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Jere Beasley Report May

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Jere Beasley Report May Powered By Docstoc
					                                             May 2011




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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.

				
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