Vol. 1 No.

2 January 2014

Distributed to over 40,000 subscribers each month

www.BeasleyAllen.com

I.
CAPITOL
OBSERVATIONS
Oklahoma Verdict Was A Game Changer
Law yers in our firm have been heavily
involved in the ongoing litigation against
Toyota Motor Corp. This litigation involves
claims caused by sudden unintended acceleration in the auto makers vehicles. Beasley Allen
lawyers are involved in both the Economic
Loss / Consumer Fraud litigation, as well as
the Personal injury / Wrongful death product
liability claims against the Japanese car manufacturer. As you may remember, Toyota
recalled more than 8 million vehicles worldwide in 2009 and 2010 after reports that
sudden unintended acceleration incidents
caused crashes with resulting serious injury
and death.
Last December, Toyota Motor Corporation
announced a $1.1 billion class settlement of
the sudden unintended acceleration economic
loss class action cases, known as the EL
Cases. Dee Miles from Beasley Allen was in
on the ground floor of that effort to explore
the settlement possibilities concerning the EL
class cases.
Dee immediately involved the leadership of
the Toyota MDL, which had been appointed
by Judge James V. Selna in 2010. Steve Berman,
Marc Seltzer, Frank M. Pitre, Elizabeth J.
Cabraser and Mark P. Robi nson, Jr., al l
appointed to the PSC by Judge Selna, were on
that team. Several meetings with Toyotas
lawyers led to one of this nations largest automotive consumer settlements ever reached.
Although the economic class cases were
settled, the roughly 450 individual personal
injury and wrongful death product liability
cases remained unresolved. Toyotas approach
had been not to settle those cases and to make
the lawyers handling the cases go to trial.
Toyota wanted to see how jurors would
respond when the cases went to trial.
Fast forward to October 2013, when Cole
Portis, Graham Esdale, Ben Baker and I arrived
in Oklahoma City, Okla., to represent Jean
Bookout and the family of Barbara Schwarz in
a lawsuit against Toyota. We had alleged in
that case that Toyota designed and manufactured automobiles with defective Electronic
Throttle Control Systems. We were convinced
that this defect had caused the death of
Barbara Schwarz and serious lifetime injuries
to Jean Bookout. We tried that case for
three weeks.
The Oklahoma jury agreed with us and
returned a multi-million dollar compensatory

award against Toyota Motor Corporation,

finding the company guilty of reckless indifference to human life. The case was then to
proceed to the punitive damages phase the
next day. But before the jury could even hear
the punitive damage evidence against Toyota
Motor Corporation, we were contacted by
Toyota and were able to quickly reach a confidential settlement on the punitive damages
aspect and the case was then resolved in its
entirety with the total amount of the settlement being confidential at Toyotas request.
The Bookout/Schwarz jury verdict in Oklahoma was a landmark and monu mental
verdict in the Toyota sudden unintended
acceleration Litigation. We were able to obtain
for our clients the first and only jury verdict
where Toyotas throttle system in their vehicles was the sole issue and the jury found it to
be defective. In fact, the jurors found that
Toyota had been guilty of reckless conduct
that put customers at risk of injury or death.
With i n days of the Bookout/ Schwarz
verdict, Dee Miles received another phone call
from Toyotas settlement team. This time it
concerned the possibility of a global settlement that would resolve all of the personal
injury and wrongful death product liability
cases. Dee, along with Elizabeth Cabraser and
Todd Walburg of the Lieff Cabraser law firm,
representing the Plaintiffs, began negotiations
with Toyotas settlement team, which was led
by John Hooper of Reed Smith. The goal was
to build a settlement structure that would
resolve al l the Toyota sudden acceleration cases.
The settlement structure has now been
approved by Judge Selna in the federal MDL
(Multidistrict Litigation) and by Judge Lee
Smalley Edmon in the California JCCP ( Judicial Counsel Coordination Proceedings, Califor n i as St ate ve r s ion of Mu lt id i s t r ic t
Litigation). Both judges have entered orders
requiring the settlement process to begin. All
of the pending cases that had been set for trial
were stayed. All parties will have to follow the
process mandated by the Courts before any
case will be allowed to go to trial. The initial
response to the settlement process has been
very good, both by the Plaintiffs lawyers,
both in the federal MDL and in the California
JCCP, and by Toyota.
While the settlement process will take
time, each individual Plaintiff will have an
opportunity to have his or her case front and
center for an unbiased evaluation, with a full
consideration of all facts and settlement
factors, and with an opportunity for a satisfactory settlement. Lawyers from Beasley Allen
have been in the forefront of the Toyota litigation from the inception. The following is a
brief timeline of our firms involvement:

www.BeasleyAllen.com

I N TH I S I S S U E
I.

Capitol Observations. . . . . . . . . . . . . . . . 2

Ii.

A Report On The Gulf Coast Disaster. . . . 4

Iii.

Legislative Happenings. . . . . . . . . . . . . . 6

Iv.

Court Watch. . . . . . . . . . . . . . . . . . . . . . . 7

V.

The National Scene. . . . . . . . . . . . . . . . . 9

Vi.

The Corporate World. . . . . . . . . . . . . . . 10

Vii. Congressional Update . . . . . . . . . . . . . . 11

Viii. Product Liability Update . . . . . . . . . . . . 11
Ix.

Mass Torts Update. . . . . . . . . . . . . . . . . 12

X.

An Update On Securities Litigation. . . . . 16

Xi.

Insurance and Finance Update . . . . . . . 17

Xii. Employment and Flsa Litigation. . . . . . 18

Xiii. Premises Liability Update. . . . . . . . . . . . 18
Xiv. Workplace Hazards. . . . . . . . . . . . . . . . 19
Xv.

Transportation. . . . . . . . . . . . . . . . . . . . 20

Xvi. Healthcare Issues . . . . . . . . . . . . . . . . . 23

Xvii. Environmental Concerns. . . . . . . . . . . . 24
Xviii. An Update On Arbitration . . . . . . . . . . . 25
Xix. The Consumer Corner. . . . . . . . . . . . . . 26
Xx.

Recalls Update. . . . . . . . . . . . . . . . . . . . 30

Xxi. Firm Activities. . . . . . . . . . . . . . . . . . . . 35

Xxii. Special Recognitions. . . . . . . . . . . . . . . 36
XxiII. Favorite Bible Verses. . . . . . . . . . . . . . . 37
XxIv. Closing Observations. . . . . . . . . . . . . . . 38
Xxv. Parting Words. . . . . . . . . . . . . . . . . . . . 39

The Jere Beasley Report is published monthly

by Beasley, Allen, Crow, Methvin, Portis & Miles,
P.C ., 218 Com merce St reet, Mont gomer y,
Alabama. Address all correspondence to editorial
and business offices, 218 Commerce Street,
Montgomery, AL 36103-4160. Periodical postage
paid at Montgomer y, Alabama and additional
mailing offices.
POSTMASTERSend address change to Post
Office Box 4160, Montgomery, AL 36103-4160.
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Montgomery, Alabama.)

 Several national class actions were filed

against Toyota for SUA;
Dee Miles received a leadership appointment in the federal MDL by Judge Selna, is
appoi nted to the L iaison Cou nsel
Committee;
Time and money were invested in developing the critical evidence against Toyota that
would be used in all cases tried throughout
the nation;
Individual wrongful death and product liability cases were filed by the firm against
Toyota in various states;

essay-writing contest titled This I believe. As

a result of all they received, the folks at Appleseed then came up with a simple message for
each of us. Its a New Years message that we
can all adopt as our own. I believe you will
agree that if all persons in the United States
adopted Appleseeds message, which is set out
below, and then followed it, our countr y
would benefit, prosper and be a better place
for all of us.
We believe that all people should be treated
with fairness and justice.
We believe that we must provide genuine
opportunity for all.

The firm played a key role in the negotiation of the $1.1 billion settlement with
Toyota for the EL class action cases;

We believe that our research, our persuasive power, and our claims to justice
improve society.

Beasley Allen tried the first and only case

against Toyota involving the defective
Toyota throttle system in Toyota vehicles,
with a multi-million dollar jury verdict in
Oklahoma City being returned by the jury;

We believe that we can change our communities, our companies, our country and the
world for the better.

One of the first settlements in an individual

case was achieved before punitive damages
were to be awarded against Toyota Motor
Corporation;
Dee Miles served as one of the key architects for the final phase of the litigation,
including the potential settlement of some
450 personal injur y / wrongf ul death
product liability cases as a result of the settlement structure approved by the judges in
both the federal MDL Court in California, as
well as in the state MDL Court in California;
The Oklahoma jury verdict was the single
factor that caused Toyota to change its litigation strategy and decide to reach a global
settlement of all cases.
Hopefully, each of the remaining cases will
be settled, and I am reasonably confident that
will happen. I dont believe Toyota can run
the risk of taking any more of these cases to
trial. Our clients in the Oklahoma caseJean
Bookout and the Schwarz familyare due the
credit for trying and winning the case that
brought about the proposed global settlement.
Their courage and dedication will not only
help other victims, but it will help change the
entire safety culture at Toyota.

Appleseed Has A Message For All Of Us

As the past year was winding down, I
received a message from the group Appleseed
that got my attention. It was a very simple
message, one that was inspired by essays the
group had received from young people in an

Appleseed is a nonprofit network of public

interest centers and professionals dedicated to
building a just society through legal, legislative and market-based structural reform.

Let The People Vote

In the past several years there has been an
organized effort to deprive Americans of their
right to vote. This effort has included making
it hard to register and also making it hard to
vote. Since the heart of the Voting Rights Act
was dismantled in June, those efforts have
intensified. The Voting Rights Act included
strong federal oversight of elections in states
and cities with a history of disenfranchising
black voters. It has long been considered the
most successful civil rights law ever passed.
But the Supreme Court ruling in Shelby
County v. Holder struck down Section 4 of
the Act, which set out a formula to determine
which states must receive clearance from the
Justice Department before enacting changes
to their voting procedures. These restrictions,
requiring pre-clearance, were removed.
Less than 48 hours after the Supreme Court
ruling, Texas Attorney General Greg Abbott
issued a statement that redistricting maps
approved by the legislature may take effect
without approval from the federal government. He also said the states voter ID law will
take effect immediately. Five other states
Alabama, Arkansas, Mississippi, South Carol i na a nd Vi rg i n iaa n nou nced pla ns to
immediately move ahead with voter ID laws.
There are now at least 34 states that have
adopted voter ID laws.
In August, North Carolinas legislature
passed what election-law experts called the

most draconian and restrictive registration

and voting law in the country. It includes not
just photo ID requirements for voting, but also
el i m i nates sa me - day voter reg istr ation,
requires voters to register or update their
address at least 25 days prior to the election,
reduces the early voting period by a week,
abolishes a program to register high-school
students to vote just ahead of their 18 th birthdays, eliminates out-of-precinct voting and
gives partisan poll workers more authority to
chal lenge voters. It also elim inates the
requ i rement for pol itical candidates to
endorse their own television ads.
Republicans have pushed for voter ID and
related laws, claiming they are necessary to
help prevent voter fraud. But detractors of
these laws, including many Democrats, say the
real intent of voter ID laws is to suppress
voting, particularly among groups that have
traditionally supported Democrats, such as
African-American and Latino voters. Additionally, voter ID laws make it more difficult for
t he elderly, you ng, poor a nd d i sabled
persons to vote.
Folks who live in areas where most people
have a drivers license often have a hard time
understanding the problem with voter ID
laws. But photo ID laws single out younger
people like college students, urban residents,
the poor and the elderly. For example, a
person who doesnt have a car most likely
wont have a drivers license. For many of
these people, the process of trying to obtain a
valid photo ID can also be expensive, timeconsuming and physically challenging, discouraging them from tr ying, and thereby
discouraging them from voting.
Voter ID laws are particularly challenging
for many elderly people, who may not be able
to obtain proper birth certificates. They may
have been born at home, instead of in a hospital, and were never issued a birth certificate.
For children of immigrants, ethnic names
resulted in frequent errors on birth certificates. InPennsylvania, which has a voter ID
law as well as one of the highest percentages
of elderly residents in theUnited States, such
complaints led the state to dispense with the
need for birth certificates to obtain non-driver
photo IDs.
In Texas, which was among the first to
jump on the Voter ID bandwagon following
the Supreme Court ruling on the Voting Rights
Act, a November election exposed the flaws
with such laws. Voters turned up at the polls
with their IDs, and records did not match up.
It turned out that some people use nicknames,
and women often change their names. Texans
with what a writer for The Economist dubbed
accidental aliases were required to sign affidavits swearing they were who they said they
were. Among those who had to sign an affidavit was none other than Texas Attorney

www.JereBeasleyReport.com

General Gregory Wayne Abbot, who goes

by Greg.
Problems with Voter ID laws and other
restr ictive voti ng regu lations si nce the
Supreme Court decision have prompted the
Justice Department and Attorney General Eric
Holder to file legal challenges against some of
the practices, using remaining sections of the
Voting Rights Act. The Attorney General says
the DOJ will still intervene in cases where it
sees or suspects civil- and voting-rights abuses.
The right to vote is a fundamental right,
giving we the people the ability to hire and
fire the leaders of our communities, states and
nation. These elected officials are supposed to
represent the people and be responsible to
their needs. The ballot box gives us the ability
to send a message to leaders who promote
their own agenda ahead of the public agenda.
We should have the right to vote in an effort to
replace an elected official who ignores the
public. Poll taxes, literacy requirements, voter
ID laws are tactics that have been used to
restrict voting rights, particularly among
certain populations. This is exactly the opposite of what we in this country should be
trying to do and thats to expand access to
voting to every American Citizen. We should
encourage every person to vote and never
should we allow that right to be taken away.
Neither should we allow any political party to
make it unduly hard to vote in any given
election.
Sources: ACLU.org, The Atlantic, Voting Rights
Institute, The Economist, News & Observer, Christian
Science Monitor

II.
A REPORT ON THE
GULF COAST
DISASTER
Former BP Engineer Convicted Of
Obstructing Oil Spill Probe
A former BP drilling engineer, Kurt Mix,
was convicted on December 18 of one charge
that he deleted text messages from his cell
phone to obstruct a federal investigation of
the companys massive 2010 oil spill in the
Gulf of Mexico. Mix was acquitted by the
federal jury of a second charge. The count of
obstruction of justice carries a maximum sentence of 20 years in prison and a $250,000
fine. Mix made bond and was released. His
sentencing is scheduled for March 26.
Prosecutors argued that Mix, a Texas resident, was trying to destroy evidence when he
deleted hundreds of text messages to and from

a supervisor and a BP contractor. Mix was

accused of deleting two voicemails from the
same two people. Mix, who didnt testify at
his two-week trial, was one of four current or
former BP employees charged with crimes
related to the spill. His case was the first to be
tried. Mix was on a team of experts who
worked on BPs unsuccessful attempt to stop
the gusher using a technique called top kill.
He had access to internal data about how
much oil was f lowing from the
blown-out well.
On May 26, 2010, the day that top kill
began, Mix estimated in a text to a supervisor
that more than 630,000 gallons of oil per day
were spillingthree times BPs public estimate of 210,000 gallons dailyand a rate far
greater than what top kill could handle. That
text was in a string of messages that Mix
exchanged with his super visor, Jonathan
Sprague, before deleting it in October 2010.
Investigators couldnt recover 17 of the messages in the string. In August 2011, Mix also
deleted a string of text messages that he
exchanged with BP contractor Wilson Arabie.
Several weeks earlier, federal authorities
issued a subpoena to BP for copies of Mixs
correspondence. The same count that charges
Mix with intentionally deleting those messages also says Mix deleted a voicemail from
Arabie and a voicemail from Sprague.
Source: Associated Press

Study Links BP Oil Spill To Dolphin Deaths

U.S. government scientists have connected
the BP oil disaster to dolphin deaths in the
Gulf of Mexico. The study for the first time
found direct evidence of toxic exposure. The
study, led by scientists from the National
Oceanic and Atmospheric Administration
(NOAA), found lung disease, hormonal abnormalities and other health effects among dolphins in an area heavily oiled during the BP
spill. The diseases found in the dolphins at
Barataria Bay in Louisianathough rare
were consistent with exposure to oil, the scientists said. The study said:
Many disease conditions observed in
Barataria Bay dolphins are uncommon
but consistent with petroleum hydrocarbon exposure and toxicity.
Half of the dolphins were given a guarded
prognosis. Sadly, 17 percent of the dolphins
were expected to die of the disease, the
researchers found. Lori Schwake, the studys
lead author, in a statement, said:
Ive never seen such a high prevalence
o f v e r y s i c k a n i m a l s a n d w i t h

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unusual conditions such as the adrenal

hormone abnormalities.
T he scientists caug ht, exam i ned and
released about 30 bottlenose dolphins from
Barataria Bay in 2011, one year after the disaster. The area was one of the most heavily oiled
areas following the April 2010 blowout of BPs
deepwater well. Government scientists and
conservation groups had been concerned
from the outset about the effects on marine
life of the vast amounts of oil that entered the
water. But this study, published in the peerreviewed journal Environmental Science and
Technology, produced the strongest evidence
to date of the effects of the spill on marine
life. The study said:
The severe disease documented by this
study and the continued elevation of
mortalities raise significant concerns
regarding both short-term and longterm impacts on the Barataria Bay
dolphin population.
Jacqueline Savitz, senior campaign director
of the Oceana conservation group, said the
findings confirmed her fears at the time that
the oil spill would take a high toll on dolphins,
whales and other marine life in the Gulf. Mrs.
Savitz observed:
After the spill I saw dolphins swimming
in and out of oil slicks, breathing air at
the surface that I knew contained
hydrocarbons from the spill since I
could smell them myself. The dolphins
were likely exposed to the oil in other
ways as well, by swallowing water, and
through their food. While we have seen
an unusual number of dolphin deaths
during and after the spill, this report
verifies that the oil took a larger toll on
dolphins.
Few of the symptoms in the Barataria Bay
dolphins were reported among wild dolphin
populations in Sarasota Bay, Fla., which was
not oiled during the spill, the scientists said.
BP has consistently disputed any connection
between the oil spill and a mysterious spike in
dolphin deaths in the Gulf of Mexico that was
first reported three months before the oil
spill. BP plays fast and loose with the truth
and has very little credibility with any of the
lawyers in our firm who have dealt with them.
Source: Associated Press

Judge Barbier To Review Causation

Parameters Of The Economic Settlement
BP is now arguing that all businesses must
meet a new (and undefined) subjective causation test in order to present claims under the

Settlement Agreement. Under the Settlement

Agreement, a business is eligible in the Settlement if it is a covered entity (as opposed to
one of the excluded businesses in the Settlement), is located in a covered zone, and meets
the appropriate revenue causation test. Needless to say, BPs new causation requirement
for businesses was never intended in the Settlement Agreement, and completely contradicts BPs own positions during settlement
negotiations and before the Court.
As we reported last month, Judge Barbier
issued an order amending and clarifying his
previous Business Economic Loss order on
causation and matching, and explained that
BPs new causation arguments were not properly before the Court. In addition, Judge Barbiers order was extremely critical of BP for its
deeply disturbing actions and startling
change of heart on how claimants must meet
causation under the Business Economic Loss
portion of the Settlement. BP, seeking to manufacture a new causation controversy,
appealed Judge Barbiers ruling to the Fifth
Circuit. On December 2, the Fifth Circuit
remanded the causation issue to Judge Barbier
and instructed him to take another look at the
issue to ensure that claims were actually being
calculated properly. Afterward, Judge Barbiers issued a new order temporarily suspending the payment of claims until the causation
issue is resolved.
While the Fifth Circuits recent remand and
Judge Barbiers present injunction have
slowed things down, neither court has actually altered the Settlement Agreement. The
two courts are simply further analyzing the
agreement to make sure the agreement is
being interpreted properly. Since there are billions of dollars at stake, considering that BP
has not been secretive in its willingness to
challenge the Settlement Agreement, which it
clearly agreed to, the courts actions are not
that surprising. Its not unusual for the courts
to carefully review the settlement agreement.
As the truth comes out, we are optimistic that
the settlement process will move forward
with a decision on causation coming within a
reasonable time.

We Should Not Be Surprised By How Low

BP Will Go To Get Its Way
Maybe someone will write a book one day
about how BP has attempted to completely
manipulate the judicial process, the media and
an entire region to get its way. All of this
coming after the company had caused yet
another landmark disaster, killed 11 people
and committed numerous felonies along the
way. Almost a year ago, Beasley Allen lawyers
were present in court and watched BP stand

in front of Judge Barbier and strongly and with

conviction support the Economic Settlement.
The company praised the deal as fairas one
that provides true compensationand as one
that sought certainty over years and years of
mini-trials and case-by-case evaluations. The
company even admitted that false positives
were i nevitable i n a settlement of th is
magnitude.
At the same time that BPs lawyers stood
before Judge Barbier, the company and its
lawyers well knew that the claims administrator was processing claims pursuant to the
objective causation principles BP had previously agreed to. BP was even asked by the
Claims Administrator whether the company
had any objection to the way the causation
process was workingnamely was there any
other causation test outside of the straightforward revenue and zone requirements of the
Settlement? In response, BP told him no. Judge
Barbier asked the same question of BP weeks
later, and again, BP agreed in open court that
the revenue frameworks set out in Exhibit 4B
of the Settlement Agreement were the only
causation test. At press time, BP agreed that
no subjective, case-by-case evaluations would
be necessary to meet causation.
So what happened to bring about such a
180 then by BP? I believe it resulted from a
combination of greed and arrogance. Apparently, the company does not want to pay suppor ted cla i ms a nymore, much l i ke the
company operated after the first round of payments in the Gulf Coast Claims Facilit y
(GCCF). BPs greed and arrogance undermined and destroyed the GCCF. Now the
company is trying to destroy a settlement it
carefully negotiated and agreed toone that
would have compensated thousands and
ended years and years of litigation. Once it
became obvious that BP would have to pay
more than it had thought, and that the
company would actually have to cede control
of the program to a neutral administrator, a
person the company could not control, all
bets were off. Ironically, BP would much
rather pour billions of dollars into advertising
firms, experts, newspapers and law firms
attacking the Settlement Program than it
would to pay residents and businesses along
the Gulf Coast for their losses.
We should not be surprised by how low BP
will go to get its way. There is one thing for
sureand that is, the company has declared
war on anyone and any thing that could
remotely support the Settlement. At the end of
the day, the company made a deal with the
region we all call home, publicly endorsed
that deal, and now they are trying to buy and
intimidate their way out of it. While we should
not be surprised, the system must hold them
to their word. After all, without your word
and credibility, what else do you truly have?

Claimants Shouldnt Be Discouraged

We believe that the Economic Settlement is
a tremendous settlement. While the latest
developments may appear somewhat troubling, its important to remember that while
the Fifth Circuit is giving BP an opportunity to
be heard and its arguments explored, the Settlement Agreement hasnt been changed.
Neither court has agreed with BP. Instead, the
courts are further analyzing and evaluating
the Settlement in light of BPs arguments. Its
understandable that some participants in the
program feel frustration and concern over
BPs antics.
We now realize that the Settlement Program
will likely take longer than anticipated to
process claims. We also realize that BP will
continue being BP. However, none of the participants in the Settlement Program should
become discouraged about BPs antics. The
Program, when interpreted as intended, and
as it currently sits, will work as agreed to by
all of the parties. We are confident that we are
on the right side of this argument, and remain
optimistic that, once the courts analyze the
full record, BPs arguments will ultimately
fall apart.

Judge Blocks BP Investors From Suing As

Group For Losses
A federal judge has ruled that BP Plcs U.S.
investors cant pursue as a group claims that
the company inflated its shares with misleading statements before and after the Gulf of
Mexico oil spill. U.S. District Judge Keith P.
Ellison ruled, citing a recent Supreme Court
decision. Shareholders sought permission to
sue in two groups, the larger including all
buyers of BPs American depositary receipts
from Nov. 8, 2007, to May 28, 2010. The
second subgroup would cover about 900,000
individual investors, who purchased BP ADRs
from March 4, 2009, to April 20, 2010, the date
BPs Macondo well blew out, triggering the
biggest U.S. offshore oil spill. Judge Ellison
denied the investors request for class status.
E l l ison had ea rl ier set a tr ia l date for
August 2014.
Judge Ellison ruled that the investors failed
to show that their damages could be calculated on a class-wide basis in a way that was
consistent with their legal theory on BPs culpability. If they couldve done so, he said, hed
have been inclined to give the investors permission to sue as a class. Judge Ellison said in
his ruling:
Because the courts ruling is based in
large part on a recent Supreme Court
decision thatin this courts opinion
has appreciably changed the landscape

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for class certification. Investors should

be given a second attempt to establish
the elements necessary for class action
treatment.
Judge Ellison gave lawyers for the investors
30 days to revise their motion and supplement
it. He said he declined to certify the class
based on the high courts ruling in a case
involving Comcast, in which investors werent
allowed to sue as a group because the court
found a disconnect between the investors
class-wide damages model and the companys
liability.
The investors, led by New York and Ohio
pension funds, sued London-based BP and
certain of its officers in 2010, alleging violations of U.S. securities laws. The investors also
claimed BP publicly proclaimed a commitment to improving safet y while cutting
budgets and rejecting employee concerns. BP
disputed the investors claims and opposed
certifying them as a class. The investors said
their ADRs:
were artificially inflated as a result of defendants dissemination of materially false and
misleading statements and material omissions.
All suffered losses when the truth surrounding those misstatements and material omissions was revealed to the market and BPs
stock price declined.
BP shares fell about 40 percent in the weeks
after the explosion. The shares havent fully
recovered from the drop, which eliminated
billions of dollars in market value. In March
2013, Judge Ellison refused to dismiss the bulk
of the investors securities-fraud claims. He
previously limited participation in the litigation to investors who bought shares on U.S.
stock exchanges.
Several U.S. pension funds sought to get
around Judge Ellisons March 13 ruling by
suing under state securities laws. Judge
Ellison, in his recent ruling, said that three of
the funds, led by Alameda County Employees
Retirement Association, can pursue deceit
claims for losses on their ordinary shares
under English law. BP agreed in 2012 to pay
$525 million to settle a U.S. Securities and
E xch a nge C om m i s s ion cl a i m t h at t he
company underestimated the size of the spill.
BP also pleaded guilty to a felony count of
obstruction of Congress related to its spill-size
estimate. The plea was part of a $4 billion settlement of criminal charges brought by the
U.S. agai nst BP over the i ncident. T he
company also pleaded guilty to 11 felony
counts related to the rig workers deaths and
t wo m i s d e m e a n o r e n v i r o n m e n t a l - l a w
violations.
Source: Insurance Journal

U.S. Supreme Court Denies BPs Request To

Review Moratorium Claims
The U.S. Supreme Court recently declined
to hear an appeal from offshore service companies affected by a moratorium on deep sea
drilling that the federal government imposed
after the 2010 BP oil spill in the Gulf of
Mexico. The issue the appeal sought to
address was whether the government violated
the judicial order that struck down its temporary moratorium on deep water drilling after
the oil spill.
A federal judge reversed the Inter ior
Departments decision to discontinue new
permits for deep water projects and postpone
drilling on 33 exploratory wells after the
Deepwater Horizon rig explosion. Also, the
agency issued an additional, almost identical
suspension, prompting the judge to issue a
civil contempt finding. However, a federal
appellate court decided that while Interior
officials took steps to avoid the injunctions
effects, officials did not technically violate it.
Source: The Associated Press

III.
LEGISLATIVE
HAPPENINGS
The 2014 Regular Session
The regular session of the Alabama Legislature, which will be the last regular session of
the four-year term, starts up on Tuesday,
January 14. There are many very serious problems facing our state, many of which have
been around for a long time, and each of them
should be addressed during this session. The
two political parties and other groups have
been making plans for the session. Gov.
Rober t Bentley also wi l l have h is own
program for the legislators to consider. You
can also rest assured that the highly paid lobbyists who represent the giants in Corporate
America have already made their plans for the
session. With this year being an election year,
the session should be an interesting one.
While there will be lots of political grandstanding and posturing, hopefully the session
will be a productive one.

The GOP Agenda

The Alabama House Republican Caucus
released its 2014 legislative agenda last month.
They claim the package of bills will help businesses and the states economy. Several of the
bills in the package, called the Commonsense

www.BeasleyAllen.com

Conservative agenda, according to the GOP

leadership, are intended to streamline or
reduce taxes. Summaries of the bills were
released by the caucus at a news conference.
Republicans have controlled the Legislature
since winning filibuster-proof majorities in
2010. Seven of the n i ne bi l ls i n the
package are said to be new proposals. Those
bills with each sponsor, and a brief explanation of the content, are set out below:
Small Business Tax Relief Act.
(Rep. Barry Moore, R-Enterprise). Currently, businesses are required to pay
in advance if their average monthly
estimated sales tax payment is more
than $1,000. The bill would raise the
threshold to $2,500 a month.
Business Tax Streamlining Act.
(Rep. Greg Wren, R-Montgomer y).
This bill would simplify the process
for filing business personal property
taxes, according to the caucus. It
would create a new online filing
system that provides a one-stop shop
for filing these taxes and allow businesses claiming $10,000 or less in business personal property tax to file a
short form that does not require them
to itemize their property.
Tax Elimination Act. (Rep. Jim Patterson, R-Meridianville). Would give
the Alabama Department of Revenue
the authority to suspend taxes and fees
when the cost of collecting the tax
exceeds the amount of revenue the tax
brings in.
Taxpayers Bill of Rights. (Rep.
Paul DeMarco, R-Homewood). The bill
would change the process for hearing
tax assessment appeals to make sure
that all taxpayers are treated fairly,
according to the Republican Caucus.
The House has passed similar bills the
last three years.
Alabama Taxpayer Audit Protect ion Ac t . ( Rep. Wayne Joh nson,
R-Ryland). This bill would ensure that
Alabamians never have to worry about
their state government threatening
them for their political views, which
is most interesting to say the least.
Revolving Door Ac t. (Rep. Ken
Joh n s on, R- Mou lton) . T h i s bi l l,
prompted by this years resignations of
several lawmakers, some of whom
took jobs as lobbyists, bans former legislators from lobbying either house of
the Legislature within two years after
leaving the Legislature.

 The Healthcare Rights of Conscience Act. (Rep. Becky Nordgren,

R-Gadsden). The bill would say that
Alabama health care workers cannot
be forced to provide a service that violates his or her conscience, particularly ser vices related to abortion,
human cloning, human embr yonic
stem cell research and sterilization.
Adoption Tax Credit Act. (Rep. Paul
Lee, R-Dothan). The bill would give
residents who adopt an Alabama child
through private adoption or the state
foster care system a one-time, $1,000
tax credit, which would apply for the
year the adoption was finalized.
Statutory Immunity for Teachers
and State Employees. (Rep. Mike
Jones, R-Andalusia). This bill would
give teachers and employees clear cut
and codified immunity from being
sued while acting in their official
capacity.
The Taxpayers Bill of R ights and the
Healthcare Rights of Conscience Act are the
only two of the nine bills that have been proposed before. It will be interesting to see how
many of the bills pass both houses and are
signed into law by Gov. Bentley.
Source: AL.com

enforce the constitution and laws, have

been subjected to unwarranted public
criticism.

A tax system that requires everyone to pay a

reasonable share of the cost of those
investments.

More transparency in the states process for

setting utility rates.

A BOTA of fers this white paper to

examine why political and special
interest interference, including the skyrocketing costs of judicial elections, is
detrimental to the judicial process. The
paper also addresses how the lack of
judicial funding is impacting the efficient administration of justice. It concludes with key strategies to assure that
the judiciary can perform its duty as a
separate and equal branch of
government.

A chance for low-income people who have

served their time and turned their lives
around after a drug crime to regain their eligibility for food assistance.

Michael T. Callahan, a law yer from St.

Petersbu rg, Fla., who ser ves as A BOTA
national president, had this to say in the
release:

New, reasonable caps on the high cost of

loans that currently carry triple-digit annual
interest rates.

The principle of fair and impartial

courts is designed to protect the system
of justice and the rule of law, thus
maintaining public trust and confidence in the courts. Americas ability to
allow juries to decide cases and judges
to make rulings according to the rule of
laweven if those decisions are politically unpopular or opposed by powerful
inte r e s t si s the lifebl ood of our
democracy.

Debt collection exemptions that help lowincome Alabamians regain financial stability after a judgment.
Reforms to make Alabamas capital punishment system fairer.

It is rather interesting and perhaps telling

when one compares this list with those of our
two political parties. The majority of AlabamiansI believewould support most of this
agenda set out above. Hopefully, there are
enough legislators who will at least consider
the agenda. They might be surprisedif they
adopted ithow folks back in their respective
districts would react.
Source: Alabama Arise New Release

The Agenda From The Democrats

Hopefully, the Democratic legislators will
have come up with an agenda by the time this
issue is received. It should be one that
addresses specific problems in education and
health care. Additionally, the Democrats
should promote legislation aimed at job creation. While I have not seen an actual agenda
from the Democrats, I am reasonably sure
they will have one. But, I dont believe their
approach should be merely to respond to what
t he G OP le a d e r sh ip h a s put for t h i n
their agenda.

Alabama Arise Has A Wish List For Alabama

Alabama Arise has an agenda that the group
labels a grown-up wish list for Alabama, and
its a good one. Unfortunately, it would take a
miracle for their list to be successful in the
Alabama Legislature. But the folks at Arise say
they believe that behind many miracles
stand caring, compassionate folks who have
acted on their convictions to help build a
better world. So Arise Citizens Policy Project
has its own grownup wish list for Alabama
in the coming year:

Strong investments in education, health

care and other public services that lay the
foundation for a strong economy.

IV.
COURT WATCH
ABOTA Issues White Paper Showing
Americas Courts Are In Peril
The American Board of Trial Advocates
(ABOTA), an organization dedicated to the
preservation of a fair and impartial judiciary
and the right to trial by jury, has released its
white paper, Preserving a Fair, Impartial and
Independent Judiciar y. The white paper
addresses a rapid convergence of challenges
that threaten to impair Americans treasured
right to even-handed justice. ABOTA issued
the following in a news release:
The American justice systemwith its
reliance on the rule of law, neutral
judges and citizen juriesdramatically
reinvented the legal realm more than
225 years ago based upon egalitarian
principles. Recent history has shown
increasingly frequent episodes in which
judges, seeking to perform their duty to

Preserving the quality and independence of

the judiciary has been a hallmark of ABOTAs
efforts for decades, Callahan said. He added;
Confidence in our nations judicial
system is profoundly important. ABOTA
provides a timely explanation to the
p u b li c wh e n a ju dge i s unfa ir ly
criticized.
Over the years ABOTA has urged Congress
to increase pay for justices, judges and their
support staffs, and to change the procedures
for adjusting future compensation. The key to
judicial independence is avoiding improper
influence on any court from the other two
branches of government or from private or
partisan interests.
A full copy of the white paper, Preserving
a Fair, Impartial and Independent Judiciary, is
available at www.abota.org.
Founded in 1958, ABOTA is a national association of experienced trial law yers and
judges. ABOTA and its members are dedicated
to the preservation and promotion of the civil
jur y trial right provided by the Seventh
Amendment to the U.S. Constitution. The
group has worked hard to preserve the jury
system in this country and it should be commended for its efforts.
Source: ABOTA News Release

www.JereBeasleyReport.com

Judges Give Lawyers Some Good And Badly

Needed Advice
Federal and state judges told a group of
lawyers representing drugmakers and medical
device firms about their biggest pet peeves in
personal injury litigation. These judges, speaking at a conference attended by lawyers and
judges, said that too many motions related to
discovery and expert testimony were being
filed that were wastes of time. During their
discussion, the judges outlined their concept
of the ideal way to select bellwether suits. The
insights were delivered by a half-dozen judges
from around the country at the 18 th Annual
Drug and Medical Device Litigation Conference, an event held in New York by the American Conference Institute. The conference was
attended by hundreds of lawyers. The following are five takeaways from the panel of
judges for lawyers to keep in mind when handling personal injury claims:
Avoid Pointless Bellwethers. Judge
Richard Kramer of San Francisco Superior Court explained the proper methods
for selecting Bellwether trials, which are
used to resolve key issues in multidistrict
litigation. A singe case can guide the resolution of many suits. Judge Kramer said:
You need a case thats not sexy.
You need a case thats got nothing
special about it, even though the
rest of the cases dont know that.
You need a case that other people,
as much as possible, are going
to follow.
Thats because a case that is distinctive
will frequently do little to steer other
matters toward settlement, as attorneys
on both sides will be able to point out
anomalies if things dont go their way.
Judge Kramer added:
I look for cases that arent particularly sexy [and] dont have anything thats going to get one or
more of the sheep into a frenzy
about something.
That point was echoed by U.S. District
Judge David Herndon of the Southern
District of Illinois, who said attorneys
often choose outlier bellwethers that do
little more than drag out litigation.
Lawyers have a tendency, despite all of
the judges urgings, not to select representative cases, Judge Herndon said. He
pointed out that while a judge gets to
select bellwethers from cases nominated
by legal counsel, that matters little if the
suits put forward are all skewed toward
one side or the other. Judge Herndon had
this to say:
8

If the trial itself is going to be counterproductive because it allows

plaintiffs to say the result of the
trials is an aberration, or defendants to say the results are an
aberration ... you could really set
back the resolution of the cases
in general.

Judge Duffey said. Generally, they just

need a neutral arbiter, he added.

Watch Out for Daubert Hair Trigger.

Several comments from the judges underscored a growing sense that lawyers are
shooting themselves in the foot by being
too trigger-happy with Daubert motions,
which are filed to exclude expert testimony. U.S. District Judge Cynthia M. Rufe
of the Eastern District of Pennsylvania,
for one, said that Daubert is overused as
a defense motion and that the majority
of experts are qualified. Judge Herndon
echoed that point, chastising lawyers for
calling into question the talents of almost
every expert. Judge Herndon said on
this matter:

With Parallel Cases, Cooperation Is

Key. Another topic in the spotlight concerned related mass torts that are proceeding on a parallel basis in state and
federal cour ts, and the question of
whether and how the matters should be
coordinated. Judge Rufe encouraged her
federal peers to reach out in a very
respectful way to their state-level counterparts in hopes of conserving resources
and preventing bellwether trials from
being staged at the same time. A key difficulty is that cooperation is being done on
an ad hoc basis. Thats because there is
no overarching legal framework guiding
such activities. Judge Kramer said that
the problem the lawyers have, and the
problem that some judges have, is there
are no formal rules [covering] this.

Be selective about your Daubert

motions, because surely in the
world in which we live, some
experts are in fact doing good
science, or depending upon good
science, when they give opinions.
Going further, Judge Herndon mentioned
judicial frustration with the time-consuming motions and suggested that
judges start to tune out lawyers who cry
wol f too of ten. He made th is
point, saying:
When, as a judge, you have to look
at 15, 20, 30 Daubert motions, it is
more than daunting. Its very, very
difficult. Were human beings, and
Im not saying you take shortcuts,
but when you have to look at that
many Daubert motions, it makes
our job [hard].

Judges Cant Force Settlements. A

good amount of discussion centered on
the extent to which judges should push
the parties to settle a case, with the
jurists generally agreeing that they have a
role to play, but a limited one.

Communication Should Be Better.

Nonetheless, lawyers on all sides have an
incentive to communicate better, as overlapping efforts result in needless costs,
accordi ng to U.S. Mag istrate Judge
Kaymani D. West of the District of South
Carolina. She said: I do have to say that
coordination ... is paramount, simply
because you want to avoid any kind of
duplication of effort, and you want to
manage the costs of litigation.
Hopefully, the message sent to the lawyers
was well received. If so, and if the message
carries over into actual practice, it will make
complex litigation much less complex, will
save lots of money and will make our judicial
system much more efficient.
Source: Law360.com

In Discovery Disputes, Give Peace a

Chance. On another procedural topic,
U.S. District Judge William S. Duffey, Jr.,
of the Northern District of Georgia,
described being driven to the point of
queasiness by motions to compel discovery, specifically mentioning unnecessary
recitations of Rule 26 of the Federal Rules
of Civil Procedure, which governs disclosures and depositions. Most discovery
disputes boil down to a request being
overly broad or too expensive to fulfill,
according to the judge. Instead of filing a
motion that can add months to a case, its
often possible to sort things out in a brief
conversation, with a judge calling the
balls and strikes in a less formal setting,

www.BeasleyAllen.com

Judge Rules Phone Surveillance Program Is

Likely Unlawful
A federal judge ruled last month that the
National Security Agencys (NSA) bulk collection of phone records violates the Constitutions ban on unreasonable searches, but he
put his decision on hold pending a near-certain government appeal. U.S. District Court
Judge Richard Leon granted a preliminary
injunction sought by Plaintiffs Larry Klayman
and Charles Strange, concluding they were
likely to prevail in their constitutional challenge. Leon, an appointee of former President
George W. Bush, ruled that the two men are

likely to be able to show that their privacy

interests outweigh the governments interest
in collecting the data. Judge Leon says that
means the massive collection program is an
unreasonable search under the Constitutions
Fourth Amendment.
The collection program was disclosed by
former NSA systems analyst Edward Snowden,
provoking a heated debate about civil liberties. The Obama administration has defended
the program as a crucial tool against terrorism. But in his a 68-page, heavily footnoted
opinion, Leon concluded that the government
didnt cite a single instance in which the
program actually stopped an imminent terrorist attack. Judge Leon wrote:
I have serious doubts about the efficacy
of the metadata collection program as a
means of conducting time-sensitive
investigations in cases involving imminent threats of terrorism.
Judge Leon stayed his r uling pending
appeal in light of the significant national
security interests at stake in this case and the
novelty of the constitutional issues. This is a
situation where the constitutional rights of citizens will have to be weighed against the
ongoi ng th reat of massive har m to ou r
country. Its certainly well-known and recognized by our elected leaders that our enemies
b a d l y w a nt to d o g r e a t h a r m to t h e
United States.
Source: Newsmax.com

Alabama Supreme Court Upholds $7.5

Million Slander Award
The Alabama Supreme Court has upheld a
jurys decision to award an Iranian-born businessman $7.5 million in a defamation lawsuit.
Shawn Esfahani, owner of the Eastern Shore
Toyota car dealership, has won his lawsuit
against Bob Tyler, who owns a competing
Toyota dealership in Pensacola. Esfahani had
sued Tyler for slander, successfully proving
that Bob Tyler employees spread false rumors
to car shoppers that he was an Iraqi terrorist
and supported insurgents in Iraq. Testimony
during the trial revealed that some employees
referred to Esfahanis business as Taliban
Toyota and Middle Eastern Shore Toyota.
The jury ruled in favor of Eastern Shore Toyota
and awarded $2.5 million in compensatory
damages and $5 million in punitive damages.
The Defendant appealed.
In its opinion upholding the decision, the
Supreme Court justices called the action of
those involved to be especially reprehensible, adding:

The Court cannot fathom a worse trifecta of crimes of which to accuse a

businessman and his business than
treason and funding terrorism and the
murder of American soldiers . . .
Esfahani fled from Iran in 1980, when he
was 16, after the Islamic revolution. He first
moved to Spain, learning to read and write
English in four months. He then became a U.S.
citizen and opened Eastern Shore Toyota in
December 2007 after years of working in car
sales. Vince Kilborn, the Mobile lawyer who
represented Esfahanis, called the Supreme
Courts opinion historic. Ben said:
This was the largest slander verdict
theyve ever upheld unanimously. The
justices all decided that were going to
draw a bright line in the sand, that no
matter where youre from, if someone
defames you this bad, they are going to
uphold not only the compensator y
damages, but the punitive as well. They
didnt cut a penny.
Vince did a very good job in this most interesting case. Historically, defamatory cases
have been very difficult to win.
Source: AL.com

V.
THE NATIONAL
SCENE
Christmas Came Early For Government
Contractors
Some observers believe that the federal government favors government contractors over
the public interest far too often. A recent
action seems to give some credence to that
belief. The government has increased the
amount it reimburses contractors for executive pay, which comes at a convenient time
since the media doesnt always follow government happenings in depth during the holiday
season. This increase also came while lawmakers were looking to raise the amount
federal workers pay toward their pensions.
The difference in how the two groups are
dealt with has drawn fire from the head of a
federal employees union. J. David Cox, Sr.,
who is the National President of American
Federation of Government Employees, made it
clear that he will not stand by idly while contractors get rich at middle- class federal
employees expense.
The White House Office of Management
and Budget (OMB), has raised the cap the gov-

ernment pays to reimburse federal contractors

for the salaries of top executives. According to
an action made public in a Dec. 4 memo, the
government will reimburse up to $952,308
per contract toward top-level salaries. The
previous amount was $763,029. The change
went into effect on Jan. 1. While Christmas
has come early for federal contractors, government employees found their stockings full of
coal. With funds being hard to come by for
the operations of the federal government, I
have to wonder how the increases for government contractors can be justified.
Cox is justifiably upset over this state of
affairs. The reimbursement is the maximum
amount the government pays toward executive salaries, but its not a salary limit. Individu a l compa n ies ca n pay the executives
whatever they want, but must cover the extra
amount from their own budget. Currently, salaries are reimbursed based on an industry
average thats set annually by the OMB.
According to the Government Accountability
Office (GAO), the cap has increased 63
percent since 1998, outpacing the growth of
inflation and the rate of federal salaries. The
White House has proposed setting the limit at
$400,000the same amount the president
e a r n s a m ove t h a t cou l d s a ve $18 0
million a year.
The House of Representatives has rejected
efforts to change the formula used to determine the reimbursement and Senate motions
have been st ymied. The reimbursement
change comes after three straight years of
employee pay freezes and a week of lost wages
due to this summers sequestration furloughs.
It also comes as the Senate-House Budget
Committee is considering a legislation that
would require federal workers to pay more
toward their retirement. They say this is an
effort to blunt the impact of sequestration on
national defense. Mr. Cox made this point,
which puts things in context:
Putting things in the proper perspective,
while government contractors are
being favored, some in Congress are
advocating an array of substantial
compensation cuts for modestly paid VA
nurses and Border Patrol agents. It
appears that wealthy contractors are
getting a fat pay raise, and that cause is
coming from U.S. taxpayers. This is the
height of irresponsible governing and
leadership to allow this ridiculous
increase in taxpayer-funded compensation for contractor executives.
The union would like to see the reimbursement cap for government contractors lowered
to $230,700, the current salary earned by Vice
President Biden. That seems reasonable.
According to a GAO report, a change of that

www.JereBeasleyReport.com

sort could save as much as $440 million per

year. I wonder how farconsidering the vast
political power of corporations that do business with the federal governmentthat proposal will get. What do you think?
Source: AL.com

First Lawsuit Filed In Navy Yard Shooting

The family of one of the victims in the
Washington Navy Yard shooting has filed a
lawsuit against two federal government agencies and two government contractors alleging
that they failed to secure the Southeast D.C.
facility and failed to respond appropriately to
the myriad signs of mental health issues the
shooter exhibited in the months and years
before the massacre. The complaintfiled in
federal court in Florida on behalf of the family
of Mary Frances DeLorenzo Knightis the
first lawsuit in the wake of the September
shooting rampage. The shootings were carried
out by a gunman who had an all-access security pass to the militar y installation. Ms.
Knight, a computer scientist, was one of a
dozen people gunned down by Aaron Alexis
at the Navy Yard.
Ms. Knights family members filed a claim
last month, which was preliminary to filing
suit against the government. The suit names
the Navy, the Department of Veterans Affairs
and two government contractors as defendants. Like the claim, the suit alleges a
detailed recitation of Alexiss troubled past,
which should have put the Defendants on
notice. The U.S. government and its various
contractors should have noticed the many
warning signs of Alexiss instability before
issuing him a security clearance. Failing that,
they should have installed a metal detector at
the Nav y Yard to prevent someone from
getting inside with a gun.
Sidney L. Matthew, a Tallahassee, Fla.,
lawyer, represents the Knight family in this
lawsuit. We will watch this litigation very
closely. There is some whistleblower litigation
ongoing that deals with the same
subject matter.
Source: AL.com

VI.
THE CORPORATE
WORLD
Wells Fargo And Citigroup Sued Over
Foreclosures
Los Angeles has filed suit against Wells
Fargo and Citigroup, alleging the companies
engaged in mortgage discrimination that led
to a wave of foreclosures in minority communities during the housing crash. The two lawsuits, each filed in federal court, are the latest
fallout from the 2008 collapse of the subprime
mortgage industry. As you will recall the collapse brought about a number of actions
against various lenders by federal agencies and
city governments. The Los Angeles suits allege
a continuing pattern of discriminatory mortgage lending practices in Los Angeles that
violate the federal Fair Housing Act. They
claim Wells Fargo & Co. and Citigroup Inc. at
first refused to grant mortgages in minority
neighborhoodsa practice known as redliningbut later targeted black and Hispanic
neighborhoods for predatory loans, known as
reverse redlining.
The lawsuits contend that vulnerable,
underserved borrowers denied by years of
redlining jumped at the chance to obtain subprime home loans they couldnt afford, then
were hit by a swarm of foreclosures when the
housing bubble burst and they were denied
refinancing. Its alleged in the lawsuit against
Wells Fargo:
Since 2008, banks have foreclosed on
approximately 1.7 million homes in California, and Wells Fargo is responsible
for nearly one in five of these foreclosures. A loan in a predominantly
minority neighborhood of Los Angeles
is nearly five times more likely to result
in foreclosure that one in a predominantly white neighborhood. These foreclosures often occur when a minority
borrower who previously received a
predatory loan sought to refinance the
loan, only to discover that Wells Fargo
refused to extend credit at all, or on
equal ter m s a s when refinancing
similar loans issued to white borrowers. The foreclosures caused property
values to tumble, costing the city tax
revenue, and leaving it holding the bag
for the cost of cleaning up and policing
vacant properties.
Each of these two lawsuits seek unspecified
reparations and damages. They cite a report
by the Alliance of Californians for Community
Empowerment and the California Reinvest-

10

www.BeasleyAllen.com

ment Coalition that estimated the mortgage

crisis resulted in more than 200,000 foreclosures from 2008 to 2012, with $481 million in
lost property tax revenue to the city, and $1.2
billion in Los Angeles for increased costs of
safety inspections, police and fire calls, trash
removal and property maintenance. The Los
Angeles city attorneys office filed these two
lawsuits. They have previously gone after
other mortgage lenders in state court, blaming
them for urban blight sparked by the housing
market collapse. Wells Fargo and Citigroup
deny all of the allegations against them and
claim the suits are without merit. We will see
how this litigation turns out.
Source: ABC News

Johnson & Johnson And Novartis Fined

$22.4 Million Over Pay-For-Delay Deal
Drugmakers Johnson & Johnson and Novartis AG have been fined a total of 16.3 million
($22.4 million) by European regulators for
entering into an anti-competitive agreement to
delay the introduction of a generic painkiller
in the Netherlands. According to the European
Commission, in 2005 the respective Dutch
subsidiaries of Novartis and J&J entered into
agreement to prevent the entry of a generic
version of J&Js fentanyl. This came after the
protection on its brand-name fentanyl depot
patch expired in the Netherlands, and just as
Novartis unit Sandoz BV was poised to launch
its own fentanyl patch. Joaquin Almunia, EU
commissioner for competition policy, said in a
statement:
J&J paid Novartis to delay the entry of a
generic painkiller. The two companies
shockingly deprived patients in the
Netherlands, including people suffering
from cancer, from access to a cheaper
version of this medicine. Todays decision should make pharmaceutical companies think twice before engaging into
such anti-competitive practices.
J&J was fined 10.8 million, while Novartis
was ordered to pay 5.5 million. The antitrust
watchdog said when J&Js protection for the
fentanyl depot patch was about to expire,
Sandoz, then known as Hexal BV, was so close
to launching a generic version that it had
already produced the necessary packaging
material for the rollout.
However, in July 2005, Sandoz was said to
have entered into a pay-for-delay agreement
with Janssen-Cilag, J&Js Dutch subsidiary,
under the guise of a co-promotion agreement. Under that agreement Sandoz received
monthly payments that exceeded the profits
Sandoz expected to reap from selling its
generic, as long as it kept the generic off the

market, according to the EC. The agreement

held up until December of the following year
when a third party was about to launch its
own version of the fentanyl patch.
The EC said:
The agreement therefore delayed the
entry of a cheaper generic medicine for
17 months and kept prices for fentanyl
in the Netherlands artificially high, to
the detriment of patients and taxpayers
who finance the Dutch health system.
The commission pointed to internal documents that stated Sandoz and Janssen-Cilag
agreed to cooperate so as not to have a depot
generic on the market and in that way to keep
the high current price, and that Sandoz
would abstain from entering the Dutch market
in exchange for a part of [the] cake. The EC
said that Janssen-Cilag didnt consider any
other potential partners for its co-promotion
agreement and that Sandoz actually engaged
in very limited or no actual co-promotion
activities.
In recent years, drugmakers use of pay-fordelay agreements, such as the one referred to
above, have repeatedly caught the attention of
antitrust regulators in the U.S. and Europe. For
example, the EU launched an 18-month, sector-wide competition inquiry in 2008 that
began with unannounced raids on some of the
worlds largest pharmaceutical companies,
including J&J and Novartis. Then in July 2009,
the commission released a final report of its
inquiry, finding that originator drug companies often brought litigation and entered into
settlements with generic-drug makers in order
to block or delay cheaper versions of their
brand medications from reaching the European market. Subsequently, the commission
launched two other investigations into the
pay-for-delay deals, issuing statements of
objections in 2012 to Servier SAS regarding
the cardiovascular medicine perindopril, and
to H. Lundbeck A/S for the antidepressant citalopram. Its good to see governmental agencies doing their jobs and doing them well.
Source: Law360.com

Mortgage Giant Ocwen Settles Mortgage

Foreclosure Lawsuit In Alabama
A multi-state settlement was reached last
month by one of the countrys largest mortgage companies, Ocwen Financial Corporation. The Consumer Financial Protection
Bureau, 49 states, and the District of Columbia
agreed to the settlement, which totaled $2.1
billion nationally. The lawsuit against the
company and two of its subsidiaries alleged
that they prematurely and inappropriately
foreclosed on homeowners, violated con

sumer rights, and falsified documents and affidavits. Ocwen Financial Corporation is the
four th largest mor tgage ser vicer in the
country. The company agreed to $2 billion in
principal reductions and $125 million in cash
payments to borrowers on whom it foreclosed. It appears that most of the value in the
settlement goes to the reduction aspect.
The settlement comes as a result of a civil
lawsuit filed by the Plaintiffs. It does not give
Ocwen Financial Corporation immunity from
criminal prosecution, nor does it prevent
other civil litigants from suing the company.
Ocwen Financial Corporation will contact
affected borrowers directly in the next three
years. Borrowers who will be affected can
also contact the company directly to determine whether they stand to benefit from the
settlement.
Source: AL.com

VII.
CONGRESSIONAL
UPDATE
Congress Should Act On Immigration
Reform Without Delay
Speaker John Boehner should allow the U.S.
House of Representatives to take up and vote
on comprehensive immigration reform. Thus
far the speaker has not allowed any bills to
come to the floor. Many capital hall observers
believe a bill would pass with bipartisan
support if Boehner brought it to the floor.
Rep. John Lewis from Georgia, a hero of the
civil rights movement, in a recent speech had
this to say:
History will not be kind to us as a
people and as a nation unless we do
what is right, what is fair and what is
just. We cannot wait. We cannot be
patient. ... Please, Mr. Speaker, bring the
bill to the floor.
Congress didnt see fit to tackle the immigration issue last year. But Democrats are
working hard to keep immigration reform in
the headlinesand generate public pressurein hopes that GOP leaders will take up
the needed legislation early this year. House
Minority Leader Nancy Pelosi, who is a strong
proponent of reform, stated:
For us, it is inevitable that we will pass
comprehensive immigration reform.
For some, it is inconceivable, and they
will stand in the way. We just have to
shorten the time between the inevitable
to us and the inconceivable to them.

While speaker Boehner has said all year

that he supports immigration reform, he
hasnt prioritized it in the face of strong opposition from the Tea Party. The Speaker has
refused to consider a comprehensive reform
bill passed by the Senate with bipartisan
support in June. Neither have a series of
Republican bills passed by the House Judiciary
Committee during the summer found their
way to the floor. The Democrats are pushing
legislation, unveiled in October, that would
create a pathway to citizenship for illegal
immigrants. The legislation would also require
the Obama administration to come up with a
more effective border security plan, which is
favored by Republicans.
The bill has more than 190 co-sponsors,
with dozens of additional lawmakers on both
sides of the aisle expected to support it if it
comes up for a vote. Rep. Xavier Becerra
(Calif.), chairman of the House Democratic
Caucus observed:
We have more than 218 members of the
House who have publicly declared they
are for comprehensive immigration
reform. We will get this done.
I believe that the time has come for Congress to take up and pass meaningful immigration reform. If you agree, take the time to let
your U.S. House members hear from you.
There can be no legitimate excuse for them
not to deal with this issue. Delay can only
cause more problems and continue with the
huge expenses that are currently being borne
by taxpayers due to government inaction.
Source: TheHill.com

VIII.
PRODUCT
LIABILITY UPDATE
Available Technology Could Have
Prevented New York Train Derailment
In early December, a New York railroad
commuter train jumped the tracks after going
into a curve at 82 m.p.h.nearly three times
the 30 m.p.h. speed limit. After the crash,
many placed all the blame on the trains engineer. The Engineers lawyer stated that he
experienced a nod or daze, almost like road
fatigue or the phenomenon sometimes called
highway hypnosis. The Engineer says he
remembers operating the train, coming to a
section where the track was still clearthen
all of a sudden, feeling something was wrong
and hitting the brakes. W hen the train

www.JereBeasleyReport.com

11

derailed, more than 60 people were injured,

11 of them critically.
Defective products lie at the heart of
product liability cases. In this case, a safety
system designed to keep an engineer alert was
not installed in the car in which the Engineer
was controlling the train. A dead-mans
pedal is a pedal in the trains car that must be
depressed or the train will automatically slow
down. Trains can also have alarms, sometimes
called alerters, which sound if the engineers controls have not been moved within a
certain timeframe. If the engineer does not
respond, such as by pressing a button, the
brakes automatically operate. A lack of such
technology in the Metro-North train could certainly give rise to a viable product liability
claim. Most safety experts agree that this positive train control was available and should
have been installed on trains years ago. MetroNorth failed to use the technology, which has
been available for 25 years, to take out the
human error factor. Congress has already
ordered that commuter and freight railroads
must install this type technology, which uses
electronics to monitor trains positions and
speed and stop derailments, by the end of
2015. But this deadline is no excuse for railroads dragging their feet on installing available safety technology. There have already
been nine lawsuits filed against Metro-North
arising out of the crash. Hopefully, this litigation will serve as an incentive for railroads to
move forward and install the technology that
has been available to them for years. Doing so
will make trains much safer.
Source: Law.com

Unsafe Cars in Mexico Make Their Way

Into U.S.

for about the same price. Alejandro Furas, a

technical director for Global New Car Assessment Program, a vehicle crash-test group,
stated: We are paying for cars that are far
more expensive and far less safe. Something is
very wrong.
In 2011, nearly 5,000 drivers and passengers
in Mexico died in accidentsa 51 percent
increase from 2001. In contrast, auto-related
fatalities in the U.S. during the same decade
were reduced by 40 percent. While General
Motors has so far declined to comment publicly on these issues, an engineer who headed
a manufacturing division for the company in
Mexico until last year said the company saved
on costs by not adding sa fet y features.
He has said:
For the company to make more net
profit and so that cars are sold at more
affordable prices, we would toss aside
some accessories. Air bags, ABS brakes,
those were the first to go.
Despite the fact that these unsafe vehicles
are not exported to the U.S., these vehicles
can make their way on to U.S. highways by
individuals traveling across the U.S. border.
The harsh reality is that we are all at risk so
long as these vehicles are sold. Mexico will
very likely continue to sell these unsafe cars to
its own people. Thats because the countrys
$30 billion auto industry will work to protect
the automakers and the Mexican government
wont be willing to challenge the carmakers
and risk shifting production out of Mexico. In
the meanwhile, folks on U.S. highways will be
at risk because of unsafe cars made in Mexico
that will be on those very same highways.
Source: The Huffington Post

IX.
MASS TORTS
UPDATE

Mexico is the worlds fourth largest auto

exporter, producing about 3 million cars
every year. While the cars produced in Mexico
may look identical, how safe they are depends
on where they are headed. Compared with the
U.S., the laws of Mexico require virtually no
safety protection. As a result, automakers can
save money and increase profits by making
cars intended to be sold in Mexico without
including many of the safety features required
in the U.S. For example, if the cars are
exported to the U.S., they must meet fairly
stringent safety standards, including such
things as having as many as six to 10 airbags
and stability controls.
But if the cars are intended to remain in
Mexico, the cars carry a code signifying no
need for antilock braking, electronic stability
control, or more than two airbags. Despite the
fact that the cars are lacking significant safety
features, these unsafe cars are sold in Mexico

DeP uy Or thopaedics, a subsidiar y of

Johnson & Johnson, has agreed to a $2.475
billion proposed global settlement program
that could resolve thousands of claims related
to injuries suffered as the result of their ASR
hip implant device. The settlement has been
approved by U.S. District Judge David A. Katz
in the Northern District of Ohio, who is overseeing the consolidated litigation for cases
filed in Federal court, along with the other
state court judges where cases were filed.
DePuy faces thousands of lawsuits in the U.S.
related to its ASR XL Acetabular and ASR Hip

12

www.BeasleyAllen.com

An Update On The ASR Hip Litigation

Resurfacing Systems, which it recalled in

August 2010 amid reports that unusually high
rates of the devices failed after just five years.
Navan Ward, Jr., a lawyer in our firms Mass
Torts Section, was selected to serve on the
Plaintiffs Steering Committee for the consolidated litigation for cases against DePuy Orthopaedics in the hip implant products liability
litigation.
The agreement was announced Nov. 19,
2013 in the Toledo, Ohio, federal district
courtroom of United States District Court
Judge David A. Katz. Judge Katz has presided
over the federal multidistrict litigation (MDL)
involving some 8,000 of the ASR cases.
However, the proposed settlement does not
involve all ASR patients. The current settlement program applies only to patients who
are U.S. citizens that have undergone revision
surgery prior to August 31, 2013. Neither does
the settlement program cover ASR patients
who underwent a revision surgery within 180
days of their initial ASR hip replacement
surgery, or who had a revision solely due to
in fection or trauma, which is nar rowly
defined by the settlement agreement. It should
be noted that patients who do not qualify for
the settlement retain all of their rights to
pursue claims against Johnson & Johnson.
The settlement programs terms are rather
complicatedas evidenced by the 100-page
agreement setting up the programand the
settlement amount offered by DePuy to settle
any individual case will be based upon a host
of factors. To start, any eligible ASR patient
wi l l be entitled to a base awa rd,
which will be:
$250,000 for patients who underwent a
revision surgery less than 5 years after their
initial surgery;
$225,000 for a patient who underwent a
revision surgery between 5 and 6 years
after their initial surgery;
$200,000 for a patient who underwent a
revision surgery between 6 and 7 years
after their initial surgery; and
$150,000 for a patient who underwent a
revision surgery between 7 and 8 years
after their initial surgery.
The ultimate award may also be adjusted up
or down. Downward adjustments are proposed for patients falling into the following
categories. They include persons who:
Were older than 70 at the time of the
initial surgery;
Smoked at the time of revision;
Had a prior hip implant in the same hip that
later received an ASR implant that was then
revised; and

 Had a Body Mass Index (BMI) greater than

35 when the ASR was implanted.
Patients may be entitled to additional
damages above the base award if medical
records demonstrate:
They had ASR devices implanted in both
hips and underwent revision surgeries on
both hips; and
They suffered an extraordinary complication as a result of the revision surgery, such
as a heart attack, stroke, pulmonary embolism/deep vein thrombosis, dislocation,
foot drop, the need for re-revision surgery,
postoperative infection or other special circumstances. Extraordinary lost wages as a
special circumstance are also recoverable.
Various other factors will also be considered in evaluating each case. In addition to
awards, as described above, DePuy agreed to
satisfy most health care insurance liens for
ASR-related medical costs. Many have called
this agreement unprecedented, as Plaintiffs
have traditionally been left to negotiate lien
amounts with insurers and to satisf y any
medical liens out of their settlement awards.
Therefore, the settlement program offers
patients benefits above and beyond the typical
damage award.
Even after the almost $2.5 billion settlement
agreement,Johnson & Johnsonwill still face
thousands of hip implant lawsuits from Plaintiffs who have yet to have their ASR hips
revised. The settlement leaves an estimated
4,000 to 5,000 ASR cases remaining in federal
and state courts. These patients continue to
suffer injuries such as severe pain, limited
mobility, and elevated metal ions in their
blood. Nonetheless, Johnson & Johnson has
not agreed to include these patients in the settlement program.
If you would like additional information
concerning the ASR settlement, you can visit
the official website at www.usarhipsettlement.com. You can also contact Navan Ward,
a lawyer in our firms Mass Torts Section at
800-898-2034 or by email at Navan.Ward@beasleya l len.com. Nava n ha s been heav i ly
involved in all of the metal-on-metal hip litigations. He was appointed to the Plaintiffs Steering Committee for the DePuy MDL and has
been actively involved in litigating these cases
since they were recalled in 2010.
Source: Law 360

Pennsylvania Supreme Court Dismisses

Wyeths Prempro Appeal
The Pennsylvania Supreme Cour t last
month dismissed a set of appeals by Wyeth
Pharmaceuticals Inc. in the companys attempt

to avoid paying an $ 8.6 million punitive

damages verdict. The verdict was in a suit that
claimed its Prempro menopause drug had
caused a womans breast cancer. Wyeth had
asked the Pennsylvania high court last September to overturn the punitive damages
award, arguing that it was invalidated by the
U.S. Food and Drug Administrations (FDA)
approval of the drug. The pharmaceutical
company contended that the appeals court
had erred in reinstating the award a Philadelphia jury had granted in 2007 to Mary Daniel,
an Arkansas woman who claimed the drug
had caused her breast cancer.
The states high court did not expound on
its rationale for dismissing the appeals. The
appeals are dismissed as having been improvidently granted, the order said. The punitive
damages were in addition to the $1.7 million
in compensatory damages the jury awarded
Ms. Daniel and her husband. A trial court
judge granted Wyeths motion for a judgment
notwithstanding verdict on punitive damages,
claiming these damages were not appropriate
under the circumstances. But after Ms. Daniel
appealed, the Superior Court overturned the
judges ruling, determining sufficient evidence existed for the jury to conclude that
Wyeth had failed to thoroughly test the drugs
breast cancer risks, thus engaging in outrageous conduct that mer ited pu n itive damages.
Six different appellate courts across the U.S.
have upheld punitive damages against Wyeth
in cases involving Prempro. In the Daniel
case, the jury had been correct in concluding
that Wyeth had held the capability to perform
more adequate studies of the risks posed by
the drug but had failed to do so. Ms. Daniel is
represented in her case by Robert K. Jenner of
Janet Jenner & Suggs, a firm located in Baltimore, Md.
Source: Law360.com

Johnson & Johnson Wants Risperdal

Documents Put Under Seal
The U.S. Food and Drug Administration
(FDA) has issued warnings that boys and
young men who have taken antipsychotic
drug Risperdal have been linked to increasing
levels of the hormone Prolactin stimulating
breast growth and milk production. There
have been more than 420 lawsuits alleging
personal injuries filed against Johnson &
Johnson. The drug manufacturer has already
paid billions of dollars to settle federal and
state government allegations of illegally marketing Risperdal.
Johnson & Johnson is trying to keep some
significant documents from public view. The
company told a Pennsylvania state judge that

lawyers for Plaintiffs in a number of product

liability suits involving Risperdal claims are
seeking to publicly release a series of clinical
studies that were kept under seal by a 2011
court order. The company and its subsidiary,
Janssen Pharmaceuticals Inc., argued in a
recent court filing that the documents in question were neither filed with the court nor
deemed public records. As a result, Johnson &
Johnson claims they are exempt from public
access. The company made this argument:
These materials are generated for scienti s t s , r e s ea r c h e r s an d r egu l ato r y
authoritiesnot the general public.
Simply stated, no legitimate purpose
would be served by declassifying the
documents identified by plaintiffs.
But lawyers for Plaintiffs in the product liability lawsuits against Janssen Pharmaceuticals
told the court that documents detailing the
medications risks were too vital to the public
interest to remain under seal as part of court
proceedings. These lawyers represent Plaintiffs in 275 product liability suits against
Janssen that are pending in the Philadelphia
County Court of Common Pleas. The Plaintiffs
argued that the material consisted of observations about the effectiveness and risks of the
drug and that it could not be considered proprietary. The Plaintiffs said in their brief filed
with the court:
The tremendous public interest in this
case and the data and materials being
hidden by Janssen outweighs defendants claims to secrecy. They cannot be
proprietary, as claimed by Janssen.
Rather, they are safety documents that
require disclosure for the well-being of
the public, full and unfettered review
by regulatory authorities and the education of healthcare providers who are
prescribing this powerful drug.
Janssens track record of misrepresenting
the risks and benefits associated with its drugs
warranted the material being released to the
public. The Plaintiffs brief said on this point:
Plaintiffs have uncovered evidence that
Defendants have repeatedly misrepresented the safety of Risperdal to regulatory authorities, healthcare providers
and the public. Plaintiffs now possess
evidence that Janssen systematically
under-reported or misrepresented clinically important study results relating to
the occurrence of gynecomastia ... in
the chil d and adolescent market .
However, the discovery that Plaintiffs
have uncovered is protected behind the
shield of the protective order entered in
this case.

www.JereBeasleyReport.com

13

Johnson & Johnson agreed in November to

pay $2.2 billion to resolve civil and criminal
claims from whistleblowers under the False
Claims Act that it showered doctors with kickbacks and illegally promoted off-label uses of
three drugs, including Risperdal. While the
Plaintiffs in the Philadelphia cases alleged that
the company also marketed the drug off-label
to children, the settlement announced in
November dealt exclusively with allegations
that it promoted Risperdal for use in the
elderly. Only part of the expanding docket of
Risperdal cases in Philadelphia has been disposed of thus far.
A hearing was held on this matter Dec. 16,
but at press time no decision had been made
by the Court. Thus far, only a few of the Risperdal cases in Philadelphia have been disposed
of. An initial set of six cases was slated to go to
trial starting in September 2012. Janssen
settled the first of the set the morning the trial
was scheduled to get underway for an undisclosed sum. Although the trial started in a
second case later that month, Janssen agreed
to settle with the Plaintiff after a week of testimony before a jur y. The same day, the
company announced it had reached agreements to settle claims in the four other cases
pending in the first set. Meanwhile, a second
set of Risperdal cases is expected to go to trial
in Philadelphia starting in early June.
The Plaintiffs in the case mentioned above
are represented by Stephen Sheller and Brian
McCormick, lawyers with the Philadelphia
firm of Sheller PC. If you need additional information about the Risperdal litigation generally, contact Frank Woodson, a lawyer in our
Mass Torts Section, at 800-898-0234 or by
email at Frank.Woodson@beasleyallen.com.
Sources: Law 360 and Forbes

Novartis Cant Apply New Jersey Cap On

Punitive Damages In Zometa Suits
U.S. District Judge Mark. R. Hornak has
ruled that Pennsylvania product liability law
permitting unlimited punitive damages controls three suits alleging Novartis Pharmaceuticals bone drug, Zometa, caused jaw injuries.
Judge Hornak denied the drugmakers attempt
to apply New Jersey law, ruling that Pennsylvania law applied to the suits. Novartis had
argued that New Jersey, home to its U.S. headquarters, had the more significant relationship
to the punitive damages issue since it was the
site of the alleged corporate misconduct.
The New Jersey Products Liability Act law
contains a punitive-damages cap of $350,000
or five times the compensatory award, whichever is greater. The New Jersey law also precludes punitive damages for FDA-approved
products without evidence that the manufac-

14

turer knowingly misled the government on

information relevant to the alleged injuries.Pennsylvania law imposes no such
restrictions on punitive awards. The Plaintiffs
are former Zometa users, or their spouses,
who filed suit based on these claims; strict liability, negligent manufacture; failure to warn
and breach of warranty. The users allegedly
developed osteonecrosis of the jaw (ONJ)
after taking the drug while undergoing cancer
treatment.
Two of the three suits at issue in the courts
ruling were filed in federal court in Washington, D.C., and were first sent to a Tennessee
multidistrict litigation and then to Pennsylvania. The users in these two cases first ingested
Zometa in Pennsylvania. Under Washingtons
choice-of-law protocols, Pennsylvania met the
four-factor test for applying its law to the suits,
according to Judge Hornaks order. He said
that the site of the alleged injury generally
determines the controlling state law, adding
that the relevant injurious conduct occurred
not in New Jersey, where Novartis created
Zometas labeling, packaging and marketing
materials, but in Pennsylvania, where it allegedly misinformed physicians about the drugs
side effects through inadequate warning
labels. The courts order reads in part:
The plaintiffs and their doctors allegedly failed to receive adequate warnings in Pennsylvania, plaintiffs were
prescribed the drug in Pennsylvania,
and were infused with the drug in
Pennsylvania. [Novartis] did conduct
research regarding Zometa and make
decisions on Zometa marketing, labeling, and packaging in New Jersey.
However, the place where the defendant
engaged in certain conduct is of less significance in situations where a potential defendant might choose to conduct
his activities in a state whose tort rules
are favorable.
Judge Hornak said while he respects New
Jerseys interest in punishing and deterring
dangerous corporate conduct on its own
terms, he was swayed by Pennsylvanias substantial interest in regulating pharmaceutical
manufacturers that affirmatively market their
products to Pennsylvania doctors, on that
point. He wrote:
Pennsylvania maintains an interest in
its own punitive damages law, which is
intended to protect its citizens from
defective products and to encourage
manufacturers, wherever headquartered, to produce safe products. When
those products are systematically introduced into Pennsylvania, Pennsylvania
has a legitimate and substantial inter-

www.BeasleyAllen.com

est in applying
damages law.

its

punitive

The choice of law for a third suit, first

brought in New York, according to the order,
hinged on the location of the last event necessary to establish Novartis liability. Judge
Hornk said this plainly occurred in Pennsylvania. Judge Hornk wrote:
The allegations on which plaintiffs
ground their punitive damages claims
range well beyond [Novartis] boardroom in New Jersey; they include claims
that NPC marketed and sold Zometa to
them in Pennsylvania, and failed to
p rope rly war n the m the re, whil e
knowing of Zometas potentially devastating side effects.
Novartis recently failed to convince the U.S.
Supreme Court to review its argument that
state punitive damages awards encroach on
the regulatory authority of the U.S. Food and
Drug Administration and are therefore uniformly preempted. The Plaintiffs in the three
lawsuits are represented by Joseph F. Butcher
and Daniel E. Krauth, who are with the Pennsylvania law firm Zimmer Kunz; John Julian
Vecchione of Valad & Vecchione, located in
Fairfax, Va.; and Daniel A. Osborn with The
Osborn Law firm based in New York City.
Source: Law360.com

Ethicon Accused Of Destroying Important

Documents In Transvaginal Mesh MDL
Ethicon Inc., a subsidiary of Johnson &
Johnson and manufacturer of TVT- O and
Prolift transvaginal mesh, has been accused of
destroying or losing tens of thousands of documents during a 10-year period in violation of a
court order. In a motion for sanctions filed in
the District Court for the Southern District of
West Virginia, Plaintiffs allege that Ethicon
systematically and continually destroyed the
documents of outgoing employees at all levels
and documents that were more than two years
old despite a litigation stay instituted in 2003.
Plaintiffs are seeking default judgments in
their first TVT-O and Prolift bellwether trials,
spoliation instructions to the jury at every
other bellwether trial, and costs and fees. The
Plaintiffs also seek to prohibit Ethicon at any
trial from raising defenses based on the
learned intermediary doctrine or any statute
of limitations.
According to the motion and evidence filed
by the Plaintiffs Steering Committee (PSC),
Ethicon destroyed documents from the custodial files of its worldwide president, chief
medical officer, global medical director, vice
president of global strategic marketing, and

many of the sales representatives in the

upcoming bellwether trials. Under management direction, Ethicon deleted the computer
hard drives of outgoing employees unless the
employee took steps to prevent it, despite Ethicons ongoing duty to preserve all evidence
for discover y in the litigation. Ethicons
employees apparently had no uniform understanding of which documents needed to be
preserved. Ethicon also destroyed several
instructional videos that contradicted the
position of one of its expert witnesses in the
litigation. Ethicon also are unable to locate
roughly 600 pounds of documents provided to
it by the now-defunct original manufacturer of
its TVT-O mesh.
In addition to the systematic destruction of
documents, the spoliation was caused by Ethicons lack of internal oversight of procedures
for preserving documents. Ethicon failed to
implement a written policy regarding document retention and did not create a centralized litigation hold folder until 2007. Ethicon
learned through a 2002 internal audit that its
document retention procedures were inadequate, yet waited five years to institute corrective action. In support of the motion, Plaintiffs
submitted testimony from an Ethicon corporate representative as well as numerous
Ethicon documents.
The motion for sanctions was filed on
behalf of all Plaintiffs with cases pending in In
re Ethicon, Inc., Pelvic Repair System Products
Liability Litigation, the Multidistrict Litigation
(MDL) venued in the U.S. District Court for
the Southern District of West Virginia. Judge
Joseph Goodwin has scheduled a bellwether
trial involving an Ethicon TVT stress urinary
incontinence in early February 2014.
If you need more information on this
subject, contact Leigh ODell, who is handling
the TVM Litigation for our firm, and who is on
the PSC in the MDL, at 800-898-2034 or by
email at Leigh.Odell@beasleyallen.com.

Boehringer Fined For Withholding

Documents In MDL
An Illinois federal judge has ordered Boehringer Ingelheim Pharmaceuticals Inc. (BIPI)
to pay nearly $1 million as sanctions for discovery abuses in multidistrict litigation (MDL)
involving its oral anticoagulant Pradaxa. U.S.
District Judge David R. Herndon found that
the drugmakers failure to produce thousands
of documents amounted to bad-faith conduct.
BIPI, along with German parent Boehringer
Ingelheim International GmbH, cant explain
away their failure to enact a companywide litigation hold to preserve critical documents and
communications by June 2012, when they
knew a wave of product liability lawsuits over

Pradaxa was inevitable, according to an order

signed by Judge Herndon.
Noting that the court has repeatedly been
asked to referee disputes in the case regarding
lost, accidental ly destroyed or just
recently discovered evidence, Judge Herndon
fined the companies $931,500 and ordered
them to immediately make executives available for depositions in New York or another
convenient locale for the Plaintiffs lawyers.
Judge Herndon wrote:
The fine imposed today will not impact
the defendants profit margins, but
hopefully together with the potential
future actions the court may be forced
to take ... the defendants will understand once and for all time compliance
with the cour t s orders is not an
optional part of litigation strategy.
Among the materials that the court faulted
the defendants for failing to preserve was the
custodial file for Professor Thorstein Lehr, a
former top scientist at Boehringher who was
deeply involved with Pradaxa, but wasnt even
identified by the Defendants as a potential
source of relevant information. The courts
order said that business-related text messages
on certain employees cellphones were also
lost or held back, as was evidence controlled
by the Defendants sales representatives, clinical science consultants and medical science
liaisons. A shared network between the compan iesk nown as G Dr ivewas a lso
plagued by production issues, according to
the order.
The steering committee for the Plaintiffs
brought its initial sanctions motion in September, prompting the court to impose a relatively small finejust under $30,000and to
order Boehringer to conduct an audit to fix
the problems. However, the audit revealed
even more gaps in the Defendants production and showed that their purported company wide litigation hold had been far too
selective, according to the courts order. Judge
Herndon, in his order, wrote:
[T]he court relied on the presumption
that the defendants were preserving all
relevant documents of every description. It only came to light recently that
such was not the case.
In the past two years, Boehringer has faced
mounting litigation tied to the drug, which
won U.S. Food and Drug Administration (FDA)
approval in October 2010 to reduce clotting
risks in patients with atrial fibrillation not
caused by a heart valve problem. Drug users
who claim they experienced bleeding events
and other injuries began filing federal lawsuits
as early as March 2012, after a study in the
Archives of Internal Medicine linked Pradaxa

with an increased risk of heart attack compared with other anti-coagulants.

The FDA launched an inquiry into Pradaxa
in December 2011, saying it would investigate
whether reports of bleeding in patients taking
the drug are occurring more commonly than
would be expected based on clinical trial data
f r om it s pr e m a r ke t appr ov a l pr o ce s s.
However, the agency concluded in November
2012 that bleeding rates for new Pradaxa users
do not appear to be higher than bleeding
rates associated with new use of warfarin, a
pre-existing drug widely used to treat atrial
fibrillation. The FDA said it would not alter its
recommendation regarding Pradaxa. In July,
Judge Herndon refused to dismiss one case in
the MDL, brought by Louisiana resident Mark
Jackson, ruling the drugmaker hadnt shown
its labeling carried the necessary disclosures.
Source: Law360.com

Merck Settles Fosamax Jaw-Injury Claims

For $28 Million
Merck & Co. Inc. has agreed to pay $27.7
million to settle hundreds of lawsuits claiming
its bone drug Fosamax caused a condition
known as osteonecrosis of the jaw (ONJ). The
settlement agreement includes the claims of
about 1,200 plaintiffs in federal and state
court. It comes after U.S. District Judge John
Keenan ordered the parties to transfer 200
cases per month out of the multidistrict litigation (MDL) and into their home courts. No
such transfer had occurred when the settlement was reached.
Since the litigation began in 2005, seven
bellwether trials have gone to verdict, with
Merck winning five, according to the drugmaker. The company was hit with verdicts of
$285,000 and $ 8 million, though Judge
Keenan later slashed the larger award to $1.5
million. The settlement does not include allegations that Fosamax causes femur fractures.
Those claims were centralized in New Jersey
feder a l cou r t i n sepa r ate mu ltid istr ict
litigation.
The settlement agreement is contingent on
a 100 percent participation rate. Plaintiffs
lawyers must accept the settlement terms by
Jan. 13 anddeliver releases for 100 percent of
the Plaintiffs by March 31. If they do not do so,
Merck has the right to terminate the agreement. Plaintiffs must document that they have
osteonecrosis of the jaw and that they used
Fosamax. The Plaintiffs Steering Committee
(PSC) is responsible for allocating the settlement among the eligible claimants. The $27.7
million figure includes attorneys fees and all
the Plaintiffs medical liens.
After the final bellwether trial concluded
earlier in 2013, the parties discussed how to

www.JereBeasleyReport.com

15

wind downthe multidistrict litigation. The

PSC proposed that Judge Keenan send 300
cases to their home courts every four months,
an average of 75 cases a month. Merck proposed conducting case-specific fact discovery
in the 100 oldest cases in a six-month period
before transfers would occur. Ultimately,
Judge Keenan decided to transfer the cases
out of the litigation at an even faster pace than
proposed by the Plaintiffs. The first transfers
were originally scheduled to take place in
November, but the judgedelayed the deadline
at the Plaintiffs request. If all Plaintiffs
counsel do not agree to the deal, the cases
could start being transferred in January.
The agreement includes neither the four
bellwether cases currently on appeal nor
claims against other manufacturers for similar
drugs that allegedly caused osteonecrosis of
the jaw. It also does not include already
settled claims.
Source: Law360.com

X.
AN UPDATE ON
SECURITIES
LITIGATION
The SEC Whistleblower Law
The Dodd-Frank Act was passed in July
2010, establishing the SEC Office of the Whistleblower in 2011. The program was designed
by Congress to provide monetary incentives
for anyone who has knowledge of fraudulent
activities to step forward and report possible
violations. The program protects individuals
who report possible violations by prohibiting
retaliation by employers against employees
who provide information about those possible
violations. Additionally, the Securities and
Exchange Commission (SEC) is required by
law to protect the confidentiality of whistleblowers and cannot disclose any information
that might reveal their identity.
The program entitles eligible whistleblowers to an award between 10 percent and 30
percent of the monetary sanctions collected in
actions by the SEC. Eligible whistleblowers are
individuals who voluntarily provide original
information of a possible violation. Original
information means that the information comes
from your own knowledge or analysis. The
information should not already be known to
the SEC either through public knowledge or
from another individual. The violation could
have occurred in the past, be currently occurring, or about to occur. The information pro-

16

vided must lead to a successful action of more

than $1 million to be eligible for an award.
According to the SECs Office of the Whistleblowers Annual Report, fiscal year 2013
has been a huge success. SECs Office of the
Whistleblower gave out more than $14 million
in awards to whistleblowers who contributed
to the success of the agencys enforcement
actions. This year, the Office handed out its
largest award since its establishment for $14
million. This award was to a whistleblower
who gave information leading to an enforcement action that recovered substantial investor funds.
On Oct. 30, 2012, the SEC announced that it
was awarding another whistleblower more
than $150,000, an amount representing 30
percent of the money collected by the agency.
This award is the sixth whistleblower to be
awarded through the SECs whistleblower
program since its establishment. The whistleblowers information led to the agency successfully stopping a scheme from continuing
to defraud investors. The whistleblower provided information that led the SEC to quickly
shut down the ongoing fraud and wishes to
remain anonymous. This award shows the
momentum of the program and that it continues to ser ve the agenc ys goal to stop
ongoing fraud.
Lawyers in the Consumer Fraud Section at
Beasley Allen continue to investigate fraud
against both the federal and state governments and encourages anyone who knows of
fraudulent activities to step forward. Potential
whistleblowers have the right to not be retaliated against for doing the right thing and
reporting the fraud they have witnessed.
Anyone considering doing the right thing and
blowing the whistle are strongly urged to seek
legal advice before doing so. Law yers at
Beasley Allen are ver y familiar with the
federal False Claims Act and the SEC Whistleblower Program and can guide whistleblowers
along the process. If you have any information
and would like to speak with a lawyer, contact
Chad Stewart, Archie Grubb, Andrew Brashier
or Larry Golston, lawyers in our Consumer
Fraud Section, at 800-898-2034 or by email at
Chad.Stewar t@beasleyallen.com, A rchie.
Grubb@beasleyallen.com, Andrew.Brashier@
beasleyallen.com or Larry.Golston@beasley
allen.com.
Sources: www.SEC.gov

Does The Business Judgment Rule Apply To

Bank Directors And Officers?
Judge Thomas Thrash, a veteran federal
judge in the Northern District of Georgia,
recently released a most interesting opinion
involving the application of the business judg-

www.BeasleyAllen.com

ment rule to directors and officers of a failed

bank. The case was brought in November
2012 by the FDIC as receiver of The Buckhead
Community Bank. The FDICs complaint
alleged that the banks former directors and
officers were negligent and grossly negligent
in carrying out their duties. The complaint
asserted that the defendants engaged in
numerous, repeated, and obvious breaches
and violations of the Banks Loan Policy,
underwriting requirements and banking regulations, and prudent and sound banking practices, including 13 loans in particular that
cost the bank more than $21.8 million.
The defendants moved to dismiss the negligence claim on the basis that bank directors
cannot be held liable for ordinary negligence
under Georgias business judgment rule. Judge
Thrash refused to dismiss the case, however,
writing in his Nov. 25, 2013, opinion: There
is every reason to treat bank officers and
directors differently from general corporate
officers and directors. In general, when a business corporation succeeds or fails, its stockholders bear the gains and losses. But when
a bank, instead of a business corporation fails,
the FDIC and ultimately the taxpayer bear the
pecuniary loss. The lack of care of the officers
and directors can lead to bank closures which
echo throughout the local and national
economy. To some extent, the failure of bank
officers and directors to exercise ordinary
care led to the very financial crisis that continues to affect the national economy.
Judge Thrash was not convinced that
Georgia law affords the Defendants the protection of the business judgment rule in a
lawsuit by the FDIC. He certified to the
Georgia Supreme Court the question whether
the business judgment rule should be available
to the banks directors and officers in this
case. He also denied the defendants motion to
dismiss the allegations that the directors and
officers were grossly negligent. The Georgia
Supreme Courts decision will certainly have
an impact on efforts to pursue claims against
directors and officers of failed banks.
Lawyers at Beasley Allen who work in the
firms Consumer Fraud Section continue to
handle claims against banks, as well as claims
against corporate directors and officers, who
are typically covered by special D&O insurance coverage. If you need more information
on this subject, contact Archie Grubb, a
lawyer the Section, at 800-898-2034 or by
email at Archie.Grubb@beasleyallen.com.
Source: http://www.dandodiary.com, blog post on
12/3/13 by Kevin LaCroix

XI.
INSURANCE AND
FINANCE UPDATE

age disputes. In Pennsylvania law, the doctr i ne ser ves to prevent Pla i nti f fs f rom
reshaping breach of contract claims into tort
claims. Judge Shogan wrote in his order:

Pennsylvania Court Says General Liability

Policy Covers Torts
The Pennsylvania Superior Court took an
expansive reading of insurers obligations to
commercial policyholders in a December
ruling, concluding that a general liability coverage provider is required to defend product
liability claims. The appeals court reversed a
trial court ruling granting summary judgment
to National Union Fire Insurance Co. of Pittsburgh, Pa., concluding that a series of lawsuits
filed against door and window manufacturer
Indalex Inc. triggered the companys insurance policy.
The three-judge panel found that because
the companys defective products allegedly
led to other damaged property as well as personal injuries, these counted as occurrences
under the policy. Simply stated, because
appellants set forth tort claims based on
damages to persons or property other than
the insureds product, we cannot conclude
that the claims are outside the scope of the
coverage, Judge Jacqueline Shogan said in the
opinion. Inadlex sued its insurer in the Allegheny County Court of Common Pleas in 2007,
arguing that it was entitled to coverage under
its commercial umbrella policy. There have
been multiple out-of-state lawsuits filed by
homeowners and property owners against the
company. Its claimed that design and manufacturing defects in the companys doors and
windows led to mold and cracked walls along
with personal injuries.
National Union responded that under Pennsylvania law, there were no occurrences that
triggered the policy, and in 2012, the trial
court agreed, dismissing Indalexs claims. The
company then appealed, arguing the trial
court had improperly relied on an earlier
Pennsylvania Supreme Court case, Kvaerner
Metals Division of Kvaerner U.S. Inc. v. Commercial Union Insurance. Co. In that case,
the Supreme Court ruled that because a complaint about a product had alleged that faulty
workmanship had damaged the product itself,
it did not trigger an insurance policy.
Indalex, however, argued that its case was
distinct from the Kvaerner case because the
f lawed work ma nsh ip to the doors a nd
windows caused damages elsewhere. The
Superior Court ultimately agreed, concluding
that these damages qualified as an occurrence. In doing so, the court specifically
rejected the application of the gist of action
theory to bar tort claims in insurance cover

Ultimately, because the gist of the

action doctrine has never been adopted
by our Supreme Court in an insurance
coverage context, we are convinced
that, at this juncture of a duty to defend
claim, applying the gist of the action
doctrine is inappropriate.
It would appear, based on the existing case
law in Pennsylvania, that coverage under a liability insurance policy of the sort involved in
this case should be afforded by the carrier.
Source: Law360.com

Travelers Contends That Claims Not TimeBarred In Pfizer Lawsuit

Travelers Indemnity Co. has asked a federal
judge not to dismiss its $47 million lawsuit
filed against Pfizer Inc., contending that the
claim is not time-barred. The suit involves the
epilepsy drug Neurontin and the drugmakers
alleged anti-competitive efforts and aggressive
marketing of off-label uses. Travelers, the St.
Paul Fire and Marine Insurance Co., and the
Standard Fire Insurance Co. alleged in their
complaint that because of Pfizers deceptive
marketing to physicians, the insurers have
overpaid millions in connection with workers
compensation claims arising from injuries
caused by uses for which the U.S. Food and
Drug Administration (FDA) had not approved
Neurontin.
Pfizer, in a motion for judgment on the
pleadings, claimed that the insurers claims
are substantively identical to multiple lawsuits
that have been consolidated in a Massachusetts multidistrict litigation (MDL), and are
time-barred. Pfizer said in a statement:
Travelers, one of the nations largest
and most sophisticated insurance companies, chose to wait until 2012 to bring
suit over allegedly improper marketing
and promotion of the medication Neurontin (gabapentin), which it affirmatively alleges began as early as 1990.
It should be noted that neither Travelers
marketing, nor its antitrust allegations, are
new. Travelers marketing allegations are
similar to off-label marketing allegations first
made in a 1996 qui tam lawsuit, which was
unsealed on Dec. 21, 1999. Pfizer said that by
2004, numerous insurers, union health insurance funds, and workers compensation providers had brought similar suits, alleging that
Pfizer engaged in the illegal promotion and
sale of the drug Neurontin for off-label use.

These cases were ultimately consolidated in a

multidistrict litigation. Pfizer said Travelers
misrepresentation, consumer protection, and
unjust enrichment claims are all barred by
Connecticuts three-year statute of limitations.
Travelers said in its memorandum filed in
opposition to Pfizers motion:
First, the plaintiffs claims are not timebarred because the defendants admittedly fraudulent marketing of
Neurontin from 1996 to at least 2004
constitutes a continuing course of
conduct that tolled the applicable statutes of limitations.
The insurers said that the pendency of the
request for class certification in the Massachusetts marketing MDL, which was initiated in
May 2004, and is yet to be decided, tolled the
applicable statute of limitations under the
Supreme Courts 1974 decision in American
Pipe & Construction Co. v. Utah. In that case
the high court ruled that the pendency of a
class action tolls the statute of limitations for
all potential class members until a final decision on the request for class certification. The
insurers contended:
In this case, there is not a final decis ionw ith r e sp ec t to third - pa r t y
payors, such as the plaintiffsbecause
the First Circuit reversed the denial of
class certification.
Travelers is also taking the position that
Pfizer is attempting to do something it cannot
do at this stage. The insurers claim its too
early to decide whether the causes of action
are time-barred because there are substantial,
unresolved questions of fact relevant to
whether Connecticut law governs some, or
all, of their claims; Pfizers continuing course
of conduct; and tolling under the American
Pipe doctrine.
The insurers said that although the parties
are not close to completing discovery, Pfizer
would have the court decide that Connecticut
law governs their claims, even though there
are unresolved facts to be developed through
discovery that may establish a more significant relationship with other states and thus
require the application of the law of those
states to some, or all, of the insurers claims.
Neurontin is approved by the FDA to treat seizures and, as of 2004, chronic debilitating
pain caused by shingles, according to the suit.
But Pfizer markets Neurontin to treat injuries
like back strains, bone fractures, carpal tunnel
syndrome, sprains, dislocations, contusions,
punctured lungs, slipped disks and hernias,
according to Travelers suit.
Travelers also accused Pfizer of failing to
advise health care professionals and the public
of serious side effects associated with the

www.JereBeasleyReport.com

17

drug, including suicidal behavior, paranoia,

memory loss, hostility, depression, drowsiness
and nausea.
Sources: Juan Carlos Rodriguez and Law360.com

XII.
EMPLOYMENT AND
FLSA LITIGATION
Wal-Mart Contractor Will Pay $4.7 Million
To Settle Workers Lawsuit
A Wal-Mar t Stores Inc. contractor has
agreed to pay $4.7 million to settle a lawsuit
filed by 568 Southern California warehouse
workers who said they were underpaid and
denied rest and meal breaks. A federal judge
has approved the settlement between Schneider Logistics and employees at its warehouse
in Mira Loma. Wal-Mart paid Schneider Logistics to operate the warehouse, which handled
merchandise sold in Wal-Mart stores.
The lawsuit, filed in March 2012, alleged
that Schneider Logistics shorted employees on
overtime and regular pay and denied them
rest and meal breaks to which they were
legally entitled for five years. Guadalupe
Palma, director of Warehouse Workers United,
had this to say:
We are plea sed that hun dred s of
workers who move merchandise in
Wal-Marts largest warehouse complex
in the western United States have won
back $4.7 million in stolen wages owed
to them for years of honest work.
The brave workers who came forward to
expose a deep pattern of abuse and fraud in
Wal-Marts largest contracted facility risked
their jobs and their livelihoods, but today they
are vindicated.
Wal-Mar t was not a defendant in this
lawsuit. The workers alleged in the lawsuit
filed against Schneider Logistics that its managers routinely changed employee time cards
to deny them pay they had earned. A second
worker lawsuit against Schneider was filed
and is still pending. Wal-Mart is named as a
defendant in that case.
Source: Los Angeles Times

Fast Food Giants Exploit Tax Loophole

A tax loophole netted top fast food chains
an extra $64 million in the past two years.
When Congress placed a $1 million cap on the
amount of executive pay that could be taxdeductible, lawmakers created an exception
18

for performance pay. This loophole quickly

led to an explosion of performance-based
compensation, particularly stock options,
according to Sarah Anderson, who directs the
Global Economy Project at the Institute for
Policy Studies.She tallied more than $183
million in fully deductible performance
compensation lavished on the CEOs of the six
top publicly held fast food corporations in the
previous two years. Had that cash been fully
taxed, Ms. Anderson estimates, another $64
million would have landed in government
coffers rather than corporations. In contrast
to their lavish CEO compensation packages,
the fast food industry is notorious for the low
wages paid to workers in their stores. Many of
the fast food workers have to turn to taxpayerfunded anti-poverty programs in order to just
to get by. The National Employment Law
Project estimates that workers for one of the
top fast food corporations draw nearly $650
million in Medicaid and other public assistance annually.
Source: Institute for Policy Studies

Fast Food Workers Strike Is Justified

Last month, more than 100 fast food
workers in Detroit picketed outside restaurants singing Hey hey, ho ho, $7.40 has got to
go! One-day labor walkouts were planned at
fast food restaurants in 100 cities, with protests in scores more cities and towns across
the nation. Organizers are pushing for an
increase in the federal minimum wage and
higher wages in the industry. An advocate for
income equality says he is encouraged by the
n at ionw ide ef for t but i snt ex p ec t i ng
major changes.
Recently, Pope Francis and President
Obama have each spoken out against growing
income inequality. The President expressed
support for a Democratic proposal to raise the
minimum wage to $10.10 per hour. Despite
the growing concern surrounding economic
disparities, the pushback against the increase
is strong. Fast food is a price-sensitive business and the industry claims it would be difficult to significantly increase wages. Labor
Secretary Tom Perez weighed in on the side of
the protesters in his blog, stating:
To reward work, to grow the middle
class and strengthen the economy, to
give millions of Americans the respect
they deserveit s time to raise the
minimum wage.
Hopefully, Congress will increase the
minimum wage. Its the morally correct thing
to do. But based on past history, it will be a

www.BeasleyAllen.com

very tough battle. I believe its one that we can

ill-afford to lose.
Source: USA Today

XIII.
PREMISES
LIABILITY UPDATE
Jury Awards $39 Million In Fatal Wisconsin
Garage Panel Fall
You will recall that we wrote in a previous
issue about the collapse of a Milwaukee
parking garage panel. Now a jury has found
the manufacturer of the panels, Advance Cast
Stone, mainly responsible for the collapse that
killed a teenager and injured two others in
2010. A total of $39 million in damages was
awarded to the Plaintiffs. The jury found that
Advance Cast Stone intentionally concealed
and misrepresented a defect or deficiency in
its installation of concrete panels at the Milwau kee Cou nt y- owned ODon nel l Pa rk
parking garage.
Fifteen-year-old Jared Kellner was killed
when one of the 13-ton panels fell, hitting
him. Amy Wosinski and her son Eric, who also
was 15, were injured. Due to her injuries, Ms.
Wosinskis left leg was partially amputated.
Eric suffered a broken leg and lacerations
to his head.
Testimony during the trial focused on the
way a panel was attached by the Random Lake
company, with two, rather than the prescribed four, steel connecting rods and other
deviations. Throughout the trial, Advance Cast
Stone insisted it was given permission to use
the alternate method to install the panel,
which later failed. Advance also argued that
Milwaukee County failed to properly maintain
the panel and that vehicles banging into the
panel over its nearly two decades caused it
to dislodge.
The jurors found that the Kellner and
Wosinski families were entitled to compensatory damages consisting of pain and suffering,
medical costs, lost earnings and other losses.
The jury awarded $6.3 million to the estate of
Jared Kellner for the pain and suffering he
endu red i n the seconds before he was
crushed. The jurors awarded $1.5 million each
to Eric Wozinski and his parents for emotional
distress they suffered. The jury awarded $15
million in punitive damages. The jury also
awarded $6 million to Milwaukee County for
repairs to the ODonnell Parking structure
and for lost revenue for the months it
was closed.
The jur y found Advance Cast Stone 88
percent responsible. J.H. Findorff & Son, the

construction manager on the project, was

found to be 10 percent at fault. That left the
county at 2 percent. Incidentally, Findorff had
previously settled with the Plaintiffs.
Source: The Milwaukee Journal Sentinel

Tahoe Ski Resort Settles Suit Over

Chairlift Death
A lawsuit filed in a California court by a
family against a Lake Tahoe ski resort and
other companies over the death of a man who
fell from a chairlift has been settled. The
amount of the settlement is confidential. The
family of 51-year-old Mark Dickson settled the
wrongful death suit, which was pending in El
Dorado Superior Court, after a settlement conference. As part of the settlement, in addition
to the monetary payment, the owners of Heavenly Mountain Resort agreed to make various
safety improvements, including regular equipment inspections and shutting down the
ZipRider line in high winds. Dickson was
killed in August 2009 after falling from Heavenlys chairlift, which became entangled with
a rope retrieval line from the zip line ride.

fleet, real property and disposal wells in the

Eagle Ford, Barnett, Permian, Mississippian
L i me, Hay nes v i l le a nd Ma rcel lu s / Utica
shale basins.
The Aguilar family filed a wrongful death
suit against Heckmann Water Resources and
Ruben Osorio Hernandez, the man driving the
truck, when the May 2012 accident occurred.
It was alleged that the semi was not properly
maintained, which led to the drive shaft
failure. When the drive shaft fell out from
underneath Heckman Water Resources truck
as it was being driven down a highway in
Dimmitt County, the part careened through
the windshield of the pickup truck Aguilar
was riding in, killing him.
Heckmann Water Resources and Hernandez
were cleared of any criminal wrongdoing. But
the jur y in the civil case found that the
company was guilty of negligent conduct.
Jurors determined that Hernandez was not at
fault for the accident. The Aguilar family is
represented by Ronald Rodriguez, a lawyer
from Laredo, Texas. He has done a very good
job in this case.

Illinois Roofing Company Fined $158,000

For Safety Hazards

$281 Million Wrongful Death Verdict In

Texas
A Texas jury returned a $281 million judgment last month against Heckman Water
Resourses, a subsidiary of Nuverra Environmental Solutions Inc. The jury found a drive
shaft had broken off a poorly maintained truck
owned by the oil field ser vice company,
causing a mans death. The Dimmit County
jury awarded $181 million in compensatory
d a mages a nd $10 0 m i l l ion i n pu n itive
damages to the family of Carlos Aguilar, who
was killed when he was hit by a drive shaft
that had snapped off a tractor-trailer owned by
Heckmann Water Resources. The big rig was
traveling down a road near the Eagle Ford
Shale at the time of the incident.
Nuver r a, a n env i ron ment a l solutions
company that until last May was known as
Heckmann Corp., bills itself as one of the
largest companies dedicated to the removal,
treatment and disposal of oil field development byproducts on behalf of companies
operating in major shale plays throughout the
U.S. Heckmann Water Resources operates

Federal labor officials have accused an automotive metal forging company in Plantsville,
Conn., of health and safety violations involving electrical hazards and inadequate training
and safe work procedures. The Occupational
Safety and Health Administration (OSHA) last
month proposed fines of $112,068 against Rex
Forge, a division of the JJ Ryan Corp. OSHA
says the safety violations included the use of
an extension cord instead of fixed wiring, and
damaged electrical cords. The agency also
cited electrical and fall hazards and a lack of
adequate training and safe work procedures to
protect workers on or near energized electrical equipment. Warren Simpson, OSH As
director in Hartford, called the violations
prolific.
Source: Claims Journal

Elevator Company Cited In Stadium Death In

California

Source: Law360.com

Source: The Sacramento Bee

XIV.
WORKPLACE
HAZARDS

Connecticut Metal Plant Hit With $112,000

In OSHA Safety Fines

A ffordable Roofing and Exteriors Inc.,

located in Trenton, Ill., has been cited by the
U.S. Department of Labors Occupational
Safety and Health Administration (OSHA) for
five safety violations, carrying proposed penalties of $158,015. The citations follow inspections at three job sites where workers were
improperly using fall protection during the
installation of shingles on residential roofs,
according to OSHA. Since 2009, the company
has been cited in five inspections for similar
violations.
Residential job sites were inspected July 15
in Granite City. On June 27, an inspection took
place in Belleville. On May 16, another
inspection occurred at another location in the
200 block of Dodge in Belleville. At each job
site, a willful violation was cited for failing to
ensure workers used fall protection while performing residential roofing. The inspections
were initiated under the national emphasis
program for fall safety. Two serious violations
were cited at the Belleville job site for failing
to provide eye protection to workers who
used pneumatic nail guns and provide a ladder
to access upper landings safely.
Source: Claims Journal

California safety officials have issued more

than $50,000 in fines against an elevator
company whose employee was killed while
working at the San Francisco 49ers new
st ad iu m i n S a nt a Cl a r a. A 63 -ye a r - old
mechanic, Don White, was killed on June 11
when hit by an elevator counterweight. The
states Division of Occupational Safety and
Health cited Schindler Elevator Corp. for three
serious violations, including its alleged failure
to enclose counterweights in freight elevators
with required guards. White was the first of
two workers to die while working on the new
$1.2 billion stadium, which is slated to open
this year.
Source: Insurance Journal

OSHA Fines Louisiana Plant $99,000 For

Six Safety Violations
The U.S. Occupational Safety and Health
Administration (OSHA) has proposed fines of
$99,000 against Williams Olefins for a June
explosion at its plant in Geismar, La., that
killed two workers and injured 80 others.
OSHA cited the company for six process safety
management standard violations, including
one willf ul. Process safet y management
encompasses detailed procedures employers
must follow to address hazards with processes
and equipment using large amounts of hazardous chemicals. In this case, OSHA says the violators involved the use of propylene.
Source: Insurance Journal

www.JereBeasleyReport.com

19

Tyson Foods Fined $147,000 For Safety

Violations At Kansas Plant
Tyson Foods Inc. has been cited by U.S.
Department of Labors Occupational Safety
and Health Administration (OSHA) for four
workplace safety violations at the Hutchinson,
Kan., prepared foods manufacturing plant. A
workers hand had been severed by an
unguarded conveyor belt. Proposed fines total
$147,000. OSHA began its inspection upon
learning of the amputation, which occurred
June 17 when four workers were cleaning conveyor equipment at the end of their shift.
Guarding on the conveyor was removed,
exposing workers to rotating parts. A workers
frock and the employees arm were then
pulled into moving gears of a conveyor that
had not been locked out to prevent unintentional operation. The two willful violations
involved failing to train workers on lockout/
tagout procedures and to lock out equipment
to prevent the unintentional operation of
e q u i p m e n t a n d e x p o s u r e t o a m pu t a tion hazards.
One serious violation involved fall hazards
when workers ascend the upper platform
work area in two separate plant locations. The
company failed to provide fixed stairs to reach
the work areas. An other-than-serious violation involves lack of legible markings on forklift levers. The Hutchinson plant has been
inspected by OSHA five times in the past 10
years, resulting in seven violations.
Source: OSHA

XV.
TRANSPORTATION
Increases In Injuries And Deaths From
Commercial Truck And Bus Crashes
The number of highway deaths in the U.S.
climbed in 2012 to 33,561an increase of
1,082 from 2011according to preliminary
data released recently by the Nationa l
H ig hway Tr a f f ic Sa fet y Ad m i n istr ation
(NHTSA). The same data also showed that the
number of deaths to occupants in large trucks
increased substantially for the third consecutive year, up 8.9 percent in 2012. According to
the NHTSA data, 697 large truck occupant
fatalities occurred in 2012. But that rise was
not as sharp as the 20-percent escalation that
occurred in 2011, according to NHTSA, cautioning that the total number of highway fatalities remains at a historic low despite the
upward trend. The last time the total number
of highway deaths jumped was in 2005.

20

NHTSA reported that Americans drove

roughly the same number of miles in 2012 as
they did in 2011, so an increase in highway
travel could not be to blame for the rise. Some
commercial truck industry groups say that
NHTSAs figures for large trucks are misleading because they include non-freight hauling
trucks smaller than tractor trailers, which
usually have higher crash rates than semis and
other large commercial trucks. Despite any
objections to terminology, however, the most
current data released by the Federal Motor
Carrier Safety Administration (FMCSA), also
shows an upward trend in the number of large
commercial truck and bus crashes, as well as
the number of people killed and injured in
those crashes.
FMCSA data show that commercial truck
and bus crashes have risen steadily since 2009,
as have the number of deaths and injuries
resulting from those crashes. According to
FMCSA records, in 2010, the number of deaths
in large truck and bus crashes was 3,686 and
278 respectively, up from 3,380 and 254 in
2009. In 2011, 3,757 people were killed in
large truck crashes and 283 in bus crashes. In
2012, 3,876 people were killed in commercial
truck crashes and 263 people were killed in
bus crashes. The number of injuries resulting
from truck and bus crashes followed the same
trend in those years.
In November, National Transportation
Safety Board (NTSB) representatives called for
an audit of the FMCSA after its investigations
of two large truck crashes and two commercial bus crashes revealed that the agency
knew that serious safety issued plagued the
operators, but failed to keep them off the
road. Our investigators found that in many
cases, the poor performing company was on
FMCSAs radar for violations, but was allowed
to continue operating and was not scrutinized
closely until they had deadly crashes, said
NTSB Chairman Deborah Hersman.
Julia Beasley, Kendall Dunson, Ben Baker,
Chris Glover and Rick Morrison, lawyers in
our firms Personal Injury/Products Liability
Section, focus on personal injury and product
liability cases involving 18-wheelers, heavy
trucks and buses. If you have a question about
these kinds of cases, one of these lawyers will
be happy to help. They can be contacted at
800-898-2034 or by email at Julia.Beasley@
beasleyallen.com; Kendall.Dunson@beasley
allen.com; Ben.Baker@beasleyallen.com;
Ch r is.Glover@ beasleyal len.com or R ick.
Morrison@beasleyallen.com.
Sources: National Highway Traffic Safety
Administration; Federal Motor Carrier Safety
Administration, Commercial Motor Vehicle Facts
March 2013; Federal Motor Carrier Safety
Administration, Motor Carrier Safety Progress Report
(as of June 30, 2013); Commercial Carrier Journal

www.BeasleyAllen.com

Asiana Pilot In California Crash May Have

Been Confused
It appears that an Asiana Airlines Inc. pilot,
nervous about making a manual landing in San
Francisco, inadvertently disabled a speed-control system before the plane crashed in July of
last year. Captain Lee Kang Kuk, a veteran
pilot with Seoul-based Asiana, was being
trained on the Boeing Co. 777-200ER widebody. Newly released documents show that
the pilot momentarily adjusted the power
without realizing the planes computers then
assumed he wanted the engines to remain at
idle. The information released by the U.S.
National Transportation Safety Board (NTSB)
is quite disturbing.
The documents, released at the start of a
hearing into the first U.S. fatal airline crash
since 2009, raise new questions about how
the auto -throttles on Boeing planes are
designed and whether pilots are adequately
trained on how to use them. The safety board
hasnt made a final decision on what caused
this accident. The pilot told investigators the
approach was very stressful, very difficult.
He wasnt accustomed to landing without an
instrument-landing system guiding him to the
runway, as pilots had to do in San Francisco
that day because of airport construction,
accordi ng to a n N TSB su m ma r y of h is
statement.
In most modes of operation, the speed-protection system on the 777 and several other
Boeing aircraft wont allow planes to slow too
much, protecting against accidents such as the
Asiana crash. The plane, on the verge of losing
lift because it was almost 40 miles (64 kilometers) an hour slower than its target speed,
slammed into a seawall short of the runway
and broke apart. Three teenage girls died in
the crash. In some combinations of auto-throttle and autopilot settings, such as during
Asiana Flight 214s approach to San Francisco,
the system becomes dormant, according to
NTSB documents.
There have been safety concerns from the
Federal Aviation Administration (FAA) and the
European Aviation Safety Agency. An FA A
study released in November 2013 found that
pilots growing reliance on automation in the
cockpit has led to occasional confusion and
new safety risks. Autopilots, automatic throttles and computerized navigation systems
have helped improve safety in recent decades,
the FAA study concluded. But the price for
that is occasional confusion because the
systems, which sometimes interact with each
other, may be improperly set or act in ways
that crews dont anticipate, the study said.
Pilots accustomed to having automation
handle mundane flying tasks, according to the

repor t, may a lso lose basic ma nua l

flying skills.
Source: Claims Journal

Low Airspeed Blamed For 2012 Crash In

Oregon
According to the National Transportation
Safety Board (NTSB), a plane crash that killed
four people near Veneta, Ore., in 2012 was
likely caused by the pilots failure to achieve
adequate airspeed and altitude to clear trees
shortly after takeoff. The probable cause
report says the plane was traveling slowly
after its throttle control had been shifted into
an idle position as the single-engine craft
made its initial climb.
Investigators found no evidence of mechanical malfunction in the crash that killed the
pilot and his three passengers. The four had
volunteered to work at the Oregon Country
Fair, the outdoor festival held each summer on
property just east of where the plane crashed.
This appears to be a classic example of pilot
error that resulted in a disaster.
Sources: The Register-Guard and Claims Journal

Plane-Crash Lawsuit Settled Against

Tupelo Airport Authority
The family of David Duncan, a pilot who
died in 2011 when a twin engine Cessna 310
he was flying crashed at the Tupelo airport,
has settled their lawsuit filed against the city
aviation authority. The terms of the settlement
are confidential. The pilots two daughters
filed suit in January in Lee County, Miss., alleging that the airport authority was guilty of
negligence.
David Duncan, 69, who was killed on Aug.
17, 2011, when the Cessna twin-engine airplane he had just piloted from Tupelo Regional
Airport suddenly banked to the left about 400
feet above the ground and crashed into a tree
near a residence. The plane had just been
worked on by Tupelo Aviation Unlimited, the
airports fixed base operator.
According to a report by the National Transportation Safety Board (NTSB), there was a
loose nut on a fuel line on the airplane. The
NTSB report says anti-tamper putty around
the nut was broken and that the broken putty
indicates that a nut has been loosenedpurposely or by causes like vibration. A mechanic
told NTSB investigators he had tightened the
nut to proper torque, but didnt have anti-tamper putty to put around it. The report concluded that the crashs probable cause came
from the mechanics failure to follow normal
procedures to install a fuel line to the planes

engine. This failure caused the engine to quit

and the plane to crash.
Duncans daughters, Dana and Lisa, filed
suit on Jan. 25, 2013, in Lee County, claiming
negligence on behalf of the airport authority.
In talking about the litigation, their lawyer
criticized Mississippis caps on these types of
lawsuit awards, saying the law treats victims
families like second-class citizens by putting
an arbitrary value on their loved-ones lives.
John Booth Forese, a lawyer with the firm
Fraese, Farese & Farese, based in Ashland,
Miss., represented the family. He did a very
good job in this case.
Source: The Northeast Daily Journal

Helicopter Crash Lawsuit Settled

A settlement has been reached in a lawsuit
filed by the family of a Tennessee soldier who
died in a helicopter crash inIraq. Before the
settlement can be final, it will have to get final
approval from ajudge. The family of Capt.
Marcus Ray Alford of Knoxville, Tenn., a
member of the Tennessee National Guard,
filed suit against government contractor Bell
Helicopter Textron Inc. and other companies
that supplied parts for the Kiowa OH-58D
Warrior helicopter that crashed in2010. Capt.
Alford and 25-year-old Chief Warrant Office 2
Billie Jean Grinder, another Tennessee resident, died in the crash. The Grinder family has
also filed suit and that case was still pending
at press time.
Source: Associated Press

Lawsuit Filed Against Florida Billionaire In

Bahamas Crash
A lawsuit asking $100 million in damages
has been filed against a Florida billionaire for a
2012 helicopter crash in the Bahamas that
killed a prominent tax lawyer. The widow of
Lance Valdez, the lawyer, filed the wrongful
death suit last month in Miami federal court
against real estate magnate Jeffrey Soffer. He
owns the Fontainbleau Hotel in Miami Beach
and is CEO of the Turnberry Associates real
estate empire. The lawsuit alleges that Soffer
was piloting the helicopter in November 2012
when it crashed during a landing attempt at
Bakers Bay Golf & Ocean Club on Great
Guana Cay, killing Valdez.
Soffer was licensed at the time to fly fixedwing aircraft, but not helicopters, the lawsuit
says. Its alleged that he was flying the aircraft
even though there was an experienced helicopter pilot on board. The lawsuit states:
He (Soffer) was recklessly flying and
controlling the helicopter at the time of

the helicopter crash without an up-todate and valid helicopter pilots license.
S o f fe r a n d fo u r o t h e r s s u r v i v e d
the crash.
Just before the ill-fated landing attempt, the
lawsuit says that Soffer flew over a golf course
and pointed out his house and yacht. The
helicopter was a few feet off the ground when
it suddenly encountered wind turbulence,
jerked back some 75 feet and crashed with the
tail section striking first, according to the
lawsuit. The lawsuit claims Soffer and others
covered up the fact that he was at the controls. It was reported that Valdezs widow,
Daria Pastouhkova Gogoleva, and their three
minor children would be limited to a $2
million liability insurance payment. Otherwise, Soffer would be held personally liable
for a ny d a m a ge s a w a r d e d mor e t h a n
$2 million.
The lawsuit alleged that a still-grieving
Gogoleva was pressured to sign a release
stating that she would not take legal action
against Soffer or anyone else aboard the helicopter. It says she was falsely told that the
licensed helicopter pilot, David Pearce, was
the one at the controls when it went down.
The lawsuit says:
Despite being responsible for the loss of
his friend, Soffer repeatedly lied to and
intentionally deceived Daria about his
involvement in the crash in an effort to
persuade her to pursue an insurance
recovery rather than a claim
against him.
This should be a most interesting lawsuit
because of the parties and the facts alleged,
which, if true, would clearly inflame a jury.
Stay tuned!
Source: Claims Journal

NHTSA Tightens Crash Test Advertising

Rules
The National Highway Traffic Safety Administration (NHTSA) is tightening the guidelines
that control how automakers use government
crash tests in advertising. It appears that the
changes made by the FDA were aimed at Tesla
Motors, a company that has been in the news
lately. Tesla has promoted its electric Model S
as the safest car in America, saying it earned a
5.4-star rating from the government.
The new guidelines say that NHTSA doesnt
give ratings higher than five stars. The agency
says automakers who claim ratings higher
than five stars are misleading the public. Companies that dont follow the guidelines could
see buyer alert warnings from the government. Violaters could also be kicked out of the

www.JereBeasleyReport.com

21

ratings program or be referred to other agencies for further, unspecified action.

Source: Claims Journal

Jury Returns A $10 Million Verdict In Fatal

Crossing Crash Suit
An Oklahoma state court jury on Dec. 15
returned a verdict against Burlington Northern Santa Fe Railway Co. The case involved
the death of a man who was struck by a train
while crossing tracks in his vehicle. The jury
found BNSF to be 65 percent responsible for
the fatal crash, and apportioned 35 percent
responsibility to the victim. A total of $14.8
million was awarded. BNSF will be responsible to pay $2.6 million. Nye was killed when a
BNSF train struck his Jeep on Dec. 29, 2008.
The crash occurred at about 5 p.m. and the
main issue was whether vegetation obscured
Nyes vision along the gravel road that crossed
the tracks as well as on the right of way of the
tracks themselves. The vegetation would have
made it hard for Nye to see the train and vice
versa. The lawsuit also alleged the train crew
didnt blow the horn as they were supposed
to. That was disputed by BNSF. A passenger in
Nyes Jeep testified that he didnt hear a horn.
The trains event recorder did not show a horn
being sounded. But that also was disputed by
the railroad.
The family alleged that BNSF should have
installed f lashing lights and gates to adequately warn the public of all approaching
trains. The railroad argued it shouldnt have to
install those safety features at that particular
crossing. The family said it brought this case
in order to hold BNSF accountable and hopefully prevent any future tragedies at dangerous railroad crossings. Nye was a football
coach and science teacher for Sulfur High
School in Sulfur, Okla.
Nyes family is represented by Grant L.
Davis and Thomas C. Jones of Davis Bethune
& Jones, a firm located in Kansas City, Mo.
They did a very good job in the case which
was tried in the Pontotoc County District
Court in Ada, Okla.
Source: Law360.com

New Mexico Judge Awards Estate $80

Million In Suffocation Death
A judge has awarded nearly $80 million to
the estate and family of a woman who suffocated in 2002 when her car was buried by
sand after being struck by a tractor-trailer
truck. District Judge Shannon Bacon entered
the judgment in favor of the estate of Laura
Miera and the 48-year-old womans husband

22

and daughter. The judgement includes $60

million of punitive damages.
Judge Bacon entered the judgment against
Albuquerque Redi-Mix and another company
and owners, John and Barbara Quintana. It
was an Albuquerque Redi-Mix truck that
crashed into Ms. Mieras car after exiting an
interstate highway. The Quintanas had denied
violating any state or federal regulations and
said the accident and injuries it caused
resulted from the action of others.
Source: Albuquerque Journal

defendant, Silva Trucking, to pay that amount

to 56-year-old Debra Hackett. Ms. Hackett was
driving an 18-passenger bus on Highway 12
about 30 miles south of Sacramento when she
collided with a tractor-trailer unit coming
from the opposite direction that had jackknifed in front of her.
Ms. Hackett was made a paraplegic. She suffered skull and facial fractures and a traumatic
brain injury in the crash. Her husband was
awarded $3 million by the jury. Silva Trucking, which employed the truck driver, didnt
dispute liability. As a result, the trial was held
only to determine the amount of the verdict.

Lawsuit Settled Over 2007 Connecticut Van

Drowning

Sources: Claims Journal and The Sacramento Bee

The families of a woman and three children

who drowned in 2007 when a van rolled into
a pond in Bridgeport, Conn., have settled their
lawsuit against the dealership that sold the
van. The van was parked when it began rolling
down a hill. Michelle McIntosh ran after the
van, but couldnt stop it before it went into the
water. She drowned, along with the children
inside the van. An investigation determined
one of the children had shifted the transmission into drive.
In 1999 most car companies had installed a
safety device to prevent the transmission from
being shifted into drive without the brake
being depressed. But the 1999 Plymouth
Grand Voyager in this case was sold without
that device. The children who died were Ms.
McIntoshs son; David Jr., 2; Jayden Wilson, 6,
her nephew; and 2-year-old Julia Boyd, the
daughter of a family friend.
The terms of the settlement with the Loman
Auto Group of Woodbridge, N.J., are confidential. The Plaintiffs had offered to settle the
case for $15.5 million. There was no lawsuit
filed against the car company, because Plymouth had gone bankrupt. The dealership that
sold the van was sued. After the drowning
deaths, the city installed a rail barrier along
the road above the pond where the accident happened.
William M. Bloss, with Koskoff,Koskoff &
Bieder, in Bridgeport, Conn., represented the
McIntosh family. Peter M. Dreyer, with Silver
Golub & Teitell in Stanford, Conn., represented the Boyd family. Each of these lawyers
did a very good job in this very sad case.

Lawsuit Filed Against Toyota

Source: The Connecticut Post and Claims Journal

Jury Awards Woman $31.9 Million In

California Bus-Truck Crash
A ju r y i n Sacr a mento Cou nt y, Ca l i f.,
awarded $31.9 million to a woman who was
paralyzed and suffered brain damage in a 2010
traffic collision. The verdict requires the

www.BeasleyAllen.com

A family involved in a triple fatal crash that

happened two years ago has filed suit against
Toyota, saying the carmakers FJ Cruiser
lacked a proper impact-management system,
which caused it to burst into f lames. The
head-on crash occurred March 22, 2011, about
three miles west of Hesperus on U.S. Highway
160 near Durango, Texas. Leslie McDonald
and her son Kellen McDonald, then 12, each
suffered burns to 60 and 70 percent of their
bodies. Mrs. McDonalds husband, Robert
McDonald, and their other son Jaden, 10, were
killed in the fiery crash.
David James Hooper, 51, also died in the
crash. Hooper, who was under the influence
of painkillers at the time of the accident,
drifted across the double-yellow line and collided head-on with the 2008 Toyota FJ Cruiser.
Both vehicles caught fire. Its alleged in the
complaint filed in federal court that a design
flaw caused a catastrophic failure of the
vehicles fuel-storage management and delivery systems. More specifically, its alleged that
the 2008 FJ Cruisers impact-absorbing body
structure and frame crumple zones did not
operate properly and failed to provide the
McDonald family with a reasonable degree of
protection.
Its alleged that when the two vehicles
crashed head-on, the pickup trucks drive
shaft penetrated the Toyota vehicles fuel
system, causing vapor and liquid gasoline to
come into contact with a number of ignition
sources and catch fire. Its alleged further that
Toyota had knowledge of the risk or should
have had knowledge of the risk. The lawsuit
seeks damages for the sur viving family
members, who have undergone great mental,
physical and emotional suffering. Those Plaintiffs allege they also have suffered permanent
disability, have incurred extensive medical
expenses, will continue to have expenses into
the future and have experienced lost earnings.

Hooper was traveling westbound in a

pickup truck when his vehicle crossed the
center line and entered the eastbound lane.
Both cars were traveling about 65 mph, the
posted speed limit, and collided almost
directly head-on. Both vehicles caught fire and
burned to their shells in the middle of the
highway. Leslie McDonald and her son Kellen
were able to exit the vehicle. Mrs. McDonald
was on fire, and passers-by helped stabilize
her and her son, according to law enforcement. Richard Hood, a Denver lawyer with
Andrus Hood & Wagstaff, represents the Plaintiffs in this case.
Source: DurangoHerald.com

Couple Files Lawsuit Against Perry-Based

Golf Cart Dealership
A Florida couple has filed a lawsuit against a
Perry-based golf cart dealership after the wife
was left partially disabled following an accident during the Thanksgiving holiday week
two years ago. Danielle and John Pfeil of
Arcadia, Fla., filed the lawsuit in federal court
in Macon against Mikes Golf Carts, a company
located in Perry, Fla. Danielle Pfeil was seriously injured in the golf cart accident that happened on Nov. 25, 2011, at Jewel Mi nt
Plantation in Washington County. John and
Danielle were gathered at a family reunion at
the plantation for the holiday. Incidentally,
John Pfeils parents manage the plantation.
The lawsuit alleges a golf cart modified by
Mikes Golf Carts malfunctioned, resulting in
the golf cart overturning on Danielle Pfeil,
who was driving it. The lawsuit states the
front leaf spring of the modified golf cart
snapped under normal driving conditions.
Mrs. Pfeil was trapped and her leg crushed
under the golf cart when it rolled over. She
suffered severe and permanent injuries. Its
alleged that the land, roadway or terrain did
not contribute to the golf cart overturning.
Mrs. Pfeil says her medical bills already
have exceeded $375,000, and that she continues to incur medical expenses and to suffer
from a partial disability. Both compensatory
and punitive damages are requested in the
complaint. Mikes Golf Carts, in its response to
the suit, says its not responsible by act or
omission for the accident or for any of the
da mages a l leged by the Plai nti f fs. T he
response also alleges the accident was the
result of Mrs. Pfeils failure to exercise ordinary care for her own safety. Jimmy Jordan, a
lawyer with the firm Adams & Jordan, located
in Macon, Ga., represents the Plaintiffs in
this case.
Source: Macon.com

List Of 52 Bus Companies That Have Been

Shut Down Published
Federal bus safety regulators have shut
down 52 companies in what they describe as a
major nationwide crackdown on unsafe carriers. A state-by-state list of 49 companies that
were shut down by the Federal Motor Carrier
Safety Administration (FMCSA) is now available. Interestingly, none of the companies on
the agencys list have reopened. There is also a
list of three companies that the Federal Motor
Carrier Safety Administration shut down, but
have reopened. Those companies took corrective action and were allowed to remain in
business. The lists are available from the
FMCSA. Our firm also has the lists and will
furnish them on request.
Source: Federal Motor Carrier Safety Administration

New York Boat Pilot Was Drunk In Deadly

Crash
As usual, during the holidays there were a
number of alcohol-related vehicle crashes that
caused untold misery for families and friends
of victims who were injured or killed in the
crashes. Most all of the crashes involved cars
and trucks and drunk drivers. But alcohol can
also be a real problem on our waterways.
Sometimes we forget that operators of boats
and alcohol dont mix any better on the water
than they do on our highways. We wrote in a
previous issue about t wo fatalities that
occurred in New York on the Hudson River.
A powerboat pilot who was involved in the
Hudson River crash that killed a bride-to-be
and her fiancs best man was drunk at the
time. A criminal indictment has been made
public that revealed the pilot was drunk. The
indictment was against Jojo John, the pilot,
who was among six people on the 19-foot
Stingray when it crashed into a construction
barge on the night of July 26. But it is being
claimed by lawyers representing the pilot that
poor lighting on the barge, not the pilots
intoxication, caused the crash.
The crash threw two occupants, Lindsey
Stewart and Mark Lennon, into the river and
they both drowned. The pilot and three
others, including the groom-to -be, were
injured. Sadly, Ms. Stewarts wedding was two
weeks away. Among the 18 charges in the
indictment are vehicular manslaughter, criminally negligent homicide, vehicular assault
and operating a vessel under the influence of
alcohol or drugs. District Attorney Thomas P.
Zugibe was absolutely correct when he said:
Drinking and driving is a lethal mix, as it
appears to have been in this incident, which
left several families shattered. Lab tests
showed Johns blood-alcohol content was 0.15

percent, nearly twice the legal level for

boating. Tests also found cocaine metabolites, which are substances produced after
the body breaks down cocai ne, i n
Johns system.
The parents of both victi ms also are
blaming the lighting on the barge, which was
part of pre-construction activity in preparation for the building of a new bridge, as being
the cause of the crash. The parents issued a
statementthe day before Ms. Stewarts
funeralsaying they had spoken to survivors
and none of them saw the barge, and that
they did not brace for impact and could not
identi f y what they had h iteven a f ter
impact. Investigators have said they are
looking into whether the barge was properly lighted.
It was reported that the Coast Guard and
the state Thruway Authority, which is building the bridge, said the barge was properly
lighted. Interestingly, it has been reported that
the Thruway Authority added lighting after
the crash. We must make sure that people are
made aware that drinking and driving on our
waterways can result in deaths and serious
injuries. The existing laws must be enforced
and weak laws on the subject made stronger.
The Hudson River incident is a good example
of the tragic consequences that can occur
when folks mix alcohol and operating a boat.
Source: Insurance Journal

XVI.
HEALTHCARE
ISSUES
FDA Pushes To Curb Antibiotic Use In
Livestock
The U.S. Food and Drug Administration
(FDA) has advised manufacturers to stop indicating certain antibiotics for use as a growth
aid in animal feed. The agency said the effects
the practice can have on bacteria are harmful
to human health. In final guidance to the animal-drug industry, the agency also recommended that drugmakers require veterinary
oversight for the use of the antibiotics to treat
or prevent disease in animals. Companies are
asked to make the changes voluntarily, as the
guidance is not legally binding.
P u b l i c h e a l t h a d vo c a t e s h a v e l o n g
expressed concern that the antibiotics used by
producers to make cattle, poultry, hogs and
other animals grow faster are making bacteria
more resistant to treatment for illnesses and
infections in people. FDA Deputy Commissioner Michael Taylor said in a statement:

www.JereBeasleyReport.com

23

Implementing this strategy is an important step forward in addressing antimicrobial resistance. The FDA is
leveraging the cooperation of the pharmaceutical industry to voluntarily
make these changes because we believe
this approach is the fastest way to
achieve our goal.
The FDA is currently locked in a battle with
the Natural Resources Defense Cou nci l
(NRDC) and other consumer groups about
whether it should enforce a 1977 plan to pull
certain antibiotics from the market.
The groups sued the FDA in 2011 after the
agency formally shelved the plan, which was
never implemented. A New York federal court
ruled in August 2012 that the FDA must begin
proceedings to withdraw approval of the antibiotics, but that the agency could follow its
ow n propos ed t i mel i ne. T he F DA h a s
appealed that ruling to the Second Circuit
Court of Appeals. Companies are supposed to
notify the FDA as to whether they will follow
the guidance within three weeks. They would
then have three years to meet its tenets.
Avinash Kar, a lawyer for the NRDC, called
the guidance an early holiday gift to industry and a hollow gesture. He said:
FDA has essentially followed a voluntary approach for more than 35 years,
but use of these drugs to raise animals
has increased. Theres no reason why
voluntary recommendations will make
a difference now, especially when FDAs
policy covers only some of the many
uses of antibiotics on animals that
are not sick.
The Animal Health Institute, a trade group
for veterinary-drug makers, said it supported
the policy. It is important for consumers to
know that within three years, all uses of medically important antibiotics in animal agriculture will be only for therapeutic, or targeted,
purposes under the supervision of a licensed
veterinarian, the group said in a statement.
The drugs that fall under the guidance include
amoxicillin, several penicillins and other antibiotics the FDA considers important for treating human infections.

XVII.
ENVIRONMENTAL
CONCERNS
U.S. Production Of A Dangerous Chemical
Has Stopped
According to correspondence between the
U.S. Environmental Protection Agency (EPA)
and DuPont, the manufacture of perfluorooctanoic acid (PFOA) recently came to a halt
two years ahead of the 2015 deadline agreed
to i n the 2010 /2015 PFOA Stewardsh ip
Program. It appears that DuPont, the sole
manufacturer of PFOA in the U.S., stopped
production, use, and import of the dangerous
chemical in June of this year. The news that
this compound will not be manufactured in
t h e U. S . a n y m o r e i s a v e r y p o s i t i v e
development.
PFOA is a chemical compound in the perfluorocarbon (PFC) family. It was used in hundreds of industrial and commercial products,
including non-stick cookware, waterproof
clothing, fire retardants, and insulation for
electrical wiring and computer chip processing. PFCs are dangerous because they have
been linked to pregnancy-induced hypertension and preeclampsia, testicular cancer,
kidney cancer, ulcerative colitis, thyroid
disease and high cholesterol. These chemicals
persist in the environment for long periods of
time and have been found in blood samples of
the general popu lation i n the U.S. and
throughout the world.
Our team of lawyers in the Toxic Torts
section at Beasley Allen has litigated cases in
Minnesota, New Jersey and Alabama in efforts
to curtail PFC contamination. The fact that
PFOA will no longer be manufactured, used,
or imported in the U.S. is an offshoot of their
hard and dedicated work. If you need additional information on this subject, contact
Rhon Jones or Brantley Fry, lawyers in our
Toxic Torts Section, at 800-898-2034 or by
email at Rhon.Jones@beasleyallen.com or
Brantley.Fry@beasleyallen.com.
Sources: Bloomberg BNA Daily Environment Report

Source: Law360.com

$1.1 Billion Verdict Against Lead Paint

Companies
A state Judge in Santa Clara County, Calif.,
has ordered three lead paint companies to pay
$1.1 billion into a fund to be used to remove
the lead in hundreds of thousands of homes in
10 cities and counties in California. The
verdict came after 13 years of litigation and
five weeks of trial. Judge James P. Kleinberg
said that lead in paint, for which there is no
24

www.BeasleyAllen.com

safe level of exposure for children, results in

thousands of children presently and potentially victimized by this chemical. The counties are San Francisco, Alameda, San Mateo,
Santa Clara, Los Angeles, Monterey, Solano
and Ventura, and the cities are Oakland and
San Diego.
Mary Alexander, the lead lawyer who tried
the case for the cities and counties, said that
this verdict will prevent lead poisoning of
children from paint in their homes. Clearly, it
was a great victory for the people of California. The Judge ordered Sherwin-Williams,
ConAgra and NL Industries, formerly known
as the National Lead Co., to pay $1.1 billion to
establish a fund that the state will administer
to remove lead paint from the homes in the 10
cities and counties. There are 4.7 million
homes built before 1978 when lead paint was
banned, of which 52 percent have lead paint.
Each year, thousands of children younger
than 6 years of age are lead poisoned, most of
them exposed to lead through lead paint in
their homes. Lead paint deteriorates over time
leaving paint chips and dust that gets on
floors, window sills and toys to which young
children are exposed. Lead poisoning causes
damage to the brain and nervous systems of
children and it is permanent and irreversible.
The impact is particularly great in minorities
and children living in poor housing. An internal industry document by Sherwin Williams in
1900 described the paint ingredient white
lead as a deadly cumulative poison.
In 1909, a California Supreme Court case
held that ConAgra was responsible for lead
poisoning in its own lead plant employees.
Despite this knowledge the companies continued to promote the sale of lead paint in the
California cities and counties. Ms. A lexander said:
T his decision holds the companies
accountable for promoting and selling
lead paint for use in homes despite
knowing, as far back as the 1890s, that
it was highly toxic, especially to young
children. This landmark decision recognizes the manufacturers must be held
responsible and pay to clean up the
hazard they created in homes.
Other lawyers for the Plaintiffs were Cotchett, Pitre and McCarthy; Motley Rice; the Law
Offices of Peter Earle, and Danny Cho, Assistant County Attorney for Santa Clara. Danny
Chou described the abatement ruling as a
huge victory for children in this jurisdiction.
These lawyers did a tremendous job in this
case. I ag ree with thei r assessment of
its impact.
Source: Law360.com

XVIII.
AN UPDATE ON
ARBITRATION

Judge Refuses To Send Samsung Defective

Phone Class Action To Arbitration

Hyundai Takes Arbitration Out Of Their

Warranty Contracts
Hyundai Motor America has dropped a
policy requiring that some warranty coverage
disputes between customers and the factory
be settled through arbitration. In other words
the carmaker is taking arbitration clauses out
of the contracts. Until last month, Hyundai
included the clause in its new-vehicle warranty contract, which also gave customers the
ability to opt out of the arbitration clause
within 90 days of a new-vehicle purchase. A
report about the unfairness of arbitration
clauses appeared in the Dec. 6 issue of The
New York Times. Shortly after that article was
published, Hyundai issued a statement saying
the policy would be dropped. So both the
Times for writing the article and Hyundai for
responding to it in the right manner are to be
commended for the result, which is good for
Hyundai customers.
The Hyundai arbitration policy had been in
place since 2006. In a statement to the Times
in response to its article, Hyundai said it was
dropping the policy because we dont want
people to be misled and think we dont stand
behind Americas best warranty. Proponents
of binding arbitration clauses in contracts
common fixtures in everything from mobile
phone plans to credit card agreements to
medical insurance policiesclaim arbitration
is a faster, less expensive alternative to litigation for settling disputes. Thats as far from the
truth as anything you can imagine. Forced
arbitration favors Corporate America, hurts
consumers and is totally anti-consumer in
every respect.
In fact, arbitration, forced on a consumer,
limits that persons options in pursuing a
grievance with a company. The clauses typically require consumers to waive their right to
take a company to courtgive up their constitutional right to a jury trialand instead settle
grievances through a process overseen by
private firms hired by the company. Hyundai
says it has used arbitration to settle warranty
disputes about 10 times since 2006. A spokesperson says that arbitration has never been
used by Hyundai to handle disputes involving
product liability or personal-injury claims.
Hopefully, both statements are factually
correct. In any event, Hyundaifor whatever
reasondid the right thing when it removed
the arbitration clauses in this instance.
Source: Autonews.com

A Texas federal court has refused to send a

putative class action against Samsung to arbitration. The suit claims that Samsung didnt
make customers whole on faulty Galaxy S
phones. U.S. District Judge Sidney A. Fitzwater
found that clauses in the customers wireless
carrier contracts did not include the phones
maker. Judge Fitzwater ruled that Samsung
could file a supplemental appendix in support
of moving the suit to arbitration, but denied
the motion on the grounds that the customers
suing the company had arbitration agreements
with Spr i nt a nd Ver izon, but not with
Samsung. Judge Fitzwater wrote:
It is not necessary for plaintiffs to rely
on the terms of their service agreements
with Sprint Corp. and Verizon Wireless
to assert their claims against Samsung,
and plaintiffs claims are not intimately
founded in and intertwined with these
contracts.
Judge Fitzwater also pared the putative
classs claims, trimming out several breach of
warranty accusations on the grounds that the
customers had turned to their wireless carriers and not Samsung itself to fix their phones
when problems arose Galitsky, along with
two other lead Plaintiffs, filed suit in California in June 2012. Samsung successfully moved
the suit to federal court in Dallas. It was at
least the third such class action the Plaintiffs
had attempted over the Galaxy S phones.
Galitsky said in the suit that his phone
started failing only a few months after he
bought it. The phones freeze, shut down and
power off randomly in standby mode, rendering them unusable, the Plaintiffs contended.
Galitsky said he contacted Samsung about the
defect when he was havi ng a di f ferent
problem with the phone and that Samsung did
nothing to fix it. He says he had a second
problem, also unrelated, and again told the
company about the shutdown issue.
Galitsky is still trying to use the Galaxy S, a
fact that, Samsung argued, should preclude
him from bringing claims of the products
unmerchantability to court. But Judge Fitzwater disagreed, saying that because Galitsky has
to frequently remove the phones battery to
reset it, it renders the phone useless for its
general purpose.
Source: Law360.com

Hearings Address The Evils Of Forced

Arbitration
The Consumer Financial Protection Bureau
(CFPB) has been conducting field hearings

and studies addressing the subject of forced

arbitration. The arbitration clauses forced on
consumers in most all types of transactions
have been creating problems for the past two
decades. The following is a statement from
American Association for Justice (AAJ) President Burton LeBlanc relating to this practice:
Forced arbitration puts Americans
financial security at risk. By removing
access to justice, it allows Wall Street
banks to evade accountability and
grants them a license to steal and
violate the law. As the CFPB study indicates, the ultimate result of forced arbitration is a get-out-of-jail-free card for
Wall Street. This demonstrates that
forced arbitration is nothing more than
a way to eliminate Americans access
to justice.
Over 17,000 consumers have signed a
petition calling on the CFPB to revoke
Wall Street banks license to steal by
stopping the used of forced arbitration
clau ses in financial products . We
applaud the CFPB for taking the first
steps to protect Americans financial
security. If banks are not accountable,
all Americans financial security is at
risk. Accountability must be restored.
The Association has worked long and hard
in the fight against forced arbitration. Hopefully, this consumer issue will be addressed in
political races this fall, especially those involving congressional seats. I believe that making
forced arbitration an issue will be well
received by the voters around the country.
Source: AAJ News Release

Arbitration In Nursing Homes

Ben Locklar, a law yer in our Personal
Injury/Products Liability Section, successfully
defended an attempt to have a nursing home
case submitted to binding arbitration. Ben
oversees the nursing home litigation handled
by our firm. Bens client had filed a wrongful
death lawsuit in the Circuit Court of Marshall
County, Ala. His clients mother had been a
resident in Barfield Healthcare, Inc., the operator of the nursing home.
The nursing home filed a motion to stay the
proceedings, along with a motion seeking to
compel our clients to submit their claims to
binding arbitration. Ben opposed the nursing
homes motion. The basis of his objection was
that the nursing home resident, at the time she
was admitted to a locked-psychiatric facility at
the facility, was not competent to make her
own medical decisions and was not competent to enter into binding contracts. Many

www.JereBeasleyReport.com

25

years before, the resident had made a responsible decision by appointing her son as her
attorney-in-fact under a durable power of
attorney. The trial court agreed with Bens
initial request to conduct limited discovery in
the case on two primary issues:
whether the resident was competent at the
time of her admission to the facility; and

decision i n th is regard was completely

correct. We will now move forward with a
trial by jury on behalf of our clients. Ben did a
very good job for our clients in this case. If
you need more information, contact Ben
Locklar at 800-898-2034 or by email at Ben.
Locklar@beasleyallen.com.

whether a family member who had not

been legal ly author ized to enter into
binding agreements on the residents behalf
could bind the resident and her estate to
arbitration and waive the residents Constitutionally protected right to a trial by jury.

XIX.
THE CONSUMER
CORNER

A Marshall County psychiatrist who had

previously treated our clients mother for
dementia with probable Alzheimers and
behavioral disturbances testified that the
patient was not competent. The nursing
home assistant administrator conceded that
the lock-up unit was for patients with cognitive deficits and conceded that the resident
was not asked to sign any of the legal documents. The residents adult children also testified that their mother was not competent
when they admitted her to the facility, that the
son had durable power of attorney over his
mothers affairs, and that this information was
related to the nursing home prior to and at the
time of admission of their mother to that
facility.
The nursing home admitted that it knew
that the son had the power of attorney over
his mothers affairs and permitted the residents daughter to sign and execute all admiss ion a g r e e me nt s, i nc lu d i ng a d i spu t e
resolution agreement. The nursing homes
admission documents also reflected that the
son had a durable power of attorney over his
mothers legal affairs.
The Supreme Court of Alabama has made it
clear that incompetent adults (and minors) are
entitled to a heightened level of protection.
When its apparent that a nursing home resident (or any other patient) is not competent to
make a decision at the time of admission,
other family members may not bind that resident or his or her estate to binding arbitration
unless the person who signs the arbitration
agreement is the residents attorney-in-fact or
legally appointed guardian.
For years, lawyers at Beasley Allen have
been at the forefront of the arbitrative battle at
both the state and national levels. Its unconscionable that a family can be compelled to
make a decision to place their loved one into a
nursing home facility, a decision that in and of
itself is heart-wrenching, and then be told that
they can only put their loved one in the facility if they agree to give up a persons Constitutional right to a trial by jury. The trial courts

Volcker Rule Will Ban Banks From Trading

For Their Own Gain

26

Last month, after some last-minute compromises, federal regulators approved the final
version of the Volcker Rule. This is a centerpiece of the Dodd-Frank Act, which seeks to
rein in risk-taking on the part of financial institutions five years after the financial crisis and
too-big-to-fail bank bailouts. The rule was
drafted in 2011 by then-Federal Reserve Chairman Paul Volcker. Its mission is to reduce the
chance that banks will put federally insured
depositors money at risk by banning banks
from trading for their own gain, known as proprietary trading.
Passage of the Rule was supported by Treasury Secretary Jacob J. Lew, who told regulators the deal was too important to delay and
called for its passage by the end of 2013. President Obama also urged for passing of the rule.
Both met with 86 -year-old Volcker several
times prior to the measure passing. This vote
underlines the strength of Dodd-Frank and is
part of the most sweeping overhaul of bank
regulation since the Great Depression.
In fact, the Volcker Rule and the DoddFrank Act are attempts to compromise from
reinstating the Glass-Stegall Act, otherwise
known as the 1933 Banking Act, which was
established to restore consumer confidence in
banks after the Great Depression. Glass-Stegall
prevented commercial banks from owning
affiliates that underwrite and trade securities.
In 1999, Congress passed the GrammLeach-Bailey Act, which repealed part of
Glass-Stegall, deregulating banks and removing the firewall between commercial and
investment banking. This deregulation is
viewed as the cause of the 2008 financial
crisis, a position that was ultimately supported
by both Democrats and Republicans.
However, those in opposition to the Volcker
Rule worried it would hamper banks flexibility, holding up trades that might be critical to
their financial health and to the health of the
economy. They argued that the recent finan-

www.BeasleyAllen.com

cial crisis was due to banks risky mortgage

lending more so than trading. In fact, support
of the Volcker Rule ultimately split along partisan lines, with Republicans largely expressing
concern the rule could possibly hamper economic growth.
But the Volcker Rule found support in 2012
from an unlikely source: JPMorgan. When the
financial giant admitted that faulty derivative
investments eventually cost its clients more
than $6.2 billion in losses, it underscored the
dire need for regulatory oversight. The final
version of the Volcker Rule requires banks to
prove to regulators annually that they have a
process in place to establish, maintain,
enforce, review, test and modify programs
that will monitor their compliance with the
rule. However, it does grant some concessions
to Wall Street. Among these is a delay in the
implementation of the rule to July 2015. It is
expected that banks will use the time in the
interim to look for loopholes.
Sources: New York Times and Insurance Journal

Safety Agency Considering Whether To

Expand Hyundai Air Bag Recall
U.S. safety regulators are looking into
whether a Hyundai Elantra recall should be
expanded. The National Highway Traffic
Safety Administration (NHTSA) opened a
recall query to determine if 52,000 Elantra
Touring cars from the 2009 through 2012
model years should be recalled. In March,
Hyundai recalled more than 186,000 Elantra
compacts from the 2011 to 2013 model years
because a ceiling support bracket can come
loose when side air bags inflate. The company
says in one case a bracket cut a drivers ear.
NHTSA says that the 2009-2012 Elantra
Touring models have a bracket design thats
similar to the recalled cars. In the recall,
dealers were to install industrial adhesive
strips to keep the brackets in place. The
bracket design was changed in cars built after
March 5, 2013. Hyundai says it will cooperate
with the investigation.
Source: Claims Journal

FDA Revises Equivalence Criteria For

Generic Drug Approval
The U.S. Food and Drug Administration
(FDA) has revised its recommendations for
how generic-drug makers can prove that their
products are released into the human body in
the same manner as brand-name counterparts,
issuing high-level guidance covering an array
o f appr o a c h e s. I n it s d r a f t g u i d a nce
announced in November, the FDA spelled out

general study characteristics to determine socalled bioequivalence. That refers to how fast
and how much of an active ingredient shows
up at the area of a persons body where its
intended to work. Separate guidance will be
coming soon to describe studies of bioequivalence for new brand-name drugs, with regulators saying it was time to split the matters up.
The guidance said FDA has determined that
separating guidances according to application
type will be beneficial to applicants.
In one respect, the guidance is fairly
general, as it doesnt cover specific products.
The FDA has produced individual guidances
covering appropriate study structures for
1,100 distinct medicines. But there is also substantial detail on the most common study
parameters and different ways to analyze
certain categories of drugsinformation that
can supplement the product-specific guidances. For example, a description of typical
study design talks about when patients can
drink water and eat food, whether multiple
doses can be supplied and how much time
should separate doses of generic and brandname products to ensure theres no overlap.
The guidance also addresses different
dosage forms, such as elixirs, chewable tablets
and extended-release capsules. It also talks
about how to determine whether alcoholic
beverages will alter the manner in which a
drug is released and its functions. One section
of the document deals with complex drug
substances, for which bioequivalence is more
difficult to ascertain. The FDA noted:
Some or all of the components of these
complex drug substances cannot be
fully characterized with regard to
chemical structure and/or biological
activity. Rather, we recommend that
app li c ant s ba s e [ b io equiva l e n c e ]
studies on a small number of markers
of rate and extent of absorption.
For most products, drugmakers will be
expected to use so-called pharmacokinetic
studies that look at the speed and extent of
drug absorption in a patient, but in certain circumstances, it may be acceptable to perform
in vitro testing or extrapolate results based on
therapeutics results of a clinical trial, according to the FDA.
Sources: Jeff Overley and Law360.com

replacement devices. The FDA issued a safety

communication on HeartStart automated
external defibrillator products made by
Philips Medical Systems, part of the medical
device unit of Koninklijke Philips NV. The
advisor y follows a massive recall of the
devices initiated by Philips in 2012, covering
around 700,000 devices.
The FDA warned that the devices may falter
when needed most and fail to deliver a potentially life-saving shock during a cardiac emergency, but said that until a replacement could
be obtained, even a potentially defective
device was better than none at all. Steve Silverman, FDA Agency compliance chief, said in
a statement:
The FDA advises keeping all recalled
HeartStart AEDs in service until you
obtain a replacement from Philips
Healthcare or another AED manufacturer, even if the device indicates it has
detected an error during a self-test.
Despite current manufacturing and
performance problems, the FDA considers the benefits of attempting to use an
AED in a cardiac arrest emergency
greater than the risk of not attempting
to use the defibrillator.
The recalled devices include defibrillators
made between 2005 and 2012 under the
names HeartStart FRx, HeartStart HS1 Home,
a nd Hea r t St a r t HS1 OnSite. T he F DAs
announcement follows Philips Nov. 19 safety
notice informing consumers that a faulty electrical component could prevent proper functioning of the defibrillators.
The FDA urged consumers to contact
Philips immediately about a replacement, and
to inspect their defibrillators and follow
certain additional steps in the event of an
emergency that requires use of the devices.
The agency had previously warned Philips
about the HeartStart defibrillators, saying in a
March 2011 letter that the devices did not
con form with FDA regulations and that
Philips failure to correct defects had led to at
least one fatality. The FDA said it had received
87 complaints about the products since
January 2008, and outlined problems with the
products:
missing magnets;
malfunctioning in high-humidity environments; and

FDA Warns Of Possible Philips

Defibrillator Failure

batteries that failed to fit their components.

The U.S. Food and Drug Administration

(FDA) warned that hundreds of thousands of
Philips Healthcare defibrillators may fail in an
emergency. The agency urged consumers to
take additional precautions while awaiting

The FDA reported that adefibrillator that

failed to shock a pulseless ventricular tachycardia had led to a death. In 2009, the FDA
warned that its inspectors had found multiple
quality assurance violations at Philips Massachusetts plant. According to the agency, the

company had failed to establish adequate procedures for reviewing complaints and did not
report events that might have caused death or
serious injury.
The most recent warning came as the FDA
was pushingto tighten the approval process
for emergency defibrillators in an effort to
address widespread device failures during
cardiac arrests. This was because of dozens of
recalls and 45,000 cases in the past eight years
in which defibrillators didnt perform as
intended. In a statement, the FDA said:
Each year, nearly 300,000 Americans
collapse from sudden cardiac arrest.
When normal heart rhythms are not
restored quickly, sudden cardiac arrest
can cause death. The FDA will continue
to closely monitor all AED manufacturers quality system practices and manufacturing changes that have persistently
contributed to recall and adverse
events associated with AEDs.
Sources: Gavin Broady and Law360.com

CPSC Calls For New Controls On

Portable Gas Cans
The U.S. Consumer Product Safety Commission (CPSC) wants portable fuel container
makers to begin designing their products with
flame arrestors in order to prevent fires and
injuries to people. According to the CPSC,
flame arrestors are intended to keep flames
that are external to the gasoline container
from passing into the container. The agency
wants manufacturers to regain the momentum that was lost in years past by designing
their products to include the safety technology. In addition, the CPSC wants voluntary
standards organizations to incorporate a flame
arrestor system into applicable safety standards for gas cans. The CPSC said:
Respected researchers have proven that
flammable mixtures of oxygen and gasoline vapors can exist in gasoline containers, especially when there are small
amounts of gas in a large container.
And, under certain circumstances, the
vapors can ignite and cause a gas can
to explode. The results can be deadly or
life-altering.
The CPSC said the measure would help
protect people from gasoline-related burn
injuries. It said that while there have been
safety improvements to portable gas cans
throughout the years, the flame arrestor technology still needs to be implemented. The
CPSC in a statement said:
Manufacturers must comply with the
Childrens Gasoline Burn Prevention

www.JereBeasleyReport.com

27

Ac t , whic h C PSC impl e m e nted in

January 2009. To prevent children
younger than 5 from accessing, ingesting or spilling gasoline, all portable gas
cans must include a child resistant cap.
To meet [U.S. Environmental Protection
Agency] and California carbon emissions rules, gas cans must also be sealed
automatically.
Though gas cans dont have the flame arrestors as a standard feature, the CPSC said it
worked with the residential gas water heater
industry to incorporate flame arrestor technology into their products and into a safety standard. The commission said:
Residential gas water heaters sold in
stores today have built-in flame arrestors that prevent flashback fires, and
CPSC believes that this technology also
should be included in gasoline containers. Manufacturers, retailers, researchers, safety advocates, and CPSC should
continue to work together to address
foreseeable risks and solutions that will
make gas cans as safe as possible.
The Portable Fuel Container Manufacturers
Association says the technology is still under
development and isnt ready to be implemented yet. T he a ssociat ion sa id i n a
statement:
It would be irresponsible to incorporate
flame arrestor technology as we understand it today in either our products or
the voluntary standards governing our
products before it is proven to be effective and safe. Our industry encourages
CPSC to le nd their e x pe r ti se and
resources to the search for a workable
solution.
The group said the parameters for combustion inside a portable consumer gas can have
been found to be extremely limited, but that it
will continue to support and participate in the
study of flame mitigation devices to determine
if a feasible new product design can be developed. I believe that flame arrestors should be
required. The industry has had adequate time
in which to include this technology into the
design and manufacturing of their gas cans.
Source: Law360.com

Wal-Mart Will Contribute $25 Million To

Settle Gas Can Explosion lawsuits
In a separate but related matter, the nations
largest retailer, Wal-Mart, has agreed to contribute about $25 million to settle unresolved
lawsuits filed on behalf of consumers injured
or killed in explosions involving portable
28

plastic gas cans. The money from Wal-Mart

amounts to slightly more than 15 percent of a
proposed $161 million fund that would settle
dozens of lawsuits against Blitz USA, the
largest manufacturer of these cans. A hearing
on the proposed settlement is set for early this
year. Wal-Mart, the largest seller of plastic gas
cans, has sold tens of millions of Blitz gas
cans. In agreeing to contribute toward the settlement, Wal-Mart says it does not acknowledge any safety defect in the Blitz cans.
Blitz, based in Miami, Okla., and formerly
the nations largest manufacturer of plastic gas
cans, is now in bankruptcy and out of business. Lawyers representing individuals burned
in alleged gas can explosion incidents have
filed at least 80 lawsuits against can manufacturers in the last decade or so.Some have also
targeted retailers that sold the cans. Wal-Mart
says it was named as a defendant in 24 of the
lawsuits, which allege that Blitz and Wal-Mart
knowingly sold a defective product that could
explode and produce catastrophic and sometimes fatal injuries, and refused to add a safety
device, known as a flame arrester, to make the
cans safer.
Sources: Law360.com, Lisa Myers, Rich Gardella and
NBC News

master position if the surgeon pushes

through the resistance.
Intuitives sales and share price took a sharp
hit last year. On Oct. 17, Intuitive reported a
decline in third-quarter earnings as a result of
lower revenue. The company had lost 29
percent of its value in the 12 months through
Dec. 3, 2013. Bloomberg first reported in February that the FDA was looking into the challenges surgeons face with the robotic systems.
These systems were first approved by the FDA
in 2000 after a trial of 233 patients done at a
hospital in Mexico City. A sur vey by the
agency released on Nov. 8 included 11 doctors
who have performed from 70 to 600 robot surgeries each. While the unidentified surgeons
said the device led to fewer complications and
shorter recoveries, they reported incidents in
which robot arms collided or missed a mark
and they all said training was an issue.
In October, the company sent an urgent
medical device correction letter to users
warning of potential problems with metal
coating on a lamp that may not be compatible
with the control board. Hopefully, the problems identified will be corrected.
Sources: Birmingham News and Claims Journal

Surgeons Warned About Friction With

Robotic Surgical Arms

CPSC Issues Rule For Childrens Bath

Seats And Beds

Intuitive Surgical Inc., the maker of a $1.5

million robot surgery system, told doctors last
month that friction in the arms of some of its
devices could cause the unit to stall. That was
the second warning the company had issued
about its products in the span of a month. The
company sent an urgent medical device
recall on Nov. 11, alerting customers of the
problem, which affects 1,386 of the systems
worldwide. The Food and Drug Administration (FDA) put this information in a Dec. 3
notice on its website. The stalling may result
in a sudden catch-up if the surgeon pushes
through the resistance, the agency said.
Bloomberg News reported that Intuitive
was facing growing questions about its marketing strategies, training procedures and the
safety of its devices. The FDA said recently
that the number of adverse event reports,
including deaths, injuries and system malfunctions, had more than doubled in 2013 as of
Nov. 3, compared with all of 2012. The FDA
said on its website:

The U.S. Consumer Product Safety Commission (CPSC) has issued a final rule implementing safety standards for infant and toddler
products including infant bath seats, toddler
beds and full-size baby cribs. The new rule
incorporates ASTM voluntary standards associated with the products, with some modifications. A notice, published in the Federal
Register on Dec. 9, becomes effective March
24, 2014. Formerly known as the American
Society for Testing and Materials, the organization develops international voluntary consensus standards.
For bath seats, the CPSC will require all
attachment components to be permanently
attached to the bath seats in order to increase
the safety of bath seats. The rule says:

Reports of friction within certain

instrument arms can interrupt smooth
instrument motion. This can be felt by
the surgeon as resistance in the movement of the master. In this situation,
the instrument can stall momentarily
and then suddenly catch-up to the

www.BeasleyAllen.com

The 2013 version of the ASTM standard

contains a new definition and requirement for attachment components. The
requirement specifies that allcomponents needed to attach the bath seat to
the bathtub (attachment components)
must be permanently attached to the
bath seat.
Some bath seats, however, are designed to
provide components that are separate from
the bath seat. With that design, consumers
must install the attachment components, con-

sisting of adhesive disks, onto the bathtub

surface, the rule said. If the consumer fails to
install the adhesive disks or fails to install
them properly, these bath seats pose a tipover hazard.
The toddler bed standard updates an ASTM
standard the CPSC concluded did not improve
the safety of toddler beds, because it contained several provisions for guardrail height
and guardrail strength that were less stringent
than the CPSCs existing standard. The new
standard ensures those safety features are up
to the commissions standards. And the new
standard for full-size cribs requires that before
and after testing a crib, the crib must comply
with all general requirements of the standard,
which deal with the distance between the
side slats.
An ASTM standard was insufficient because
a tested crib potentially could comply with
the specific testing procedures for slats even if
a slat failed during testing, but not meet the
general slat spacing requirements because of
the failed slat, the CPSC said. In that situation,
the crib would not comply with the requirements in the current standard because the
crib would not meet all of the general requirements after the crib had been tested. The
rule said:
The revised standard ... provides an
exception for this specific situation so
that a cribs failure to meet the slat
spacing requirement under the testing
circumstances described above would
not cause the crib to be considered
noncompliant.
Under t he Con su mer P roduct Sa fet y
Improvement Act, the CPSC is required to promulgate consumer product safety standards
for durable infant or toddler products. The
law requires that these standards are to be
substantially the same as applicable voluntary standards or more stringent than the voluntary standards if the commission concludes
that more stringent requirements would
further reduce the risk of injury associated
with the product. Under the Act, the term
durable infant or toddler product explicitly
includes infant bath seats, toddler beds and
full-size cribs. In accordance with the Act, the
safety standards incorporate the relevant
ASTM standards, with certain modifications
that make the voluntar y standard more
stringent.
Sources: CPSC and Law360.com

FTC Files Suit Regarding A Medical

Discount Scam Targeting Seniors
The Federal Trade Commission (FTC) has
filed suit in the U.S. District Court for the

Northern District of Illinois against several U.S

and Canadian based companies, alleging that
these companies implemented a medical discount scam that targeted seniors across the
country. According to the FTCs complaint,
seniors in the U.S. were victims of deceptive
calls by telemarketers whereby they would
offer phony discounts on prescription drugs
and even pretend to be affiliated with Social
Security, Medicare, or medical insurance
providers.
As indicated in the FTCs recent press
release, the telemarketing calls pitched a prescription drug discount card that would supposedly provide substantially discounted or
even free prescription drugs to seniors. Many
victims were led to believe they had to purchase the card to continue receiving their
Social Security, Medicare, or other medical
insurance, which was not the case.
Additionally, the discount cards that these
companies were selling were actually available for free by calling a toll-free number or
visiting a website. Moreover, the discount
cards generally do not provide any discounts
to consumers who already have either governmental or private insurance. However, the
FTC alleges that the telemarketers deceitfully
convinced their victims to turn over their
bank account numbers in order to purchase a
discount card, and then used that information
to debit money from the victims accounts.
The companies used the victims bank
account information to take approximately
$300 from their ban k accounts using a
demand draft. Moreover, not all consumers
who paid for the purported discount card
even received itsome victims received
nothing at all for their money.
The FTC is actively working to shut down
the medical discount scheme. Some of the
compa n ies responsible for the scheme
include, but are not limited to, AFD Advisors,
LLC; AMG Associates, LLC; CAL Consulting,
LLC; Park 295 Corp., as well as Canadian companies 9262-2182 Quebec Inc. and 9210-7838
Quebec Inc. The companies, and certain officers of these companies, have been charged
with violating Section 5 of the FTC Act by
deceptively presenting themselves as government or insurance representatives, as well as
by telling consumers that the discount plans
they were selling could provide substantial
discounts on prescription drugs.
Additionally, the companies, and certain
off icers of these companies, have been
charged with violating the FTCs Telemarketing Sales Rule for their deceptive acts and for
calling consumers whose numbers were on
the National Do Not Call Registry. A federal
judge in the U.S. District Court for the Northern District of Illinois issued a temporary
restraining order halting the companies
deceptive scheme and freezing their assets.

The Director of the FTCs Bureau of Consumer

Protection, Jessica Rich, stated:
This scam, which targeted and deceived
our nations seniors, is as cynical and
wanton as they come. We look forward
to bringing this operation to a halt and
working to get relief for the victims.
If any of our readers are aware of this type
of fraud or deceit and need assistance, they
can contact Ali Hawthorne, a lawyer in our
firms Consumer Fraud Section, at 800-8982034 or by email at Alison.Hawthorne@beasleyallen.com.
Source: Federal Trade Commission

Statistics Indicate 1 In 14 Fell Prey To

Identity Theft In 2012
According to a recent survey, it appears that
one of every 14 Americans age 16 or older was
a target or a victim of identity theft. This is a
crime that imposes a heavy emotional toll on
many of its victims. According to a national
household survey of 70,000 people issued by
the Bureau of Justice Statistics, identity theft
resulted in $24.7 billion in financial losses last
year. The crime affected 16.6 million people
and fell most heavily on households with
annual incomes of $75,000 or more. In that
income bracket, 10 percent of such households were victimized.
The survey counted both attempted and
successful incidents of identity theft. Twothirds of identity theft victims experienced
financial losses, which averaged $1,769. For
many victims, the size of the loss was eclipsed
by concerns that someone had stolen their
identity and that it might take weeks or
months to repair the damage. Among victims
who spent six months or more resolving financial and credit problems stemming from identity theft, 47 percent experienced severe
emotional distress, compared with 4 percent
who spent a day or less resolving problems.
Victims experienced a wide range of issues
having to do with credit, banking, debt collectors, even cutoffs in utility service. In general,
victims whose personal information, such as a
Social Security number, was misused were
more likely to experience financial, legal or
other difficulties, according to the bureau.
Ten percent of victims spent more than a
month clearing up associated problems. A
majority spent a day or less. Victims whose
personal information was used to open a new
account or for other fraudulent purposes
spent an average of about 30 hours resolving
problems. Victims of existing credit card
account misuse spent an average of three
hours resolving problems.

www.JereBeasleyReport.com

29

The full extent of identity theft is unknown

because often a bank will reimburse the
victim for any losses, and the crime is never
reported to the police, according to Chuck
Wexler, executive director of the Police Executive Research For u m, whose members
include the heads of large and smaller police
departments. According to the report, one in
10 identity theft victims reported the incident
to police, while nine in 10 victims contacted a
credit card company or bank to report misuse
or attempted misuse of an account or personal
information. Jim Bueermann, president of the
Police Foundation, a research organization, says:
What were seeing here is the exponential growth of information technology,
and with that comes the ability to be
hacked. At one point in the past, people
lived in places where they didnt lock
their doors. Over time, they started to
lock them. Well come to the same place
in our digital life, hopefully sooner.
Less than 10 percent of victims bought
identity theft protection or used an identity
theft security program on their computer
after being victimized, according to the
survey. Of people interviewed in the survey,
85 percent took one or more preventative
actions such as changing passwords on financial accounts or examining bank or credit
statements. Theft involving existing credit
cards and bank accounts made up for the vast
majority of the 16.6 million victims. Some 7.7
million victims reported the fraudulent use of
a credit card, and 7.5 million reported the
fraudulent use of a bank account such as a
debit card, checking account or savings.
Source; Claims Journal

The Company Behind Largest US Beef

Recall Pays $3 Million To End FCA Suit
The owners of a California slaughterhouse
agreed last year to pay $3.1 million to settle
claims that they defrauded the government by
selling beef from mistreated cattle. That ended
a long-running lawsuit that previously served
up an attention-gettingif symbolic$500
million judgment. The lawsuit, initially filed
by the Humane Society of the United States,
accused Hallmark Meat Packing and its sibling
company Westland Meat Co. of breaching
their contracts with the U.S. Department of
Agriculture requiring the animals be handled
humanely, and of defrauding the government
by continuing to bill for meat while in breach
of their contracts. Whistleblower videos
showed slaughterhouse employees kicking,
beating and dragging disabled cattle, electrocuting them, and slamming them with fork30

l i f t s to move t he m tow a r d sl au g hte r.

Eventually, this prompted the largest beef
recall in U.S. history. Peter Petersan, HSUS
director for animal protection litigation, had
this to say:
This judgment sends a strong message
to those who profit from the abuse of
farm animals. Although numerous line
workers have been prosecuted for farm
animal cruelty over the last decade, this
is the first time the consequences of
animal cruelty have been felt by those
sitting in the corner office as well.
The principal owners and investors in Westland will forfeit $3,116,802, virtually all of
their remaining assets, according to the
Humane Society. The final judgment against
Westland reduced the bankrupt companys liability to $155,684,827, from a previous trebledamages judgment of nearly $497.3 million.
Most of the earlier judgment, handed down in
November 2012, represented a future claim
against Hallmark Meat Packing Co. Owners
Donald Hallmark, Sr., and Donald Hallmark,
Jr., agreed to pay approximately $304,000.
Since the company has no assets, the $155
million judgment is symbolic, the Humane
Society said.
The earlier $500 million verdict was seen as
a symbol of the governments willingness to
embrace aggressive legal theories to maximize
fraud liability under the False Claims Act. The
case involved two hotly disputed topics in
False Claims Act case law: implied certification and the calculation of damages. The
implied certification theory allows the government or a whistleblower to sue for punitive
damages under the FCA i f a contractor
submits claims for payment while in violation
of a contract condition that is necessar y
for payment.
The Humane Society launched its suit in
2008 against 11 defendants, after the organization sent undercover operatives to film suspected abuse of cattle at a slaughterhouse in
Chino, Calif. The lawsuit, undercover videos,
and the resultant beef recall led to the bankruptcy of several of the accused companies.
According to the Humane Societys complaint, it was standard practice for the slaughterhouse to kick, beat or drag cattleoften
with heavy chainselectrocute them, or slam
or maim them with forklifts to get the animals
to walk or crawl into the so-called kill box
for slaughter. The Humane Society is represented by David S. Cohen, Aaron Renenger
and Alisa Cassel Schlesinger of Milbank Tweed
Hadley & McCloy and in-house counsel Jonathan R. Lovvorn, Peter J. Petersan and Leana E.
Stormont.
Source: Law360.com

www.BeasleyAllen.com

XX.
RECALLS UPDATE
We are again reporting a large number of
safety-related recalls. However, at press time
there hadnt been any automobile recalls
during December. Because of the holidays, we
had to go to the printer early with this issue.
We may have missed some car recalls. In any
event, there have been many other sorts. We
have included some of the more significant
recalls that were issued in December. If more
information is needed on any of the recalls,
readers are encouraged to contact Shanna
Malone, the Executive Editor of the Report.
We would also like to know if we have missed
any safety recalls that should have been
included in this issue.

Michelin Recalls 1.2 Million Tires In

U.S.
Tire-maker Michelin has recalled about
1.2 million tires sold in the U.S. because
an increasing number are experiencing
tread loss or rapid air loss. The tires are
commonly used for pickup trucks, heavyduty vans, small RVs and commercial
light trucks. The Greenville, S.C.-based
company says no deaths or injuries have
been reported because of the tires.
The tires, known as Michelin LTX M/S
ti res, were ma nu fact u red bet ween
January 2010 and June 2012. They were
sold as original equipment on some vehicles and as new replacement tires. The
company says that fewer than 200 of the
tires have been returned by customers.
Owners can have them replaced at
Michelin stores for no charge.
Exmark Recalls Commercial Walk-Behind
Mowers Due To Injury Hazard
Exmark Manufacturing Company, Inc.,
from Beatrice, Neb., has recalled its Commercia l Wa l k- B eh i nd Mower s. T he
mowers blade can break and injure the
user and others nearby. This recall
involves 2013 Exmark Commercial 30
Walk-Behind Mowers, model ECK A30
a nd s e r i a l nu m b e r s r a ng i ng f r om
313605897 to 313660824. The phrases
Commercial 30 and Exmark are
printed on the front of the black and red
mower. Exmark is also printed on the
side of the mower. The model and serial
numbers are located on a decal affixed to
the engine base above the left rear tire.
The mowers were sold at Exmark dealers
n a t i o nw i d e f r o m N ove m b e r 2 012
through October 2013 for about $1,800.

Consumers should immediately stop

using the recalled mowers and contact
Exmark for a free repair. Contac: Exmark
at 800-667-5296 from 8 a.m. to 5 p.m. CT
Monday through Friday or online at
www.exmark.com and click on Service &
Support and then on Safety Resources at
the bottom of the page for more information. Photos available at http://www.
c p s c.gov/ e n / Re c a l l s / 2 014 / E x m a r kRecalls - Com mercial-Wal kBehind-Mowers/

Trek Recalls Madone Bicycles Due To

Crash Hazard
About 6,80 0 Trek model year 2013
Madone bicycles have been recalled by
Trek Bicycles Corp., of Waterloo, Wis.
The bicycles front brake can fail, posing
a crash hazard. This recall involves model
year 2013 Trek Madone bicycles with
model numbers 5.2, 5.9, 6.2, 6.5, 7.7 or
7.9, and serial numbers starting with
WTU and ending with G or H. A list of all
serial numbers included in the recall is at
w w w.t r ek bi ke s.com. S om e of t he
recalled models are custom-ordered
P r ojec t O ne M adone s. T he mo del
number is printed on the bicycle frame.
The serial number is printed on a sticker
underneath the frame of the bicycle. The
bicycles were sold in a variety of colors.
Trek has received five reports of loose
front brake attachment bolts. No injuries
have been reported.
They were sold at bicycle stores nationwide from July 2012 through December
2013 for between $3,400 and $6,300, and
for custom models between $4,000 and
$15,000. Consumers should immediately
stop using the recalled bicycles and take
the bicycles to a Trek dealer for a free
replacement front brake system. Contact
Trek at 8 0 0 -373 - 4594 f rom 8 a.m.
through 6 p.m. CT Monday through
Friday, or online at www.trekbikes.com
and click on Safety and Recalls at the
bottom of the page for more information.
Photos available at http://www.cpsc.gov/
e n / R e c a l l s / 2 014 / T r e k - R e c a l l s Madone-Bicycles/

Fox Factory Recalls Evolution

Mountain Bike Suspension Forks
Fox Factory, of Watsonville, Calif., has
recalled Evolution 2013 Mountain Bike
Suspension Forks. The suspension forks
damper cylinder/piston can separate and
cause the front wheel to detach, posing a
fall hazard. The recalled suspension forks
are model year 2013, 32 and 34 Evolution

Series with 120mm to 160mm of travel.

The Evolution name and logo are on a
sticker on the front fork with the FOX
brand name logo. Recalled forks can be
identified by the serial number, which is
found on the underside of the crown
after removing the front wheel. The forks
were sold as original equipment on some
of the following 2013 model year mountain bikes: BMC, Cannondale, Commencal, Diamondback, GT, Kona, Lapierre,
Norco, Orbea, Raleigh, Rocky Mountain,
Santa Cruz, Scott, Specialized and Trek. A
small quantity of suspension forks were
sold to retailers or distributors as aftermarket accessories. Fox received one
report of an incident resulting in shoulder injuries in Italy.
Bicycle retailers nationwide sold the
bikes between August 2012 and October
2013 as original equipment on bicycles
priced from about $2,000 to $4,400.
Products sold for aftermarket use for
about $600 to $650. Consumers should
stop using the bicycles with recalled Fox
Factory suspension forks and bring them
to the place of purchase for a free repair.
Con su mer s ca n check t hei r ser i a l
number at www.ridefox.com/, see the
link at the lower left of the page, or
contact Fox for assistance with discerning whether their bicycle has the recalled
product and for instructions on how to
return the recalled product and receive
the free repair if they cannot bring their
bicycle or fork to the place of purchase.

Toro Recalls TimeMaster And

TurfMaster Lawn Mowers Due To
Injury Hazard
TimeMaster and TurfMaster lawn mowers
have been recalled by The Toro Co., of
Bloomington, Minn. The mowers blade
can break and injure the user and others
nearby. This recall involves 2013 Toro
TimeMaster 30 and 2013 Toro TurfMaster 30 lawn mowers with the following
mo del a nd s er i a l nu mb er s : Mo del
number 20199 with ser ial numbers
ranging from 313000101 to 313020271;
mo d el nu m b e r 2 02 0 0 w it h s e r i a l
numbers ranging from 313000101 to
313007366; and, model number 22200
w it h ser ia l nu mber s r a ng i ng f rom
313000101 to 313007146. The phrases
TimeMaster or TurfMaster and Toro
are printed on the front of the black and
red mower. Toro is also printed on the
side of the mower. The model and serial
numbers are located on a decal affixed to
the engine base above the left rear tire.
Toro has received 10 reports of blades

b r e a k i n g. N o i nj u r i e s h a ve b e e n
reported.
The mowers were sold at Toro dealers
n a t i o nw i d e f r o m N ove m b e r 2 012
through October 2013 for between $999
and $1,799. Consumers should immediately stop using the recalled mowers and
contact Toro for a free repair. Contact
Toro toll-free at 855-340-7686 from 8 a.m.
to 5 p.m. CT Monday through Friday or
online at www.toro.com and click on
Product Recall Information at the bottom
of the page for more information. Photos
available at http://www.cpsc.gov/en/
Recalls/2014/Toro-Recalls-TimeMasterand-TurfMaster-Lawn-Mowers/

Burley Design Recalls Tailwind Racks

For Trailercycles
Tailwind bicycle racks for trailercycles
have been recalled by Burley Design LLC,
of Eugene, Ore. The top portion of the
tailwind rack that connects trailercycles
to a towing bicycle can break and allow
the trailercycle to disconnect, posing a
fall hazard. The Tailwind Racks are used
for hitching childrens trailercycles to
adult size bicycles. The aluminum racks
were sold individually, in black or silver,
or with Kazoo or Piccolo brand trailercycles in black only. The individual racks
have stock code numbers 939001 for
black and 939002 for silver, which was
printed on the original packaging. The
racks have double side rails. Burley is
printed on the curved back plate of the
rack.The firm received 11 reports of
Tailwind Racks breaking, including one
report of a minor leg injury in the U.S.
and one report of a broken leg in the UK.
The trailercycles were sold at Independent bicycle retailers and specialt y
outdoor retailers nationwide and online
at Amazon.com, Biketrailershop.com and
other websites from November 2011
through September 2013. Individual
racks sold for $65 and Kazoo and Piccolo
trailercycles with Tailwind Racks sold for
$300 and $350 respectively. Consumers
should stop using the Tailwind Racks
i m mediately and contact Bu rley to
receive a free replacement rack. Burley
will replace recalled Tailwind Racks with
a steel Moose Rack. Contact Burley
Design at 800-311-5294 between 8 a.m.
and 5 p.m. PT Monday through Friday or
online at www.burley.com and click on
Recall Information for more information.
Photos are available at http://www.cpsc.
gov/en / Reca l ls /2014/ Bu rley-Desig nRecalls-Tailwind-Racks-for-Trailercycles/.

www.JereBeasleyReport.com

31

Gas Trimmers Recalled By Efco Due To

Fire Hazard
Emak USA, Inc., of Wooster, Ohio, has
recalled efco brand Gas Trimmers from
Emak USA. The muffler on the trimmers
engine can break during use and pose a
fire hazard. The trimmers are used in
both residential and professional applications for cutting grass and light brush.
T he cutti ng attach ments i nclude a
trimmer head and metal blade. The trimmers are about 72 inches long. They are
colored red and gray with either a bike or
loop handle configuration. Three models
are recalled in two engine sizes measured in cubic centimeters. They are:
36cc models 8371 S and 8371 T, and a
40.2cc model 8421 T engine displacement. The brand name efco and model
number are printed on the front of the
engine and the brand name also appears
on the wand. The company has received
eight reports of incidents, including one
resulting in singed hair. No serious injury
or property damage have been reported.
The gas trimmers were sold at authorized
efco dealers at both retail stores and
online, and Menards stores between June
2009 and July 2013 for about $400. Consumers should stop using the recalled
trimmers immediately and return them
to an authorized efco dealer for a free
muffler replacement kit. Contact Emak
USA at 800-800-4420 Monday through
Friday from 8 a.m. to 5 p.m. ET or visit
the companys website at www.efcopower.com and click on Recall Information at the bottom of the home page.
Photos available at http://www.cpsc.gov/
en/Recalls/2014/Gas-Trimmers-Recalledby-efco/.

Shaw Industries Recalls Carpet Due To

Fire Hazard
About 16,300 yards of A ristocrat II
Carpet have been recalled by Shaw
Industries Inc., of Dalton, Ga., the manufacturer. The carpet fails to meet federal
f lammability standards, posing a fire
hazard to consumers. The recall involves
Aristocrat II brand wall-to-wall carpet
with style number 7L514. The carpet was
sold in one color, Pale Clay. A date
stamp on the back of the carpet reads
USA 760 MEA 52545, the date 06-072013, a time range between 00:45 and
3:00 and the words Pile: 100% Polyester. The stamp is repeated every six feet.
The carpet was sold exclusively at Lowes
stores nationwide between June 2013

32

and September 2013 for about $1 a

square foot. Consumers should immediately contact Shaw Industries to determine if their carpet is included in the
recall and for instructions on returning
the product for refund or replacement.
Contact Shaw Industries at 800-241-4031
from 9 a.m. to 5 p.m. ET Monday through
Friday, or visit the companys website at
w w w.shaw f loors.com a nd cl ick on
Product Recall for more information.
Photos available at http://www.cpsc.gov/
e n / R e c a l l s / 2 014 / S h a w - I n d u s t r i e s Recalls-Carpet/

have M07 or M10 in the 9th, 10 th and 11th

position of the serial number. The model
and serial numbers are printed on a label
on the back of the televisions and Coby is
printed on the front. Coby USA is out of
business. The U.S. Consumer Product
Safety Commission (CPSC) has received
reports of six incidents involving the televisions overheating, smoking or catching
fire. One incident involved a television
catching on fire and scorching a wall.
Another involved a fire that was limited
to the television. No i nju r ies have
been reported.

Wahl Recalls Total Care Aerosol

Cleaner Due To Burn Hazard

The televisions were sold at ABC Warehouse, Fr ys Electronics, h.h. gregg,

Nebraska Furniture Mart, P.C. Richard &
Son, Sears/Kmart, Toys R Us and online
at BestBuy.com, dealtree.com, techliquidators.com and bestbuy.dtdeals.com, and
other stores and sites nationwide, from
August 2011 through November 2013 for
between $170 and $260. Consumers
should immediately turn off and unplug
the recalled televisions and contact the
participating retailer where their television was purchased for instructions on
the remedy available from that retailer,
which could be a refund, store credit,
gift card or replacement TV.

About 720,0 0 0 Tot a l Ca re Aerosol

Cleaner, Lubricant & Coolant have been
recalled by Wahl Clipper Corp., of Sterling, Ill. Vapors from the propellant in
the Total Care product can ignite upon
contact with hair clippers, posing a burn
hazard to consumers. This recall involves
Wahl Total Care products used to clean
and lubricate hair clippers, trimmers and
shavers. The product was sold in sixounce aerosol cans. The white label on
the can reads Wahl Total Care and
Cl ipper, Tr i m mer, Shaver. Model
number 03772 is printed on the back of
the can. Wahl has received three reports
of incidents of the product igniting,
including one report of minor burns.
T he products were sold at Meijer,
Walmart and other retail stores nationwide and online at Amazon.com from
June 2009 to October 2013 for about $5.
Remedy: Consumers should immediately
stop using the Total Care product and
contact Wahl for a replacement. Consumers can contact Wahl at 800-767-9245
from 8 a.m. to 4:30 p.m. CT Monday
through Friday or online at www.wahl.
com and click on Recall for more information. Photos are available at http://
www.cpsc.gov/en/Recalls/2014/WahlRecalls-Total-Care-Aerosol-Cleaner/

Eight Retailers Recall 32 Coby Flat

Screen Televisions Due To Fire And
Burn Hazards
About 8,900 Coby 32-inch f lat screen
televisions have been recalled by Coby
Electronics Co. Ltd., of Hong Kong. n
electronic component can fail, catch fire
and ignite nearby items, posing fire and
burn hazards. This recall involves black
Coby 32-inch flat screen televisions with
model number TFT V3229 and serial
numbers beginning with LG and that

www.BeasleyAllen.com

The U.S. company is out of business so

eight retailers have stepped up to voluntarily recall the televisions. The remedy
and terms vary between the retailers.
ABC Warehouse: Toll-free at 855-510 0070 or w w w.abcwarehouse.com for
more information. Best Buy: 800-566 7498 or www.BestBuy.com and click on
Product Recalls at the bottom of the page
for more information. Frys Electronics:
Toll-free at 877-688-7678 or www.frys.
com for more information. h.h. gregg:
Tol l-f ree at 8 8 8 -723 -7385 or w w w.
hhgregg.com for more in formation.
Nebraska Furniture Mart: 800-359-1200
or www.nfm.com for more information.
P.C. Richard & Son: Toll-free at 866-3124493 or www.pcrichard.com for more
information. Sears/Kmart: Toll-free at
888 - 852-3571 or w w w.sears.com or
www.kmart.com and click on Product
Recalls at the bottom of the page for
more information. Toys R Us: 800-8697787 or www.toysrusinc.com and click
on Product Recalls at the bottom of the
page for more information. Photos availa b l e a t h t t p : // w w w.c p s c.g o v / e n /
Reca l ls /2014/ E ig ht- Ret a i ler s - Reca l l 32-Coby-Flat-Screen-Televisions/.

Google And HP Recall HP

Chromebook 11 Chargers Due To Fire
And Burn Hazards
About 145,0 0 0 H P Ch romebook 11
power supply/ch a r ger s h ave b een
recalled by Google Inc., of Mountain
View, Calif. and the distributor HewlettPackard Company, of Palo Alto, Calif. The
computers charger can overheat and
melt, posing fire and burn hazards. This
recall involves chargers that were sold
w ith the H P Ch romebook 11. T he
charger is black with outlet pins, measures 1 inches by inches, and has a
6-foot long cord with a micro-USB connector on the end. The model number of
the charger is MU15-N1052-A00S, which
is stamped on the face of the battery
charger that has the outlet pins. Google
has received nine reports of chargers
overheating and melting during use.
The computers were sold at Best Buy
stores nationwide and online at Amazon.
com, bestbuy.com, Google Play at play.
google.com, and HP Shopping at shopping.hp.com from October 2013 through
November 2013 and included with the
Chromebook 11 which sold for about
$280. Consumers should immediately
stop using the recalled charger for the
HP Chromebook 11 and contact Google
for a free replacement charger. Contact
Google toll-free at 866-628-1371 between
5 a.m. and 7 p.m. PT seven days a week,
or online at http://chromebook.com and
click on the Chromebook link at the top
of the page and then click on Support for
more information. Photos Available at
http://www.cpsc.gov/en/Recalls/2014/
Google-and-HP-Recall-HP-Chromebook11-Chargers/.

PackTite Recalls Bed Bug Heating

Units Due To Fire Hazard
About 9,000 PackTite Heating Units for
Bed Bug Control have been recalled by
Nuvenco Inc., dba PackTite, of Ft.
Collins, Colo. The bed bug heaters can
overheat, melt and cause a fire, posing a
fire hazard. This recall involves PackTite
bed bug heating units sold with PackTite or ig i n a l bed bug t reat ment
systems. Consumers place items for bed
bug treatment inside PackTites black
canvas bag and turn the heater on inside
the bag. The white heaters are attached
to a black wire frame that fits in the bag.
PackTite is printed in white on the bag.
The bags measure 36 inches long by 19
inches wide by 24 inches tall. The
recalled heaters do not have any visible

text on the up-facing side of the heater

casing, but they do have reset instructions on the underside of the heater.
PackTite has received three consumer
complai nts of heaters overheati ng,
melting and, in one case, the items being
treated were singed. No injuries have
been reported.
The units were sold by Pest control companies and pest control product distributors nationwide, including Atlantic Pest
Solutions, Bedbug Centr a l, Bedbug
Supply, Broadway Exterminating, Dana
Pest Control, Do My Own Pest Control,
Grainger, M&M Environmental Isotech,
K-9 Sweeps, Orkin, Pestaway, Round-theClock Pest Control, Steritech, Stern Environmental, Tallman Scientific, Univar
and US Bedbugs from October 2009
through January 2013 for between $300
and $330 for the system and $53 for the
heater when sold separately. Consumers
shou ld i m mediately stop usi ng the
recalled heating units and contact PackTite for a free replacement heater.
Contact PackTite toll-free at 866 -5207952 from 8 a.m. to 8 p.m. MT, by email
at recall@packtite.com, or online at
www.packtite.com and click on Product
Recall for more information.

Solowave Recalls Home Playground

Tube Slides With PortHoles Due To
Laceration Hazard
Tornado brand home playground tube
slides with portholes have been recalled
by their manufacturer Solowave Design
Corp., of Hamburg, N.Y. The plastic porthole-type windows in the tube slide can
break, posing a laceration hazard to children. This includes about 10,800 in the
U.S. and 9,900 in Canada. This recall
involves Solowave Tornado brand home
playground tube slides with portholes.
The slides are green, six or seven feet
long and have three or five porthole-style
plastic windows in the sides. The slides
were sold with Solowaves Centennial,
Centennial II, Lexington, Rocky Mountain Deluxe and Sheridan play systems
and were also sold separately. Solowave
Design is stamped on the outside of the
slides near the middle of each tube slide
section. Solowave has received 23
reports of minor injuries to children,
including cuts and scrapes, from contact
with broken portholes.
The slides were sold at Toys R Us and
other stores nationwide, and online at
toysrus.com from February 2008 through
August 2013 for between $1,300 and

$1,800 as par t of a play system, or

between $275 and $370 for the slide
only. Consumers should stop using the
recalled slide immediately and contact
Solowave to receive a free repair kit for
t h e p o r t h o l e w i n d ow s . C o n t a c t
Solowave tol l-f ree at 866 - 678 - 0376
between 9 a.m. and 5 p.m. ET Monday
th rough Fr iday, or on li ne at w w w.
solowavedesign.com and click on Important Safety Notice for more information.
Photos available at http://www.cpsc.gov/
en/Recalls/2014/Solowave-Recalls-HomePlayground-Tube-Slides-with-Port-Holes/.

IKEA Recalls Childrens WallMounted Lamps Due To Strangulation

Hazard
The U.S. Consumer Product Safety Commission (CPSC), in cooperation with
IKEA North America, of Conshohocken,
Pa., is announcing the recall for repair of
childrens wall-mounted lamps due to a
strangulation hazard. A 16 -month-old
child in a crib died after getting entangled in the lamps cord. In a separate incident, a 15-month-old child in a crib
became entangled in the lamps cord and
nearly strangled. In both incidents,
which occurred in Europe, the lamp cord
was pulled into the crib by the infants.
There were 2.9 million of the recalled
lamps sold in the United States. In addition, 1.1 million were sold in Canada.
There was a total of 23 million sold
worldwide.
The recalled IKEA childrens SMILAseries wall-mounted lamps were sold in
eight designs, including a blue star,
yellow moon, pink flower, white flower,
red heart, green bug, blue seashell and an
orange seahorse. The blue star is the
STJRNA model with article numbers
501.944.49 or 500.108.79. The yellow
moon is the MNE model with article
numbers 701.944.48 or 700.108.40. The
pink flower is the BLOMMA model with
article numbers 901.944.47 or 000.979.50.
The white flower is the BLOMMA model
with article number 300-746-50. The red
heart is the HJRTA model with article
numbers 202.256.59 or 801.993.13. The
green bug is the BAGGE model with
article numbers 101.944.46 or 700.728.71.
The blue seashell is the SNCKA model
with article number 400 -982-50. The
orange seahorse is the SJHST model
with article number 900 -982-43. The
model name is printed on a label on the
inside back of the lamp near the light
bulb. The article number is printed on
the lamps packaging.

www.JereBeasleyReport.com

33

The plastic wall-mounted childrens

lamps measure about 11 inches high by
11 inches wide. They have a 7-ft.-long
electrical cord with an in-line switch and
take a 25-watt light bulb. They were sold
exclusively at IKEA stores nationwide, in
IKEAs catalog and online at ikea-usa.com
from July 1999 through May 2013 for
between $10 and $13. Consumers should
immediately stop using the recalled lamp
and contact IKEA for a free repair kit. Do
not use the lamp until the repair kit is
installed. The repair kit has self-adhesive
fasteners for attaching the lamps cord to
the wall as well as safety instructions.
Contact IKEA toll-free at 888-966-4532
anytime or online at www.ikea-usa.com
and click on the Recall link at the top of
the page for more information. The
lamps were made in the United States,
Lithuania and China.

Hobby Lobby Stores Recall Accent

Chairs Due To Risk Of Injury
About 1,400 Accent Chairs have been
recalled by Hobby Lobby. The front legs
on the chair can loosen and detach,
posing a fall hazard and risk of injury to
the consumer. This recall involves black
wooden accent chairs with a shaped
wood top rail and center back slat. The
chairs have a black and white chevron
print seat cushion. Item number 5218300
and PO number 9099294 are printed on
the chairs hang tag and a tag affixed to
the underside of the chair. Hobby Lobby
has received one report of the chair
collapsing.
The chairs were sold exclusively at
Hobby Lobby stores nationwide from
March 2013 to August 2013 for about
$180. Consumers should immediately
stop using the recalled chair and return it
to the nearest Hobby Lobby store. Consumers with a purchase receipt will
receive a full refund and consumers
without a receipt will receive a store
credit. Contact Hobby Lobby Stores at
800-326-7931 between 9 a.m. and 6 p.m.
ET Monday through Friday, or visit the
companys website at www.hobbylobby.
com, and click on the Recall tab at the
bottom of the page for additional information. Photos available at http://www.
cpsc.gov/en/Recalls/2014/Hobby-LobbyStores-Recalls-Accent-Chairs/.

Academy Sports + Outdoors Recalls

Girls BCG Hooded Windsuits Due To
Strangulation Hazard
About 6,600 Girls BCG Hooded Windsuits have been recalled by Academy
Sports + Outdoors, of Katy, Texas. The
hooded windsuits have drawstrings in
the hood around the neck area that pose
a strangulation hazard to young children.
In February 1996, The U.S. Consumer
Product Sa fet y Com m ission (CPSC)
issued guidelines about drawstrings in
childrens upper outerwear. In 1997,
those guidelines were incorporated into
a voluntary standard. Then, in July 2011,
based on the guidelines and voluntary
standard, CPSC issued a federal regulation. CPSCs actions demonstrate a commitment to help prevent children from
strangling or getting entangled on neck
and waist drawstrings in upper outerwear, such as jackets and sweatshirts.
This recall involves Girls BCG Hooded
Windsuits in sizes XS, S, M and L. The
windsuits are made of water-resistant
fabric and include a jacket and pants. The
jacket has a front zip closure and elastic
cuffs. The windsuits come in pink with
black on the jacket at the top shoulder
and a black side strip on the pants, gray
with blue on the jacket at the top shoulder and a blue side strip on the pants, and
purple with lighter purple on the jacket
at the top shoulder and a pink strip on
the pants.
The jackets were sold exclusively at
Academy Sports + Outdoors stores and
on the firms website www.academy.com
between September 2013 and October
2013 for about $20. Consumers should
immediately remove the drawstring from
the windsuits to eliminate the hazard, or
return the garment to the place of purchase for a full refund. Contact Academy
Sports + Outdoors toll-free at 888-9222336, from 8 a.m. to 10 p.m. CT Monday
through Saturday and from 9 a.m. to 8
p.m. CT on Sunday, or online at www.
academy.com and click on Product Recall
Info for more information. Photo availa ble a t : ht t p :// w w w.c p s c.gov/ e n /
Recalls/2014/Academy-Sports-OutdoorsRecalls-Girls-BCG-Hooded-Windsuits/

Rams Imports Recalls Girls Pink

Leopard Jackets Due To Strangulation
Hazard
About 756 IQ Girls Hooded Pink Leopard
Jackets have been recalled by Rams
Imports Inc. of New York, N.Y. The
jackets have a drawstring through the

34

www.BeasleyAllen.com

hood which can pose a strangulation

hazard to children. In February 1996,
The U.S. Consumer Product Safety Commission (CPSC) issued guidelines about
drawstrings in childrens upper outerwear. In 1997, those guidelines were
incorporated into a voluntary standard.
Then, in July 2011, based on the guidelines and voluntar y standard, CPSC
issued a federal regu lation. CPSCs
actions demonstrate a commitment to
help prevent children from strangling or
getting entangled on neck and waist
drawstrings in upper outerwear, such as
jackets and sweatshir ts. This recall
involves girls pink hooded jackets. The
jacket is 97 percent cotton 3 percent
spandex. The jackets have pink and black
leopard print drawstrings and pink and
black leopard print on the sides of the
jacket. IQ girls is pr inted on the
sewn-in label located on the back of the
neck. The model number included in the
recall is 86557 and can be found printed
on a sewn in label in the back of the
neck. This recall involves jacket sizes
girls 4 through 12.
The jackets were sold exclusively at Burlington Coat Factory stores nationwide
October 2010 through August 2013 for
about $15. Consumers should immediately remove the drawstrings from the
garment to eliminate the hazard or
return the garment to Rams Imports Inc.
for a full refund. Contact Rams Imports
toll-free at 855-346-5950 between 10 a.m.
and 5 p.m. ET Monday through Friday or
online at www.ramsimports.com and
click on product recall for additional
information. Photos available at http://
www.cpsc.gov/en/Recalls/2014/RamsI mp or t s - Re c a l l s - G i r l s - P i n k- L e op ard-Jackets/

Doodlebutt Recalls Jelly BeadZ

Jumbo BeadZ And Magic Growing
Fruity Fun Toys Due To Serious
Ingestion Hazard
About 1.500 Water-absorbing polymer
toys have been recalled by Doodlebutt,
Lehigh Acres, Fla. These soft and colorful
products can be mistaken by a child for
ca ndy. W hen s wa l lowed, they ca n
expand inside a childs body and cause
intestinal obstr uctions, resulting in
severe discomfort, vomiting, dehydration
and could be life threatening. Similar
toys have not shown up on x-rays and
needed surgery to be removed from the
body. This recall involves Doodlebutt
Jelly BeadZ Jumbo BeadZ and Magic
Growing Fruity Fun water-absorbing

polymer toys. The toys can absorb from

300 to 500 times their weight in water
and can grow up to eight times their original size.
Jumbo BeadZ toys are marble-sized
water-absorbing balls. The toys were sold
in a package consisting of three separate
2.5-inch x 2-inch clear, resealable bags
inside a 3.5-inch x 4-inch clear, resealable
bag. Each smaller bag had eight to 12
water balls of slightly different sizes. The
balls came in clear, blue, red, orange,
yellow, green and purple colors. The
front of the larger bag had a multi-colored label with the words Jelly BeadZ,
Easy to follow directions and had
instructions for use. Magic Growing
Fruity Fun toys are water-absorbing polymers in the shapes of apples, bananas,
butterflies, cherries, grapes, pineapples,
roses and strawberries. They were sold in
3.5-inch x 4-inch, clear, resealable bag
with seven assorted shapes in it.
They came in blue, green, orange, pink,
red and yellow. The label on the front of
the bag has the words For Kidz of All
Ages, Jelly BeadZ, Bouncy and Beautiful, Colorfast, Non Toxic, Safe for
the Environment, and other words that
describe uses for the product. The back
of the package has two smaller labels.
One label contains instructions for use
a nd the other ha s a ba rcode with
XU00EC1JRN beneath it. No incidents/
injuries have been reported. However,
The U.S. Consumer Product Safety Commission (CPSC) is aware of one incident
with a similar water-absorbing polymer
ball product in which an 8-month-old girl
ingested the ball and it had to be surgically removed and two cases outside of
the U.S. with one death.
The balls were sold at Amazon.com from
February 2012 through September 2013
for about $9. Consumers should immediately stop using the recalled polymer
products and take them away from small
children. Consumers should contact
Doodlebutt for a full refund. Consumer
Doodlebutt collect at 239-313-9779 from
9 a.m. to 5 p.m. ET Monday through
Friday or at e-mail whitmana@live.com.
Photos available at http://www.cpsc.gov/
en/ Recalls/2014/ Doodlebutt-RecallsJelly-BeadZ -Jumbo -BeadZ -and-MagicGrowing-Fruity-Fun-Toys/.
Once again there have been a large number
of recalls since the last issue. While we
werent able to include all of them in this
issue, we included those of the highest importance and urgency. If you need more informa

tion on any of the recalls listed above, visit our

firms web site at www.BeasleyAllen.com/
recalls. We would also like to know if we have
missed any significant recall that involves a
safety issue. If so, please let us know. As indicated, you can also contact Shanna Malone at
Shanna.Malone@beasleyallen.com for more
recall information or to supply us with information on recalls.

XXI.
FIRM ACTIVITIES
Lawyers At Beasley Allen Receive Special
Awards
We are pleased to announce the co-litigators of the year for 2013 at Beasley Allen are
Kendall Dunson and Navan Ward, Jr. In the
past several years, these lawyers have done an
excellent job for their clients and for the firm.
They have done especially well during the
past year. We are most appreciative of their
dedication and hard work.
The Litigator of the Year award is presented
to the lawyer who demonstrates exceptional
professional skill throughout the course of the
year and best represents the firms ideal of
helping those who need it most. This year
two law yers were chosen to receive the
award. As usual, it was difficult to make the
selection since there were so many other
lawyers who had performed very well during
the year.

Kendall Dunson
Kendall works in the firms Personal
Injury / Products Liability section. He has
worked on numerous cases aimed at
compensating clients for human losses
and also at corporations to manufacture
safer products. Kendall was a member of
the trial team that tried a wrongful death
lawsuit against a corporate defendant
resulting in a $2.5 million verdict, the
largest jury verdict in Selma, Ala. That
verdict influenced the corporate defendant to outfit its entire fleet of trucks
with audible backup alarms.
Kendall handled the bus accident case in
Huntsville, Ala., that involved in the
death of four students and numerous
injuries to other students. The suit
resulted in the cancelation of the contract between the County and the defendant, which was responsible for safely
transporting students to school.

Kendall was also lead counsel in a maritime lawsuit resulting in a $5.75 million
verdict for the children who lost their
father. He was co-counsel in a products
case tried with Chris Glover in Georgia
recent ly t hat resu lted i n a $4.639
million verdict.

Navan Ward
Navan works in the Mass Torts Section.
Currently, Navan is the firms lead lawyer
in the metal-on-metal hip implant litigation, which involves thousands of victims
who have defective hip implants causing
severe pain, metal poisoning, and in
some cases revision surgery. These defective hip devices are manufactured by
various companies, such as Johnson &
Joh n s on a nd D eP u y O r t hop e d ic s,
among others.
Navan was selected to serve on the Plaintiffs Steering Committee (PSC) for the
DePuy Hip Implant Recall Multi-District
Litigation (MDL), as well as to the PSC for
the Pinnacle hip replacement MDL. He
also serves as Co-Chair of the DePuy
Metal-on-Metal Hip Implant Litigation
Group for the American Association for
Justice (AAJ).
Navan also has been selected to serve on
the PSC for the Biomet M2a Magnum Hip
Implants Product Liability Litigation. He
Navan was involved in the recent $2.475
billion settlement from DePuy Orthopaedics, a subsidiary of Johnson & Johnson,
for claims involving the defective ASR
hip implant parts, which is part of the
metal-on-metal hip implant litigation.
Navan was also heavily involved in with
the hormone replacement therapy (HRT)
litigation, representing hundreds of
women who were diagnosed with breast
cancer as a result of ingesting these combination hormone medications. His trial
team was responsible for obtaining a
$72.6 million verdict for three hormone
therapy clients in a case that was tried in
Philadelphia.
Beasley Allen also selected Lawyers of the
Year in each of the firms four sections. Those
lawyers selected were:

Chris Glover, Personal Injury Section

Lawyer of the Year
Chris is currently working on cases
involving 18-wheelers and heavy truck
accidents, as wel l as si ngle-veh icle
crashes. Chris was part of the trial team
that secured a $4.639 million verdict
from a Georgia jury against seat belt man-

www.JereBeasleyReport.com

35

ufacturer Key Safety Systems. This was

an extremely important verdict in the
automotive industry because the verdict
rendered was against a component level
manufacturer (Key Safety Systems) rather
than the automobile manufacturer.

Chad Stewart, Fraud Section Lawyer

of the Year
Chad is focused primarily on Medicaid
Fr aud L itigation, a nd he ha s been
involved in several multi-million dollar
settlements, as well as a $38.2 million
dollar verdict.These cases, referred to as
AW P cases, have been successf u l ly
handled in eight states.

Leigh ODell, Mass Torts Section Lawyer

of the Year
Leigh is working on cases involving
transvaginal mesh. Transvaginal mesh,
also known asbladder sling, is used to
treat commonpelvic floor disorderssuch
aspelvic organ prolapseandstress
u r i nar y i nconti nence.Compl icationsincludeerosionof the device into
vaginal tissue resulting inpain, incontinence,infectionsandhemorrhaging.
Many women have required multiplesurgeriesto remove the mesh. Some cases
have been involved fatalities. Leigh was
appointed to the Plaintiffs Steering Committee for all four ongoing multidistrict
litigations, filed against mesh manufacturers American Medical Systems, Boston
Scientific Corp., Johnson & Johnson, and
C.R. Bard.

John Tomlinson, Toxic Torts Section

Lawyer of the Year
John is currently involved in the pursuit
of claims for several individuals and businesses against BP and other responsible
parties as a result of the Gulf of Mexico
oil spill.He has worked long and hard on
behalf of his clients in the BP litigation.
John has spent a tremendous amount of
time in New Orleans where this litigation
is being tried.
Each of these four lawyers has done an
excellent job in their section. We are very
thankful for them and for their hard work and
dedication to their clients.

Allen would be supporting five groups over

the Christmas holidays. Wendi Lewis supplied
the results of this hard work and I am highly
pleased with all that was done. The projects
were highly successful, lots of folks benefited,
and our firm was blessed to have been able to
help them.

Capitol HillNursing Home

Capitol Hill is a nursing home in downtown Montgomery. Each Christmas they
put up an Angel Tree with the residents
Ch r istma s wish l ist. B ea sley A l len
employee Theresa Perkins led the campaign again this year with great success.
Beasley Allen staff and lawyers adopted
150 residents! That means 150 people,
who might not have received a gift, a
card or even a visit during Christmas,
knew that someone really cares for them
at this most special time of year. Thank
you, Theresa, and everyone who adopted
an angel from Capitol Hill.

Friendship Mission
For many years Willa Carpenter has led
the blanket and jacket drive for the homeless served by Friendship Mission. Each
year we are so proud of what Willa is able
to accomplish with the help of Beasley
Allen staff and lawyers. This year is no
exception. Willa collected 139 items for
the homeless that can be worn or used by
them. This will benefit folks in real need
on a daily basis. In addition to these
t h i ng s, d oz e n s of toi le t r ie s we r e
given.We appreciate Willas hard work
and also the participation by our staff
and lawyers who contributed to such a
worthy cause.

Adullum House
This year the children of Adullum House
voted to go on a trip to Gatlinburg, Tenn.,
instead of receiving presents for Christmas. This was the first time many of the
children have been on a vacation or a
family trip. Fifty-seven children and
adults made the trip. Thanks to Angela
Talley and all of the staff and lawyers at
Beasley Allen who contributed. Angela
was able to take a nice gift card to help
with incidentals along the way.

United Cerebral Palsy

Christmas Casual Day
Firm Activities
You may recall that we mentioned last
month that the staff and lawyers at Beasley
36

Beasley Allenemployees helped raise

funds and awareness for United Cerebral

www.BeasleyAllen.com

Palsy of Central Alabama (UCP) by participating in Christmas Casual Day on

Dec. 13. According to UCP leadership,
our firms staff and lawyers donated more
than any other participating group in the
Central Alabama region! Project organizer Mandy Cook was delighted at the
response and she thanked everyone for
thei r suppor t. T h is wa s a tremen dous effort.

Family Sunshine Center Christmas

In addition to our Thanksgiving dinner
project, Angela Talley organized the
effort to provide food for six families
from the Family Sunshine Center who
needed our help and blessing over the
Christmas holidays. Law yers adopted
families and donated non-perishable food
products, turkey and ham to ensure
these families would have food on the
table this year. The Family Sunshine
Center provides a safe haven for women
and their children who are victims of
domestic violence.Six worthy families
did not go hungry during the holidays
because of the generosity of our lawyers
and the hard work by Angela.
Its a good feeling to know that our staff and
lawyers supported each of the projects mentioned above. They showed their concern for
folks who needed help during the holiday
season and went the extra mile to make sure
the projects were successful. This sort of
things is an indication that our folks understand the real meaning of Christmas.

XXII.
SPECIAL
RECOGNITIONS
A Tribute To Oakley Melton
My very good friend Oakley Melton, Jr., died
recently. Oakley was the founder of the highly
successful and well-respected Montgomery
law firm Melton, Espy & Williams, P.C. He was
a highly respected lawyer and had a distinguished career. But Oakley may be better
known among sports fans in Alabama for
another organization he started - the AlabamaAuburn Perfect Attendance Club. While still a
student at the University of Alabama and President of the Student Government Association,
Oakley played a role in reviving the AlabamaAuburn football rivalry in 1948. Its hard for
todays fans to imagine an SEC football season
without the Iron Bowl. But actually, the two

teams did not play each other for 41 years following a dispute between the two schools.
W hen the r iva l r y wa s rev ived, Oa k ley
attended 63 consecutive Iron Bowls. He began
keepi ng tr ack of others who faith f u l ly
attended the games, creating the AlabamaAuburn Perfect Attendance Club. Oakleys
perfect attendance streak ended in 2011
because of his declining health.
Oakleys firm, Melton, Espy & Williams, represented other law yers and judges, quite
often, earning Oakley the designation as the
lawyers lawyer. Oakley was a tremendous
courtroom lawyer and enjoyed a great career.
He was elected President of the Montgomery
County Bar in 1974 and as President of the
Alabama State Bar in 1978. His major accomplishment as Bar President was to successfully
propose mandatory continuing legal education for Alabama lawyers, a program that is
still in place today. During his career, Oakley
also served as Chairman of the Supreme Court
Advisor y committee, which created and
adopted the current Alabama Rules of Civil
Procedure. He was a trusted advisor to five
Alabama governors and several lieutenant governors, as well as legislators and members of
trial and appellate courts.
Oakley was truly a giant in the legal profession. He was also a good man in every
respect and is a man who will be sorely
missed. Oakley is survived by his wife of 62
years, Melba Studdard Melton, and by his children, daughter Ree Smith (Sage); son Oakley
Melton III (Diane); daughter Marcia Hudson
(Adams); daughter Lee Hayes; and son Ben
Melton. He also had eight grandchildren and
three great-grandchildren.

XXIII.
FAVORITE BIBLE
VERSES

Put on the whole armor of God, that

you may be able to stand against the
wiles of the devil.For we do not wrestle
against f lesh and blood, but against
principalities, against powers, against
the r ulers of the darkness of this
age,against spiritualhostsof wickedness in the heavenlyplaces. Therefore
take up the whole armor of God, that
you may be able to withstand in the
evil day, and having done all, to stand.
Stand therefore, having girded your
waist with truth, having put on the
breast plate of righteousness,and
having shod your feet with the preparation of the gospel of peace;above all,
taking the shield of faith with which
you will be able to quench all the fiery
darts of the wicked one.And take the
helmet of salvation, and the sword of
t h e Sp ir it , wh i c h i s t h e wo rd of
God;praying always with all prayer
and supplication in the Spirit, being
watchful to this end with all perseverance and supplication for all
the saints
Ephesians 6:11-18
Browning Wood, who serves as Youth Minister at St. James United Methodist Church,
sent in a verse for this issue. Browning is
doing a great job with the young people at our
church. He intends on becoming a pastor.
For to me, to liveisChrist, and to
dieisgain.
Phil. 1:21

Congresswoman Martha Roby, who represents the 2nd Congressional District, furnished
a verse during the week before Christmas.
Jesus message in John 16:33 gives each of us
hope for the New Year and beyond.
I have said these things to you, that in
me you may have peace. In the world
you will have tribulation. But take
heart; I have overcome the world.
John 16:33
John Ed Mathison, who retired as Senior
Pastor of Frazer United Methodist Church
several years back, furnished some timely
verses for this issue. John Ed is still very active
in a number of groups and organizations. His

verses give all of us great hope and assurance

when we face the trials and tribulations of
everyday life.

Russ Abney, a lawyer in our firms Mass

Torts Section, says that in his opinion, the
message found in Matthew 25:34-41 is the
essence of Christianity. He says these verses
exemplify the primary struggle many Christians have and thats to remain humble and to
treat those around us who are most in need as
we would treat Christ. Russ says its hard for
him to imagine how much better off mankind
would be if Christians around the world all
aspired to this standard in their daily lives. In
the 25th Chapter of Matthew we are told:
Then the King will say to those on his
right, Come, you who are blessed by
my Father, inherit the kingdom prepared for you from the foundation of
the world. For I was hungry and you
gave me food, I was thirsty and you
gave me drink, I was a stranger and
you welcomed me, I was naked and you

clothed me, I was sick and you visited

me, I was in prison and you came to
me. Then the righteous will answer
him, saying, Lord, when did we see you
hungry and feed you, or thirsty and
give you drink? And when did we see
you a stranger and welcome you, or
naked and clothe you? And when did
we see you sick or in prison and visit
you? And the King will answer them,
Truly, I say to you, as you did it to one
of the least of these my brothers, you
did it to me.
Matthew 25:34-41
Andrew Brashier, a lawyer in our Consumer
Fraud Section, furnished two timely verses for
this issue. He says these verses have long been
his favorite due to Jesus cutting to the core
issue for all of us: do we really follow His Way?
See, I have set before you today life and
good, death and evil. I call heaven and
earth to witness against you today, that
I have set before you life and death,
blessing and curse. Therefore choose
life, that you and your offspring may
live, loving the Lord your God, obeying
his voice and holding fast to him, for he
is your life and length of days, that you
may dwell in the land that the Lord
swore to your fathers, to Abraham, to
Isaac, and to Jacob, to give them.
Deuteronomy 30:15; 19-20 (ESV)
For what does it profit a man to gain
the whole world and forfeit his soul?
Mark 8:36 (ESV)
Dr. John Kline, a professor at Troy University, also sent in two verses. John teaches a
course on leadership at Troy and I have had
the honor of speaking to his classes for a
number of years. Its a course that helps young
people get ready to take their place in the
real world.
Jesus said to him,I am the way, the
truth, and the life. No one comes to the
Father except through Me.
John 14:6
For to this you were called, because
Christ also suffered for us,leaving
usan example, that you should follow
His steps.
1 Peter 2:21
Beverly Larkin, who works in our firms
Accounting Department, supplied a verse that
goes right along with our firms Christmas

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37

spirit as evidenced by the projects mentioned

in this issue.
The generous will prosper;those who
refresh othe rs will the m selves be
refreshed.
Proverbs 11:25
Jeremy Smith was youth minister at St.
James Un ited Methodist Chu rch before
moving to Niceville, Fla. He now serves as
Teaching Pastor at the Niceville United Methodist Church. It was really good hearing from
Jeremy. He sent in a verse that contains the
wo r d s P a u l p r a ye d o v e r t h e C hu r c h
in Ephesus.
I prayed that God would bless you in
the heavenly realms with every spiritual blessing in Christ. That He would
give you the Spirit of wisdom and revelation, so that you may know him
better. I pray also that the eyes of your
heart may be enlightened in order that
you may know the hope to which he
has called you, the riches of his glorious
inheritance in the saints, and his
incomparably great power for us who
believe.
Ephesians 1:3, 17-19

XXIV.
CLOSING
OBSERVATIONS
Alabama Leads The Nation
Alabama is ranked first in the nation again,
but unfortunately this time its not in football.
One point separated Alabama from Indiana on
the 2013 State Scorecard compiled by the
Brady Campaign to Prevent Gun Violence and
the Law Center to Prevent Gun Violence. That
single point made all the difference in the
final rankings by these two groups. Indiana
was given a D minus for the gun safety laws in
their state. Alabama, with one less point than
the Hoosier State, topped the list of the 26
states that received an F. To put it bluntly, my
home state f lunked the Brady Campaigns
annual 100 point test with flying colors. In a
report released last month, along with the
scorecard, its explained that the Law Center
and the Brady Campaign join forces every year
to rank each state based on 30 different criteria related to their regulation of guns and
ammunition.
Laws that the two gun control groups deem
effective in reducing violence earn points for a
38

state. The stronger the law, the more points

awarded. Points were taken away for legislation deemed irresponsible or dangerous. Only
15 states earned a C or higher. Even so, the
organizations said states nationwide improved
their laws in 2013 despite widespread gun
control measures failing at the federal level in
April. That pretty well tells us that reasonable
gun control legislation hasnt done very well
in most states. Still, in my opinion, any progress is a good thing. The report said:
When Congress failed to pass any new
gun violence prevention legislation in
2013, including the overwhelmingly
popular legislation to expand backgr oun d c h e c k s , s t a te l egi s l a t ur e s
answered the call. Twenty-one states
enacted new laws to curb gun violence
in their communities, with eight of
these states passing major reforms.
California earned the highest score of any
state in the nation, an A minus, receiving 89
points of out 100. On the other end of the gun
legislation spectrum, Arizona claimed the
lowest score in the report, earning only 6
points. Here in Alabama, legislators didnt fare
much better than Arizona in terms of points,
but Alabamas 17.5 out of 100 ranked our state
number 25 in the nation and with the highest
score that still merited an F on the scorecard.
I fully realize that the National Rifle Associations (NR A) power and control, both in
Washington and in most state legislative
bodies, will keep any reasonable gun control
legislation from passing. One would think that
legislators would do whatever is needed to
assist in curbing the gun-related violence that
has become all too commonplace in the U.S.
But until the American people get involved
and demand action, the NRA will continue to
run the show, and the killings will continue.
We owe it our children and grandchildren to
do the right thing on the issue of gun control.
We should urge our lawmakers to pass reasonable gun control legislation, starting in Washington. We cant afford to allow the NRA to
conti nue to exer t its control over the
politicians.
We should all remember how the country
reacted after the massacre of 20 children and
six adults at Sandy Hook Elementary School in
Newtown. That tragic event spurred politicians nationwide to take the legislative action
to regulate the use and possession of guns and
ammunition. It appeared at the time that
something would happen. But months have
passed and the public outcry has pretty much
gone away. So has the legislative push by our
elected officials in Washington. There was
activity on the state level, but what was done
helped the NRA and the gun leaders. A New
York Times study shows of the more than 100

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state bills that have been signed into law this

year, most of them loosen restrictions on
guns, not tighten them.
According to the infographic on the Times
website, around 1,500 bills to somehow regulate firearms or ammunition were introduced
at the state level in the past year. Remember
the Sandy Hook killings were carried out in
December 2012. Only 109 of those bills have
been signed into law, and only 39 of those legislate tougher restrictions.
The other 70 laws, including Alabama Act
2013-283, actually remove legislative obstacles
for gun owners. In Arkansas, for instance, a
law went into effect allowing guns in private
elementary and high schools that are operated
by religious organizations. In West Virginia,
law-abiding holders of a concealed carr y
permit no longer have to undergo an additional background check when purchasing firearms.
In Connecticut, the site of the killings, laws
regulating guns and ammo were tightened
considerably. Also, California and New York
passed laws that increased government regulation. Private sales in New York are now illegal
without a federal background check. In Connecticut, high-capacity magazines and more
than 100 firearms were banned as assault
weapons. In Alabama, SB 286 was adopted
and signed into law in May. It went into effect
as Alabama Act 2013-283 on August 1. It was a
major overhaul of the states gun regulations,
especially concerning the issuance of concealed carry permits.
While many celebrate the new gun law in
Alabama and others like it across the country
as protections of the Second Amendment right
to bear arms, others lament the lack of tighter
widespread regulations at the state and federal
levels. I hope that we will see some reasonable
legislation passed this year both in Washington and in the states. We can honor the Constitution and still protect innocent people from
becoming victims of mass murders in our
schools, malls and theaters.
Sources: AL.com and The New York Times

Monthly Reminders
If my people, who are called by my
name, will humble themselves and pray
and seek my face and turn from their
wicked ways, then will I hear from
heaven and will forgive their sin and
will heal their land.
2 Chron 7:14

All that is necessary for the triumph of

evil is that good men do nothing.
Edmund Burke
Woe to those who decree unrighteous
decrees, Who write misfortune, Which
they have prescribed. To rob the needy
of justice, And to take what is right
from the poor of My people, T hat
widows may be their prey, And that
they may rob the fatherless.

The dictionary is the only place that

success comes before work. Hard work
is the price we must pay for success. I
think you can accomplish anything if
youre willing to pay the price.
Vincent Lombardi

XXV.
PARTING WORDS

Isaiah 10:1-2
I am still determined to be cheerful and
happy, in whatever situation I may be;
for I have also learned from experience
that the greater part of our happiness
or misery depends upon our dispositions, and not upon our circumstances.
Martha Washington (1732 - 1802)
The only title in our Democracy superior to that of President is the title
of Citizen.
Louis Brandeis, 1937
U.S. Supreme Court Justice

I asked Willa Carpenter, who serves as

Human Relations Liaison at Beasley Allen, to
write the Parting Words for this issue. Willa
has been with the firm for more than 20 years
and she is a most important person with our
firm. In fact, many consider Willas role to be
the most important one in the firm. She is an
inspirationbecause of her spiritual nature
to our staff and lawyers. Willa is always available to help folks work through problems they
are encountering. She has a God-given talent
that allows her to really help folks. The following is her timely message for the New Year.

making things better. Each year, many

of us enjoy setting new goals for ourselves to achieve in the coming year,
such as becoming financially stable,
improving our health, or getting a promotion at work. While achieving any
one of these goals can bring satisfaction, it is only temporary. But Gods
Word says there is a newness that will
last for all eternity!
2 Corinthians 5:17 says, Therefore, if
anyone is in Christ, he is a new creation; old things have passed away;
behold, all things have become new.
We are made new by the covenant
created through Jesus Christ. As this
new year unfolds, lets strive to walk in
the eternal newness that is found only
in our Lord and Savior, Jesus Christ! My
hope for each of you is that you will
have a blessed New Year.
I join with Willa in wishing for all of our
readers and their families a blessed New Year!

As we face a new year, naturally we

begin to think about change and

To view this publication on-line, add or change an address,

or contact us about this publication, please visit our Website: BeasleyAllen.com

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

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Jere Locke Beasley, founding shareholder of the law firm Beasley, Allen, Crow,

Jere Locke Beasley,

founding
shareholder
the is
lawone
firmofBeasley,
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Methvin, Portis & Miles, P.C., is one of the most successful litigators of all time,
with the best track record of verdicts of any lawyer in America. Beasleys law firm,
established in 1979 with the mission of helping those who need it most, now
employs 44 lawyers and more than 200 support staff. Jere Beasley has always
been an advocate for victims of wrongdoing and has been helping those who need
representation is made that the quality of services to be performed is greater than the quality of legal services performed by other lawyers.
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years.