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I. As mentioned above, with state finances
in terrible shape and budgets being consid-
have funded education in the past, and then
look at the financial mess we now have in
CAPITOL ered that will hurt lots of folks, it’s time to Alabama, it’s evident that education hasn’t
OBSERVATIONS start looking at ways to adequately fund been our state’s top priority.
state government, including public educa- When you compare the annual expense
tion. It’s good to see Gov. Robert Bentley of housing an inmate in Alabama with what
take steps to close corporate tax loopholes we spend each year to educate a young
AlAbAmA Needs A ToTAl RevisioN of iTs
for multi-state and multi-national compa- person in our public schools in grades K
TAx sysTem nies. That’s long overdue and without ques- through 12, it certainly appears that we
Over the years I have constantly heard tion it should be done now. The Governor’s have our priorities out of kilter. Over the
that desperate times always call for desper- plan is a good one and hopefully will have last few years, in many states there has been
ate measures. With that premise in mind, it’s strong support in the Legislature. In my an escalation of spending by state govern-
quite evident that state government in opinion, cutting out corporate tax loop- ments for prisons. Even though in Alabama
Alabama is facing a most desperate financial holes should be the first order of business. we haven’t seen that sort of funding, the
situation. It would be an understatement to Under current law, any increase in state prison system’s needs get plenty of media
say that we have a monumental fiscal crisis income tax collections would go to the attention. It’s evident that the way we have
on our hands. Unfortunately, it’s a crisis that Special Education Trust Fund, the main neglected public education in our state has
will only get worse unless some real source of state tax dollars for public schools
changes are made in our tax structure. For and colleges. It’s been estimated that
at least the past 50 years, Alabama Gover- closing loopholes used by multi-state or I N TH I S I S S U E
nors and Legislators have consistently multi-national corporations could raise
about $200 million a year. Gov. Bentley I. Capitol Observations . . . . . . . . . . . . . . . 2
promised “no new taxes” when running for
their respective offices. During that same should be commended for taking a bold II. Medicare Fraud Litigation Update . . . . . 4
period of time, however, we have seen pro- step in this direction.
The tax burden in our state on middle III. A Report on the Gulf Coast Disaster . . . . . 5
grams that are funded out of the General
Fund and Special Education Trust Fund and low income Alabamians is totally ineq- IV. Purely Political News & Views . . . . . . . . 7
“patched” to the point that there is no uitable and grossly unfair. Those who can
least afford to pay are hit the hardest. Also, V. Legislative Happenings. . . . . . . . . . . . . . 8
longer room for even a small patch to be
applied. small business owners pay their share of VI. Court Watch. . . . . . . . . . . . . . . . . . . . . . 8
Since the days of Gov. George C. Wallace, taxes and they should not be treated
unfairly. We have let the huge corporations VII. The National Scene . . . . . . . . . . . . . . . 11
the state’s unofficial policy whenever fiscal
problems arose was to “rob Peter to pay off the hook for years in large part due to VIII. The Corporate World . . . . . . . . . . . . . . 12
Paul.” We are now paying for that approach the existing loopholes in our tax laws.
Even before the loopholes are dealt with IX. Congressional Update . . . . . . . . . . . . . 13
to funding programs in government and
that’s bad news for Alabama citizens. A lack and closed, we should take a close look at X. Product Liability Update . . . . . . . . . . . 15
of long-range planning over the years has our system of ad valorem taxation and
make the needed changes. Property taxes in XI. Mass Torts Update . . . . . . . . . . . . . . . . 16
played a major role in our current financial
problem. We have had no real long-range Alabama are much too low, making a XII. Business Litigation . . . . . . . . . . . . . . . . 17
planning in state government, or at the very restructuring of how we tax property an
absolute necessity. The inequitable tax XIII. An Update on Securities Litigation . . . . 18
best a minimal amount, and that failure has
caused our state to suffer greatly. I can burden on middle and low income Alabami- XIV. Insurance and Finance Update . . . . . . 19
never recall a time when we were in a ans has been and continues to be a major
problem. This has held our state back both XV. Employment and FLSA Litigation . . . . . 20
worse shape in state government from a
fiscal perspective. It’s time to do much socially and economically. When compared XVI. Premises Liability Update. . . . . . . . . . . 21
more than cut budgets and layoff state with how large landowners and timber
companies are taxed in our state, most all XVII. Workplace Hazards . . . . . . . . . . . . . . . 23
employees and teachers.
Without any doubt, it’s time in Alabama Alabama citizens are being treated unfairly. XVIII. Transportation . . . . . . . . . . . . . . . . . . . 24
to get rid of “unnecessary programs” both in It’s time to change things!
XIX. Nursing Home Update . . . . . . . . . . . . . 25
state government and in public education.
But to be realistic, there aren’t that many XX. Healthcare Issues . . . . . . . . . . . . . . . . 25
programs that truly can be described as iT’s Time To fiNAlly mAke educATioN The
XXI. Environmental Concerns . . . . . . . . . . . 26
being unnecessary. And, even if we got rid Top pRioRiTy
of those that do qualify, it would save us XXII. The Consumer Corner . . . . . . . . . . . . . 27
very little money. On the other hand, elimi- One has to wonder how we have gotten
to the place in Alabama where the need for XXIII. Recalls Update . . . . . . . . . . . . . . . . . . . 28
nating or even cutting back on necessary
programs will hurt our state and will wind funding our prison system gets more atten- XXIV. Firm Activities . . . . . . . . . . . . . . . . . . . 35
up causing tremendous fiscal problems in tion from some persons in positions of lead-
ership than does the need for adequate XXV. Special Recognitions . . . . . . . . . . . . . . 36
the future. I believe all agree that cutting
out a single program that is “essential” funding of public education. For years most XXVI. Favorite Bible Verses . . . . . . . . . . . . . . 36
would be a tragic mistake. So what is the political leaders in our state have claimed
that public education was the top priority XXVII. Closing Observations . . . . . . . . . . . . . . 37
answer?
for them. But when you look at how we XXVIII. Parting Words . . . . . . . . . . . . . . . . . . . 39
2 www.BeasleyAllen.com
had an adverse impact on both education Our progress over the last 15 years fied person to be nominated in recent
and the prison system. has been outstanding. Wanting to memory and I totally agree with them. The
It’s not surprising to learn that studies destroy everything that we have President made an excellent choice for a
show there is a definite connection worked so hard to improve, shows most important position.
between high incarceration rates and none of the great “Alabama Leader-
poorly performing schools. I am convinced ship” I have grown to love. When Gov-
that if we would increase spending signifi- ernor Wallace told America decades ReTuRN-To-pRisoN RATes RemAiN lARGely
cantly for grades K-12, and also for voca- ago that they were paying too much uNchANGed iN AlAbAmA
tional education programs, our inmate in taxes, he seemingly forgot to
populations over time would be sharply qualify his arguments for Alabami- I have always thought we had a revolv-
reduced. Of course, strict accountability ans. Our immediate future looks ing door policy—although unintended—in
must also be a part of spending of funds in bleak and will be if we allow this to our prison system. Some 35 percent of the
education at every level. In any event, it’s happen! 10,880 state inmates who got out of prison
time we really made education the top pri- in Alabama in 2004 returned within three
ority in Alabama! I totally agree with Dr. Bronner’s years, a rate that was virtually unchanged
assessment of the situation facing our from the three-year period between 1999
nation and he also is 100% correct and 2002, according to a study released last
on Alabama’s plight. The Republican
A few leAdeRs iN AlAbAmA see The ReAl leadership in the Alabama Legisla-
month. Although the recidivism rate has
picTuRe remained unchanged, Alabama had the 15th-
ture should find time to at least con- lowest rate of the 41 states that reported
I have a great deal of respect for Dr. s i d e r D r. B ro n n e r ’s o p i n i o n s . data, according to the study by the Pew
David Bronner and I believe most folks in Hopefully, he has been involved by Center on the States. Nationally, the recidi-
Alabama share my feelings. There is one the Governor’s office in helping to vism rate between 2004 and 2007 was 43
thing for certain—Dr. Bronner is not afraid find long-range solutions to our percent, compared with 45 percent in the
to let you know where he stands on impor- state’s financial problems. Without 1999-2002 period. Apparently this was the
tant issues. That’s an unusual, but good trait, any doubt, it’s time to make the first-ever state-by-state examination of
and something we need more of in govern- tough decisions required when times return-to-prison rates. Adam Gelb, director
ment. Dr. Bronner wrote the following are desperate. In my opinion, refusing of Pew’s Public Safety Performance Project,
article recently and it is both timely and to recognize that more revenues are made this observation:
right on target. I am including it in its needed, which is politically unpopu-
entirety for our readers. lar, will prove to be a big mistake. Prison spending has escalated enor-
mously over that period, over the past
30 years, but with barely noticeable
my ANAlysis GeoRGe beck NomiNATed As impact on the rate of offenders
u.s. ATToRNey returning to prison.
People across America want better
President Obama has nominated George Alabama Supreme Court Chief Justice Sue
schools and a better government.
Beck to be U.S. Attorney in the Middle Dis- Bell Cobb believes the state’s return-to-
Some want Mandarin (Chinese)
trict of Alabama. This is one of the last prison rate will improve with the expansion
taught in the sixth grade or younger
federal prosecutor slots in the country of drug court programs, which provide
and smaller class sizes.Yet they do not
still held by an appointee of former Presi- treatment in lieu of prison for some Defen-
talk about raising taxes to pay for
dent George W. Bush. I’m not real sure dants. She says that almost every county in
what they advocate. Most everyone
why it took so long to make this nomina- Alabama now has one. Judge Tracy McCooey,
wants to “cut” spending, unless they
tion. In making the announcement, the a well-respected Circuit Judge from Mont-
will be affected. Our country has a
President said: gomery, was instrumental in getting the
serious problem, and it is not that dif-
drug court program started. Data show
ficult to understand.
For his diligence and relentless pursuit there is a significant reduction in recidivism
Once we had a surplus, but you of justice, I have named George L. Beck as inmates go through the program. Simply
cannot conduct two wars without to serve as a U.S. Attorney. I am confi- put, the drug courts really do work. The data
sacrifice. Instead of sacrifice, we cut dent he will serve the people of show that drug courts save millions of
taxes for the rich and expanded bene- Alabama with distinction. dollars and make people safer.
fits like the Bush Medicare prescrip- Source: AL.com
Of course, George’s nomination must be
tion drug benefit for seniors. For those
confirmed by the U.S. Senate. Once con-
who believe that Alabama is a high
firmed, he would replace the current
tax state; it is not. Quite the reverse is
U.S. Attorney Leura Canary. I may be the
true. If Alabama only taxed its citi-
only “Democrat” in Alabama who believes
zens at the same rate as Mississippi,
that Leura has done a good job, but the
we would have an additional $700-
truth is, she really has. I strongly believe
800 million a year! Alabama cur-
that George will do an outstanding job in
rently ranks 49 th in percentage of
this position, as well. He is both smart and
earnings going to the government.
tough and has the experience needed to
get the job done. I have heard numerous
persons say that George is the best-quali-
www.JereBeasleyReport.com 3
II. Mississippi, South Carolina, and Utah in
efforts to recover the billions of dollars in
of Health and Human Services Office of
Inspector General, in investigating and
MEDICARE FRAUD overpayments as a result of the drug manu- negotiating a settlement of the case. CVS
LITIGATION factures’ fraudulent price reporting Pharmacy operates more than 7,000 retail
scheme. The State of Alabama has cases set pharmacies across the United States.
UPDATE for trial in state court this fall against drug As part of the settlement, an existing Cor-
manufacturers Watson Pharmaceuticals, porate Integrity Agreement will be
Inc., Watson Laboratories, Inc., and Watson amended to require CVS to implement
$170 millioN veRdicT ReTuRNed iN Pharma, Inc. correct billing procedures and train
medicAid fRAud cAse iN TexAs Source: Press Release from Texas Attorney General’s employees. An independent review organi-
Office zation will regularly audit payments and
Generic drug manufacturer Actavis made issue reports on CVS’s compliance. CVS has
a big mistake when it decided to take the started working with individual state Medic-
Texas Average Wholesale Price (AWP) fraud AlAbAmA seTTles wiTh cvs iN suiT oveR aid offices to make sure it bills correctly for
case to a jury trial. The result was a record- dRuG cosTs dual-eligible beneficiaries. It should be
setting verdict for damages in the amount noted that since 2004, the Attorney Gener-
of $170 million against the drug manufac- A national Medicaid fraud settlement was al’s Medicaid Fraud Control Unit has recov-
turer. The jury found that Actavis fraudu- reached last month with CVS Pharmacy, ered more than $30 million on behalf of
lently misrepresented the price of its drugs Inc. That included Alabama. Under the set- Alabama’s Medicaid program.
to the State’s Medicaid program, which is tlement, CVS will pay $17.5 million to the Source: Associated Press
funded by taxpayers. The jurors ordered federal government and ten states. The case
Actavis, along with its co-Defendant Actavis was pending in the U.S. District Court for
Elizabeth, LLC, to pay the State of Texas and the Western District of Wisconsin. The set- The mississippi Awp TRiAl
the federal government $170.3 million for tlement resolves the claim that CVS over-
defrauding the Medicaid program. charged the Medicaid programs for Our firm recently completed the first
The Medicaid fraud suits, commonly prescription drugs. Mississippi AWP (Average Wholesale Price)
referred to as the AWP Litigations, against It’s important that the state Attorneys Medicaid Fraud trial in Brandon, Miss. We
drug manufacturers state that the companies General act as guardians of the taxpayers’ tried the case on behalf of the State of Mis-
are misreporting their drug prices in a delib- money, and protect them against inappro- sissippi. Dee Miles, Clay Barnett and Chad
erate effort to increase the payments priate or excessive charges against govern- Stewart from our firm and our co-counsel
received from State Medicaid systems. Under ment agencies. Alabama Attorney General Ronnie Musgrove, who is with the law firm
federal and state law, Medicaid payments to Luther Strange said he was proud of the of Copeland, Cook, Taylor and Bush, tried
drug providers are derived using a series of work performed by our state’s Medicaid the case for two full weeks before the Chan-
pricing levels that the companies disclose to Fraud Control Unit. Funds were recovered cery Court in Rankin County. Judge Thomas
reporting services, which in turn provide the that are badly needed for vital services pro- L. Zebert and Special Master Robert W.
pricing information to state governments. As vided by the Alabama Medicaid Agency. Sneed presided over the trial together. This
part of the joint state-federal Medicaid Alabama will receive $1,150,254.00 from first trial involved the pharmaceutical
program, the states pay pharmaceutical pro- the settlement which represents both company Sandoz Inc. Even though we had
viders millions of dollars a year. The AWP federal and state dollars paid for prescrip- settled with several drug manufacturers,
lawsuits allege that some average wholesale tions drugs for Alabama Medicaid beneficia- this was the first case to actually be
prices are as much as 6,000 percent higher ries. Alabama will keep $366,758.49 from tried. There are more pending cases involv-
than the drugs’ true cost. the settlement as its share, with the remain- ing about 50 pharmaceutical company
Texas Attorney General Greg Abbott der returning to the federal government to Defendants in cases in the Chancery Court.
stated that the $170 million AWP verdict compensate for the portion it had overpaid. We believe that this trial, which was tried
“shows we will effectively use the legal CVS Pharmacy had billed the wrong non-jury, went very well.
system to retrieve any funds that pharma- amount to Medicaid for dual-eligible benefi- Attorney General Jim Hood, his staff, and
ceutical manufacturers and other providers ciaries—Medicaid beneficiaries who also the Division of Medicaid folks were most
improperly take from the Medicaid have third-party prescription coverage helpful in our trial preparation. It has been
program.” The Attorney General added that (other than Medicare). Pharmacies must bill a great pleasure working with the Missis-
“the jury determined that the Defendants the other insurer first, and submit a claim to sippi government on these very important
owe $170 million because of improper Medicaid for only the amount of any cases. We are now in the process of the
drug price reporting. Considering the hun- remaining liability, typically the co-pay. The post-trial briefing and will submit Findings
dreds of millions of dollars that are at stake, investigation found that CVS billed more of Fact and Conclusions of Law to the court
we will continue to vigilantly pursue pro- than the allowed amount for certain dual- for final consideration. This process will
viders that falsely report prices to Medicaid eligible claims, resulting in excessive reim- take approximately 45 days to complete
and defraud the taxpayers.” bursement by the states. and then the case will be fully submitted for
Several states have brought AWP fraud Investigation of the case involved a decision by Judge Zebert and Special
suits against drug manufacturers for the complex analysis of billing and payment Master Sneed. We anticipate that a decision
fraudulent reporting of their drug prices to information, cross-referenced to private will be made in about six to eight weeks.
the state Medicaid agencies. Along with the insurance payments. The involved states Hopefully, it will be a good result for Missis-
states’ respective Attorneys General, our assisted the U.S. Department of Justice, the sippi.
firm currently represents the citizens of U.S. Attorney’s Office in the Western Dis-
Alaska, Alabama, Hawaii, Kansas, Louisiana, trict of Wisconsin, and the U.S. Department
4 www.BeasleyAllen.com
III. The report says that in the years leading
up to the disaster, Transocean had “serious
research has identified higher rates of
depression, substance abuse and domestic
A REPORT ON THE safety management system failures and a violence in areas affected by the spill. Dr.
GULF COAST poor safety culture. These deficiencies indi- Franks expects it will take a minimum of
cate that Transocean’s failure to have an four years for Gulf Coast residents to return
DISASTER effective safety management system and to normal—about twice as long as the
instill a culture that emphasizes and recovery from a hurricane or other natural
ensures safety contributed to this disaster,” disaster. Dr. Franks had this to say:
bp sues iTs pARTNeRs the report further stated. A panel of offi-
cials from the Coast Guard and Bureau of The economic stress and the litigation
I thought from the beginning that the Ocean Energy Management Regulation and makes the population more vulnera-
corporations that caused the Gulf disaster Enforcement held a series of seven hear- ble to these mental health prob-
would eventually turn on each other and it ings for its probe of the Gulf disaster. The lems. Technological disasters like the
appears that has now happened. BP filed a Bureau is expected to release its own pre- oil are a lot more serious, compared
$40 billion lawsuit last month blaming the liminary report on the explosion before to natural disasters. It’s up to us to
Gulf disaster on its partners. In this lawsuit, the two agencies issue a joint final report respond and protect our people from
BP said both Transocean (the rig owner) later this year. these problems.
and Cameron International (the maker of Source: Associated Press According to most scientists, it’s far too
the device that failed to stop the spill) were
soon to make definitive conclusions about
at fault. In its lawsuit, filed in federal court
the scale and scope of the marine distur-
in New Orleans, BP said that Cameron Inter-
The cRisis iN The Gulf is fAR fRom oveR bances. The uncertainty won’t likely be
national provided a blowout preventer with
resolved for years. The next phase of the
a faulty design, alleging that negligence by A panel of researchers from the Univer- disaster will be a debate over the actual
the manufacturer helped cause the disaster. sity of South Alabama believes it will take damage caused by the spill and who all
The suit seeks damages to help BP pay years to fully understand the impact of the should be made to pay. The cause of the
for the tens of billions of dollars in liabilities BP oil spill. It’s very clear that one year after damage is quite evident, with that part of
it has incurred from the disaster. Interest- the disaster the coastal states, including the debate centering on allocation of fault.
ingly, BP said Transocean actually caused Alabama, still face many unanswered ques- Federal law requires the U.S. government to
last year’s deadly blowout and alleged in the tions related to the spill. Dr. Steven Picou, a document a spill’s environmental damage—
Complaint that every single safety system professor of sociology at the University of a process called a Natural Resource Damage
and device and well control procedure on South Alabama, is leading a research project Assessment—and requires companies
the Deepwater Horizon rig failed. on the long-term consequences of the found responsible to pay to fix the damage.
Not wanting to miss anybody, BP then Exxon Valdez oil spill. That gives him a When the government and the companies
filed suit against Halliburton (the cement unique perspective on the Gulf Coast crisis. are unable to agree on a settlement, the
contractor) alleging fraud, negligence and Dr. Picou correctly stated that Alaska resi- matter goes to court.
concealing material facts in connection dents are having to deal with the Exxon Drs. Picou and Franks were among a half-
with its work on the rig. That suit also Valdez disaster more than two decades dozen experts from the University who
claims damages. BP has estimated its total later. That fact should get the attention of all spoke recently on topics related to the oil
liability at $40.9 billion, but it will have to elected officials in the Gulf Coast states as spill. The panel was co-sponsored by the
pay many billions more because of the long- well as those in Washington. We have a long University and the Coastal Alabama Leader-
range effects of its wrongdoing. While BP is road toward recovery in Alabama and in the ship Council, a successor organization to the
attempting to shift the blame to its partners, other states affected by the oil spill. Alabama Coastal Recovery Commission. A
it won’t get off the hook because its The BP oil spill, much like the 1989 inci- video recording of the full panel discussion
conduct was very bad and definitely con- dent in Alaska,“is more complex and stress- is available on the Recovery Commission’s
tributed to cause the disaster. ful” than hurricanes, earthquakes or other website at www.crcalabama.org.
Source: Associated Press natural disasters. Hurricanes happen over a Sources: Mobile Press Register and Wall Street
relatively short time span. Once they are Journal
over, however, the recover y process
TRANsoceAN GeTs A bAd GRAde oN begins. That’s not the case with disasters
sAfeTy such as the Gulf Oil Spill. It can take coNGRess hAs doNe liTTle To help The
decades—such as with the Alaska oil spill— coAsTAl sTATes
A Coast Guard report says that Trans- before the full extent of damages is even
ocean Ltd. had serious flaws in its safety known. Dr. Picou said his Alaska research Now that the one-year anniversary of the
management system and a poor safety shows that the Gulf Coast can expect a Gulf oil disaster has passed, and with a great
culture that contributed to the explosion series of “secondary” disasters as a result of deal of media attention, it might be good to
that resulted in the oil spill. The report also the BP spill. Those include the agonizing see what Congress has actually done to
concludes that decisions made by workers claims process, chronic health concerns help get relief for coastal residents. Unfortu-
aboard the rig “may have affected the explo- and having to go through the litigation nately, there’s not much to report on that
sions or their impact,” such as failing to process. front insofar as activity in Congress is con-
follow procedures for notifying other crew Dr. Ronald D. Franks, a psychiatry profes- cerned. The failure on the part of our law-
members about the emergency after the sor who oversees the College of Medicine makers to take the necessary action to help
blast. at the University of South Alabama, says his the states on the Gulf Coast is quite appar-
www.JereBeasleyReport.com 5
ent and is inexcusable. I fully expected Con- disaster—as well as increased fines for vio- mAjoRiTy of AmeRicANs wANT oil spill
gress to address the multitude of issues lations of federal regulations, and new fiNe moNey seNT To Gulf coAsT
related to the spill and pass the needed ethics rules for federal regulators. Interest-
bills. Sadly, nothing has been done to ingly, the Senate, which was also controlled Members of Congress should talk with
address the major issues raised by the oil b y Democrats, ne ver took up the their folks back home more often and also
spill. These issues include industry liability bill. According by Senate Majority Leader listen to them. An overwhelming majority
limits, regulatory reform, coastal restoration, Harry Reid, the 60 votes needed for passage of likely voters across the country and
and the broader issues of energy policy. couldn’t be obtained because of opposition across the political spectrum appear to
There may be legitimate reasons for this coming from most Republicans and from support Congressional action to direct oil
Congressional inactivity, but I seriously some Democrats. spill fines to the Gulf Coast. A national
doubt it. There are the usual suspects of Even a bill that would have increased lia- survey found that more than four in
partisan gridlock and political gamesman- bility for spills beyond the current $75 five respondents nationwide said that the
ship in what was, in 2010, a Congressional million limit and would have directed most spill penalties should go to “restoration of
election year. The Republican takeover of of the BP fine and penalty money to coastal the Mississippi River Delta and Gulf Coast.”
the House changed the playing field in Con- restoration, never made it to the floor Nearly 70% felt strongly about this, accord-
gress which was a major victory for the during the Senate’s lame-duck session after ing to the survey, which was conducted
powerful oil industry. It’s quite apparent the election. That session was consumed jointly by two Washington, D.C.-area polling
that the big oil companies are still calling with legislation to extend the Bush tax cuts groups and released by environmental
the shots in Congress. for the wealthy for two years. The many advocates.
The recommendations of the National issues facing the coastal states were virtu- While Gulf Coast members of Congress
Oil Spill Commission, named by President ally ignored. are at odds over how much money each
Obama, calling for an overhaul of the gov- Legislation to give the BP Oil Spill Com- state should receive, as well as the rules for
ernment and industry approach to safety, mission the same subpoena power given spending it, it’s quite obvious that the
have been virtually ignored. The Commis- other investigative commissions couldn’t money must go to the Gulf Coast states. But,
sion called for the creation of an indepen- even get to the floor. Another bill would legislation to direct the penalties to the Gulf
dent safety agency within the Interior have allowed families of the 11 rig workers has made little progress. Clean Water Act
Department, a steep increase in the oil spill killed in the explosion to collect damages fine money could be over $21 billion.
liability limit, and a big boost in spending comparable to those allowed for land-based Louisiana Sens. Mary Landrieu, a Demo-
for regulation, much of it paid for by fees on accidents. Even that bill failed. In that case, a crat, and David Vitter, a Republican, jointly
industry. No action has been taken on this single Senator objected, preventing the bill introduced a bill recently to send most of
last proposal, embraced by the Obama from getting a vote. This effectively denied the Clean Water Act fines to the Gulf
Administration and by many in Con- justice to the families of the 11 victims. Coast. The bill would devote 60 percent of
gress. The 101 spill-related bills introduced As a recent poll mentioned below indi- the money to environmental restora-
in the previous Congress have been cut cates, legislation to direct 80 percent of the tion. The amount available for economic
down to 15 so far this year. That’s not a Clean Water Act penalty money to coastal recovery would be no more than seven
good sign. restoration seems to have broad support. percent for each of the five states. Leaders
It appears that all of the talk about legisla- Gulf lawmakers, the Obama Administration, from Alabama and Gulf states outside of
tive reform relating to the oil spill has now and the Oil Spill Commission (which made Louisiana have expressed concern that
been forgotten. The effort largely rests now it one of its foremost recommendations) are money reserved for environmental use will
with a single bill sponsored by Rep. Edward all pushing the bill. But even with that flow disproportionately to Louisiana. The
Markey, D-Mass., the top Democrat on the support, the bill still hasn’t been voted spill may have done more damage to the
House Natural Resources Committee. While on. That’s sort of hard to figure out. economies of Alabama, Mississippi and
his bill would enact many of the Oil Spill Unfortunately, a year after the spill, time is Florida than to their environments, public
Commission’s recommendations, I am told not on the side of the few in Congress who officials in those states have said. Rep. Jo
that the bill’s chances of passing are slim to really want the needed legislation passed. It Bonner, R-Mobile, is drafting his own bill to
none and we all know how that usually hasn’t helped that the news media has been direct Clean Water Act fines to the Gulf
winds up. diverted to other happenings around the Coast.
Instead of dealing with the real issues, the world and has moved away from covering Source: Associated Press
Republicans who took over the House have the Gulf disaster. This has made the job of
focused their legislative efforts on reducing BP (which has spent hundreds of millions
the regulations they claim hurt economic of dollars on public relations) and others bp’s ATTempTs To coNTRol ReseARch
growth and job creation. The lack of effec- who oppose the legislation very easy. I uNcoveRed
tive regulations played a major role in the would like to single out Rep. Jo Bonner for
disaster and now the GOP wants even his hard work on behalf of the people in his BP’s efforts to control research dealing
fewer regulations. It’s very clear that the job Congressional district. He has worked tire- with the impact of the Gulf Oil Spill have
of the powerful oil lobbyists for the indus- lessly trying to get BP and Ken Feinberg to been uncovered and it doesn’t paint a very
try has been made much easier. do the right thing and he is pushing hard to good picture of how BP operates. It was
At the height of public concern with the make something happen in Washington. reported that BP officials tried to take
spill last year, the House, with the Demo- Hopefully, the public will put more pres- control of a $500 million fund pledged by
crats then in control, passed a bill that sure on other members of Congress. If that the oil company for independent research
would set new standards for blowout pre- happens, things in Washington will change into the consequences of the Gulf of
venters—the safety device that the oil spill for the better. Mexico oil disaster. Documents obtained
commission says failed in the Macondo Source: NOLA.com under the Freedom of Information Act
6 www.BeasleyAllen.com
revealed that BP officials openly discussed to undertake the studies we believe didates running, will make for a most
how to influence the work of scientists sup- will be useful in terms of understand- interesting race.
ported by the fund, which was created by ing the fate and effects of the oil on
the oil company in May last year. Russell the environment, eg can we steer the
Putt, a BP environmental expert, wrote in research in support of restoration The pResideNT’s deficiT plAN
an email to colleagues on June 24, 2010: ecology?
President Obama laid out his plan to
Can we ‘direct’ GRI (Gulf of Mexico The BP official acknowledges that BP reduce the federal government’s deficit last
Research Initiative) funding to a spe- may not have that degree of control.“It may month in a speech that has created a fire-
cific study (as we now see the gover- be possible for us to suggest the direction storm of criticism from the leadership of
nor’s offices trying to do)? What of the studies but without guarantee that the GOP. The President said spending cuts
influence do we have over the vessels/ they will be done,” she said. The email goes and higher taxes must be part of any true
equipment driving the studies vs the on to say:“How do we determine what bio- deficit-reduction plan. He correctly stated
questions? logical/ecological studies we (BP) will need that an end to Bush-era tax cuts for the
to do in order to satisfy specific require- wealthy had to be included in any workable
The email was obtained by Greenpeace ments (legislative/litigation, informing the
and shared with the Guardian. The docu- plan. Many in our Nation’s Capitol seem to
response and remediation/restoration strat- have forgotten that the Bush Administration
ments reinforce fears voiced by scientists egies).” Having dealt with BP and witnessing
that BP has too much leverage and influ- put us into two major wars, one of which
its power and influence in Washington, I has lasted longer than World War II. That,
ence over studies into the impact of last wasn’t at all surprised that the oil giant
year’s oil disaster. Those concerns go far coupled with the tax cuts, has put our gov-
attempted to control the badly-needed ernment in a real financial crisis. President
beyond academic interest into the impact research. When you consider the oil giant’s
of the spill. BP faces billions in fines and Obama promised to protect Medicare, Med-
very effective public relations campaign, at icaid and Social Security and that’s exactly
penalties, and possible criminal charges a cost in excess of $200 million, this was to
arising from the disaster. Its total liability what most people wanted to hear.
be expected. It’s quite evident that the federal govern-
will depend in part on a final account pro-
Source: guardian.co.uk ment must learn to live within its means
duced by scientists on how much oil
entered the Gulf from its blown-out well, and while that won’t be easy, it’s an abso-
and the damage done to marine life and lute necessity. We must also reduce our
coastal areas in Louisiana, Mississippi and IV. deficit and get back on a path that will
allow the government to pay down the
Alabama. The oil company has disputed the
government estimate that 4.1 million PURELY POLITICAL national debt. The President is correct,
barrels of oil entered the Gulf. NEWS & VIEWS however, when he says all of this must be
done in such a way to protect our nation’s
While there is no evidence in the emails
that BP officials were successful in directing future which includes protecting the eco-
research, it’s very clear that was their intent. nomic recovery that started in 2009 and has
pResideNTiAl RAce of 2012 will be gradually improved. We must figure out a
Fortunately, the fund has since established iNTeResTiNG
procedures to protect its independence. way to save industrial jobs in this country
Other documents obtained by Greenpeace and keep companies from moving these
The Presidential race next year promises
suggest that the politics of oil spill science jobs to other countries such as India and
to be one of the most interesting in recent
was not confined to BP. For example, the Mexico. We must create jobs and not lose
memory if the early stages of the race are
White House clashed with officials from the them.
any indication of what is to come about
National Oceanic and Atmospheric Adminis- The National Republican Party is having
over the remaining months of this year and
tration and the Environmental Protection difficulty deciding which of the many avail-
over into the next year. GOP candidates are
Agency last summer when drafting the able candidates will have a chance to
already lining up to challenge President
administration’s account of what has hap- unseat President Obama. The list—while
Obama. In fact, this race really got started
pened to the spilled oil. It certainly seems lengthy—is not too awfully impressive at
even before the President was even sworn
like the government wanted the public to this juncture. The strong presence of the
in. It’s very evident that the Republicans
believe things were much better than they Koch Brothers and the Tea Party zealots will
have a weak field of candidates and that has
really were. On occasion, it appeared the make things tough for middle-of-the-road
to be good news for the Obama camp.
government was defending BP and the candidates. It will be impossible to satisfy
A rumor floating around Montgomery is
other wrongdoers and not really helping them in my opinion. Adding to the GOP
that former Alabama Governor Bob Riley
the victims of the spill. problems is the entry of Donald Trump into
will test the waters and likely will be a
Another email, written by Karen Ragoon- the Presidential sweepstakes.
candidate. One Southern Governor, Haley
anan-Jalim, a BP environmental officer Barbour of Mississippi, announced on
based in Trinidad, contains minutes of a April 15th that he was dropping out of the
meeting in Houma, La., in which officials race. His dropping out came as a big sur- A foRmeR pResideNT is RiGhT oN TARGeT
discussed what kind of studies might best prise to most observers. Barbour’s deci-
serve the oil company’s interests. Under sion may well increase the chances of a I am in total agreement with Bill Clinton
agenda item two, the BP official writes: Riley campaign. But in any event, having on most all of the issues facing our country.
Sarah Palin, Donald Trump and Newt Gin- But the one on which that I agree with him
Discussions around GRI and whether the most relates to the on-going federal
grich, as well as a number of Tea Party can-
or not BP can influence this long- budget crisis. The former President is con-
term research programme ($500m) cerned that budget problems in our
www.JereBeasleyReport.com 7
Nation’s Capitol “are being addressed Mike Hubbard and Senate President Pro have a schedule for considering changes to
without real concern for the impact it will Tem Del Marsh testified in trial that GOP the Constitution over a period of three
have on individuals.” He said recently that members of both houses had taken 2010 years. The articles to be considered in years
budget policy is being dictated by “ideo- campaign pledges of “no new taxes.” Each 2012, 2013 and 2014 are:
logues bent on having a smaller govern- said that in the current economic climate
ment.” President Clinton had this to say there would be no push to raise taxes. • February 2012: Article 3 on distribution
about what is going on in our Nation’s The federal lawsuit against the State of of powers, Article 9 on representation,
Capitol: Alabama was brought by families of school- and Article 4 on the legislative depart-
children in Lawrence and Sumter coun- ment.
We’ve gotten away from being a peo- ties. The lawsuit alleges the current
ple-centered society (and become) a • February 2013: Article 1, the declaration
property tax system discriminates against of rights, Article 5 on the executive
money-centered society. A conse- black schoolchildren because it taxes
quence is that the have-nots have department, and Article 14 on education.
timber and farm land well below fair market
even less because the rich continue to value, leaving poor school districts with a • January 2014: Article 7 on impeach-
hold a disproportionate amount of too-small tax base. The Plaintiffs are asking ments, Article 10 on exemptions, includ-
the nation’s wealth. I don’t think U.S. District Judge Lynwood Smith, a veteran ing things exempted from sale for debt
there is an ideological answer. I want and widely-respected jurist, to find the collections, and Article 17 on miscella-
everyone to have a philosophy. It can property laws in the 1901 Alabama Consti- neous items such as a ban on holding a
be a little liberal, a little bit conserva- tution and subsequent amendments in vio- state and federal office at the same time.
tive. There is a huge difference in lation of the Equal Protection Clause of the
having a philosophy and having an U.S. Constitution. They want Judge Smith to While I have great respect for Sen. Marsh,
ideology. The people who made strike the laws down and give the Legisla- and commend him for taking the initiative
America had a philosophy. If you ture a year to fix the problems. to get things moving, I believe it will be a
have an ideology you have the Source: AL.com huge mistake to have the commission
answer to the question before you members come solely from GOP ranks. The
look at the facts. The aspirations of commission should reflect a cross section
ordinary folks are being overlooked of our state’s population. To have a commis-
as the nation tries to work through
AlAbAmA coNsTiTuTioN RewRiTe sion with such an important function made
its budget woes.
commissioN up solely of Republications would be
Sen. Del Marsh, R-Anniston, President grossly unfair, and I believe would cause
In my opinion, the thing that made Bill unnecessary problems. Hopefully, some of
Clinton a great President was his real under- Pro-tem of the Senate, pushed a resolution
through the Legislature that will set up a the persons who have worked very hard on
standing of the trials and tribulations of constitutional reform over the past several
ordinary folks as well as their aspirations for commission of 16 people that could suggest
changes to Alabama’s constitution through years will be named to the commission.
a better life. President Obama and his advi-
the Legislature with relative ease. It’s pretty Source: Birmingham News
sors would be well-served if they would
spend a few days behind closed doors with well agreed that the 1901 Constitution is
Bill Clinton and discuss the nation’s prob- too long, too cumbersome and needs to be
lems with him. Of course, that would mean updated in some manner. Sen. Marsh is
ready to bring about some sort of reform.
VI.
leaving some pretty big egos outside the
meeting place. Under the Senator’s proposal, which was COURT WATCH
put on the fast track to passage, the com-
mission of state officials and their appoin-
tees will recommend, over a period of three couRT imposes limiTs oN clAss AcTioNs
V. years, piece-by-piece changes to much of
LEGISLATIVE the constitution. The Legislature could
accept or reject each. Of course, any change
The U.S. Supreme Court has severely
limited the ability of ordinary folks to file
HAPPENINGS proposed by lawmakers would take effect class action lawsuits against large corpora-
only if also approved by state voters in a ref- tions whose conduct has injured or
erendum. damaged a number of persons. With this
pRopeRTy TAx iNcReAse uNlikely To The Commission members under Sen. decision, this Court has dealt a crushing
hAppeN Marsh’s resolution will be: Gov. Bentley and blow for the rights of consumers. In a 5-4
three people selected by the Governor; Sen. split, the High Court’s majority said busi-
I had hoped the Republican leadership in Marsh and three people named by him; nesses can block their customers from
the Legislature would recognize the Speaker Mike Hubbard and three people using class-action arbitration. Five members
obvious need this year for ad valorem tax picked by him; and Rep. Paul DeMarco, of the Court said federal laws allowing class-
reform in Alabama. But I must admit that it R-Homewood; Rep. Randy Davis, R-Daphne; action arbitration override state laws that
was “wishful thinking” on my part. The two Sen. Ben Brooks, R-Mobile; and Sen. Bryan would invalidate contracts that ban it.
top-ranking members of the Alabama Legis- Taylor, R-Prattville. These four legislators The decision came in a dispute between
lature testified recently in a federal court chair the House and Senate judiciary and AT&T Mobility and a California couple who
trial and made it very clear that property constitution and elections committees. objected to being charged around $30 in
taxes would not be raised in Alabama. The Alabama’s constitution, which has over sales tax for what they were told was a free
lawsuit seeks to strike down the state’s 1,000 amendments, is divided into 18 parts cell phone. Many large businesses have
current property tax laws. House Speaker or articles. Sen. Marsh’s commission will required arbitration clauses in consumer
8 www.BeasleyAllen.com
contracts to protect them from having to issue in the case, (Erica P. John v. Hallibur- a remedy that is available to people who
face their customers in court. The Supreme ton), is how courts should set the threshold take brand-name drugs.
Court’s decision means that corporations for certifying a shareholder class action Gladys Mensing and Julie Demahy, the
won’t have to worry anymore about con- alleging securities fraud. A group of mutual two Plaintiffs in cases before the Court,
sumers, or employees joining together and and pension fund investors sued Hallibur- alleged that they developed the neurologi-
fighting them either in lawsuits or in arbi- ton in 2002, alleging that the oilfield ser- cal disorder tardive dyskinesia from taking
tration.“Now, whenever you sign a contract vices company understated its vulnerability metoclopramide, the generic form of
to get a cell phone, open a bank account or to asbestos-related lawsuits and that it over- Reglan, to treat their stomach conditions
take a job, you may be giving up your right stated its revenues. Those misstatements, (diabetic gastroparesis and gastroesopha-
to hold companies accountable for fraud, the suit alleged, artificially caused a rise in geal reflux) for years. They filed separate
discrimination or other illegal practices,” Halliburton’s stock price. lawsuits against the manufacturers, alleging
said Deepak Gupta, a Public Citizen lawyer A federal trial court in Texas dismissed they were liable under state law for failing
who argued the case. the case, ruling that shareholders hadn’t to warn that the drug could cause the disor-
Sen. Patrick Leahy, chairman of the Senate proven that their losses were tied to a par- der. The generic drugmakers argued that
Judiciary Committee, believes the decision ticular statement made by the company or those claims were preempted by the Hatch-
will greatly hurt the rights of consumers to its officers. That decision essentially Waxman amendments to the Food, Drug,
be protected by state laws. Sen. Leahy had imposed a new test for Plaintiffs to meet at and Cosmetic Act, which require a generic
this to say after the Court’s opinion was the class-certification stage. A federal label to match that of its associated brand-
related: appeals court upheld the ruling. Plaintiffs’ name drug. They claimed that because their
and Defense lawyers agree that a Supreme labels had to match, the generic companies
Class actions are an effective way to Court ruling upholding the lower courts could not have strengthened them.
ensure consumer protection, but could radically change the dynamic of The Fifth and Eighth circuits held that
today’s opinion by the Roberts court shareholder lawsuits. Having to prove loss the Plaintiffs’ claims were not preempted, a
continued to move in a direction that causation at that early stage of a case—prior ruling that was in line with the Supreme
undermines this access to justice for to a motion to dismiss being heard—is vir- Court’s 2009 decision in Wyeth v. Levine
hard-working Americans. tually impossible in many cases. Plaintiffs regarding brand-name drugs. It should be
Justice Scalia, who wrote the opinion, have limited power to demand information noted that every court since Levine, as well
was joined by Chief Justice John Roberts from the other side. as the U.S. Solicitor General, has agreed.
and Justices Anthony Kennedy, Clarence The petitioner’s case was presented by When the High Court decided to take up
Thomas and Samuel Alito. The Court’s four David Boies, who represented Al Gore the issue, it consolidated the two lawsuits.
members who dissented were Justices before the Supreme Court in the disputed Louis Bograd, senior litigation counsel with
Stephen Breyer, Ruth Bader Ginsburg, Sonia 2000 Presidential election. The U.S. govern- the Center for Constitutional Litigation in
Sotomayor and Elena Kagan. Justice Breyer ment wrote a brief supporting the petition- Washington, D.C., who argued the case for
said the High Court should not have inter- ers, arguing that the lower courts erred in the Plaintiffs, told the Justices: “The central
fered with the state law, saying: establishing additional hurdles for Plaintiffs issue in this case is that petitioners, in the
at the class-certification stage. The oral argu- face of considerable information that the
California is free to define unconscio- ment on behalf of the company was done warnings on their products were inade-
nability as it sees fit, and its common by David Sterling of Baker Botts. A number quate, did nothing.” Jay Lefkowitz of New
law is of no federal concern so long of industry trade groups, including the York City argued the case for the generic
as the state does not adopt a special Securities Industry and Financial Markets drugmakers. In reporting adverse events to
rule that disfavors arbitration. Association and U.S. Chamber of Com- the FDA, he said, “we have done everything
merce, have filed briefs for the company. A we are required to do.” He contended that
This action by a divided court will go decision in the case is expected by the end the companies were “not obligated to ask
down as one of the most devastating deci- of June. It will be interesting to see if “inves- for a label change.”
sions affecting consumers in recent years. tors” are treated better by this court than A long list of organizations submitted
Even the Tea Part zealots, who say they ordinary folks. amicus briefs in support of the Plain-
believe in the U.S. Constitution, should agree. tiffs. The lawyer for the Plaintiffs character-
Source: Insurance Journal
Source: Associated Press ized the case as “the generic companies
against the world.” The American Medical
pReempTioN iN GeNeRic dRuG Association and a group of seven other
u.s. supReme couRT will heAR cAse befoRe The u.s. supReme couRT medical associations sided with the Plain-
impoRTANT secuRiTies fRAud cAse tiffs, contending that “it should be the mani-
Another very important case for Ameri- fest public policy of this nation that all drug
There is another important class action can consumers is now before the U.S. manufacturers—brand and generic—have a
case before the U.S. Supreme Court. Argu- Supreme Court. Oral argument was heard in continuing duty to conduct themselves as
ments were heard last month in a case that the case last month that will decide vigilant, active, and responsible members of
could dramatically raise the bar for share- whether a generic drug manufacturer has the health care community in furtherance
holders who want to file class-action law- the same responsibility to warn of serious of the safety and well-being of the American
suits against public companies. There are side effects that a brand-name manufacturer public.”The powerful pharmaceutical indus-
dozens of shareholder class actions arising has. If the generic companies prevail, folks try is trying to escape liability and account-
out of the financial meltdown making their who take generic drugs will be left without ability for its wrongful conduct.
way through the lower courts. The central
www.JereBeasleyReport.com 9
Rep. Henr y Waxman (D-Cal.), who the country affecting the judiciary, the tive bodies will pass some meaningful cam-
authored the Hatch-Waxman amendments, report also addresses campaign funding paign finance reform legislation.
and the Attorneys General of 42 states and issues for judges. Source: ABA Journal
the District of Columbia, also submitted The report decries the influence result-
briefs supporting the Plaintiffs’ position. If ing from the sums of money going into judi-
the Court rules for the Plaintiffs, doctors cial elections. The U.S. Supreme Court’s New jeRsey hiGh couRT deNies exxoN
and patients will receive adequate warnings 2010 decision in Citizens United case, strik- AppeAl
about the prescriptions they take. Such a ing down restrictions on corporate cam-
ruling will result in preventing a tremen- paign spending, has played a major role. The New Jersey Supreme Court has
dous number of injuries and deaths. Hope- Campaign contributions in 2010 state refused to hear an appeal from ExxonMobil
fully, the Justices on the Highest Court in Supreme Court retention elections reached over $7 million awarded to a woman whose
the land will do the right thing in this case all-time highs, creating the appearance of “a cancer was caused by contact with her hus-
and affirm the two cases. judiciary indebted to campaign contribu- band’s asbestos-laden clothes. A jury in 2008
Source: Allison Torres Burtka, Justice.org tors, who include attorneys and parties found Bonnie Anderson had contracted
likely to appear before the winning candi- mesothelioma from washing the clothes her
date,” according to DRI. husband wore at Exxon’s Linden Bayway
jusTice iN AlAbAmA will suffeR if The Increased judicial campaign spending has Refinery or through her own work there.
pRoposed budGeT cuTs sTANd also pushed advertising to new heights, the Mrs. Anderson was an electrician at the
report notes. In 2008, a record of nearly $20 refinery from 1975 to 1986, but she did not
Alabama’s Chief Justice has ordered a million was spent on television ads in races have contact with asbestos. She was diag-
reduction in the number of weeks for trials for 26 state Supreme Court seats. There is nosed with malignant peritoneal mesotheli-
in courthouses statewide and has autho- great concern over the use of attack oma in 2001. Her husband removed
rized the presiding circuit judge at every ads. These ads, which often are virtually insulation to fix pumps and filters and does
courthouse to close court offices one day impossible to trace to the real funding not have the disease. ExxonMobil argued
per week if necessary because of cuts in source, work against judicial indepen- there was no way to know how Mrs. Ander-
the budget for the judicial branch of gov- dence. The public’s perception of our judi- son got sick and the company wanted work-
ernment. Chief Justice Sue Bell Cobb signed cial system is swayed in a negative manner er’s compensation laws to limit the
an order reducing the number of weeks for because of how these ads focus on the damages. The New Jersey Supreme Court
civil trials by half and the weeks for crimi- outcome of controversial decisions, even disagreed and denied the appeal.
nal trials by one-third. That was necessary, though the law was followed by the judges Source: Insurance Journal
according to the Chief Justice, because the being attacked. The DRI report includes
system won’t have enough employees to several recommended solutions that call for:
conduct full court schedules. The court pRopeR fouNdATioN musT be lAid foR
• Required disclosure of those who fund
system laid off 120 workers last year and RecoNsTRucTioN videos
third-party attack ads against judges.
another 150 employees will be cut on May
1st. Chief Justice Cobb anticipates another • Automatic disqualification of judges who The 11 th Circuit Court of Appeals has
300 layoffs in October unless the Legisla- receive campaign contributions above a made it very clear that lawyers attempting
ture provides the needed money to keep specific threshold from a party or lawyer to introduce demonstrative exhibits, includ-
the courts open. These changes will hurt appearing before the judge. ing videos, must lay the proper foundation.
the citizens of Alabama. Hopefully, the legis- Great care must be utilized in how this type
lators will find a way to adequately fund the • Creation of an independent group or
evidence is prepared, authenticated and
judicial system. Under the Constitution, the panel of judges at each level of the state’s
presented at trial. Videos that are used
judicial branch is a separate branch of gov- court system to hear and decide disquali-
to recreate an incident, condition or scene
ernment and as a result must be adequately fication motions.
that goes to an issue to be decided by the
funded. jury must meet a certain standard. That is,
• Expanded use of nonpartisan judicial per-
formance evaluations to provide informa- the video must be substantially similar as
tion to voters in the 39 states that elect at set out in Barnes v. GM, a previously
New RecusAl pRoceduRes RecommeNded least some of their judges. The evalua- decided 11 th Circuit decision. The trial
tions, now used in 21 states, can also help judge has wide discretion to admit evi-
A new report by the defense bar in the judges improve and are helpful even in dence of experiments conducted under
U.S. warns that judicial independence and states where judges are appointed, substantially similar conditions. The burden
integrity are threatened by court funding according to the report. The commis- is on the offering party to lay a proper foun-
cuts and the increasing flow of money into sions that perform the evaluations should dation. I suggest that all of our readers who
judicial elections. It was reported that be made up of both lawyers and non-law- are lawyers read the Burchfield v. CSX
almost half of state courts are now operat- yers; should strive for racial, political and Transportation decision.
ing under hiring freezes, while others, gender balance; and should approach
including Alabama, have cut staff pay, imple- their work in a politically-neutral manner.
mented judicial furloughs and cut court- compANy used A judiciAl hell hole
house hours. The report, “Without Fear or It’s good to see that an issue that has defeNse iN couRT
Favor in 2011,” comes from the Judicial Task flown largely under the radar screen of
Force of DRI—The Voice of the Defense Bar. public opinion being brought to light. A judge in Illinois, in a ruling released on
In addition to discussing budget cuts across Hopefully, both Congress and state legisla- April 20th, revealed that a Chicago public
10 www.BeasleyAllen.com
relations firm recommended tying the corporate misconduct, defective products, government or education. The problems
defense of a class-action lawsuit over water fraud and deceptive practices.” The judge the casinos bring with them greatly out-
pollution to a campaign painting the local ordered Syngenta to hand the documents weigh any financial benefit to the state and
courts as a “judicial hellhole” friendly to friv- over to the Plaintiffs within 14 days. its citizens. But, I also believe just as strongly
olous lawsuits. This shocking revelation is This sort of thing has no place in the judi- that the raids last year were a big
found in the order issued by Circuit Court cial system. Claims in lawsuits should be mistake. The courts are where these battles
Judge William Mudge on a range of issues decided based on the facts of individual should and must be fought.
submitted to him in a pending case accus- cases with judges and juries applying the Both Gov. Bentley and Attorney General
ing agribusiness company Syngenta, a pro- applicable law. Attempting to influence Strange have a duty to see that the laws of
ducer of the chemical atrazine, of polluting judges and jurors with a public relations this state are enforced. Fortunately, the Gov-
area groundwater. campaign, especially one that puts a bad ernor and Attorney General are working
The judge ordered the release of previ- light on the courts and parties, is just plain together on the gambling issue and that’s
o u s ly - u n d i s cl o s e d c o m m u n i c a t i o n s wrong. good news for all Alabama citizens. It’s time
between the Jayne Thompson & Associates Source: stltoday.com for this chapter in Alabama history to be
public relations firm and Syngenta. In the over. If electronic machines used to “play
documents, the judge said the public rela- bingo” are illegal under Alabama law, the
tions firm outlined a plan to portray the The couRTs ARe The pRopeR plAce To courts should shut down the operators. On
Madison County court system as a source of hANdle illeGAl GAmbliNG the other hand, if the machines are legal,
“jackpot justice.” Pro-business groups, the operators should be allowed to stay
including the American Tort Reform Foun- Cooper Shattuck, who is Gov. Bentley’s open and be heavily taxed. But in any event,
dation and the U.S. Chamber of Commerce, legal advisor, was absolutely correct when the issue of legality should be resolved in
have in past years criticized Madison and St. he told the Birmingham News recently that the courts. I believe most Alabamians are
Clair counties as being too Plaintiff- state raids in Alabama are not “the preferred ready for this chapter in our state’s history
friendly. The ruling said the documents solution” when dealing with the electronic to end one way or the other.
show, in part, a strategy to: bingo issue. Cooper correctly pointed out Source: Birmingham News
that there are numerous legal options the
enhance the public’s perception of
state can pursue. His view is that Prohibi-
Syngenta and the herbicide it manu-
tion-style raids, which are short-term fixes,
factures at the expense of the
aren’t the ultimate solution to the lingering VII.
Madison County judicial system. The
proposal actually outlines an aggres-
gambling problem in our state. I totally THE NATIONAL
agree with Cooper that the courts must
sive public relations strategy to build
decide whether electronic bingo machines
SCENE
upon or create a hostile attitude
being used in the state meet requirements
toward the Madison County judicial
of state law. In that regard, Cooper told Kim
system. some iNTeResTiNG polliNG iNfoRmATioN
Chandler, the reporter with the News who
A class-action lawsuit had been filed interviewed him: RelATiNG To budGeT cuTs
against Syngenta and other atrazine manu-
That’s who will ultimately decide A recent Pew poll revealed that a major-
facturers in 2004 in the Madison County
whether certain machines in certain ity of Americans says that deficit reduction
Circuit Court. The suit, filed on behalf of
locations are legal or illegal. It’s not should be a top priority this year with our
local sanitary and water districts, accuses
for the Governor to decide. It’s not for elected leaders in Washington, DC. But they
the companies of polluting groundwater
the Attorney General to decide. It’s for are also very wary of any cuts to the entitle-
with the weed killer used on area farm
the courts to decide. ment programs that make up much of the
fields. Syngenta has stood behind the prod-
federal government’s spending. Nearly two-
uct’s safety, refuting studies about the herbi- As all Alabamians know, in the last year of thirds were against changes to Social Secu-
cide’s environmental and health effects. The his tenure, former-Gov. Bob Riley used State rity and Medicare. A recent CNN poll said
13-page proposal from the public relations Troopers and raids to shut down the non- that 87% of the American citizens believe
firm to a Syngenta senior communications Indian bingo casinos in the state. All of that funding for those programs should
manager was dated October 3, 2005 and those casinos sat dormant until Greenetrack either be increased or remain unchanged. It
came while the case was being defended by reopened in March, apparently using new was very interesting that folks in the
the law firm representing the company. electronic bingo machines. Soon after his U.S. Are far more willing to have cuts in
The lawsuit was filed by the Chicago law inauguration, Gov. Bentley turned over defense spending.
firm Korein Tillery. Lawyers with the firm, enforcement of the bingo controversy to It should be noted that almost two-thirds
asked Syngenta to turn over the documents Attorney General Luther Strange, which believe that military spending should be
as part of pretrial discovery. This led to the was the proper thing to do. increased or kept at current levels. So it is
judge’s order. The firm said in a statement On a personal note, I have never believed quite evident that our political leaders both
that “the strategy was an example of large that the gambling casinos were good in any in the White House and in Congress will
companies spending millions of dollars to respect for Alabama. Gambling in any form have a difficult time satisfying a majority of
subvert justice.” Stephen Tillery, the lead on a large scale is nothing more than a tax the American people as they try to put
counsel for the Plaintiffs in the case, said on low income citizens. It drains money together budgets that call for massive cuts
the companies were trying to “prevent the from folks generally who can’t afford to in federal spending.
people of our region from exercising their lose a paycheck. Never should gambling be
right to seek damages for injuries caused by depended on as a base on which to finance
www.JereBeasleyReport.com 11
leGAl fees foR oveRseeiNG fiNANciAl everybody in the U.S. It’s impossible to the monthly payments from homeowners
bAilouTs justify any oil company making billions in representing about two-thirds of the resi-
earnings during a three-month period dential mortgage market.
It was reported last month that the while socking it to their customers. The Comptroller of the Currency, along
federal government paid more than $27 Source: Forbes with the Federal Reserve and the Office of
million to law firms “overseeing financial Thrift Supervision, investigated the ser-
bailouts.” This had pretty well gone unno- vicers. Consumer advocates say the changes
ticed until recently when it became known. are too little, too late, create no meaningful
fAll-ouT fRom The $1.6 billioN bANk of
It seems most unusual that the Treasury protections for consumers and are far less
AmeRicA seTTlemeNT
paid this amount without requiring detailed aggressive than those being pursued by the
bills or questioning “incomplete records,” The $1.6 billion settlement by Bank of 50 state Attorneys General, whose investiga-
according to a report from a government America involving highly-questionable tion of mortgage servicers is continuing.
watchdog. The report from the Special home loans could wind up costing the bank The regulators said the mortgage ser-
Inspector General for the Troubled Asset a great deal more down the road. The settle- vicer s—including Bank of Amer ica,
Relief Program said: ment with Assured Guaranty Ltd resolved Citibank, JPMorgan Chase and Wells Fargo—
claims Bank of America was responsible for had significant weaknesses in their mort-
Current contracts and fee bill review
mortgage bonds full of loans by Bank of gage ser vicing and foreclosure
practices create an unacceptable risk
America’s Countrywide Financial unit that processes. The problems violated state and
that Treasury, and therefore the Amer-
did not meet lending standards. Assured federal laws. Even more critically, they
ican Taxpayer, is overpaying for legal
Guaranty insured those bonds and when raised costs or limited the options of bor-
services.
the loans went bad, investors suffered rowers trying to keep their homes, slowed
It was indicated that the problems are losses and the insurer had to pay out. the housing market’s recovery by prolong-
much deeper than just the legal fee con- This huge settlement is a pretty good ing the foreclosure crisis and placed exces-
tracts. It would be interesting to see which indication that there is a real issue. Several sive burdens on the court system, the
firms did the “overseeing” and what exper- analysts have warned the bonds contain bil- regulators said. To correct those deficien-
tise they have in this field. Hopefully every- lions of dollars of improperly-written loans. cies, the mortgage servicers agreed to make
thing can be justified. But something about Investors and bond insurers should have changes that will include:
this arrangement doesn’t meet the “ good claims and can force the Wall Street
• Giving distressed homeowners a single
smell test.” banks that created the bonds to cover their
point of contact when dealing with their
Source: USA Today losses. It’s been estimated that Wall Street
mortgage servicer.
could be facing lawsuits with damages
exceeding more than $100 billion. Bank of • Not foreclosing if modified mortgages are
America’s potential exposure alone has not delinquent.
VIII. been estimated to be as high as $30 billion.
THE CORPORATE Source: Insurance Journal
• Increasing supervision of third-party
vendors, including foreclosure law firms
WORLD that handle work for them.
mAjoR bANks Told To Review • Creating a process to let borrowers
foReclosuRes submit requests for remediation if they
biG oil expecTed To hAve besT yeAR think they’ve been treated unfairly.
siNce 2008 Federal bank regulators announced new
rules last month for 14 of the nation’s It appears that not everybody is satisfied
While folks all across our country are largest mortgage servicers. The changes are with the government’s actions. The regula-
hurting, having to deal with a wide range of designed to curb past and future foreclo- tors “let the banks play a ‘Get out of jail free’
financial problems, it appears the big oil sure abuses. Spawned by a federal investiga- card,” according to Adam Levitin, professor
companies will have their best years since tion that identified “significant weaknesses” of law at Georgetown University. It will be
2008. For example, Exxon Mobil Corp., in mortgage servicer practices, regulators interesting to see what effect the new regu-
Chevron Corp. And ConocoPhillips said the changes represent major reforms in lations will actually have. Hopefully, they
reported a combined $18.2 billion in first- an industry that touches virtually every U.S. will prove to be a step in the right direc-
quarter earnings. Exxon earned almost $11 homeowner with a mortgage. tion.
billion and Chevron Corp. showed a 43% In the government’s most forceful Source: USA Today
increase in its earnings. Overall the three response yet to the nation’s four-year fore-
companies had a 40% increase from a year closure crisis, the regulators ordered the
ago and just short of the $20.2 billion they mortgage servicers to hire outside firms to
earned in the first three months of review every foreclosure action they had
2008. All of the other companies also pending from Jan. 1, 2009, through Dec. 31,
showed tremendous earnings during the 2010, identify borrowers harmed by the ser-
first quarter. Small business owners, vicers’ deficiencies and compensate
working folks, and retirees should be up in them. They will also face unspecified finan-
arms over the price of gasoline at the cial penalties that are still to come, accord-
pumps. The rising prices for unleaded gas ing to the regulators. The banks and other
and diesel, as well as food, airline fares, companies covered by the orders collect
shipping costs and other things, are hurting
12 www.BeasleyAllen.com
IX. ings, or the Congress had required
these things to be done, we might
safety violations. During the three years pre-
vious, only 46 carriers had been shut
CONGRESSIONAL have been able to prevent some of down. A very good bill, with wide biparti-
UPDATE these fatalities. san support, was all ready for Senate
passage last year. But Sen. Tom Coburn,
The safety board has scheduled a public R-Okla., placed a hold on the measure. With
forum this month on the Transportation Congress closing in on adjournment, and
coNGRess should pAss The bAdly- Department’s progress in implementing other pressing legislation waiting to be
Needed sAfeTy bill bus and truck recommendations. In voted on, the bill died.
November 2009, Transportation Secretary According to Sen. Coburn, the bill wasn’t
Deadly bus crashes over the past decade Ray LaHood announced a plan for issuing
have claimed a tremendous number of “cost-effective.” It appears the Senator will
regulations that address many of the NTSB oppose the bill again. But Sen. Sherrod
lives. The recent New York accident men- recommendations. The only recommenda-
tioned in the April issue, which killed 15 Brown, D-Ohio, co-sponsor of the bus
tion that has been fully implemented is a safety bill with Sen. Kay Bailey Hutchison,
passengers and critically injured several b a n o n t ex t i n g b y b u s a n d t r u ck
others, as well as recent bus accidents in R-Texas, believes passengers would be
drivers. The Department also has pro- willing to pay more for safety improve-
New Hampshire and New Jersey appear to posed rules requiring seatbelts for all bus
have brought about renewed interest on ments. “These are relatively minor costs
passengers and electric onboard record- that are amortized over the life of a bus,”
the part of Congress. Hopefully, as a result, ers. A ban on handheld cellphone use by
bipartisan legislation that would require Sen. Brown said in an interview with the
bus and truck drivers while driving was Associated Press. Currently, there are about
regulators to act on longstanding bus safety also proposed. Those rules have not been
recommendations may pass. A Senate Com- 750 million passenger trips a year on
made final. motorcoaches in the U.S. It’s high time for
merce, Science and Transportation subcom- New bus driver testing standards to
mittee held a hearing on the bill last month the federal government to get serious
ensure uniformity across state licensing about bus safety and to make the changes
and Transportation Department officials agencies and reduce the likelihood of
were asked to explain their slow progress that are necessary. It’s a matter of safety
licensing and testing fraud are certainly and that’s very important to all of us.
implementing bus safety recommendations needed. The regulations will also require
made by the National Transportation Safety Source: Associated Press
new drivers to obtain a commercial learn-
Board. Some of the recommendations have er’s permit prior to obtaining a commer-
been ignored for more than a decade and cial driver’s license. The Department says
that’s inexcusable. it will issue new, mandatory training stan- A pRoposed bill iN coNGRess ThAT is As
The recommendations, directed at large dards for entry level commercial bus ANTi-vicTim As iT GeTs
buses known as motor coaches, include drivers by this fall.
requiring seatbelts for all passengers and H.R. 5, the so-called Help Efficient, Acces-
For some reason, defining what kind of
electric onboard recorders that keep track sible, Low Cost, Timely Health Care
training a driver must have before obtaining
of how many hours a driver has been (HEALTH) Act of 2011, is a terrible bill and
a commercial driver’s license, and improv-
behind the wheel. The NTSB also has urged is as anti-consumer and anti-victim as it
ing testing standards for drivers has been an
that buses have stronger roofs that aren’t gets. Actually this is the very same bill that
especially difficult issue. It should be noted
easily crushed or sheared off to prevent was passed by the House of Representatives
that Congress has been calling for the devel-
passengers from being ejected in a rollover in 2005. This bill would severely limit the
opment of driver training and testing stan-
and to ensure they have enough space ability of injured patients and their families
dards for 20 years. While the Department
inside to survive. The Board wants bus to hold health care and medical products
started to work on new rules in 1993, the
windows to be glazed using new, more providers accountable. The bill is broadly
rules were finally issued in 2004. But those
advanced methods so they hold together drafted by design and does more than deal
rules were successfully challenged in court
even when shattered. Lastly, the Board with medical malpractice lawsuits. If
as being too weak and at odds with the
wants windows and exits that are easier for passed, it would limit remedies against all
Department’s own safety data. The Trans-
passengers to open. It’s hard to believe that for-profit nursing homes, insurance and
portation Department has been working on
these recommendations haven’t been man- pharmaceutical industries, manufacturers of
the latest round of driver training and
dated by Congress. medical devices, and even against doctors
testing regulations for nearly six years. In
About half of all motor coach fatalities who commit intentional torts, such as
the meanwhile there have been numerous
in recent years have occurred as the result sexual abuse.
deaths and injuries that could have been
of rollovers, and about 70 percent of those Proponents of H.R. 5 have claimed,
avoided had the government acted.
killed in rollover accidents were ejected without any real justification, that the bill is
According to the NTSB, 60% of the fatal
from the bus, according to the Transporta- necessary to create jobs and grow the
motorcoach crashes the Board investigated
tion Department. NTSB Chairwoman economy. Even though Congress has been
over a 12-year period were the result of
Deborah Hersman told The Associated debating so-called medical malpractice tort
problems related to the driver. It appears
Press: reform for three decades, this is the first
that LaHood has significantly stepped up
time that job creation has been used as the
It’s frustrating to be on the sidelines enforcement of bus safety regula-
justification for a bill which would limit
and get called to yet another accident tions. That’s definitely an improvement,
consumer and patient rights and decrease
in (New York) and know the issues compared to eight years of inaction during
safety. When hospitals, nursing homes, and
that we’ve made recommendations the Bush administration. During the last
drug companies cannot be held fully
on are stagnating. If the regulatory three years, the Department has placed 75
accountable, there is no incentive to reduce
agency had moved on their rulemak- motorcoach carriers out-of-service for
www.JereBeasleyReport.com 13
the 98,000 medical errors that reportedly • Reduced statute of limitations. The evidence that the Defendant acted with
kill patients every year. As a result, if this bill legislation reduces the amount of time an malicious intent to injure the Plaintiff or
passes, even more patients may suffer injury, injured patient has to file a lawsuit to one the Defendant understood the Plaintiff
resulting in the need for additional medical year from the date the injury was discov- was substantially certain to suffer unnec-
care. Let’s take a look at some of the ramifi- ered or should have been discovered, but essary injury, yet deliberately failed to
cations that would come about if H.R. 5 not later than three years after the “mani- avoid such injury. The bill does not create
becomes law: festation” of injury. Claims filed by minors punitive damages in those states that
must be brought within three years from don’t recognize them. The bill further
• The scope of the bill is huge. Most the date of injury, except that a claim limits punitive damages to two times the
folks don’t realize this bill applies to brought by a minor under the age of six amount of economic damages or
medical malpractice, pharmaceutical years may be commenced within three $250,000, whichever is greater. That’s
products, medical devices, nursing homes years from the date of discovery of the grossly unfair and will encourage—not
and health insurance claims. If the propo- injury or before the minor’s eighth birth- deter—wrongful conduct.
nents were truly concerned about day, whichever provides a longer period.
doctors, why does this bill cover product • Heightened pleading standards for
liability claims against pharmaceutical • This statute of limitations, which is punitive damages. Punitive damages
and medical device manufacturers, and much more restrictive than a majority may not be sought by the Plaintiff ini-
civil actions against nursing homes, of state laws, would cut off meritorious tially. At the court’s discretion, a Plaintiff
HMOs, and insurers? claims involving diseases with long may be allowed to file an amended plead-
incubation periods. ing for punitive damages only after a
• Sweeping pr eemption of state finding by that court that there is a sub-
law. The bill includes broad preemption • Many states toll the statute of limita- stantial probability that the Plaintiff will
of state law. This preemption is designed tions for minors. This protects children prevail.
to override state laws that protect con- who have life-altering injuries, but
sumers and patients while keeping in whose parents did not file a claim on • Pharmaceutical corporations are
place state laws that favor doctors, hospi- their behalf. immune from punitive damages. The
tals, nursing homes, HMOs, pharmaceuti- bill completely immunizes manufacturers
cal and medical device manufacturers, • The bill would preempt Delaware’s of drugs and devices that are approved
and other health care Defendants. newly-enacted law, which provides by the FDA from punitive damages. The
that children who are sexually abused bill also extends immunity to the manu-
• Specifically, the bill preempts all areas by doctors have an unlimited period of facturers of drugs and devices that are
of state law covered by the bill, includ- time in which to file a claim. not FDA-approved yet are “generally rec-
ing state rules regarding joint and ognized as safe and effective.” Finally, the
several liability, the availability of • A r b i t r a r y a n d d i s c r i m i n a t o r y
$250,000 cap on non-economic bill immunizes the manufacturer or seller
damages, collateral sources, attorneys’ of drugs from punitive damages for pack-
fees, and periodic payments. damages. The bill limits non-economic
damages to $250,000 in the aggregate, aging or labeling defects. These broad-
• The bill does not preempt any state regardless of the number of parties based immunities completely undermine
defenses designed to protect health against whom the action is brought. This patient safety by eliminating the deter-
care providers. cap is more restrictive than any state cap rent effect of punitive damages and have
that is currently in place. no relation to issues regarding medical
• The bill would leave in place existing malpractice.
state damage caps on economic, non- • Non-economic damages compensate
economic, or punitive damages, but patients for very real injuries–such as • Medical products and medical pro-
would impose the caps in the bill on the loss of a limb or sight, the loss of vider suits must be brought sepa-
states that do not have limitations on mobility, the loss of fertility, excruciat- rately. H.R. 5 requires that health care
damages, including states whose limita- ing pain and permanent and severe dis- providers not be named as Defendants in
tions were struck down as unconstitu- figurement. These danger s also the same cases as pharmaceutical or
tional by state Supreme Courts. compensate for the loss of a child or a medical device manufacturers. Further,
spouse. These are very real damages, health care providers may not be held
• Some states would keep their damage and juries are able to calculate them liable to an injured patient in a class
caps, but be forced to also except fairly. action against pharmaceutical or medical
federal cap mandates, undermining the device manufacturers. Of course, these
work of state legislatures that have • Caps on non-economic damages dis- requirements do not mean that the pro-
considered these issues in the past. proportionately affect women, chil- vider was not negligent. Instead of having
dren, the elderly, the disabled, and all parties present and allowing the jury
• States with an overall medical malprac- others who may not have substantial to evaluate the evidence, this provision
tice cap, such as Indiana’s $1.25 economic loss such as lost wages or will allow the Defendant to blame
million cap would also have to accept salary. another Defendant who is not a party to
a $250,000 non-economic damage cap the case. The result will be increased
for medical malpractice, medical prod- • Severe restrictions on punitive court filings and finger-pointing by
ucts, insurance companies, and nursing damages. The bill provides that punitive wrongdoers while injured patients
homes. damages may only be awarded if the remain uncompensated.
Plaintiff proves by an impossibly-height-
ened standard of “clear and convincing”
14 www.BeasleyAllen.com
• Periodic payments of all future equipment at Meds IV. The same strain was tates. We are currently investigating several
damages. Allowing all future damages also found inside a mixing vessel, stirrer and other potential claims and most likely will
over $50,000 to be paid periodically pun- an amino acid solution that was a compo- file more suits.
ishes meritorious patients who were nent of TPN. Dr. Williamson said that was
injured by malpractice and unsafe prod- probably contaminated in the pharmacy. He
ucts and leaves them vulnerable and said investigators are now looking more cRAshwoRThiNess iN AviATioN
under-compensated. Meanwhile, large closely at whether Meds IV filtered the
insurance companies reap the interest product correctly to catch the bacteria. As most of our readers will already know,
benefits of a patient’s jury award. Source: AL.com there is a legal concept that was first
applied in the context of automobile colli-
Obviously, H.R. 5, if passed, would be very sions referred to as “crashworthiness.” The
bad for the American people and it should doctrine assumed that cars are going to be
be defeated. In my opinion, it’s one of the ouR fiRm files ANoTheR coNTAmiNATed iv
lAwsuiT involved in crashes and, therefore, they
worst pieces of legislation, and certainly the must be designed to reasonably protect
most anti-consumer, to ever have been occupants in foreseeable collisions. That’s
Thus far, our firm has filed two wrongful
introduced in Congress. The powerful the law and it just makes good sense.
death lawsuit involving IV packs filled with
special interests are pulling out all stops in The same concept extends and applies to
liquid nutritional supplements that were
their efforts to pass it. They are using airplanes and helicopters. While airplanes
contaminated. The last lawsuit was filed on
doctors—and their perceived fear of being and helicopters crash far less often, they do
behalf of Lyndal Robinson, whose mother,
sued—as a way to make the legislation look face foreseeable impacts and must be able
Jewell Robinson, died after receiving con-
fair and good to the public. to reasonably protect occupants from those
taminated total parenteral nutrition (TPN)
Source: AAJ impacts. Perhaps the most common impact
at Shelby Baptist Medical Center in Shelby
County, Ala. Mrs. Robinson, a lifelong resi- an airplane or helicopter faces is that of
dent of Chilton County, died because a bird impacts. This has been an issue since
X. product that was supposed to sustain life the beginning of manned flight, but there
are certain things that can be done to
was actually the very thing that killed her.
PRODUCT We are concerned that there will be more protect aircraft from those bird impacts.
LIABILITY UPDATE deaths and serious injuries reported before Our firm is involved in a case involving a
collision between single 3.5 pound red tail
this ordeal is over.
Mrs. Robinson’s family wants to see hawk and a Sikorsky S76 C++ carrying
justice done and those responsible made nine occupants. The bird impact caused a
TAiNTed iv NuTRiTioN cAused by complete engine failure of the aircraft.
accountable for this wrongdoing. We intend
sTeRilizATioN pRoblem Shortly after the impact, eight of the nine
to do whatever is necessary to make sure
that happens. The bacteria were identified persons on board lost their lives. I’m sure
Our firm is handling a number of cases
as Serratia marcescens, organisms that can some of you will ask, where did this bird
arising out of the making and distributing
cause infection in several sites on the body hit the aircraft? I suspect some of you are
of tainted IV nutritional products in
including the urinary tract, respiratory tract, probably thinking it got clogged in the
Alabama hospitals. An investigation has
eyes, and in wounds. TPN is administered engines. Chris Glover, one of the lawyers
revealed that the bacteria linked to the
intravenously and is used in patients who handling this case for our firm, says he did
deaths of at least nine people in Alabama
cannot or should not get their nutrition too when he first heard of the crash. But,
hospitals who received the tainted IV nutri-
through eating. In this case the bacteria no, this bird simply hit the canopy and
tion was found in tap water at the com-
entered the bloodstream due to the con- windshield. It was an impact that should
pounding pharmacy, an amino acid solution
taminated IV fluids. have done nothing to the flight operations
and equipment used there for compound-
The lawsuit was filed in the Circuit Court of this helicopter.
ing. The investigation was done by the
for Chilton County, Ala. The Defendants The National Transportation Safety Board
Alabama State Health Department and the
manufactured and distributed the contami- investigation into this crash concluded that
Centers for Disease Control and Preven-
nated TPN and should have known that the the windscreen was not airworthy in the
tion. The Birmingham-based pharmacy,
product was defective at the time it was sense that it could not withstand the
Meds IV, mixed the intravenous nutritional
placed in the stream of commerce. Shelby impact in this very foreseeable collision
supplements, called total parenteral nutri-
Baptist Medical Center is one of six hospi- with the bird. The impact shattered the
tion or TPN, which are given to patients
tals identified by the Centers for Disease windscreen causing hurricane force wind
who cannot eat or be tube-fed. The product
Control and Prevention (CDC) where infec- and noise inside the cockpit. Moreover, the
is believed to have been delivered to six
tions were confirmed. The other facilities NTSB found that Sikorsky in design placed
Alabama hospitals. At least 19 patients were
are Princeton Baptist Medical Center, the engine controls of the S76 C++ only a
infected with Serratia marcescens, a bacte-
Cooper Green Mercy Hospital, Medical few inches behind this windscreen and
ria that can be lethal if it enters the blood-
West, Prattville Baptist Hospital and Select that they were susceptible to movement
stream, and the tragic deaths and serious
Specialty Hospital, a long-term acute care due to impacts. The impact forced the
injuries resulted.
hospital that operates within Trinity Medical flight controls of the helicopter into the
In a news conference last month, State
Center. Defendants named in the lawsuit are idle engine position effectively turning the
Health Officer Don Williamson said that the
Meds I.V. LLC, Edward Cingoranelli, William helicopter off mid-flight. It all happened so
same strain of the virus was found on a
Rogers and Bill Vise. Additional Defendants fast that the pilots and passengers had no
water faucet that provided tap water that
will be named as discovery in the case dic- chance of survival.
was used to clean some of the mixing
www.JereBeasleyReport.com 15
Our investigation revealed that AAI, the Dee Miles from our firm also serves on the they may cause a rare but serious and possi-
company that made the windscreen, did no PSC in the MDL. bly fatal condition where oxygen in the
testing or analysis to determine how it Source: Law.com blood stream is greatly reduced. This condi-
would hold up from a bird impact. We also tion is called methemoglobinemia. In the
found that Sikorsky had previous problems most serious cases, this condition can result
with this engine throttle coming loose in in death. Benzocaine products do not cur-
bird impacts and that a design change made XI. rently carry any warnings regarding methe-
the engine controls less resistant to inadver- MASS TORTS moglobinemia, therefore, the FDA is
tent movement. Simple design changes concerned that consumers might not be
would have made these aircraft safe for UPDATE aware of the danger or know what to look
these foreseeable impacts. Aircraft of this for when using these products.
sort must be designed to be airworthy. If Signs and symptoms of methemoglobin-
you have a question about aviation safety, hoRmoNe TheRApy liTiGATioN updATe emia include pale, gray or blue colored skin,
please contact Chris Glover or Mike lips and nail beds, shortness of breath,
Andrews, two of the lawyers in our firm Last month we reported on the Pennsyl- fatigue, confusion, headache, lightheaded-
who handle aircraft cases, at 800-898-2034 vania Appellate Court decision affirming a ness, and rapid heart rate. The FDA is par-
or by email at Chris.Glover@beasleyallen. $1.5 million dollar compensatory and $8.6 ticularly concerned about the use of
com, or Mike Andrews, at Mike.Andrews@ million dollar punitive award against Wyeth. benzocaine products in children under two
beasleyallen.com. The Plaintiff’s lawyers, Zoe Littlepage and years of age. There have been 21 reported
Rainey Booth, did an excellent job both cases of methemoglobinemia after using
with the trial and appeal of this case. Their benzocaine gels and liquids. Eleven of the
client, Mary Daniel, was diagnosed with 21 cases occurred in children under age
AGReemeNT ReAched oN Access To
hormone positive breast cancer after taking two.
ToyoTA’s souRce code
Wyeth’s hormone pill, Prempro, for 18 If while using benzocaine products any
An agreement has been reached with months. Since reporting on this decision, of the symptoms of methemoglobinemia
Toyota Motor Corp. That will require the we have had folks ask about the verdict appear, persons should stop using the
company to turn over its source code, the track record in this litigation which has product immediately and call 911. If left
“crown jewels” of the company, to the lead been going on for several years now. Ted untreated, serious cases may lead to perma-
Plaintiffs’ lawyers in the multidistrict litiga- Meadows, a lawyer in our Mass Torts nent injury to the brain and body tissues,
tion over sudden acceleration. The source Section, has put together a chart relating to and even death. Parents are cautioned not
code will provide evidence that defects in Prempro jury verdicts. You can find it on to use this product on children less than
the electronic throttle-control system our website at www.BeasleyAllen.com or two years of age unless it is given under the
caused sudden acceleration in Toyota vehi- can get a copy by emailing Shanna Malone advice and supervision of a healthcare pro-
cles. Toyota has maintained there are no at Shanna.Malone@beasleyallen.com. fessional. These products should always be
problems with the electronics but has The chart reveals that Plaintiffs have won kept out of reach of children. The American
agreed to turn over its source code to Plain- 12 of 18 trials. The average compensatory Academy of Pediatrics recommends that for
tiffs’ engineers under stringent security. verdict has been $2.6 million, which is cer- teething problems in children, safer alterna-
Judge James Selna, who is overseeing the tainly understandable given the serious tives such as chilled teething rings or gentle
case in Santa Ana, Calif., has signed an order nature of breast cancer. Each time jurors massage to the gums using a cloth or your
under seal approving the agreement. have been allowed to hear the evidence finger are preferred over benzocaine prod-
Among the security measures in place they have found the conduct of Wyeth and/ ucts. For a list of products containing ben-
are iris scans required for entry into a or Upjohn to be so bad as to warrant puni- zocaine, visit the FDA’s website. If you need
secure room in a neutral facility where the tive damages with the average punitive additional information, contact Danielle
source code can be accessed. Engineers are award being $30.4 million. There are a Mason, a lawyer in our Mass Torts Section, at
required to print documents on numbered number of Prempro trials scheduled this 800-898-2034 or by email at Danielle.
paper containing radio-frequency tags. year, including two cases our firm will try in Mason@beasleyallen.com.
Lawyers on both sides came up with a com- Montgomery in July and December. It will
promise to have the source code provided be interesting to see what jurors have to say
in this litigation in the coming months.
on a single computer located in a locked meRck fAces 730 lAwsuiTs oveR
vault, while the engineers worked in the NuvARiNG
secured room.
Mark Robinson, a senior partner at beNzocAiNe pRoducTs liNked To seRious Lawsuits against Merck over its birth
Newport Beach, Calif.-based Robinson, Cal- iNjuRy ANd deATh control ring Nuvaring total 730 as of the
cagnie & Robinson, is co-lead counsel on end of last year, according to the company’s
one of the Plaintiffs’ steering committees The FDA recently issued a warning to the annual report. The suits allege that the
in the case. The agreement will allow engi- public about the use of over-the-counter etonogestrel and ethenyl estradiol combina-
neers to analyze more than 8 million lines products containing benzocaine, a local tion contraceptive causes blood clotting
of Toyota’s source code. Toyota has anesthetic used to relieve pain in the mouth such as pulmonary embolism, deep vein
recalled 8 million vehicles and paid $48.8 and gums. The product is commonly used thrombosis, stroke, heart attack and death,
million in civil penalties due to defective for pain associated with teething, canker and that the company overmarketed the
gas pedals and floor mats attributed to sores, and irritation of the mouth and drug and underwarned about its risks.
sudden acceleration. As you may recall, gums. The FDA became concerned about Over 600 suits are consolidated in federal
products containing benzocaine because multidistrict litigation in the Eastern Dis-
16 www.BeasleyAllen.com
trict of Missouri under Judge Rodney A RepoRT oN TopAmAx liTiGATioN estrel. As we have reported previously, there
Sipple. The remaining cases are in state are hundreds of lawsuits pending across the
courts, with 110 cases consolidated in New The Food and Drug Administration has country. Those cases allege that Yaz, Yasmin
Jersey Superior Court. The first trials are warned the public of an increased risk of and Ocella cause blood clots, as well as
expected to be held in the Spring of 2012. cleft lip and cleft palate in infants born to heart attacks, strokes and gallbladder failure.
Source: Lawyers USA Online women treated with Topamax during preg- Allegations in these cases have been that
nancy. This warning about serious adverse drospirenone, a diuretic, causes an increase
side effects to unborn children from the in potassium to unsafe levels, which can
drug Topamax will have a definite impact disrupt heart rhythms and slow the flow of
j&j cAN be sued foR iNAdequATe
on litigation. Ortho-McNeil’s Topamax is blood, leading to clotting. Bayer Healthcare
moTRiN wARNiNGs
approved by the FDA for the treatment of Pharmaceuticals is the maker of Yaz/Yasmin.
A U.S. District Court in Pennsylvania has epilepsy and migraines. It was reported Last spring, the FDA required Bayer to
ruled that the maker of Children’s Motrin that the incidences of cleft lip and cleft update its ads and promotional materials
may be liable for failing to warn of the risk palate are 21 times the normal rate of those after the company changed its warning
of liver damage and a serious skin disor- birth defects. label to include new information about the
der. The court denied the Defendants’ In March, the FDA issued a warning letter risk of thromboembolism compared to
motion for summary judgment. The Plaintiff and placed Topamax in Pregnancy Category other contraceptives.
in that case took Children’s Motrin in 1996 D, meaning that pregnant women who take Our firm is handling a number of cases
when she was nine years old. It was con- the drug are at high risk for developing involving Yaz, Yasmin, and Ocella against
tended that, as a result of taking the over- serious birth defects. Based on the number Bayer. If you need more information contact
the-counter pain reliever, she suffered liver of folks diagnosed with oral cleft conditions Roger Smith, a lawyer in our Mass Torts
damage that required a liver transplant and and the number of Topamax users, I’m fairly Section, at 800-898-2034 or by email at
also developed Stevens-Johnson Syndrome, certain that a large number of suits will be Roger.Smith@beasleyallen.com.
a serious skin disorder. Children’s Motrin is filed. Both Topamax and its generic alterna- Source: Lawyers USA Online
made by a subsidiary of Johnson & Johnson. tives have been widely promoted for off-
The Plaintiff sued Johnson & Johnson label uses like weight loss and alcohol and
under various product liability theories. The drug dependency. As a result, it’s difficult to
pharmaceutical company argued that know exactly how many people actually XII.
federal law preempted the Plaintiff’s failure- used the drug. There are about a dozen
generic manufacturers of this drug. Manu-
BUSINESS
to-warn claim. The court disagreed, explain-
ing that: facturers are spread across the United States LITIGATION
in states that include Florida, New Jersey
If the Plaintiff’s only complaint was and West Virginia.
that the label on the Children’s Last year, Or tho McNeil’s parent meRck ANd j&j seTTle TheiR dRuG
Motrin she ingested in 1996 did not company, Johnson & Johnson, pled guilty to RiGhTs dispuTe
include the words ‘Stevens-Johnson a misdemeanor under the Food, Drug and
Syndrome’ or the letters ‘SJS,’ Defen- Cosmetic Act and paid a $6.14 million Drugmakers Merck and Johnson &
dants might have a more compelling criminal fine for promoting the off-label Johnson have reached a settlement, ending
preemption argument. … But the use of the drug for non-approved uses such a multibillion dollar arbitration dispute over
complaint goes beyond that to allege, as weight loss, alcohol dependence, eating rights to two lucrative drugs for immune
inter alia, that Defendants failed to disorders and mood and anxiety disorders. disorders. Merck will pay J&J $500 million,
warn that ‘if a rash, blistering, and/ In addition, another subsidiary of the and the companies will divide distribution
or muscosal reaction developed, that company agreed to pay more than $75 rights for Remicade and Simponi, which
Children’s Motrin should be stopped million in a False Claims Act suit alleging it treat chronic inflammatory diseases like
immediately and medical care should illegally promoted Topamax and caused rheumatoid arthritis. J&J will have exclusive
be sought.’ … [T]he FDA ultimately false claims to be submitted to the govern- marketing rights for the drugs in Canada,
agreed in 2006 that a warning about ment for unapproved uses. Central and South America, the Middle East,
such symptoms should be placed on Source: Lawyers USA Online Africa and Asia Pacific territories.
Children’s Motrin, and recommended Merck retains the exclusive rights
such a warning at that time. through Europe, Russia and Turkey and will
divide the profit from those territories with
The court further concluded that the yAz coNTRAcepTive cARRies hiGheR
J&J. When you consider the two drugs gen-
Plaintiff’s evidence was sufficient to show Risks
erate combined sales of several billion
that the lack of a better warning was the dollars annually, it’s easy to figure out why
According to two new studies, the latest
proximate cause of her injuries, and that the companies did battle. Schering-Plough
generation of birth control pills such as Yaz,
Johnson & Johnson acted with “implied had split revenue with J&J before Merck
Yasmin and Ocella pose a higher risk of
malice” for the purpose of pursuing puni- bought Schering-Plough in 2009. J&J had
blood clotting. The studies, published in the
tive damages. But, the court ruled that the started an arbitration bid to gain all global
British Medical Journal, found that drospire-
pharmaceutical company was not liable on revenue from the drugs. The matter has
none, the new progestin component in the
the Plaintiff’s remaining claims, which now been settled.
contraceptives, carries a two to three times
included allegations of negligent failure to
greater risk of blood clots than previous Source: Forbes
test and design defect.
types of birth control pills containing an
Source: Lawyers USA Online
older progestin ingredient called levonorg-
www.JereBeasleyReport.com 17
TeNeT sues chs AlleGiNG medicARe XIII. $500 million became worth 6 cents on the
fRAud dollar. The industry is watching this case
AN UPDATE ON closely as JP Morgan argues its various units
Tenet Healthcare Corp. has filed suit
against Nashville-based Community Health
SECURITIES could not share information due to Chinese
Walls meant to prevent the spread of non-
Systems Inc., accusing the company of LITIGATION public information within the firm.
padding its revenue numbers by regularly However, that argument is greatly weak-
admitting patients who should be seen on ened by the fact that the documents show
an out-patient basis. The suit, filed in U.S. bANks puT TheiR owN iNTeResTs Above the information transcended departments
District Court in Texas, alleges that CHS has Those of TheiR clieNTs and went all the way to top bank execu-
offered Tenet stockholders $6 a share, tives. The issue ultimately will be whether
including $1 in CHS stock, in a takeover In 2007 JP Morgan Chase had $500 executives had a duty to share information
bid. The offer is said to be inadequate million in client assets in a Sigma invest- that adversely affects their clients’ invest-
because of CHS’s misleading financial state- ment vehicle. Recently unsealed documents ments. If you need additional information
ments. CHS is the parent of Birmingham’s show that top JP Morgan management had on this subject, contact Scarlette Tuley at
Trinity Medical Center. Tenet is the parent been warned at that time about these 800-898-2034 or by email at Scarlette.
of Birmingham’s Brookwood Medical investments, but did not move their clients’ Tuley@beasleyallen.com.
Center, competitors in the Birmingham money. In fact, while the clients lost nearly Source: The New York Times
market. all their money, its alleged in a lawsuit that
Source: Birmingham News JP Morgan made nearly $1.9 billion by
betting on Sigma’s collapse. That’s because
seNATe RepoRT should be Good foR
as Sigma’s troubles worsened, JP Morgan
iNvesToRs’ lAwsuiTs
lent the vehicle billions of dollars and
AiG files lAwsuiT AGAiNsT Two moNey
received valuable assets in the form of a
mANAGemeNT fiRms A scathing report by a U.S. Senate panel
security deposit. faulted Goldman Sachs Group Inc.,
American International Group has sued A class action filed by several pension Deutsche Bank AG and others for contribut-
two money management firms in an effort funds accuses JP Morgan of breaching its ing to the financial crisis. This report will be
to recoup billions of dollars it claims were responsibility to keep its clients in safe helpful to investors who have filed lawsuits
lost due to fraud. The insurer, 92 percent investments. It’s alleged that in the summer accusing the banks of putting their own
owned by the U.S. government, filed the of 2007, JP Morgan invested the pension interests ahead of those of their clients. The
suit against ICP Asset Management and fund’s money in notes issued by Sigma that report by the Permanent Subcommittee on
Moore Capital in New York State Supreme would be repaid based on how Sigma’s Investigations, which incidentally had bipar-
Court. AIG contends it suffered huge losses financial bets performed. Documents reveal tisan support, gave numerous examples of
by insuring mortgage securities that one of that by August of that year JP Morgan exec- employees trashing the mortgage debt their
the financial firms created. utives elsewhere in the bank began to banks were selling. Among the examples
It was alleged in the lawsuit that the worry about Sigma and other similar enti- was a top Deutsche Bank trader who pri-
Defendants breached obligations to AIG ties call structured investment vehicles, or vately described some of the securities as
related to the creation of complex collater- SIVs. “crap” and “pigs.” Another example involved
alized debt obligations, or CDOs. AIG said it A number of emails circulating among a Goldman salesman announcing, “I think I
has suffered more than $350 million in upper management discussed the real prob- found a white elephant, flying pig and
damages from the Defendants’ misconduct, ability that the whole sector was in trouble unicorn all at once” in identifying a poten-
which included using inflated values on the and that JP Morgan, on behalf of its clients, ti a l bu yer fo r d ebt th a t his ban k
mortgage bonds that were packaged into was among the top 12 SIV investors. In fact created. That sort of corporate mindset tells
the CDOs. By inf lating the values, AIG the bank’s chief risk officer wrote that JP us lots about how bad these companies
claims ICP created windfall profits for itself Morgan needed to protect the bank’s posi- really were. Does this sort of talk remind
and increased its management fees. The tion and not worry about what its clients you of a certain Texas company that hurt so
lawsuit draws on allegations against ICP were invested in. many people a few years ago?
made by the Securities and Exchange Com- By early 2008 JP Morgan had made a A good number of investors lost money
mission, which last year accused ICP of number of trades with Sigma even as inter- from the securities being sold by the com-
securities fraud. This was said by AIG to be nal documents indicated that management panies mentioned in the report. I believe
the first of many more such suits to be filed did not believe Sigma would survive, essen- the matters referenced in report will be
against other companies. tially betting the bank’s money on Sigma extremely helpful in the investor litiga-
failing and clients’ money on Sigma thriving. tion. The report comes after two years of
Source: Insurance Journal
When Sigma defaulted later that year, JP work and refers to thousands of confiden-
Morgan had lent it a total of $8.4 billion and tial emails and other documents. The report
had received $9.3 billion of assets as a secu- depicts Wall Street as a runaway machine
rity deposit. The suit indicates that the that bundled risky debt into collateralized
value of those assets rose and that JP debt obligations and other types of secuti-
Morgan recorded a gain of $1.2 billion on ties to win big fees, even as it worried that
assets it held as well as making $228 million the resulting mess could unravel.
in fees from Sigma in exchange for loans. Among other entities whose actions or
JP Morgan clients, the pension funds, inaction the report addressed are the bank-
were not so fortunate. The suit states their
18 www.BeasleyAllen.com
rupt Washington Mutual Inc., credit agen- introduced seven bills that would definitely individuals who are injured in accidents
cies Moody’s and Standard & Poors, and improve the current situation. He says insur- caused by uninsured drivers. Bodily injury
regulators including the Office of Thrift ers are using the pledge of a later Special claims are made by individuals injured in
Supervision. The report describes how Session to delay action in the ongoing accidents caused by insured drivers. The
Goldman and Deutsche Bank deceived Regular Session. The bill comes out of a study confirms that the magnitude of the
clients into buying securities that the banks Senate committee and, at press time, we uninsured motorist problem varies from
suspected were likely to implode and bet were awaiting action by the full Senate. state to state. Elizabeth A. Sprinkel, senior
against with their own money. This appears Senator Brooks supports the Governor’s vice president of the IRC, had this to say:
to be the strong belief of the investigators commission and he had this to say:
who did the work resulting in a very reveal- Despite laws in many states requiring
ing report. The Governor is new to office, and I drivers to maintain insurance, about
Interestingly, the report stops short of believe the Governor is committed to one in seven motorists remain unin-
calling for sanctions against individual exec- insurance reform. I believe that this is sured. This forces responsible drivers
utives, traders and directors. It’s even more part of his effort to evaluate proposed who carry insurance to bear the
interesting that no senior bank officials solutions and bring this issue to a burden of paying for injuries caused by
have been held criminally liable in the head in the fall. drivers who carry no insurance at all.
United States for wrongdoing directly tied Individuals and businesses in our coastal The IRC study examines data collected
to the financial crisis. That’s rather difficult counties need to have access to good, from nine insurers, representing approxi-
to understand. Surely some criminal laws affordable insurance coverage. If you agree mately 50 percent of the private passenger
were violated based on what we have with that assessment let members of your auto insurance market in the U.S. The IRC
learned in litigation arising out of this sort legislative delegation know and ask them to provides research on public policy issues
of thing. help get the needed legislation passed. You affecting insurance companies and their
Source: Insurance Journal might also let Gov. Bentley and Sen. Brooks customers. It is supported by property/
know you appreciate their efforts. casualty insurance organizations. Persons
Source: AL.com who do have insurance covering them and
XIV. their vehicles should carry the highest
amount of uninsured motorist coverage
INSURANCE AND TheRe ARe loTs of uNiNsuRed vehicles available to them. In the event an insured
FINANCE UPDATE oN ouR RoAdwAys driver is involved in a motor vehicle crash
with another driver who is either uninsured
It appears that a tremendous number of or under-insured, that becomes critically
vehicles on our nation’s highways are not important.
Gov. beNTley foRms coAsTAl iNsuRANce
covered by liability insurance and are there- Source: Insurance Journal
commissioN
fore uninsured. Across the United States,
Gov. Robert Bentley has created a com- chances are roughly one in seven that a
mission to study coastal insurance issues in driver is uninsured. The estimated percent- sTATe fARm oRdeRed To pAy $350
Alabama. This is a prelude to a Special age of uninsured motorists stood at 13.8 millioN
Session of the Legislature that the Governor percent in 2009, according to a new study
has promised for later this year to address from the Insurance Research Council As the result of a Texas court order, State
this most serious problem. Governor (IRC). The group said the percentage Farm Insurance will have to pay nearly
Bentley stated: declined four straight years before rising to $350 million to customers it overcharged
The lack of affordable homeowners’ 14.3 percent in 2008 and then dropping dating back to 2003. State District Judge Tim
insurance for people who live on Alabama’s slightly in 2009. Sulak found that Texas Insurance Commis-
coast impacts the entire state, far beyond The six states estimated to have the sioner Mike Geeslin acted properly when
the coastal communities. We must stop the highest percentage of uninsured drivers are he ordered State Farm Lloyds, the compa-
rising cost of coastal insurance for the Mississippi with 28%, Alabama with 26%, ny’s homeowners subsidiary, to reimburse
benefit of all Alabamians. and New Mexico with 26%, Tennessee with an estimated 1.2 million customers for over-
Gov. Bentley will appoint seven members 24%, Oklahoma with 24%, and Florida with charges as well as penalty interest.
of the commission, which will be “a diverse 24%. This is according to new estimates According to the Insurance Department,
pool.” The insurance panel of the Coastal from IRC that are based on 2009 data. The as well as the state public insurance
Recovery Commission of Alabama—the oil five states estimated to have the lowest per- counsel, who represents consumers’ inter-
spill recovery group—made more than 30 centage of uninsured drivers are Massachu- ests, State Farm continued to overcharge
recommendations to restructure coastal setts with 4.5%, Maine with 4.5%, New York customers for several years despite warn-
insurance. The Homeowners’ Hurricane with 5%, Pennsylvania with 7%, and ings from regulators that its rates were too
Insurance Initiative, a group of residents in Vermont with 7%. The research group says high. State Farm claimed it owed nothing
Mobile and Baldwin counties, wants insur- the economic downturn is likely a major and said it has charged premiums for the
ers to reveal a history of premiums that factor in the brief increase in 2008. past several years that were competitive
they’re collecting and losses that they’re In the ITC’s new study, Uninsured Motor- with other companies. The dispute is over
paying out, broken down by ZIP code. That ists, 2011 Edition, the estimates are based premiums charged for homeowners cover-
certainly seems reasonable. on the ratio of uninsured motorist (UM) age between 2003 and 2008.
State Sen. Ben Brooks, R-Mobile, who has insurance claim frequency to bodily injury A new report from the Insurance Depart-
become a real leader in the state Senate, has claim frequency. UM claims are made by ment indicated that State Farm had a very
www.JereBeasleyReport.com 19
profitable year in 2010, after paying out just floRidA juRy AwARds $76 millioN damages against their former insurance
52 percent of its premiums to cover prop- veRdicT broker. It appears that the couple previ-
erty losses. The 52 percent “loss ratio” was ously worked with the J.B. Goldman Insur-
close to the state average of 48.4 percent A Miami-Dade District Court found the ance Agency for more than 20 years to
for the 20 largest companies and signifi- former owners of Aries Insurance Co. guilty secure various insurance coverages. Their
cantly better than the 60 percent loss ratio of diverting funds for personal use. The jury lawsuit claims that when they switched
that is considered a benchmark for profit- awarded a $76 million verdict against brokers recently, the new broker discovered
ability in Texas. Last year, State Farm Lloyds former Aries owner Marcos Fraynd and his they were insured multiple times for the
collected nearly $1.7 billion in homeown- three children Paul Fraynd, Saul Fraynd and same things, and were being overcharged
ers premiums in the Lone Star State. Fanny Fraynd. Aries was declared insolvent hundreds of thousands, if not millions, of
The commissioner’s order for refunds in 2002, leaving behind roughly 58,000 poli- dollars. This promises to be a most interest-
was handed down in November 2009. Com- cyholders and creditors with unpaid ing case!
missioner Geeslin called on State Farm in claims. The Florida Insurance Guaranty Source: Insurance Journal
the order to either issue refund checks or Association and the Florida Workers’ Com-
provide a credit on policy renewals. pensation Insurance Guaranty Association
Refunds for longtime customers were have paid out more than $165 million to
expected to range between $200 and $300. Aries claimants thus far and that figure is XV.
Source: CHRON.com expected to top more than $170 million
when all claims are resolved.
EMPLOYMENT AND
The jury verdict will repay the guaranty FLSA LITIGATION
funds for some of their payouts. In 2006, the
juRy oRdeRs sTATe fARm To pAy iTs
state Department of Financial Services filed
iNsuRed dRiveR $3 millioN iN lAwsuiT
suit against the former owners and direc- ups coNTRAcToRs wiN clAss
A Florida school teacher has been tors of Aries for diverting policyholder pre- ceRTificATioN iN oveRTime suiT
awarded $3 million in damages after a jury miums and illegally distributing the money
found that State Farm Insurance Company for personal use. The department so far has A federal judge in Florida has condition-
refused to live up to its contract on a 2008 recovered over $20 million from other ally approved collective action treatment
car accident. David Bowler, a State Farm parties through previous lawsuits. The for a group of UPS driver contractors who
insured, suffered a fractured neck and wrist company wrote personal and commercial claim they should be treated like employees
in the accident. He filed suit against State auto and workers’ compensation business. and paid overtime and minimum wage. The
Farm for damages and medical costs. The In 2007, the Fraynds pled guilty to criminal Plaintiffs said that they are unable to work
other driver involved in the crash, Randall charges and received various sentences for for other companies because of restrictions
Spivey, had only $25,000 in liability insur- their roles in the insurer’s insolvency. placed on them by UPS. As such, the Plain-
ance coverage. The Plaintiff had over $2 Source: Insurance Journal tiffs allege that UPS wrongfully treats its
million in uninsured motorist coverage that drivers as independent contractors when
State Farm refused to pay. In its defense, they are more like employees, and uses the
contractor status to deny them overtime
State Farm claimed it was willing to negoti- sTATes ARe iNvesTiGATiNG life iNsuReRs
ate a settlement for a lesser amount, but and minimum wage.
that the Plaintiff refused its offer to negoti- States are investigating whether some of The court found that Plaintiffs had
ate. In any event, State Farm refused to pay America’s largest life insurers are failing to offered sufficient proof that other similarly
and a jury heard the case. ensure that they pay out on policies of situated Plaintiffs exist and are interested in
The jury ruled that State Farm had an deceased customers. This is a battle that joining this action. The court ordered UPS
obligation to pay the Plaintiff nearly $3 could result in hundreds of millions of to provide Plaintiffs’ counsel with the
million for medical costs and pain and suf- dollars going to consumers and state names and addresses of drivers nationwide
fering arising out of the accident. In Florida, coffers. About three years ago, Verus Finan- so they can be notified of the suit.
all motorists are required to carry unin- cial LLC, a little-known auditing firm, tried Source: Law 360
sured motorist coverage to insure against to get cash-strapped states to identify
bodily injury and property damage in the unclaimed life policies that those states
event the motorist suffers injuries and the could seize as abandoned property. Some cAll ceNTeR RepReseNTATives file flsA
other driver either has no insurance or 35 states eventually signed up for the AcTioN
doesn’t have enough coverage to pay for project, agreeing to give the audit firm a
the total amount of damages. The latter situ- portion of any money recovered. The Water- Several call center representatives of
ation is referred to as underinsured motor- bury, Conn., firm is now examining nearly Farmers Insurance Group, 21 st Century
ists coverage. It’s pretty evident that State two dozen insurers. It will be very interest- Insurance Co. And AIG Insurance Services,
Farm should have at least defended the ing to see how this works out. Inc. have filed a lawsuit in California alleg-
claim in a different manner. Source: Wall Street Journal ing the insurers failed to pay them earned
Source: Insurance Journal
wages and overtime compensation. The
lawsuit alleges that call center representa-
tives engage in preparatory activities, as
Tom hANks ANd RiTA wilsoN file suiT
well as related work activities, during
AGAiNsT iNsuRANce bRokeR
breaks and at the end of the work day.
Actor Tom Hanks and his wife, Rita Courts have recognized that preparatory
Wilson, have filed a lawsuit seeking work duties “that are integral and indispen-
20 www.BeasleyAllen.com
sible to the principal work activity” are injured while working in one of the 14 prosecutors alleged. This caused the death
compensable under the Fair Labor Stan- banana ripening rooms at the Wal-Mart dis- of six-year-old Zachary Cohn in 2007.
dards Act. tribution center in Brundidge. Had the safety device been installed, it
According to the Complaint, the Defen- The center had expanded its capacity to would have detected the drain obstruction
dants’ policies require the customer service handle produce, which included the large and turned the system off. A witness, the
representatives to be ready to answer a call banana rooms that were about 30 feet tall. past president of the Northeast Pool and
at the beginning of their scheduled shift. On the date in question, a 3- to 4-foot-tall Spa Association, testified that he told Lio-
However, a number of critical tasks must be metal plate which covered the trim at the netti about the new state law as part of an
performed before a representative is ready top of one of the room’s doors, fell 30 feet awareness campaign the trade group con-
to answer a call. Plaintiffs contend they as Ms. Blades stood in the doorway, striking ducted in October 2005. The trade group
should be entitled to compensation for the her in the face. The woman’s face was liter- also sent alerts to Shoreline Pools about
time they spend working pre-shift, post ally cut open resulting in nerves and code changes. It appears that numerous
shift and over unpaid meal breaks. muscles in her face being severed. This was employees of Shoreline Pools, including Lio-
Source: Law360 a most severe and disabling injury. netti, attended annual trade shows where
The lawsuit was filed against Thermal the devices were displayed and marketed.
Technologies and its contractor, Helsel Con- Under the plea agreement, Lionetti will
levi sTRAuss seTTles oveRTime cAses tracting, which built the banana rooms perform 500 hours of community service
along with their doors. The metal plate fell and repair 100 pools to comply with legal
Levi Strauss will pay more than $1 million from the top of the doorway because it requirements and building codes.
in back overtime pay to almost 600 workers wasn’t properly secured with bolts. The Since 1985, more than 150 cases have
nationwide. A Labor Department investiga- outside contractors failed to follow their been reported around the country of swim-
tion found Levi Strauss violated the federal own plans and safely secure the piece of ming pool drain entrapments, leading to at
Fair Labor Standards Act’s overtime and the metal that struck Ms. Blades in the face. least 48 deaths. The entrapments also have
recordkeeping provisions. The investigation Ms. Blades had reconstructive surgery on caused many serious injuries, including dis-
covered back pay for time worked over a her face, along with plastic surgery to repair embowelments, of children and adults. I
two-year period. It was determined that the the scarring. In the days following the acci- believe this is the first case where criminal
blue jeans maker misclassified some groups dent she developed seizures, which now charges were brought and the case settled
of employees, including assistant store man- occur on a regular basis. She also is at risk by a guilty plea.
agers of newly-acquired stores, as exempt of a condition called sudden epileptic Source: Insurance Journal
from overtime. While assistant managers of death. Because of her injuries, including the
existing stores were exempt from overtime seizures, Ms. Blades can’t be alone and can’t
pay, newly-hired workers were not. care for her child. On one occasion, Ms. lAwsuiT AGAiNsT disNey iN fATAl
The Labor Department also said Levi Blades had an episode and fell down the moNoRAil cRAsh seTTled
Strauss did not record all hours employees stairs with her child in her arms.
worked in its payroll system, with some Mark Andrews, Cory Driggers and Dan A wrongful death lawsuit, filed by the
assistant store managers required to work Talmadge, lawyers with the Dothan firm of mother of a Walt Disney World monorail
off-the-clock during certain times. Levi Morris, Cary, Andrews, Talmadge and Drig- worker who was killed in 2009 while he
Strauss has agreed to pay the back wages, gers, along with Richard Calhoun from Troy, was on the job, has been settled. The settle-
upgrade its time and attendance system and represented Ms. Blades. They did an out- ment is confidential and part of the court
comply with the law in the future. The pri- standing job in this case. I understand there record is now sealed. Austin Wuennenberg,
vately-held San Francisco company operates was a high-low agreement agreed to by the a 21-year-old Disney monorail pilot, was
164 stores and has more than 4,000 parties prior to trial which means there will killed on July 5, 2009, when two monorails
employees in the U.S. Its global operations be no appeal by the Defendant in this collided. His mother, Christine Wuennen-
cover more than 100 countries. case. The high number will be paid by the berg, filed suit against Walt Disney Parks and
Source: USA Today and Associated Press
Defendant’s insurance carrier. Resorts in early 2010.
The crash occurred after midnight near
the end of a workday. A monorail train was
GuilTy pleA iN swimmiNG pool dRowNiNG backing along a track switch that was sup-
XVI. cAse posed to re-align but didn’t, switching the
PREMISES A swimming pool company president
monorail from the resort’s Epcot line to a
short spur leading to a Magic Kingdom line.
LIABILITY UPDATE charged in the death of a Connecticut boy Since the switch never re-aligned, the train
in a 2007 drowning has pleaded guilty to wound up driving in reverse, smashing into
criminally negligent homicide for not a second train piloted by the decedent.
juRy AwARds womAN $21 millioN iN wAl- installing a state-mandated safety device. Disney has since said that the monorail
mART lAwsuiT David Lionetti’s company, Shoreline Pools, pilot was told to go in reverse and that,
also pleaded guilty to second-degree man- before the collision, there was an incorrect
A $21 million verdict was returned slaughter and will pay $150,000 for water- report that the track switch had been
recently in a work-related case by a Pike safety advertisements. The company failed aligned properly.
County, Ala. jury. The Plaintiff, Rebekah to install a required safety device that Source: Orlando Sentinel
Blades, suffered a life threatening injury at a would have prevented the boy’s arm from
Wal-Mart facility in 2008. The Plaintiff, who getting stuck in a powerful pump drain,
was 26 at the time of the accident, was
www.JereBeasleyReport.com 21
juRy AwARds $18 millioN AGAiNsT ciTy floRidA fAmily AwARded $6.9 millioN iN lAwsuiTs iN loGAN cANAl bReAch
foR dANGeRous cRosswAlk school-RelATed cAse seTTled
A California jury found the city of Sacra- The family of a Florida high school Two lawsuits that were filed following a
mento liable and returned an $18 million student who suffered permanent brain canal breach that killed a mother and her
verdict for not fixing or closing a dangerous injury at an after-school fundraiser in 2007 two children in 2009 have been settled. A
crosswalk where a young doctor was struck was awarded nearly $6.9 million by a wrongful death suit was filed in a state
by a car. The doctor, who was at the top of judge. Tatiana Abernathy, and her son, court against the City of Logan, Logan and
her residency program, had already Dakota, 18, were awarded the money by Northern Irrigation Co., Utah State Univer-
authored important cancer research despite First Judicial Circuit Judge Thomas Reming- sity, the Utah Department of Transportation
her young age. As a result of the accident, ton, who granted a motion for summary and Eric Ashcroft, alleging the entities were
Dr. Cathy Liu suffered brain damages and is judgment for the Plaintiff. The $6.9 million, aware of a dangerous condition, but failed
no longer able to practice medicine. plus attorney’s fees and court costs, were to take adequate action. The city, UDOT and
Dr. Liu, a 26-year-old first-year internal awarded against Interstate Fire and Casualty the company own and operate the canal
medicine resident, was about halfway Company and the Choctaw Touchdown and land around it and USU owns the hill-
across a busy two-lane street when she was Club, Inc. The case also involves product lia- side. Victor Alanis’ two children and his wife
struck by a car switching lanes. The inter- bility claims against Funtastic Factory, Inc., died when the canal above their home
section, which accommodated 16,000- and Emerald Coast Entertainment, LLC, broke July 11, 2009, sending a torrent of
20,000 vehicles per day in a 30 mph zone, which are still pending. water and mud down the hillside. Mr. Alanis
had a crosswalk, but no signals. The inter- In April 2007, Dakota Abernathy, an was away from home at the time.
section was situated in the middle of a big S eighth grade student at the time, was criti- Mr. Alanis reached agreements in late
curve. It was contended the intersection cally injured while playing on an inflatable February with all the Defendants except
was dangerous and the city knew about it, “bungee run.”The student was participating Ashcroft, who owns the rental home
but failed to either close the crosswalk or in the First Annual Jellyfish Festival at involved in the incident. It was alleged that
put up proper signals. C h o c t a w H i g h S c h o o l ’s f o o t b a l l the landslide “flattened” the residence and
The city’s own records showed that it stadium. The school’s Touchdown Club, buried the family alive. Various studies
had planned to change the intersection made up of football patrons, school alumni, showed the bluff that held a portion of the
since 2001. The main purpose of redesign- parents of players and family members who Logan Northern Canal was hazardous and
ing the intersection appeared to be to make want to help the athletic program, was prone to landslides. Despite being notified
it safer for pedestrians. A letter from the sponsoring the fundraiser. The young man in the days before the excessive water and
city’s mayor a year before Dr. Liu’s accident was strapped into bungee cords. He ran to runoff breached the canal, the Defendants
encouraged the state public utilities com- the end of what resembled a bowling alley failed to adequately inspect the area or
mission to support the change, saying the lane and was snapped back to his starting warn residents of the potential danger.
redesign would “increase the level of safety place by the cords. In the bungee run, the A next-door neighbor also filed a lawsuit
for pedestrians” and force traffic to slow harder the participant strains against the against the city, the canal company and
down considerably. bungee cords, the harder the recoil. UDOT after his home was damaged. He
A 2002 federal highway administration After completing the bungee run, Dakota settled his claim in late March. It was
study found that intersections with more complained of being dizzy, threw up and alleged in this suit that the city and UDOT
than three lanes that have a marked cross- went into convulsions. He was airlifted to a knew for years of a potential canal failure,
walk but no signal increases the risk pedes- hospital in Pensacola where he underwent but did not warn homeowners. The house
trians will be hit by four and a half emergency surgery to remove a piece of his was flooded on two levels with runoff from
times. Another danger of putting the cross- skull to ease brain swelling and drain blood the canal break. Debris from the ensuing
walk at that location was that trees blocked buildup from a severe subdural hema- mudslide filled the kitchen, living room,
a pedestrian’s ability to see oncoming toma. The youngster, who was in a coma, family room and basement.
traffic. The city’s own pedestrian safety was placed on a ventilator. Doctors Source: deseretnews.com
standards recommended that any crosswalk described his condition at the time as
in a 30 mph speed limit zone where 15,000 “shaken baby syndrome multiplied.”
cars passed per day have either a traffic Dakota survived and went through ohio sTATe seTTles elevAToR deATh
signal or a pedestrian bridge. City engineers months of rehabilitation at a hospital in lAwsuiT
testified about their six-year effort to rede- Atlanta. He is now a senior in school and,
sign the intersection. with special provisions, will graduate this The parents of an Ohio State University
During the trial, the Plaintiff’s attorney year. His plans to be an Air Force pilot will freshman killed in an elevator accident have
and the city agreed to a high-low arrange- never materialize. Dixie Dan Powell, a lawyer settled their lawsuit against the school. The
ment that guaranteed $1 million, but capped with Powell Powell, & Powell, a law firm in Plaintiff’s reached a $1 million settlement
damages at $6 million. The jury awarded Crestview, Fla. represented the family in the with the university. The student, Andrew
$18 million, but found the city 51 percent at lawsuit and did a very good job. The Defen- Polakowski, died on October 20, 2006,
fault, Liu 10 percent at fault and the driver dants have appealed the judge’s decision. when he was pinned trying to leave an
39 percent at fault. Before the jury returned Source: crestviewbulletin.com overcrowded elevator that was stuck
its verdict, a high-low agreement with the between floors. The settlement also calls
city Defendant was reached. Dugan Barr, of for $612,500 in contributions to Ohio State
Barr & Mudford in Redding, Calif., repre- toward the settlement from five companies
sented the Plaintiff and did a very good job. involved in the manufacture and mainte-
Source: Lawyers USA Online nance of elevators.
22 www.BeasleyAllen.com
After the accident, the University Lawrence, the project’s architect; general United States. The system was originally
reviewed how it handles elevator upgrades, contractor Design Build Collaborative LLC designed as a trade off whereby workers
repairs and emergency calls. Also, Ohio of Lawrence; and mechanical engineers would be compensated when they received
State now posts safety messages inside all Hoss & Brown Inc. of Lawrence. an on-the-job injury without having to
elevators and adds extra messages outside Source: LJWorld.com prove fault. In the trade, however, the
dormitory elevators. The university also worker gave up significant rights and could
addresses elevator safety for all students the not file suit against his or her employer
day they move into a dorm. juRy AwARds fAmily of officeR $37.5 regardless of how bad the conduct causing
It was alleged in the lawsuit that the millioN the injury might be.
school was negligent with regard to the ele- The amount of compensation under most
vator that cr ushed the 18-year-old The family of Daniel Golden, a Huntsville, state laws was scheduled and therefore
student. At the time of the accident, the ele- Ala. police officer, who was killed in a limited. While other countries and even
vator was crowded with 24 people, exceed- shooting, was awarded $37.5 million in pirates had systems in place going back to
ing its weight capacity by as much as 1,100 punitive damages by jury in Madison the 18th century, the United States didn’t
pounds. Students piling onto the already- County, Ala. The officer’s family sued Benito have a workers’ compensation system until
crowded elevator car may have encouraged Albarran, the man who shot him, and El the early 1900s. I believe Maryland was the
still more people to enter, according to the Jalisco Mexican, the restaurant where Albar- first with a system in place in 1902. Many of
police report on the accident which was ran worked. The jury awarded the family the early acts were ruled unconstitutional
released in 2007. After the lawsuit was filed, $25 million against Albarran and $12.5 as a violation of due process. Wisconsin was
Ohio State University argued it was not million against the restaurant. Officer the first state to enact a system that sur-
responsible for the student’s death because Golden was killed in 2005 after answering a vived legal challenge. Plans in the various
his own negligence caused or contributed domestic dispute call at the restaurant. He states have evolved from that plan. Alabama
to his injuries. Ohio State said the student was shot twice in the head and died from joined up in 1919 with Mississippi being
helped to overcrowd the elevator, causing it his wounds. Albarran was sentenced to the last state to pass a law in 1948. I am not
to become stuck between floors. Peter death for the crime in 2008 and is on death familiar with other states, but Alabama’s
Weinberger, a lawyer from Cleveland, repre- row. current law favors the employer and may
sented the Plaintiffs in this case and did a The restaurant was responsible for Albar- be the worst for workers in the country.
very good job. ran being drunk the night he shot Officer
Source: Associated Press Golden. Alabama’s dram shop law prohib-
its restaurants which serve alcohol from $4.1 millioN veRdicT iN woRkplAce
serving working employees and from AccideNT cAse
seTTlemeNT ReAched iN deNTAl office serving anyone to the point of intoxication.
cAse Matt Milner, one of the lawyers for the A jury in Jefferson County, Texas, recently
family, said after the verdict: returned a verdict against United Scaffold-
A settlement has been reached in a ing. The jury found that the company was 5
lawsuit filed after a 20-year-old high school The jury stood up for the Golden percent responsible for the Plaintiff’s head
graduate suffered brain damage during a family, the Huntsville Police Depart- injury and awarded Louie Meiers more than
2009 dental procedure in Lawrence, ment and the entire community. $4.1 million in damages. On May 31, 2006,
Kan. The lawsuit was filed in 2010 on while working near a scaffold, Meiers suf-
Hopefully, this verdict will deter restau-
behalf of Austin Stone by his guardians fered a head injury when a co-worker inad-
rant owners, operators and employees from
alleging oxygen and nitrous oxide lines vertently pushed a 4-by-4 inch board off the
serving any patrons to the point of intoxica-
were crossed during the design and con- scaffold’s walkway. Meiers and other Perfor-
tion or after having too much to drink. The
struction of a new dental office. Stone had mance Contractors employees were
verdict should send a message to other bars
visited the office to get four wisdom teeth working at the Valero refinery when the
and restaurants that think the dram shop
removed by the dentist, an oral surgeon, on incident occurred. There were no guards in
law doesn’t apply to them. Obviously, the
March 30, 2009. Stone, who was in a coma place on the walkway to prevent board
dram shop act was meant to protect the
after the incident, is now legally blind and from being pushed off.
public from drunk drivers.
has other health issues. The jury found that Performance Con-
Source: The Huntsville Times
In January, a judge approved a $3 million tractors, Meiers’ employer at the time, was
settlement in the case between Stone’s 80 percent responsible for the incident.
family and Action Plumbing Inc. of Law- Jurors also found Jacobs Engineering, a
rence. The plumbing company installed XVII. third party in the suit, 15 percent responsi-
medical gas lines at the new office. The ble. Jurors assigned the remaining 5 percent
amount of this settlement with the dental WORKPLACE of responsibility to United Scaffolding.
office, which was reached during media- HAZARDS Meiers was awarded $1,500,000 in damages
tion, was confidential under the agree- for mental anguish, $790,000 in medical
ment. The City of Lawrence was included as expenses, $1,293,000 in lost wages and
a Defendant because inspectors should $593,000 for his disabling impairment.
woRkeRs’ compeNsATioN ReAches A
have caught the switch in the lines. Other milesToNe Source: setexasrecord.com
than the city and the dentist, other Defen-
dants were Patterson Dental Supply Inc. of This year marks the 100th anniversary of
Topeka; Blanchard Design Group LLC of the workers’ compensation system in the
www.JereBeasleyReport.com 23
womAN wiNs lAwsuiT AGAiNsT GoodyeAR death,” Kurt Petermeyer, OSHA’s area direc- lawyer in our firm’s personal injury section,
tor in Mobile, said in a statement. handled the case and did a very good job
A jury in North Carolina has awarded Source: AL.com for the Brannon family.
$450,000 to a woman who says she was
wrongly fired from Goodyear Tire and
Rubber Co.’s Fayetteville plant. The Plaintiff, TouR buses Need sTRoNGeR ANd moRe
Lashanda Shaw, was awarded the money in XVIII. effecTive ReGulATioN
compensatory damages following a five-
week trial at the Cumberland County Court-
TRANSPORTATION
It has been reported that two tour bus
house. Jurors unanimously decided on the companies in the United States have not
compensatory damages, but voted not to received full government safety audits in
award punitive damages. AlAbAmA TRAffic fATAliTies oN The Rise
more than two years. That is true even
The jurors found that Ms. Shaw was not though roadside inspections have found
A report from the Alabama Department
discriminated against because of her race or problems that were serious enough to
of Public Safety says more people have died
sex, but determined that she was fired for place the companies involved on what is
on Alabama’s roadways this year than in the
making a complaint of discrimination. The referred to as “alert” status. These compa-
same period last year. The numbers are
jury also decided that the firing caused her nies are but two of the hundreds of tour
interesting since there were statewide and
severe emotional distress. Ms. Shaw filed the bus companies that have been cited for
national declines in traffic fatalities over the
lawsuit against Goodyear and a night super- major safety violations.
last several years. It was reported that 137
visor, Doug Swain, in 2009. According to the The companies have received very little
people have been killed in traffic accidents
complaint, Ms. Shaw was hired by Goodyear oversight or regulation of their full opera-
since January, up from 129 at this time last
in September 2007 as an area manager and tions. This obviously is not good news. The
year. There were 528 traffic fatalities investi-
was fired in August 2009. Ms. Shaw was the government lists 433 companies on alert
gated by State Troopers in 2010, a decline
only African American area manager in her status. For your information, alerts are based
from 541 in 2009.
part of the plant, and her supervisor rou- on spot inspections of buses and drivers in
According to Trooper spokesman Kevin
tinely harassed her during her employment. the previous two years that found repeated
Cook, factors in the increase of deaths
She was fired after filing a complaint with or serious safety violations. It’s most alarm-
include distracted driving, speeding and
the Equal Employment Opportunity Com- ing to see the poor job being done by the
drunks following too close. Troopers are
mission. Federal Motor Carrier Safety Administration,
implementing data-driven enforcement,
On numerous occasions Ms. Shaw had the federal agency that has the duty to
which includes Trooper commanders incor-
complained of harassment and discrimina- oversee bus and truck safety.
porating more driver license checkpoints
tion. There is no place in the workplace
and patrols in areas more prone to crashes.
anywhere in the U.S. for harassment, dis-
Hopefully, all of this will result in fewer
crimination and relation. A zero-tolerance loG TRuck cRAsh vicTim AwARded $13
accidents and fewer deaths.
policy in regards to complaints by employ- millioN
Source: Associated Press
ees should be the rule. Harvey Kennedy,
who is with Kennedy, Kennedy, Kennedy A jury in Nassau County, Fla., awarded
and Kennedy, a firm located in Winston- nearly $13 million recently to a woman
Salem, represented Ms. Shaw and did a very moToR vehicle cRAsh cAse seTTled iN whose life was forever changed by a colli-
good job. biRmiNGhAm sion with a poorly-lit log truck in 2005.
Source: fayobserver.com Kecia Huckleby, who was 17 years old at
On the night of the annual football game
the time, was riding home with her boy-
between Alabama and Auburn in 2009,
friend on September 14, 2005. They were
Cedric and Kedric Ballard were riding on a
dubose coNsTRucTioN ciTed foR sAfeTy city street with their cousin, Daniel
on a state highway near Hilliard, Fla., when
violATioNs Brannon, in a Chevrolet Cavalier. They
a log truck attempted a U-turn in the dark
just beyond the crest of the hill. Ms. Huck-
stopped for a red light and a van being
The federal Occupational Safety and leby and Chandler Crumbley, the driver,
driven by Curtis Lee Davis Jr., an employee
Health Administration has cited Dubose received life-threatening injuries in the
of Carpet Care, violently collided with the
Construction Co. for exposing workers to crash. The truck driver, Mark Masters, came
rear of the Brannon vehicle. Davis was
potential cave-in hazards while relocating a out of the collision unharmed.
under the influence of alcohol at the time
water valve in Montgomery, Ala. The pro- The jurors found the truck’s driver, along
of the wreck and has subsequently been
posed penalties are $46,970 in total. OSHA with the trucking company, John T. Lee Inc.,
charged with murder and aggravated
said the company is being cited for one at fault and responsible for the wreck. The
battery. Daniel Brannon was killed in the
willful safety violation with a proposed Florida Department of Transportation was
crash. His two passengers, and kin, only
penalty of $46,200 for exposing workers to found partially at fault for not posting a “no
received minor injuries.
cave-ins while working in an unprotected U-turn” sign on the road.
Carpet Care took the position that Davis
trench more than seven feet deep. Dubose Ms. Huckleby suffered serious head inju-
was not their agent and was not working in
Construction also received an other-than- ries, was in a coma and has little memory of
the scope of his employment at the time. As
serious citation with a $770 penalty for not the crash. According to her mother, Rhonda
a result, the employer argued that it should
certifying a log of work-related injuries and Huckleby, the journey for her daughter has
not be responsible for the crash. The case
illnesses in 2008. “The lack of cave-in pro- been very difficult. The jury assigned partial
was settled for the liability insurance policy
tection at this worksite leaves Dubose Con- blame to Ms. Huckleby, because she was not
limits on the eve of trial. LaBarron Boone, a
struction employees at risk of injury or wearing a seat belt. Crumbley, who was
24 www.BeasleyAllen.com
driving the car, was also found by the jury
to be partially at fault, but not responsible
Crutchfield told officers at the scene that
he never saw the victim. The lawsuit also
XX.
for the wreck. Robert Link, who is with alleges that Crutchfield was driving with a HEALTHCARE
Pajcic & Pajcic, located in Jacksonville, Fla., suspended license and was so intoxicated ISSUES
represented the Plaintiffs and did a very at the time of Ms. McKenzie’s death that he
good job. didn’t know he had hit anyone.
Source: news4jax.com and lawyersusaonline.com It was alleged that Crutchfield’s truck had
officiAls seize moRe ThAN $6 millioN iN
a lift kit that limited his field of vision and
that it did not comply with federal and state
TRiAd pRoducTs
juRy AwARds $2.8 millioN To fAmily of regulations. Crutchfield was charged with It was reported by several media outlets
bikeR intoxication manslaughter after his blood that the Food and Drug Administration
alcohol level was shown to be 0.18, more seized more than $6 million worth of prod-
The young daughter of a 23-year-old Palm than twice the legal limit at 0.08. Ms. McK- ucts from Triad Group in Hartland last
Coast man who was killed while riding his enzie was enrolled at the University of month. U.S. marshals took a variety of drug
motorcycle has been awarded a $1 million North Texas and was on schedule to gradu- products, including antiseptic products,
verdict by a jury in Florida. The jury award ate with a degree in economics and interna- nasal sprays and medicated wipes so that
was part of $2.8 million in total damages tional finance. Triad would stop distributing them. Accord-
returned to the survivors of Brian Heikkila, Source: Star Telegram ing to the FDA, the products may pose a
who died when a car struck his motorcycle risk to public health.
on May 30, 2007, on a city street in Daytona Triad Group distributes products made
Beach. Heikkila, who worked as a manager
for Walmart, was riding his motorcycle near XIX. by H&P Industries, and the companies are
owned by the same parties. The FDA claims
Halifax Health Medical Center. A Ford NURSING HOME H&P Industries has failed to comply with
Mustang driven by Michael Hemphill, who
failed to yield the right of way, collided with
UPDATE federal manufacturing regulations. H&P
Industries shut down production after U.S.
Heikkila, resulting in his death. The suit marshals arrived to seize the products. The
sought damages for pain, suffering and FDA had previously required the firm to
mental anguish. hiddeN cAmeRA shows NuRsiNG home stop making and distributing its drug prod-
In addition to $1 million awarded to woRkeRs AbusiNG womAN ucts. H&P Industries has a history of making
Heikkila’s five-year-old daughter, Ryleigh, his promises to improve safety practices, but
parents will each receive $500,000 under Family members of a 78-year-old woman
failing to do so.
the verdict. Another $798,000 was awarded used a hidden camera to capture nursing
home employees in Haverford, Penn. hitting Sources: Chicago Tribune and Associated Press
for economic damages, including $4,200 for
funeral expenses. Heikkila, who was from and taunting the resident. The video shows
Georgia, moved to the area in 2005. He employees at the Quadrangle senior living
facility hitting the woman who suffers from hospiTAl eRRoRs sAid To be TeN Times
enjoyed skateboarding, the outdoors and
was a member of Tomoka Christian Church, dementia, pulling at her sensitive ears, hiGheR ThAN ThouGhT
his family said. David Sweat, a lawyer from poking her eye and refusing to help her put
on her shirt. Delaware County District Attor- It was reported last month that about
Athens, Ga., represented the Plaintiffs and one in three people in the United States
did a very good job. ney Michael Green said:
will encounter some kind of mistake during
Source: news-journalonline.com The video depicts criminal activity a hospital stay. The finding by U.S. research-
directed at a senior victim in our ers, which is based on a new tool for mea-
county. It’s abusive. ... It’s the humilia- suring hospital errors, is about ten times
suiT filed iN cAse of womAN killed by tion which is most difficult to watch higher than estimates using older
moNsTeR TRuck on the video. No senior resident of a methods. These findings are shocking and
facility should be subjected to that mean a great deal of work remains in efforts
The parents of a college student who was kind of behavior, particularly from a to improve health quality. Susan Dentzer,
struck and killed by a monster truck outside health care provider. editor-in-chief of Health Affairs, had this to
a club in Dallas, Texas on March 17th have say about the problem:
filed a wrongful death lawsuit against the The employee on camera was arrested
driver of the truck and the club. The and charged with aggravated assault and Without doubt, we’ve seen improve-
student, Kasey McKenzie, 23, was killed simple assault. Two other employees were ments in health care over the past
while leaving with friends after a party at also charged with the same offenses. The decade, and even pockets of excel-
the club shortly after 2 a.m. Eric Brent investigation is ongoing. The camera, lence, but overall progress has been
Crutchfield pulled his custom 2003 Ford hidden in a bedroom clock, was placed in agonizingly slow. It’s clear that we
F-250 truck out of a parking space and ran the resident’s room by her daughter and still have a great deal of work to do
over the victim with both front and rear son-in-law after Quadrangle officials denied in order to achieve a health care
tires. Ms. McKenzie died at the scene. that the woman was being abused. The system that is consistently high-qual-
The lawsuit alleges that the club was neg- episode shown in the video is revolting, ity—that is, safe, effective, patient-cen-
ligent because bartenders served Crutch- showing conduct that can’t be tolerated in tered, efficient, timely, and devoid of
field past the legal limit of intoxication and a civilized society. disparities based on race or ethnicity.
allowed him to get in his vehicle and drive, Source: ABC News
even though it was apparent he was drunk.
www.JereBeasleyReport.com 25
The special issue from Health Affairs RepoRT sAys chemicAls weRe iNjecTed The report came two and a half months
came out ten years after an influential Insti- iNTo wells after an initial report by the same three law-
tute of Medicine report that found signifi- makers that found that 32.2 million gallons
cant gaps in health quality. Medical errors Oil and gas companies injected hundreds of fluids containing diesel, considered an
can range from bedsores to objects left in of millions of gallons of hazardous or carci- especially hazardous pollutant because it
the body after surgery to life-threatening nogenic chemicals into wells in more than contains benzene, were injected into the
staph infections. Health Affairs published 13 states from 2005 to 2009, according to a ground during hydrofracking by a dozen
several studies in a special issue on patient Congressional investigation. It was reported companies from 2005 to 2009, in possible
safety. that the chemicals were used by companies violation of the Safe Drinking Water Act.
A study by Dr. David Classen, from the during a drilling process known as hydrau- A 2010 repor t b y Environmental
University of Utah, and his colleagues com- lic fracturing, or hydrofracking, which Working Group, a research and advocacy
pared a new quality yardstick developed at involves the high-pressure injection of a organization, found that benzene levels in
the Institute for Healthcare Improvement in mixture of water, sand and chemical addi- other hydrofracking ingredients were as
Massachusetts, with two common older tives into rock formations deep under- much as 93 times higher than those found
methods of detecting errors—reports of ground. The process, which is being used to in diesel. The use of these chemicals has
errors voluntarily included in the medical tap into large reserves of natural gas around been a source of concern to regulators
record and an older method for assessing the country, opens fissures in the rock to and environmentalists who worry that
errors developed by the U.S. Agency for stimulate the release of oil and gas. some of them could find their way out of
Healthcare Research and Quality, or Hydrofracking has attracted increased a well bore—because of above-ground
AHR. The study revealed that agreeing on “a scrutiny from lawmakers and environmen- spills, underground failures of well casing
yardstick for measuring the safety of care in talists. It’s believed that the chemicals used or migration through layers of rock—and
hospitals,” has been a real challenge. during the process can contaminate under- into nearby sources of drinking
To find the best yardstick, the team tested ground sources of drinking water. “Ques- water. These contaminants also remain in
three methods of tracking errors on the tions about the safety of hydraulic the fluid that returns to the surface after a
same set of medical records from three dif- fracturing persist, which are compounded well is hydrofracked.
ferent hospitals. Among the 795 patient by the secrecy surrounding the chemicals Source: New York Times
records reviewed, voluntary reporting used in hydraulic fracturing fluids,” said the
detected four problems, the Agency for report, which was written by Representa-
Healthcare Research’s quality indicator tives Henry A.Waxman of California, Edward
sTudy ReveAls meAT TAiNTed wiTh
found 35, and the Institute for Healthcare J. Markey of Massachusetts and Diana
bAcTeRiA
Improvement’s tool detected 354 events— DeGette of Colorado. The report also
ten times more than AHR’s method. The faulted companies for at times “injecting A new study says that nearly half of the
team wrote: fluids containing chemicals that they them- meat and poultry in the U.S. is contami-
selves cannot identify.” nated with “multi-drug-resistant” bacteria.
Our findings indicate that two The investigation into hydrofracking was While experts said the bacteria can be
methods commonly used by most care initiated by the House Energy and Com- killed by thoroughly cooking the meat and
delivery organizations and supported merce Committee. It was found that 14 of poultry, the real risk is in cross-contamina-
by policy makers to measure the safety the nation’s most active hydraulic fractur- tion and improper handling of the protein. I
of care ... fail to detect more than 90 ing companies used 866 million gallons of always thought that folks knew to thor-
percent of the adverse events that hydraulic fracturing products—not includ- oughly wash their hands after handling raw
occur among hospitalized patients. ing water. More than 650 of these products beef, chicken or turkey. But in the real
The findings suggest there may be many contained chemicals that are known or world that doesn’t always happen before
errors that go undetected. In a separate possible human carcinogens, regulated handling other food products. If you need
study found in the same issue, a team led by under the Safe Drinking Water Act, or are more information, the report is published in
Dr. Jill Van Den Bos and colleagues at the listed as hazardous air pollutants, according the April 15th issue of Clinical Infectious
Denver Health practice of the Milliman Inc. to the report. Diseases.
consulting firm, used insurance claims to Some ingredients mixed into the hydrau-
Source: CNN
estimate the annual cost of medical errors lic fracturing fluids were common and gen-
that harm patients to be $17.1 billion in erally harmless, like salt and citric acid.
2008 dollars. They found that ten types of Others were unexpected, like instant coffee
errors accounted for more than two-thirds and walnut hulls, the report said. Many XXI.
ingredients were “extremely toxic,” includ-
of the total cost, with the most common
ing benzene, a known human carcinogen,
ENVIRONMENTAL
ones being pressure ulcers or bedsores,
postoperative infections and persistent and lead. Companies injected large amounts CONCERNS
back pain following back surgery. The of other hazardous chemicals, including
researchers recommended that those three 11.4 million gallons of fluids containing at
types of errors should receive top priority least one of the toxic or carcinogenic TvA To pAy $10 millioN peNAlTy iN
for intervention and improvement. Both B.T.E.X. chemicals—benzene, toluene, cleAN AiR seTTlemeNT
studies were supported by the Robert xylene and ethylbenzene. The companies
Wood Johnson Foundation, which focuses used the highest volume of fluids contain- The Tennessee Valley Authority board is
on U.S. healthcare issues. ing one or more carcinogens in Colorado, phasing out 300 to 400 jobs at its oldest
Oklahoma and Texas. coal-fired plants and will pay a $10 million
Source: MSNBC
26 www.BeasleyAllen.com
penalty in a clean air agreement with the now appears that these claims will defi- America. They are commonly referred to as
Environmental Protection Agency, several nitely have to be brought in the Plaintiffs’ “button batteries,” and are in thousands of
states and environmental groups. Coal-unit home countries, not in the U.S. products used in and around the home.
shutdowns will start in 2012. The shut- Source: Insurance Journal Young children and senior adults are unin-
downs include six units at Widows Creek tentionally swallowing the button batteries.
Fossil Plant in North Alabama, two units at In some cases, the consequences are imme-
John Sevier Fossil Plant in East Tennessee, cpsc AppRoves New mANdAToRy diate and devastating.
and all ten units at Johnsonville Fossil Plant sTANdARd foR ToddleR beds A recent study conducted by Dr. Toby
in Middle Tennessee. Litovitz of the National Capital Poison
Alabama, one of the states suing TVA, will The U.S. Consumer Product Safety Com- Center, found that button battery-related
receive more than $11 million from the set- mission has unanimously approved a new incidents resulting in severe injury and
tlement. Money from the agreement will go mandatory standard to improve the safety fatality have increased sevenfold since
toward reducing air pollution and improv- of toddler beds. The new federal standard 1985. The majority of reported incidents
ing energy efficiency. The settlement also builds upon the ASTM voluntary standard involve 20 mm diameter, or larger, 3 volt
will mean $500,000 in fine payments to the for toddler beds (F1821-09) and adds addi- batteries. Occasionally, a swallowed battery
state by TVA. The operations that account tional protections to prevent injuries to will pass through the intestine. Most often,
for about 16 percent of TVA’s coal-fired children. The new federal standard requires however, batteries that become lodged in
capacity will be shuttered as part of the set- the following: the throat or intestine can generate and
tlement. According to TVA executives, release hydroxide, resulting in dangerous
efforts will be made to provide other jobs, • The upper edge of the guardrail must be chemical burns.
but they say TVA cannot guarantee that at least five inches above the toddler Incidents most often involve children
every displaced employee will be offered a bed’s mattress. younger than four years old and senior
job at the same location. According to adults. In the majority of incidents, children
• Spindle/slat strength testing for toddler
Alabama Attorney General Luther Strange, gain access to batteries directly from games,
beds must be consistent with the testing
the agreement resolves concerns about toys, calculators, remote controls and other
required for crib spindles/slats.
TVA’s older coal plants. items commonly left within a child’s reach.
Source: Associated Press • Separate warning labels to address Senior adults have swallowed button batter-
entrapment and strangulation hazards ies used in hearing aids after mistaking
must appear on toddler beds. them for pills. Parents often are unaware
that a child has swallowed the button
XXII. CPSC is aware of 122 incidents from battery, which makes it difficult to diagnose
THE CONSUMER 2005 through 2010, including four deaths
and 43 injuries associated with toddler
the problem. In fact, in the recent study,
more than 60 percent of reported incidents
CORNER beds. Cribs that convert into toddler beds initially were misdiagnosed. Symptoms
also must comply with the new federal resemble ailments common in children,
standard for toddler beds. The mandatory such as an upset stomach and fever, and in
NoN-u.s. cAR buyeRs’ clAims AGAiNsT standard goes into effect six months after some incidents, there are no symptoms at
ToyoTA dismissed publication in the Federal Register for all. CPSC Chairman Inez Tenenbaum, stated:
toddler beds manufactured or imported on
A U.S. judge has dismissed claims against or after that date. Congress, as part of the These incidents are preventable and
Toyota Motor Corp. by non-U.S. car buyers Consumer Product Safety Improvement Act CPSC is working to get ahead of this
who say their vehicles lost value because of of 2008, required the Commission to issue a emerging hazard quickly. Our con-
manufacturing defects. As has been widely mandatory standard for toddler beds, as sumer awareness efforts and out-
reported,Toyota recalled 19 million vehicles well as other durable infant and toddler reach to the electronics industry are
globally since 2009 related to unintended products. In addition to toddler beds, CPSC under way.
sudden acceleration problems. As our has issued mandatory standards for cribs,
The CPSC has reached out to the elec-
readers know, a tremendous number of law- infant walkers and infant bath seats.
tronics industry and battery manufacturers,
suits were consolidated before a federal To report a dangerous product or a prod-
urging them to develop warnings and
judge in Southern California. uct-related injury, call CPSC’s Hotline at
industry standards to address this issue. The
In addition to a complaint filed by U.S. (800) 638-2772 or CPSC’s teletypewriter at
Commission recommends the following
customers, Toyota was sued by foreign (301) 595-7054. To join a CPSC e-mail sub-
steps to prevent unintentional battery
Plaintiffs who claimed that the company scription list, please go to https://www.
ingestion:
did not sufficiently address sudden unin- cpsc.gov/cpsclist.aspx. Consumers can
tended acceleration, leading to a drop in obtain recall and general safety information • Discard button batteries carefully.
value. Judge James Selna ruled that the by logging on to CPSC’s Web site at www.
foreign Plaintiffs had not established the cpsc.gov. • Do not allow children to play with
required legal standing to sue in U.S. federal Source: CPSC button batteries, and keep button batter-
court. ies out of your child’s reach.
In a previously-entered order, Judge Selna
• Caution hearing aid users to keep
left intact the bulk of claims brought by U.S. A wARNiNG oN buTToN bATTeRy use hearing aids and batteries out of the
customers. The judge gave the foreign Plain-
reach of children.
tiffs an opportunity to amend their lawsuit Small, coin-sized batteries can be found in
to see if they could cure their problems. It products in nearly ever y home in
www.JereBeasleyReport.com 27
• Never put button batteries in your mouth company called Epsilon that manages email foRd expANds RecAll of f-150
for any reason as they are easily swal- communications. pickups
lowed accidentally. The email addresses could be used to
target spam. It’s also a standard tactic Ford will expand the recall over air bag
• Always check medications before ingest- among “online fraudsters” to send emails to defects in its F-150 pickups, the coun-
ing them. Adults have swallowed button random people, purporting to be from a try’s top-selling vehicle. NHTSA told
batteries mistaken for pills or tablets. large bank and asking them to login in at a Ford to take this action. The agency
site that looks like the bank’s site. Instead, had wanted Ford to recall more than
• Keep remotes and other electronics out
the fraudulent site captures their login the 144,000 trucks from model years
of your child’s reach if the battery com-
information and uses it to access the real 2005-06 that it agreed in February to
partments do not have a screw to secure
account. The data breach could make these fix. Some of the recalled trucks have air
them. Use tape to help secure the battery
“phishing” attacks more efficient. That’s bags that may deploy when not
compartment.
because it allows the fraudsters to target needed, possibly injuring drivers or
If a button battery is ingested, medical people who actually have an account with passengers. The recall this year fol-
attention should be sought immedi- the bank. lowed a 2009 NHTSA investigation
ately. The National Battery Ingestion Hotline Among the companies affected are finan- into 1.3 million of the trucks.
is available anytime at (202) 625-3333 (call cial-service companies such as Capital One Ford finally agreed to widen the
collect if necessary), or call your poison Financial Corp., Barclays Bank, U.S. Bancorp, recall. The recall now covers nearly 1.2
center at (800) 222-1222. Citigroup Inc., JPMorgan Chase & Co. And million F-150s built for the 2004 and
Source: CPSC Ameriprise Financial Inc. Retailers involved 2005 model years and some built for
include Best Buy Co., TiVo Inc., Walgreen 2006. An electrical short can cause the
Co. And Kroger Co. The College Board, the air bags to inflate without a crash and
peRsoNAl iNfoRmATioN of ThousANds of not-for-profit organization that runs the could injure drivers. Ford said it would
oil spill clAimANTs iN jeopARdy SATs, also warned that a hacker may have fix the problem in 150,000 trucks but
obtained student email addresses. had resisted the government’s requests
When a BP employee lost a laptop in late Walt Disney Co.’s travel subsidiary, Disney to expand the recall.
March, the personal data belonging to thou- Destinations, has sent emails warning cus-
sands of residents who had filed claims for tomers. Hotel chain Marriott International Owners are to take their trucks to a
compensation after the Gulf oil spill were Inc. Also has issued a similar warning. dealer to replace an air bag wire in the
also lost. BP didn’t immediately disclose the Epsilon said that its system had been steering wheel. The wire can become
incident, but recently disclosed the poten- breached, exposing email addresses and chafed, causing a short circuit that can
tial data security breach to The Associated customer names but no other personal lead to the air bag inflating unexpect-
Press. BP said the company had mailed out information. Epsilon, a unit of Alliance Data edly. The problem was fixed at Ford’s
letters to about 13,000 people, notifying Systems Corp., sends more than 40 billion factories in January 2006, so trucks
them that their personal data was in the emails annually and has more than 2,500 made after that date are not suscepti-
computer. According to a BP spokesman, clients. ble to it. Ford said the company didn’t
the people with information on the laptop Source: Associated Press recall the trucks five years ago because
were all from Louisiana. Apparently, the data it didn’t think there was a safety risk.
belonged to individuals who had filed Ford didn’t want to have a large recall,
claims with BP before the Gulf Coast Claims saying it was not necessary. The
Facility took over the processing of claims XXIII. expanded recall also includes 16,000
in August. Hopefully, folks whose personal RECALLS UPDATE Lincoln LT pickups from the 2006
data have been compromised won’t be model year.
damaged. They have already been hurt
enough by BP. But there is certainly a very Each month we hope that fewer product
big risk involved in this lapse. recalls will have been issued. But it appears volkswAGeN RecAlls ceRTAiN New
that has not been the case recently. There jeTTAs To fix wiRiNG
have been numerous product recalls over
the past weeks. Serious safety-related recalls Volkswagen of America Inc. has
bANks ANd cRediT cARd issueRs wARN
have become rather commonplace. The fol- recalled certain 2011 Jetta models to
of emAil bReAch
lowing are some of the more significant fix a potential problem with the wiring
The possible theft of millions of email recalls since those reported in the April of its anti-theft system and horn. The
addresses from an advertising company issue. Readers are encouraged to contact recall affects 71,043 Jettas built
could cause problems for a tremendous our firm if more information is needed on between March of 2010 and March of
number of people. Several large companies any of the recalls. We would also like to 2011. The problem stems from the a
started last month to warn customers to know if we have missed any safety recalls fuse that protects the car’s anti-theft
expect fraudulent emails that try to coax that should be included in this issue. alarm and the converter box that oper-
account login information from them. Com- ates the windshield wipers and head-
panies behind such brands as Chase, Citi l i g h t s . U n d e r c e r t a i n ra re c i r -
and Best Buy reported that hackers may cumstances a short circuit in the horn
have learned their email addresses because can cause the lights and wipers to stop
of a security breach at a Dallas-based working, which could increase the risk
of a crash.
28 www.BeasleyAllen.com
The recall is a glitch in the roll-out of a ToyoTA RecAlls RAv4 ANd Vermont, Washington D.C., West Vir-
vehicle whose success is critical to hiGhlANdeRs foR fAulTy AiR-bAG ginia and Wisconsin. Nissan will
Volkswagen. The auto giant reworked seNsoRs inspect the SUVs and repair the vehi-
the Jetta for 2011 with the goal of cles free of charge as needed.
making the car appealing to a wider More than three years after Toyota first
audience, in part by cutting its price. learned that its curtain-shield air bags
Under the recall, dealer service techni- could deploy without a crash, the auto-
school buses RecAlled foR fiRe
cians will reconfigure the wiring layout maker is recalling almost 308,000
Risk
so that the horn and converter box do sport utility vehicles. The recall covers
not share the same fuse. The company about 214,000 RAV4s from the 2007-8 School bus manufacturer Blue Bird
says no injuries or accidents have been model years and 94,000 Highlander Body Co. has recalled about 3,900 large
reported as a result of the flaw. Cus- and Highlander hybrids from 2008. The school buses for a potential fire
tomers with questions can contact curtain shield is a tubular air bag hazard. A starter cable may rub against
Volkswagen customer service at 1-800- mounted in the roof, just above the a power steering hose creating a short
822-8987. windows. In a side-impact crash or roll- circuit that may result in a fire. The
over, it is designed to provide head pro- buses involved are model year 2004
tection for front and rear-seat through 2006 Blue Bird Vision buses
passengers. It deploys with less force manufactured from June 26, 2003,
meRcedes-beNz RecAlls u.s.
than frontal air bags. through December 9, 2004.
m-clAss vehicles
While NHTSA has eight complaints on The problem was first discovered in
Daimler AG’s Mercedes-Benz has
its Web site from owners reporting December when routine inspections
recalled 136,750 M-Class and M-Class
inadvertent deployments, the Agency by customers began uncovering abra-
AMG vehicles in the United States
never began an investigation. Five of sion on some cables, according to a
made from 1999 to 2004 for issues
those complaints were filed last letter sent by Blue Bird to the National
related to cruise control that may lead
year. Toyota said it learned of the Highway Traffic Safety Administration.
to a crash. Repairs will be made at Mer-
problem in 2007 and discovered it was Blue Bird began its own investigation
cedes dealerships beginning in Sep-
caused by a short circuit in two in January and found that about 5% of
tember.
sensors. The automaker said it changed the buses had chafing on the starter
NHTSA says applying the brakes to dis- the sensor design in January 2008. cable. The bus maker will alert owners
engage cruise control may fail, increas- Despite the change, Toyota has contin- to inspect the buses and make sure
ing the chances of a crash. The Agency ued to receive reports of deployments. there is enough space between the
also says there are other ways, includ- starter cable and the hose. In cases
Under federal regulations, a manufac-
ing working a “cruise control stalk” or where there isn’t enough space, Blue
turer has five days to inform the
pumping the brakes, that will still Bird will install a clamp to keep them
NHTSA of a safety problem and its plan
engage the system in the event that apart and any damaged cables or hoses
for a recall, or face civil fines. Toyota
applying the brakes fails. The recall will be replaced free of charge. Recall
paid almost $49 million in fines last
was prompted by several complaints notifications are expected to begin
year, the maximum allowed, following
f ro m c o n s u m e r s , a c c o rd i n g t o around May, 10.
three allegations by NHTSA that the
NHTSA. The recall covers model years
automaker had not reported safety Blue Bird has had other recalls in the
2000-2002 M-Class and 2000-2004
problems in a timely manner. past year involving potential fire
M-Class AMG vehicles.
hazards, including one involving a pos-
sible fuel leak and another involving a
NissAN is RecAlliNG 196,000 different potential short circuit. A
cAdillAc cTs RecAlled
vehicles spokesperson for Blue Bird did not
Cadillac has recalled its 2009-10 Cadil- immediately respond to requests for
Nissan North America is recalling comment. In total, there are approxi-
lac CTS. Some of the vehicles have a
nearly 196,000 sport utility vehicles in mately 480,000 school buses on the
condition in which a wax coating on
the United States for corrosion prob- road today, according to the American
the rear suspension toe link jam nuts
lems that could damage steering and School Bus Council, an industry group.
may allow nuts to loosen. The toe link
suspension systems. The recall extends
could separate allowing the rear wheel
to the Nissan Pathfinder from 1997 to
to turn inward or outward, increasing
2003, and the Infiniti QX4 from 1996
the risk of a crash. Dealers will repair bReAsT device RecAll mAde mosT
to 2004. Corrosion of the strut tower
free of charge. Call Cadillac at 866-982- seveRe
could cause the steering column to
2339.
break, resulting in the loss of steering The recall of a medical device that left
control, which could result in a crash. particles of tungsten in women’s
Most of the vehicles were sold in Con- breasts has been classified as Class I,
necticut, Delaware, Iowa, Illinois, the most serious type of recall. This is
Indiana, Massachusetts, Maine, Mary- the type involving “situations in which
land, Michigan, Minnesota, Missouri, there is a reasonable probability that
New Hampshire, New Jersey, New use of these products will cause
York, Ohio, Pennsylvania, Rhode Island, serious adverse health consequences
www.JereBeasleyReport.com 29
or death.” The device, the Axxent Flex- spoT sATelliTe commuNicAToRs exmARk pioNeeR s-seRies moweRs
iShield Mini, was a pad made of tung- RecAlled RecAlled
sten and silicone rubber that was
temporarily placed inside breast inci- A federal watchdog agency said Spot Exmark, located in Beatrice, Neb., has
sions during an unusual procedure in LLC of Covington, La., is recalling recalled 750 Pioneer S-Series lawn
which women were given an entire 15,400 Spot Satellite Communicators mowers due to welds on motion-con-
course of radiation treatment in one that can fail to work at critical trol linkage that can fail, federal regula-
dose after undergoing a lumpectomy times. The U.S. Consumer Product tors said. The U.S. Consumer Product
for cancer. The pads were used to help Safety Commission said the internal Safety Commission said the failed
direct the radiation beam and shield voltage indicator in the devices can welding can cause loss of control of
healthy tissue. But the pads were stop working, making it impossible to the mowers, raising the risk of a crash.
flawed, and left the breast tissue and transmit messages or track information No incidents or injuries have been
chest muscles riddled with hundreds in emergency situations. The company reported, the agency said. The recall
of tungsten particles. has received reports of two Spot Satel- involves 2011 zero-radius-turn riding
lite Communicators not working in mowers with red, welded tubular steel
It’s not known if tungsten is dangerous temperatures below 40 degrees Fahr- frames. They were sold with three
because relatively little research has enheit, the Commission said. deck sizes: 44, 48 and 52 inches. The
been done on its long-term health recalled mowers are steered with two
effects in humans. But it shows up on The satellite communicators were hand-held levers, rather than steering
mammograms and may make them dif- imported from China and sold at sport- wheels.
ficult to read, which is especially trou- ing outlets from July 2010 through
bling for women who have had breast March 2011 for $549. The communica- The recall involves mowers with
cancer and wor r y about recur- tors are used to send signals to satel- model number PNS20KA443 and serial
rences. The metal particles resemble lites to relay the location of the user in numbers 928367 through 947833;
calcium deposits, which can indicate emergencies. The device is palm-sized model number PNS22KA483 with
cancer. That the tungsten shows up on and sold with the DeLorme Earthmate serial number s 928417 through
mammograms is what made the recall PN-60w GPS. The GPS is not involved 949985; and model number
Class I. The particles could interfere in the recall, however. Consumers were PNS24KA523 with serial numbers
with diagnosis because they can be advised to stop using the recalled 928492 through 950315. They were
mistaken for cancerous calcifications product and contact Spot LLC for a sold nationwide by Exmark dealers last
or may hide real calcifications. Twenty- free replacement. Consumers can call month and in March for between
nine women are known to have been 866-727-7733 for information. $6,881 and $7,658. Consumers were
affected: 27 at Hoag Memorial Hospital advised to contact an Exmark dealer to
Presbyterian in Newport Beach, Calif., have welded parts replaced. Consum-
and two at Karmanos-Crittenton disNey TRicycles by kiddielANd ers can call 800-667-5296 for informa-
Cancer Center in Rochester Hills, Mich. RecAlled tion.
So far, 16 have had follow-up mammo-
grams six months after their surgery, Around 9,000 Disney Princess Plastic
and all 16 were found to have tungsten Racing Tricycles in the United States ToRo RecAlls z mAsTeR zRT
particles. and 700 in Canada have been recalled moweRs
due to a laceration hazard. The Con-
The device was made by a company sumer Product Safety Commission and Bloomington, Minn., firm Toro Co. has
called Xoft, which was subsequently Health Canada said in a joint statement recalled 3,700 riding lawn mowers due
bought by another company, iCad. The that children might cut themselves if to faulty switches that may activate the
Axxent FlexiShield Mini had been they fall on the plastic castle display mower improperly, federal regulators
cleared by the drug agency in June and the princess figures protruding said. The U.S. Consumer Product Safety
2009. It was put on the fast track from the top of the trike’s handle bar. Commission said switches may activate
process for approval. That process, Kiddieland Toys Limited, the manufac- the mower “when the operator vacates
known as 510(k), takes less time than turer, has received three reports of chil- the seat,” which raises the risk of an
the procedure used to approve a new dren suffering facial lacerations. injury from the mower blades. The
device, and it generally does not mowers involved in the recall are large
require tests on humans. The shields, The pink and fuschia trike was sold at commercial duty ZRT mowers—ZRT
taken off the market in February, were Target, JCPenney, Meijer and H.E.B standing for zero radius turn. They
cut to fit each patient. The cutting of stores nationwide and online at Target. were sold with 52-inch and 72-inch
the shields is believed to be the cause com from January 2009 through April cutting decks.
of the shedding of tungsten particles. 2011. Consumers should stop using
But why that occurred is not clear, the trikes immediately and contact the The recall involves mowers with
because the shields were meant to be manufacturer for a free replacement model numbers 74264, 74265, 74266,
cut and were made with that in mind. handlebar that has the castle and prin- 74267, 74274, 74253 and 74254.
cess figures enclosed in a rotating Various serial numbers also define
display, the statement said. which mowers are involved in the
recall. The mowers were sold from
September 2005 through January 2011
for between $13,000 and $17,000
30 www.BeasleyAllen.com
each. An additional 109 mowers were aerosol container’s liner can corrode used with the Rogue Fitness’ SPX Squat
sold in Canada. Mowers that have a over time, posing a risk of the can rup- Press Stand, R-3 Racks, R-4 Racks and
light gray optional deluxe seat with an turing and expelling its contents. Infinity Rigs.
adjustable knob on the front, are Redken has received 41 reports of cans
involved in the recall. Consumers with rupturing. No injuries have been The barbell brackets were sold exclu-
these mowers were advised to contact reported.This recall involves Redken sively on Rogue Fitness’ website www.
a Toro dealer for instructions on how Guts 10 Volume Spray Mousse Foam roguefitness.com from March 2009
to modify the seat or to have a repair sold in 10.58- and 2-ounce size through December 2010 for about
scheduled. Consumers can call 866- cans. The hair styling product was sold $40. They were also sold as part of
946-3109 for information. in a silver container with black writing. weightlifting racks and stands for
“Redken” and “10” are printed on the between $350 and $3,400. Consumers
front of the product. The product can should immediately stop using the
be identified by a lot code printed on recalled barbell brackets and contact
cub cAdeT RecAlls 4,300 moweRs Coulter to receive free replacement
the bottom of the can. Lot codes
A Cub Cadet has recalled 4,300 riding included in this recall include: brackets. For additional information,
lawn mowers with potential fuel leak contact Coulter toll-free at (888) 454-
problems that pose a fire hazard. The • Any can with lot codes that do not 6925, visit the company’s website at
Cleveland company is recalling 2011 contain a G or H as the third digit. www.roguefitness.com or email the
model year mowers made for both company at qc@roguefitness.com.
• Any can with the following lot codes:
commercial and private use. The
32G10Y, 32G11Y, 32G20Y, 32G21Y,
models under recall include Cub Cadet
32G23Y, 32G40Y, 32G41Y, 32G60Y,
Z Force 48, Z Force 54, Z Force S 46, Z
32G61Y, 32G62Y, 32G70Y.
oceAN TechNoloGy sysTems
Force S 48, Z Force S 54, Z Force S 60, Z RecAlls GuARdiAN diviNG mAsks
Force Commercial 48, Z Force Com- The cans were sold at hair salons and
mercial 60,Tank L48 and Tank L60. Undersea Systems International Inc.,
beauty supply stores nationwide from
doing business as Ocean Technology
January 1998 through February 2011
The mowers were sold nationwide Systems, of Santa Ana, Calif., has
for between $4 and $16. Consumers
from February through March for recalled Guardian full-face diving
should immediately stop using the
between $3,600 and $7,000. Consum- masks. The recall includes about 1,700
recalled mousse, record the product’s
ers were advised to stop using the m a s k s i n t h e U. S . A n d 8 0 i n
lot code, then discard the contents by
mowers and store them outside. Con- Canada. The purge assembly on the
spraying them into a waste container
sumers can contact Cub Cadet for free diving mask can disengage from the
in a well-ventilated area. Prior to dis-
repairs. For information, consumers regulator, resulting in loss of air to the
posing of the container, consumers
can call 888-848-6038. diver. This poses a drowning hazard to
should obtain the lot code from the
the consumer. The company has
container, then contact Redken for
received one report of a disengaged
information on receiving a refund of
AcTive leisuRe RecAlls 19,000 assembly. No injuries have been
the purchase price. For additional
TeNTs reported.
information, contact Redken toll-free at
(888) 241-9504, or visit the firm’s This recall involves Guardian full-face
Active Leisure has recalled 19,000
website at www.redken.com. diving masks with serial numbers
tents because of fire hazard
issues. Active Leisure, based in China, 9051284 through 10070954. The serial
recalled its 10-foot by 10-foot folding number is printed on the main regula-
canopy tents with item number RoGue fiTNess bARbell bRAckeTs tor body. The diving masks were sold
544803 printed on the original packag- RecAlled in various colors. The Ocean Technol-
ing. They were sold exclusively at ogy Systems’ logo is affixed to the front
Coulter Ventures LLC, doing business of the mask.
Costco Wholesale Corp. from Jan. 25
as Rogue Fitness, of Columbus, Ohio,
through February. The tents do not
and Columbus Machine Works Inc., of The masks were sold by diving equip-
meet the flammability label claim on
Columbus, Ohio, have recalled about ment retailers and direct sales nation-
the unit, posing a fire hazard to con-
5,500 Rogue Fitness Barbell Brack- wide from September 2010 through
sumer s. No injur ies have been
ets. The weld between the bracket and November 2010 for about $800. Con-
reported. For more information, con-
the pin that holds the barbell bracket sumers should immediately stop using
sumers should contact Active Leisure
in place on a weightlifting rack can the diving masks and contact Ocean
at 877-730-1583 between 9 a.m. And 5
break, causing the weights to fall, and Technology Systems for instructions
p.m., Monday through Friday.
posing an injury hazard to consum- on conducting a test of the regulator
ers. The company has received three and returning the masks for a free
reports of the weld between the repair. For additional information,
RedkeN 5Th AveNue Nyc RecAlls bracket and the pin breaking, including contact Ocean Technology Systems
GuTs spRAy mousse foAm one report of a consumer who toll-free at (877) 270-1984 anytime, or
received a sprained wrist. This recall visit the company’s website at www.
About 1 million Spray Mousse Foam
involves Rogue Fitness J-Cup brackets otscomm.com. Consumers can also
Cans have been recalled by Redken 5th
used to hold barbells on weightlifting email the company at recall@otscomm.
Avenue NYC of New York, NY. The
racks. The black metal brackets are com.
www.JereBeasleyReport.com 31
lAsko RecAlls box fANs due To schedule an inspection and, if neces- The pot is made of white porcelain
fiRe hAzARd sary, repair of the heater. For additional and has a red handle. The lid has a red
information, contact ADP toll-free at knob and a frother attached to the
About 4.8 million box fans have been (866) 303-8634, or visit the company’s underside of the lid knob. The pots
recalled by the manufacturer, Lasko website at www.adpnow.com. were sold at Williams-Sonoma stores
Products Inc., of West Chester, Penn. An nationwide, online at www.williams-
electrical failure in the fan’s motor sonoma.com and through Williams-
poses a fire hazard to consumers. Lasko Sonoma catalogs from October 2010
kiNGsmAN fiReplAces RecAlls GAs
has received seven reports of fires through January 2011 for between $30
fiReplAces
associated with motor failures, includ- and $40. Consumers should immedi-
ing two house fires and one barn fire, Kingsman Fireplaces, of Canada, has ately stop using the recalled hot choco-
resulting in extensive proper ty recalled about 40 Gas Fireplaces. late pots and either return the product
damage. No injur ies have been Delayed ignition can cause the fire- to any Williams-Sonoma store or
reported. This recall involves Lasko place’s propane gas to explode and contact Williams-Sonoma for instruc-
box fans with model numbers 3720, break or shatter the glass door. This tions on how to return the product for
3723, and 3733 and Galaxy box fans poses a laceration hazard to consumers a full refund. For additional informa-
with model number 4733 that have the nearby. Kingsman Fireplaces has tion, contact Williams-Sonoma toll-free
date “2002-03” or “2003-04” stamped on received two reports of fireplace glass at (855) 643-4206 or visit the compa-
the bottom of the metal frame. “Lasko” doors breaking. No injuries have been ny’s website at www.williams-sonoma.
or “Galaxy” is printed on the front of reported. This recall involves direct com. CPSC is still interested in receiv-
the fan. The model number is either vent gas fireplaces sold under the ing incident or injury reports that are
stamped or printed on the bottom of name “Skyline Marquis collection.” either directly related to this product
the fans. The fans were sold at mass They run on propane gas. The model recall or involve a different hazard with
merchandisers nationwide from July number is on the rating plate located the same product.
2002 through December 2005 for on the bottom of the fireplace near the
between $12 and $25. Consumers valve control. The fireplaces were sold
should immediately stop using the by authorized distributors and spe- cANdles RecAlled due To fiRe ANd
recalled fans and contact Lasko to cialty fireplace stores nationwide from buRN hAzARd
receive a free fused plug safety adapter. April 2008 through December 2010
For additional information, contact for between $1,700 and $2,900. Con- Pacific Trade International Inc. of Rock-
Lasko toll free at (877) 445-1314 sumers should immediately stop using ville, Md., has recalled 615,195 sets
anytime or visit the company’s website the recalled fireplaces and turn off the (about 7.48 million) tea lights. The
at www.laskoproducts.com. gas supply to the fireplace. Contact candles have a clear, plastic cup that
Kingsman Fireplaces to schedule a free can melt or ignite, posing a fire and
repair. For additional information, burn hazard to consumers. Pacific
Adp RecAlls uNiT heATeRs due To contact Kingsman Fireplaces toll-free Trade has received one report of the
fiRe hAzARd at (855) 593-3304, or visit the compa- plastic cup melting while in use. No
ny’s website at www.marquisfire- injuries or property damage have been
About 400 ADP FOA series unit heaters places.net. reported. The recall involves tea lights
have been recalled by Advanced Dis- sold under the brand names Chesa-
tributor Products (ADP) LLC, of peake Bay Candle and Moder n
Grenada, Miss., and Lennox Industries Light. The candles are var ious
williAms-soNomA RecAlls hoT
Inc., of Richardson, Texas or Advanced colors. They were sold in sets or with
chocolATe poTs
Distributor Products (ADP) LLC, of tea light containers. Only tea lights that
Grenada, Miss. Some heaters were man- Williams-Sonoma Inc., of San Francisco, do not have any lettering imprinted on
ufactured without a required flame Calif. And ICI USA, LLC, of Seattle,Wash. the bottom of the tea light cup are
rollout switch, which is a back-up Have recalled Hot chocolate pots. This included in this recall. The tea lights
device that shuts down the heater in includes about 28,000 units in the were sold at Fred Meyer, Home Goods,
the event of a heater failure. This poses United States and 700 in Canada. The Marshalls, Super Value, Target, TJ Maxx
a fire hazard. This recall involves handle of the hot chocolate pot can and Wegmans stores nationwide
c e r t a i n A D P F OA s e r i e s u n i t break off during use, posing burn and between July 2009 and February 2011
heaters. These unit heaters are sepa- laceration hazards. The company has for between $1 and $12. Consumers
rated combustion and gas-fired. The received 28 reports of handles break- should immediately stop using the
brand name “ADP”, the model number ing off of the pots, including eight candles and return them to the store
and the serial number can be found on reports of injuries involving minor where purchased for a store merchan-
the nameplate located inside the burns or cuts. This recall involves the dise card equal to the purchase price.
control cabinet. The heaters were sold Whirly Whip hot chocolate pots sold For additional information, contact the
at ADP dealers and distributors nation- individually as item number 2981454 Pacific Trade International at (800)
wide from September 2003 through or 4986535, and as part of the Whirly 331-8339, or visit the company’s
April 2011 for between $2,700 and Whip hot chocolate pot gift set item website at http://www.chesapeakebay
$4,200. Consumers should stop using number 3021714. The item number candle.com.
these recalled heaters immediately. can be found on the product’s box,
Consumers should contact ADP to below the bar code.
32 www.BeasleyAllen.com
bAby moNiToRs RecAlled September 1997 through December p.jAmAs childReN’s sleepweAR
2001 for about $160. Consumers RecAlled due To sAfeTy violATioN
Rechargeable batteries sold with should immediately stop using the
certain Summer Infant Slim and Secure recalled bed-side sleepers and visit Fashionviews Inc., of New Rochelle,
Video Monitor s have been www.armsreach.com/instructions to N.Y., has recalled about 4,000 P.Jamas
recalled. The batteries were sold at view and download assembly instruc- children’s sleepwear. The garments
Babies R Us from September 2009 tions and to make sure that the fail to meet federal flammability stan-
through May 2010 for about $200. The product is properly configured. Con- dards for children’s sleepwear, posing
battery in the handheld video monitor sumers should also contact the a risk of burn injury to children. This
can overheat and rupture, posing a company by phone or via the company recall involves all styles of P.Jamas
burn hazard. Consumers should imme- website to receive hard-copy instruc- brand name children’s sleepwear
diately stop using the monitors and tions by mail and an assembly/warning including nightgowns and two-piece
contact Summer Infant at 800-426- label. Consumers who are missing the shirt/pant sets sold in children’s sizes
8627 to receive a postage-paid enve- fabric liner or other components XS through XL. A garment label with
lope to return the defective battery in should immediately contact Arm’s the name P.Jamas in blue lettering on
exchange for a free replacement. The Reach for an alternative remedy. For a white background is sewn to the
monitor can continue to be used on AC additional information, contact Arm’s center back of the garments. The chil-
power with power cord. Reach at (800) 954-9353 or visit the dren’s sleepwear is made from 100
company’s website at www.armsreach. percent cotton, woven or knit
com. fabrics. The garments are in a variety
bedside iNfANT sleepeRs RecAlled of pastel colors in solid, stripe or plaid
patterns. Some nightgowns are hand
The Consumer Product Safety Commis- smocked and some pajamas are
sion is recalling over 75,000 Infant wRisT RATTles ANd bAby booTies
trimmed in piping or rickrack.
Bed-Side Sleepers because they could RecAlled by midwesT-cbk
lead to entrapment, suffocation, and The pajamas were sold at boutique
Midwest-CBK Inc., of Union City, Tenn.,
fall hazards. According to the CPSC, shops nationwide and on the www.p-
has recalled Wrist Rattles and Baby
Arm’s Reach Concepts is recalling jamas.com website from January 2006
Booties. This includes more than
about 76,000 Infant Bed-Side Sleepers through October 2010 for between
10,000 wrist rattles and 11,000 pairs of
because the fabric liner could pose a about $50 and $100. They were manu-
baby booties in the United States and
suffocation risk. factured in Peru and Bolivia. Consum-
600 wrist rattles and 700 pairs of baby
ers should stop using the recalled
When the fabric liner is not used or is booties in Canada. The pom-poms
sleepwear immediately and return the
not securely attached, infants can fall attached to the wrist rattles and
product to the retailer where pur-
from the raised mattress into the loose booties can detach, posing a choking
chased for a full refund. For additional
fabric at the bottom of the bed-side hazard. The company has received one
information, contact P.Jamas toll-free at
sleeper, or can become entrapped report of a pom-pom detaching from
(888) 554-6495, visit the company’s
between the edges of the mattress. The the wrist rattle. No injuries have been
website at www.p-jamas.com or email
CPSC and Arm’s Reach has received reported. This recall involves the
contactus@p-jamas.com.
ten reports of infants falling from the Monkeez & Friends™ wrist rattles and
raised mattress, or becoming baby booties. The wrist rattles and the
entrapped between the edge of the booties are made of knitted yarn and
have a monkey head and a pom-pom cloThiNG foR GiRls RecAlled by
mattress and the side of the sleeper. No my michelle
injuries have been reported. attached. Both come in multiple color
combinations. About 90,000 Girl’s Tops have been
This recall involves a product called a recalled by the distributor My Michelle,
“co-sleeper” by the manufacturer. One The wrist rattles and baby booties
were sold at gift stores, drug stores, of New York, N.Y. The jewelry and dec-
side of the bed-side sleepers is lower orative trim attached to the girl’s gar-
than the other to allow positioning decor outlets and variety stores nation-
wide from June 2009 through March ments contain high levels of lead. Lead
near a bed and access to the infant for is toxic if ingested by young children
care and feeding. This recall includes 2011. The wrist rattles sold for about
$5 and the booties sold for about $13. a n d c a n c a u s e a d ve r s e h e a l t h
all Arm’s Reach Original and Universal effects. This recall involves girl’s tops
styles with manufacture dates between Consumers should immediately take
these recalled products away from chil- and dresses sold in sizes small to extra
September 1997 and December large and 7 to 16. The garments were
2001. The manufacture date and model dren and return them to the store
where they were purchased or to Mid- sold in various styles including tops
number can be found on a sticker on with beaded necklaces attached to the
one of the product’s legs. Model west-CBK for a full refund. If you are
unable to return the product to the collar and tops with metallic beads
numbers included in the recall begin attached to the collar. All styles of the
with: Original - 8108, 8133, 8111, 8112 store where it was purchased, contact
Midwest-CBK to receive a prepaid tops and dresses have a black tag on
& 8199 and Universal—8311. the collar with pink print that reads
shipping label. For additional informa-
The bed-slide sleepers were sold at tion, contact Midwest-CBK toll-free at “mymichelle.”
Burlington Coat Factory, Babies R Us (800) 394-4225. The tops were sold at Burlington Coat
and other retail stores nationwide from Factory, Dillard’s, J.C. Penney, Kohl’s,
www.JereBeasleyReport.com 33
Army and Air Force Exchange (AAFES), the market. J&J said that the pills were The recall is the result of four con-
K & G Fashion Superstore and other sold only in the U.S. And Puerto Rico. sumer reports of an uncharacteristic
retail stores nationwide from January odor thought to be caused by trace
2011 through March 2011 for about The New Brunswick, N.J., company has amounts of TBA (2,4,6 tribromoan-
$38. Consumers should immediately now issued 22 product recalls, involv- isole). TBA is a byproduct of a chemi-
take the recalled garments away from ing well over 300 million bottles of cal preservative sometimes applied to
children and contact My Michelle for medicines, since September 2009. wood often used in the construction of
information on receiving a full refund. Many of the recalls involved widely pallets on which products are trans-
For additional information, contact My used nonprescription drugs such as ported and stored.
Michelle at (800) 960-8791, or visit the Motrin and Children’s Tylenol. The
company’s website at www.mymi- reasons have ranged from metal and While no consumer actions are
chellerecall.com. Consumers can also other contaminants, to nauseating required, patients taking TOPAMAX®
email the company at customerser- odors and packaging issues. Joint 100mg Tablets who experience an
vice@mymichellerecall.com. replacement systems so painful they uncharacteristic odor associated with
required corrective surgery were also their medication should return the
recalled, as were contact lenses that tablets to their pharmacist, and contact
irritated eyes, along with potentially their healthcare professional if they
pAcifieRs RecAlled by key bAby contaminated syringes full of the anti- have questions. Patients or healthcare
due To chokiNG hAzARd psychotic drug Invega. p r o fe s s i o n a l s c a n c o n t a c t t h e
Pampers® Natural Stages Infant Ortho TOPAMAX ® Line at 1-866-536-4398
Johnson & Johnson said it had received ( M o n d a y — F r i d a y, 9 a m — 5 p m
and Bulb Pacifiers have been recalled
four consumer complaints of an odor ET). Additional information about the
by Key Baby LLC, of Lutz, Fla. And
believed to be a chemical called TBA, recall can be found on Topamax.com,
Tahoe Enterprises, of China. Pampers®
or tribromoanisole, a byproduct of a RxForSafety.com, and OrthoMcNeil-
licensed their brand name to Key
chemical preservative sometimes used Neurologics.com.
Baby. The pacifiers fail to meet federal
on shipping pallets. J&J said “a very
safety standards and pose a choking
small number of patients have
hazard to young children. The pacifier
reported temporary gastrointestinal
comes in yellow, pink or blue colors
symptoms,” but TBA is not considered
moRe poTeNTiAlly TAiNTed medicAl
and is made of silicone. Only “Stage 1”
toxic. The same issue was linked to
pRoducTs RecAlled
pacifiers are recalled. “Stage 1” and
some of its previous recalls. Medical device maker Smith &
“Ortho” or “Bulb” are printed on the
package. The recalled pacifiers have an Nephew Inc. is recalling more prod-
oval-shaped mouth guard and ucts made by the Triad Group Inc. of
“Pampers” molded on to the handle moRe TyleNol boTTles RecAlled Wisconsin, saying they could be con-
side of the mouth guard. The product taminated with potentially dangerous
Johnson & Johnson also has recalled bacteria. The new recall includes two
comes two per package. The pacifiers another lot of Tylenol due to a musty
were sold at retail stores nationwide types of products: wipes used to
odor which has already triggered five protect the skin before medical tapes
from April 2010 through February other recalls of the company’s over-
2011 for about $6. Consumers should and films are applied, and adhesive
the-counter medicines. The latest recall removers that can clean residues from
immediately take the recalled pacifiers involves more than 34,000 bottles of
away from infants and contact Key the skin, according to the
Tylenol 8 Hour Extended Release, company. The products, including UNI-
Baby for instructions on returning the which were distributed throughout
product for a full refund or $10 SOLVE Adhesive Remover Wipes, are
the U.S. All of the products come from widely used by diabetics and others
coupon toward the purchase of any lot number ADM074, which appears on
Pampers® Natural Stages products. For who require daily medication. The
the bottom of the bottles. move expands again the recall of prod-
additional information, contact Key
Baby toll-free at (800) 447-1224 ucts manufactured and distributed by
anytime, or visit the company’s web H&P Industries Inc. And the Triad
oRTho-mcNeil NeuRoloGics Group Inc. of Hartland, Wis., which
site at www.key-baby.com.
RecAlls Two loTs of TopAmAx ® were shuttered by the FDA. On April 6,
U.S. Marshals seized more than $6
Ortho-McNeil Neurologics Division of
million in medical supplies made by
j&j RecAlls epilepsy pills Ortho-McNeil-Janssen Pharmaceuticals,
the twin family-owned firms.
I n c . , h a s re c a l l e d t wo l o t s o f
Johnson & Johnson has issued another TOPAMAX ® (topiramate) 100mg H&P Industries products have been
recall. This one is for about 57,000 Tablets. These two lots were shipped cited in at least three lawsuits that
bottles of a widely used epilepsy pill, between 10/19/2010 and 12/28/2010 blame contaminated alcohol prep pads
and is due to complaints of a chemical and distributed in the U.S. And Puerto for serious injuries and a death. In
odor. Two lots of 100-milligram tablets Rico. The recall encompasses approxi- January, H&P Industries launched a
of Topamax, sold between October mately 57,000 bottles of TOPAMAX®; recall of all lots of alcohol wipes
19th and December 28, 2010 are being but, the company believes there are because of the potential for contamina-
recalled. The lot numbers are OKG110 fewer than 6,000 bottles remaining in tion with Bacillus cereus. The bacteria
and OLG222. J&J said fewer than 6,000 the marketplace. can cause serious life-threatening infec-
of the bottles are believed to still be on
34 www.BeasleyAllen.com
tions in ill and vulnerable people. H&P ground in corporate law and civil litigation and to Chris’ clients. We are fortunate to
Industries also has issued recalls for equips him to handle this type of complex have her with us.
lubricating jelly and povidone iodine consumer fraud litigation. Before coming
wipes. with our firm, Chad was a partner in the niCole MCARTHuR
firm Marsh, Cotter & Stewart in Enterprise, Nicole McArthur started with the firm
Since early Januar y, the FDA has and prior to that time, he was with Sasser last June and she currently serves as a law
received 201 reports of problems with Littleton in Montgomery. clerk for Clay Barnett in our Consumer
Triad alcohol wipes, including allega- Chad attended Troy University on aca- Fraud Section. She primarily works on AWP-
tions of seven deaths, 114 infections demic scholarship where he served as SGA related cases, which includes helping to
and 87 minor problems, such as rashes, Chief Justice and graduated Magna Cum draft responses to interrogatories, requests
according to a summary of the agen- Laude and Phi Kappa Phi in 1995. He for production, and requests for admissions,
cy’s MedWatch reporting system. FDA earned his Juris Doctor degree from Cum- and working with Clay in drafting summary
officials are investigating the deaths. berland School of Law in 1999, graduating judgment motions. Nicole recently spent
Magna Cum Laude in the Top Ten of his two weeks in Mississippi helping with Mis-
Recalled products include REMOVE
class. While at Cumberland, Chad was a sissippi v. Sandoz AWP trial.
Universal Adhesive Remover Wipes,
Senior Associate Editor of the Cumberland Nicole received a Bachelor of Arts degree
UNI-SOLVE Adhesive Remover Wipes,
Law Review. (cum laude) from Mercer University where
SKIN-PREP Protective Wipes, PERI-
Chad has always been very active in his she majored in Psychology and Criminal
PREP Protective Wipes and NO-STING
community in civic and church-related proj- Justice. She is currently a third year law
SKIN-PREP Protective Wipes. The
ects. He has given his time to a number of student at Thomas Goode Jones School of
affected product codes are 420400,
mission projects. Chad has been a Young Law in Montgomery. While in law school
420471, 59420425, 403100, 402300,
Adult Sunday School Teacher, a Deacon, and Nicole has been involved with the Mock
59403125 and 59420600.
member of the Personnel Committee at his Trial Competition Team and was a finalist in
If you need more information on any of home church which is First Baptist Church the J. Greg Allen Mock Trial Competition.
the recalls listed above, or would like infor- in Enterprise. Chad is also an avid outdoors- She is also the President of the Christian
mation on a recall that you are aware of that man and member of the Alabama Wildlife Legal Society. Nicole enjoys playing tennis,
we haven’t listed, please visit our firm’s web Federation. Chad and his wife Becky have shopping, traveling, and spending time with
site at www.BeasleyAllen.com/recalls. We three children, Cate, Ann Presley and Bo. We her family and friends. We are fortunate to
would also like to know if we have missed are pleased to welcome Chad to the firm. have such a talented and dedicated person
any significant recall that involves a safety working in the firm’s fraud section.
issue this month. If so, please let us know. BeveRly JoHnSon
Beverly Johnson, who has been with the Julie owenS
You may also contact Shanna Malone at
firm for a year, currently serves as Legal Sec- Julie Owens has been with the firm for a
Shanna.Malone@beasleyallen.com for more
retary to Chris Glover in our Personal year and she currently works as a Legal
recall information.
Injury/Products Liability Section. Before Assistant to Richard D. Stratton in our Toxic
working with Chris, she worked with J.P. Torts Section. Julie is hard at work on BP oil
Sawyer. Since Chris travels a lot in his work, spill litigation cases. She gathers informa-
XXIV. Beverly does a great deal of scheduling of tion, contacts clients, and organizes docu-
ments in cases. She also helps to file claims
FIRM ACTIVITIES his trips. She does a great job coordinating
the schedule and handling things in the with the Gulf Coast Claims Facility for busi-
office when Chris is gone. Beverly says she nesses that have suffered losses and been
loves that every day in her work brings damaged as a result of the oil spill. Julie is
employee spoTliGhTs something different. originally from Dothan and moved to Bir-
Beverly and her husband Jerry have been mingham in 1995 to attend the University
CHAd STewART of Alabama at Birmingham. She moved to
married for almost two years. She has a
Chad Stewart recently joined the firm Montgomery when she became employed
daughter and son-in-law in Millbrook and
and he will be working in our Consumer with the firm.
two grandsons, Alex and Blake. Beverly also
Fraud Section. He comes back to Montgom- Julie graduated from UAB with a Bachelor
has a son who recently married and now
ery where his legal career began with judi- of Science degree in Criminal Justice and a
lives in Deatsville. Beverly graduated from
cial clerkships for Chief Judge Joel F. Dubina, minor in Sociology. After graduation, Julie
AUM and also completed all but a couple of
Eleventh Circuit Court of Appeals, and U.S. attended Samford University where she
classes for her master’s degree in counsel-
District Judge Ira De Ment, Middle District received a Legal Assistant’s certificate. Julie
ing. She used that knowledge in many
of Alabama. For more than ten years, Chad enjoys reading, painting and listening to
hours of volunteerism with inner city chil-
has successfully litigated in the state and music. She also loves the beach, spending
dren, teens with addictions and hospice
federal courts doing both trial and appellate time with her family and going to Auburn
work. Beverly says her best accomplish-
work. He will be focusing in our firm pri- football games. Being a huge Auburn fan,
ments in life have been her children. She
marily on the Medicaid Fraud Litigation, the Julie says college football is more than just a
enjoys reading, playing the piano and going
Toyota Multidistrict Litigation and commer- hobby for her. Julie is a dedicated employee
to movies, but her interest in helping
cial fraud cases. who does a very good job in a challenging
people with interior decorating and orga-
Chad recently helped try the firm’s case field of work. We are most fortunate to have
nizing is what she really enjoys doing the
for the State of Mississippi in its multi-mil- her with us.
most in her spare time. Beverly is a good
lion dollar Medicaid Fraud case against a
employee who is dedicated to her work
number of drug manufacturers. His back-
www.JereBeasleyReport.com 35
XXV. really make a difference in Montgomery’s
future by providing opportunities for disad-
priests to His God and Father, to Him
be glory and dominion forever and
SPECIAL vantaged young people. For more informa- ever. Amen.
RECOGNITIONS tion about Common Ground Montgomery
Rev. 1:5,6
and how you can help in its mission, visit
www.cgmal.org. Erick, who is the Area Urban Director for
commoN GRouNd hAs GRouNd bReAkiNG FCA in our area, sent in one of his favorite
verses.
Several weeks ago our firm started a The fiRm’s blood dRive helps pRovide
project to create a youth entrepreneurship The GifT of life “For this very reason, make every
program in West Montgomery working with effort to add to your faith goodness;
Common Ground Montgomer y. The Each year, our firm hosts three blood and to goodness, knowledge; and to
program included the renovation of a drives in conjunction with LifeSouth Com- knowledge, self-control; and to self-
4,300-square-foot double storefront build- munity Blood Centers. Held about every control, perseverance; and to persever-
ing on Mobile Road, adjacent to Common four months, each blood drive gathers ance, godliness; and to godliness,
Ground’s existing facility. The project came about 30 pints of blood for local hospitals brotherly kindness; and to brotherly
to fruition on April 19th with the opening of in Central Alabama. LifeSouth Community kindness, love. For if you possess
the Common Ground Montgomery Annex, Blood Centers has donor centers in these qualities in increasing measure,
which will house the Urban SEED Alabama, Georgia and Florida committed to they will keep you from being ineffec-
X-change. The name given to the program meeting the blood supply needs of local tive and unproductive in your knowl-
refers to the skills Common Ground wants hospitals in the communities they serve. edge of our Lord Jesus Christ.”
the children who use the facility to develop. Each year, nearly 5 million Americans need a
blood transfusion. This means collecting 2 Peter 1:5-8.
We all want them to develop their skills and
to become good, productive citizens. Our 266,000 blood donations every month. Life- I encourage all of our readers to get
firm contributed $60,000 to this project to South operates more than 30 donor centers involved with the FCA in your home-
help fund renovations and furnish the and 37 bloodmobiles, and has more than towns. The FCA deals directly with young
space with the necessary equipment to suc- 1,000 blood drives every month. people in our schools. I know from first-
cessfully operate the centers. It’s quite obvious there are no substitutes hand experience that their involvement can
The Urban SEED X-change will give area for blood when blood is needed. Patients pay great dividends for the young
youth an avenue to develop real-world busi- who need blood transfusions to survive people. There is a tremendous need to
ness experience as well as a positive work depend on volunteer donors who are reach out to young people and to make
ethic. Middle school-age children from the willing to give the gift of life. We appreciate them aware of how Jesus can change their
after school program will be selected and all of our employees who gave blood this lives forever. The FCA does an excellent job
taught the basics of business including man- year. Because of the devastating storms that of doing just that.
aging, designing and marketing their hit much of our state on April 27th, leaving Arnold Mooney, a longtime friend from
product. Income earned in their businesses mass destruction, injuries and deaths in the Birmingham, who is one of the biggest sup-
will go toward further educational opportu- wake, this blood drive took on even more porters of Auburn football around, sent in
nities. Space in the annex also can be used meaning. To find out about the blood drives the following verse.
as a training center for adults participating and how effective they have been, contact
in CGM’s home ownership initiative, an Helen Taylor at 800-898-2034 or by email at Behold, I am with you and will keep
extensive home ownership and financial lit- Helen.Taylor@beasleyallen.com. you wherever you go, and will bring
eracy training program. you back to this land; for I will not
Since the kickoff, teams of volunteers leave you until I have done what I
have spoken to you.”
have been hard at work, clearing debris XXVI.
from inside and around the building, install- Genesis 28:15
ing new electrical systems, an air condition- FAVORITE BIBLE
ing and heating system, and plumbing; VERSES Kenneth Lougee, a lawyer with Sieglfried
& Jensen, a very good law firm in Salt Lake
scrubbing walls, scraping and mopping
floors, priming and painting walls and City, Utah, sent in a verse for this issue. He
floors, carpentry, and landscaping projects John Gibbons and Erich Armster, two of says this verse is for all of the trial lawyers
like laying sod, creating brick walkways and my favorite people, work for the Fellowship who operate in an area where their opposi-
planting shrubbery, as well as installing of Christian Athletes and are located in tion is always well financed with unlimited
desks, computers and other furniture in the Montgomery. John and Eric do a tremen- trial support and resources available to
classrooms and storefront. dous job in bringing young folks to the them.
Media partners for this project were Lord. John, who serves as the Alabama FCA
Director, sent in this verse. Be strong and courageous, be not
WSFA-TV12 and Faith Radio. In addition to
afraid nor dismayed for the king of
lawyers and employees from Beasley Allen,
And from Jesus Christ, the faithful Assyria, nor for all the multitude that
groups that worked on the project include
witness, the firstborn from the dead, is with him: for there be more with us
Prattville Christian Academy, Huntingdon
and the ruler over the kings of the than with him:
College, WSFA, Faith Radio, and The Mont-
gomery Advertiser. Our motto is “helping earth. To Him who loved us and
washed us from our sins in His own 2 Chronicles 32: 7-8 (KJV)
those who need it most.” This project can
blood, and has made us kings and
36 www.BeasleyAllen.com
My longtime friend Bill Fuller, a lawyer
from Birmingham, sent in a verse for this
XXVII. with this project. ALAJ President Courtney
French stated:
issue. Bill, who specializes in elder-law, says CLOSING
The people who were affected by the
this verse is a daily encouragement to him OBSERVATIONS storms are in our hearts and prayers.
and others.
We want to do everything we can to
Blessed are those who seek Him with help those affected by the storms. We
their whole heart! The TRAGic sToRm of ApRil 27 Th pride ourselves on serving individu-
als and families in their time of
Psalm 119:2 The tornados that hit Alabama unbeliev- need. This is one way where we can
ably hard on April 27th left a path of massive help. The insurance process can be an
Linda Rush, who attends St. James United destruction in a number of counties. It’s
Methodist Church with Sara and me, sent in arduous one and we can help make
being reported that this was one of the the process easier.
two verses for this issue. deadliest outbreaks of tornados in U.S.
Surely He has borne our griefs and weather history. According to reports it was The Alabama Association for Justice, and
carried our sorrows; yet we esteemed the worst in Alabama since 1952. Hundreds its sister organization, the Alabama Civil
Him stricken, smitten by God, and of lives in our state were lost and thousands Justice Foundation, have donated nearly $9
afflicted. But He was wounded for injured. It’s too early to know the number million since their founding to charitable
our transgressions, He was bruised of homes and businesses that were causes in Alabama. This is another opportu-
for our iniquities; the chastisement dama ged, with many being totally nity for lawyers who really want to help
for our peace was upon Him, and by destroyed, but it will be in the thousands. folks to do so and I am confident they will.
His stripes we are healed. It’s very sad to see the vast extent of the
damage to people in our state. Many fami-
Isaiah 53:4-5 lies have either lost loved ones, had family couRT dismisses chAlleNGe To NATioNAl
members injured, lost their homes or have dAy of pRAyeR
Who his own self bare our sins in his no jobs. Unfortunately, many have suffered
own body on the tree, that we being all four. People across the state who were A federal court ruled last month that a
dead to sins, should live unto righ- not hit by the storms must help those who National Day of Prayer in our country is
teousness; by whose stripes you were were. It’s the right thing to do. Our prayers legal. The law calling for an annual National
healed. go out to all who were hurt and damaged in Day of Prayer imposes solely on the duties
any manner by the storms. of the U.S. president, leaving private citizens
1 Peter 2:24 no legal standing to challenge it, according
to an appeals court. The unanimous deci-
Linda says that by believing what Jesus
AlAbAmA AssociATioN foR jusTice sTeps sion overturns a 2010 lower court ruling
accomplished for us on the cross, we
iN To help sToRm vicTims that found the law to be unconstitutional.
receive protection, healing, deliverance and
The panel from the U.S. Court of Appeals
provision. The resurrection power that
The Alabama Association for Justice, for the Seventh Circuit described the Presi-
raised Jesus from death can be ours, allow-
which is made up of trial lawyers, went to dential proclamations that follow the law as
ing us to overcome any challenge or diffi-
work early on April 28th to help the storm requests, not commands of the public.
culty we may encounter. That’s most
victims. Many lawyers, their families and “Those who do not agree with a President’s
reassuring for all of us because we live in a
employees have been helping in the clean statement may speak in opposition to it;
very difficult time in world history.
up and are trying to make sure assistance in they are not entitled to silence the speech
I am also adding a verse for this issue that the form of food, water and housing is of which they disapprove,” the court
is most appropriate for any season. But it’s being made available to the victims. After said. The Freedom from Religion Founda-
especially timely during this time of the the clean-up and the grieving, Alabamians tion, which had argued that the proclama-
year. will face the next step of rebuilding their tion violates the Constitution’s prohibition
lives. For most folks, that will mean filing of an official “establishment” of religion,
For God so loved the world that He insurance claims so they can get started challenged the law. The group plans to ask
gave His only begotten Son, that with that process. for a rehearing by the Court’s full panel of
whoever believes in Him should not The Association, an organization of judges. The ruling came weeks before a
perish but have everlasting life. lawyers whose mission includes helping National Day of Prayer was to be held on
injured individuals and families, offered May 5 th . This special day will now be
John 3:16
free help in filing insurance claims for all observed, which in my opinion, is a good
those in need. Persons needing help of this thing for the United States of America. There
sort should go to www.alabamajustice.org has never been a time when prayer for our
and fill out the online form. Victims may nation was more urgently needed!
also call the AAJ office at (334) 262- Source: USA Today
4974. Any person requesting help will then
be matched with a lawyer in their area who
can assist with filing the claims and also
can answer any legal questions those
affected may have. There will be no fees or
charges to storm victims in connection
www.JereBeasleyReport.com 37
GibsoN vANce wRoTe AN excelleNT As power windows became more TRiAl by juRy hAs AlwAys beeN
op-ed piece common, so too did instances of chil- impoRTANT iN This couNTRy
dren being strangled. Seven children
Gibson Vance, a lawyer in our firm who is died within a three-month period in The American jury system has been
serving as President of the American Associ- 2004. Manufacturers were aware of under constant attack over the past several
ation for Justice, wrote an interesting op-ed the issue, and the fix was relatively years and the attacks have intensified and
piece that appeared in The Washington Post simple and inexpensive. In response to become more vicious in recent months. It’s
last month. It’s an accurate rendition of regulations in other countries, Euro- to the point that many folks, as well as some
how important the judicial system is when pean and Asian cars already used a elected officials, have forgotten how impor-
it comes to safety issues. I am including the safer switch, one that must be pulled tant our jury system really is. It’s well docu-
message in its entirety below. up to raise a window and so did mented that the rights of citizens are being
many U.S. manufacturers on cars they taken away or at least trampled upon. It’s
offered to foreign markets.Yet incredi- always good to reflect on how the right to
how ouR cARs GoT sAfeR bly, U.S. manufacturers did not install trial by jury was looked upon by our found-
the safer switches on domestic cars ing fathers. The following statements pretty
Traffic deaths in the United States because NHTSA had no rules govern- well sum up their feelings and beliefs about
have dropped to their lowest level ing power-window safety. Litigation the importance of the right to trial by jury
since 1949, according to a report eventually forced universal accep- in this country.
released this month by the National tance of the safer switches in 2006. It
Highway Traffic Safety Administra- The friends and adversaries of the
is easy to take for granted just how
tion (NHTSA). Remarkably, this drop plan of the constitutional convention,
much safer vehicles have become and
occurred even as Americans drove 21 if they agree on nothing else, concur
how safety measures have been stan-
billion more miles in 2010 than they at least in the value they set upon
dardized. For years, the auto industry
had the previous year. The drop in trial by jury; the former regard it as a
has worked to undermine regulations
fatalities is due in large part to the valuable safe guard to liberty; the
and limit its liability by pushing for
fact that cars are getting safer. Since latter represent it as the palladium of
complete immunity from lawsuits
the introduction of the Ford Pinto free government.
when their vehicles comply with
nearly four decades ago—a car syn- minimum federal safety stan- Alexander Hamilton (1788)
onymous with danger, destruction dards. This would, in short, be devas-
and executives putting profits ahead tating for consumers. I consider trial by jury as the only
o f c o n s u m e r s a fe t y — a m a z i n g anchor ever yet imagined by man, by
advancements have been made in Recall that the design of the Pinto which a government can be held to
auto safety. The technology is better, met all government standards of the the principles of its constitution.
regulations are stronger and buyers time. Had compliance with federal
have more information. Not surpris- standards been a complete defense of Thomas Jefferson (1788)
ingly, consumers are drawn to cars vehicle safety, Ford could not have
Trial by jury in civil cases is as essen-
with the latest safety features. been held accountable for the many
tial to secure the liberty of the people
burn victims that the company was
Yet these factors alone do not tell the as any of the pre-existent rights of
later shown to have anticipated. Put
whole story. History shows that litiga- nature.
another way, without the civil justice
tion and the civil justice system have system, gas tanks would still explode James Madison (1789)
served as the most consistent and in rear-end collisions, seat belts and
powerful forces in heightening safety airbags would not be standard, and Without the trial by jury we have no
standards, revealing previously con- cars would roll over onto roofs that way to keep us from being ridden like
cealed defects and regulatory weak- would be easily crushed. There are horses, fleeced like sheep, fed like
nesses and deterring manufacturers multiple reasons behind the welcome swine and clothed like hounds.
from cutting corners on safety for the news that traffic deaths continue to
goal of greater profits. The Ford Pinto John Adams
decline. But the role of the civil justice
litigation sent a strong message to the system is often overlooked. Litigation Those who would destroy our jury
auto industry. Unfortunately, manu- has spurred safety innovations in system and take away the right to trial by
facturers have still sold dangerous vehicles for more than half a century jury are undermining the one thing that has
cars. In June 2004, a Dallas-area and will continue to be essential in consistently protected the American people
mother stopped her Ford F-150 truck keeping Americans safe and holding and preserved their rights and freedoms
to speak with her husband through manufacturers accountable. over the years. Unfortunately many, includ-
the driver’s side window. Her three-
ing even some judges, have forgotten that
year-old daughter leaned out the pas- Gibson Vance
the right to trial by jury is guaranteed by
senger side window and accidentally President of the American Association
the U.S. Constitution in both criminal and
hit the rocker switch, causing the for Justice
civil disputes. It’s rather interesting, and also
window to close on her neck. When April 15, 2001
quite telling, that the attacks on juries and
her parents noticed moments later, it
jurors have been made just on the civil jury
was too late—their daughter was
side and on the folks serving just on the
strangled.
civil juries.
38 www.BeasleyAllen.com
Those, who for ulterior and financial their wicked ways, then will I hear good friend and pastor Walter Albritton
reasons, are behind the attacks on our jury from heaven and will forgive their pointed out in a recent Easter sermon, the
system might consider the following sin and will heal their land. resurrection gives us hope that the grave is
warning, by a prophet in Old Testament not the end of life for us.
times: 2Chron7:14 As we reflect on the meaning of the res-
urrection, all of us should read the account
Woe to those who enact unjust stat- of Jesus being raised from the dead by God,
utes and who write oppressive
decrees, depriving the needy of judg- XXVIII. His Father, in each of the four Gospels. It’s
important to remember that had Jesus not
ment and robbing my people’s poor PARTING WORDS been raised from the dead, as predicted in
of their rights, making widows their the Old Testament, and as told by Jesus to
plunder, and orphans their prey. His apostles, there would be little of real
As Christians throughout the world
Isaiah 10:1-2 value to our Christian faith. If one doesn’t
having celebrated Easter on April 24th in a
believe that Jesus was in fact raised from
number of ways, it might be good to reflect
The American people had best wake up the dead, there is little else in the Christian
on the sole reason for our happiness and
and collectively fight to preserve the jury faith that makes any sense. As for me and
joy on Easter Sunday. While Easter brings
system in our country. I believe more and my house, we believe in the Virgin Birth, the
egg hunts and chocolate bunnies for the
more folks are realizing that they have been death and the Resurrection of Jesus, as well
children (and for some adults), oftentimes
voting for candidates in recent years who as the Life Eternal that is guaranteed to all
we forget the real reason for celebrating
don’t have their best interest at heart. In believers. My prayer is that all people every-
this very special day. The celebration of the
fact, folks have been voting against their where will come to have the same belief.
resurrection of Jesus Christ should be on
own self-interest.
our minds and in our hearts on every Easter
Sunday.
Putting things in perspective, no event in
A moNThly RemiNdeR history has had a greater impact on the
world than has the resurrection of Jesus
If my people, who are called by my Christ. On Easter Sunday, the Church
name, will humble themselves and declares the greatest of all good news and
pray and seek my face and turn from that is that Jesus Christ has risen. As my
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Jere Locke Beasley, founding shareholder of the law firm Beasley, Allen, Crow,
Jere Locke Beasley, founding shareholder of the is one of the most successful litigators of all Miles,
Methvin, Portis & Miles, P.C., law firm Beasley, Allen, Crow, Methvin, Portis & time,
with successful litigators of all time, with any lawyer in America. Beasley’s law firm,
P.C. is one of the most the best track record of verdicts of the best track record of verdicts of any lawyer
established established in 1979 with the mission of those who need need it most,”
in America. Beasley’s law firm, in 1979 with the mission of “helping “helping those whoit most,” now
employs 44 lawyers and support staff. Jere Beasley has always been has always
now employs 44 lawyers and more than 200more than 200 support staff. Jere Beasley an advocate
been an advocate for victims of wrongdoing
for victims of wrongdoing and has been shareholder of the and has been helping those who need
Jere Locke Beasley, founding helping those who need it most for over 30 years.
law firm Beasley,
it most for over 30 years. Allen, Crow,
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. Beasley’s 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
it most for overNo30 years. that the quality of services to be performed is greater than the quality of legal services performed by other lawyers.
