that the statute vested enforcement are used with much greater frequency authority with counties, the State, and the during travel. Many Vehicle Headlights Pose Poor Board of Pharmacy but not city Vehicles typically utilize halogen, high- Performance Hazard governments. intensity discharge, or LED lights. In Notably, Judge Polster upheld all other The Insurance Institute for Highway recent years, an increasing number of claims for relief, including the Plaintiffs’ Safety (IIHS) has determined that many vehicle manufacturers have been outfit- claims under the Racketeer Influenced vehicles on the road today are equipped ting their models with LED lights, which Corrupt Organization (RICO) Act, 18 with poor headlights. For 2018 model year are typically brighter and stronger. Yet, U.S.C. § 1961, et. seq. This claim alleges vehicles, the best-available headlights on this does not always translate to better that the manufacturer and distributor just 32 of 165 vehicle models tested performance on roads and in IIHS testing, Defendants worked together to expand

4 BeasleyAllen.com the opioid market and that there was a ceding six months. This yielded the Fentanyl Is America’s Deadliest Drug common understanding among all Defen- lowest estimate of 52,544 suspicious dants to ignore their obligations to report orders (or 5.4 percent of the total) Federal health officials announced last suspicious drug orders to effectuate between January 1996 and May 2018. month that fentanyl is now the deadliest that goal. drug in America, with more than 18,000 This ruling was a great result for the • Methodology 2 removed the suspicious overdose deaths in 2016, the most recent numerous lawsuits filed nationwide that order months identified under the first year for which statistics are available. It’s have been consolidated in the MDL. We methodology from the six-month period the first time the synthetic opioid has expect decisions to be issued on the other and flagged orders that exceeded the been the nation’s deadliest drug. From bellwether cases soon. This includes the total in any non-suspicious month. This 2012 to 2015, heroin topped the list. On State of Alabama, the counties of Cabell produced an estimate of 364,291 orders average, in each year from 2013 to 2016, (West Virginia), Monroe, Michigan and over the 22-year period, or 36 percent the rate of overdose deaths from fentanyl Broward (all Florida), and the City of of all orders. increased by about 113 percent a year. The report said fentanyl was responsible for 29 Chicago. Although claims for relief will • Methodology 3 assumed that once a percent of all overdose deaths in 2016, up necessarily vary across jurisdictions, many pharmacy placed a suspicious order, it from just 4 percent in 2011. core issues common to all cases were should have been halted and all subse- More than 63,000 Americans died of decided in the Plaintiffs’ favor. Hopefully quent orders treated as suspicious. This drug overdoses in 2016, according to the these cases will be decided on their merits yielded the largest estimate of 875,055 report, which was prepared by the by a jury rather than dismissed before dis- orders or 86.4 percent of the total. covery reveals the full nature of the Defen- National Center for Health Statistics dants’ conduct. Because the figure of suspicious orders (NCHS), part of the U.S. Centers for The Court ordered the Defendants to ranged between 5 percent and up to 86 Disease Control and Prevention (CDC). file their answers by Jan. 19, 2019. percent, the Defendants argued that the That’s an average of 174 deaths a day. The flagged orders and the methodology were study also said many people who die from Discovery Update so convoluted that they are still unable to overdoses have multiple drugs in their determine which orders the Plaintiffs system. “We’ve had a tendency to think of One of the key legal theories asserted by contend were suspicious. The Plaintiffs these drugs in isolation,” Dr. Holly Hede- the Plaintiffs in the opioid litigation is that responded that these methodologies are as gaard, lead author of the report, told Huff- manufacturers, distributors and pharma- accurate as possible without knowing Post. “It’s not really what’s happening.” cies that dispensed opioids failed to halt, which metrics the Defendants use to iden- Roughly, 40 percent of people listed as investigate and report suspicious orders tify suspicious orders. dying of a cocaine overdose also had fen- that these entities suspected may have Special Master David R. Cohen was tanyl in their system. After fentanyl, been diverted for non-medical purposes. appointed by Judge Polster to adjudicate heroin, cocaine and methamphetamine The Controlled Substances Act man- discovery disputes between the parties in were the deadliest drugs in 2016. After dates that any registrant who distributes the MDL. He issued Discover Order 12, declines earlier in the decade, the report opioids to “design and operate a system to which required the Plaintiffs to identify, said, overdose deaths from both cocaine identify” suspicious orders to the DEA and by Dec. 31, 10 suspicious orders along and methamphetamine were starting to prevent the illicit diversion of these drugs. with the date of shipment, name of the rise again. The study said illegal drugs Federal regulations explain that suspicious entity that placed the order, and the such as fentanyl and heroin were the orders include “orders of unusual size, number and type of drugs shipped. The primary causes of unintentional over- orders deviating substantially from a Plaintiffs are also required to explain in doses, while prescription drugs such as normal pattern, and orders of unusual fre- detail how they identified the orders, why oxycodone tended to be used in suicide quency.” 21 C.F.R. § 1301.74(b). Despite the Defendants’ due diligence was insuffi- overdoses. the language illustrating when the report- cient, and why the “order was so suspi- Source: Law360.com ing requirement is triggered, the lack of cious that there was no amount of due clear numeric thresholds has generated diligence that could have removed every confusion in the litigation. basis to suspect the customer was engaged The Beasley Allen Opioid Litigation Team This confusion is currently being in diversion.” addressed in the discovery process where This order appears to be a compromise Because of the enormity of the opioid the MDL bellwether Plaintiffs (Summit between the Defendants’ demand for the litigation, and Alabama’s personal involve- and Cuyahoga counties, Ohio and the City Plaintiffs to identify every illegitimate ment in the multidistrict litigation (MDL), of Cleveland) identified which particular order that allegedly contributed to the our firm has put together an “Opioid Liti- orders shipped to their areas were suspi- opioid crisis and the need for the Plaintiffs gation Team,” which includes these cious as well as the criteria used to iden- to provide some tangible evidence of lawyers: Rhon Jones, Parker Miller, Ryan tify those orders. The Plaintiffs used three wrongdoing. Due to the complexities of Kral, Rick Stratton, Will Sutton and Jeff different methodologies to arrive at these this litigation, we expect to see more clari- Price. This team of lawyers represents the figures. All estimates were based on raw fying orders from Special Master Cogen as State of Alabama, the State of Georgia, and measures of pills shipped to individual the discovery process unfolds. numerous local governments, as well as pharmacies in the region around Cleve- other entities in the MDL, and individual land and Akron. claims on behalf of victims. If you need • Methodology 1 identified monthly ship- more information on the opioid litigation ments that exceeded the amount contact one of these lawyers at 800-898- shipped to a pharmacy in any of the pre- 2034 or by email at Rhon.Jones@beasleyal-

JereBeasleyReport.com 5 len.com, [email protected], the potential harm talcum powder can asbestos and multiple reports from the [email protected], Rick.Strat- cause. On Dec. 5, Health Canada, Canada’s 1970s, from testing conducted by different [email protected], Will.Sutton@beas- national public health agency, released a labs, found evidence of asbestos in J&J’s leyallen.com or Jeff.Price@ report finding that genital talc use may talc. One report even described the asbes- beasleyallen.com. carry an increased risk of developing tos level as “rather high.” Over the next ovarian cancer. The report also found that several decades, asbestos and asbestos-like inhalation of loose talc powders may particles (which Reuters says carry no dis- increase the risk of developing lung tinction to the Environmental Protection IV. cancer. In response, Tolga Yalkin, Director Agency [EPA] and the Occupational Safety THE TALC General of Health Canada’s Consumer and Health Administration [OSHA]) were Product Safety Directorate indicated that found in a number of talc deposits used LITIGATION the government is considering additional for sourcing J&J’s talc products. Although warnings on these products. It is our hope the company has improved its testing pro- that other regulatory bodies will take cesses over time, internal documents Talc /Ovarian Cancer Litigation Update—A similar steps to protect consumers from show that these methods may allow trace Look At The Year Ahead the risks associated with talcum powder. amounts of asbestos to go undetected. Lawyers in our firm currently represent The Reuters report had a strong and As we move into 2019, the talcum more than 12,000 individuals. They have swift impact on J&J’s stock, as shares powder litigation continues to move filed 2,658 individual cases in state and plummeted more than 10 percent follow- forward in several venues across the federal courts. Thus far, our lawyers and ing the article’s release. In response, J&J country. At the state court level, our staff have evaluated over 50,000 potential issued a statement claiming that the lawyers are currently preparing to take claims with a large number still under Reuters article was “one-sided, false and several cases to trial in the first half of review. To date we have been involved in inflammatory,” but Reuters has stood by 2019. In January, Beasley Allen lawyers eight trials with another case with 13 its story, saying that the report was based will return to St. Louis, Missouri for a Plaintiffs to be tried this month. There are on J&J’s own documents. In fact, Plain- multi-Plaintiff trial, which is expected to more than 10,000 cases pending in the tiffs’ lawyers, including those at Beasley last several weeks. This is the same venue MDL that was mentioned above. Allen, have used these same documents as where a jury returned a $4.6 billion Beasley Allen lawyers continue to inves- evidence in several recent trials relating to verdict in favor of 22 talcum powder Plain- tigate new cases involving women who talcum powder and ovarian cancer. tiffs in June 2018. Once that trial con- have suffered from ovarian cancer after Throughout all talc trials, J&J has main- cludes, our litigation team will travel to using Johnson’s Baby Powder and Shower tained that its talc does not contain asbes- Atlanta, Georgia, for a single-Plaintiff trial. to Shower. For more information, contact tos. As these trials continue, Plaintiffs’ That will be the first talcum powder trial Melissa Prickett or Brittany Scott, lawyers lawyers will learn even more about J&J’s in Georgia. We return to St. Louis in in our Mass Torts Section, at 800-898-2034 knowledge of asbestos contamination, as August for a second multi-plaintiff trial. or by email at Melissa.Prickett@beasleyal- well as other potential contamination, in At the federal court level, the multidis- len.com or Brittany.Scott@beasley- J&J’s talc products. Our lawyers have trict litigation (MDL) has been focusing on allen.com. learned during the MDL proceedings that the selection, deposition, and qualification J&J had withheld a good number of docu- of expert witnesses. Leigh O’Dell from our ments in the prior litigation that were firm and Michelle Parfitt of Ashcraft & Reuters Investigation Reveals Johnson & damaging to the company. Gerel are co-lead counsel in the MDL. Johnson Knew Of Asbestos In Talc For Sources: Reuters, J&J, CNBC Over the past several months, Plaintiffs Decades lawyers have conducted depositions of several corporate representatives in order On Dec. 14, Reuters released the results to gain insight into the knowledge and A Very Important Report From Canada’s of its investigation involving Johnson & National Public Health Agency actions of Defendants and third-party Johnson’s knowledge of potential asbestos companies related to issues of talc safety. contamination in its talcum powder prod- Health Canada, the national governmen- Using information gained in those deposi- ucts, Johnson’s Baby Powder and Shower tal agency responsible for public health in tions, lawyers for the Plaintiffs recently to Shower. In recent years, Johnson & Canada, has issued a report finding that disclosed information regarding expert Johnson (J&J) has been the subject of the use of talc for genital hygiene may witnesses they expect to testify on scien- more than 12,000 lawsuits alleging these expose women to a greater risk of ovarian tific and causation issues related to the products have caused ovarian cancer and/ cancer. This is a very important and highly litigation. or mesothelioma in consumers who used significant action by Health Canada. This Moving into 2019, the Defendants will the products. As J&J has fought these report, especially in conjunction with the also disclose their expert witnesses, and cases in court, the company has main- Reuters article, is devastating for J&J. the parties will begin conducting deposi- tained that its products are free of Health Canada issued an informational tions of these experts. We expect that asbestos. letter on the respiratory and cancer Daubert hearings, where the court will In its report, Reuters details a review of dangers of talc use to all health care pro- rule on the admissibility of expert testi- J&J’s internal documents relating to the fessionals, recommending they advise mony, will occur in June 2019. potential contamination of the talc J&J patients not to use talc in the genital area. As the science surrounding talc safety uses in its products. The report indicates The advisory notes that loose talc can be continues to develop, we hope that U.S. that documents from the 1950s show evi- found in a wide array of products, includ- regulatory bodies will take a closer look at dence of fibrous contaminants similar to ing baby powder and deodorants as well

6 BeasleyAllen.com as cosmetics, natural health products and named in the suit as the distributor of Birley. In addition to the lawyers, the fol- non-prescription drugs. J&J’s Shower to Shower scented talc lowing staff members are involved in the The governmental action is based on a product, joined in with J&J on the motion. trials: Katie Tucker, Stephanie Bailey, thorough analysis of scientific studies The two companies argued that the Brandi Dawkins and Gary Spigner. linking talc exposure to ovarian cancer Attorney General’s suit alleging they vio- In addition to the trial team, there are and respiratory conditions such as fibro- lated the Mississippi Consumer Protection lawyers and many staff members who sis. The report notes that the Canadian Act (MCPA) by not putting a warning label support the litigation effort from our Cancer Society identifies genital talc use on talc fails because the MCPA does not Montgomery office. The lawyers are Brit- as a possible risk factor, supported by cover cosmetics labeling and, even if it tany Scott and Lauren Razick. The work of numerous published studies reporting a did, the U.S. Food and Drug Administra- these lawyers, along with that of support small but significant association between tion (FDA) has already determined there is staff in Montgomery, are very important to ovarian cancer and perineal talc use. “no scientific basis” for putting a warning the successes in the Talc Litigation. In a news conference announcing the label on cosmetic talc products. There are also lawyers from Beasley health advisory, Tolga Yalkin, Director Chancellor Thomas, however, rejected Allen whose involvement is solely on the General of Health Canada’s Consumer the arguments and wrote there were talc multidistrict litigation (MDL) in New Product Safety Directorate, said that the “clearly material issues” of facts in dispute Jersey. Leigh O’Dell (who serves as co-lead government will consider a number of that can’t be resolved on summary judg- counsel for the MDL), Jennifer Emmel and actions to further restrict talc use. Mr. ment. The chancellor wrote that it would Jenna Fulk are the lawyers involved from Yalkin said: be a mistake to dismiss the suit before a our firm. Staff member Lisa Bruner is also full trial, given the complex legal issues working on the MDL Litigation. Currently we have warnings on and serious allegations. loose powder products intended for The suit was filed in August 2014, alleg- use with infants and children, and ing false advertising and insufficient label- we’ll investigate adding additional ing by J&J and Valeant, contending that V. warnings based on the scien- they misrepresented the benefits and risks tific evidence. LEGISLATIVE of the talc products they sold in Missis- HAPPENINGS It is encouraging that the Canadian gov- sippi. The attorney general specifically ernment is taking the lead in notifying alleged that the companies failed to medical professionals about the potential inform the state’s residents about scien- A Look at Alabama’s New Legislature dangers of talc use. Every organization tific evidence linking the perineal use of responsible for public health and educa- talc with an increased risk of ovarian cancer—the same theory underlying all of The 2018 elections boosted the Republi- tion about cancer needs to carefully can party’s super majority in the Alabama examine how to make doctors and con- the suits against the company in recent years. The suit also alleged that internal Legislature to a super super majority, with sumers more aware of the science and five more House seats and one Senate seat symptoms surrounding ovarian cancer. documents reveal that J&J targeted talc sales at African-American and Hispanic going red. Five seats in Alabama’s 105- Ted Meadows from our firm is a member House went to Republicans in member of the litigation for an upcoming women, even as it was aware of studies showing these groups got ovarian cancer November, giving them a 77 to 28 advan- trial that has as Plaintiffs 13 women and tage over the Democrats. The GOP gained their families who allege that perineal use at higher rates than women of other ethnicities. one additional seat in the Senate, which of Johnson & Johnson’s talcum powder now has 27 Republicans and eight products caused their ovarian cancer. Mississippi is represented by George W. Neville, Geoffrey Morgan, Martin Millette Democrats. That trial is scheduled to begin on Jan. 22 Thirty percent of the seats in both in State District Court in St. Louis. and Jacqueline H. Ray of the Office of the Mississippi Attorney General, along with chambers are now occupied by newcom- Additional information on the Health ers, though three of the newly elected Canada announcement can be found at Timothy W. Porter and Patrick C. Malouf of Porter & Malouf PA, Allen Smith Jr. of Senators were previously House members. https://healthycanadians.gc.ca/recall-alert- Most of the Republican gains were seats rappel-avis/hc-sc/2018/68320a-eng.php. The Smith Law Firm PLLC, and Wendy R. Fleishman and Paulina do Amaral of Lieff vacated by members not seeking re-elec- Cabraser Heimann & Bernstein LLP. The tion or vacated in the pursuit of case is State of Mississippi ex rel. Jim other offices. J&J Loses An Important Talc Battle In Hood, Attorney General v. Johnson & All but two Democratic incumbents Mississippi Johnson et al. (case number 25CH1:14- managed to hold their seats. Rep. Alvin cv-00107) in the Chancery Court of Hinds Holmes, the longest-serving member of A Mississippi state judge has denied County, Mississippi, First Judicial District. the House, lost the District 78 seat to Kirk Johnson & Johnson’s bid to dismiss a first- Hatcher in the Democratic Primary. Rep. Source: Law350.com of-its-kind suit filed by Mississippi Attor- Elaine Beech of Chatom lost to Republican ney General Jim Hood, alleging the Brett Easterbrook in District 65 in south- pharmaceutical giant is putting Mississip- west Alabama pians at risk by not disclosing its talcum The Beasley Allen Talc Litigation Team Sen. Paul Bussman of Cullman was the powder products can increase the risk of sole Republican incumbent to lose his The following lawyers are on the ovarian cancer. Hinds County Chancellor seat. He was narrowly defeated by Garlan Beasley Allen Talc Litigation Team: Ted J. DeWayne Thomas, in his order, denied a Gudger, a Cullman City Councilman and Meadows, Danielle Mason, David Dearing, motion for summary judgment filed by Republican. J&J. Valeant Pharmaceuticals, which is Ryan Beattie, Mallory Bullard and Jimmie

JereBeasleyReport.com 7 The demographics of the Alabama Leg- The lawsuit is the latest in a number of Nearly $18 million of that amount is islature show that Republicans and Demo- defamation cases filed by Sandy Hook fam- related to the allegedly reckless marketing crats are divided further than ever along ilies against these conspiracy extremists. of a product designed to treat brain racial lines. All 104 Republican representa- In April, Mr. Pozner had filed a defamation defects. One of the subsidiaries, Minne- tives and senators are white, and all but lawsuit against Texas-based conspiracy sota-based ev3 Inc., also agreed to plead two of the 36 Democratic Senators are extremist Alex Jones. Mr. Pozner filed that guilty to a misdemeanor in Boston federal black. The only two remaining white lawsuit along with Noah Pozner’s mother, court in connection with the distribution Democrats in the Alabama Legislature are Veronique De La Rosa, and Neil Hesslin, of the brain defect device, known as the Rep. Neil Rafferty D-Birmingham, who another parent of a Sandy Hook student Onyx Liquid Embolic System. replaced Democratic Rep. Patricia Todd, who was killed. In a criminal information filed on Dec. and Sen. Billy Beasley, D-Clayton, who Six more Sandy Hook families and an 4, prosecutors said ev3 marketed Onyx for happens to be my brother. FBI agent filed defamation lawsuits in May uses outside the brain from 2005 to 2009, There are 22 women in the Alabama against Jones and his Infowars broadcast even though they were unapproved and Legislature, an increase of one over the program. Jones, who had claimed the the U.S. Food and Drug Administration last session. All four of the state’s women worst crime in modern Connecticut (FDA) had warned the company about senators are Democrats and 11 of the history was a hoax, said in his defense in safety concerns. state’s 18 female representatives are Dem- court earlier this year that he now believes The other company, Covidien LP, which ocrats. The percentage of women to men the shootings happened. He makes the bought ev3 in 2010, paid $13 million to in the legislature is about half the bizarre claim that he has a right settle False Claims Act charges based on national average. to be wrong. its alleged kickbacks paid to hospitals to It is quite evident there are some signifi- Mr. Pozner and Ms. De La Rosa pub- use its Solitaire mechanical thrombectomy cant challenges facing the Alabama Legis- lished a critical letter in July of last year to device, designed to restore blood flow in lature. Hopefully, the members will be Facebook CEO Mark Zuckerberg accusing stroke patients. Covidien paid a fee to hos- successful in meeting these challenges him of providing conspiracy extremists pitals starting in 2014 to participate in a and will help take our state to such as Jones with “a safe haven for hate.” registry to collect data about patients another level. Facebook responded, along with YouTube, using the thrombectomy device, in what Sources: AL.com, Alabama Today Apple and other social media companies, amounted to a kickback system. with suspensions and restrictions on Jones Jeffrey Faatz, the whistleblower who and his Infowars sites, citing him for incit- brought that civil suit, will receive more ing violence and promoting hate speech. than $2 million as part of the resolution, VI. Mr. Pozner’s suit against Fetzer and the DOJ said. Assistant Attorney General THE NATIONAL Palecek accuses the two of endangering Jody Hunt of the DOJ’s Civil Division, in a his life. In 2016, it’s alleged in the lawsuit statement, said: SCENE that a Florida resident named Lucy Rich- ards, who visited websites maintained by The Department of Justice will hold Fetzer, threatened to kill Mr. Posner in an corporations accountable when they violate laws designed to protect con- Father Of Sandy Hook Victim Sues Right- online message. At Richards’ sentencing, sumers and protect public funds. Wing Extremists U.S. District Judge James Cohn said, “There are no alternative facts.” This resolution demonstrates the The father of a boy killed in the Sandy The two Defendants should be dealt department’s continued commit- Hook shootings has filed a defamation suit with harshly to the fullest extent of the ment to protect taxpayer dollars against James Fetzer and Mike Palecek, law. Hopefully, their conduct exposes and deter companies from putting two theorists. The father, Leonard Pozner, them to criminal prosecution. In any profits before patient safety. whose son Noah was among the 26 first- event, however, juries in civil cases should Medtronic will also pay an additional graders and educators killed by a gunman punish these evil men severely by award- $20 million to settle an unspecified DOJ at Sandy Hook School, is suing the extrem- ing huge punitive damages in each of investigation into “various market devel- ists, who are co-editors of “Nobody Died the caes. opment and physician engagement activi- at Sandy Hook,” for defamation and Source: CTPost.com ties” by ev3 and Covidien. Most of the conspiracy. conduct in question took place before These two individuals have made the Medtronic acquired ev3 and Covidien in insane claim that Sandy Hook was a hoax 2015. The company, in a statement, said: and that the shootings never happened. VII. Fetzer and Palecek claim, among other WHISTLEBLOWER Medtronic cooperated fully with the things, that Mr. Pozner forged his son’s Department of Justice during its death certificate to advance the hoax. The LITIGATION investigation, and we believe our complaint states: ongoing, rigorous compliance programs and ethical practices enabled [The] defendants acted together, as a Medtronic To Pay More Than $50 Million To us to reach a fair resolution of cabal, to accomplish their defama- Settle Medical Device Claims these cases. tion. [The] defendants’ defamatory publications were designed to harm Medtronic PLC, the world’s largest The misdemeanor to which ev3 will (Pozner’s) reputation and subject medical device maker, will pay $50.9 plead guilty is for introducing adulterated (him) to public contempt, disgrace, million to settle kickbacks and other medical devices into interstate commerce. ridicule or attack. claims against two companies it owns.

8 BeasleyAllen.com U.S. Attorney for Massachusetts Andrew E. lawsuit alleged that when Gateway team ciaries and then billing Medicare for those Lelling had this to say: members alerted executives that the lend- services. er’s loans had a high default rate, and that As part of Ibarra’s guilty plea, she admit- ev3 disregarded laws designed to specific branches and underwriters were ted to conspiring with Ros Lazo to commit protect patient safety. The U.S. Attor- displaying “a pattern of poor perfor- health care fraud by rendering physical ney’s Office is committed to protect- mance,” nothing was done to address therapy services to Medicare beneficiaries ing patients and the integrity of the problem. while not being licensed to provide such federal health care programs, and Gateway admitted that it did not adhere services. Medicare paid $8.6 million in we will continue to use our criminal to HUD’s self-reporting requirement for benefits that it otherwise would not have authority to ensure that medical deficient loans, and acknowledged it paid as a result of these fraudulent actions. device manufacturers play by the approved loans for FHA insurance that The Fraud Section leads the Medicare rules that protect the public and were not eligible. As a result, HUD Fraud Strike Force, which is part of a joint ensure quality of care. incurred significant losses when those initiative between the Department of The settlements come on the heels of a loans defaulted and insurance payments Justice and Department of Health and sweeping investigation by the Interna- were made to Gateway. United States Human Services (HHS) to focus their tional Consortium of Investigative Journal- Attorney Grant Jaquith, in a state- efforts on preventing and deterring fraud, ists into the dangers and poor regulation ment, said: as well as enforcing current anti-fraud of medical devices worldwide. The investi- laws around the country. “Since its incep- Gateway misrepresented that its fed- tion in March 2007, the Medicare Fraud gation found that Medtronic, which oper- erally insured loans met HUD’s ates in more than 140 countries, paid well Strike Force, which maintains 14 strike quality standards, harming borrow- forces operating in 23 districts, has over $150 million to American doctors and ers who were left underwater on hospitals in 2017 for research, travel and charged nearly 4,000 Defendants who their homes and taxpayers who have collectively billed the Medicare other expenses, substantially more than backed the mortgages. We are com- any other medical device maker. program for more than $14 billion.” mitted to holding mortgage lenders Health care fraud continues to be a huge The FDA said it planned to overhaul its accountable when they abuse gov- approval system for medical devices. The problem in our health care systems in this ernment programs for their country. Our firm has increased its health government is represented in the Boston own gain. case by Christopher R. Looney of the U.S. care whistleblower practice for this very Source: Housingwire.com Attorney’s Office for Massachusetts. The reason. Lawyers on our firm’s Whistle- case is U.S. v. ev3 Inc., (case number 1:18- blower Litigation Team are working in this cr-10461) in the U.S. District Court for the important arena. For example, our team District of Massachusetts. Florida Home Health Services Company recently obtained a $14 million verdict in Owner Pleads Guilty For Role In $8.6 Birmingham Federal Court dealing with a Source: Law360.com Million Health Care Fraud Conspiracy health care whistleblower issue. Our lawyers continue to pursue other cases On Dec. 4, 2017, two Miami, Florida res- throughout the country involving abusive Finance Of America Mortgage Settles FHA idents pleaded guilty to health care fraud practices in the health care industry. Mortgage Fraud Lawsuit For $14.5 Million charges for carrying out an $8.6 million Source: U.S. Department of Justice health care fraud scheme. Alexander Ros Finance of America Mortgage (FAM), a Lazo, owner and operator of T.L.C. Health Blackstone portfolio company, has agreed Services Inc., a home health agency, Government Says Bundle Buys Don’t Avert to pay the U.S. government $14.5 million “pleaded guilty to one count of conspiracy FCA Liability to settle a whistleblower lawsuit involving to commit health care fraud before U.S. mortgage fraud. The payment settles the District Judge Jose E. Martinez of the claim that Gateway Funding Diversified The federal government has weighed in Southern District of Florida.” Misleidy on a whistleblower suit accusing Bayer Mortgage Services, one of several compa- Ibarra, a licensed massage therapist, also nies FAM acquired in 2015, knowingly Corp. of paying kickbacks to get doctors pleaded guilty to one count of conspiracy to use a surgery drug called Trasylol. The originated and underwrote deficient mort- to commit health care fraud before Judge gage loans insured by the Federal Housing government says that the company can Martinez. still be held liable under the False Claims Administration (FHA) in violation of the As part of his guilty plea, Ros Lazo False Claims Act. As a direct endorsement Act (FCA) even though the government admitted that he paid kickbacks and pays for the drugs as part of a “bundle” lender participating in the FHA’s loan bribes to his co-conspirators in exchange program, Gateway was required to follow rather than individually. In a statement of for home health services prescriptions and interest, the government urged a New specific underwriting guidelines, main- the referral of Medicare beneficiaries to tain a quality control program and report Jersey federal court to reject Bayer’s argu- T.L.C. Health Services, a company based in ment that its violations of the Anti-Kick- deficient loans to the Department of Miami. He also admitted that he and Ibarra Housing and Urban Development (HUD). back Statute are not material to the agreed to commit health care fraud with government because the alleged kick- According to the Department of Justice, their co-conspirators by “arranging for Gateway failed to audit all early-payment backs would not affect the amount the Ibarra to render therapy services on U.S. paid for the drugs. default loans as required, and when it did behalf of licensed therapists despite the perform an audit, it did not act on calls The government is only weighing in on fact that they knew she was not licensed this specific question of law. It is not from compliance regarding concerns to render the physical and occupational about the quality of these loans. The taking a position on the merits of the suit. therapy services to the Medicare benefi- The government wrote:

JereBeasleyReport.com 9 Under the defendants’ theory, even for determining damages, not materiality, The Beasley Allen Whistleblower if a pharmaceutical company gave the government wrote further. Litigation Team a doctor an envelope stuffed with The government contended further cash as a kickback to use a drug that, regardless of the pay scheme, a mis- It has become abundantly clear that that is paid for through a bundled representation of compliance with the whistleblowers are the key to exposing payment, the company could not be Anti-Kickback Statute makes the claims corporate wrongdoing and government liable under the FCA due to the false, and a claim for reimbursement mate- fraud. A person who has first-hand knowl- absence of materiality. rially false. The government also urged the edge of fraud or other wrongdoing may court to reject Bayer’s argument that have a whistleblower case. Before you In the suit, Laurie Simpson, a former allowing liability leads to “absurd” results report suspected fraud or other wrongdo- Bayer marketing employee, claimed the because a Defendant could be held liable ing—before you “blow the whistle”—it is company misbranded Trasylol by promot- for any hospital claim for reimbursement important to make sure you have a valid ing off-label uses of the drug, including that included any marginal noncompli- claim and that you are prepared for what use in valve replacement surgeries, surger- ance, saying that a bundled payment lies ahead. Beasley Allen has an experi- ies involving pediatric patients, liver trans- doesn’t create a material violation where enced group of lawyers dedicated to han- plants and other medical scenarios. The none would otherwise exist. dling whistleblower cases. The lawyers on surviving claims after a motion to dismiss Instead, the government contended, the our firm’s Whistleblower Litigation Team was partially granted allege that Bayer’s only “absurd” result would come from are Archie Grubb, Larry Golston, Lance conduct led to the submission of claims adopting Bayer’s theory. The gov- Gould, Andrew Brashier and Paul Evans. involving Trasylol uses that were not “rea- ernment said: A lawyer on our Whistleblower Litiga- sonable and necessary” and therefore not tion Team will be glad to discuss any covered under Medicare, according to If accepted, the defendants’ argu- potential whistleblower claim either in court documents. The government would mean that the govern- person or by phone. You can reach these ment contends: ment could never recover when lawyers by phone at 800-898-2034 or by kickbacks or drug coverage viola- email at [email protected], When a company causes a hospital tions occur in the context of inpa- [email protected], Lance. to misrepresent that claims com- tient hospital stays. [email protected], Andrew.Brash- plied with material requirements [email protected] or Paul.Evans@beas- for payment relating to a drug, and In addition, the government says the leyallen.com. the company acts knowingly within court should reject Bayer’s argument that the meaning of the FCA, there is the company is not liable because the potential liability under the FCA, claims for reimbursement did not name regardless of whether the govern- Trasylol, saying the drug is implied as part VIII. ment paid for the drug as an indi- of the goods and services in the claim and vidual item or, as here, through a is therefore considered to be included PRODUCT flat payment for a bundle of goods among the things a patient received in the LIABILITY UPDATE and services. hospital. The government said:

The bundle payment scheme exists to Because the claim covers everything, provide incentive for health providers to it does not need to specifically iden- Life Of Young Husband, Father Forever economize the costs of care by having the tify Trasylol in order for it to consti- Changed By Corporate Wrongdoing government pay flat payments based on tute a claim for Trasylol. the average cost for patients in similar cir- On August 4, 2016, Ivan Rodriguez went cumstances. Citing the Supreme Court’s The government is represented by Assis- to work at Mobley Safeway like any other decision in Universal Health Services v. tant Attorney General Joseph H. Hunt and day since he became an employee. Tragi- U.S. ex rel. Escobar, the government Craig Carpenito, Charles Graybow, Nicole cally that day would change his life and argued that under the FCA, questions of Mastropieri, Michael D. Granston, Jamie A. the lives of his wife and young sons materiality are focused on whether knowl- Yavelberg and Sanjay Bhambhani of the forever. The culmination of bad decisions edge of the false claims would influence U.S. attorney’s office. Simpson is repre- and negligence on the behalf of several the government’s decision to pay the flat sented by James E. Cecchi and Lindsey H. defendants rendered our client a C6 rate, not on whether it would change the Taylor of Carella Byrne Cecchi Olstein ASIA-A quadriplegic. Ivan now requires cost. The government wrote: Brody & Agnello PC and David A. Bocian, 24-hour nursing care and can no longer Terence Ziegler, Tyler S. Graden and Asher enjoy life with his wife, nor can he teach Compliance with the AKS and drug S. Alavi of Kessler Topaz Meltzer & Check his young sons sports as he once dreamed coverage rules are both material to LLP. The case is U.S. ex rel Laurie of doing. such payment decisions. This is true Simpson v. Bayer Corp et al., (case The day Ivan’s catastrophic injuries regardless of the manner by which number 2:05-cv-03895) in the U.S. District occurred he was operating a front-end the government chooses to pay for Court for the District of New Jersey. loader with an open cab. While using the goods and services, whether sepa- Source: Law360.com front-loader to move empty sandblasting rately or through bundled payments. bags, one of the bags blew into the open cab and became entangled on Ivan’s foot. The question of how much the govern- The other end of the bag was pulled under ment paid and whether Bayer’s conduct the tire of the moving front-loader and cost the government more money is one began pulling Ivan from his seat. Although he was wearing his seatbelt, it unexpect-

10 BeasleyAllen.com edly unlatched and allowed him to fall out workers. Mr. Dees’ finger, left hand and properly training Mr. Dees. For good of the loader headfirst onto the arm, up to his shoulder, were pulled into reason, the jurors did not buy that defense. ground below. the machine. Following the incident, Mr. Evan Allen and Kendall Dunson, Investigation by Mike Andrews and our Dees lost partial use of his arm and has lawyers from our firm’s Personal Injury & in-house investigators, along with some been left permanently disfigured. Products Liability Section, represented Mr. expert testing, revealed a very dangerous The subject RAM machine was designed Dees in his case. They did a very good job design defect in the subject seat belt. Even and manufactured in Italy, and then sold in preparation and trial of the case. The though the buckle was purportedly for use in Alabama. Mr. Dees’ injury in case was filed in the Circuit Court of designed for use in harsh environments, Alabama was not the first time someone Conecuh County, Alabama (case number the buckle is actually more prone to had been injured on the same design. CV-2015-900036). release when used in environments where Three years before Mr. Dee’s incident, an it can be exposed to debris—in short, it is employee of the Italian manufacturer was defective and not fit for its intended use. injured when he was threading the rollers Safety Design Standards Do Matter Ivan has settled with some of the defen- and his fingers were pulled under the cir- dants for an undisclosed amount. The case cular guard. Mr. Dees’ injury occurred Safety Design Standards are enacted or remains open against other defendants when his hand was pulled into the nip adopted to ensure that products (vehicles, with the anticipation of going to trial in over the top of the circular guard. machines, etc.) are safe for us by consum- federal court in March 2019. Settlement of After an investigation into the Italian ers. Lawyers representing injured clients claims such as Ivan’s is about helping our accident, an expert safety consultant pre- often refer to these standards as clients obtain justice for wrongdoing and pared examined the incident and the “minimum safety standards” because they achieving the best quality of life as possi- guard. He then prepared a report that are commonly watered down as much as ble following such a devastating injury. stated that the design of the circular guard possible to ensure safety and to impose Mike Andrews, a lawyer in our firm’s violated the benchmark safety standard. the minimum burden on product manu- Personal Injury & Products Liability The subject benchmark standard, a Euro- facturers. Manufacturers that are really Section, is handling this case. Based on pean Union standard, prohibited the use safety conscious normally advertise that Ivan’s serious and permanent injuries, and of circular guards to protect user from the their products exceed these safety stan- the existence of multiple safer alternative in-running nip point. In response to the dards. The purpose of design safety stan- buckle designs that would have prevented Italian accident, the manufacturer dard was crystalized during the recent this tragedy, Mike is looking forward to changed the guard in Italy to comply with trial in Conecuh County, men- presenting Ivan’s case to a jury. the applicable safety standard. The manu- tioned above. facturer, however, did not inform the An in-running nip point is created when Alabama employer of the accident, the two rollers are in close proximity and are Jury Awards $774,000 To Machine Operator expert’s findings and recommendation, moving in opposite directions; thus, creat- Injured On The Job nor of their change of the safety guard. ing a force that pulls product and anything Even after the filing of Mr. Dees’ suit else, including clothing and human body A jury in Conecuh County, Alabama, has and years of discovery, the Italian manu- parts, into the nip/hazard. awarded our client John Dees $774,000 for facturer never informed the Alabama The necessity of guarding in-running injuries he suffered while working for employer of this important information. nip points has been accepted and required Onin Staffing, LLC at Tenax Manufactur- The Alabama employer was informed by for more than a century. Believe it or not, ing Alabama, LLC. Mr. Dees was injured Evan Allen, a Beasley Allen lawyer, during our lawyers still see cases where in-run- on a machine manufactured by Tenax SPA, a deposition. Needless to say, both the ning nips are not guarded at all. In the an Italian Company. The jury determined Plant Manager and Director of Safety of Dees case, however, the manufacturer that Tenax SPA acted wantonly due to its the Alabama employer testified that they made a weak effort to guard the hazard, failure to guard against the machine’s needed this information and they would but that effort actually violated existing known defect. Tenax SPA designed the have acted to change the shape of the safety standards. The jury saw through the machine with an inadequate guard, pro- guard if they had known of the prohibi- Defendant’s baseless arguments and found hibited by both U.S. and European design tion of its use. that the use of the circular guard violated standards. Plaintiff’s expert engineer in the Dees European and American safety standards The manufacturing plant made netting case did a good job of explaining why the and rendered a verdict in Mr. Dees’ favor. used for erosion control. The netting is circular guard was prohibited. Simply put, heated and stretched before final prepara- the use of a circular guard turned one tion on RAM machine. The RAM process hazard into two hazards. He also told the Businesses Sue Drone Maker Over $1.4 required Mr. Dees to manually guide the jury that not only did European standards Million Fire netting through rollers that create an in- outlaw the use of the circular guard, but running nip point. so did American safety standards includ- The tenants of a Pittsburgh-area office While working on the RAM IV machine ing ANSI (American National Standards building have filed a lawsuit in a Pennsyl- at Tenax in January 2015, Mr. Dees was Institute) and OSHA (Occupational Safety vania state court against DJI Technology feeding netting into the long tubular & Health Administration). Inc. The company allegedly manufactured stretching machine’s system of rollers The RAM manufacturer defended the defective drone batteries that started a when his finger was caught. As stated case as Defendants normally defend any December 2016 fire resulting in more than above, the machine lacked adequate safety case. First, it blamed Mr. Dees. Next, it $1.4 million worth of damage to busi- guards and safety devices to shut the blamed the Alabama employer for not nesses and a restaurant in the building. machine off and otherwise protect

JereBeasleyReport.com 11 Konica Minolta Business Solutions USA An Update On The E-Cigarette Product rechargeable batteries for e-ciga- LLC, Steeplechase Business Solutions, Liability Litigation rette devices. CorVel Corp., SSW Holdings Inc. and Ohio Beasley Allen lawyers have filed several Security Insurance Co.—insurer for the As the use of electronic cigarettes (e-cig- lawsuits throughout the country against Scoglio Greentree restaurant—filed two arettes) continues to gain popularity, so manufacturers and sellers of defective suits against California-based DJI Technol- too have catastrophic injuries arising out e-cigarette products. These cases typically ogy, several of its subsidiaries, its distribu- of the use of those products. As a result, involve significant trauma and burn inju- tor and the tenant who had purchased the the number of lawsuits involving these ries resulting from the explosions and DJI drone. products continues to rise. The lawsuits fires from unreasonably dangerous It’s alleged in the complaints that the typically center on claims of strict liability devices that were marketed as a safer alter- lithium polymer battery in the drone and negligence. Under a strict liability native to traditional cigarettes. Unfortu- caused a fire in the early morning of Dec. theory, the manufacturer or seller of an nately, we anticipate that this litigation 11, 2016, at the Foster Plaza building in the unreasonably dangerous product may be will continue until appropriate steps are Pittsburgh suburb of Green Tree. The found liable for the product’s defective taken by the e-cigarette industry to complaints say: condition even though there was no overt protect the consumers. negligence or carelessness in the manufac- If you need more information on this The DJI battery was in a defective ture or sale of the defective product. subject, or have a potential claim, contact condition unreasonably dangerous Under a negligence theory, the manufac- Will Sutton, a lawyer in our firm’s Toxic to plaintiff at the time it left the pos- turer or seller’s actions or inactions in the Torts Section, at 800-898-2034 or by email session of defendant DJI Technology manufacture or sale are at issue. In many at [email protected]. Inc. The DJI Battery was the proxi- cases both theories are applicable due to mate cause of the fire, which an already unreasonably dangerous occurred at the property. product being sold without the manufac- Engineering Co. Worker’s $3.3 Million Jury turer’s instructions and warnings leaving The separate complaints, filed by the Award Reduced To $600,000 the consumer with a potentially explosive Plaintiffs, which contained largely identi- situation. cal language for the claims and the back- A Florida federal judge reduced a $3.3 One of the unique aspects of this litiga- ground of the fire, included claims of million award by a jury to a woman whose tion is that sellers (and sometimes the dis- negligence and strict liability against each hands were mangled by an R.T. Engineer- tributors) of the products can be held of the five DJI Defendants and its distribu- ing Corp. wire bundling machine to liable as part of the chain of distribution in tor, Koozam Group Inc., and negligence $608,744. U.S. District Judge Brian J. Davis some states (e.g. Florida and California), against Tetra Tech Inc., the tenant that had did not elaborate on his reasons for reduc- but not in other states (e.g. Alabama, Mis- purchased the allegedly defective battery. ing the award to Cheri M. Conklin in his sissippi and Tennessee) that have passed It’s alleged that smoke and water from the order. The jury found in Conklin’s favor, varying types of legislation to protect fire damaged other tenants and lost them deciding that R.T. Engineering was 18 “sellers” unless certain conditions are met. business during the cleanup process. percent responsible for her injury, while The “innocent seller” legislation can take a It’s alleged that Koozam sold the drones her employer, Carlisle Interconnect Tech- variety of forms with some states provid- online, including through Amazon, and in nologies, was 77 percent responsible. The ing statutory indemnification to the seller retail outlets such as Apple stores. Con- jury found that a defective design or man- or distributor from the product manufac- sulting and engineering firm Tetra had ufacture of the 22042 Wrap Line Power turer. Other states have created statutory bought two DJI Phantom 3 drones from Feeder Big Blue Five Head, or “Big Blue,” tests allowing dismissal of sellers assum- Amazon the year before and kept them in machine that injured Conklin was respon- ing certain criteria are not met by the its Foster Plaza office, including one with sible for the injury. It also found that Plaintiff. There are even a few states that the defective battery that caught fire. Conklin was partly responsible for simply bar certain claims against sellers Tetra’s failure to properly charge, store or his injury. altogether. handle the battery led to the fire. “Tetra The Plaintiff alleged that while she was Another unique aspect of the litigation Tech, Inc. had a duty to other tenants, a manufacturing associate at Carlisle, she is that the major name brand battery man- including Plaintiffs, to be familiar with the was working on Big Blue, which was ufacturers are attempting to defend these DJI Phantom 3 drones, including their installed by R.T. Engineering and used to product liability lawsuits by claiming that instructions and warnings, to ensure that make aircraft wire bundles. She saw that they never anticipated their 18650-sized Tetra Tech’s use of the drones did not the tape wrapping the bundles being fed lithium ion batteries would be used in create an unreasonable risk of harm to into the machine was becoming wrinkled applications such as e-cigarettes, which nearby property.” and attempted to smooth out the wrinkles require 18650-sized lithium ion batteries. CorVel and SSW jointly sought damages before the wire bundle was pulled into For instance, after LG Chem, Ltd. was in excess of $600,000, Ohio Security the machine, per her training. However, named in dozens of lawsuits as the manu- sought more than $100,000 it had paid in her right hand got caught in the machine facturer of defective 18650 lithium ion insurance claims to Scoglio, and although and when she tried to pull it out with her batteries, LG Chem, Ltd. subsequently they hadn’t filed a complaint, court left hand, both hands became caught and issued various “safety warnings” stating records showed Konica Minolta and Stee- pulled into the machine. She suffered that its batteries are “not intended for sale plechase would seek more than $700,000. several lacerations, fractures, breaks and to or use by consumers.” However, tens of nerve damage to both hands, and a Source: Law360.com thousands of their 18650-sized batteries portion of the skin was torn off her continue to be sold as replaceable and right hand.

12 BeasleyAllen.com It was alleged that Big Blue was in an • one marketed prior to the MDA’s enact- nearly 83,000 deaths suspected of being “unreasonably dangerous condition,” with ment in 1976; or linked to medical devices had been no safety guards on mechanisms that reported to the FDA over a 10-year period. could pull body parts into the machine. In • one “substantially equivalent” to a Earlier this year, a documentary film titled addition, it was alleged that there were no device marketed prior to the MDA’s “The Bleeding Edge” was released that warnings about the lack of a safety guard enactment in 1976. exposed the loose regulatory require- or the danger that body parts could be A device manufacturer can obtain an ments that often allow dangerous medical caught and pulled into the machine. The FDA finding of “substantial equivalence” devices to enter the U.S. market. “The machine also did not have instructions by submitting a pre-market notification to Bleeding Edge” can be seen on Netflix. provided on how to shut it down in an the agency in accordance with Section The proposed changes are certainly a emergency, and the control panel could 510(k) of the FDCA. A device found to be step in the right direction. However, not be reached by someone operating the “substantially equivalent” to a predicate device manufacturers would still be able machine, according to the complaint. device is said to be “cleared” by the FDA as to base 501(k) clearances on predicate The Plaintiff is represented by Keith L. opposed to being “approved” following devices that were also 510(k)-cleared, Maynard and Sarah Shedlarski of Spohrer submission of a PMA. meaning neither the new device nor its & Dodd PL. The case is Conklin v. R.T. If the FDA concludes on the basis of the predecessor are approved by a showing Engineering Corp., (case number 3:17-cv- Section 510(k) notification that the device that the device is safe and effective. 00415) in the U.S. District Court for the is “substantially equivalent” to a pre-exist- If you need more information contact Middle District of Florida. ing device, it can be marketed without Beau Darley, a lawyer in our firm’s Mass Source: Law360.com further regulatory analysis. This is a much Torts Section, at 800-898-2034 or by email easier bar to pass than the FDA’s rigorous at [email protected]. PMA process under which manufacturers Sources: Br. of U.S. as Amicus Curiae in Horn v. must submit detailed information regard- Thoratec, Inc., 3d Cir. No. 02-4597 (filed May 14, IX. 2004); Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996); ing the safety and efficacy of their devices, Associated Press; Law360.com MASS TORTS which the FDA then reviews, spending an average of 1,200 hours on each UPDATE submission. The Bone Cement Litigation The Section 510(k) notification process is by no means comparable to the PMA FDA Proposing Changes To Device Approval Our firm is actively involved in the Bone process; in contrast to the 1,200 hours Cement Litigation. This litigation currently Process necessary to complete a PMA review, the involves four models of high-viscosity Section 510(k) review is completed in an On Nov. 26, 2018, the U.S. Food and (HV) bone cements used in total knee average of only 20 hours. replacement surgeries. Those models are: Drug Administration (FDA) announced A Section 510(k) notification requires plans to overhaul the process through little information, rarely elicits a negative • Simplex HV Bone Cement; which most medical devices are cleared to response from the FDA, and gets probe marketed in the United States. The cessed very quickly. In “clearing” a device • Cobalt HV Bone Cement; changes are intended to modernize the under the Section 510(k) process, the FDA • CMW 1 Bone Cement; and decades-old process, which has been criti- makes absolutely no findings related to cized by experts for causing the safety or efficacy. • SmartSet HV Bone Cement. widespread marketing of dangerous A number of medical devices that medical devices. obtained approval through the Section Simplex HV Bone Cement, which was In 1976, Congress passed the Medical 510(k) process have proven to be defec- approved most recently, is marketed by Device Amendments to the Federal Food, tive and linked to serious, permanent inju- Howmedica Osteonics Corporation, also Drug and Cosmetic Act (FDCA), a law ries in vast numbers of patients. Examples known as Stryker Orthopaedics (Stryker). meant to assure Americans that devices of these defective devices include metal- It is manufactured for Howmedica/Stryker recommended by their doctors would do on-metal hip replacements and transvagi- by aap Biomaterials GmbH in Dieburg, good and not harm. Under the Medical nal mesh linked to pain and bleeding. Germany. Prior to the release of Simplex Device Amendments (MDA), the manufac- The FDA’s overhaul of the 510(k) HV, Stryker promoted a non-HV bone turer of a Class III medical device (those process is meant to prompt manufacturers cement, called Simplex P, as being stron- that present a potential, unreasonable risk to base new products on technologies that ger, safer, and more effective than HV of illness or injury) must obtain the FDA’s are 10 years old or less. Almost 20 percent bone cements manufactured and sold by approval of a premarket approval applica- of medical devices are cleared after a other companies at that time. Despite tion (PMA) before marketing the device in showing of “substantial equivalence” to a Stryker promoting that its non-HV interstate commerce. predicate device that’s more than a decade cements were stronger, safer, and more There are several ways that medical old. The FDA’s announcement to overhaul effective than HV bone cements, Stryker devices can avoid being subjected to the the 510(k) process came one day after the devised a plan to design, manufacture, PMA requirement. Most notably, a medical publication of a global investigation into market and sell its own HV bone cements device is not subject to the PMA require- medical device safety by more than 50 to tap into the growing HV ment if it is “substantially equivalent” to a media organizations. cement market. predicate device. A predicate device may Led by the International Consortium of A few years later, in 2014, Stryker be either: Investigative Journalists, the group found started advertising its new Simplex HV that more than 1.7 million injuries and Bone Cement as faster and having the

JereBeasleyReport.com 13 same strength as non-HV Simplex P. In early December, the appellate panel the amount of $35.4 million by infringing However, in fact—and as previously adver- heard oral arguments on whether it should a heart valve patent. The jury rejected tised by Stryker—the HV cement is less reconsider the damages award. The judges claims that Boston Scientific infringed effective, and more prone to component had repeatedly pushed back against Zim- three Edwards patents. The jury found in shifting, loosening, and failure than its mer’s argument that a lower amount was part that Boston Scientific’s U.S. Patent non-HV counterpart. Now, medical litera- warranted, saying it was not the job of an Number 8,992,608 for a catheter-placed ture is beginning to confirm something appellate court to split hairs over specific valve was valid, and was infringed by Stryker has known for years: that HV bone damages amounts. Federal Circuit Judge Edwards’ Sapien 3 aortic valve through cements are more prone to failure than Sharon Prost had said: December 2016. Interest and damages for non-HV cements. 2017 and 2018 will be set by the court Beasley Allen lawyers have filed two You’re saying you’re agreeing there post-trial. separate actions in federal court in Dallas, is going to be enhancement, but While the jury’s award was well below Texas, on behalf of individuals who suf- now we are talking about whether it the $119 million in royalty damages fered early failures of the total knee should be three times, or two and a claimed by the company, there will be replacements due to tibial component half times. It is hard for us as an further damages proceedings in the case. debonding, leading to the need for revi- appellate court to scrutinize exactly Edwards’ claims that Boston Scientific’s sion procedures. They expect that discov- what percentage the district court Lotus aortic valve infringed three Edwards ery and medical literature will show this should have applied. patents, referred to as the “Spenser” trend of failures was not a coincidence The panel was unpersuaded by Zim- patents, were rejected by the jury. but, instead, the result of calculated deci- mer’s contentions and upheld the treble Desiree Ralls-Morrison, Boston Scien- sions by Stryker to market and sell Simplex damages the lower court had awarded tific senior vice president, general counsel HV bone cement knowing that it would to Stryker. and corporate secretary, in a state- increase individuals’ risk of early failures. The case began in 2010, when Stryker ment, said: Lawyers in our firm’s Mass Tort Section filed suit alleging that Zimmer infringed We continue to be encouraged by continue to investigate cases involving several patents. The jury found in favor of early knee replacement failure due to the sustained record of positive legal Stryker in 2013, after which the district rulings, first in European courts and high-viscosity bone cement. If you or a judge awarded enhanced damages and loved one has experienced complications now in the U.S., which upholds our attorneys’ fees. However, the Federal company’s intellectual property. from knee replacement surgery, requiring Circuit held in 2014 that under the stan- revision surgery, or you need more infor- dard that existed at the time, Stryker was Edwards, in its own statement, said it mation on a potential claim, contact Roger not entitled to enhanced damages or fees. “does not expect to pay the jury award Smith or Ryan Duplechin, lawyers in our The test required that enhanced damages since, earlier this year, the U.S. Patent and firms Mass Torts Section, at 800-898-2034 could be awarded only when there was a Trademark Office determined that all or by email at Roger.Smith@BeasleyAllen. high likelihood that the infringing party asserted claims of the ‘608 patent were com or Ryan.Duplechin@Beas- knew of the risk of infringement. invalid.” The company also said it plans to leyAllen.com. Stryker appealed to the Supreme Court, appeal the jury’s finding that its Spenser which agreed to hear the case in tandem patents are valid, but not infringed. with an appeal by Halo Electronics Inc., Jurors found that Edwards both directly X. and held that the enhanced damages test infringed Boston Scientific’s patent and was “unduly rigid.” The justices granted supplied infringing components from the BUSINESS district judges discretion to decide when U.S. “to another country, intending them LITIGATION to award enhanced damages, but said it to be combined in a way that Edwards should “be reserved for egregious cases knew would have directly infringed if it typified by willful misconduct.” After the occurred in the United States.” Edwards, new Halo test was implemented, the dis- meanwhile, failed to convince the jury Stryker’s $248 Million IP Judgment Is trict judge ruled in June 2017 that Stryker that it had been using the same feature as Affirmed On Appeal was entitled to treble damages and said it described in the Boston Scientific patent should receive $248 million from Zimmer. for more than a year before the ‘608 pat- The Federal Circuit Court of Appeals The patents-in-suit are U.S. Patent ent’s effective date. has affirmed Stryker Corp.’s $248 million Numbers 6,022,329; 6,179,807; and Boston Scientific argued that Edwards judgment in a surgical tool patent dispute 7,144,383. The case is Stryker Corp. v. directly infringed three claims of the ‘608 that had previously gone to the U.S. Zimmer Inc., (case number 17-2541) in patent, titled “Everting Heart Valve,” Supreme Court as part of a case that set a the U.S. Court of Appeals for the which was issued in March 2015. In its new and more relaxed standard for award- Federal Circuit. initial complaint, filed in April 2016, the ing enhanced damages in patent suits. In company accused Edwards of selling the an order, a three-judge panel summarily Source: Law360.com Sapien 3 knowing it to be “especially affirmed the $248 million in damages a made or especially adapted for use in an Michigan federal judge had ordered infringement” of the ‘608 patent, “and that Zimmer Inc. to pay for infringing Stryker’s Boston Scientific Wins $35 Million Verdict the Sapien 3 is not a staple article or com- surgical tool patents. This came after the In Heart Valve Patent Suit modity of commerce suitable for substan- high court’s decision in a case known as tial noninfringing use.” The Boston Halo, which made it easier to win A Delaware federal jury found last Scientific patent-in-suit is U.S. Patent enhanced damages in patent cases. month that Edwards Lifesciences Corp. damaged Boston Scientific SciMed Inc. in Number 8,992,608. The Edwards patents-

14 BeasleyAllen.com in-suit are U.S. Patent Numbers 7,310,575; the arbitrator awarded Three Brothers filed a new suit against State Farm, claim- 9,168,133; and 9,339,383. Trading $3,651,213. The petition states: ing it had put millions into Karmeier’s The case is Boston Scientific SciMed campaign fund through middlemen in Inc. v. Edwards Lifesciences Corp., (case The arbitrator also concluded that order to get him elected and secure his number 16-00275), in the U.S. District [Three Brothers Trading] was ‘the vote against the judgment. Court for the District of Delaware. prevailing party entitled to legal fees On Sept. 4, the same morning trial was in the amount of $93,304.06, plus set to begin on the class claims, the costs of $12,392.50,’ and directed parties announced State Farm had agreed Generex to reimburse [Three Broth- Biotech Co. Said To Be Responsible For to pay $250 million to settle the suit. ers Trading] $3,312.50 for fees and $3.6 Million Arbitration’s Judgment Judge Herndon granted preliminary expenses associated with the approval from the bench that day. Only arbitration. A trading firm has asked a New York one person, Lisa Marlow, objected to the federal court to enforce a $3.6 million The case is Three Brothers Trading LLC settlement. international arbitration judgment against v. Generex Biotechnology Corp., (case The policyholders are represented by a biotechnology company that reneged on number 1:18-cv-11585) in U.S. District Robert A. Clifford and Kristofer S. Riddle a financial arrangement. In February 2017, Court for the Southern District of Clifford Law Offices PC; Elizabeth J. Three Brothers Trading LLC and Generex of New York. Cabraser, Robert J. Nelson and Kevin R. Biotechnology Corp. signed a contract Budner of Lieff Cabraser Heimann & Bern- Source: Law360.com agreeing that the trading firm would stein LLP; Brent W. Landau and Jeannine provide referral services to Generex, M. Kenney of Hausfeld LLP; Erwin S. which wanted to secure financing for its Chemerinsky of the University of Califor- business, according to the petition to XI. nia School of Law; John W. Barrett of confirm the arbitration award. Barrett Law Group PA; Richard Barrett of The petition states that, instead of pro- AN UPDATE ON Law Offices of Richard R. Barrett PLLC; viding a retainer fee to Three Brothers SECURITIES Jonathan L. Loew and Steven P. Blonder of Trading, pursuant to the agreement Much Shelist Denenberg Ament & Ruben- Generex agreed to a 60-day “no shop” INSURANCE AND stein PC; Patrick W. Pendley of Pendley exclusivity provision, which gave Three FINANCE Baudin & Coffin LLP; Thomas P. Thrash Brothers Trading the exclusive right to and Marcus N. Bozeman of Thrash Law secure financing for Generex during the LITIGATION Firm PA; W. Gordon Ball of Gordon Ball exclusivity period, which ran from Feb. 8 PLLC; and Stephen A. Saltzburg of Stephen to April 9, 2017. The petition states A. Saltzburg, Attorney at Law. further: $250 Million State Farm Settlement Is The case is Hale et al. v. State Farm Approved Mutual Automobile Insurance Co. et al., The contract included an explicit (case number 3:12-cv-00660) in the U.S. remedy for breach of the exclusivity An Illinois federal judge has given final District Court for the Southern District provision: In the event that Generex approval to a $250 million settlement in a of Illinois. secured any financing from an class action accusing State Farm of using Source: Law360.com investor not referred by [Three campaign donations to buy an Illinois Brothers Trading] during the exclu- Supreme Court justice’s vote. An objector sivity period, Generex was to com- to the settlement has said she will likely pensate [Three Brothers Trading] as appeal. At a hearing in an Illinois federal XII. if [the trading firm] had sourced the court, U.S. District Judge David Herndon financing. granted final approval to the settlement PREMISES and approximately $90 million in fees and LIABILITY UPDATE The parties also agreed to arbitrate any expenses for the 10 firms and lawyers that disputes concerning the contract, an represented the class of nearly 5 million avenue that was put to use in November State Farm policyholders. Liability For Negligent Security 2017 after Generex rejected an investment This has been a very lengthy battle. In from an investor Three Brothers Trading fact, the ruling comes after 20 years of liti- Negligent security is the basis by which presented and instead agreed to enter into gation between the class and State Farm, someone injured by a third party tries to a financing agreement with another inves- spread out between two separate suits. hold liable either the owner or tenant of tor not referred by Three Brothers Trading The litigation began with a class action the property where the criminal injury during the agreed-upon exclusivity brought against the insurer in 1997, accus- was suffered. There is a duty imposed period, the petition states. ing State Farm of improperly using after- upon the landowners and possessors of Following the arbitration process, an market crash parts to repair policyholders’ property to offer reasonable security mea- arbitrator from the American Arbitration cars. After a trial, a jury awarded the class sures to protect their lawful visitors from Association said it was “clear Generex of 4.7 million consumers more than $1 foreseeable crimes of third parties. In neg- breached the agreement” and awarded billion in damages. ligent security cases, an assumption is Three Brothers Trading $210,000 in “liqui- The Illinois Supreme Court threw out made that the crime could have been pre- dated damages and the economic value the judgment in a vote that saw newly vented or at least made less likely by using today of 84,000 warrants convertible to elected Justice Lloyd Karmeier siding with appropriate security measures. [Generex’s] stock exercisable at $2.50 per State Farm. Not long afterward, the class share as of September 24, 2018.” In total,

JereBeasleyReport.com 15 In a negligent security action, the Plain- anyone could walk in and break in,” she The Camp Fire completely destroyed tiff needs to show that the owner or said, adding that the gate was open for the communities of Paradise and Concow, tenant failed to exercise reasonable care most of the Thanksgiving break. including five public schools, a hospital, a to discover similar prior criminal activities Residential cases like these are nursing home, several churches, a shop- or failed to give adequate warnings, so vis- common. But negligent security cases ping center, several restaurants and other itors could avoid injury. A Plaintiff must arise in many circumstances, from night- businesses, and nearly 14,000 homes. The show they were lawfully present on club shootings to assaults in nursing area looked like a “war zone.” The fire Defendant’s property, the Defendant homes. The settlements and verdicts in killed 88 people and destroyed more than breached their duty to offer reasonable these cases do more than just compensate 19,000 structures before it was fully con- security, the Plaintiff was injured because those who suffered an injury or tragic tained on Nov. 25. of third party’s acts that were reasonably loss. They also may spur a community- The class action Plaintiffs say that the foreseeable to the Defendant, the Plaintiff wide benefit because the results can cause California Public Utilities Commission and would not have been injured but for the others to examine themselves. other state agencies have repeatedly Defendant’s breached duty, and the Plain- Lawyers in our firm are investigating pointed to PG&E’s faulty infrastructure as tiff incurred actual damages. and litigating numerous negligent security the cause of previous fires and other disas- Foreseeability is a critical issue in negli- cases. If you have a question about a negli- ters, including the deadly gas line explo- gent security cases. A court will look at gent security case, contact Parker Miller at sions that leveled parts of San Bruno in whether there were prior, similar crimes [email protected] or at September 2010, killing eight people and in the same location that the owner or 800.898.2034. Parker, who is in our injuring several others. possessor knew or should have known Atlanta office, will be glad to talk People displaced by the October 2017 about. Additionally, the court may also with you. wildfires that swept through Napa and consider how frequently law enforcement Source: https://www.ajc.com/news/vic- Sonoma Counties, killing 43 and destroy- has been called to a property, the nature tim-says-better-security-could-have-pre- ing thousands of homes, businesses and of past crimes, and the closeness in time vented-shooting-robbery-brookhaven-com- farms, blame downed PG&E power lines of the prior crimes to the injury. plex/IQ4Q9b0yF2ss9UneWTG38J/ and that were spotted in at least four Sonoma On Oct. 2 of this year, parties in a negli- https://www.prnewswire.com/news- County locations where some of the heavi- gent security shooting at an apartment releases/3-million-settlement-in-negligent- est damage occurred. complex in Atlanta settled for $3 million. security-shooting-case-in-atlanta-geor- A pair of other lawsuits, filed Dec. 11 in The case arose from a fatal shooting at gia-300724229.html Butte County Superior Court, accuses Creekside Forest Apartments on Jan. 6, PG&E of spending as much as $50 million 2016. Evidence showed that the security on advertising to improve its image in the gates at the complex were not functional, Mounting Camp Fire Lawsuits Target PG&E years following the San Bruno Blast and the guard shack was in shambles and Infrastructure not enough on maintaining and upgrading overall the security was lacking. The presi- its infrastructure. dent of the complex’s security company Californians who lost their homes in the The lawsuit, which claims PG&E is a went as far as to say that if you lived at deadliest and costliest wildfire in the threat to public safety, seeks an injunction Creekside Forest, “you’re a sitting duck.” state’s history are pursuing claims against to “halt PG&E’s false advertising” that A former employee of one of the Defen- Pacific Gas & Electric (PG&E), alleging claims to place “the safety of its customers dant companies testified by affidavit that the utility knows its electrical systems are and operations first.” Frank Pitre, a lawyer the “security guards” at the complex had old and unsafe and that it triggered the representing some of the Butte County not been stopping crime, but instead were Camp Fire that ravaged Butte County fire victims, told the San Francisco “taking half of the money that changed in November. Chronicle: hands in drug deals on the property.” One proposed class action filed Dec. 5 We’re using the injunction because Another, similar situation occurred Nov. in a California state court claims that we need to send a message to those 24, again in Atlanta. Mallory Heath, a faulty and poorly maintained PG&E equip- people who are in charge of the deci- 33-year-old resident of Post Glen apartment started the blaze on Nov. 8. The sion-making that they have to start ments, was robbed and shot while in the Plaintiffs point to transmission towers now redirecting money to safety as breezeway at the complex. The man owned by PG&E that malfunctioned in the opposed to talking about it. accosted her, stole her purse and shot her area shortly before the fire broke out. in the leg. Lawyers for Ms. Heath are pre- According to the lawsuit, PG&E contin- Sources: Law360, San Francisco Chronicle, Fox40, paring a negligent security suit. Other resi- ually allowed vegetation in the high-fire- RightingInjustice dents at the complex said that the security risk area to grow too close to electrical gates for cars to enter the complex are poles and lines. Once the fire started, sea- often broken. sonal high winds fueled the flames. Hotel Employee Filmed Woman In The Caroline Watkins, another Post Glen res- Another lawsuit filed Dec. 6 in San Fran- Shower And Then Extorted Her ident, lives near the breezeway where the cisco Superior Court by a group of Camp shooting occurred. She stated that the Fire survivors claims that as strong winds A Chicago woman has filed a $100 complex’s security is an ongoing issue. blew through the area, a poorly main- million lawsuit against Hilton Worldwide, The front of the complex has two entry tained, uninsulated jumper cable made alleging that one of the hotel conglomer- gates: one for residents and one for guests. contact with a PG&E transmission tower, ate’s employees filmed her in the shower When the resident gate is not working cor- sending “blazing hot molten materials” without her knowledge and later rectly, management will just leave the into the dry vegetation. attempted to extort her over the footage. guest gate open. “If the gate’s open, The plaintiff is accusing the hotel chain of

16 BeasleyAllen.com negligence, saying it allowed the suspect down and never attempted to avoid hitting would have been avoided if the driver had access to her personal information. her vehicle. She was fortunate that the simply pulled over prior to falling asleep. The woman, who wishes to remain impact was indirect and she wasn’t killed; anonymous, told “Good Morning America” however, the injuries she sustained were the hidden-camera recording took place severe nonetheless. Settlement Is Reached For Man Injured By during her July 2015 stay at the Hampton The driver of the tractor trailer had no Pizza Delivery Driver Inn and Suites in Albany. However, the excuse for why he lost control of his woman says she wasn’t aware of the tape’s vehicle and drove through the interstate Joseph Workman, who was injured existence until September of this year into oncoming traffic. He was seen by when a Papa John’s delivery driver turned when she received an email with a link to multiple paramedics and EMTs and at no left across two lanes of travel in front of a porn site. point told anyone he passed out or had a him, has settled his lawsuit. Mr. Workman The same day, the woman received medical event. Nine hours later, at the sug- was driving his motorcycle on a public another email from the same address gestion of his insurance company repre- street in Selma, Alabama, at the time of demanding she provide more nude sentative, he was driven to the hospital by the incident. The impact sent him over the footage of herself if she didn’t want the the insurance company employee where delivery car’s hood, fracturing the scaph- video published along with her name and he tells the hospital that he passed out at oid bone in his wrist. job information. She told GMA: the wheel. The hospital diagnosed the Mr. Workman had open reduction inter- driver with a possible syncope event with nal fixation surgery, in which two screws My initial reaction was, ‘Your life is unknown etiology, but did not do any were inserted into his wrist to hold the absolutely ruined, people are going testing, nor does the doctor consider that bone in place for it to heal. Although the to see this, they are going to see you he may have fallen asleep. There is no bone healed, complications from surgery naked and they are going to objective evidence that he experienced a led to a follow-up surgery to remove assume things. medical event. the screws. When the woman didn’t comply, the Chris Glover, a lawyer in our firm, took Mr. Workman brought claims of negli- video was circulated to some of her col- the case and our investigators went to gence and wantonness in his lawsuit leagues along with a new demand to her: work. Their investigation revealed that against Papa John’s and the driver. There $2,000 up front and $1,000 a month for there was substantial evidence that the was also a claim for negligent hiring, train- the following year. The woman stated: driver fell asleep while driving. The driver ing, and supervision in the complaint suffered from severe obstructive sleep against Papa John’s. Papa John’s defended It was just absolutely traumatizing apnea. His daytime sleepiness was so the case and claimed that because the because these are people I went to severe that he had complained of that fact light on the motorcycle was out, the deliv- law school with. They are friends, 25 times in the three months leading up to ery driver couldn’t see the motorcycle they are coworkers. And they were the accident. The driver had even experi- when she pulled out in front of him. sent a link to what looks like an enced a sleep related driving incident Warner Hornsby, a lawyer in our Per- email I sent. shortly before the crash. He testified that sonal Injury & Products Liability Section, one of the times he got sleepy was when represented Mr. Workman. Warren was It has been reported that other women he didn’t sleep well because his refrigera- able to reach a confidential settlement on may have had the same experience as did tor unit on his truck wasn’t operating Mr. Workman’s behalf that will help him the Plaintiff in this case at the same hotel. when he stopped for rest. The night get his life back together as he recovers However, that is yet to be confirmed. before the crash his refrigerator unit was from his injuries. Warner says it was his However, the hotel has to have gotten the not working. The key testimony came privilege to help him during this trying message that this sort of thing should from two motorists who saw this driver time in his life. never happen. nodding off at the wheel in the miles Source: USA Today leading up to this crash. The circumstances of the crash reflect Fatal Southwest Flight 1380 Was Year Isn that it was the prototypical sleep-related The Making XIII. incident. There are numerous articles on the characteristics of crashes that occur Southwest Airlines Flight 1380 departed TRANSPORTATION when drivers fall asleep. This incident fit New York’s LaGuardia Airport April 17, LITIGATION square within those criteria even down to and was bound for Love Field in Dallas, the time of day it occurred. Trucking com- Texas. Approximately 20 minutes into the panies and their insurers claiming that flight a fan blade of one of the Boeing drivers experience medically related 757-200 jet’s engines broke off and caused Beasley Allen Reaches Confidential events to avoid liability is getting far too the engine to explode. Shrapnel from the Settlement In Tractor Trailer Injury Case common. Many times, as was the case engine broke through the encasement, here, these incidents are caused by driver Margaret Freeman was driving her Jeep creating an uncontained engine failure fatigue, distraction or inattention. and cracking a passenger’s window. The Wrangler in Madison County, Alabama. It Chris Glover, who heads up our Atlanta was a beautiful day and traffic was moving cracked window led to a violent cabin office, and his staff worked this case up. decompression and a passenger was par- smoothly on Interstate 565. She was travel- Chris says he was humbled to have the ing with a friend and obeying all traffic tially sucked out of the window. Bank opportunity to help this client. He says executive and mother of two from Albu- laws when unexpectedly a tractor trailer that he is convinced that this incident truck shot across the highway and hit her querque, New Mexico, 43-year-old Jenni- vehicle hid on. The truck never slowed fer Riordan, was the passenger and she

JereBeasleyReport.com 17 later died from her injuries. As discussed plane met the FAA requirements. But since forward, more frequent inspections in this Report previously, Ms. Riordan was that time, experts have determined that were ordered. the first passenger fatality on a U.S. air the process, which used fluorescent dye Federal safety officials explained that carrier in nearly a decade and the first for to highlight flaws, could not detect the one potential cause for the faulty engine is Southwest in its 51-year history. microscopic fractures that were already the frequent takeoffs and landings per- beginning. formed by discount air carriers like South- NTSB holds hearing Within days after Flight 1380 CFM Inter- west, according to Popular Mechanics. The investigation into what caused the national, the engine’s maker advised The extra cycles create more wear and fan blade to break is still ongoing but to inspectors to use newer, more effective tear on the engines. And, because the better understand what caused the series processes for finding microscopic cracks powerful engines have a vacuum effect, of tragic events, the National Transporta- earlier in a component’s life in its Service the more takeoffs and landings also tion Safety Board (NTSB), which is Bulletin 72-1033. The FAA followed with increase the amount of debris taken in off charged with investigating such incidents, an Airworthiness Directive (AD) requiring the tarmac by the engines. The debris held a hearing last month, according to inspectors to use more modern processes wears on the engine’s components, and the Washington Post. It questioned other including: one metallurgist explained to the Philly federal officials from the Federal Aviation Inquirer that maintenance technicians Administration (FAA), the agency that reg- • Ultrasonic Testing—In this process, will clean the blades by blasting away the ulates aviation in the U.S., along with high-frequency sound waves are used to grit, but some pieces can get lodged in the Southwest representatives about the test the thickness of materials, such as metal contaminating the area and possibly design and testing of the engine, and what metal used in aircraft components, and causing a crack like the one discovered in steps have been taken following the fatal represent the properties of the item Flight 1380’s aircraft. flight. New details about the harrowing being tested and detect anomalies. The FAA’s AD that was based on CFM flight were revealed during the hearing. • Eddy Current—The process involves International’s Service Bulletin required alternating electrical currents passed inspections on all CFM 56-7B-series • Those on the flight reported a loud engines with 20,000 or greater cycles and boom that was followed by strong vibra- through a coil thereby producing a magnetic field, which induces current flow future inspections should be conducted at tions and the aircraft rolled 41 degrees intervals not to exceed 3,000 engine before the pilots could regain control. that travels in closed loops called eddy currents. Eddy currents create their cycles. • The loss of cabin pressure was so great own magnetic field that can be used to FAA’s funding conundrum that it was hard to hear and difficult for test materials for flaws. flight attendants to reach the pilots by An additional complication is the federal intercom. During the November hearing, investi- budget and what that means to the FAA’s gators leaned heavily upon FAA regulators future, including security issues such as • Flight attendants checked on passen- for failing to issue a similar AD demanding inspections and airport security. The FAA gers, row by row, and discovered more effective inspection processes imme- is one of several federal agencies facing a Riordan was still strapped to her seat diately following an incident in August shutdown if lawmakers and the White but her upper torso, arms and head 2016 that was very similar to Flight 1380, House cannot reach agreement on seven were outside the window, USA Today as described previously in this Report. spending bills with looming expiration reported. Two female flight attendants The flight, also a Southwest Airlines dates, Politico reported. One of the key struggled to get her back in the cabin flight, was forced into an emergency parts of the impasse is the Administra- and were assisted by two male passen- landing in Pensacola, Florida, after an tion’s politically inspired demands for a gers. Flight attendants and an EMT and uncontained engine failure started a fire border wall. The FAA was shut down nurse who were on board began CPR beneath the right wing. Debris from a briefly earlier in 2018 and because certain and other life-saving measures broken fan blade slashed through the fuse- agencies and programs are exempt from for Riordan. lage, wing and tail, forcing the cabin to shutdowns, funding has been diverted to lose pressure. support them including border patrol • Eight other passengers were injured FAA experts explained that they had activities. Meanwhile, passenger safety including at least one of the men who never witnessed such an incident at the and the safety of all of us on the ground helped pull Riordan back in time and believed the Pensacola incident hangs in the balance. the window. was an anomaly. The agency took correc- Mike Andrews, a lawyer in our Personal • NTSB investigators found evidence of tive action over the aircraft’s unsafe condi- Injury & Products liability Section, metal fatigue in the broken fan blade tion but believed it had time to address the handles aviation litigation for the firm. If and determined the fatigue likely began issue more broadly. It opted to begin the you have any questions or have a potential around the time of its last rigorous normal, yet slower, process for new regu- aviation case, contact Mike. He will be inspection in 2012. lations, one that includes a public glad to help you. Mike can be reached at comment period. 800-898-2034 or by email Mike.Andrews@ Fatal incident prompts changes in beasleyallen.com. Southwest Flight 1380 also prompts inspection processes Sources: Jere Beasley Report (August 2018), changes in frequency of inspections Flight 1380’s aircraft had been Washington Post, USA Today, Jere Beasley Report The NTSB’s findings of metal fatigue (November 2018), Popular Mechanics, Philly Inquirer, inspected just two days before the fatal Politico flight yet the last time it received a thor- also prompted the FAA to order airlines to ough inspection was six years ago. At the inspect fan blades on aircraft with similar time, the inspection process used on the engines immediately and, moving

18 BeasleyAllen.com XIV. tence that this is a step in the right The current lawsuit alleges that the direction. Nearly 40,000 Americans Defendant manufacturers knew that the TOXIC TORT die each year from asbestos-related products the Plaintiff was exposed to con- LITIGATION diseases that the EPA could prevent tained benzene and have known for years if it would do their job and ban that benzene poses a health hazard and CONCERNS asbestos without any loopholes or can kill humans working in close proxim- exemptions. ity to their products, yet they continued to manufacture and sell these products, If you need more information on this Canada’s Asbestos Ban Now In Effect while at the same time marketing the subject, contact Sharon Zinns, a lawyer in products as safe. We are honored to repre- Canada’s ban on the manufacture, our Atlanta office, at 800-898-2034 or by sent the family of the deceased tire worker import, export, sale and use of asbestos email at [email protected]. in their efforts to recover damages for his and asbestos-containing products went Sources: Tire Business, CTV, ADAO injuries and death. into effect on Dec. 30. The new regula- John Tomlinson, a lawyer in our firms’ tions were proposed by the Canadian Toxic Torts Section, is currently investigat- federal government in January 2018. Family Of Tire Manufacturer Employee Files ing other benzene exposure cases. If you Canada joins more than 60 other countries Lawsuit Over Benzene Exposure need more information on this contact around the world in banning the mineral. John at 800-898-2034 or by email at John. For decades, asbestos was widely used Our law firm recently filed a lawsuit in [email protected]. in construction, shipbuilding, and friction The Circuit Court of Eau Claire County, materials due to its durability and fire Wisconsin, on behalf of the family of a resistance. But asbestos fibers are micro- former employee of The Uniroyal Monsanto Colluded With The EPA To Bury scopic and can become airborne. If Goodrich Tire Company at its now-closed Cancer Research inhaled, asbestos can lead to mesotheli- manufacturing facility in Eau Claire, Wis- oma, a rare form of cancer that develops consin. The worker developed Myelodys- The active ingredient in Roundup, a in the lining that surrounds the lungs, plastic Syndrome (MDS), a type of cancer weed killer manufactured by Monsanto, is abdomen, chest, or testicles. It can take up of the blood and bone marrow, and subse- a chemical called glyphosate. Glyphosate to 50 years for mesothelioma to develop, quently died as a result of the disease. The is the most commonly used weed killer in at which point the diagnosis is typically decedent worked throughout the plant in the world, and while Monsanto has touted dire, with most patients dying within a multiple departments and in several posi- Roundup’s safety for decades, thousands year or two. tions for approximately 40 years. of lawsuits pending throughout the The serious health risks related to asbes- The decedent worked in these areas: as country allege that the use of Roundup tos exposure led dozens of countries to a tire builder/loader, tread man, in assem- can lead to the development of non-Hodg- ban its use. In the 1980s and 1990s, the bly and installation, storing and curing, kins lymphoma. The first such case to go United States and Canada fell short of and as a conveyor attendant. During his to trial resulted in a $289 million Plain- banning asbestos, instead restrict- time at Uniroyal, the worker was con- tiff’s verdict. Judge Suzanne Bolanos sub- ing its use. stantly exposed to toxicologically signifi- sequently reduced the award to $78 In 2016, after years of pressure from cant levels of benzene, benzene million. Monsanto (now owned by Bayer) health experts and family members of derivatives, rubber solvents, solvent has appealed. asbestos victims, Canada agreed to ban blends, and other toxic and hazardous Internal Monsanto documents released the carcinogenic mineral. Corporations chemicals. The family has sued the manu- last year by lawyers litigating against Mon- continued to argue that asbestos was safe facturers of these benzene-containing santo have raised new questions about if proper precautions were used but, ulti- products. Monsanto’s efforts to influence the media mately, the scientific evidence won out. Benzene is a clear, highly flammable and scientific researchers with regard to Last fall, the Canadian federal government liquid with a sweet, gassy smell. It occurs Roundup’s safety. Numerous emails finally agreed to enforce new regulations naturally in petroleum, and it is used as an appear to shed light on a practice of mis- to do away with the manufacture, import, organic solvent to make a variety of other leading authorship on academic research export, sale and use of the toxic mineral. chemicals and various plastics. It is also into glyphosate’s potential risks. One aca- The U.S., however, has taken a different used in the manufacturing of some types demic, John Acquavella, a former Mon- stand under the Trump administration. of rubbers, lubricants, dyes, detergents, santo employee, expressed discomfort The Environmental Protection Agency drugs and pesticides. Because benzene with Monsanto’s demands during the (EPA) has released a Significant New Use comes from petroleum, benzene is often research process. In an email to Monsanto, Rule (SNUR) for evaluating the risk of sub- found in oil-based paints, various degreas- Acquavella stated, “I can’t be part of stances and, as a result, will allow new ers, solvents, cleaners, and fuels—includ- deceptive authorship on a presentation or uses of asbestos on a case-by-case basis. ing diesel, gasoline and kerosene. Persons publication,” and warned that “we call Linda Reinstein, co-founder of the non- working in close proximity to benzene or that ghost writing and it is unethical.” profit Asbestos Disease Awareness Organi- benzene-containing products can be put However, Monsanto has subsequently zation (ADAO), is fighting the federal at serious risk because their exposure can claimed that all questions concerning government to change the rule. She wrote occur at much higher levels and for longer potential ghostwriting and claimed in an appeal on the organization’s website: periods of time. The medical literature authorship over studies of Roundup’s indicates that benzene causes MDS and safety were resolved long before any final The EPA has tried to minimize the other forms of leukemia and lymphoma. drafts were released. According to Scott danger of the SNUR and has instead Patridge, vice president of global strategy chosen to double down on its insis-

JereBeasleyReport.com 19 for Monsanto, “What you’re seeing here counts, lower sperm mobility and a reduc- ifornia companies CertainTeed Corp and are some cherry-picked things that can be tion in “anogenital distance” which is a Calaveras Asbestos, were involved in the made to look bad.” Plaintiffs in the measure of reproductive health. production of asbestos cement pipes. Roundup MDL call this nonsense, and Although the study was small, compar- CertainTeed manufactured the pipes argue that the newly released documents ing just 212 exposed young men with 171 during the 1960s until the late 1990s and show that a debate outside Monsanto controls, the research has international Calaveras supplied asbestos to Cer- about the relative safety of glyphosate and implications due to the widespread use of tainTeed from 1976 to 1986. Mr. Trapp, Roundup (which contains other chemicals these chemicals in a variety of items who eventually died of mesothelioma, in addition to glyphosate) was also taking including food wrapping paper, the textile lived and worked between four and seven place inside the company. industry, and in firefighting foam. The miles of the Santa Clara CertainTeed plant Other emails establish that, internally, findings of the study provide a potential for the entirety of his life. While Mr. Trapp Monsanto employees had questions about explanation as to why a recent study never used any of the products or entered Roundup’s safety. One Monsanto scientist found that sperm counts in the United the plants, the court concluded that Plain- wrote in a 2001 email, “If somebody came States, Australia, Europe and New Zealand tiff’s allegation of the plants’ specific to me and said they wanted to test have fallen more than 50 percent between fibers causing Mr. Trapp’s mesothelioma Roundup I know how I would react—with 1973 and 2011. “was not unprovable.” serious concern.” Monsanto’s lead toxicol- This latest discovery adds to the increas- The Santa Clara Superior Court origi- ogist, Donna Farmer, wrote in a 2009 ing list of potential health effects posed by nally granted the defendant’s motion for email that she “cannot say that Roundup long-term exposure to PFOA and PFOS. summary judgement in 2016; however, does not cause cancer,” because “[w]e These include testicular cancer, kidney the 6th District California Court of Appeal [Monsanto] have not done the carcinoge- cancer, ulcerative colitis, thyroid disease, reversed the grant in November. When nicity studies with Roundup.” high cholesterol and pregnancy-induced discussing Plaintiff’s cause of action for While the Environmental Protection hypertensions. As a result, individuals and strict liability, the court concluded that Agency (EPA) should have required or con- water systems across the county have the companies participated in the stream ducted appropriate tests regarding Round- been filing suit to ensure their drinking of commerce “leading to injury from the up’s safety, documents establish that the water is decontaminated. allegedly defective product, asbestos.” The EPA simply declared Roundup safe for use Our firm, along with Roger H. Bedford District Judge further found the compa- in reliance upon research provided by of Roger Bedford & Associates, has filed nies should have foreseen the possibility Monsanto. That research evaluated just lawsuits on behalf of the water systems in of airborne asbestos fibers traveling to one of Roundup’s many chemical ingredi- Gadsden and Centre, Alabama. These com- nearby areas. ents in isolation instead of the entire plaints allege that carpet and textile com- If you would like more information product formulation as a whole. In other panies, manufacturers, and chemical about this case, or you have any questions words, the EPA neglected its duty to suppliers located upstream in Dalton, concerning asbestos related illnesses, you conduct a neutral and unbiased inquiry Georgia are responsible for contaminating can contact Sharon Zinns or Ashtyne into Roundup’s safety profile, to Monsan- the Coosa River and Weiss Lake. The law- Traylor, lawyers in our firm’s Toxic Torts to’s benefit. suits were filed to ensure that these enti- Section. Sharon is in our Atlanta office and If you would like more information ties, not ratepayers in Gadsden and Ashtyne is in the Montgomery office. They about these cases, you can contact Grant Centre, would pay to decontaminate their can be reached at 800-898-2034 and by Cofer, a lawyer in our Toxic Torts Section. drinking water. email at [email protected] He can be reached at 800-898-2034 or by Beasley Allen lawyers are investigating or [email protected] email at [email protected]. other PFC contamination cases. If you Sources: Beverly Trapp et al. v. CertainTeed Corp, Sources: https://www.collective-evolution. have any questions about this subject, 2018 WL 6075234. com/2018/12/04/documents-reveal-how-monsanto- contact Rhon Jones, Rick Stratton, or Ryan the-epa-bury-cancer-research/ Kral, lawyers in our firm’s Toxic Torts https://www.nytimes.com/2017/08/01/business/ Section, at 800-898-2034 or by email at monsantos-sway-over-research-is-seen-in-disclosed- Raising Awareness Of Naloxone emails.html [email protected], Rick.Strat- [email protected], or Ryan.Kral@bea- An overdose of opioids causes respira- sleyallen.com. tory depression that can lead to hypoxia Source: The Intercept and, all too often, death. Naloxone (also Study Links PFC Exposure To Male commonly known as Narcan) is effective Reproductive Issues in reversing opioid overdoses and is increasingly being delivered and utilized A new study published in the Journal of Environmental Asbestos Emissions Clinical Endocrinology and Metabolism in non-hospital settings by emergency per- found that the perflourinated chemicals Recently, a California appeals court sonnel. There is also a current movement, PFOA and PFOS cause a range of problems unanimously revived a lawsuit against two led by the U.S. Surgeon General, to dis- with the male reproductive system. The former asbestos manufacturers finding the pense naloxone to the public to those who research was conducted in Veneto, Italy companies owed a duty of care extending take opioids or family and friends of where the drinking water has been con- beyond the premises of their facilities. opioid patients or addicts. taminated by the industrial use of PFCs. The suit alleged a man, Dean Trapp, devel- Paramedics have carried naloxone for Researchers compared male high school oped mesothelioma stemming from air- many years. As the opioid crisis has students in Veneto who were exposed to borne exposure to asbestos from the grown, police departments have begun the chemicals to those who weren’t and plants that were located several miles equipping their officers with naloxone to found the exposed group had lower sperm away from his home. The plants, local Cal- reverse the effects of opioid overdoses.

20 BeasleyAllen.com Law enforcement departments in at least hooked on pain pills and then forcing Eastern District of North Carolina for the 28 states are allowed or required to carry them to undergo painful procedures for widespread pollution. The CFRW sought naloxone to respond quickly to opioid the patients to receive more of the addict- an injunction that would prevent Che- overdoses. It is somewhat shocking, and a ing substances. The indictment states that mours from discharging into the Cape demonstration of how bad the crisis has among the painkillers prescribed were Fear River and require it to control 99 gotten, that the Surgeon General is now Oxycontin, Percocet, Opana, Vicodin and percent of its emissions. advising that pharmacies provide nalox- Dilaudid. On Nov. 21, 2018, Chemours, the one to the general public, but it is impor- On a national level, the effects of the Department of Environmental Quality tant to note that this precaution can opioid epidemic are startling. A study pub- (DEQ) and the CFRW signed a proposed save lives. lished in the journal JAMA Network Open consent order hoping to settle the pending Naloxone is not itself a controlled sub- suggests opioid abuse in the U.S. is now claims. The order requires Chemours to stance. It is very effective in reversing responsible for 20 percent of deaths pay $12 million in civil penalties and $1 opioid overdoses, and recent studies have among young adults—up from just 4 million for the costs incurred from the indicated that administration by layper- percent in 2001—a far greater pace than investigation. Furthermore, Chemours sons is effective in avoiding death. Nalox- any other age group. Comparatively, one will be required to follow monitoring mea- one for non-medical personnel is available in every 65 adults in the U.S. suffered sures, provide permanent drinking water in nasal spray and autoinjector format, so deaths associated with opioids in 2016—a supplies to those whose wells have tested that it is easy for a layperson to use, with a 292 percent increase since 2001. Due to positive for GenX and eliminate at least 99 little training. Narcan, the nasal spray the continued deterioration of the addic- percent of GenX air emissions. The CFRW version of naloxone, can be had for as tion crisis nationwide, the researchers has agreed to dismiss its suit against Che- little as $75 for a two-pack. concluded the U.S. lost a total of 1,681,359 mours and to join the State’s case in order Naloxone itself is considered a safe med- years of life in 2016 alone. According to to enforce the terms of the order. ication. In 2015, there were no reported the U.S. Centers for Disease Control and Before it can be given final approval, fatalities causes by naloxone alone. But Prevention (CDC), opioid overdose deaths the consent order must undergo a public those addicted to opioids may be averse to are a major contributing factor to life comment period. The Cape Fear Public having Naloxone on hand. When naloxone expectancy in the U.S. declining two Utility Authority (CFPUA) and the New is administered to patients who are opi- years in a row Hanover County Commissioner are oid-dependent or acutely intoxicated with But loss of life isn’t the only toll the opposed to the signing of the order due to opioids, it can rapidly trigger acute with- opioid crisis takes on communities. The the fact that it addresses the concerns for drawal syndrome, the symptoms of which CDC estimates the opioid epidemic costs communities in Bladen County but fails to range from mild behavioral disturbances the U.S. about $78.5 billion a year in health provide any relief to the citizens of New to reports of cardiovascular instability and care, lost productivity, addiction treat- Hanover County. The public comment pulmonary edema. However, these effects ment, and criminal justice involvement. period was to remain open until Dec. 21. are rarely life-threatening. Due to the holidays, information was It is important to recognize the symp- unavailable at press as to what has trans- toms of opioid overdose. Signs of opioid Chemours Signs Proposed Consent Order in pired. If you need more information overdose include slowed breathing, blue North Carolina contact Megan Robinson, a lawyer in our or purplish lips or fingernails, limpness, firm’s Toxic Torts Section, at 800-898- vomiting or gurgling, and being The State of North Carolina filed suit in 2034 or by email at Megan.Robinson@bea- unresponsive. September 2017 against The Chemours sleyallen.com. Sources: Journal of Therapeutic Advances in Drug Company FC, LLC (Chemours) for the Sources: Star News, Delaware Online, Safety, webmd.com unlawful releases of “GenX” or “C3 Dimer southernenvironment.org, WECT Acid” from its manufacturing processes at the Fayetteville Works Facility (Facility). Detroit Doctors Involved In Opioid Scheme Chemours was formed by E.I. du Pont de XV. Made Hundreds Of Millions Nemours and Company (DuPont) which transferred ownership of the Facility to UPDATE ON In what federal prosecutors are calling Chemours in 2015. Chemours continued one of the largest health care scams in U.S. to release hundreds of thousands of NURSING HOME history, six doctors from Detroit, Michigan pounds of GenX contaminating the air, LITIGATION have been charged with running a $500- surface water and the groundwater of the million opioid scheme. According to the North Carolina Facility, including the indictment, the five Defendants cheated Cape Fear River. Beasley Allen Represents The Family Of An Medicare and Medicaid out of nearly $500 GenX is a toxic chemical that the U.S. Alabama Woman Who Died From A Nursing million by illegally prescribing more than Environmental Protection Agency (EPA) Home Choking Incident 13 million doses of prescription pain pills has recognized may present an unreason- to patients. This is just the latest unfortu- able risk of injury to human health and the Swallowing food can be difficult for nate incident involving doctors manipulat- environment. It has been found to cause some nursing home residents. The reasons ing the public health system and kidney, liver, pancreas and testicular for this usually stem from a resident’s unsuspecting patients for profitable gain. cancer in animals. In August 2018, the medical condition. Parkinson’s and The Detroit scheme, which prosecutors Cape Fear River Watch (CFRW) followed Alzheimer’s disease, other neurological say had been ongoing since 2013, involved the above referenced suit by filing a new conditions, or reduced saliva production the doctors initially getting their patients complaint against Chemours in the due to aging or medication are common

JereBeasleyReport.com 21 health problem that cause a resident to be gence in such things as verifying qualifica- the safety and rights of elderly and at higher risk for choking. tions, checking references, or conducting infirmed Americans who reside in long- Choking is a preventable type of a criminal background screening prior to term care facilities across the country. nursing home injury. Nursing home resi- hiring an employee. “Due Diligence” is the Sources:AL.com and Lagniappe Weekly dents should never choke in nursing effort made by an ordinarily prudent or homes. However, according to medical reasonable party to avoid harm to another studies, choking deaths appear to be on party. Failure to carry out this responsibil- The Beasley Allen Nursing Home the rise in nursing homes and now are the ity in the hiring process or in training may Litigation Team fourth leading cause of death among be considered negligence. In the long- nursing home residents. term care setting, this failure can have Lawyers in our firm continue to fight to Nursing homes exist to provide skilled tragic consequences. protect the safety and well-being of nursing care to elderly and disabled resi- For an extreme example of the harm nursing home residents in facilities around dents. As a business, quality care should negligent hiring can cause consider the the country. Our nursing home lawyers be their basic product and mission. case of Matthew Cox. Matthew, a 21-year- represent the victims or families of those Because the risk of choking is a common old resident at a state-licensed facility for who have suffered death or serious injury issue with nursing home residents, it is the mentally ill in Mobile, Alabama, died because of nursing home negligence, critical that nursing homes monitor resi- after he was assaulted by one of the facili- abuse and neglect. The team of lawyers in dents during meal times and while taking ty’s employees. The employee who our firm handle nursing home litigation on medications to prevent choking. Nursing recently pleaded not guilty to one charge a regular and recurring basis. Chris Bout- homes that do not enforce dietary restric- of murder, allegedly stomped Matthew in well heads up the Nursing Home Litigation tions or fail to monitor residents while his abdominal area causing injuries that Team; other members of the team cur- eating or taking medications are putting ultimately led to his death. An autopsy rently are Susan Anderson and Leah their residents at risk of serious showed that Matthew died from blunt Robbins. Handling nursing home litigation injury or death. force trauma. requires lawyers and support staff to have Lawyers in our firm are fighting to According to the Alabama Department specific experience in this type case. protect the safety and rights of nursing of Mental Health (ADMH), the facility is If you have suffered serious injury, a home residents by representing the one of 20 operated by the New Way Out loved one has been catastrophically injured in litigation to hold facilities Corporation, which does business locally injured or died, or you have any questions accountable for their acts of abuse and as Petway Residential Facilities, Inc. The about nursing home abuse and neglect, neglect. We recently filed a lawsuit on company is owned and operated by an contact one of the team members at 800- behalf of the family of a Talladega, individual, who has several other regis- 898-2034 or by email at Chris.Boutwell@ Alabama lady who died as a result of a tered businesses in the Mobile area. State beasleyallen.com, Susan.Anderson@beas- choking incident at Talladega Health and certification records indicate the facility is leyallen.com or Leah.Robbins@beasley- Rehabilitation Center. managed by a subcontractor doing busi- allen.com. The complaint, filed by Chris Boutwell, ness as French Residential Facilities, Inc. who heads our Nursing Home Litigation ADMH requires service providers who Team, in Talladega County, Alabama operate these types of facilities to perform Circuit Court, alleges that our client suf- background checks on their employees, XVI. fered from a number of health conditions which has become a point of interest in An Update On that required the nursing home to provide Matthew’s death because of the employ- specialized attention and care while she ee’s notable criminal history in Mobile Class Action was eating. The nursing home failed to County. It does not appear that the facility Litigation take the necessary precautions to prevent conducted even a cursory background our client from choking, including provid- check on this person, because jail records ing adequate supervision and monitoring indicate that between 2010 and 2014, he while she was eating. Because of our cli- was arrested for second-degree assault, Class Action Filed Against Nissan For ent’s choking incident, she developed two counts of domestic violence and theft. Faulty Brakes aspiration pneumonia and acute respira- Dean Waite, a lawyer with Dean Waite & Lawyers from Beasley Allen have filed a tory distress. She died several days later as Associates, who represents the Cox lawsuit in Tennessee on behalf of those a result of her acute respiratory distress. family, says: who purchased or leased one or more Group homes are entrusted with the model year 2017-2019 Nissan vehicles care of some of the most vulnerable equipped with Forward Emergency Resident At Mobile Long-Term Care Mental people in our society. It is incum- Braking or Automatic Emergency Braking Facility Beaten To Death By Employee bent upon us to make sure these technology. The class action complaint group homes are fulfilling their obli- alleges that each of the class vehicles con- Negligent hiring of staff is one of many gations to the residents for whom tains a defective emergency braking types of potential neglect that can occur they are responsible. system that exposes drivers and passen- at nursing homes and other long-term care gers to the risk of sudden and unexpected facilities. Long-term care facilities have a This tragic story is but one example of collisions. legal and ethical obligation to protect the harm that residents can face when the As advertised by Nissan, its Automatic their residents from injury caused by their facility in which they reside fails to meet Emergency Braking technology uses radar own employees. Negligent hiring happens its obligations to keep its residents safe. to detect the possibility of a collision with when a facility fails to perform its due dili- Lawyers in our firm is fighting to protect vehicles or pedestrians. In its intended

22 BeasleyAllen.com functionality, the Emergency Braking fussiness, excessive or a high-pitched who received a medical prescription for System will apply an emergency brake, crying, poor feeding, slow weight gain, opiates, and all now desperately require causing the vehicle to decelerate and stop breathing difficulties, fever, sweating, testing, monitoring, intervention, training when an imminent collision is detected. blotchy skin, trouble sleeping, diarrhea, for caregivers, and referrals for medical, Nissan’s Emergency Braking System is vomiting, congestion and sneezing. Most physiological, and behavioral treatment. defective and not road-ready. The system babies born addicted to opioids begin to The goal of the lawsuit is to maximize the suffers from a serious defect when the suffer symptoms of opioid withdrawal development of each exposed child. Emergency Braking System suddenly and within 72 hours of birth, but some may Lawyers in our firm are investigating unexpectedly engages when no collision not show signs until weeks later. cases on behalf of children who were is imminent. The Emergency Braking NAS also increases a baby’s risk of born with NAS after their mothers were System can also engage when the driver having a low birth weight. This causes prescribed opioids before or during preg- has no intention of stopping the vehicle. these NAS babies to require treatment in a nancy. We are investigating these cases as Due to the Emergency Braking defect, neonatal intensive care unit (NICU) more individual cases, and not as a class action. owners and lessees of the Class Vehicles often. Initial symptoms of NAS can last These cases are better suited as individual have experienced sudden and unexpected anywhere from one to six weeks. Due to lawsuits. That’s because while experi- braking on railroad tracks, on bridges, in the length and intensity of treatment ences may be similar, each case involves intersections, and in other driving situa- required, hospital costs are also greater for individual details that distinguish it from tions, placing them at serious and unrea- NAS babies as well. Post-delivery hospital the others. If you need more information, sonable risk of collision. costs for NAS babies average $66,700, contact Melissa Prickett, Liz Eiland or As shown by the reports of owners and compared to $3,500 for those who were Roger Smith, lawyers in our Mass Torts lessees complaining about the Emergency not exposed to opioids. Section., at 800-898-2034 or by email at Braking defect to Nissan and Nissan Long-term, NAS is associated with [email protected], Liz. dealers, as well as the multitude of con- higher rates of developmental delays that [email protected] or Roger.Smith@ sumer complaints collected by the can include hearing or vision impairment, beasleyallen.com National Highway Traffic Safety Adminis- compared to babies of mothers who did tration’s (NHTSA) Office of Defects Inves- not use opioids. Oftentimes, babies born tigation (ODI), Nissan knew of the with NAS are forced into foster care. Of Class Action Settlements Of Note Emergency Braking defect prior to the sale the estimated 465,000 babies and children or lease of the Class Vehicles. Despite this in the country’s foster care program in There have been a number of notewor- knowledge, Nissan failed to disclose and 2016, 92,000 of them were there due to thy class action settlements recently. We actively concealed the Emergency Braking opioid-related issues, according to the will give a summary of those settle- defect from the public and continued to Department of Health and Human Ser- ments below. market and advertise the Class Vehicles. vices (HHS). In the South, NAS is three Nissan’s Automatic Emergency Braking times higher than the national average, $92.5 Million Settlement Ends $4.4 is a standard feature on its Rogue, Rogue according to Dr. Stephen Patrick, a Billion Starz Merger Suit Sport, Murano, Altima, Maxima, Armada, researcher at Children’s Hospital at Pathfinder, Leaf and Sentra vehicles. The Vanderbilt University. Vice Chancellor Sam Glasscock has case is filed in the Middle District of Ten- A class action complaint requesting approved the $92.5 million settle- nessee. Clay Barnett, Dee Miles and Chris class certification for West Virginia’s ment in the stockholder challenge to Baldwin, lawyers in our our firm, repre- infants and children who were diagnosed the $4.4 billion sale of Starz Entertain- sent the class Plaintiffs in this case. with NAS was recently filed in the United ment LLC to Lions Gate Entertain- If you need additional information, States District Court for the Southern Dis- ment Corp. in 2016. The agreement, contact Chris Baldwin at 800-898-2034 or trict of West Virginia at Charleston in reached after mediation that began by email at Chris.Baldwin@beasley- November of 2018. two weeks before trial, settled a more allen.com. The class representative, Jodi Shaffer than two-year-old class lawsuit claim- and Minor R.C., filed this class action ing that the merger consideration because R.C. was diagnosed with opioid- unfairly converted some Starz voting stock into nonvoting Lions Gate West Virginia Class Action Filed On Behalf related NAS symptoms at birth in 2010. stock, while providing disproportion- Of Babies Born With Neonatal Abstinence The complaint notes that new research ate benefits to a Starz controlling Syndrome borne out of the opioid epidemic reveals that all children exposed to opioids and stockholder who also had a signifi- As we have previously reported, the other drugs in utero are at a substantially cant stake in Lions Gate. The vice opioid epidemic has reached the most higher risk for “lower mental abilities and chancellor called it an “excel- defenseless and vulnerable of us all: our more signs of attention deficits, and that lent result.” these effects will persist or worsen babies. According to the National Institute Under the original merger deal, Starz through adolescence.” on Drug Abuse, every 25 minutes a baby is investors received $18 per share plus The complaint notes that ongoing and born addicted to opioids. This addiction to 0.6784 shares of nonvoting Lion’s medical monitoring and treatment of opi- opioids in infants is a condition called Gate stock, in a package valued at oid-related NAS-diagnosed children is Neonatal Abstinence Syndrome (NAS). In $35.52 per share. Meanwhile, control- medically necessary. R.C and the other the days and weeks after birth, NAS babies ling investor John C. Malone received infants who make up the class have all suffer many painful symptoms of opioid $7.21 per share for a different class of been diagnosed with a symptomatic syn- withdrawals. These symptoms can include stock in Starz and 1.2642 shares of tremors, seizures, overactive reflexes, drome of disease, have a birth mother

JereBeasleyReport.com 23 Lions Gate stock—half with provide cashiers with seats. During a injuries or accidents” among seated voting rights. hearing in San Jose, California, U.S. workers or “unduly” interfere with District Judge Edward J. Davila pre- the tasks the workers do while stand- The suit accused Malone of engineer- liminarily signed off on the settle- ing, among other things. Walmart can ing the deal for his own benefit and ment, under which Walmart would also remove the seating if it harms alleged that Starz CEO Christopher pay about $10.7 million to more than “the quality and effectiveness of the Albrecht and other board members 99,000 front-end cashiers who have cashier’s overall job performance,” or breached their duty to the company’s worked at Walmart since 2008. Judge if California scraps its suitable seating stockholders, aided and abetted by Davila has set a final approval hearing law, according to the revised settle- Malone and Lions Gate. Vice Chancel- for March 18. ment. But if Walmart plans to remove lor Glasscock said before approving the seats, the company agreed to the deal: “To me, this is a classic The California Labor and Workforce inform cashiers, the class attorneys example of the way entrepreneurial Development Agency will receive 75 and the Labor and Workforce Devel- attorneys in corporate matters should percent of the $42.8 million net set- opment Agency ahead of time. conduct themselves.” tlement to resolve the PAGA claims. If approved, the settlement would be The cashiers are represented by Vice Chancellor Glasscock, who the largest PAGA settlement in the Charles A. Jones of Jones Law Firm described the case as “strong, very state’s history, according to the and Matthew Righetti of Righetti Glu- strong, although not foolproof,” gave motion for preliminary settlement goski PC. The case is Brown et al. v. the settlement his approval after approval. The statute was enacted in Wal-Mart Store Inc., (case number declining to take up an investor chal- 2004 and allows workers to challenge 5:09-cv-03339) in the U.S. District lenge to plans for distribution of the violations of California labor law on Court for the Northern District of additional share payments. The Vice the state’s behalf. The settlement California. Chancellor said that the settlement would also resolve the nine-year-old Source: Law360.com made provisions for pursuit of funds PAGA lawsuit that named Plaintiffs required to pay stockholders, without Kathy Williamson and Nisha Brown Consumers To Receive $73 Million In closing off other avenues for chal- filed in June 2009, claiming that Latest Auto Parts MDL Settlement lenges or appeal for those who object Walmart didn’t provide seats to its or claim they are harmed by the pro- cashiers, in violation of California Several auto parts manufacturers visions. He stated: labor statutes. have agreed to pay roughly $73 million to settle claims that they col- It’s clear to me that here are In August 2012, Judge Davila certified luded to fix prices. This is in the mul- rather significant issues that arise a class of California Walmart cashiers, tidistrict litigation (MDL) that grew at the contractual level between which Walmart appealed to the Ninth out of a U.S. Department of Justice record holders, beneficial holders, Circuit. The Ninth Circuit then certi- (DOJ) antitrust probe. In a series of lenders of shares, short sellers and fied questions regarding the state’s orders, U.S. District Judge Marianne their purchasers. Those issues suitable seating statute to the Califor- O. Battani certified classes of consum- may very well be appropriate to nia Supreme Court. The state high ers who purchased car parts such as address in some forum. I don’t court clarified the labor statutes and, bearings, automotive lamps and HID think this is that forum. shortly after, the Ninth Circuit ballasts at what they claim were artifi- The Starz shareholders are repre- affirmed Judge Davila’s class certifica- cially inflated prices. The judge sented by John C. Kairis and Daniel tion ruling. In January of this year, approved settlements the makers of Berger of Grant & Eisenhofer PA, the class filed a motion for summary those products had reached with the Robert J. Kriner Jr. and Tiffany J. judgment, while Walmart asked the consumers. Judge Battani wrote in Cramer of Chimicles & Tikellis LLP, court to decertify the class. However, each order: and Mark Lebovitch, Jeroen van before the judge ruled on the motion, The court, after carefully considering Kwawegen and Alla Zayenchik of Ber- the parties agreed to the settlement, all papers filed and proceedings held nstein Litowitz Berger & Grossmann which they initially asked Judge herein and otherwise being fully LLP. The case is In re: Starz Stock- Davila to preliminarily approve in informed in the premises, has deter- holder Litigation, (case number late October. mined that the settlement should be 12584) in the Court of Chancery of During the October hearing, Judge approved, and that there is no just the State of Delaware. Davila raised questions regarding a reason for delay of the entry of this Source: Law360.com provision in the settlement that final judgment. would allow Walmart to remove the Walmart’s $65 Million PAGA Seating newly provided seats after two years. The companies all listed below, all Settlement Is Approved At the time, the judge said the provi- auto parts manufacturers, will pay sion would give Walmart “total the amounts set out: A California federal judge has prelimi- authority” with no oversight. narily approved Walmart Inc.’s • Toyo Tire & Rubber Co. Ltd. and revised $65 million settlement that Subsequently, the parties revised the several affiliates will pay roughly would resolve a Private Attorneys settlement. The new agreement drops $36 million to classes of consumers General Act (PAGA) lawsuit alleging the two-year restriction and adds lan- who purchased anti-vibrational the retail giant violated California’s guage letting the company take back rubber parts and constant velocity suitable seating statute by failing to the seats if they lead to “increased joint boot products.

24 BeasleyAllen.com • Stanley Electric Co. Ltd. and affili- number 2:13-cv-00803) in the U.S. bird seed containing the pesticides ates will pay about $15 million to District Court for the Eastern District and agreed later that year to pay $12.5 classes of consumer who pur- of Michigan. million in criminal fines and civil chased automotive lamps and HID Source: Law360.com penalties for violating federal pesti- ballasts. cide laws. In March 2014, Scotts sold Scotts To Pay Up To $85 Million Over its wild bird food business, and in • SKF USA Inc. will pay $7.6 million. Pesticide-Tainted Bird Seed October of that year, the Plaintiffs • NTN Corporation will pay about moved to certify a nationwide class of Scotts Miracle-Gro Co. has reached a $6.6 million to a class of consumers consumers who purchased Morning settlement in a California federal who purchased bearings. Song Bird Food, the motion says. court with a class of consumers who After a series of oppositions and • Sanden Automotive Components accused the lawn company of know- amendments, the Plaintiffs achieved Corp. will pay $7.6 million to a ingly selling bird food laced with class certification in March 2017. class of consumers who purchased toxic pesticides. Scotts will pay up to Scotts appealed the class certification air-conditioning systems. $85 million, depending on how many to the Ninth Circuit but was denied in class members come forward. The June 2017. In the orders approving the settle- precise size of the payment will ments, Judge Battani rejected a depend on the number of claims sub- The class is represented by Jason A. number of motions filed by lawyers mitted by the class. Scotts will fully Forge, Rachel L. Jensen, Michael for the consumers requesting that the refund money to any class members Albert and Rachel A. Cocalis of Defendants pay their legal bills. The with valid proof of purchase or Robbins Geller Rudman & Dowd LLP; judge released all of the Defendants retailer records and up to $100 per Douglas P. Dowd and Alex R. from being sued for similar claims in household for those class members Lumaghi of Dowd & Dowd PC; and the future. He also ordered all of the who no longer have a proof of pur- John J. Driscoll, Christopher Quinn auto parts makers to refrain from chase, as long as sufficient money and Gregory Pals of The Driscoll Firm “conduct that constitutes a per se vio- remains in the settlement fund. PC. The case is In re: Morning Song lation of Section 1 of the Sherman Bird Food Litigation, (case number Act”—i.e. price-fixing, bid-rigging and Claims will be paid from the settle- 3:12-cv-01592) in the U.S. District so on—for two years. ment fund with priority to those class Court for the Southern District of members who have retailer-identified California. The judge’s orders also require the refunds and proof-of-purchase Source: Law360.com companies to cooperate with the refunds at the full amount of pur- Plaintiffs—including sharing docu- chase price. Any leftover money will $50 Million Settlement Over Defective ments and data and offering witness then be paid to customers who no Scuba Computers testimony—in related ongoing litiga- longer have proof of purchase and to tion and prevents the consumers class members seeking additional sup- Two scuba equipment companies from using any of the information plemental refunds. The motion states: have settled a class action filed by shared with them for “any purpose divers alleging their depth computers inconsistent” with the terms of the Without regard to the amount of were defective, agreeing to test, settlement agreements. the settlement fund, all eligible repair and replace any defective com- settlement class members receiv- puters in a settlement valued at about This round of settlements is the latest ing retailer-identified refunds and $50 million. The settlement, in the MDL filed in the aftermath of proof of purchase refunds will approved by San Diego Superior the DOJ’s antitrust investigation into receive refunds equaling 100% of Court Judge Kenneth Medel last price-fixing and bid-rigging in the their purchases. month, ends three years of litigation auto parts industry, a probe that was between Plaintiffs Ralph A. Huntz- launched in 2011 in conjunction with The class is defined as “all persons inger and Eric Bush and Defendants Japanese and European authorities. who, prior to May 1, 2008, purchased Finnish company Suunto Oy and The DOJ has said its inquiry yielded and have not yet received a full Aqua Lung America Inc. more than $2.9 billion in fines as of refund for, a Scotts Miracle-Gro wild May. Previous settlement rounds bird food product containing Storcide The settlement also ends related suit netted awards of $432 million, $224.6 II, Actellic 5E, or their active ingredi- Huntzinger v. Aqua Lung America million and $379.4 million for ents, chlorpyrifos-methyl or pirimi- Inc. in the Southern District of Cali- end-payors. phos-methyl, respectively” and to fornia, which was put on hold subclasses for claims in California, pending the state-level lawsuit. Origi- The consumers are represented by Missouri and Minnesota. In June 2012 nally filed in May 2015, the suit Marc M. Seltzer, Steven G. Sklaver, Laura and Milt Cyphert filed a puta- alleges that the pressure sensors in Terrell W. Oxford and Chanler A. tive class action seeking refunds for certain scuba diving computers man- Langham of Susman Godfrey LLP, Morning Song Bird Food. Their suit ufactured by Suunto and distributed Adam J. Zapala and Elizabeth Castillo was then consolidated with a similar by Aqua Lung were faulty, giving of Cotchett Pitre & McCarthy LLP, suit by Ellen Larson and David Kirby divers incorrect depth readings. The and Hollis Salzman, Bernard Persky in September 2012. defective computers put divers’ lives and William V. Reiss of Robins Kaplan at risk. That’s because the divers LLP. The MDL is In re: Automotive Scotts pled guilty that same year to depend on accurate readings to safely Parts Antitrust Litigation, (case selling more than 70 million bags of

JereBeasleyReport.com 25 ascend from dives, assess how far XVII. upheld that decision by refusing to hear down they can go safely, determine Defendants’ interlocutory appeal. how many dives they can make in a THE CONSUMER The ruling in this case is extremely day and determine when they can CORNER important and it will benefit a huge safely fly in a plane afterward. number of persons and business entities. The case was divided into two tracts, one According to the divers, Suunto and for providers and one for subscribers, and th Aqua Lung knew about the problem 11 Circuit Gives Green Light To BCBS all cases are consolidated in federal court for years, but concealed the defect Antitrust Lawsuits in Alabama under U.S. District Judge David and continued to sell the faulty com- th Proctor. In addition to Dee Miles, Beasley A recent 11 U.S. Circuit Court of puters. Under the settlement, class Allen lawyers Archie Grubb, Leslie Pescia Appeals ruling means that the antitrust members can submit a claim form to and Chris Baldwin were chosen to multidistrict litigation (MDL) against Blue have their computers inspected for develop the provider side of the case Cross Blue Shield insurers can proceed. the depth pressure sensor defect. If a for trial. The Appeals Court upheld a federal defect is found, the computer will be Medical providers claim that Blue Cross judge’s ruling from April that rejected the replaced or repaired at no cost. Any is using its size and market power to drive Defendants’ argument that pro-competi- replacement computer will come out the competition and keep doctor and tive effects of their scheme would out- with an extended five-year warranty other medical organization reimburse- weigh any harm. The Eleventh Circuit for further defects, three years longer ments low. Subscribers claim the arrange- ruling means that the Defendants’ behav- than Suunto’s normal warranty. ment could drive up premiums. ior will be analyzed based on the per se This is the largest antitrust case in U.S. The settlement also includes a legal standard, which, if proven, means history and it could go to trial next $775,000 reimbursement fund to the Defendants’ actions alone were illegal summer if Judge Proctor certifies the compensate class members who and violated the Sherman Antitrust Act. class. If you need more information either destroyed their dive computer, Judge Proctor’s ruling on the per se contact Leslie Pescia at 800-898-2034 or purchased a replacement already or standard applying in this case was abso- by email at Leslie.Pescia@beasley- paid out of pocket to repair it. Reim- lutely correct when he issued his opinion allen.com. bursement for destroyed or replaced last spring and the Eleventh Circuit just computers is up to 50 percent of the affirmed his ruling. Dee Miles, who heads retail price, according to court our firm’s Consumer Fraud & Commercial documents. Litigation Section, says the case will now FDA Withdraws Proposed Rule On Generic- proceed to the class certification stage. Drug Warning Labels Any funds left over after reimburse- This was a huge ruling in this case. ment will go to fund training and edu- Certain types of agreements between The U.S. Food and Drug Administration cational courses for class members competitors, such as price-fixing, market (FDA) will withdraw a proposed rule that through the Professional Association allocation, or group boycotts, are viewed would have allowed generic-drug makers of Diving Instructors. In addition, as per se unlawful under Section 1 of the to independently update drug labeling to Suunto will create and distribute a Sherman Act. As such, actual harm need include new safety information. The FDA video to educate class members and not be proven by Plaintiffs because it is says the rule, proposed in 2013, could other divers on best practices, identi- presumed to result from the conduct. have increased industry costs that might fying pressure sensor failure and Other restrictive conduct is analyzed have been shifted to patients. Nobody what to do if there is a defect. It under the rule of reason, which engages should be surprised that the FDA yielded should be noted that Aqua Lung’s dis- in a balancing test to determine if the anti- to industry opposition to the rule. Cur- tribution of Suunto dive computers competitive effects of the conduct out- rently, only brand-name drug manufactur- ended several years ago. Aqua Lung weigh the procompetitive benefits. ers can unilaterally update their labels to will pay nothing in the settlement The case involves 36 Blue Cross plans include new safety information. with the Plaintiffs. and at the heart of the case is whether an The FDA said it found a number of unintended consequences of finalizing the pro- The class is represented by Timothy agreement among the different plans not posed rule that could have harmed public G. Blood, Paula R. Brown and Jennifer to compete in various markets based on health. Those include: L. Macpherson of Blood Hurst & trademark licensing and other business O’Reardon LLP, William M. Berman of activities is legal. Some of the plans have • Generic-drug companies don’t usually Berman & Riedel LLP and John A. large overlapping coverage areas, includ- receive or have all the necessary data to Knox and Douglas A. Hofmann of ing California, Idaho, New York, Pennsyl- evaluate post-marketing safety informa- Williams Kastner & Gibbs PLLC. The vania, Washington and Oregon. tion to justify changing drug labels uni- case is Huntzinger et al. v. Suunto Defendants had argued that the more laterally. Oy et al., (case number 37-2018- lenient “rule of reason” standard should 00027159) in the Superior Court of apply to their conduct rather than a per se • Generic drugs could have also had dif- the State of California, County of standard. The lower federal court rejected ferent or additional warnings temporar- San Diego. Defendants’ argument and determined ily on their label, compared to the that the combination of the agreement not brand-name drug, because various man- Source: Law360.com to compete and the size of the territories ufacturers would have information will be enough to determine if the insur- available at different times. ers broke the law, and the Eleventh Circuit

26 BeasleyAllen.com • Temporary differences in the labeling Johnson & Johnson Faces Remicade tending J&J’s “Biosimilar Readiness Plan” could have sunk consumers’ confidence Litigation headed off competition. The claims of in generic drugs and their equivalents. anti-competitive conduct were sufficient, In addition to the increased heat it has in part, because they contend that J&J’s • Outdated drug labeling can also lower been facing over its talcum powder prod- conduct had the likely effect of substan- the use of generic drugs. ucts and their link to cancer, Johnson & tially lessening competition rather than Johnson is also facing several lawsuits due The Association for Accessible Medi- just disadvantaging rivals. to its alleged antitrust plan to prevent cines, an industry group for generics Ultimately, the judge dismissed only competition with its infliximab drug, makers, praised the decision to withdraw additional claims brought by indirect pur- Remicade. This drug is used to treat the rule. Senior Vice President David chasers accusing J&J of pursuing sham chronic illnesses such as rheumatoid Gaugh said in a statement: patent infringement litigation and fraudu- arthritis, Crohn’s disease and ulcer- lently obtaining its patents to protect Rem- The agency correctly recognized the ative colitis. icade, as well as state consumer protection need for consistency and the poten- For almost two decades, Remicade was claims brought under the laws of New tial for adverse consequences. The the only infliximab product on the market York and Rhode Island. The antitrust FDA’s action further exemplifies its and was J&J’s top-selling drug, generating claims, as well as state consumer protec- focus on the best interest of the pub- approximately $5.7 billion in U.S. sales in tion claims from other states were lic’s health and provides patients 2015 alone. Pfizer Inc. and Merck & Co. left intact. with the utmost confidence in their began shipping its biosimilar (i.e. generic) Beasley Allen lawyers are actively pur- health care choices. version of Remicade at a significant dis- suing claims against drug manufacturers count from J&J’s price, but have just a 5 for similar fraudulent and anti-competitive The FDA said that according to one percent share of the infliximab market. conduct. If you have seen such conduct rough estimate, there are about 5,600 The pending suits allege this is due to a occur, there may be a claim our firm brand-name drugs that correspond to tactical plan J&J and its subsidiary Janssen would like to investigate. You can contact generics. The FDA said in a statement. Biotech Inc. have carried out to prevent Dee Miles, Alison Hawthorne, or Rachel new entrants to the market and protect Where there continue to be Boyd, lawyers in our Consumer Fraud & its monopoly. approved brand versions of these Commercial Litigation Section at Dee. J&J’s “Biosimilar Readiness Plan” medicines, the FDA can and will [email protected]; Alison.Haw- involved coercive rebate policies and bun- work with the brand companies to [email protected]; or Rachel. dling offers that its competitors could not update labels. But, of these brand [email protected], or call us at 800- match, as well as exclusionary contracts medicines that serve as reference 898-2034 to discuss further. with insurers. These exclusionary con- drugs, 1,170 have been identified as Sources: Law360.com tracts included agreements under which discontinued or withdrawn by the J&J required insurers to agree that Remi- brand-drug manufacturers for cade would be the only infliximab reasons other than safety or Lack Of Oversight Of Defective Weapons product they would cover and reimburse, effectiveness. effectively preventing patients from Recently, Bloomberg looked at the issue The FDA said that when a brand-drug switching to other versions—for which of who is determining whether guns are manufacturer is no longer responsible for they would have to pay out of pocket. defective. Bloomberg posited questions updating labels that generic companies Given that biosimilar versions are not such as: Who determines whether there can follow, some drug labels, often for covered by insurance companies, provid- should be a recall because of defective older medicines, can become frozen in ers have stopped stocking them, making weapons? The answer is nobody. Some time. The FDA said further: them inaccessible to patients without might think the Bureau of Alcohol, insurance or whose insurance does not Tobacco, Firearms and Explosives (BATFE) But many of these older drugs are cover infliximab products. As a result of oversees weapon defect issues, but it still very useful in modern treat- this antitrust conduct, several entities does not. ment regimens. For example, some have filed lawsuits against J&J, including a Every year, thousands upon thousands of these drugs form the backbone of New York grocery union benefits fund, of people are injured by dangerous prod- modern cancer regimens. We may Pfizer, Walgreen Co., Kroger Co., and ucts. The Consumer Product Safety Com- seek additional resources and help Rochester Drug Cooperative Inc. mission (CPSC) is a government agency from Congress to expand In December, the U.S. District Court for that monitors a large portion of products these efforts. the Eastern District of Pennsylvania sold and distributed in the United States. largely denied J&J’s motion to dismiss, I hope the FDA is withdrawing the pro- The CPSC keeps statistics for those who rejecting J&J’s assertions that direct and posed rule for the right reason. Based on are injured or killed while using products indirect Remicade purchasers pursuing a our involvement with this regulatory in this county, including things such as proposed class action have not shown a agency, however, I am highly suspicious of toys, amusement rides, All-Terrain Vehi- sufficient antitrust injury or that they have the FDA’s motivations. cles (ATVs), products that produce carbon not adequately accused the drugmaker Source: Law360.com monoxide and electricity, fireworks, prod- and subsidiary Janssen of anti-competi- ucts sold for use by children and infants, tive conduct. and many others. A link to the statistics The court held in its order that the pur- can be found at https://cpsc.gov/Research- chasers’ amended complaints “sufficiently Statistics/Injury-Statistics. allege antitrust injury” by plausibly con-

JereBeasleyReport.com 27 The CPSC also goes further and investi- sands of people are injured or killed by a dangerous Taurus weapons. The gates those products that fall under its weapon, the only person or entity that can authors wrote: jurisdiction. When a consumer or compel a recall of the defective weapons someone else (such as a forensic medical is the manufacturer. The simple answer is no govern- examiner) notifies the CPSC that a person We have seen this occur with the with ment entity has the power to police was injured by a product, the CPSC will Remington Model 700 and Model Seven defective firearms or ammunition investigate the product and, under appro- rifles manufactured between 2004 and in America—or even force gunmak- priate circumstances, will even assign an 2016 as a result of a defective trigger. ers to warn consumers…. If a gun- investigator to research the product, Countless reports were made of the maker chooses to ignore a safety contact witnesses, and send a request to weapon discharging, despite the gun safe- concern, there’s no one to stop it. the manufacturer to address the injury or ties being in the ON position, and many A government agency, similar to death of the person while using the people were injured and killed. It was NHTSA, CPSC and FDA, could do a great product. The CPSC keeps and maintains only after litigation that efforts were made deal of good in monitoring defective the materials from its investigation and by Remington to institute a recall of weapons in this country. Doing so would can take appropriate measures to have the these weapons. not violate Second Amendment protec- product removed from the market if the Would the recall have occurred earlier tions. Indeed, the Second Amendment product is deemed unsafe for American had there been an agency of the govern- provides constitutional protections to the consumers. ment to receive complaints by consumers gun owners far more so than the gun man- The National Highway Safety Adminis- and with the authority to investigate the ufacturers. tration (NHTSA) serves a similar role for complaints? We will never know. But what Bloomberg is correct! It is time for some vehicles under its jurisdiction, including we would have had would have been an oversight of gun manufacturers to ensure automobiles, motorcycles, helmets and agency that could have compiled this that more people do not die from defec- other products involved in transportation. information so that American citizens tive weapons. Until that occurs, sadly, NHTSA has been instrumental over the could research the weapons before many more will be injured or killed last few decades in having major changes making the purchase. Without the over- because of unsafe guns. If you need more made to automobiles, including the addi- sight, the issue may have never been information, contact Ben Locklar, a lawyer tion of seatbelts, airbags, and the like. resolved without litigation, a delayed in our firm’s Personal Injury & Products NHTSA also maintains documentation response that resulted in many more Liability Section, at 800-898-2034 or by regarding complaints by consumers about people being injured and killed. email [email protected]. dangerous products and makes this infor- Obviously, the greatest barrier to having Sources: AllOutdoor.com, Bloomberg mation available to those involved in a central agency to monitor gun safety in safety upon an appropriate request. The the United States is the Second Amend- statistics related to injuries-products ment, the calling card of many gun under the auspices of NHTSA are reported owners and the National Rifle Association. Charter To Pay $174 Million In Settlement annually by NHTSA. See, e.g., https:// While the constitutional barrier may Of New York Net Speed Suit www.nhtsa.gov/research-data. provide some protection, it certainly was Another government agency, the Food never intended to extend as far as it has Charter Communications Inc. and Spec- and Drug Administration (FDA) provides been imposed to protect gun manufactur- trum Management Holding Co. have comparable oversight of food and drugs ers from government oversight. agreed to a $174-million payout in what distributed in the United States. The In the United States, citizens have the the New York Attorney General called a Centers for Disease Control and Preven- constitutional right to travel throughout record settlement. This ends a suit alleg- tion (CDC) maintains similar statistics, this country by whatever means they ing the companies defrauded customers and includes information pertaining to a deem appropriate, but that freedom has by promising high-speed internet when host of injuries and deaths by firearms as not protected automobile manufacturers they knew they couldn’t deliver. New well. See https://www.cdc.gov/nchs/ from oversight by NHTSA. York Attorney General Barbara D. Under- fastats/injury.htm. The CDC reports, for Similarly, we need an agency that can wood said in a statement that the $62.5 example, in 2016 there were 38,748 traffic monitor the weapon manufacturers in this million direct refund included in the set- deaths and 38,658 gun-related deaths. country to determine whether injuries tlement is believed to be the largest The problem, however, is that while we and deaths by non-criminal means are the payout to customers by an internet service can make some efforts to determine result of a defective weapon. Such an provider in the country’s history. The whether some of the traffic-related deaths agency would determine whether a recall Attorney General said: were the result of defective automobiles needs to be instituted with regard to This settlement should serve as a or safety equipment, we cannot make a that product. wake-up call to any company similar determination, based upon govern- Bloomberg Businessweek, in its article serving New York consumers: fulfill ment oversight and investigation, with “How Defective Guns Became The Only your promises, or pay the price. Not regard to handguns and weapons. Product That Can’t Be Recalled” (by only is this the largest-ever con- In the early 1970s, while the other regu- Michael Smith and Polly Mosendz), Feb. sumer payout by an internet service latory agencies were being given the 28, 2018, addressed the dangerous and provider, returning tens of millions power to oversee various products sold defective Taurus handguns, guns that of dollars to New Yorkers who were and distributed in the United States, would discharge without the trigger being ripped off and providing additional efforts to give similar authority to an pulled. Bloomberg addressed why con- streaming and premium channels agency to monitor gun manufacturers was sumers were not notified sooner about the as restitution—but it also sets a new blocked. As a result of this, even if thou-

28 BeasleyAllen.com standard for how internet providers Kshirsagar, among others. The case is The tion wire gets damaged, the ABS may not should fairly market their services. People of the State of New York et al. v. function properly. Either condition can Charter Communications Inc. et al., increase the risk of a crash. The settlement brings an end to a suit (case number 450318/2017) in the brought by Underwood’s predecessor, Eric Supreme Court of the State of New York, Volkswagen Group of America, Inc. T. Schneiderman, in February 2017 accus- County of New York. (Volkswagen) is recalling certain 2018 ing Charter of selling consumers web Volkswagen Golf R vehicles. The fuel hose Source: Law360.com access by promising faster speeds and quick connector may detach from the fuel greater reliability than it could actually supply line in the engine bay, resulting in deliver due to outdated hardware and a fuel leak. A fuel leak in the engine com- “technological bottlenecks” that were XVIII. partment can increase the risk of a fire. never upgraded. The $62.5 million will go to more than 700,000 customers who RECALLS UPDATE Volkswagen Group of America, Inc. were leased an inadequate modem or (Volkswagen) is recalling certain 2018 router. They will each receive either $75 Audi TT Roadster, TT Coupe, A3 Sedan We are again reporting a large number and A3 Cabriolet vehicles. The fuel hose or $150, depending on how long they had of safety-related recalls. We have included the substandard equipment. About 2.2 quick connector may detach from the fuel some of the more significant recalls that supply line in the engine bay, resulting in million subscribers will also receive free were issued in December. If more infor- streaming services and premium chan- a fuel leak. A fuel leak in the engine com- mation is needed on any of the recalls, partment can increase the risk of a fire. nels, a package valued at more than $100 readers are encouraged to contact Shanna million, according to the Attorney Gener- Malone, the Executive Editor of the Volkswagen Group of America, Inc. al’s Office. Report. We would also like to know if we (Volkswagen) is recalling certain 2018 In addition to the payouts, Charter must have missed any safety recalls that should Audi A5 Sportback and 2017-2018 Audi A4 also abide by a set of marketing and busi- have been included in this issue. Allroad vehicles. A passenger air bag ness reforms, including ensuring its adver- module mounting screw may not have tising differentiates between wired and Automobile Recalls been sufficiently tightened, possibly Wi-Fi internet speeds, as Wi-Fi is slower; affecting the deployment of the air bag in substantiating its speeds using industry- Toyota Motor Engineering & Manufac- the event of a crash. If the air bag does not accepted testing; and discontinuing any turing (Toyota) is recalling certain 2002- deploy correctly in the event of a crash, it speeds it can’t meet. The company also 2005 Lexus SC and Toyota Sequoia, can increase the risk of an injury. can’t advertise its speeds as “consistent” 2003-2005 Toyota Corolla and Tundra, and until it meets Federal Communications 2003-2007 Pontiac Vibe vehicles. These Volkswagen Group of America, Inc. Commission (FCC) metrics. vehicles are equipped with certain air bag (Volkswagen) is recalling certain 2018- Charter must also provide its customers inflators assembled as part of the passen- 2019 Volkswagen Atlas and Tiguan and with equipment that can meet the speeds ger frontal air bag modules used as origi- 2019 Volkswagen Jetta vehicles that do not it advertises, offer to ship or install free nal equipment or replacement equipment. have keyless entry. The instrument cluster replacements of equipment that doesn’t In the event of a crash necessitating may not provide an audible warning to let meet the speeds and set rules to keep cus- deployment of the passenger frontal air the driver know that the key is still in the tomers from upgrading their packages bag, these inflators may explode due to ignition when the door is open. As such, without the proper equipment. propellant degradation. An inflator explo- these vehicles fail to comply with the Finally, Charter must train its customer sion may result in sharp metal fragments requirements of Federal Motor Vehicle service team to educate subscribers on striking the driver or other occupants Safety Standard (FMVSS) number 114, factors that can affect internet speeds and resulting in serious injury or death. “Theft Protection.” If the driver is not noti- produce a video to the same effect. Wash- fied by an audible noise that the key is left ington, D.C.-based consumer rights group General Motors LLC (GM) is recalling in the ignition, it can increase the risk of Public Knowledge praised the settlement. certain 2019 Chevrolet Silverado 1500 vehicle theft or crash. John Bergmayer, senior counsel at Public Crew Cab and GMC Sierra 1500 Crew Cab Knowledge, said in a statement: vehicles. The passenger-side frontal air Volkswagen Group of America, Inc. bag module may have been damaged (Volkswagen) is recalling certain 2007- States play an essential role in pro- during assembly, possibly resulting in the 2012 Audi Q7 and 2009-2012 Audi Q5 tecting consumers from fraud and air bag not inflating properly in the event vehicles, previously repaired under deception, especially in areas where of a crash. In the event of a crash, an air National Highway Traffic Safety Adminis- the federal government cannot or bag that does not inflate properly can tration (NHTSA) recall 16V-660. These will not fulfill that role. Here, New increase the risk of injury. vehicles were previously repaired with an York has stepped up to ensure that interim repair of installing butyl tape to broadband consumers actually get Kawasaki Motor Corp., U.S.A. (KMC) is the fuel pump flange, until replacement the speeds they pay for, and to make recalling certain 2018 Kawasaki Z900, remedy parts became available. The butyl whole consumers who were Z900 ABS, and Z900RS vehicles. The rear tape may not prevent fuel from leaking. A deceived in the past. Other states brake hose and rear wheel rotation sensor fuel leak in the presence of an ignition and other broadband providers wire may have been incorrectly routed, source can increase the risk of a fire. should take note. allowing them to contact the rear tire. If the brake hose contacts the rear tire, the Honda (American Honda Motor Co.) is The New York Attorney General’s Office hose may be damaged, reducing the recalling certain 2017-2018 Honda Civic is represented in-house by Mihir braking performance. If the wheel rota- Hatchback and Civic Type R vehicles. The

JereBeasleyReport.com 29 owners guide in these vehicles may not Mercedes-Benz USA, LLC (MBUSA) is ability to shift gears. Difficulty shifting have been included or, if included, the recalling certain 2019 C300 4Matic Cabrio- gears can cause a loss of control and owner’s guide may not have been properly let, C43 AMG Cabriolet, C300 Cabriolet, increase the risk of a crash. provided required information. As such, C300 Coupe, C300 4Matic Coupe, C43 these vehicles fail to comply with the AMG Coupe, E450 Coupe, E53 AMG Cabri- Ford Motor Company (Ford) is recalling requirements of Federal Motor Vehicle olet, S450, S560, E450 Cabriolet, E450 certain 2016-2018 Ford Focus vehicles Safety Standard (FMVSS) number 225, 4Matic Cabriolet, E450 4Matic Coupe, E53 equipped with a 1.0L Fox GTDI engine “Child Restraint Anchorage Systems.” If AMG Coupe, S450 4Matic, S560 4Matic, and a 6-speed manual transmission. The the information is missing or improper, it S63 AMG and S65 AMG vehicles and Mer- clutch may fracture, resulting in damage can increase the risk of injury or a crash. cedes-Mayback S650 and S560 4 Matic to the transmission assembly and possibly vehicles. A correctly fastened seatbelt may a transmission fluid leak. A transmission Honda (American Honda Motor Co.) is be inaccurately detected as being unfas- fluid leak in the presence of an ignition recalling certain 2019 Honda Ridgeline tened, preventing the seat belt pre-ten- source such as hot engine or exhaust com- and Pilot vehicles. The mounting holes for sioners from activating in the event of a ponents can increase the risk of a fire. the clip that secures the right center pillar crash. If the seat belt tensioning does not trim panel may be larger than intended. In Porsche Cars North America, Inc. activate in the event of a crash, it can (Porsche) is recalling certain 2017 the event of a crash necessitating right increase the risk of injury. side curtain air bag deployment, the clip Porsche Cayenne Turbo S, Cayenne Turbo, may not hold the center pillar trim panel Mercedes-Benz USA, LLC (MBUSA) is Cayenne Plug-in Hybrid, Cayenne GTS, in position and it may potentially interfere recalling certain 2018 C300 Cabriolet, Cayenne Plug-in Hybrid Platinum Edition, with the curtain air bag deployment. As C300 Coupe, C300 4Matic Cabriolet, Macan Turbo and Macan GTS vehicles, such, these vehicles fail to comply with C300, C300 4Matic Coupe, C300 4Matic, 2017-2018 Cayenne S, Macan, Cayenne the requirements of Federal Motor Vehicle C43 AMG Cabriolet, C43 AMG Coupe, C63 Platinum Edition and Macan S vehicles and Safety Standard (FMVSS) number 214, S AMG Cabriolet, C350e Plug-In Hybrid, 2018 Cayenne vehicles equipped with the “Side Impact Protection,” and 226, “Ejec- C63 AMG Cabriolet, C63 AMG Coupe, C63 optional ski bag. The ski bag fastening tion Mitigation.” In the event of a crash, if S AMG Coupe, C63 AMG, C63 S AMG, strap may have been sewn with incorrect the curtain air bag does not deploy as 2018-2019 GLC300 4Matic Coupe, thread, possibly resulting in the strap intended, it can increase the risk of injury. GLC300, GLC63 AMG Coupe, GLC300 seams tearing and the ski bag being unse- 4Matic, GLC350e Plug-In Hybrid, GLC43 cured in the event of a crash. If the ski bag Mercedes-Benz USA, LLC (MBUSA) is AMG Coupe, GLC43 AMG, GLC63 S AMG detaches during a crash, it can increase recalling certain 2015-2016 Mercedes Benz Coupe, and GLC63 AMG vehicles the risk of injury. C300, 2017-2019 C300 Cabrio, C300 equipped with Audio 20 head units and Coupe, C63 Cabrio, 2015 C63S AMG, 2018- Porsche Cars North America, Inc. automatic child seat recognition. The (Porsche) is recalling certain accessory 2019 C300, C350e, C63 AMG, C63S AMG status of the passenger side air bag may Cabrio, 2018 C63 AMG Cabrio, C63 AMG equipment ski bags, part number not display correctly. If the passenger air 95B.860.811, sold for use in Cayenne and Coupe, C63S AMG, C63S AMG Coupe, bag is incorrectly displayed as ‘ON’ when E300, E400 Cabrio, E400 Coupe, 2019 Macan vehicles. The ski bag fastening it is not, a front seat passenger may be strap may have been sewn with incorrect CLS450, E450 Cabrio, and E450 Coupe unaware that the air bag will not deploy in rear-wheel drive vehicles. A locknut in the thread, possibly resulting in the strap the event of a crash, increasing their risk seams tearing and the ski bag being unse- steering rack may break under high load, of injury. possibly causing the steering to become cured in the event of a crash. If the ski bag stuck in one position. A car that cannot be Daimler Vans USA, LLC (DVUSA) is detaches during a crash, it can increase properly steered has an increased risk recalling certain 2016-2017 Mercedes- the risk of injury. of a crash. Benz Metris vehicles. The fuel hose in the Keystone RV Company (Keystone) is engine compartment may leak at the Mercedes-Benz USA, LLC (MBUSA) is recalling certain 2019 Keystone Cougar, lower connecting point of the transition Outback, Passport, Springdale, Bullet and recalling certain 2019 Mercedes-Benz hose, between the underbody fuel line E450 4Matic Wagon and E63S AMG Wagon Hideout recreational trailers and 2019 and the Schrader valve and/or where the Dutchmen Aerolite and Atlas recreational vehicles. The affected vehicles have a tail- fuel line connects to the fuel pump. A fuel gate-mounted spoiler that may not be trailers. The inner hub bearings of the leak in the presence of an ignition source axles may not have been sufficiently properly attached and therefore could can increase the risk of a fire. detach while driving. If the tailgate- greased, which can cause the bearings to mounted spoiler detaches while driving, it Yamaha Motor Corporation, USA overheat and fail. If the bearings overheat, can become a road hazard, increasing the (Yamaha) is recalling certain 2015-2018 the hub may fail, affecting handling and risk of a crash. Yamaha YZFR3 motorcycles. The upper increasing the risk of a crash. radiator hose may crack resulting in a Champion Bus, Inc. (Champion) is Mercedes-Benz USA, LLC (MBUSA) is coolant leak. If coolant leaks onto the rear recalling certain 2019 GLC300 vehicles. recalling certain 2016-2018 Federal Coach tire, it can cause a loss of control, increas- Spirit vehicles. If the observation window An internal sensor within the electric ing the risk of a crash. power steering unit may fail, deactivating that is located above the windshield is hit the power steering assist. A loss of electric Yamaha Motor Corporation, USA by road debris, it may shatter, resulting in power steering assist can increase the risk (Yamaha) is recalling certain 2015-2016 glass falling into the driver and/or passen- of a crash. Yamaha YZFR3 motorcycles. The shift ger compartment. Glass that falls into the shaft torsion spring may fracture, giving driver or passenger compartment can the shifter a loose feel and affecting the increase the risk of a crash or an injury.

30 BeasleyAllen.com Porsche Cars North America, Inc. Control Module (ECM). The ECM damage and 2013-2017 XN40 vehicles, equipped (Porsche) is recalling certain 2018 may result in the engine stalling, increas- with certain Kidde Technologies, Inc. Porsche Panamera Turbo S Hybrid Execu- ing the risk of a crash. (KTI) KDS-25 fire extinguishers as part of tive, Panamera 4 Hybrid, Panamera Turbo the optional fire suppression system. The S Hybrid, Panamera 4 Hybrid Executive, Airstream, Inc. (Airstream) is recalling actuator of the extinguisher may not func- Panamera 4 Hybrid Sport Turismo, and certain 2019 Airstream Interstate 19 tion properly, preventing the fire extin- Panamera Turbo S Hybrid Sport Turismo motorhomes. 150 amp fuses may have guisher from discharging the fire vehicles. The brake lines installed on the been used for the coach battery fuses suppression agent in the event of a fire. If front axle may corrode over time. Corro- instead of 100 amp fuses, potentially the fire suppression system does not work sion inside the line may affect the front allowing the battery cables to be over- as intended, it can increase the risk of braking performance. Braking ability that loaded. Overloaded battery cables may injury in the event of a fire. is reduced due to a corroded brake line overheat, increasing the risk of a fire. can increase the risk of a crash. Navistar, Inc. (Navistar) is recalling Maserati North America, Inc. (Maser- certain 2019 International HV, MV, 2018- TSE Brakes is recalling certain Air Brake ati) is recalling certain 2014-2015 Maserati 2019 HX, LT, RH, LoneStar, ProStar, Work- Actuators, part numbers 3030TVW3UL- Quattroporte and Ghibli vehicles. During Star, and 2018 TranStar automated manual 4201, 3030TLW3OE-4071, 3030TL2-3769 production of the fuel lines, the lines may transmission vehicles, equipped with and 20SCLW2. The washers used for have been damaged, possibly resulting in certain Eaton ECA heavy-duty truck mounting the actuators may fracture, a fuel leak. A fuel leak in the presence of clutches. An internal component in the allowing the actuators to loosen, poten- an ignition source can increase the risk clutch assembly may fail, possibly result- tially reducing the braking ability. A reduc- of a fire. ing in unintended vehicle movement. tion in the braking performance can BMW of North America, LLC (BMW) is Unintended vehicle movement can lengthen the distance needed to stop the recalling one 2019 F850GS motorcycle. increase the risk of a crash. vehicle, increasing the risk of a crash. The engine connecting rods may not have Great Dane Trailers (Great Dane) is Ducati North America (Ducati) is recall- been installed properly, possibly causing recalling certain 2019 Great Dane ing certain 2017-2019 Ducati Monster them to become loose and disconnect Freedom Combo Drop Deck Platform trail- 1200, Monster 821, SuperSport and Super- over time. Loose engine connecting rods ers. The rear impact guards on these vehi- Sport S motorcycles. The shift lever may can damage the engine, causing a loss of cles may be too narrow. As such, these have been incorrectly assembled, possibly engine power, increasing the risk vehicles fail to comply with the require- resulting in the shift knob detaching from of a crash. ments of Federal Motor Vehicle Safety the lever. If the shift knob detaches, the Chrysler (FCA US LLC) is recalling Standard (FMVSS) number 223, “Rear rider may not be able to shift gears, certain 2019 RAM 1500 trucks. The seat Impact Guards.” If the rear impact guards increasing the risk of a crash. track position sensor on the manually do not meet the width requirements, the guards may not prevent a vehicle from Ducati North America (Ducati) is recall- adjusted passenger seats may come loose and out of position, preventing the sensor going under the trailer in the event of a ing certain 2018-2019 Ducati Panigale V4, rear impact, increasing the risk of injury. V4 S, and V4 SP motorcycles. The oil from detecting if the seat is in the full-for- cooler output port may crack, causing an ward position. If the sensor cannot iden- Yokohama Tire Corporation (Yoko- oil leak. An engine oil leak can increase tify that the seat is in the full-forward hama) is recalling certain Yokohama the risk of a crash. position and adjust the frontal air bag RY023 tires, size 295/75R22.5 (14G), that deployment accordingly, there would be have DOT date code 2318. The rubber Automobili Lamborghini (Lambo- an increased the risk of a injury in the compound may be incorrect, possibly rghini) is recalling certain 2011-2014 Gal- event of a crash. resulting in the tread separating from the lardo Coupe and Gallardo Spyder vehicles. casing. As such, these tires fail to comply The Engine Control Unit (ECU) software Chrysler (FCA US LLC) is recalling certain 2017-2018 Alfa Romeo Giulia vehi- with the requirements of Federal Motor may erase trouble codes after the ignition Vehicle Safety Standard (FMVSS) number is turned off, not illuminating warning cles equipped with GME 280HP engines and All Wheel Drive (“AWD”). The brake 119, “New Pneumatic Tires-Other than lamps and preventing drivers from being Passenger Cars.” If the tread separates, the warned of safety system problems the fluid line may contact a coolant hose clamp, possibly causing brake fluid to leak driver may experience a loss of control, next time that they are driving. If the increasing the risk of a crash. warning lamps do not indicate a safety onto the exhaust. Brake fluid leaking onto system failure such as an engine or fuel the exhaust can increase the risk of a fire. ARBOC Specialty Vehicles, LLC injection system malfunction, continuing Irvine Shade & Door, Inc. (Irvine) is (ARBOC) is recalling certain 2015-2018 to drive the vehicle with a faulty system recalling certain Windshield Motor ARBOC Spirit of Freedom, Spirit of Mobil- and no warning can increase the risk of a Shades. The motorized windshield roller ity and Spirit of Independence-Pro Master crash or injury. shade at the driver’s seating position may transit buses, equipped with Freedman GO-ES Foldaway Seats, part numbers Fujian Wanda Automobile Glass Indus- unroll without warning while driving. If the windshield roller shade unrolls while 43705, 45467, 48923, and 75719. When the try (Wanda) is recalling certain aftermar- back seat cushion is rotated from the ket Replacement Windshields sold for use driving, it could block the driver’s visibil- ity, increasing the risk of a crash. stowed position to the upright position, in 2014-2018 Toyota Highlander vehicles. the seat cushion may not remain locked The windshields have an attached wire New Flyer of America, Inc. (New Flyer) into place when under load, such as in a harness that water may leak into, possibly is recalling certain 2015-2017 New Flyer crash or a sudden stop. As such, these causing damage to the vehicle’s Engine XD40 and XN60, 2015 XD60 and XDE40 vehicles fail to comply with the require-

JereBeasleyReport.com 31 ments of Federal Motor Vehicle Safety NextGen 45” 3PT school bus seats, part Signature Hardware Recalls Wall-Mounted Standard (FMVSS) number 207, “Seating number GenQ3-45 LH. There may be an Shower Seats Systems.” In the event of a crash, if the insufficient number of bolts attaching the seat back moves, the seat occupant has an seat to the bus floor, allowing the seat to Clawfoot Supply LLC, d/b/a Signature increased risk of injury. detach from the bus floor in the event of a Hardware, of Erlanger, Kentucky, has crash. As such, these vehicles fail to recalled about 7,200 Wall-mounted shower Gulf Stream Coach, Inc. (Gulf Stream) comply with the requirements of Federal seats. The aluminum hardware supporting is recalling certain 2019 Gulf Stream Motor Vehicle Safety Standard (FMVSS) the shower seat can corrode, posing fall Vintage Cruiser recreational trailers. The number 210, “Seat Belt Assembly Anchor- and laceration hazards. This recall inner hub bearings may not have been suf- ages.” In the event of a crash, if the bus involves wall-mounted, folding shower ficiently greased, which can cause the seat detaches from the floor, it can seats made of teak wood slats joined bearings to overheat and fail. If the bear- increase the risk of injury. together by support rods that extend from ings overheat, the hub may fail, affecting two wall-mounting brackets. The recalled handling and increasing the risk Other Consumer Recalls shower seats have brushed nickel, chrome of a crash. or oil-rubbed bronze finishes on the TerraTrike Recalls Adult Tricycles support rods and bracket covers. The Ducati North America (Ducati) is recall- shower seats measure 16 inches wide by ing certain 2018-2019 Ducati Panigale V4, WizWheelz Inc., dba TerraTrike, of 13.5 inches deep, with a width of 11.75 V4 S and V4 SP motorcycles. The timing Grand Rapids, Michigan, has recalled 450 inches between the centers of the wall chain tensioner may loosen over time, TerraTrike Rambler E.V.O adult tricycles. mounting brackets. SKU number 917726 is possibly causing oil to leak from the The torque sensor in the wheel can acti- printed on purchase receipts and email bottom of the tensioner adjustment bolt. vate unexpectedly and cause the trike to order confirmations. Signature Hardware An oil leak can increase the risk of a crash. power forward, posing crash and injury has received 194 reports of the shower hazards. This recall involves yellow Ter- Jayco, Inc. (Jayco) is recalling certain seats breaking, including 37 reports of raTrike Rambler Electrical Vehicle Option 2019 Jayco White Hawk, Jay Flight SLX, falls without injuries and 23 reports of ( E.V.O.) recumbent pedal-powered trikes and Jay Feather travel trailers. The inner injuries. Injuries include scrapes and with an electric assist wheel. The trikes wheel hub bearings may not have been bruises, three reports of lacerations for have two wheels in the front and one sufficiently greased, which can cause the which consumers received stitches and wheel in the back with a large black hub bearings to overheat and fail. If the bear- one report of lumbar fractures. motor. “Terra Trike” is printed on the ings overheat, the hub may fail, affecting The trays were sold at Signature Hard- front of the back rest area. The model handling and increasing the risk ware by telephone and online at signature- name “Rambler E.V.O.” is located on the of a crash. hardware.com between January 2011 and front outrigger tube that connects to the July 2018 and by Barclay Products Ltd. Horizon Global (Horizon) is recalling front left wheel. The serial numbers through its showroom in Gurnee, Illinois certain Reese Elite Aftermarket Gooseball included in this recall are listed on the between October 2013 and June 2017 for kits, both the Hi-Rise Ball kit, part number company’s website at www.terratrike.com between $150 and $160. Consumers 19315, and the GM Kit, part number and are located under the main tube on a should immediately stop using the 30891, sold for aftermarket installation on barcoded sticker near the rear wheel. The recalled shower seats and contact Signa- Chevrolet and GMC trucks with the serial numbers are also stamped into the ture Hardware to receive a full refund. factory OEM underbed package. These head (vertical) tube of the outrigger. The Contact Signature Hardware toll-free at parts are the connector used in a goose- company has received five reports of the 866-855-2284 from 8 a.m. to 9 p.m. ET neck hitch to connect the towing vehicle’s torque sensor activating while not pedal- Monday through Friday, 8 a.m. to 6 p.m. underbed to a trailer. The load dynamics ing. No injuries have been reported. ET on Saturday, noon to 6 p.m. ET on of the underbed in these vehicles may The bikes were sold at Authorized Ter- Sunday, or online at www.signaturehard- potentially result in the trailer separating raTrike dealers, independent bicycle ware.com and click on “Product Recall” from the gooseball. If the trailer separates dealers and recumbent bicycle specialty for more information. from the gooseball and the trailer is not stores nationwide and online at www.Ter- using safety chains, the trailer could sepa- raTrike.com from August 2017 through rate from the vehicle, increasing the risk October 1, 2018 for about $3,500. Con- White-Rodgers Recalls Thermostats of a crash. sumers should immediately stop using the recalled trikes and return them to the White-Rodgers has announced a recall Altec Industries, Inc. (Altec) is recalling place of purchase for a free speed sensor of Emerson-branded SensiWifi thermostats certain 2017 Altec AT37, AT41 and AT48 installation and a software upgrade. due to a potential fire hazard. According aerial devices. Some of the fasteners that Contact TerraTrike at 800-945-9110 from 8 to the United States Consumer Product secure the pedestal to the chassis may be a.m. to 5 p.m. ET Monday through Friday Safety Commission(CPSC), contact missing or may be loose which can cause or online at www.terratrike.com and click between the thermostat wires and house- a loss of stability or separation of the ped- on “Important Recall” for more informa- hold line voltage can damage the thermo- estal. A pedestal that is not secure can tion. Pictures available here: https://www. stat, posing a fire hazard. The thermostats increase the risk of injury. cpsc.gov/Recalls/2019/TerraTrike-Recalls- have “Emerson” printed on the front and a Adult-Tricycles-Due-to-Crash-and- Blue Bird Body Company (Blue Bird) is date code from 1416 to 1536 on the back. Injury-Hazards recalling certain 2020 Blue Bird All Ameri- The date code represents the manufacture can and 2019-2020 Blue Bird Vision school date from the 16th week of 2014 through buses, equipped with certain HSM the 36th week of 2015. The thermostats are

32 BeasleyAllen.com white in color with an LCD screen. There on receiving a free replacement lockset. are 100 percent polyester and the trim is are three buttons below the thermostat Contact dormakaba USA Inc. toll-free at 95 percent polyester and 5 percent screen; up and down arrow and menu 855-885-1296 from 8 a.m. to 5 p.m. ET spandex. They have matching print hoods buttons are located to the right of the Monday through Friday or www.stanley- with small ears, detachable mittens and a screen. Recalled thermostats have model hardwarefordoors.com and click on Prod- zipper down the front of the suit covered numbers 1F86U-42WF or UP500W. A ucts, then on Recall for more information. with a fabric snap flap at the chest. The product label containing the model company has received one report of a number and date code information is metal snap detaching from a snowsuit. No located on the back of the thermostat. The Lotus Foods Recalls Ramen Noodle Soup injuries have been reported. date code is between 1416 and 1536. Cups Due To Fire And Burn Hazards The suits were sold exclusively at The According to the CPSC, consumers Children’s Place stores nationwide and should immediately check their Sensi ther- Lotus Foods Inc., of Richmond, Califor- online at www.childrensplace.com from mostat to determine if “Emerson” is nia, has recalled about 239,000 Lotus August 2018 through November 2018 for printed on the front with one of the above Foods rice ramen noodle soup cups. The about $50. Consumers should immediately date codes on the back. Then, contact the paper soup cup’s labeling incorrectly take the recalled snowsuits away from company to determine if the unit is instructs consumers to use the microwave children, stop using them and return them included in the recall and for instructions for cooking, posing fire and burn hazards. to any The Children’s Place store for a full on repair and/or replacement. The The product involves Lotus Foods two refund. Online customers will receive company has received eight reports of ounce ramen noodle soups packaged in return instructions by email from The burn damage to the thermostats, involving paper cups that are not microwave safe. Children’s Place on obtaining a full minor property damage. No injuries have The recalled soup cups contain organic refund. Contact The Children’s Place toll- been reported. The thermostats have been brown rice noodles and were sold in three free at 877-752-2387 from 9 a.m. to 8 p.m. sold at Johnstone, Home Depot and flavors; red miso rice ramen noodle soup, ET Monday through Friday and between 9 Golden State FC stores and heating ventila- masala curry rice ramen noodle soup and a.m. to 5:30 p.m. ET on Saturdays, or tion and air conditioning (HVAC) equip- tom yum rice noodle soup. The UPC code online at www.childrensplace.com and ment distributors nationwide from April is printed on the back side of the cup to click on “Recall Information” at the 2014 through December 2016 for between the left of the front panel. Lotus Foods has bottom of the page for more information. $90 and $150. received 12 reports of the soup cups Pictures available here: https://www.cpsc. becoming extremely hot and/or sparking gov/Recalls/2019/The-Childrens-Place- or catching fire during microwaving, Recalls-Infant-Snowsuits-Due-to- Stanley Commercial Hardware Grade 1 including one report of a minor burn. Choking-Hazard Mortise Lever Locks Recalled Reported damage has been limited to the noodle cups. About 13,500 Stanley Commercial Hard- The cups were sold at Whole Foods Dormakaba USA Recalls Stanley ware’s grade 1 mortise lever lock QMS/ Market stores and other independent Commercial Hardware Locksets QME 100 Series have been recalled by natural and specialty stores nationwide, Stanley Security Solutions, Inc. and Best Safeway stores in Northern California and dormakaba USA of Indianapolis, Access Solutions, Inc., of Indianapolis, Ind. online at Amazon.com and Lotusfoods. Indiana, is recalling about 14,300 door The recalled locksets have Bright Brass, com from August 2018 through November locksets sold in the U.S. and Canada. The Satin Brass, Oil Rubbed Bronze, Satin 2018 for about $2.50. Consumers should lockset can fail to open, posing an entrap- Nickel, Bright Chrome or Satin Chrome immediately stop using the recalled soup ment hazard and inability to vacate a loca- finish. The locksets were sold in 15 differ- cups and contact Lotus Foods for a coupon tion in an emergency. The company has ent “functions” or models that can be for a replacement product. Contact Lotus received eight reports of lockset latch fail- identified by the three digit number fol- Foods toll-free at 866-330-4390 from 9 ures. No injuries have been reported. This lowing the QMS/QME series, which is a.m. to 5 p.m. PT Monday through Friday recall involves Stanley Commercial Hard- located on the mortise case that is or online at www.lotusfoods.com and ware’s grade 1 mortise lever lock QMS/ installed in the door cavity. Only mortise click on the noodle soup cup recall QME 100 Series. locksets with the following model/series banner or www.lotusfoods.com/noodle- The recalled locksets have Bright Brass, numbers are included in the recall. The cup-safety-recall/ for more information. Satin Brass, Oil Rubbed Bronze, Satin lockset can fail to open, posing an entrap- Nickel, Bright Chrome or Satin Chrome ment hazard and inability to vacate a loca- finish. They were sold in 15 different tion in an emergency. The company has The Children’s Place Recalls Infant “functions” or models that can be identi- received eight reports of lockset latch fail- Snowsuits fied by the three digit number following ures. No injuries have been reported. the QMS/QME series, which is located on The locks were sold at Newport Distri- About 14,900 Infant snowsuits have the mortise case that is installed in the bution, CBS Manhattan, Columbus Door been recalled by The Children’s Place Ser- door cavity. Company and other lock distributors and vices Company LLC, of Secaucus, New The locksets, manufactured in Taiwan, retailers nationwide, and online at www. Jersey. This recall involves girls’ infant were sold at Newport Distribution, CBS Grainger.com from December 2013 snowsuits sold in infant sizes 0 to 18 Manhattan, Columbus Door Company and through June 2018 for between about months. The recalled snowsuits were sold other lock distributors and retailers $450 and $650. Consumers should imme- in two styles and three colors/patterns. nationwide, and online at www.Grainger. diately stop using the recalled locksets The style number is printed on a label com from December 2013, through June and contact the company for instructions sewn in to the side seam. The snowsuits 2018, for between about $450 and $650.

JereBeasleyReport.com 33 Consumers should immediately stop cedures for the Section. She makes sure consumer fraud within the health using the recalled locksets and contact the the staff members have adequate knowl- care industry. company for instructions on receiving a edge and training to handle the tasks In 1995, Jessica began her career as a free replacement lockset. Consumers may assigned to them. legal assistant and over the years has dem- contact dormakaba USA toll-free at (855) Melissa also works closely with refer- onstrated complex case management and 885-1296 from 8 a.m. to 5 p.m. (ET) ring lawyers who send cases to the administrative responsibilities resulting in Monday through Friday or www.stanley- Section. Melissa says her favorite part of numerous verdicts and settlements for hardwarefordoors.com and click on Prod- her job as Mass Torts Director is working clients in many areas of law. The types of ucts for more information. with and getting to know all of the staff. cases she has worked on include personal Melissa graduated from Jones School of injury, consumer fraud litigation, commer- Once again there have been a large Law in 2001. While at Jones, she served as cial fraud litigation, antitrust litigation, number of recalls since the last issue. a member of the Law Review Board and healthcare litigation, qui tam litigation, While we weren’t able to include all of was recognized as Outstanding First Year and class-action lawsuits. them in this issue, we included those of Student. She was active in the Student Bar Jessica is married to Jason Stapp. She the highest importance and urgency. If Association and held the positions of First has a 21-year-old son, Tray, and a 15-year- you need more information on any of the Year Senator and Vice-President. She also old daughter, Haley. Jessica is a member of recalls listed above, visit our firm’s web was selected Who’s Who Among Students Coosada Baptist Church and spends her site at BeasleyAllen.com or our consumer in American Universities and Colleges. She free time supporting many civic and blog at RightingInjustice.com. We would has been a member of several associations charity organizations. also like to know if we have missed any and has served as a guest scoring judge in Jessica is a dedicated employee who significant recall that involves a safety local moot court competitions. She is a works very hard for clients in the areas issue. If so, please let us know. As indi- Martindale-Hubbell AV Preeminent Rated she is involved with. We are most fortu- cated at the outset, you can contact attorney, the gold standard in attorney nate to have Jessica with us. Shanna Malone at Shanna.Malone@beas- rating based on strong legal ability and leyallen.com for more recall information high ethical standards. TEMP TEMPLE or to supply us with information Melissa is married to Michael Prickett Dana Allen Temple, Jr., best known as on recalls. and they have twin sons who are graduat- Temp, joined Beasley Allen six years ago. ing high school this year. In her free time, Currently, Temp is a Staff Assistant in the Melissa says she enjoys spending time Mass Torts Section working on the Xarelto XIX. with her family, especially attending her litigation. He specializes in medical sons’ sporting events, which include records, specifically determining which FIRM ACTIVITIES tennis, golf, football and just about any records need to be ordered for each case sport! She is an avid Auburn fan. Melissa filed. The process includes gathering also likes reading, photography and travel- various authorizations and ensuring the Employee Spotlights ing. The family’s favorite travel destination firm receives all available records that are is the beach. They also do volunteer work pertinent to proving the client used together. The Pricketts are active Xarelto and their use resulted in injuries MELISSA PRICKETT members of Frazer United Method- or some cases death. Melissa Prickett began her career at the ist Church. Temp began working at the firm as an firm in 1996 as a secretary and a few Melissa has an extremely important role intern in what was then the Web Depart- months later she was promoted to the in the Mass Torts Section and as you have ment and has held several different posi- position of legal assistant. While working seen from all of her responsibilities she tions over the years. As an assistant in the as a Legal Assistant, Melissa also attended stays very busy. Melissa is totally dedicated Accounting Department, Temp helped law school at night. She was hired as a to the firm, her work and to the clients manage the overflow work including pro- lawyer in our Mass Torts Section in 2001. served by the Mass Torts Section. She does cessing disbursement claims during the Melissa has previously been involved in a tremendous job! We are blessed to have firm’s massive work on the BP Oil Spill liti- several mass torts litigations, including Melissa in the firm. gation. He assisted Toxic Torts Section Baycol, hormone therapy, Celebrex/Bextra lawyers during the litigation. Temp served and hip replacement. She also is currently JESSICA STAPP as the Communications Assistant for the involved in litigations involving IVC filters Jessica Stapp, who joined the firm in Web Department, which evolved into the and Physiomesh, as well as handling August 2010 as a Legal Assistant in the Marketing Department. Prior to moving to emerging litigation in a number of areas. Consumer Fraud & Commercial Litigation his current position, Temp also worked as Since 2010, Melissa has also served as Section, is currently working with Ali Marketing Project Manager for the newly the Director of Operations for Mass Torts. Hawthorne. Jessica has focused her career created Department. In that role, she oversees all aspects of at Beasley Allen primarily on complex liti- As the youngest of two older half-sib- cases handled in the section from start to gation on a national level including lings, Chad Temple and Candice Temple finish. Melissa also manages the day-to-day serving as lead legal assistant in the Ewen, who is married to Nick, Temp is operations for more than 120 lawyers and Average Wholesale Price litigation. She is now known as “the cool, younger uncle” support staff in the Section. She works currently lead legal assistant in litigation to Candice and Nick’s four daughters, closely with lawyers and staff to make for multiple states that seek to recover Brooklyn, Bellamie, Savannah and Carys sure that all responsibilities are handled in money for reimbursement of unapproved and son, Kashton. Although they all live in a timely, efficient and accurate manner. and/or ineffective drugs. Jessica is also Orange County, California, Temp enjoys Melissa focuses a lot of attention on imple- working in class action litigation involving any time he can spend with them. menting and improving policies and pro-

34 BeasleyAllen.com Temp is the son of Lisa Cheek Temple • Stephanie Monplaisir, Personal Injury these.” Tom’s father was a great influence and the late Dana Temple who passed and Products Liability Section Lawyer of in this area. Tom says he remembers his away on Thanksgiving 2016 from compli- the Year; father stating, “One of the worst things cations resulting from a motorcycle acci- someone can do is to take advantage of dent. Temp’s family also includes two • Andrew Brashier, Consumer Fraud and the illiterate, the ignorant or the unedu- dogs, Artemis (a 5-year-old Afghan Hound) Commercial Litigation Section Lawyer cated.” With that in mind, Tom began his and Flash (a 13-year-old Bordernese or of the Year; legal career at Beasley Allen representing Border Collie/Bernese Mountain Dog mix) • Joseph VanZandt, Mass Torts Section victims of consumer fraud, many of whom who Temp inherited from his father. Lawyer of the Year; were illiterate or uneducated. The Montgomery native graduated from Tom became president of the Alabama Trinity Presbyterian School and attended • Ryan Kral, Toxic Torts Section Lawyer State Bar in July 2009, where he served Belmont University, where he majored in of the Year. through July 2010. While bar president, Public Relations and was part of the Tom focused on Access to Justice and writing team for the university’s “Bruin I am blessed to work with each of these increasing pro bono services to those in Blog.” After accepting a full-time position outstanding professionals who have com- need. In 2009, the Montgomery County with the firm, Temp transferred to mitted their working lives to taking good Bar Association (MCBA) established the Huntingdon College where he earned a care of our clients. These outstanding Thomas J. Methvin Volunteer Lawyer of B.S. degree in Business Administration, lawyers know the value of hard work. We the Year Award. The award was named in graduating in 2016. are truly blessed to have them here at the honor of Tom for his dedication to provid- Away from the office, Temp enjoys firm and these recognitions are ing pro bono legal services to the less for- writing, gaming with his friends, kickbox- well-deserved. tunate in our community and for his ing, hiking along nature trails, finding and leadership and advocacy in this area. It listening to new music, watching Alabama annually recognizes an MCBA lawyer who Football and frequenting anyplace with Tom Methvin Honored As 2018 Recipient Of devotes significant time and energy to pro- good sushi. Temp is a good, hard-working The Chad Stewart Award viding pro bono service to the less fortu- employee who works hard to help Beasley nate and providing leadership within the Allen clients obtain justice. We are fortu- In 2014, the firm established a new VLP community. nate to have him with us. award, the Chad Stewart Award. This Among his many community service honor was created in memory of Beasley activities, Tom is past president of the Allen lawyer Chad Stewart, who passed Board of Directors for Brantwood Chil- away unexpectedly in April of that year at dren’s Home, a home for abused and XX. the very young age of 41. In addition to neglected children, and still active in SPECIAL being a dedicated lawyer who worked support of the organization and the chil- hard for his clients, Chad truly modeled dren it serves. He continues to act as a RECOGNITIONS Jesus Christ in his daily walk. The Chad mentor to a young man who is a former Stewart Award was created to recognize a resident of Brantwood Children’s Home. lawyer who best exemplified Chad’s spirit He also serves on the Board of Directors of Beasley Allen Lawyers Of The Year of service to God, his family and the prac- Children’s Hope ministry in Haiti, which tice of law in the task of “helping those operates a children’s home, a medical Each year we select lawyers in their who need it most.” clinic and other missionary outreach in respective sections and one overall that This year, the Chad Stewart Award was that country. truly shows the work we do, helping those presented to the firm’s managing attorney, Tom serves on the Cystic Fibrosis Advi- who need it most. This year Chris Glover Tom Methvin. Many know Tom for his gen- sory Panel, which helps fight this terrible was selected as the firm’s Litigator of the erosity and community involvement disease. In 2009, he received the Sheena Year. This award is presented to the across our city and state. Diane Ayers Humanitarian Award for his lawyer who demonstrates exceptional pro- Since 1998, Tom has been the managing longtime service and support for the fessional skill throughout the course of attorney of the Beasley Allen Law Firm. Cystic Fibrosis Foundation. In 2014, Tom the year. Chris is the Managing Attorney When he became managing attorney, he was selected as the March of Dimes in the Atlanta office. He handles complex organized the firm into sections based on Citizen of the Year. He also is a member of product liability cases involving serious case type. This is very common in law the River Region United Way Tocqueville injury or death and has handled several firms today but was unusual at that time. Society and is a former member of the cases against manufacturers of light and It has allowed our lawyers to concentrate United Way Campaign Cabinet. heavy trucks and automobiles. His work in certain areas and to be on the cutting Past recipients of the Chad Stewart opening and managing the Atlanta office edge in their legal fields. He led Beasley Award are Gibson Vance, Leigh O’Dell, has led to tremendous growth over just a Allen to become a national powerhouse in Roman Shaul, and Andy Birchfield. few short years. providing legal advice and representation In addition to selecting the firm’s Litiga- to victims of wrongdoing. tor of the Year we have recognized excel- Tom’s family has served as lawyers, Beasley Allen honored As Montgomery lence in our four sections, naming the judges and in other elected offices in Impact Maker Lawyer of the Year in each. Honorees Alabama for over 200 years. He always for 2018 are: knew he wanted to be a lawyer. From a Beasley Allen was announced in Decem- very early age, Tom has had a heart for ber as the Large Business category winner those whom the Bible calls “the least of of the Montgomery Area Chamber of Com-

JereBeasleyReport.com 35 merce’s Montgomery Impact Maker Award Parker Miller Selected For GTLA’s counsel and Deputy Attorney General for during the organization’s Annual Meeting. LEAD Class the State of Alabama against Purdue This award was established to honor and Pharma L.P., Endo Pharmaceuticals, Inc., recognize member businesses within the Parker Miller, a lawyer in the firm’s Per- and McKesson Corporation. Alabama’s community that are making a huge impact sonal Injury & Product Liability Section case is currently centered in the midst of in key areas of the City of Montgomery’s and a recent Atlanta transplant, by way of the historic opioid litigation in Cleveland, image and economy. the firm’s Montgomery headquarters, Ohio. He is also Beasley Allen’s lead attor- For nearly four decades, Beasley Allen was selected for the Georgia Trial Lawyers ney for the State of Georgia in its investiga- has been headquartered in downtown Association’s 2018-2019 Leadership tion and evaluation of opioid-related Montgomery, first at its Hull Street loca- Education & Advanced Direction claims. tion and now in the historic Commerce (LEAD) Program. Street area. We are honored to have been The LEAD program is in its sixth year and serves to train and equip GTLA voted an Impact Maker by the Chamber of Graham Esdale To Serve As Secretary Of members who have been identified as Commerce membership. Coincidentally, The American Board Of Trial Advocates potential leaders in the association with Beasley Allen celebrates 40 years in Mont- Alabama Chapter gomery this month. the necessary tools to take the next steps The award recognizes the firm’s revital- in their legal careers, both in and out of Graham Esdale, a lawyer in the firm’s ization efforts of downtown Montgomery the courtroom. Parker was one of only 17 Personal Injury and Products Liability as well as its contribution to the local selected following an extensive applica- Section, has been selected to serve as Sec- economy. For years, Beasley Allen has tion review and selection process. More retary for the Alabama Chapter of the been fortunate to be part of the revitaliza- than 60 candidates were submitted for American Board of Trial Advocates tion projects in downtown Montgomery consideration. Applicants must have less (ABOTA). Graham has served for a number and has been delighted to be part of the than 10 years of legal experience or be 35 of years as the chapter’s National Board transformation because it improves the years of age or younger. Representative, working as a liaison quality of the area where many work and Since joining the firm in 2008, Parker between the chapter and its parent organi- now live, increasing foot traffic and con- has established himself as a force in cases zation. In this capacity, Graham worked tributing to the local economy. Beasley of national significance. While working in closely with the chapter’s executive Allen lawyers in the firm have invested the firm’s Toxic Torts Section, he main- board, which helped prepare him for his multiple millions of dollars in projects that tained a diverse practice and successfully new role. He will attend the ABOTA have helped bring Downtown Montgom- litigated cases on a wide variety of legal annual Leadership Conference in Califor- ery back to life. topics, including serving as co-lead nia this month where he will collaborate th Last month, the firm hosted its 12 counsel and Deputy Attorney General for with his counterparts from across the annual Legal Conference & Expo at the the State of Alabama in the Deepwater country to develop the organization’s plan Renaissance Montgomery Hotel & Spa at Horizon (British Petroleum or BP) Oil Spill of action for the year. Graham had the Convention Center. The event is the litigation. In that case, BP agreed to pay this to say: largest of its kind in the state and one of Alabama $2.3 billion in what is considered the top five legal conferences in the to be one of the most significant settle- The conference is a great way to country. On average, more than 1,500 ments in Alabama’s history. In addition, relay information from the national private practice lawyers across the state Transocean agreed to pay the state of organization down to the different register for the event. The conference also Alabama $20 million in that litigation. chapters and their members. I look hosts a number of the nation’s top legal Parker was selected to serve as Beasley forward to bringing new informa- service providers, exposing the national Allen’s second chair to the oil spill Plain- tion back to the Alabama Chapter vendors to the local area. This year’s con- tiffs’ Steering Committee in New Orleans. and helping lead the group as it ference was the largest so far. It is esti- Ultimately, the Plaintiffs’ Steering Commit- pursues the year’s goals for strength- mated that each conference adds about a tee reached a landmark, uncapped settle- ening and enhancing ABOTA’s million dollars to the local economy and ment with BP for private claimants mission. plants seeds for Montgomery to be the throughout the Gulf of Mexico. A national organization, ABOTA is com- potential vacation and meeting destination After relocating his law practice to the prised of equal numbers of Plaintiff and for others in the future. firm’s Atlanta office earlier this year, Defense trial lawyers committed to pre- Predicated on the principle of “helping Parker has focused on handling products serving and promoting the civil jury trial those who need it most,” the firm, its liability and traumatic personal injury right provided by the U.S. Constitution’s attorneys and staff also invest resources in claims across the country, especially those Seventh Amendment. Membership in a large number of local charities. The related to negligent security and premises ABOTA is by invitation only, following a Montgomery Impact Maker award is part liability. He currently serves as an officer rigorous nomination and voting process. of the Montgomery Chamber’s Imagine a of the American Association for Justice’s Members must have tried at least 20 civil Greater Montgomery strategy, an eco- Products Liability Section. jury trials to verdict as lead counsel. A key nomic development strategy that focuses Parker also maintains a niche practice component of ABOTA’s work to uphold business, elected and community leaders representing state governors and state the jury system is by educating the Ameri- around a vision of a better, more prosper- attorneys general in nationally significant, can public about the history and value of ous Capital City. high-stakes cases. In addition to his government work in BP, he is currently the right to a trial by jury. playing a leadership role in the historic As a Life Fellow and ardent Seventh opioid litigation, as he serves as co-lead Amendment advocate, Graham is committed to supporting the organization’s

36 BeasleyAllen.com mission and projects including those pro- Katie Britt Chosen As First Woman To Lead she starts a new chapter in her life. May grams administered by the ABOTA Business Council Of Alabama God bless her! Foundation. The ABOTA Foundation is the organiza- The Business Council of Alabama tion’s nonprofit education affiliate that (BCA), one of the state’s most powerful operates a series of programs designed to political organizations, has selected Katie XXI. enhance civics knowledge for those in the Boyd Britt, chief of staff for my longtime FAVORITE BIBLE legal profession as well as teachers and friend Sen. Richard Shelby, to be the next young students throughout the U.S. It also BCA president and CEO. Katie will start VERSES works to promote the importance of pro- the job on Jan. 2 and will be the first woman to serve as BCA’s president and fessional and civil behavior in the practice Willa Carpenter, the Human Resources CEO. She was an excellent choice to of law through its Civility Matters Liaison for the firm, furnished verses for replace Billy Canary at the BCA. program. And, the Foundation’s Save Our this issue. Willa, who also is our firm’s Alabama Power CEO Mark Crosswhite, Juries public education campaign informs “unofficial” Chaplin, had this to say: and mobilizes citizens in the fight to save who chairs the BCA’s executive commit- our disappearing Seventh Amend- tee, said in a press release, announcing the As we face the New Year, we leave ment right. appointment: behind many challenges. Some ended An award-winning lawyer, Graham with wonderful results and some not As the top staff member for Senator focuses his practice on products liability so good. We may have lingering Shelby, she has worked daily with and workplace injuries. Graham joined the heartaches or glorious memories businesses and elected officials from firm in 1996 after handling over 150 trials from this past year. In Phillipians, around Alabama and the country. for the Jefferson County, Alabama, District Paul is telling us that no matter what She also has a special ability to Attorney’s Office and then practicing civil was handed to us, we as believers work with and unite people from all law in Birmingham, Alabama. must forget what is behind and press walks of life. She has all of the tools After joining our firm, Graham contin- forward for the prize (eternal life). we were looking for to support the ued his trial work and was one of the first We should apprehend (lay hold on) business growth across the state that lawyers in the country to file a lawsuit the one who has laid hold on us. will drive our economy in the against Toyota in what would become the years ahead. nationwide and high-profile Sudden Unin- But he who endures to the end shall be saved. Matthew 24:13 tended Acceleration (SUA) litigation. He Katie grew up in Enterprise and served was a member of the trial team that as president of the Student Government Brethren, I do not count myself to secured a $3 million compensatory Association at the University of Alabama. have apprehended: but one thing I damages verdict against Toyota in 2013 in She earned her law degree from the Uni- do, forgetting those things which Bookout, et al v. Toyota. Toyota settled versity of Alabama School of Law. Before are behind and reaching forward the case before the case went to the puni- becoming chief of staff, she worked in to those things which are ahead, I tive damages phase. The case was the first other positions for Sen. Shelby, including press toward the goal for the prize in the nation tried on the theory that Toyo- serving as his press secretary. Katie previ- of the upward call of God in ta’s throttle control software was defec- ously led state governmental affairs for the Christ Jesus. Philippians 3:13-14 tive and could cause unintended Butler Snow law firm in Montgomery and acceleration. After our case, the massive practiced corporate law. She is married to Charles Myrick, a Mailroom Clerk with litigation settled. Among his additional Wesley Britt, who played football at the the firm, sent John 1:6-7 in his noteworthy cases, Graham obtained a University of Alabama, and they have two favorite verse. $114.5 million verdict against a bucket children. The Britt family will live in There was a man sent from God, truck manufacturer and a $3 million Montgomery. Katie had this to say: verdict against Alabama Power Company whose name was John. This man involving an electrical accident. My heart is in Alabama. Our state came for a witness, to bear witness Graham has been named one of Ameri- has made significant progress in of the light, that all through Him ca’s “Best Lawyers” and “Super Lawyers” recent years, and I am honored to might believe. Just as John came for and was selected as one of the 2014-2015 have been chosen to lead BCA a witness of the light (Jesus), as Lawdragon 500 Leading Lawyers in during this time of growth. I look Christians we are to live so that we America. Graham was also named one of forward to building on that momen- will be that light. We are to be America’s Top 100 High Stakes Litigators tum through collective efforts with witness of the life of Christ within and received a lifetime achievement award our BCA members, elected officials, us. John 1:6-7 and business allies across the from America’s Top 100 Attorneys. Soo Seok Yang, a lawyer in our firm’s state—identifying opportunities Sources: American Board of Trial Advocates (ABOTA) Mass Torts Section, tells about his every day in which we can provide and ABOTA Foundation “October Surprise” and he furnishes American Board of Trial Advocates (ABOTA) and advance real, tangible several verses for this issue. Soon Seok had solutions. this to say: I predict that Katie will do an outstand- By God’s grace, my wife and I found ing job in her new role. She is a tremen- out about her pregnancy of our fifth dous talent and will be extremely effective child at the end of October this year. for the BCA. I wish Katie the very best as As it was God’s surprise and the

JereBeasleyReport.com 37 most precious present, being over- of us need to read and pass on to others. gunshot wounds the UAB Trauma joyed, and at the same time, over- Ms. Crain, who is a journalist, tells us Center has doubled in four years. He whelmed, we got down on our knees about Dr. Jeffrey Kerby, who works as estimates 750 patients were treated to praise God and pray to Him for doctor at UAB Medical Center. this year for gunshot wounds. “It’s on His love, mercy and provision. Our a linear rise,” Kerby said. “it’s not just four children had their own nick Dr. Jeffrey Kerby sat down at 9 a.m., blips. It’s becoming a real epidemic” names while they were in the womb: patches of blood still clinging to his Kerby shares the sentiments of the Bobo (treasure in Chinese) for scrubs. Kerby, director of acute care American College of Surgeons Com- Abraham, Heemang (hope in surgery and chief trauma surgeon at mittee on Trauma Firearm Strategy Korean) for Johanna; Sarang (love UAB Medical Center, had been Team when it comes to gun violence: in Korean) for Elijah; and Eunhye working since 7 a.m. the previous the gun violence epidemic is a public (grace in Korean) for morning making rounds, teaching, health problem that needs to be Hannah Grace. working on research, but at 5 that researched. Dr. Kerby says: afternoon, his real work began. He Somehow, starting from the day we operated on three gunshot wound We’re not anti gun. We know that found out about the pregnancy, God gave patients through the night. One, he the 2nd Amendment is very impor- us many Bible verses about “faith” through presumed, would not make it. They’d tant, especially to our population various avenues, so we prayed and been shot in the head. The other two in Alabama, and across the decided to call this baby “Mi-Deum” (faith were stable, but not out of the woods. country. We want to come to the in Korean) until we have a real name. I He got out of his last surgery at 7:30 table with all the parties, the NRA, take it as God’s faithful reminder for us on a.m. and at 9 a.m. he finally sat. trauma surgeons, public health the importance of having faith in Him. experts, to try to come up with a Here are a few verses that we Earlier this week, the National Rifle solution to the gun vio- encountered: Association drew public controversy lence problem. when it posted a Tweet, chastising “For we walk by faith, not by sight.” physicians for speaking out about gun 2 Corinthians 5:7 violence, admonishing them to “stay The NRA has actively lobbied against in their lane.” But for Dr. Kerby, this is gun-violence research in the past, “Consequently, faith comes from more than his lane. It’s his highway. including advocating for the Dickey hearing the message, and the Someone should tell self-important Amendment in 1996, which cut message is heard through the word anti-gun doctors to stay in their lane. federal funding for gun violence about Christ.” Romans 10:17 Half of the articles in Annals of Inter- research by 90 percent. Alabama’s rise in gun violence is on par with the “And without faith it is impossible to nal Medicine are pushing for gun control. Most upsetting, however, the increase of gun violence in the United please God, because anyone who States as mass shootings make head- comes to Him must believe that He medical community seems to have consulted NO ONE but themselves. lines almost daily. According to Gun exists and that He rewards those Violence Archives, a not for profit who earnestly seek Him.” Kerby graduated with a medical organization providing public Hebrews 11: 6 degree from the University of Mis- research for gun-related injuries, “For in the gospel the righteousness souri at Kansas City in 1989 and there have been 307 mass shootings of God is revealed—a righteousness moved to Birmingham to complete nationwide in 2018, killing 328 and that is by faith from first to last, just his surgical residency. Since then, injuring 1,251. he’s only left Alabama when he as it is written: ‘The righteous will In Alabama 367 people died of gun- live by faith.’” Romans 1:17 served as an active duty United States Air Force trauma surgeon from 1999 related violence in 2018. Kerby said to 2003. Today, he uses techniques he it’s the day to day gunshot wounds developed tending to high velocity that make up a big problem in Bir- XXII. gunshot wounds in war zones all over mingham. Right now, he is focused the world in his practice in Birming- on projects that can get trauma sur- CLOSING ham. Dr. Kerby says: geons to patients faster and training OBSERVATIONS civilians to treat gunshot wounds I’m used to seeing high velocity before medical help arrives. He leads wounds, but now we’re starting to “Stop the Bleed” courses in middle see those wounds in civilian and high schools, teaching students UAB’s Chief Trauma Surgeon Has A trauma centers because you’ve got and teachers to administer tourni- Message For The NRA the high velocity rifles the AK-47s quets. Kerby says: the AR-15s. We’re starting to see I want to be very clear even though I am It’s a sad statement. We’re taking a gun owner—I am not a fan of the NRA, some of those wounds more frequently. [kids] innocence away from them. an organization that hides behind the But what I always tell people is, Second Amendment, and conducts a vast According to the Center for Disease we don’t have to accept what’s money-making operation. In my opinion, Control, Alabama has the second going on, but we do have to the NRA has done great harm to our highest rate of gun deaths in the prepare for it. country. I am including a message written country, with 21.4 deaths per 100,000 by Abbey Crain a few weeks back that all people. Kerby said the number of

38 BeasleyAllen.com Kerby co-wrote a study examining tune, Which they have prescribed. In his December 1902 State of the gun-related deaths and how to To rob the needy of justice, And to Union address, Theodore Roosevelt prevent them in 2017, by breaking take what is right from the poor of said of corporations: “We are not down gun-related deaths based on My people, That widows may be hostile to them; we are merely deter- gun availability, injury and death. their prey, And that they may rob mined that they shall be so handled the fatherless. as to subserve the public good. We Kerby said there’s no individual draw the line against misconduct, patient story that has stuck with him Isaiah 10:1-2 not against wealth.” more than others. He remembers them all, especially the ones that end I am still determined to be cheerful The ‘Machine politicians’ have with him sitting down with a family and happy, in whatever situation I shown their colors..I feel sorry for member to tell them their loved one may be; for I have also learned from the country however as it shows the didn’t make it. Kerby said: experience that the greater part of power of partisan politicians who our happiness or misery depends think of nothing higher than their We carry a lot of emotional own interests, and I feel for your baggage. We have to tell those upon our dispositions, and not upon our circumstances. future. We cannot stand so corrupt a families when they don’t make it. government for any great We remember those conversa- Martha Washington (1732—1802) length of time.” tions. We remember every one of them. It sticks with you and it Theodore Roosevelt Sr., takes a toll over time. The only title in our Democracy December 16, 1877 superior to that of President is the Dr. Kerby sat for two hours. And then title of Citizen. he stood, white coat covering the blood stain on his scrubs, to do it all Louis Brandeis, 1937 over again. U.S. Supreme Court Justice XXIII. PARTING WORDS Perhaps the leadership at the NRA The dictionary is the only place that should have to spend a few weeks along- success comes before work. Hard side Dr. Kerby. That experience would work is the price we must pay for My One And Only Retainer give them a different perspective on the success. I think you can accomplish gun problem in America. It might also be anything if you’re willing to pay Lawyers at Beasley Allen do almost no good for the NRA bosses to break the hold the price. Russia appears to have on them. When “hourly charge” work and I am the only you reflect on recent events, that connec- Vincent Lombardi lawyer in our firm who has a “retainer tion is very scary. client.” I am on retainer by one person and that is the only retainer that I have. Rev. Source: AL.com Kindness is a language which the John Ed Mathison pays me $1.10 annually deaf can hear and the blind can see. with the 10 cents being interest paid in Mark Twain (1835-1910) advance since he is always late with the Our Monthly Reminders retainer. I have to admit that my friend John Ed is a very good client even though If my people, who are called by my “I see in the near future a crisis he is a retired Methodist preacher. I have name, will humble themselves and pray approaching that unnerves me and had only one problem with my client and seek my face and turn from their causes me to tremble for the safety during the years that I have been on wicked ways, then will I hear from heaven of my country....corporations have retainer. On occasion, John Ed will try to and will forgive their sin and will heal been enthroned and an era of cor- actually join the firm. A few years back, their land. ruption in high places will follow, the preacher, with my daughter Julie’s and the money power of the country 2 Chron 7:14 help, moved into my office during the will endeavor to prolong its reign by time I was involved in a multi-week trial in working upon the prejudices of the St. Louis. However, the best part of the All that is necessary for the triumph people until all wealth is aggregated retainer relationship with John Ed is that of evil is that good men do nothing. in a few hands and the Republic is he prays for his lawyer daily!!! destroyed.” Edmund Burke U.S. President Abraham Lincoln, Woe to those who decree unrigh- Nov. 21, 1864 teous decrees, Who write misfor-

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On January 15, 1979, Jere L. Beasley established a one-lawyer ﬁrm in Montgomery, Alabama, which has grown into the ﬁrm now known as Beasley, Allen, Crow, Methvin, Portis & Miles, P.C.

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

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

It has been nearly 40 years since he began the firm with the intent of “helping those who need it most.” Today, Beasley Allen has offices in Atlanta and Montgomery, and employs more than 250 people, including more than 75 attorneys. Beasley Allen is one of the country’s leading firms involved in civil litigation on behalf of claimants, having represented hundreds of thousands of people.

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