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July 2010 Distributed to over 53,000 subscribers each month www.BeasleyAllen.com I. ing on “trial lawyers” and a system they TvA is Fined $11.5 million By Tennessee claim is “broken.” They know that the CAPITOL victims of corporate wrongdoing and Tennessee state officials have levied OBSERVATIONS abuse can’t be attacked, so they do the $4.5 million in fines against the Tennes- obvious—they attack the lawyers who T see Valley Authority. he State Depart- represent them, and attack the jury ment of Environment and Conservation The Civil JusTiCe sysTem And JusTiCe system. imposed the penalties after determining There is no shortage of examples of that the billion-gallon coal sludge spill in Each night on the news, and in all the corporations letting profits override 2008 violated state clean-water and solid daily newspapers, we hear of things like safety and basic consumer protec- waste disposal laws. In a statement runaway cars, massive vehicle recalls, coal tions. he marketing arms of the compa- T announcing the fines, Environment Com- mine collapses, exploding oil rigs, natural nies continue to run over sound safety missioner Jim Fyke called them an gas pipe line explosions, serious safety engineering judgment. You can list corpo- “appropriate” response “to an unprece- problems with prescription and over-the- ration after corporation that have com- dented event.” TVA will not challenge the counter drugs, financial institutions in mitted massive wrongs and tried their fines for an obvious reason—they are trouble, and the list goes on. It has best to get away with it. Large corpora- guilty as charged. become a common occurrence to have tions like BP, Toyota and Massey Energy the news dominated by the latest put lives at risk, expecting no real conse- example of corporate misconduct. Each quences. hey attempt to evade account- T IN THIS ISS U E saga follows a similar pattern: a tragedy ability for their actions. Yet once the occurs, followed by apologies tempered I. Capitol Observations . . . . . . . . . . . . . . . 2 scandals of these corporations fade away, by denials and claims of innocence, and it will be telling to see whether some II. A Report on the Gulf Coast Disaster . . . . 3 evidence that profits were intentionally lawmakers continue with their fixation III. Drug Manufacturers Litigation . . . . . . . 6 put ahead of the safety and well-being of on “tort reform”—or hand out immunity T the American people. his sort of thing IV. Purely Political News & Views . . . . . . . . 7 to the very same corporations responsi- has become so common that we almost ble for injuring and killing consumers in V. Settlements of the Month . . . . . . . . . . . 10 know the script by heart. the first place. VI. Legislative Happenings. . . . . . . . . . . . . 10 The public is now beginning to see The barons of Corporate America, and how federal agencies lack the resources their hired guns at the U.S. Chamber of . VII. Court Watch . . . . . . . . . . . . . . . . . . . . 11 to adequately protect and safeguard the Commerce, have dedicated millions of VIII. The National Scene . . . . . . . . . . . . . . . 12 American people. Folks have finally come dollars to demonize trial lawyers. Yet each IX. The Corporate World . . . . . . . . . . . . . . 12 to realize that powerful corporate lobby- corporate scandal and dangerous product ists control Congress and that’s not good show that when the first lines of defense X. Toyota Litigation . . . . . . . . . . . . . . . . . 13 for ordinary folks and really not good for fail to protect the safety of consumers, XI. Product Liability Update . . . . . . . . . . . 14 businesses. Large corporations brag about that leaves only the civil justice system to the millions of dollars saved by limiting hold corporate wrongdoers accountable XII. Mass Torts Update . . . . . . . . . . . . . . . . 17 their recalls and they ignore industry A and restore justice. t the end of the day, XIII. Business Litigation . . . . . . . . . . . . . . . . 20 guidelines in spite of the need for con- it is trial lawyers—not the big corpora- XIV. An Update on Securities Litigation . . . . 21 sumer safety. Millions are spent on public tions that put profits ahead of safety— relations efforts to make bad conduct who speak for ordinary citizens and seek XV. Insurance and Finance Update . . . . . . 21 A look and sound good. case in point is justice for victims of corporate wrongdo- XVI. Employment and FLSA Litigation . . . . . 22 BP’s handling of the ongoing crisis in the ing and abuse. Gulf of Mexico. Meanwhile, the tort system is now, and XVII. Premises Liability Update . . . . . . . . . . . 23 Americans are entitled to safe products, always has been, a vehicle for effecting XVIII. Workplace Hazards . . . . . . . . . . . . . . . 24 fewer preventable injuries and a restora- change, enhancing safety, and holding XIX. Transportation . . . . . . . . . . . . . . . . . . . 25 tion of checks and balances that give T wrongdoers accountable. he next time people a fair chance to obtain justice cries of “tort reform” ring out from the XX. Arbitration Update . . . . . . . . . . . . . . . . 26 when a corporation is guilty of wrongdo- usual suspects, remind those hired-guns XXI. Healthcare Issues . . . . . . . . . . . . . . . . 27 ing. Unfortunately, it’s only after tragic about BP, Toyota, Wall Street, Enron, accidents that our government closely XXII. Environmental Concerns . . . . . . . . . . . 28 Massey Energy and the legions of corpo- analyzes the agencies and systems that rate wrongdoers. mericans should think A XXIII. The Consumer Corner . . . . . . . . . . . . . 28 failed. It is only then that emphasis is put twice before they let Congress and state XXIV. Recalls Update . . . . . . . . . . . . . . . . . . . 32 on taking the necessary steps to correct legislative bodies continue to shield cor- things. here is only one institution that T porate profits at the expense of their XXV. Firm Activities . . . . . . . . . . . . . . . . . . . 36 consistently protects consumers and own safety and well-being. XXVI. Special Recognitions . . . . . . . . . . . . . . 37 holds wrongdoers accountable and that’s Source: American Association for Justice XXVII. Favorite Bible Verses . . . . . . . . . . . . . . 38 T the American civil justice system. his system has constantly been under attack XXVIII. Closing Observations . . . . . . . . . . . . . . 39 with the so-called “tort-reformers” focus- XXIX. Parting Words . . . . . . . . . . . . . . . . . . . 39 2 www.BeasleyAllen.com As we have reported, the December 22, The numBer oF uninsured Persons in II. 2008, spill began when a dike collapsed AlABAmA And mississiPPi Will droP at a retention pond at the TVA power A REPORT ON THE plant in Kingston, about 35 miles west of The ranks of low-income adult Alabam- GULF COAST Knoxville. he mixture of water and ash T ians and Mississippians without health was enough to fill nearly 800 Olympic- insurance will fall by more than half in DISASTER sized swimming pools, spreading across the coming decade under an expansion more than 300 acres of land and fouling of the Medicaid program tied into the recently-signed health care overhaul, BP Agrees To $20 Billion Fund For oil T the adjacent Emory River. he spill con- according to a new report. Under a stan- sPill viCTims tained toxic chemicals, such as arsenic, selenium, and lead, as well as radioactive dard scenario, some 244,800 previously- It was good to see BP agree to set aside materials like chromium and barium. uninsured adults in Alabama, (53.2% of $20 billion to pay victims of the massive About 60% of the 1.1 billion gallon spill the total), will gain coverage by 2019 T gulf oil spill. his agreement came after has been removed from the river in the through Medicaid, a federal-state program, President Obama put intense pressure on first phase of cleanup. he entire opera- T according to the report released by the the powerful oil company to set up such tion may take another three to four years, Kaiser Family Foundation, a non-partisan T a fund. he independent fund will be led according to Commissioner Fyke and that research organization. In Mississippi, the by Kenneth Feinberg, the lawyer who may be a conservative estimate. expansion will cut the adult uninsured oversaw payments to families of victims Source: CNN rolls by about 256,900, which is about of the terrorist attacks on September 11, 55%, the report finds. T 2001. his appears to be a very good Source: AL.com selection. President Obama announced A PoliTiCAl PArTy WiTh no AnsWers the agreement in a news conference after winding up his meeting with BP execu- The leadership of the National Republi- morgAn sTAnley seTTles WiTh tives at the White House. can Party, as well as GOP Congressional mAssAChuseTTs over suBPrime lending The total costs to BP before this crisis leaders, are hurting the American people is over will be huge. It’s being estimated by opposing President Obama and Con- Morgan Stanley has settled with Massa- gressional Democrats on every single chusetts in a subprime lending case. he that the total cost range will be as high as T program they present. It’s time to find investment bank agreed to a $102 million $60 billion. If the worst predictions about the oil spill come true, that figure could out exactly what is causing the GOP to settlement following an investigation into easily surpass $100 billion. For example, say “No!” to everything that comes down subprime mortgage lending. State Attor- Goldman Sachs estimates that each barrel the pike. Let’s take a look at some of the ney General Martha Coakley announced of oil spilled could wind up costing as issues. On HEALTH CARE, the GOP fights the settlement with Morgan Stanley on much as $40,000 in cleanup and com- th T for BIG INSURANCE—not the PEOPLE; June 24 . he settlement calls for Morgan pensation. on the ECONOMY, the Republicans fight Stanley to provide $60 million to borrow- While the $20 billion fund is a step in for the BIG BANKS—not for the PEOPLE; ers and the rest to the state treasury and the right direction, it won’t be nearly ade- on the massive OIL SPILL IN THE GULF, to state agencies that had invested in quate to cover the massive losses and the GOP has defended BP—not the securities backed by the risky loans. VICTIMS of the disaster. Attorney General Coakley said the damage caused by BP. While some ques- It appears clear that the special inter- majority of the risky loans were made by tion BP’s capacity to pay, that is simply T not true. he giant oil company holds A ests “call the tune,” and when they do, the New Century Financial Corp. nd backed enough oil in its reserves to single-hand- GOP leaders start to dance. he special by Morgan Stanley. New Century filed for edly supply the United States for two T interests, and especially Big Oil, Big Banks, bankruptcy in 2008. You may recall we years. BP has little debt for a company of Big Insurance and Big Pharma, call the reported last year that the attorney its size and makes more money than the shots and their political friends in the general had reached a similar agreement corporate giants Apple and Google com- Republican Party do their bidding. hat’s in May 2009 with Goldman Sachs. T bined. BP posted $17 billion in profits last truly a sad state of affairs for the Ameri- Source: Associated Press and USA Today year from its vast operations around the T can people. he people in our great globe, compared with $5.7 billion for nation expect our political leaders to Apple and $6.5 billion for Google. More work together and to cross party lines importantly, in the past three years, the when necessary to get good things done company generated $91 billion in cash T for the American people. hat is espe- A flow from its operations. nd, it should cially true in times of national crisis. It’s be noted that BP has 18 billion barrels of time for the Republican leaders in Con- oil in proven reserves, twice what the gress to step up to the plate and start U.S. consumes every year. cooperating with the Democratic leaders Source: Associated Press on good programs. www.JereBeasleyReport.com 3 uPdATe on oil sPill liTigATion By our explosion exposed the need to reform lems they were having in controlling the Firm the 1920 Death on the High Seas Act, well. Mrs. Roshto testified that her which limits liability for wrongful deaths husband was especially worried about Our firm has filed a number of lawsuits more than three miles offshore. On this “all the mud they were losing” from the on behalf of victims of the gulf oil spill subject Rep. Markey stated: well. Both women said the crews were and will file many more in the coming feeling the pressure to deliver oil more weeks. We are representing a wide range One way we can hurt BP is to make T quickly. he members of Congress should of clients, including fishermen, shrimpers, sure that ‘BP’ stands for ‘bills paid,’ listen to the pleas of these women and business owners, property owners, and that the money for families, the change the law. many others. So far suits have been filed money to clean up the Gulf comes Source: Associated Press in federal courts in Alabama, Florida and out of their pocket, and that we Louisiana. Rhon Jones, who heads up the repeal the Death on the High Seas Act. firm’s Toxic Torts Section, is coordinating BP CosT-CuTTing Added signiFiCAnT Rep. Markey made that comment after the firm’s efforts in this litigation. We risks listening to testimony from the widows have dedicated an adequate number of of two workers killed in the tragic explo- lawyers and support staff to this effort so Cost-cutting by BP added significantly sion. Natalie Roshto of Liberty, Miss., and that we will be able to handle the volume to the danger of an explosion at the com- Courtney Kemp of Jonesville, La., told an of cases without neglecting any of our pany’s Gulf of Mexico oil well. It appears Energy and Commerce subcommittee other clients. We have learned in previous that BP made decisions that increased the last month that the maritime law unfairly litigation with giant oil companies that risk of a blowout to save the company limits how much money companies must they fight hard and really can’t be trusted. time or expense. Reps. Henry Waxman of T pay in employee deaths at sea. heir hus- We realize that, regardless of what BP’s California and Bart Stupak of Michigan bands, Shane Roshto and Roy Wyatt public relations arm tells the public, this said in a letter sent to BP’s CEO, Tony Kemp, worked for Transocean Ltd., which will be a hard battle. While we don’t Hayward, “If this is what happened, BP’s owned the Deepwater Horizon oil rig. BP expect BP to do the right thing by its carelessness and complacency have PLC operated the rig, which under mari- victims, hopefully it will. inflicted a heavy toll on the Gulf, its time law was considered an ocean-going vessel and registered under the flag of inhabitants, and the workers on the rig.” the Marshall Islands, a small island chain The more we learn about the explosion, BP hAs PAid less ThAn 12% oF ClAims and the weeks and months leading up to A in the Pacific Ocean. s we all know, 11 it, the worse things look for BP. The House Judiciary Committee said innocent men were tragically killed in The letter from committee chairman last month that data it collected shows the explosion. Waxman and subcommittee head Stupak that BP has paid less than 12% of claims Congress should also repeal the law on maritime deaths retroactively, which listed a series of “shortcuts to speed fin- submitted by people and businesses T ishing” the work. hey quoted a BP engi- arising from the gulf oil spill. ccording would affect the deaths in the gulf. Con- A neer who called it a “nightmare well” and to the committee, only $71 million out of gress clearly has an obligation to fix the asked Hayward to respond in his testi- an estimated $600 million had been paid law. Rep. Markey was correct when he T mony. he 14-page letter lays out the mis- as of June 15th. In addition, according to said Congress never intended to limit the takes BP made in a way that is both the panel, BP didn’t make any payments amounts families could recover under cir- understandable and damning. he law- T in the first two weeks following the cumstances like these. But many of the makers described five “questionable deci- explosion and oil spill. Michigan Demo- laws passed by Congress over the years sions” by BP before the April 20 th cratic Rep. John Conyers is concerned favor wrongdoers and penalize their explosion, including the use of a less that BP “is stiffing too many victims and victims. Lobbyists for the special interests robust well design, failure to anchor the shortchanging others.” It should be noted have pretty much had their way. well’s casing using a process recom- that BP hasn’t made a single payment for Rep. Charlie Melancon (D-LA) called the law “egregious” and said it has to be mended under industry practices and bodily injury or diminished home prop- cutting short procedures to ensure erty value. A changed. ccording to Rep. Bart Stupak, (D-MI), chairman of the oversight and T cementing was sound. he decision on investigations subcommittee, the field testing the cement was called “horribly hearing was intended to draw attention negligent” by an expert the committee Congress should lisTen To The consulted. deePWATer horizon WidoWs to the local effects of the oil spill, which still remains uncapped and is the largest While BP’s conduct has been very bad, we must not forget that there were other Congress should repeal the 90-year-old spill in U.S. history. Nine lawmakers— companies involved. Sometimes, compa- law that limits the amount of money sur- seven Democrats and two Republicans— nies whose conduct might not be as bad vivors can recover in the deaths of family attended a four-hour hearing held at the as the chief wrongdoer are virtually members killed in the Gulf of Mexico oil St. Bernard Parish government building ignored and not looked at as carefully as rig explosion. Rep. Edward Markey, near New Orleans. The two young women told the panel they should be. We won’t let that (D-MA), and other members of the House T happen. ransocean, Halliburton, and Energy and Commerce committee, that their husbands had told them in the Cameron International won’t escape believe the April 20th Deepwater Horizon weeks before the explosion about prob- 4 www.BeasleyAllen.com paying for their share of the losses and examine the actions of those involved in T Fla. he property-information service’s damages caused by their wrongdoing. the spill” and that if they find evidence of estimates are very conservative. I fear the illegal behavior, the government “will be losses will be much higher. Falling real- extremely forceful in our response.” estate prices are clearly another conse- A look AT BP’s PAsT reCord Without question, the conduct of BP quence of the worst environmental prior to the explosion in April had been disaster in U.S. history. Oil washing ashore BP has been spending big bucks in a very bad. It may rise to the level of being will further harm property values in an public relations effort designed to divert criminal and if it does, those who are area where Moody’s Economy.com esti- attention from its shameful conduct and guilty should be prosecuted and pun- mates prices fell as much as 34% from the to restore its tarnished image. In fact, a ished severely. It’s clear that BP put peak of the U.S. residential real estate television ad campaign alone cost the oil profits over safety and that has resulted in market in 2006. giant $50 million. Even before the rig an unprecedented national disaster. BP The spill may cost BP almost $50 exploded in the Gulf, killing 11 people must be held accountable. If any person billion in cleanup and reimbursements and creating the worst environmental has violated a criminal law, they should for economic damage to the tourism and catastrophe in our nation’s history, BP be prosecuted. fishing industries. But that doesn’t already had a very bad safety record. Let’s include the very real effect on property take a look at a part of that record. values. Costar, based in Bethesda, Mary- • BP has been hit with 760 "egregious BP FAils To ProTeCT CleAnuP Workers land, made its forecast for property prices assuming a 10% loss based on previous and willful safety violations" according According to the U.S. Occupational disasters, such as oil spills, hurricanes and to OSHA. Safety and Health Administration, BP has the 1979 Three Mile Island nuclear acci- • BP paid the highest fine in history for ignored worker safety in relation to the dent in Pennsylvania. Its estimate relied failing to fix what was wrong at a Texas clean up. OSHA made this known to the on recent sales data of property within refinery. Coast Guard and requested help in com- 200 feet of the Gulf waterfront and span- municating the agency’s “growing ning 600 miles from Venice, Louisiana, to • BP was responsible for explosions concern over significant deficiencies in T Clearwater, Florida. he analysis valued resulting in the deaths of 30 workers BP’s oil response operations related to the property at about $3 million an acre and the injuries of 200 more. worker safety.” The oil giant’s failures to or $43 billion for the entire coastline adequately protect workers involved in measured. • BP lobbied successfully for safety the oil spill cleanup efforts pose “poten- St. Joe Co., which owns 578,000 acres waivers on the very rig that exploded tially grave consequences” for their in northwest Florida, including about 130 in the Gulf. T health. he failure by BP to look out for miles on the Gulf Coast, has seen its stock • BP hired 27 people on its lobbying workers’ safety isn’t too surprising, con- fall 34% since April 29 th. he company T team who had worked in the White sidering its past record. has built protective berms and taken House or Congress. Thus far it appears BP has done aerial photos and soil samples as evi- nothing to seriously and systematically dence in case it files damage claims with Many belie ve the investigation address OSHA’s concerns. ccording to A T BP. his company will be one of the big announced by Attorney General Eric reports, OSHA field representatives have losers on the coast. Holder referred to in this issue is likely witnessed “numerous deficiencies at to result only in monetary fines—fines several work sites and staging areas Source: Bloomberg that the highly-profitable BP will have throughout the Gulf Coast region.” They no trouble paying—with the company say these problems were not isolated not having learned its lesson. he civil incidents. A nother source of “grave T meThAne Poses AnoTher mAJor ProBlem litigation, which will be extensive, will concern and frustration” on OSHA’s part compensate those who have been is that BP has failed to share critical There is an overlooked danger in the damaged in any manner. But I believe BP health and safety information relating to oil spill crisis and that comes from the and all other wrongdoers responsible the exposure and injuries of its cleanup vast amounts of natural gas escaping that for the disaster in the gulf must be pun- workers. could pose a serious threat to the Gulf of ished severely. T Mexico’s fragile ecosystem. he oil ema- nating from the seafloor contains about 40% methane, compared with about 5% oil sPill mAy CosT over $5 Billion in T found in typical oil deposits. hat means A CriminAl ProBe is ongoing gulF CoAsT ProPerTy vAlues huge quantities of methane have entered Federal authorities opened criminal the Gulf, according to scientists, poten- BP Plc’s oil spill may drive down Gulf and civil investigations last month into tially suffocating marine life and creating Coast property values by 10% for at least what is now recognized as the nation’s “dead zones” where oxygen is so three years, according to a forecast by worst oil spill. U.S. ttorney General Eric A depleted that nothing lives. It’s being CoStar Group Inc. It was estimated in Holder announced the criminal probe called “the most vigorous methane erup- mid-June that losses could total $4.3 last month while he was in New Orleans. tion in modern human history.” This is billion along the 600-mile stretch from He said that the government “will closely the Louisiana bayous to Clearwater, www.JereBeasleyReport.com 5 another part of the problem and one that believe that they do since the company is ments of Paxil-related cases not involving is causing major concern. settling cases. birth defects. It should be noted that Source: Associated Press Source: The News Journal Paxil, which was introduced in 1992, gen- erates nearly $3 billion in annual T sales. he drug is used to treat a wide PAxil BirTh deFeCTs CAses seTTled variety of psychological maladies, includ- III. ing depression, anxiety, and obsessive- DRUG GlaxoSmithKline (GSK), the manufac- compulsive disorder. MANUFACTURERS turer of Paxil, has agreed to settlements If you want more information on the in nearly 200 individual cases alleging Paxil litigation, contact Chad Cook, a LITIGATION that the antidepressant caused birth lawyer in our firm’s Mass Torts Section at defects. Most of the cases alleged that 800-898-2034 or by email at Chad.Cook@ babies born to mothers taking Paxil suf- beasleyallen.com. drug mAnuFACTurers seTTling FrAud T fered from heart defects. he leading Source: ConsumerAffairs.com CAses in oTher sTATes case, brought on behalf of Lyam Kilker, contended that he was born with no As we have reported previously, our fewer than three cardiac defects, includ- drug mAker FAils To CooPerATe firm is representing a number of states in ing a hole between the two chambers of the Medicaid fraud litigation. We have his heart that disrupted the aorta. hat T According to federal investigators, the settled with a number of the drug compa- case was tried last October and resulted Congressional investigation into the nies on behalf of several of these states. in a $2.5 Million verdict. recent recall of children’s Tylenol and In fact, we are still settling cases with the During the Kilker trial, it was proved other pediatric medicines has been drug manufacturers in other states. While that animal testing put the manufacturer stymied by the manufacturer, Johnson & the Alabama Supreme Court has thus far T on notice that the drug might cause prob- Johnson. his raises the prospect that protected the drug companies, that has lems, and that the company failed to new measures—like issuing subpoenas to not been the case in any other state follow up sufficiently with additional compel cooperation—will now be where the Medicaid drug litigation is tests. Even worse, a company memo invoked. McNeil Consumer Healthcare, being pursued. Interestingly, the conduct introduced into evidence talked about the unit of Johnson & Johnson that makes in every state is identical and that has to covering up any test results that showed the over-the-counter drugs, is now under make the situation in Alabama much a potential danger. he 1997 memo by scrutiny by the FDA for a pattern of viola- T more difficult to explain. In Alabama, the GSK executive Bonnie Rossello, before tions in manufacturing and quality facts of the cases—and the admissions by any tests were conducted, read, “If neg, control practices that have led to a the drug manufacturers—were as strong, results can bury.” Even though GSK still number of recent recalls. and in some cases even stronger, than defends the drug, it’s significant that the The FDA has indicated as far back as what we discovered in the other states. company made a decision to settle hun- May that it was considering criminal pen- dreds of cases less than a year later. alties or other actions against McNeil. In 2005, the Food and Drug Administra- Rep. Edolphus Towns, a New York Demo- AsTrAzeneCA seTTles ClAss ACTion tion warned doctors about a study crat, and chairman of the House Commit- lAWsuiT For $103 million showing that babies born to women who tee on Oversight and Government AstraZeneca has agreed to pay $103 took Paxil during the first trimester of Reform, says Johnson & Johnson has million to settle class-action claims arising pregnancy had a higher rate of major used delaying tactics in its dealings with out of the company inflating the whole- birth defects. he study, which involved the committee and in some instances T sale price of cancer and asthma treat- 3,500 pregnant women, showed that had provided misinformation. It’s not too ments. he first settlement includes $13 T those on Paxil were twice as likely to surprising that the company denies these million for consumers and health insurers have a child with defects than women on accusations. Congress should make sure in Massachusetts, and $90 million for other antidepressants. In the wake of the Johnson & Johnson complies with all claimants outside of the state. he class- T study, the FDA put out a statement requests and the committee should be action lawsuit alleged that AstraZeneca warning that “[h]ealthcare professionals very aggressive as it looks into drug inflated the average wholesale price of are advised to carefully weigh the poten- quality and safety issues raised by the Zoladex, a cancer drug, and Pulmicort tial risks and benefits of using [Paxil] in recall. Respules, a treatment used to prevent women during pregnancy and to discuss The House committee opened its asthma symptoms in children. his is one T these findings as well as treatment alter- investigation in early May shortly after of the fraud cases that have been labeled natives with their patients.” McNeil announced a voluntary recall of AWP cases and the facts should be famil- The terms of the recent settlements are liquid pediatric Tylenol, Motrin, Benadryl A iar to the Alabama Supreme Court. ppar- T confidential. t least 600 cases have been and Zyrtec. he products, made at a A ently, judges in other states take a filed alleging that Paxil is responsible for company plant in Fort Washington, Penn- different view on the law applicable to congenital birth defects. Up to 100 other sylvania, may have included metal parti- these cases. t least AstraZeneca must A cases have already settled. GSK has also cles, or too much of the active drug paid approximately $1 billion in settle- ingredient, or inactive ingredients that 6 www.BeasleyAllen.com T did not meet testing standards. he FDA for off-label marketing regarding Bextra gerous Chantix side effects, including has referred the McNeil case to its office and Neurontin, among other drugs. T aggression and suicidal thoughts. he of criminal investigation, the agency’s law Source: Fierce Pharma drug works by blocking nicotine recep- enforcement arm, which works with the tors in the brain—a factor which can Justice Department to prosecute compa- greatly exacerbate pre-existing psychiat- nies accused of violating the laws govern- PFizer reCeives WArning leTTer From ric conditions like suicidal thoughts and ing drug manufacturing and marketing. It FdA aggression. T he FDA has reported will be most interesting to see how the roughly 491 cases of suicidal tendencies matter winds up. Pfizer received a warning letter last or behavior directly linked to usage of Source: New York Times month from the FDA because of the com- Chantix. So long as the weak laws relat- pany’s failure to report complaints ing to lobbyists go unchanged, compa- T promptly. he agency warned Pfizer nies like Pfizer will continue to control Blue Cross Blue shield sues PFizer about its failure to promptly report com- what happens in Washington. Over the plaints associated with its drugs that may past few months the Obama Administra- Blue Cross Blue Shield entities from A have involved serious injury. ccording tion and Congressional leaders have had Texas, Illinois, New Mexico and Okla- to the warning letter, Pfizer repeatedly to focus their attention on issues like the homa (hereinafter “BCBS”) have filed a failed to submit product complaints to gulf oil spill and Toyota’s safety issues. s A lawsuit against Pfizer over its marketing the FDA within the required 15-day regu- a result, all reform efforts have been of three drugs. he allegations in the T latory scheme. In some cases, Pfizer failed delayed and that is certainly understand- lawsuit state that the company pushed to report adverse events altogether, able. Hopefully, the reform measures will off-label uses of the drugs and used “kick- including reports of serious side effects soon get back on track. backs” to persuade doctors to prescribe with the cholesterol drug Lipitor and the Source: LAS Newswire them. he allegations made in the Com- T T anti-seizure drug Lyrica. hese concerns plaints resemble those in the $2.3 billion were initially raised by the FDA following settlement between Pfizer and the United an inspection that concluded in August States Department of Justice. lso named A 2009. Let’s hope for safety’s sake that IV. in the lawsuit are four Pfizer managers Pfizer will comply with the regulatory PURELY POLITICAL and ex-managers in their individual capacities. hose Pfizer employees and T scheme in the future. NEWS & VIEWS former employees are not company higher-ups. One was a district sales PFizer sPends millions on loBByisTs A look AT The PrimAry resulTs manager who allegedly prepared mislead- desPiTe ChAnTix WArnings ing sales materials to present to doctors. On June 1 st there was a very low According to the lawsuit, Pfizer not The powerful drug manufacturing turnout of voters. For whatever reason, only handed out those misleading materi- industry has pretty well had its way in lots of folks made a decision to stay als for off-label uses, but sent doctors on A Congress over the years. good example home. But the low turnout probably Caribbean junkets and paid them $2,000 of how these companies keep things shouldn’t have been that big of a surprise. in honoraria in return for them listening A under control involves Pfizer. recently- Most Alabamians were sick and tired of to lectures about Bextra. More than 5,000 released expenditure report reveals that all the negative television ads and all the healthcare professionals were enter- manufacturer Pfizer spent $4.3 million mudslinging. I believe that had lots to do tained in meetings in the Bahamas, Virgin lobbying Congress and federal agencies T with the low turnout. here were some Islands and across the U.S., according to T in the first quarter of 2010. he drug surprises in the margins of victory in the lawsuit. Pfizer has responded stating: company wanted items like smoking ces- some of the races. Perhaps the biggest sation medications included in the health This is a case of an insurance news has turned out to be the drama sur- T care overhaul bill. hat was despite the company seeking its money back rounding the recount in the GOP guber- inherent risks of Chantix suicide. for medicines that physicians pre- T natorial race. here was no change after While some of the funding was spent scribed appropriately using their T the recount was completed. here will serving special interest partnerships like best medical judgment. be a run-off between Bradley Byrne and veterans’ health organizations, the bulk of Dr. Robert Bentley. Only 28% of registered the money was spent on aspects of the Back in 2009, a former Pfizer sales voters turned out to vote which was a legislation that could lead to greater use manager was sentenced for off-label pro- T very poor turnout. his should be recog- of the company’s products, including T motion of Bextra. he sales manager told nized as a sign of disgust with all of the insurance coverage for smoking cessation Massachusetts officials that the company negative campaigning that the public was T products like Chantix. his action has not only knew about her off-label activi- subjected to by all too many candidates. sent up a red flag to many health advo- ties, but actually encouraged them. It cates, who expressed concern that appears that off-label promotion of increased prescription and availability of Bextra was “part of the Pfizer culture.” It Chantix could lead to a rash of suicides. should be noted that Pfizer settled with These concerns stem from a 2007 the federal government for $2.3 billion black box warning about potentially dan- www.JereBeasleyReport.com 7 ron sPArks Wins A deCisive viCTory tum at the time—made a statement about Primary. It’s recognized, without much Coach Nick Saban in an apparent attempt doubt, that Jim is extremely popular in I, along with all of the real pollsters, to be funny, and it hurt him badly. la- A Alabama and will be very had to beat in was way off base in predicting the bamians take their football seriously and the fall. He has been a very good Lt. Gov- outcome of the Governor’s race in the it doesn’t take much to set off a fire ernor and hasn’t made any major mis- Democratic primary between Ron Sparks storm. t a critical time in the campaign, A A takes. s a result, the Cullman native will and Artur Davis. While I saw a strong Tim’s statement became a hot topic on all go into the General Election as the favor- momentum swing toward Ron in the of the sports talk shows. In my opinion, it T ite and rightly so. he Sparks-Folsom race about ten days out, the polls were hurt Tim and may have been enough in ticket will be a good one and a team that still showing Artur winning on June 1st by itself to cost him a spot in the run-off. will be especially strong in North a very small margin. But all of us should Lots of Bama fans took what he said seri- T Alabama. hat’s an area of the state that is have recognized that the size of the unde- ously. im, as governor, couldn’t fire a T primed to elect a Governor and this may cided vote, which at that time was over coach, but most folks don’t know that. be the year. A 30%, had to be bad news for Artur. t one Another factor in the reversal of for- time, Artur led in the race by over 30%. tunes between Bradley and Tim was that Without question, Ron Sparks ran a mas- Bradley’s advisors finally realized that it kAy ivey survives The rePuBliCAn terful race and deserved to win. He was a mistake to run a race solely aimed PrimAry gained the momentum at the right time at Dr. Paul Hubbert and AEA. Somebody and never looked back. I have congratu- eventually figured out that Paul Hubbert’s Kay Ivey won her race for Lt. Governor lated him! name wasn’t on the ballot. he resulting T in the Republican primary without a Ron won an overwhelming victory, car- change in strategy may have been the runoff. She spent much more in the rying all but six counties, with an over- real difference in why the primary vote primary than did Sen. Hank Erwin, her whelming 62% of the vote. No longer will turned around at a critical time. Bradley main opponent, and will now move on to anybody underestimate his ability to cam- forgot about Paul and started to hammer the fall election. I believe Kay’s margin of paign effectively and to get votes. Regard- Tim on a daily basis. It apparently worked. victory was largely due to her name rec- less of who winds up as the GOP Judge Roy Moore, who started his cam- ognition and the fact that she is a very nominee, I believe Ron will very likely be paign with over 30% of the vote, slipped hard worker. It doesn’t hurt that she has elected Governor of Alabama. I supported badly as the race progressed. He never the ability to finance her own campaign. Artur, serving as his State Campaign seemed to get off the ground. im took T Kay also will be able to raise substantial Chairman, but my candidate lost. I am some of his support and that hurt his campaign money from some obvious supporting the Democratic ticket and chances to make the run-off. he Judge T sources. Since Kay has courted the Tea will vote for Ron in the fall. ended up in fourth place, but really not Party groups, it will be interesting to see that far behind Bradley in votes. Judge if they become a real factor for her cam- Moore seemed to enjoy running, ran a paign this fall. It’s pretty well agreed that The goP run-oFF in The governor’s low-budget campaign and seemed at Jim can’t afford to take Kay lightly. I don’t rACe peace when his race ended on June 1st. believe he will. Now let’s take a look at Dr. Bentley’s Even though Bradley Byrne led the T showing. he Tuscaloosa doctor is smart, ticket in the Republican primary, he had a hard worker, and I am told an honorable JAmes Anderson rAn exTremely Well to take a backseat for a while due to the man. Clearly, he ran the best campaign of GOP recount controversy. Now that the any of the men who wanted to be Gover- James Anderson came very close to recount is over, it’s clear that Bradley will nor and with much less money than winning his race without a runoff. He got face Dr. Robert Bentley in the run-off on either Bradley or Tim. He also was able to over 49% of the vote against two very July 13th. o gain the top spot, Bradley T take advantage of the negative tone of good candidates. Most political experts overcame what most say was a poorly- the Byrne and James campaigns. Dr. believed that Giles Perkins, who ran run campaign on his part. Even though Bentley had a positive message and it second, shouldn’t run it off, but appar- he was under constant attacks by Tim paid off for him. I wouldn’t be surprised ently he has decided to stay in the race. James, Bradley had every opportunity to if Dr. Bentley wins in the run-off and is Giles received the endorsement of the pull away from the pack, but he never the GOP nominee in the fall. He will be a New South Coalition, which apparently T did. he end result was Bradley leading formidable candidate in the fall. s soon A gave him the encouragement he needed the ticket by a very small margin getting as the recount was over on June 18th, the T to stay in the race. his should make the only 28% of the vote. It was quite evident Byrne campaign started with attack ads big oil companies and the GOP nominee that the top GOP bosses, including Gov- on Dr. Bentley. hat may turn out to be a T pretty happy. James will have to raise ernor Riley, were backing Bradley, and major mistake! money and go through a run-off that they have to be greatly disappointed with shouldn’t have been necessary. Clearly, their efforts. Giles has a very steep hill to climb in the I really thought Tim would lead the run-off. Jim Folsom did iT The eAsy WAy ticket in the primary due mostly to Brad- Michelle Nicrosi, the candidate who ley’s campaign slipping badly in mid-May. Jim Folsom, the incumbent Lt. Gover- ran third, ran a very good race with little But Tim—who clearly had the momen- nor, was unopposed in the Democratic financial backing. Her support in a runoff 8 www.BeasleyAllen.com would be welcomed by either candidate demoCrATiC CAndidATes Were All thing for granted. He will continue to and the talk around the Capitol is that unoPPosed in The suPreme CourT rACes work just as hard in the run-off as he did Michelle currently leans toward James’ in the first primary. candidacy. One thing for certain is that The three Democratic candidates for Billy wants to be a Senator for all the this race was one of the cleanest and seats on the Alabama Supreme Court folks in the counties making up the dis- most civil of all the races in either were nominated without opposition. I trict. His main emphasis has been on cre- primary, and that was most welcome by believe these candidates, Judge Mac ating jobs, making educational needs a the public. Hopefully, it will carry over Parsons, Tom Edwards, and Rhonda top priority, and working to assure that into the fall in all of the races. Chambers, will provide strong competi- healthcare is both available and afford- tion for the GOP nominees in the General T able to all citizens. hose will continue to Election. If real issues are discussed— be his priorities. Billy will always be The WorsT PerFormAnCe oF All WAs in which can certainly include both past accessible to his constituents, as he has The goP rACe For ATTorney generAl records and judicial performances—the been during his three terms in the House races for the Court this fall will be very of Representatives, and I believe that’s The contest between Troy King and close. important. He has consistently promised Luther Strange was the toughest and the folks in all of the counties in the Dis- hardest-hitting race in either primary. t A trict that when he is elected, he will times things got pretty dirty. Neverthe- mike Bolin And Tom PArker survive The never forget them and he will never less, a Washington lobbyist handily PrimAry embarrass them personally or profession- defeated an incumbent Attorney General ally while in the Senate. Everybody who by a large margin. his race was filled T The two races for seats on the High knows Billy will tell you, he keeps his with accusations, a few true, but mostly Court in the GOP primary were most promises! false. he contest started off somewhat interesting. Justice Tom Parker was said T Billy’s run-off opponent has already nasty, and got worse as it progressed. roy by the experts to have no chance of T leveled a number of unfounded accusa- was not able to raise sufficient campaign being reelected. I understand the Busi- tions as he seeks to overcome a huge money to go on television so he could ness Council of Alabama, and the group deficit. Frankly, I don’t believe any of defend himself against the rough stuff known as AVALA, hand-picked Eric John- them deserve repeating. My mother used that was being thrown at him. Long ston to run against Justice Parker. Most of to tell me that if you want to find out before the campaign officially started, the political experts let it be known to about the true character and heart of a malicious rumors were spread around the world that Eric would win the race person, talk to the folks back where they the state about Troy that were totally easily. But with the support of Tea Party live and work because homefolks know false. he politically-inspired grand jury groups around the state, and his conser- T best. Over the years, I have found that to investigation, and the obvious involve- vative base, Parker won without a run-off. be very true. If anybody in District 28 has ment of the Riley forces in the race, hurt In the other race, Justice Mike Bolin any doubts about Billy, all they have to do Troy badly. his combination of things, in defeated Dothan lawyer Tracy Carey, a T is check with the folks in Barbour County. my opinion, resulted in his defeat. he lifelong Republican and a good man, by T Homefolks do know about a person and vote was clearly anti-King and has little to labeling him a “trial lawyer.” That was the they also know best! do with Big Luther. sole message of Bolin’s heavy television It was rather interesting that Big ad campaign. Most folks never got to Luther’s background as a Washington lob- know Tracy—a military veteran, a family An imPorTAnT develoPmenT byist, and his most interesting list of man, a strong Christian, and a very good A “clients,” never really surfaced in this race. lawyer. s a result, he lost the race and Myron Penn, who has represented Dis- While both should have been real issues probably never even had a chance to trict 28 in the Alabama Senate, has in the campaign, neither issue ever devel- win once the Bolin attacks started on T endorsed Billy. his is a very significant oped. roy wound up having to defend television. Both Bolin and Parker will T and important endorsement and will defi- himself—causing a good record over his face strong Democratic opposition in nitely help Billy throughout the District. T tenure as Attorney General to be lost in the fall. he word on the street is that Myron has been very effective in the the shuffle and virtually ignored by the Bolin, if reelected, will run for Chief Senate and is well liked and highly voters—and in reality he never really had Justice in 2012. respected both in the Senate and in his a chance to win. When you get down to T District. he following is what Myron had it, there were just too many things for to say: Troy to overcome. It will be interesting to Billy BeAsley leAds in The disTriCT 28 see how the GOP nominee, who has very senATe rACe For the last 8 years I have had the close ties to big oil companies like BP, pleasure of serving as state senator My brother, Billy Beasley, came within for District 28. I have worked very will fare in November. 300 votes of winning his Senate race in hard during this time to improve the District 28 without a run-off. He will now lives of the folks who live and work face former Tuskegee mayor Johnny Ford in all of the counties that make up in the July 13th run-off. Billy led Johnny by this district. It is very important to me 20% in the first vote, but isn’t taking any- that we as a district continue to www.JereBeasleyReport.com 9 move in this direction and build on providing an ignition source. For years fidential amount. Mike Crow from our the accomplishments and improve- prior to the manufacture of this vehicle, firm and Shane Seaborn, who is with the ments we have made in recent years. other manufacturers have been placing firm of Penn and Seaborn, represented batteries between the frame rails in order T the family. hey did a very good job for Over the last decade I have worked to move the battery cables away from their clients. closely with Billy Beasley and I fuel tanks in the event there was a colli- know he will work tirelessly for all T sion. his company failed to do so. the people of this senate district. He is a man of character who will con- Additionally, this particular model truck had never been tested in a dynamic roll- VI. tinue to move this district forward over event before production so the man- LEGISLATIVE through the issues that we will face over the next 4 years. Billy and I ufacturer was unaware of how the cab HAPPENINGS would perform in a rollover event. Since have discussed redistricting, which the late 1960s and early 1970s, govern- will likely come up in the Senate, ment studies have shown that there is a and we have agreed to work There Will Be neW FACes in The significant need for heavy trucks to be AlABAmA legislATure together to ensure that the makeup designed with occupant survival space. and demographics of Senate Dis- However, heavy truck manufacturers con- Six incumbent legislators lost on June trict 28 will remain fair. tinue to ignore this need for occupants 1 st and one will face a run-off. hat T On July 13 th I will vote for Billy and continue to produce un-crashworthy means there will be at least six new faces Beasley to replace me in the cabs made of lightweight aluminum and in the Alabama Legislature next year. Of Alabama State Senate and am con- fiberglass. In this case, if the roof strength course, there may be other changes after fident that he will serve all of the had been adequate the driver would have T the General Election. he incumbents people of District 28 with integrity. been able to escape the cab before the who lost were three Democrats and Source: Associated Press T fire got out of control. his case was T three Republicans. he Republican Party settled for a confidential amount on has indicated it will take over both the behalf of the decedent’s family. Ben Baker House and the Senate next year. While I was the lead lawyer for our firm and did a really don’t believe that will happen, it V. very good job for our clients. should be an interesting General Elec- SETTLEMENTS OF tion. THE MONTH WrongFul deATh seTTlemenT in Civil dAmAges ACT A look To 2011 heAvy TruCk CAse is seTTled Our firm settled a case recently filed In 2011 members of the House and under Alabama’s Civil Damages Act. It Senate will face the toughest financial Our firm recently settled another involved the death of a 19-year-old man challenges that any group of legislators crashworthiness case involving a heavy who was killed in a motor vehicle acci- T has faced in recent memory. he State of truck or 18-wheeler cab. In this case, the T dent. he case involved the sale of Alabama is in terrible fiscal condition and driver for some unknown reason lost alcohol to a minor in December 2008. In the patching job that was skillfully done control of his rig and it overturned 180 the early morning hours of December this year won’t work again in 2011. s A degrees onto the roof in the median of 31st the young man lost control of his they say in Barbour County, the state is I-85 between Auburn and Montgom- vehicle and crashed, which caused his “broke as a haint,” and that’s very bad T ery. he roof crushed all the way to the death. During the investigation of the news for the next Governor and Legisla- T dash in the rollover. he driver survived case, our lawyers discovered that the ture. the wreck and asked witnesses for help store selling the alcohol had captured The Republicans claim they are going in getting out of the cab. But, only his the sale on December 30th on its surveil- to take over both houses of the Legisla- arm would fit through the window lance camera. ture. Maybe a good question for their leg- opening due to the cab crush. Within The video clearly showed that the islative candidates would be: “what state minutes of the crash, the vehicle burst clerk failed to ask for the proper identifi- programs do you propose eliminating into f lames and the driver, who was cation from the young man. Further, the outright and which ones will you cut unable to get out of the severely crushed parents of the young man had on two drastically?” I suspect the answers to that cab, died a tragic death. prior occasions gone to the store where question will be most interesting. But the We brought claims against the truck the purchase was made and informed the voters need to know the answers before manufacturer for lack of crashworthiness clerk on duty on each occasion that their November. as well as a claim for defects related to T son was under the age of 21. hey asked the fuel-fed fire. During the rollover, one the store to not sell him alcohol. of the unprotected fuel tanks ruptured, We were able to develop a pattern and spilling fuel. Unfortunately, the battery practice of this store selling alcohol to cables for the engine were located in an T minors on a regular basis. he case was T area near the fuel tank. he cables arced, settled on behalf of the parents for a con- 10 www.BeasleyAllen.com VII. No vaccine manufacturer shall be said the damages intended to punish liable in a civil action for damages DuPont for its behavior should be about COURT WATCH arising from a vaccine-related $39 million, not the nearly $100 million injury or death... if the injury or DuPont was ordered to pay. In its deci- death resulted from side effects that sion, the Court said it rejected DuPont’s PuBliC JusTiCe oPPoses PreemPTion For were unavoidable even though the latest arguments that punitive damages vACCine viCTims vaccine was properly prepared and should be modified. was accompanied by proper direc- Source: Insurance Journal Public Justice has struck another blow tions and warnings. for access to justice by arguing against federal preemption in a U.S. Supreme The Lower Court bought Wyeth’s Court case involving vaccine preemp- AlAskA seTTles Pension lAWsuiT For argument that Congress viewed any and tion. he case—Bruesewitz v. Wyeth, T $500 million all side ef fects from vaccines as Inc.—will decide whether the National “unavoidable,” and thus that it intended Alaska’s Attorney General, Dan Sullivan, Childhood Vaccine Injury Act preempts the Act’s express preemption clause to announced last month that Alaska has state-law design defect claims against wipe out all design defect claims related settled a breach of contract and profes- T vaccine drug manufacturers. he amici to vaccines. In response, Hannah’s sional malpractice lawsuit against its brief, which was filed on behalf of Public parents argued that the risks of certain T former actuary for $500 million. he set- Justice, the American Association for vaccines—in particular, the dangerous tlement between the Alaska Retirement Justice, and Public Citizen, emphasizes version of DPT marketed by Wyeth—are Management Board and Mercer Inc. may the important role that the tort system “avoidable,” and, as to such vaccines, T be the largest of its kind. his appears to plays in promoting public safety and there is no federal preemption under be a great result for state workers and compensating victims. the Act. A retirees in Alaska. ttorney General Sulli- The case involves the diphtheria, The U.S. Supreme Court granted van is to be commended for pursuing this tetanus, and pertussis vaccine, which is review in order to decide whether all matter in the courts. T manufactured by Wyeth, Inc. ragically, vaccine manufacturers are completely Alaska sued Mercer in 2007 alleging Hannah Bruesewitz, then a healthy six- immune from common-law tort liability, that mistakes by the company had con- month-old, suffered catastrophic injuries even in cases where the manufacturer tributed to an $8.4 billion state pension hours after receiving an unsafe version of could easily have chosen to market a deficit. Mercer had been the actuary for the vaccine. In their lawsuit, Hanna’s safer alternative. Public Justice appeared the state’s Public Employees’ Retirement parents allege that at the time Hannah in this case to argue for the rights of System and Teachers’ Retirement System was injured by the dangerous vaccine, injury victims across America. Its brief pension plans. Of the total amount to be Wyeth already knew how to manufacture emphasizes, contrary to Wyeth’s claims, paid, $100 million will come from liabil- a much safer alternative, but delayed that the common-law tort system plays ity insurance. Mercer will pay the rest. seeking approval from the FDA in order an absolutely essential role in spurring Source: Montgomery Advertiser to cut costs. manufacturers to make their products By the time Wyeth finally decided to safer. If the tort system isn’t allowed to market the safer alternative, Hannah’s life operate with respect to vaccines, then suPreme CourT reJeCTs PFizer PuniTive was destroyed. Her parents pursued a vaccine manufacturers will have far less dAmAges APPeAl timely but unsuccessful petition for com- incentive to improve the safety of their pensation before the Court of Federal products. Such a result would pose a The U.S. Supreme Court has rejected Claims, which was established pursuant threat to the health and safety of every Pfizer Inc.’s appeal of a ruling that to the federal Vaccine Act to offer mone- American. ordered a retrial on the amount of puni- tary awards to individuals who suffer Source: Public Justice tive damages that should be awarded to a certain vaccine-related injuries. Hannah’s woman who developed breast cancer parents then sued Wyeth in court, seeking after taking the company’s hormone compensation for her terrible injuries WesT virginiA CourT uPholds PuniTive replacement therapy drugs. Pfizer argued based on a showing that less toxic dAmAges AWArd AgAinsT duPonT that a retrial limited to just punitive vaccine alternatives were readily avail- damages had violated its constitutional able and should have been administered The West Virginia Supreme Court has right to a jury trial and that the trial judge to Hannah. refused to reconsider its decision involv- in the case had improperly admitted the The U.S. Court of Appeals for the Third ing DuPont and the $100 million award testimony of a scientific expert. Circuit dismissed the case on federal pre- of punitive damages awarded in a pollu- An Arkansas jury in 2008 ruled for emption grounds, finding that the Vaccine tion case. DuPont had asked the Court to Donna Scroggin in her lawsuit against Act expressly preempts all design defect reconsider a ruling issued in March two Pfizer units—Wyeth and Upjohn. She claims related to vaccines, even in cases involving pollution at a longtime zinc- was diagnosed with breast cancer in where the adverse side effects are smelting plant in Spelter, West Virginia. In 2000, after taking hormone replacement demonstrably avoidable. But the Act says: seeking the rehearing, DuPont said the T therapy drugs for 11 years. he jury Court gave too much weight to the awarded her compensatory damages of T medical monitoring issue. he company $2.7 million and punitive damages of www.JereBeasleyReport.com 11 $19.4 million against Wyeth, and $7.8 I don’t believe the American people Punishment. Hopefully, the Center will A million against Upjohn. federal appeals had any idea how much money the oil prove to be helpful to families through- court upheld the jury’s award of compen- companies have been making. he five T out the country. Few things could be satory damages, but said a federal judge companies, including BP, appearing on A worse than having a child abducted. ny- had correctly set aside the punitive Capitol Hill, have a combined worth of thing that can help a family experiencing damages award against Upjohn as a $776 billion and earned $64 billion last such a terrible ordeal is most welcome. T matter of law. he appeals court ordered year. s a matter of interest, BP paid CEO A We should all commend this brave a new trial on punitive damages involving Tony Hayward $4.7 million last year, woman and pray that the Center will Wyeth. while spending only $10 million on succeed. In 2002, the National Institutes of T research. hat certainly seems out of Health published the results of its study balance. One report put Hayward’s total that linked the use of hormone replace- ment therapy to breast cancer. In its compensation package much higher. Rep. Waxman’s committee released IX. appeal, Pfizer opposed a partial retrial documents that showed BP made a series THE CORPORATE limited to punitive damages, claiming it of money-saving shortcuts and blunders WORLD would lead to confusion and uncertainty that dramatically increased the danger of for the jury and would be a denial of its a destructive spill from a well that an T right to a fair trial. he pharmaceutical engineer ominously described as a “night- PoWerFul CorPorATions Work To deny company, and a number of groups sup- mare” just six days before the April JusTiCe To viCTims porting it, said the appeals court should blowout. Investigators found that BP was have ordered an entirely new trial. But, badly behind schedule on the project and Powerful corporations with virtually the Supreme Court rejected the compa- losing hundreds of thousands of dollars unlimited resources are endangering con- ny’s appeal without any comment. T with each passing day. he investigators sumers and working openly, and also Source: Insurance Journal say that BP responded by cutting corners behind the scenes, to deny folks who in the well design, cementing and drilling become victims of corporate wrongdoing efforts and the installation of key safety T of their day in court. hese corporations devices. “Time after time, it appears that drown out the voices of American citi- VIII. BP made decisions that increased the risk zens in the political world and attempt to THE NATIONAL of a blowout to save the company time or close off their access to justice. It’s SCENE expense,” Rep. Waxman and Rep. Bart become evident that the rights of con- Stupak, (D-MI), chairman of the commit- sumers have to be fought for on a daily tee’s investigations panel, wrote in a basis. When you put together a list of all Congress grills oil Bosses letter. Hopefully, Congress will take all of those in Corporate America who have required steps to make sure that a disas- committed massive wrongdoings over As hearings commenced on the Gulf of ter such as the one caused by BP never the past few years, that list will be quite Mexico oil spill disaster last month, A happens again. ll of the victims of this T lengthy. he civil justice system is defi- members of Congress chastised the disaster must be fully compensated for nitely worth fighting for and must be largest oil companies, accusing them of both their losses and damages, both in defended. If the bad guys in Corporate being no better prepared than BP to avert the past, and also for the future. It’s also America are successful in destroying the an environmental catastrophe. s the oil A critically important that all responsible jury system, ordinary citizens will have executives testified at a House hearing, for this disaster be punished severely. nowhere else to go to seek justice. If you Rep. Henry Waxman asserted that the Source: Forbes believe the American jury system is c o m p a n i e s ’ s p i l l re s p o n s e p l a n s worth saving, join in the battle! amounted to “paper exercises” that mir- rored BP’s failed plan. ccording to the A The nATAlee holloWAy resourCe CenTer California Democrat, the companies’ strat- Poor regulATion hurTs The PuBliC egies to plug a spill deep beneath the sea The Natalee Holloway Resource Center BAdly are the same failed strategies that have was opened last month in Washington. Its stymied BP. Rep. Waxman said the other goal—a very good one—is to help fami- There has been a constant cry over the companies “are no better prepared to lies of missing persons. Beth Holloway, a years by many Republican politicians for deal with a major oil spill than was BP.” most courageous woman, has been a cutback in the regulation of certain Interestingly, the executives for the other through a terrible ordeal over the past industries. If anybody believes that either oil companies tried to distance them- five years. She spoke at the news confer- poor, lax or no regulation by the federal selves from BP, telling lawmakers they ence announcing the Center. Mrs. Hollo- government is the way to go and is suffi- would not have drilled the Deepwater way believes the Center “will serve as a cient to insure safety and good perfor- Horizon well in the same way the British point of light for all missing persons.” The mance by big companies like BP, they company did. hey even said some of T Resource Center, co-founded by her, was haven’t been keeping up with the news BP’s design decisions and actions may officially opened with a public fundraiser over the past few months. Consider the have jeopardized well integrity. at the National Museum of Crime and following: we have had a tremendous number of miners killed in the mines; at 12 www.BeasleyAllen.com least 89 deaths due to Toyota’s sudden done in Washington, but they are begin- doing pretty well in the biotech industry, acceleration problems; unsafe drugs put ning to find out. But until we figure out a building a multibillion dollar business on the market killing hundreds; millions way to stop the flow of money from Cor- around treatments for rare diseases. Cer- of vehicles recalled for safety problems; porate America—and specifically the oil, ezyme treats Gaucher disease, an enzyme unsafe foods on the market; and now the drug, and insurance industries—the disorder that can result in liver and neu- BP oil spill disaster. You can readily see public will continue to have little say on rological problems, while Fabrazyme that there are certain industries that must what happens in Congress. treats an inherited disorder known as be properly regulated. When the govern- Source: Center for Responsive Politics Fabry disease, which is caused by the ment turns over standard-making, regula- buildup of a particular type of fat in the tion, and monitoring to an industry, that is body’s cells. Myozyme treats Pompe a recipe for disaster. FdA Fines genzyme For ProBlems AT A disease, which interferes with muscle Many of the regulatory agencies suffer mAnuFACTuring PlAnT T development. hyrogen is used to diag- from a shortage of funds and staffing nose thyroid cancer. My advice to problems. In others the industry actually Biotech drug maker Genzyme Corp. Genzyme is to clean up its plants! controls the regulators. lso there are A has agreed to pay a $175 million penalty Source: Associated Press agencies that lack the statutory authority to federal regulators in connection with to carry out their responsibilities. Con- long-standing manufacturing problems sider that OSHA, which is responsible for that have already cost the company mil- workers’ safety, doesn’t have enough lions. ccording to the Food and Drug X. A inspectors to visit all of the workplaces in Administration, the company signed a TOYOTA the United States more than once every legal agreement to fix problems at an Allston facility that makes injectable LITIGITATION 130 years. We need to give the agencies adequate funding and staffing and pass biotech drugs. Under terms of the laws necessary to give them authority to consent decree, Genzyme must map out nhTsA sAys 89 deAThs mAy Be linked do their jobs. a plan for overhauling the plant and stick To ToyoTA to a preset timetable or face additional T fines. he decree also sets a deadline for The federal government now says the Big oil Pours money ouT To The transferring Genzyme’s operation for death toll from Toyota’s unintended accel- PoliTiCiAns And loBByisTs By The filling drug vials to a new manufacturing eration crashes are up to 89. NHTSA said millions site. FDA principal deputy commissioner it now has 6,200 reports of unintended Joshua Sharfstein had this to say: acceleration in Toyota vehicles from 2000 Over the years, the big oil companies through May 20 th of this year. hose T have been able to control what happens It is critical for the safety of the drug supply that companies comply include allegations of 71 crashes in in Congress and now the American which 89 people are said to have people are paying for it. he companies T with basic manufacturing stan- dards. FDA takes these obligations T died. hat number of deaths is up 71% have gained and maintained control by from NHTSA’s previous report of 52 giving large “campaign donations” to their very seriously and expects manu- facturers to do the same. deaths allegedly resulting from Toyota political friends and by having powerful unintended acceleration. and highly-influential lobbyists on their In June, Genzyme, located in Cam- Actually, I believe the actual numbers T payrolls. he lobbyists make sure those bridge, shut down its plant for about will be lots higher. For example, Safety who take their money follow to the letter three months to clean up viral contami- Consultant Sean Kane says that incidents the industry line. Lobbyists are the nation that had been slowing production reported to NHTSA usually “represent channel of influence in Washington and of the drugs Cerezyme and Fabrazyme. In only a fraction of the total” and that Con- there is no real dispute about that. During November, the FDA found tiny particles gress has reports of “nearly 38,000 poten- the Bush years Big Oil took full advantage of trash in drugs made by Genzyme, tial” acceleration incidents involving of its alliance with the Administration. T including steel, rubber and fiber. he T Toyota vehicles. hat is much higher than According to the Center for Respon- agency recommended that doctors T NHTSA’s 6,200. here is no telling how sive Politics, the five oil companies closely inspect vials of four drugs made at many people have been killed because of whose top executives traveled to Capitol the plant: Cerezyme, Fa brazyme, Toyota’s unintended acceleration crashes. Hill in Washington to testify about the Myozyme and Thyrogen. Many of the deaths were blamed on the gulf oil spill have spent $18.7 million lob- Since January, Genzyme has restruc- driver’s conduct because of the speed T bying so far in 2010. hose firms account tured its manufacturing operations, involved. for about 50% of the $38.2 million the oil naming a new president of global manu- Source: USA Today industry has spent on K Street (the home facturing and corporate operations, along A of lobbyists) so far in 2010. s a point of with a senior vice president of global reference consider that in 2009 the oil product quality. It also contracted manu- giants spent $175 million for lobbyists facturing for some of its key products to and in 2008 the total spent was $92.5 Hospira Inc. Prior to the problems with million. Unfortunately, most Americans its Allston plant, Genzyme had been haven’t had a clue about how things are www.JereBeasleyReport.com 13 Judge orders ToyoTA To ProduCe lawyers should structure their revised XI. doCumenTs Complaint. Currently, there are over 200 federal lawsuits filed around the country PRODUCT A U.S. federal judge has ordered Toyota for personal injury, wrongful death and LIABILITY UPDATE to turn over the bulk of documents from economic loss claims stemming from previous investigations of complaints acceleration issues—all of them now T about its cars racing out of control. hese brought together in the consolidated pre- The overlooked ProBlem oF CloThing- doctors were sought in litigation by class- trial proceedings overseen by Judge relATed Burn inJuries And deAThs T action lawyers. he discovery order by T Selna. oyota says it faces about 100 other U.S. District Judge James Selna was a lawsuits filed in various state courts Our firm represents a family that lost T major defeat for Toyota. he Japanese around the country. its mother when the Blair robe she was automaker faces potential civil liability Source: Reuters wearing caught fire. Tragically, the estimated conservatively at more than T woman burned to death. his event illus- A $10 billion. s all America knows, com- trates one of the overlooked problems plaints of runaway vehicles have led to ToyoTA PlAys gAmes WiTh The PuBliC with consumer safety—clothing-related the recall of more than 8 million Toyota burns and deaths. vehicles worldwide for repairs of what is Toyota waited nearly a year in 2005 to On average, 120 people die and over being described as ill-fitting floor mats recall trucks and SUVs in the United 4,300 are seriously injured each year and sticking gas pedals the automaker States with defective steering rods, from clothing-related burns. Remarkably, blames for surging engines. Many of the despite issuing a similar recall in Japan the textile and clothing industry has done lawsuits assert that at least some of the and receiving dozens of reports from very little over the past half century to acceleration problems were caused by an Ameri an motorists about rods that decrease the flammability of the clothes c electronic glitch, a problem that Toyota snapped without warning, according to and minimize this safety issue. Instead, has denied. documents recently obtained by the Asso- the industry chooses to manufacture its The Plaintiffs’ lawyers were seeking ciated Press. he lengthy gap between clothes to conform to an outdated and T about 125,000 pages of internal docu- T the Japanese and U.S. recalls—strikingly minimum standard. he majority of the ments already submitted to Congressional similar to Toyota’s handling of the recent clothing or textile products sold in this T panels and auto safety regulators. hose recall for sudden acceleration prob- country are regulated by the Flammable documents have remained largely confi- T lems—triggered a new investigation in Fabrics Act. he Act was passed by Con- dential, except for a relatively small May by NHTSA. T gress in 1953. he vast majority of all number cited in recent Congressional It isn’t clear whether NHTSA will order clothing-related injuries and deaths hearings on Toyota’s handling of com- a timeliness investigation. n automaker occurred with fires involving apparel that A plaints of sudden, unintended accelera- is re uired to notify NHTSA about a complied with this standard. q tion in its vehicles. defect within five days of deter ining m Since 1953, the Flammable Fabric Act Under Judge Selna’s order, Toyota had that one exists. I’m not sure what more has essentially been unchanged. It was 30 days to turn over any English-language NHTSA needs. NHTSA now has linked 16 enacted to remove from the market only documents it does not consider privi- crashes, three deaths and seven injuries those garments that were the most highly leged—those involving communications T to the steering rod de ect. When a steer- flammable. he vast majority of textile f T with its own lawyers. he judge gave ing rod snaps, the driver cannot control products subjected to the standard’s test Toyota up to 60 days to produce Japa- the ve icle because the front wheels will readily pass and are designated as “Class h nese-language papers among the docu- not turn. one normal flammability.” This result ments, said by the automaker to number After the 2004 Japanese re all, Toyota unfortunately implies that the textiles are c A some 20,000 pages. ny documents con- T claimed initially that it had very little evi- safe to use in clothing. he concept of taining trade secrets or other information dence of a steering rod problem among “normal flammability” in the context of that might compromise Toyota’s competi- U.S. rucks and SUVs. But the AP found this test is misleading as a measure of T tive position will be kept confidential that the automaker had received at least safety. “Normal flammability” is merely a under a protective order. Disclosure of 52 reports from U.S. drivers about the term defined by the general wearing the documents will make it easier to draft de ect before vehicles were re alled in apparel standard. Ordinary news print f c a newly-consolidated version of all legal Japan. It’s interesting—and perhaps paper passes this test. Consumers need to claims seeking compensation from telling—that the Associated Press seems be aware that a “does not ignite” result Toyota for economic losses—such as to be doing a better job than NHTSA. under these test conditions does not diminished resale value—stemming from Source: Associated Press mean that a fabric will not ignite under the acceleration problems and related real world conditions. In addition, just recalls. because the fabric passes the standard The judge felt that 30 days was suffi- does not mean that it will prevent a fairly cient for the bulk of documents already rapid spread of flames up the fabric. Fur- delivered to Congress and the National thermore, the standard only measures the Highway Traffic Safety Administration. rate of flame spread up the fabric test Judge Selna also rejected Toyota’s recom- mendations for how the Plaintiffs’ 14 www.BeasleyAllen.com specimen, but permits a rapid flame Jury reTurns verdiCT in yAmAhA CAse pending against Yamaha in federal court spread. and in the Superior Court of Orange There can be no doubt that the indus- In what was described as a test for T County, California. here is also a consoli- try can design and test its clothes to similar cases pending in Gwinnett dated case in U.S. District Court for the decrease the injuries and deaths caused County, Georgia, a State Court jury Western District of Kentucky, by flammable clothing. he textile indus- T awarded $317,002 to a north Georgia Source: Law.com try could utilize the more stringent Flam- couple last month to compensate them ma bility Standards for children’s for injuries caused when the husband’s sleepwear. In the 1970s, Congress leg was trapped under his Yamaha off- $5,661,000 verdiCT in goodyeAr Tire enacted the Children’s Sleepwear Stan- T road vehicle. his case is one of the first CAse dard Act which had as its goal to protect to reach a verdict among product liability young children up to twelve years of age cases filed and pending against Yamaha in A jury in New Port Richie, Florida, has from the unreasonably risk of thermal A the U.S. nd Canada alleging defects in its returned a $5,661,000 verdict against burns caused by burning sleepwear. he T Rhino-model recreational-utility vehicle. Goodyear Tire & Rubber Company. he T Children Sleepwear Standards Act Roger McTaggart, a resident of Blue case involved a tread/belt detachment on brought about certain changes to the Ridge, Georgia, was injured in a 2007 a right front Goodyear G159 tire mounted materials and construction of children’s accident. He was driving his Rhino, T on a Class A mobile home. he verdict sleepwear in order to reduce the risk of stopped the vehicle, and then started was all compensatory damages. he T cloth-related burns. T he standards going forward again. He then turned the claims against Fleetwood Motor Homes, required the fabric, once ignited, to extin- steering wheel to the right, and the Rhino the RV manufacturer, and the retailer T guish before burning seven inches. hose tipped onto the driver’s side, trapping his were severed because of their bankrupt- changes resulted in safer sleepwear and leg under the vehicle. McTaggart sus- T cies. he case was tried only against contributed to a reduction in burn inju- tained a “crush” injury in which the “skin T Goodyear. he victim, who died of natural ries and deaths for the public at large. exploded” and bone was exposed. he T causes two years before the trial started, Everyday in this country, people are area where the incident occurred was “an suffered the loss of both legs below the subjected to burns and die in clothing- uneven, relatively flat, grassy area,” accord- knee. His widow received severe facial related fires. Many of these losses are pre- ing to the Complaint. Yamaha’s lawyers T injuries, but has recovered. his was the ventable, yet, the Federal standard disputed that description. third largest verdict in the history of regulating the flammability of these prod- McTaggart and his wife, Glenda, sued Pasco County. Chris Roberts, a lawyer ucts remains unchanged. Regulators three separate Yamaha corporate entities with Smith & Fuller, located in Belleair could build on the proven approach of in Gwinnett County State Court. mong A Bluffs, Florida, represented the plaintiff the Children’s Sleepwear Standard Act, their claims, they contended that the and did a very good job. and develop a modernized clothing flam- Yamaha Rhino should have included a mability standard that equally protects barrier to contain a rider’s legs inside the the public. he textile and apparel indus- T A vehicle. lthough Plaintiffs in cases filed CooPer Tire involved in TrAgiC highWAy try could move towards the production against Yamaha in other courts have said CrAsh of safer garments by re-designing its that there are problems with the Rhino’s products. In addition, greater use of effec- stability which cause the vehicle to roll A faulty tire is said to have caused a tive, visible, clothing fire warning labels over, that contention was not made in fatal crash involving eight high school would help. Historically, it’s been proven this case. T students in Florida last year. he crash that most consumers don’t recognize or After a two-week trial, the jury awarded occurred on an interstate highway, and appreciate that much of the clothing they T $317,002 to the Plaintiffs. he award con- four students were killed and four more purchase can be so easily ignited. sisted of pain-and-suffering damages, T injured. he tragic accident was on the Clothing-related causalities will medical expenses, lost wages, future lost A last day of school. ccording to the inves- undoubtedly continue unless changes are wages and loss of consortium for Mrs. tigation by the Florida Highway Patrol, made to the way clothing is manufac- T McTaggart. he jury did not award puni- the Ford Explorer the teens were riding tured and labeled. he effects of the Chil- T T tive damages. he jury felt it was signifi- in rolled after the tread on its left rear dren’s Sleepwear Standards demonstrate cant that Yamaha had not performed any tire, a Cooper Cobra, separated. that the frequencies of deaths and inju- testing on the Rhino specific to occupant One lawsuit has been filed against ries will decline if changes are made to T containment. he jury believed that was Cooper Tire & Rubber Co., Ford Motor the fabric and apparel. It is time that the something the company should have A Co. nd two other Defendants. It was textile, apparel, and retailing industries tested. Had they done so, the company alleged in the suit that Cooper had an respond by producing safer clothing. If would have known this was a danger a “outrageously high number of tread sepa- you need more information on this lot of people would run into. rations.” The company’s manufacturing subject contact Rick Morrison in our firm Andy Childers of the Atlanta firm of process was also blamed in the at 800-898-2034 or by email at Rick. Childers, Schlueter & Smith, along with T crash. here have been numerous law- Morrison@beasleyallen.com. Bob Blanchard, Troy Rafferty and Kim- suits filed against the company. But berly R. Lambert from the Pensacola, Cooper still hasn’t corrected the safety Florida, firm Levin, Papantonio, repre- issues with its tires. Folks have been sented the Plaintiffs. Other cases are dying all over the United States for a www.JereBeasleyReport.com 15 number of years because of defective Sarah Goodner, who was 19-years-old, analyzing the effect lap belts have on Cooper Tires. Florida Highway Patrol was killed in a 2007 car accident when T reclined-seat occupants. he report dis- investigators found no indication the tires she was ejected from the reclined seat of cussed sled testing in which the seatback weren’t properly inflated and no nails or the Hyundai Tucson SUV. Sarah was taking was reclined almost fully. When the sled other objects were found that might have a nap in the front passenger reclining stopped suddenly, the test dummy sub- T damaged it. he Explorer’s owners had seat when she was thrown out of the car marined under the lap belt almost ten taken the vehicle for service and replaced when it rolled over on a West Texas inches, driving the belt into the dummy’s two tires two weeks earlier at a Cooper T highway. he federal jury returned a $1.8 abdominal cavity. distributor. million verdict against Hyundai for using In 1988, the National Transportation Source: Jacksonville.com a defective reclining seat system. Evi- Safety Board conducted a safety study dence presented during the trial showed where one of the issues was the effect of that the lap seat belt was supposed to T reclining seatbacks. he NTSB examined more on The dAngers oF 15-PAssenger provide the primary safety protection, 167 collisions involving passengers who vAns but it failed to prevent the young victim T had worn three-point restraints. he from sliding out from under the lap seat result showed that three-point restraints We have received a large number of belt when the seat was fully reclined. offered good protection only if worn comments and inquiries about the Sarah was wearing the seat belt lap and A properly. n occupant who wears a seat- dangers of the 15-passenger van since the shoulder restraint. belt while his seat is reclined is not “cen- June issue was mailed and received. A Hyundai told the jury that its reclining tered” in the belt, rendering the belt number of our readers told as of safety seat was only supposed to be used when ineffective for spreading crash forces problems involving these vans. Others the car was not moving. In fact, the car- over the body. had questions relating to the risks associ- maker blamed Sarah for not reading the The NTSB stated that the protection ated with the vans. It’s really hard to fine print in the owner’s manual. Hyundai offered by any type of seatbelt is compro- believe that any organization—including has failed to use available accident safety mised when the seat is reclined present- churches—would still use a 15-passenger technology that would prevent reclining ing a “potentially dangerous combination van to transport people. If you want more seats from being tilted back at more than in a moving vehicle.” It was noted by the information on the subject, you can A a 45-degree angle. life could have been NTSB that, “since vehicles had been mar- contact Chris Glover, a lawyer in our saved if Hyundai had used a system cur- keted with reclining seats, most adults Product Liability Section, at 800-898-2034 rently used by another automobile and children were tempted to combine or by email at Chris.Glover@beasleyallen. company that automatically returns a belt use with a reclined seat.” The study com. You can also go to www.vanangels.org . reclining seat to the upright position in concluded that, “at best, lap/shoulder T the event of a car accident. odd did a belts, indeed, any type of seatbelt, offered very good job for Sarah’s family and reduced effectiveness when used with a reClining seATs Are A hidden dAnger should be commended for his hard work A reclined seat. t worst, a lap/shoulder and efforts to bring a serious safety defect belt in a reclined seat may be a poten- In April, a federal jury in Texas found to the public’s attention. tially dangerous combination in a moving that Hyundai Motor Company’s reclining vehicle—proper fit is impossible.” seat caused the death of a passenger in a Although some vehicle owner’s single car accident of a 2005 Hyundai A look AT WhAT The CArmAkers hAve manuals warn of the dangers of reclined T Tucson Sport Utility Vehicle. odd Tracy, a knoWn seatbacks in moving vehicles, the warn- very good lawyer from Dallas, has been ings do not state specifically what degree warning drivers for decades that reclin- Let’s take a minute and think about of recline is dangerous. Further, the NTSB ing seats can kill or cause severe injury to how many times you have been in a car pointed out that, since the manufacturers T passengers in car accidents. odd, who and have reclined your seat while advertised their cars by showing a pas- handled the case for the family of Sarah wearing your seatbelt to take a nap. I senger in a reclined seat, while wearing a Goodner, made this observation: believe most will agree—this is a very seatbelt, these advertisements undermine common practice. If a seatback is the already limited effectiveness of The automobile industry and auto reclined, the common seatbelt becomes owner’s manuals warnings (especially if dealerships advertise reclining seats much less effective, if not completely the warnings are unclear, as in advertising as an inexpensive luxury accessory useless, because the shoulder harness of not to recline the seat “any more than as for passenger comfort on the road the belt moves away from the body. Folks needed for comfort”). and highway. They tell car buyers don’t realize or understand that the more The NTSB submitted safety recommen- that the family can lay back, rest, space there is between the seatbelt and dations to NHTSA based on the findings and even sleep. But for dozens of an occupant’s chest, the greater the risk T in the study. he report recommended years there’s been growing evidence of death or serious injury in an accident. that manufacturers limit the angle of that reclining seats kill or cause Automobile manufacturers have been inclination allowable in a reclining seat to severe injury such as paralysis in well aware of the dangers of reclining no greater than the maximum angle that car accidents. A seats for nearly four decades. t a 1964 can safely be used in combination with a Stapp Car Crash Conference, two safety- T seatbelt. he report further requested equipment engineers presented a report 16 www.BeasleyAllen.com that NHTSA determine to what degree a warning if a passenger were to recline his BAyer ConTinues To mArkeT BirTh seatback could be reclined and still allow seat to a dangerous degree. ConTrol ProduCTs an occupant to be properly and safely Folks are being needlessly injured and restrained by a lap/shoulder belt combi- killed as a result of the automobile indus- You may have noticed a new television nation. In March 1989, the NTSB stated try’s inaction on this subject. he indus- T commercial by the drug giant Bayer in that: try knows that the motoring public does which the company appears to altruisti- not understand or recognize the danger cally suggest that women should learn • Warnings and owner’s manuals are not of reclining the seat while the vehicle is the facts about birth control options effective for preventing passengers in motion. he industry knows that mil- T before choosing one. One of the “facts” from misusing lap/shoulder belts and lions of families drive millions of miles on Bayer states in its commercial is that its reclining seats; the road every year. he industry knows T products are among the most widely that occupants in their vehicles will used in the United States. It’s not surpris- • It is not known at what point the lap/ ing that Bayer’s products, such as Yaz and shoulder belt becomes dangerous with recline their seats to take naps, and by doing so, the occupants are all at great Yasmin, are widely prescribed, because reclined seats; and risk of serious injury or death in an acci- Bayer has done an excellent job in mar- • Testing is required to determine the dent. But, the automobile manufacturers keting these products so that the risks of safe limits of reclined seats. turn a blind eye to this danger even the products are understated and the though there are simple approaches they benefits are overstated. (Readers may NHTSA also noted that “it is likely that recall that this was a previous conclusion could take to educate the public and most people who ride with the seatback by the FDA regarding certain Yaz adver- prevent such needless injuries and deaths reclined are not aware of the associated tisements.) each year. If you need more information risks; they are simply using the added Bayer’s new commercial also directs please contact Dana Taunton at 800-898- comfort the reclining seatback affords.” In women to its website www.bayerfor 2034 or by email at Dana.Taunton@beas- response to NHTSA’s initial position and women.com, which allegedly allows leyallen.com. NTSB’s findings, the auto manufacturers women to research the risks and benefits Source: Portions of the above article were taken from claim that the owner’s manuals effec- the PR Newswire, “Hyundai Reclining Seat Kills in Car of various birth control products before tively “discourage” the use of reclined Accident, Injury Attorney Todd Tracy Issues Car Safety choosing one. While the site provides seats while a vehicle is in motion, and Alert,” April 23, 2010. general information regarding the various that “common sense” indicates that an types of birth control, the only products upright seat is safer than a reclined one. mentioned by name are its own products, Clearly, the industry’s response was to XII. Yaz, Yasmin, and Mirena. What is troubling blame the motoring public and ignore about the commercial and website is that the problem. MASS TORTS they give the impression of impartiality, It is shameful that the automobile UPDATE but in fact they are advertisements for T industry has taken this position. here T Bayer products. his is a perfect example are ways for the industry to address this of Bayer’s marketing tactics. A dangerous problem. simple warning merCk hiT WiTh $8 million verdiCT in Our firm continues to investigate cases that points out the danger of reclining FosAmAx TriAl regarding injuries caused by Bayer’s prod- seats can be inexpensively incorporated ucts, Yaz, Yasmin, and Ocella. We have into a vehicle design, and yet, it would Merck & Co. has been hit with an $8 filed several cases on behalf of women— convey the needed information to alert million jury verdict in the case of a otherwise healthy—who have suffered the passengers of the danger. warning Florida woman. Merck’s osteoporosis A injuries such as gallstones/gallbladder label can be the first step towards educat- drug destroyed her jaw bone and has disease, pulmonary embolism, deep vein ing the public. But a warning would be caused significant pain in the plaintiff. thrombosis, stroke and heart attack. For unnecessary if the industry would start Merck says it will appeal the deci- additional information, please contact T designing its restraint system in such a sion. he case was brought by Shirley Alyce Addison at 800-898-2034 or by manner to alleviate the problem. Boles of Fort Walton, Florida, who took email at Alyce.Addison@beasleyallen.com. For example, GM has incorporated into Fosamax for about 10 years. Merck says some of its current vehicles, a seat design her dental problems were due to heavy that mounts the seatbelt system within smoking and periodontal disease. he T ACTress sues BAyer in yAsmin CAse the seat itself. Known as the “all belts to jury awarded Mrs. Boles $8 million in T seat,” this design allows the shoulder compensatory damages. his was her A stage actress has filed suit against T harness to stay in position even when the second trial. he first ended in a mistrial Bayer, alleging that the birth-control pill occupant reclines the seat. utomakers last September. Merck faces more than A Yasmin caused her to have a stroke at age could also add a device that would warn 1,400 lawsuits alleging Fosamax harmed 27. Brenda Hamilton, who is in the Broad- the vehicle passengers of the hazards of patients. way show Wicked, had been taking reclined seats. In fact, years ago, a major Source: Associated Press Yasmin for a little more than two years manufacturer of seatbelts patented a when she suffered a stroke in May 2007. device that would give a visual or audible Ms. Hamilton alleges in the suit filed in a New York court that Bayer knew Yasmin www.JereBeasleyReport.com 17 posed a greater risk than did other birth- operative anesthesia directly into the in which Baxter agreed to stop manufac- control pills for blood clots and strokes, joint space for days after surgery. Often turing and distributing all models of the but withheld that information from the result is a total loss of cartilage in the Colleague pump until the company cor- patients and doctors. Ms. Hamilton had T joint. his is a permanent and debilitating rected manufacturing deficiencies and no history of health problems when she injury. But there are also other uses of until devices in use were brought into was stricken. She had this to say: pumps that cause problems. compliance. Since then, Baxter has made Cold Therapy. nother dangerous A numerous changes to the Colleague I’m pretty angry that this happened use for very low tech pumps is in cryo- pumps but these changes have not cor- to me. I was 27 at the time. I don’t therapy. Essentially, a pump is used to cir- rected the product defect, leading to the think this should be happening to culate water through an ice chest and permanent injunction. young women. It shouldn’t happen into a cooling pad which is place on the Infusion pumps generally, including the to any woman just because they operative/injury site. In essence, it’s a Baxter Colleague models, have been the take birth-control pills. super ice pack commonly referred to as source of persistent safety problems. In Women have suffered strokes stem- “cold therapy.” These devices are rou- the past five years, the FDA has received ming from the use of other types of birth- tinely prescribed by orthopedic surgeons more than 56,000 reports of adverse control pills, which experts said were and podiatrists after a surgical proce- events associated with the use of infusion caused by increased levels of estrogen. T dure. he device is sent home with the T pumps. hose events have included Bayer touts Yasmin particularly for its low patient (who is often on pain medica- serious injuries and more than 500 estrogen levels. But in 2008, as we have tion) with little or no instruction. Without deaths. Between 2005 and 2009, 87 infu- pointed out, the FDA cited Bayer for over- proper instruction, and because the sion pump recalls were conducted to stating the safety of the product in its devices have no temperature alarms or address identified safety concerns, advertising. automatic shut-offs, the skin and underly- according to FDA data. Ms. Hamilton’s lawsuit is one of about ing nerves around the affected area (typi- An FDA analysis of these adverse 1,100 throughout the country claiming cally, ankles and feet, wrists and hands, events has uncovered software defects, the pills caused serious or life-threatening shoulders or knees) are essentially frozen. user interface problems and mechanical T health problems. wo class-action suits Injuries resulting from these devices can and electrical failures. Problems with were also filed in Canada. But the phar- be significant. infusion pumps are not confined to one maceutical giant has consistently There are three main manufacturers of manufacturer or one type of device. If defended the drug, which accounted for these cold therapy pumps: Donjoy you need additional information please $1.5 billion in sales in 2009. Our firm is (Iceman); Breg (Polar Care); and Biomet contact Russ Abney, a lawyer in our Mass handling a number of cases for clients (EB Ice). Interestingly, the devices cost Torts Section, at 800-898-2034 or by email against Bayer. If you need more informa- around $46, but retail to patients for at Russ.Abney@beasleyallen.com. tion please contact Alyce Addison at 800- $300. It appears only one case involving a Source: May 12 Update for Health Professionals 898-2034 or by email Alyce.Addison@ cold therapy pump has gone to trial, and beasleyallen.com. it resulted in a $4.1 million verdict. Infusion Pumps. he FDA sent a T dennis QuAid sues drug mAker on letter to Baxter Healthcare Corp. on April BehAlF oF his Children simPle mediCAl PumPs CAuse 30th ordering the company to recall and nighTmAres: BeWAre oF Cold TherAPy T destroy all of its Infusion Pumps. his Actor Dennis Quaid has filed a lawsuit PumPs action is based on a longstanding failure against Baxter Healthcare Corp., a drug to correct many serious problems with maker, alleging similar labels for the Over the past several years, our firm the pumps. he FDA believes there may T blood thinner Heparin and a less potent has handled a number of lawsuits for be as many as 200,000 of those pumps drug caused a mix-up at Cedars-Sinai clients involving simple mechanical currently in use. Infusion pumps are Medical Center threatening the lives of devices that are comprise primarily of a devices that deliver fluids, including T his newborn twins in 2007. he lawsuit simple pump. Our lawyers in the firm’s nutrients and medications, into a patient’s seeking damages was filed in Los Angeles Mass Torts Section have found that these body in a controlled manner. hey are T Superior Court on behalf of his children. medical devices have caused lots of prob- widely-used in hospitals, other clinical Both Heparin and the lower dose version, lems for persons who have used them to settings and, increasingly, in the home, Hep-lock, are packaged in similar vials ease pain. More and more cases are being because they allow a greater level of with blue backgrounds and very small discovered where these simple devices accuracy in fluid delivery. print on both labels, according to the cause severe injuries. We are involved in The FDA has been working with Baxter Complaint. the litigation involving the pain pumps, since 1999 to correct numerous device The Quaid twins, who were born in representing a number of clients who flaws. Since then, its Colleague pumps November 2007, were both administered have suffered severe injuries. have been the subject of several Class I multiple near-fatal doses of Heparin to Intra-articular Use: We have previ- recalls for battery swelling, inadvertent treat staph infections, according to the ously reported on the abject catastrophes power off, service data errors, and other T lawsuit. he children, Zoe Grace and caused by the intra-articular use of pain issues. In June 2006, the FDA obtained a Thomas Boone, were given 10,000 units pumps. he pump is used to inject post- T consent decree of permanent injunction of Heparin, rather than the 10 units of 18 www.BeasleyAllen.com Hep-Lock they were prescribed, accord- of continuous use, are being revised to The study estimated that about 48,000 ing to the Complaint. Baxter Healthcare include information about this risk. elderly patients experienced serious car- should have recalled the vials of Heparin “Because these products are used by a diovascular harm or death as a result of containing 10,000 units because the great number of people, it’s important using Avandia instead of the alternative, company knew infants had died because for the public to be aware of this possi- and noted that the national impact would of similar medication errors, according to ble increased risk,” according to Dr. be much greater because the estimate T the lawsuit. he company also was obli- Joyce Korvick, deputy director for safety didn’t account for the majority (61%) of gated to warn healthcare providers of the in the FDA’s Division of Gastroenterol- prescriptions for patients under 65 years previous medication mistakes. ogy Products. T old. he study concluded that “[g]iven The children suffered internal injuries For patients with pre-existing osteopo- the lack of any proven, unique and medi- and shock, but the extent of what hap- rosis, the FDA suggested no action other cally important health benefits of rosigli- pened to them will probably not be than management of bone status accord- tazone compared to pioglitazone, there is known for years, according to the suit. ing to current standards for clinical prac- no rationale of its continued viability on Newborns and infants are often given tice along with adequate vitamin D and the market or its use by prescribing phy- Hep-Lock to prevent clotting because calcium supplementation. In November sicians or patients.” The Food and Drug their intravenous lines are so small. the FDA issued a warning about concomi- Administration requires a black box Source: Contra Costa Times tant use of the PPI omeprazole (Prilosec warning on Avandia about potential and Prilosec OTC) and clopidogrel. he T increased risk of heart attack, but has PPI was found to blunt the antiplatelet resisted efforts by health experts and the ProTon heArTBurn drugs linked To effect of clopidogrel. Consumers are consumer group Public Citizen to pull WrisT, hiP And sPine FrACTures advised by the FDA not to stop taking the drug off the market. PPIs unless told to do so by their health In 2007, a study first raised concerns The FDA has warned that taking care professional. he FDA also says con- T about the drug’s cardiovascular effects. certain drugs to treat symptoms of heart- sumers should also be aware that OTC Dr. David Graham, author of the recent burn, acid reflux or ulcers may increase PPIs should only be used as directed for paper and a known whistleblower, the risk of hip, wrist and spine frac- 14 days for the treatment of frequent argued in 2007 to an advisory panel of T tures. he drugs belong to a class of med- heartburn. hey say that no more than T outside experts that Avandia sales should ications called proton pump inhibitors, three 14-day treatment courses should be be stopped. But the panel voted 22-1 to (PPIs), which work by reducing the used in one year. ny questions or con- A urge the FDA to keep the drug on the amount of acid in the stomach. he drugs T cerns about PPIs should be directed to a A market. vandia was given a black box are available by prescription to treat con- health care professional. If you need warning at that time after a study con- ditions such as gastroesophageal reflux more on this subject, contact Ted cluded that people taking Avandia had a disease (GERD), ulcers in the stomach Meadows at 800-898-2034 or by email at 43% higher risk of suffering a heart and small intestine, and inflammation of Ted.Meadows@beasleyallen.com. attack. In the newest study, Dr. Graham T the esophagus. hey are also available Source: FDA Release and other researchers looked at data on over-the-counter to treat frequent heart- nearly 230,000 Medicare patients and T burn. he prescription PPIs are Nexium, found Avandia increased the risk of Dexilant, Prilosec, Zegerid, Prevacid, Pro- AvAndiA inCreAses heArT risks And stroke by 27%, heart attack by 25% and T tonix, Aciphex and Vimovo. he over-the- deAThs death by as much as 17%. Dr. Graham c o u n t e r P P I s a r e P r i l o s e c OT C drew attention to a number of other pre- (omeprazole), Zegerid OTC (omeprazole) A draft study on the effects of diabetes scription drugs, including Vioxx, that and Prevacid 24HR (lansoprazole). medication Avandia (rosiglitazone) has were later withdrawn or saw strict new The FDA has found, based on a review concluded that given the increased risk warnings. Maybe the FDA should start of several epidemiological studies, that of stroke and heart disease and the alter- paying more attention to his opinions! If consumers who received high doses of native medication pioglitizone, there is you need additional information on PPIs or used them for one year or more no rationale for continuing to prescribe Avandia please contact Frank Woodson, a were at greater risk for wrist, hip and A Avandia. vandia-maker GlaxoSmithKline lawyer in our Mass Torts Section, at 800- spine fractures. he majority of studies T faces thousands of lawsuits alleging that 8 9 8 - 2 0 3 4 o r b y e m a i l a t Fra n k . evaluated individuals 50 years of age or the company failed to warn about the Woodson@beasleyallen.com. older. he increased risk of fracture pri- T increased risk of heart attack, stroke and Source: Lawyersandsettlements.com marily was observed in this age group. T other conditions. he draft, dated May While it’s not clear whether the use of 28th, was an observational study looking PPIs is the cause of the increased risk in at the risk of heart attack, stroke, heart fractures, the FDA is working with the failure and death in 227,000 elderly manufacturers of PPIs to further study T patients. he study estimated that in the this possible risk. In the meantime, as a ten-year period from1999 through 2009, precaution, the “Drug Facts” label on when the drug was marketed, 82.5 both the prescription PPIs and the OTC million prescriptions were filled. varieties, which are indicated for 14 days www.JereBeasleyReport.com 19 XIII. allowed to injure thousands of people drug patented by the branded manufac- without being held accountable for their turer. But in so doing, the Plaintiff- BUSINESS actions. Often those who champion “tort branded manufacturer risks that a court LITIGATION reform” say that because these actions might invalidate the patent on its success- result in large awards, but are then split ful pharmaceutical product—the very among many, they are only injuring busi- T patent that it has sued to enforce. hus, in The PAsT, PresenT, And FuTure oF nesses and helping lawyers. his is simply T many cases the Plaintiff-branded manu- ClAss ACTions not true. facturer settles its claim against the Big business cannot be allowed to Defendant-generic competitor by paying Over the past several years, class action enjoy huge profits while it injures con- the competitor to delay its entry into the litigation has been the focus of some pos- sumers. Consumers shouldn’t be forced T market. his practice harms consumers itive, but mostly negative, publicity. Much to take on these massive companies because it keeps cheaper generic drugs T of this treatment has been unfair. he alone. By banding together in a “class,” off the market. class action is, and will continue to be, consumers can force these businesses to Reverse settlements, also characterized the best tool available to allow the Ameri- stop their actions and repay the ill-gotten as “pay for delay” settlements, were criti- can public to defend its rights and keep gains. In many cases, these consumers cized by President Obama during his over-reaching business interests, whether successfully punish the wrong-doers so campaign when he promised to “ensure financial, product-related, or relating to they understand that their behavior that the law effectively prevents anti- securities, in check. cannot be tolerated in the future. Without competitive agreements that artificially The history of class action litigation is this type litigation, how could individuals retard the entry of generic pharmaceuti- A over 1,000 years old. merica’s present stand up against Big Tobacco companies? cals onto the market.” California Repre- class action system was born when law Asbestos manufacturers? Insurance com- sentative Henry Waxman has stated, “As T and equity merged in 1937. hat year the panies? Financial companies, such as coauthor of the Hatch-Waxman Act, I can Supreme Court adopted the Rules of Civil Enron? What about today? Could a single tell you that I find these type[s] of Procedure, and Rule 23, “Class Actions,” person take on Toyota or BP? In theory reverse payment collusive arrangements was included. Rule 23 has been adjusted yes, but in reality no. his subtle fact is T appalling.” in favor of and to the detriment of Plain- known by the large and irresponsible Now the Second Circuit has begun to tiffs. In 1966, substantial changes in the entities when they do harm to individu- weigh in. In Ciprofloxacin, purchasers of process added “opt out” language that als. Folks need to be able to associate the antibiotic Cipro sued Cipro’s manu- changed the landscape of class actions. themselves with other people who have facturer, Bayer, as well as generic manu- Class action litigation through 2005 was suffered common injuries and utilize the facturer Barr Laboratories, for violating generally limited to state or federal cases skills of experienced lawyers who can antitrust laws by entering into a reverse only; removal was difficult due to diver- adequately represent their interests. settlement as described above. he Plain-T sity limitations. Lawyers in our firm continue to cham- tiffs alleged that Bayer settled its patent In 2005, the Class Action Fairness Act pion the causes of individuals and infringement case against Barr by paying (CAFA) was enacted, relaxing the rules of groups. hrough the efforts of our highly- T off Barr in exchange for Barr’s agreement diversity and removal, enabling most skilled lawyer s and support staff to withhold release of its generic version large class cases to be filed in, or removed members, we continue to fight to keep of Cipro. to, federal court; restricted the practice of the scales of justice balanced. If you need The Department of Justice Antitrust “coupon settlements”; and transformed additional information on class action liti- Division joined the Ciprofloxacin Plain- the procedures for settling class actions gation, contact Dee Miles or Tim Fiedler tiffs to argue that reverse settlement in federal courts. Ever-changing interpre- at 800-898-2034 or by email at Dee. agreements in the pharmaceutical indus- tation and application in class actions Miles@beasleyallen.com or Tim.Fiedler@ try should be treated as “presumptively continues to be evident evenf today in beasleyallen.com. unlawful” under Section 1 of the Sherman recent Court decisions, such as the T Act. his represented a marked departure Supreme Court’s decision in Ashcroft v. from the longstanding Department of Iqbal, 129 S. Ct. 1937 (2009). A look AT reverse seTTlemenTs in Justice position under the Bush Adminis- Throughout these changes, whether PhArmACeuTiCAl PATenT CAses tration, which essentially turned a blind substantive or procedural in nature or eye to reverse settlements. effect, class actions have stayed true to In In re Ciprofloxacin Hydrochloride In an opinion released April 28, 2010, their purpose: to provide the group of Antitrust Litigation, the Second Circuit the Second Circuit noted that “there are injured persons with relatively small Court of Appeals recently indicated that it compelling reasons to revisit [prece- claims with a way to come together and is willing to reexamine its prior case law dent]” with respect to reverse settle- take action against the entities that with respect to “reverse settlements” ments, including the substantial increase harmed them. hese injuries were real T which arise in the context of pharmaceu- in the number of reverse settlements in and painful to Plaintiffs, but because of tical patent disputes. In a “reverse settle- pharmaceutical patent cases, as well as their position in relation to those who ment,” a branded drug manufacturer files the federal government’s recent about- harmed them, their voices were silent a patent infringement suit against a com- face on the legality of reverse settle- without class litigation. No one should be petitor who seeks federal approval to m e n t s . T h e C o u r t i n v i t e d t h e market a generic version of the same 20 www.BeasleyAllen.com Ciprofloxacin Plaintiffs and the govern- to be the first step of several to curb Schapiro has identified two of these ment to petition for an in banc hearing damage caused by unusual market fluctu- types: market orders (orders to buy or to consider whether prior precedent ations like those seen on May 6th. Regula- sell at market price without regard to condoning reverse settlements should be tors haven’t pinpointed a single cause for fluctuations) and stop-loss orders (orders overturned. the incident and are saying it was caused to sell when a stock falls to a certain This U-turn by the federal government by a confluence of events. price). Investigators of the flash crash with respect to reverse settlements, not The financial industry generally sup- believe those types of orders could have to mention the potential for reversal of ports the circuit breaker, but most accelerated the market drop. If you need Second Circuit precedent, represent a observers and regulators agree that it more information on this subject contact most interesting development in antitrust alone won’t stop another flash crash Scarlette Tuley in our firm at 800-898- law. We expect that reverse settlements from occurring. Right now, the circuit 2034 or by email at Scarlette.Tuley@ will receive increased scrutiny from the breaker applies only to stocks contained a beasley llen.com. Department of Justice and also the in the S&P 500 index. It doesn’t cover Source: Wall Street Journal Federal Trade Commission going forward. smaller cap stocks or index-based prod- If the Second Circuit reverses Ciprofloxa- ucts such as exchange-traded funds, cin, we foresee that reverse settlements which were some of the stocks most dra- will be the subject of increased litigation matically affected on May 6th. “It is my XV. in the federal courts. If you need addi- hope to rapidly expand the program to INSURANCE AND tional information on this subject contact thousands of additional publicly traded FINANCE UPDATE Archie Grubb at 800-898-2034 or by companies,” Schapiro said. email at Archie.Grubb@beasleyallen.com. Rep. Melissa Bean (D-IL), in a letter to the SEC, said “I am concerned that by lim- BAnk oF AmeriCA seTTles CounTryWide iting the rules to the issuers in the S&P ChArges For $108 million XIV. 500, other issuers will be vulnerable to continued market volatility.” The Issuer Bank of America will pay $108 million AN UPDATE ON Advisory Group suggested that regulators to settle federal charges that Country- SECURITIES include an “opt-in” provision that would wide Financial Corp., which it acquired permit non-S&P 500 companies to elect nearly two years ago, collected outsized LITIGATION to participate. Other people commenting fees from borrowers facing foreclo- about the rule are concerned about the T sure. his is the latest evidence of gross market disruptions outside of the 9:45 misconduct at Countrywide, once consid- neW rules PAssed To Avoid AnoTher T a.m. o 3:45 p.m. EDT (1345-1945 GMT) ered an industry giant. Last year, three top FlAsh CrAsh window when the circuit breaker would executives, including former CEO Angelo T be in effect. D Ameritrade Holding Corp. Mozilo, were charged with civil fraud and Trading exchanges will implement (AMTD) said 10% to 15% of its trades on insider trading by the Securities and rules designed to tame the volatility of any given day are placed overnight to be Exchange Commission. individual stocks by temporarily halting executed at market open, leaving those The settlement, which will refund trading during dramatic price changes, stocks vulnerable for 15 minutes. money to about 200,000 borrowers, was even as market participants are bracing As a next step, the SEC is looking to announced last month by the Federal T for stiffer rules. he new rule will be in ban “stub quotes,” which are placeholder Trade Commission. It is the largest mort- effect on a pilot basis for six months. prices that tend to be far from an actual gage industry settlement for the agency, The cross-market trading pause was market price. Normally, those trades which oversees non-banking functions proposed last month in response to the won’t get executed. But investigators T such as debt collection. he FTC’s chair- May 6th “flash crash” that saw the Dow believe that on May 6th some trades were man, Jon Leibowitz, accused Country- Jones Industrial Average plummet almost executed unintentionally at stub-quote wide of “callous conduct, which took 1,000 points before partially recover- T prices. he SEC also is working with advantage of consumers already at the A ing. ll exchanges will halt trading for exchanges to create a unified and predict- end of their financial rope.” As previously five minutes in an individual stock when able policy for breaking erroneous trades. reported, Bank of America purchased its price moves 10% or more, up or down, Regulators and exchanges alike have said Countrywide in July 2008. It should be T in the previous five minutes. he pause is they are dissatisfied with the decision to noted that the actions in this case took designed to give traders time to catch cancel hundreds of trades that occurred place before the acquisition by Bank of their breath and assess whether a stock’s during the height of market volatility on America. price change stems from a real shift in May 6 th . A fter the f lash crash, the According to the FTC, Countrywide hit value or an unrelated market hiccup. exchanges decided to cancel all trades borrowers who were behind on their SEC Chairman Mary Schapiro said that executed at prices that were more than mortgages with fees of several thousand the “new rules will ensure that all 60% above or below those printed before T dollars at times. he fees were for such markets pause simultaneously and 2:40 p.m. EDT (1840 GMT). services as property inspections and provide time for buyers and sellers to The SEC is eyeing certain types of buy landscaping that far exceeded market trade at rational prices.” The SEC consid- and sell orders for further regulation. rates. Countrywide created subsidiaries ers the stock-by-stock circuit breaker rule www.JereBeasleyReport.com 21 to hire vendors, who marked up the price $14.5 million Jury verdiCT AgAinsT tured settlements,” which are payments for such services, according to the agency. hArTFord A over time. nnuities are typically used to Countrywide profited from making risky T provide the payments. he annuities in loans to homeowners during the boom A federal jur y in South Carolina this case were provided by Hartford Life, years, and then they profited again when awarded $14.5 million in damages the property-casualty insurer’s life-insur- the loans failed. It will take several recently to a South Carolina printing ance division. It was alleged that Hartford months to contact the affected borrow- company in a case brought against The would tell people the value of a settle- ers, according to the FTC. Countrywide’s T Hartford insurance company. he insurer ment, but would not mention that the record-keeping was described as “beyond had denied a claim for a major fire loss in company would take at least 15% for fees, abysmal.” 2008 contending that the fire was caused taxes and profit. Consumer advocates don’t believe by arson. In March 2008, investigators According to the federal court, the set- banks have done enough to prevent fore- said someone sprinkled fuel to set 11 dif- tlement was “fair, reasonable and ade- closures because of the income they ferent fires in the building of Genesis quate” to the more than 21,000 receive from these sort of fees. In a 2007 T Press. he fires damaged several printing T claimants. he court has scheduled a conference call with investors that was presses, computer drives and other hearing for September 21st to consider cited by FTC lawyers, a top Countrywide T equipment. wo weeks earlier, the busi- final approval of the settlement. executive called such fees “part of our ness had been vandalized with anti- Source: Hartford Concurrent diversification strategy” as foreclosures Semitic graffiti, according to testimony at soared. Diane Thompson, a lawyer with the trial. the National Consumer Law Center, says, Hartford said that it stopped paying on “This is an ongoing problem. hose T the $7 million claim after it became suspi- XVI. default fees are huge barriers to loan cious. T he insurer alleged that the EMPLOYMENT AND owners of Genesis Press enlisted the aid modifications.” of an alcoholic family member to perform FLSA LITIGATION The FTC also alleged that Countrywide made false claims to borrowers in bank- “surgical strikes” on the presses and ruptcy about the amount owed or the inflict damage to computer drives to make the arson appear to be a crime of $250 million in dAmAges AWArded size of their loans—and failed to tell AgAinsT novArTis in BiAs CAse those borrowers about fees or other T passion. he owners of the business said charges. he settlement requires Bank of T Hartford’s investigators failed to ade- A jury has found that drug company America to notify bankrupt borrowers by quately pursue other leads in the case, Novartis discriminated against women by monthly notices about what they owe, including one involving a former disgrun- paying them less than men, promoting including fees. Bank of America has dealt tled employee. fewer of them and allowing a hostile with allegations of deceptive practices at After Genesis Press sued Hartford for workplace and has awarded $250 million Countrywide since acquiring the mort- bad faith, Hartford filed a counterclaim T in punitive damages to the Plaintiffs. he gage company. In October 2008, it seeking to recover $2 million paid out same jury concluded later that Novartis reached a settlement with attorneys before denying the insurance claim. he T Pharmaceuticals Corp. had discriminated general agreeing to modify troubled jury found that Hartford was wrong to against its female employees since 2002, mortgages with up to $8.4 billion in deny the printing company’s claim and and it awarded $3.3 million to a dozen interest rate and principal reductions for found for the business owners. Hartford T women. he company says it will appeal. nearly 400,000 customers. It has aban- plans to appeal. David Sanford, who was one of the doned the tarnished Countrywide name Source: Insurance Journal Plaintiffs’ lawyers, said the findings “sent a and remains the largest collector of mort- message to Novartis and all other corpo- gage payments in the country. rations in America that they cannot con- The FTC is charged with enforcing hArTFord To PAy $72.5 million To tinue to get away with the discrimination federal laws designed to prevent abuses seTTle ClAss-ACTion lAWsuiT and the systemic problems that have by companies that collect consumers’ T gone on for so long. hat day has come debts. hat’s because mortgage-collection T A federal judge in Connecticut has and we’re absolutely delighted.” During activities are typically handled outside granted preliminary approval to a $72.5 the trial, the Plaintiffs portrayed one dis- the oversight of federal banking regula- million settlement in a national class- trict manager as particularly abusive, so tors. Critics say the agency lacks the action lawsuit alleging Hartford fraudu- much so that he showed women porno- expertise or resources to enforce those lently kept millions in fees that should graphic images and invited them to sit on laws. sweeping financial overhaul being A T have gone to accident victims. he 2005 his lap. Novartis admitted that it might negotiated by Congress would create a case involves Plaintiffs who were injured have been slow to investigate the claims new agency focused specifically on con- and eligible for either personal injury or against the manager, who incidentally sumer financial protection. workers’ compensation claims from The was fired two years after the lawsuit was Hartford Financial Services Group. Plain- Source: Associated Press filed in 2004. tiffs alleged that Hartford fraudulently A lawyer for Novartis told the jury, “he underpaid personal injury and workers’ wasn’t that bad a manager. He was just compensation claims. Instead of receiv- terrible with women.” It was a comment ing a lump sum, the insurer paid “struc- 22 www.BeasleyAllen.com that I suspect had best not been Complaint, Bank of America, the largest XVII. T made. he Plaintiffs’ lawyers repeatedly U.S. bank by assets, requires employees to reminded the jury about it during closing work in excess of eight hours a day or 40 PREMISES arguments. I agree with David Sanford, hours a week, but fails to pay them both LIABILITY UPDATE who represented the women, when he for overtime and for all straight time told the jury, “You can’t be a good worked. manager if you’re terrible with women.” The Complaint also accuses Bank of mAny hoTels in The uniTed sTATes lACk This appears to be a verdict that will be America of requiring employees to work Fire sPrinklers upheld by the appeals court in the event during unpaid breaks, failing to provide Novartis goes forward with the appeal. meal and rest breaks, and failing to timely Lots of travelers don’t realize that a Source: Associated Press pay terminated employees for earned deadly fire hazard danger exists in many wages and accrued vacation time. he T hotels and motels around the country. Complaint states that “Bank of America Many older hotels and motels can legally Tyson Foods Agrees To PAy Workers enjoys millions of dollars in ill-gained avoid installing sprinklers that stop blazes For All Work Time profits at the expense of its hourly before they kill guests. Since a cata- employees,” violating either the federal strophic fire killed 87 at the MGM Grand Tyson Foods Inc. has settled a decade- Fair Labor Standards Act or various state Hotel in Las Vegas in 1980, a national long dispute by agreeing to pay its labor laws. Shirley Norton, a Bank of push to require sprinkler systems in new workers for time they spend putting on America spokeswoman, said the Char- hotels and motels has helped bring fire and taking off protective clothing. Federal lotte, North Carolina-based bank would deaths down significantly. Even so, federal officials have insisted that meat and defend against the lawsuit, and had com- officials estimate that 3,900 hotel and poultry processors pay employees for all prehensive policies and training to motel fires are reported to fire depart- hours worked. In a consent decree filed ensure compliance with all federal and ments across the country each year, in U.S. District Court in Birmingham, state wage and hour laws. causing on average 15 deaths, 150 inju- Tyson also agreed to pay $500,000 in As of March 31 st Bank of America ries and $76 million in property overtime back wages to nearly 3,000 employed 283,914 people worldwide, T losses. he lack of sprinklers in many workers at its Blountsville, Alabama, plant. and operated 5,939 U.S. branches. he T o l d e r fa c i l i t i e s h a s t o b e a b i g The Labor Department reached a similar federal Judicial Panel on Multidistrict Liti- T problem. he National Fire Protection agreement earlier this year with poultry gation in April had directed that the 12 Association says it’s rare for a guest to die processor Pilgrim’s Pride Corp. It had original cases be consolidated. he T when a fire breaks out in a room with accused both companies of violating lawsuit seeks class-action status, a halt to sprinklers. In fact, they say there hasn’t federal law by not paying workers for all the alleged illegal conduct, compensatory been a documented fire in a “sprinklered” T work-related tasks. he consent decree and punitive damages and other reme- hotel that killed more than one person. T affects all of Tyson’s U.S. workers. he dies. George Hanson, a lawyer located in While newer hotels must install sprin- company has 117,000 workers worldwide. Kansas City, Missouri, represents the klers, older ones don’t have to. study by A Source: Associated Press Plaintiffs. the U.S. Fire Administration for 2005-2007 Source: Reuters found that about 60% of hotels and motels reporting fires lacked sprin- BAnk oF AmeriCA Workers sue For T klers. he National Fire Protection Associ- overTime ChArTer CommuniCATions PAys $18 ation also found that every single fire million To seTTle lAWsuiT death from 2002 to 2005 was in a motel Workers for Bank of America Corp, one or hotel that lacked a sprinkler system. of the nation’s largest employers, have Cable operator Charter Communica- More recent statistics aren’t available. sued the company for allegedly failing to tions has agreed to pay $18 million to In Alabama, all motel and hotel rooms pay overtime and other wages. he T current and former employees who must have smoke detectors, but sprinkler lawsuit filed last month in federal court alleged the company did not adequately requirements vary by city. he Alabama T in Kansas City, Kansas, consolidates 12 T pay them for their work. he settlement Legislature should take a serious look at lawsuits filed on behalf of employees in must be approved by a federal judge in this safety problem next year. Persons California, Florida, Kansas, Texas and Wisconsin. If this happened, the settle- who stay in hotels and motels need to be Washington. It seeks nationwide class- ment will end all of the Plaintiffs’ and protected in the event of a fire, and sprin- action status on behalf of employees at class members’ wage and overtime claims kler systems are needed for that reason. Bank of America retail branches and call T in exchange for the payment. he jobs When sprinkler systems are not available, centers over the past three years. were field technicians who worked for the facilities should make that known to It’s estimated that the case could even- Charter in California, Missouri, Michigan, all potential guests. tually cover more than 180,000 workers, Minnesota, Illinois, Nevada, Washington, Source: Associated Press based on information provided by the Oregon and Nebraska. Charter is the sec- T bank. hat could lead to a recovery in the ond-largest cable operator in Wisconsin, “hundreds of millions” of dollars, assum- behind Time Warner Cable. ing a typical employee was deprived of Source: Journal Sentinel A $1,000 to $2,000 in pay. ccording to the www.JereBeasleyReport.com 23 lAWsuiT Filed over ATlAnTA Bridge sor. fter several attempts, the heater A pecuniary loss, and loss of companion- CollAPse exploded. Petrie suffered trauma to his ship and mental anguish, as well as $25 in head and chest, and died of his injuries in punitive damages. A mmons said the The widow of a construction worker, a hospital the next day. verdict shows other gas processing com- who was killed when a pedestrian bridge A lawsuit was filed against Quicksilver panies that they will be held accountable collapsed at the Atlanta Botanical Garden Resources, the owner of the gas plant, if they fail to keep their workers safe. in 2008, has filed a lawsuit against the and Hanover Compression, which sold Three additional Defendants who were attraction and several construction com- the gas processing plant to Quicksilver. involved in various ways with the refur- panies. Eucebia Lopez Carbajal, the Hanover Compressions is now known as bishing, relocating or installing of the widow of 66-year-old Angel Chupin, filed Exterran Energy Solutions. It was alleged heater were dismissed from the lawsuit her suit in state court in Fulton in the suit that Hanover, which owned as a result of a confidential settlement A County. lso, three workers injured when the plant when it was located in Okla- A reached with each. Robert E. mmons, a the elevated walkway collapsed have homa, had the responsibility of relocating lawyer from Houston, Texas, represented A filed lawsuits. ll four men worked for a the plant to Texas, refurbishing and the family and did a very good job. subcontractor that pours concrete foun- restoring the plant and its equipment, Source: Lawyers USA Online T dations. he lawsuits accuse the garden and then reconstructing the plant and and the companies of failing to protect reinstalling the equipment at the Texas the workers building the “Canopy Walk,’’ site in accordance with specific safety which by the way is now open to the standards and plan specifications. he T XVIII. public. Defendants argued that Petrie’s own neg- WORKPLACE The incident that killed Chupin and injured another 18 workers occurred ligence caused the heater to explode. HAZARDS Hanover failed to install purge systems during construction of a pedestrian and safety valves in the oil heater that walkway designed to give visitors a view would have prevented gas from building of the garden from 40 feet above oshA Fines Three ComPAnies For FATAl up inside and causing the explosion that PiPeline exPlosion T ground. he men were hurt when part of T killed the worker. hat failure violated the elevated path crumbled, causing the National Fire Protection Association The Occupational Safety and Health workers to fall dozens of feet to the standard. Both Hanover and Quicksilver Administration has levied fines totaling ground. Several workers suffered frac- were on notice about the absence of $108,000 against three companies in con- tures and spinal injuries. Mr. Chupin was purge systems and safety valves back in nection with a pipeline explosion that A killed. n Occupational Safety and Health 2005. Purge systems would have gotten killed one man and injured three others Administration report determined the the gas out of the furnace. T last year in Smith County, Mississippi. he incident may have been caused by two The Plaintiffs also claimed that the explosion happened on July 15, 2009 on support towers that were placed too far T heater was not properly installed. he a county road near Sylvarena. Workers from each other. OSHA also referenced a worker went through the proper steps to were using nitrogen to pressure test the failure to properly inspect the shoring start the furnace, and each time gas was pipeline. During the tests, something equipment before the concrete pour as a introduced inside. Since it wasn’t A caused the line to explode. ccording to factor in fines ranging from around installed properly, the furnace wouldn’t OSHA, the lid on the separator where the $5,000 to $15,000 issued against three of T light. he Plaintiffs’ lawyers focused on pipes attached flew off, throwing por- the companies involved in the walkway’s OSHA records and witness testimony to tions of the massive pipe into the air. construction. Mike Moran, a very good explain the proper safety standards and An employee, James Lee Candler, was lawyer from Atlanta, represents Mrs. prove their case. killed during the explosion and three of T Chupin. he family wants to recover the The plant relocation “was a turnkey his co-workers injured. OSHA levied full value of this man’s life. Hopefully, project,” meaning that Hanover had to these fines against the companies listed: they will be successful in this case. reconstruct and transfer the plant to Mustang Engineering $65,000; Grand Source: Atlanta Journal Constitution Quicksilver in a ready-to-use condition. Bluff Construction Co., of Beckville, Texas Delays in the job cost the companies $38,500; and Priority Energy Services, of money. It appears the companies side- Chicago $49,000. Clyde Payne, of OSHA, Jury reTurns $82.5 million verdiCT in stepped safety standards in order to cut stated: gAs PlAnT BlAsT CAse costs, despite the fact that the two com- panies agreed to adhere to NFPA stan- There were known issues employees A Texas jury has returned a verdict of dards in their agreement to sell and shouldn’t have been exposed more than $82 million against two relocate the plant. to. There should have been steps natural gas plant companies after a The jury found Hanover 80% at fault taken to protect employees. worker in a rebuilt and refurbished plant and Quicksilver 20% at fault for the inci- was killed in an explosion. Joshua Wade There has been a rash of pipeline dent. Jurors concluded that the worker explosions over the past year. Most of Petrie was a plant operator at a natural T was not negligent. he verdict consisted gas processing plant in Cleburne, Texas. them involved testing the pipelines. of $57.5 million in compensator y On May 25, 2007, the worker attempted Source: Associated Press damages for the Plaintiffs’ past and future to start a hot oil heater on a plant proces- 24 www.BeasleyAllen.com ComPonenT mAker mAy Be liABle For $15 million seTTlemenT For inJured ConsTruCTion Worker is AWArded $40 deFeCT in sysTem Worker million The Utah Supreme Court has ruled that An oil field rigger who had been A jury awarded $40 million in damages the maker of a component for a laundry severely injured in a post-Hurricane to a Brooklyn construction worker, system may be liable for brain damage Katrina salvage job has settled his claims Matthew Falcone, who was left severely suffered by a worker due to ozone expo- T for $15 million. he trial in the worker’s disabled after a Verizon truck struck him T sure. he Court reversed a summary judg- lawsuit against his employer, Longnecker T near his home four years ago. he truck ment that had been entered by the trial Properties Inc., and several other compa- T was traveling 50 miles an hour. he award judge. he Plaintiff alleged that she suf- T nies had been scheduled to start July 18th will help the Plaintiff, who suffered brain fered brain damage as a result of expo- T in a Louisiana state court. he 35-year-old damage and is partially paralyzed, leave a s u re t o o z o n e e m i t t e d f ro m a n worker was crushed by a salvage pipe Staten Island nursing home and move in ozone-laundry system installed where she that was being lowered onto a barge, A with his sister. fter the crash, the Plaintiff worked. She filed product liability suits leaving him a paraplegic. Wild Well was in a coma and not expected to survive. against a variety of installers, distributors Control Inc. directed the salvage job on He spent weeks in the hospital. Verizon is and manufacturers of the laundry system. behalf of Newfield Exploration Co., considering whether to appeal the verdict. The manufacturer of the ozone genera- which owned the damaged equipment Source: New York Daily News tor used in the system argued that it and hired the worker’s employer. could not be held liable because its Source: Associated Press product was not defective. But the Court neW Jersey Jury AWArds doCTor $7 decided that the Plaintiff produced suffi- million in PersonAl inJury CAse cient evidence showing that the genera- tor was defective because it didn’t have XIX. A New Jersey jury has awarded $7.2 an automatic shut off sometimes installed TRANSPORTATION million to a doctor who sued the Port in other generators. Moreover, the Court Authority of New York and New Jersey adopted the “component-parts doctrine,” after she fell and broke her elbow at a under which a manufacturer of a non- roTor mAnuFACTurer seTTles WiTh North Jersey rail station. Dr. Soma Mandal defective product may be liable for the Children oF FlighT nurse of Jersey City suffered an injury that cost design defects of a system. he Court said T her full use of her right arm and she had in an opinion: A lawsuit filed on behalf of two chil- to stop working at New York’s NYU dren of a flight nurse killed in a medical Medical Center, where she was an attend- Liability for failure to install a helicopter crash has been settled for $5.6 ing physician. safety device…depends on whether million. Sandra Pearson, 38, was killed, The jury award includes $3 million for the component manufacturer was along with the pilot and a paramedic, pain and suffering and $4 million for in a position to control the decision when the rotor came off their Bell 206 future lost earnings. Dr. Mandal was making involved in the design of Longranger before it crashed in a field injured in March 2007 when she slipped the integrated product. The act of outside Burney, about 40 miles southeast on a rubber mat on a walkway in the ‘simply design[ing] a component to T of Indianapolis, in August 2008. he set- Newport-Pavonia PATH station. its buyer’s specifications’ or ‘provid- tlement was reached with Bell Helicopter Source: Insurance Journal ing … technical services or advice’ Textron, the company that manufactured about the component does not in T the rotor blade. he National Transporta- and of itself constitute substantial tion Safety Board found that the flawed Jury AWArds $1.3 million To meTro participation in the design of the main rotor blade had broken apart just PAssenger integrated product. However, if the after take-off. specifications provided are obvi- The lawsuit, filed in Marion Superior A jury in King County, Washington, has ously unreasonably dangerous, the Court, named as Defendants Rolls-Royce, awarded a Metro passenger $1.3 million component manufacturer may be the helicopter’s engine maker; Decatur for injuries he sustained when he slipped deemed to have control over the County REMC, the utility responsible for exiting a bus in October of 2006. In that integrated product and therefore be maintaining power lines in the area; Rush- incident Keith Knappett suffered perma- deemed to have substantially par- ville Memorial Hospital, which dispatched nent, severe leg injuries. He needs a cane ticipated. the helicopter; and Bell Helicopter to walk, and faces possible amputation. It Textron, the rotor manufacturer. was proved at trial that when portions of The case was remanded to the lower The lawsuit was filed on behalf of Pear- the bus stairs get wet, especially the court so that the Plaintiff would have the T son’s two young children. he settlement bright yellow material on the stairs, they opportunity to develop the case under a funds will be deposited into trust become very slick. Metro’s lawyers tried T component-parts theory. his case will be accounts for the children until they turn to prove that this was impossible, but the watched closely by safety advocates. A 18. Hendricks County probate judge jury didn’t buy their argument. Lori Source: Lawyers USA Online has approved the settlement. A H. skell represented the Plaintiff in the Source: Indystar.com case and did a very good job. Source: SeattlePI.com www.JereBeasleyReport.com 25 WomAn sues google AFTer PArk CiTy An Enterprise company official said in of Grassini and Wrinkle, represented the ACCidenT a deposition that the company had no parents and they did a ver y good plans to change policies regarding job. T hese lawyers are to be com- A Los Angeles-area woman has filed suit recalled cars in its fleets. Raechel Houck, T mended. hey stayed the course and against an individual and Google alleging 24, rented a 2004 Chrysler PT Cruiser at didn’t allow Enterprise to wear them and that Google Maps led her onto a danger- an Enterprise location for herself and Jac- their clients down over the 5 year long ous Park City roadway where she was queline, her 20 year old sister. Daimler legal battle. It’s a shame that Enterprise struck by a car. In the lawsuit filed in U.S. Chrysler sent out safety recall notices for put this family though such an ordeal District Court for Utah, the Plaintiff 435,000 PT Cruisers from 2002 through when it knew all along they were at fault Lauren Rosenberg states that on January 2005 one month before this rental and caused two young women to be trag- 19, 2009, she sought instruction from occurred. he notice said the power T ically killed. Google Maps on her Blackberry for direc- steering hose on the recalled vehicles Source: MercuryNews.com T tions to walk from 96 Daly Ave. o 1710 could leak, resulting in a fire. Prospector Ave. in Park City. Enterprise records showed the PT According to the suit, Google Maps Cruiser the Houck sisters rented had not directed Rosenberg along Deer Valley been repaired. Neither was it grounded. XX. Drive, which is State Route 224, in an area In fact, the vehicle had been rented four ARBITRATION “where vehicles travel at a high rate of speed and [is] devoid of pedestrian side- T times since the recall. he manager of UPDATE Enterprise’s Northern California area, walks.” The suit states: “Google undertook which included the location where this the duty to exercise reasonable care in rental took place, claimed that before the providing safe directions to patrons of its Congress TAkes mAJor sTeP ToWArd accident, he was not aware the PT ending ForCed ArBiTrATion Google Maps service. [But] Google failed Cruiser was a recalled vehicle. But, he did to warn Plaintiff Rosenberg of said admit that Enterprise rented recalled Public Citizen was instrumental in known dangers.” vehicle on a nationwide basis. getting language limiting forced arbitra- The Plaintiff claims that a Salt Lake The Houck sisters were on a state tion put in the Wall Street reform bills in County resident was driving an automo- highway and were returning from their T the House and Senate. he language bile southbound in a “negligent” manner mother’s home in Ventura when the PT authorizes the new Consumer Financial and struck her, “causing her to suffer Cruiser was involved in a collision with a Protection Bureau to ban forced arbitra- severe physical, emotional, and more than T tractor-trailer unit. he rented vehicle tion clauses in consumer contracts with T $100,000 in mental injuries. his case burst into flames and the two sisters lost financial services providers like banks, will be watched closely due to the their life. It was learned that Raechel credit card companies, payday lenders involvement of Google as a Defendant. Houck lost steering ability because of a and mortgage lenders. Similar language is Many people use Google for travel infor- power-steering fluid leak. Even though now being used by the Securities and mation. Enterprise blamed the crash on Raechel’s Exchange Commission. Source: Salt Lake Tribune driving, their lawyers offered the parents Because the House and Senate bills $3 million to settle their case if they have similar provisions on forced arbitra- would keep the matter confidential. he T tion, there is every reason to expect that Jury AWArds $15 million in WrongFul parents refused, saying they “didn’t want they will be included in the final bill that deATh CAse AgAinsT enTerPrise CAr Enterprise to silence” them. Sean Kane of President Obama signs into law. Hope- renTAl Safety Research & Strategies in Rehoboth, fully there won’t be eleventh-hour Massachusetts, a company that examines attempts by the big banks and the U.S. A jury has awarded $15 million to the vehicle safety issues, had this to say about Chamber of Commerce to strip the provi- parents who filed a wrongful-death recalls and Enterprise’s duty: sions. So far it appears Public Citizen has lawsuit against Enterprise Rent-A-Car of won a major battle in this war. San Francisco after their daughters, Any recall is a safety-related recall. In a related development, the U.S. Raechel and Jacqueline Houck, died in a It needs to be handled before the Supreme Court granted certiorari last fiery motor vehicle crash in 2004. Enter- customer gets a car. It shouldn’t be week in AT&T Mobility v. Concepcion. In prise, the nation’s largest rental car the consumer’s responsibility. It this case, the Court will decide whether company, and its corporate parent, fought should be the company’s responsi- lower courts can continue to strike down the lawsuit for five long years, playing bility. That’s what missing in this A class-action bans as unfair. T&T argues hardball. Finally, just before trial of the equation. that the Federal Arbitration Act preempts case was to start, the Enterprise defen- This case revealed some very bad such rulings. Public Citizen Litigation dants admitted fault and said “their negli- conduct. Renting recalled vehicles to Group represents the Plaintiff and will gence was the sole proximate cause of folks and letting them run the risk of argue before the Supreme Court—for the the fatal injuries.” Up to that point, the being badly injured or killed is intolera- 57th time in its history—this fall. his case T defendants had been blaming Rachael ble. Hopefully, this company has learned a could preserve or sharply limit corpora- Houck, the driver of the rented vehicle. lesson and will change its policy. Larry tions’ use of class-action bans in con- Grassini of the Woodland, California firm sumer and employment contracts. 26 www.BeasleyAllen.com u.s. suPreme CourT grAnTs revieW oF ARBITRATION WILL NO LONGER FdA reQuires liver-inJury WArning on ClAss ACTion WAiver CAse BE USED TO RESOLVE NEW DISPUTES: WeighT-loss drugs We are removing the Arbitration The U.S. Supreme Court has agreed to sections from your Credit Card The U.S. Food and Drug Administration review a case that will decide whether Agreement. is requiring a new warning about liver the Federal Arbitration Act (FAA) pre- injury to be placed on the weight-loss empts state court decisions holding that While this is a welcomed change in drugs Xenical and Alli. Xenical is a pre- a class action waiver in a consumer arbi- policy, I really am not sure what brought scription weight-loss drug made by tration agreement is unconscionable or this change on. I can only assume Bank of A Roche Holding AG. lli is an over-the- otherwise violates state law. In the case America now realizes that consumers counter version of the same drug mar- (AT&T Mobility LLC v. Concepcion), the don’t like forced arbitration. keted by GlaxoSmithKline PLC at a lower U.S. Court of Appeals for the Ninth T dose. he FDA said the warning is based Circuit affirmed the district court’s denial on rare reports of liver injury associated of AT&T’s motion to compel arbitra- XXI. with the products. From April 1999 to T tion. he Ninth Circuit agreed with the August 2009 the FDA said it received 12 district court’s conclusion that AT&T’s HEALTHCARE reports of liver injury associated with arbitration agreement was unconsciona- ISSUES A Xenical from outside the U.S. nd one ble under California law because it A U.S. report associated with Alli. mong required customers to arbitrate small-dol- those reports, two people died and three lar consumer claims on an individual viTAmins should Be regulATed people needed a liver transplant. basis. It also rejected AT&T’s argument Source: Associated Press that California’s unconscionability law Vitamins and mineral supplements was expressly or impliedly preempted by sales bring in billions of dollars annually the FAA. T in the United States. he industry has Poor inFeCTion ConTrol Found AT mAny This action by the Supreme Court done a tremendous job making the con- surgery CenTers follows its ruling on April 27, 2010, in suming public believe that these supple- Stolt-Nielsen, S.A. v. AnimalFeeds Int’l ments are both necessary and safe. Many A new federal study finds many same- Corp., 08-1198, that the FAA prohibits folks take supplementar y vitamins day surgery centers—where patients get class procedures from being imposed on because they have been convinced these such things as foot operations and pain parties whose arbitration agreement is vitamins are safe ways to ensure good injections—have serious problems with silent on that issue. It also closely follows health. What the manufacturers and infection control. Failure to wash hands, the Court’s May 3, 2010, order (No. sellers of these products don’t tell the wear gloves and clean blood glucose 08-1473) granting certiorari in In re public is that some of the potential side meter s were among the reported American Express Merchants Litigation, effects associated with vitamins are very breaches. Clinics reused devices meant 554 F.3d 300 (2d. Cir. 2009), vacating the serious. Vitamins can cause toxicity when for one person or dipped into single-dose Second Circuit opinion, which invali- taken in excessive doses. hey also can T T medicine vials for multiple patients. he dated a class action waiver under the interact with prescription and over-the- findings, appearing in last month in the federal antitrust laws, and remanding the counter medications. If you would like Journal of the American Medical Associa- case to the Second Circuit for reconsider- more information on this subject, I tion, suggest lax infection practices may ation in light of Stolt-Nielsen. suggest you go to www.worstpills.org. Dr. pervade the nation’s more than 5,000 Federal and state courts throughout Sidney Wolfe, who is with Public Citizen, T outpatient centers. his is the first report the country are sharply divided with is also an excellent source of Informa- from a push to more vigorously inspect respect to the validity of class action T tion. here is an excellent article in the U.S. outpatient centers, a growing waivers. his case presents an important T February 2010 Annals of Pharmacother- segment of the health care system that issue to the Supreme Court and that is apy on whether vitamins should be regu- annually performs more than 6 million whether an express class action waiver in lated as drugs. procedures and collects $3 billion from a consumer arbitration agreement can be Medicare. Procedures performed at such enforced under the facts. centers include exams of the esophagus, lABels urged For Food ThAT CAn Choke colonoscopies and plastic surgery. Children In the study, state inspectors visited 68 BAnk oF AmeriCA TAkes ArBiTrATion ouT centers in Maryland, North Carolina and oF CrediT CArds The American Academy of Pediatrics, T Oklahoma. hey used a new audit tool the nation’s leading pediatricians’ group, A focusing on infection control. t each Any person who has a credit card has has called on the Food and Drug Adminis- site, inspectors followed at least one an arbitration agreement, but most Ameri- tration to require warning labels on foods patient through an entire stay. Inspec- cans don’t know it. Bank of America gave that are known choking hazards, and to tions weren’t announced ahead of time, notice to its credit card customers last T evaluate and monitor food for safety. he but staff was notified once inspectors month that it will no longer require arbi- group wants food to be subject to as T arrived. he new study found 67% of the tration. he company said in a written T much scrutiny as toys. centers had at least one lapse in infection notice: Source: New York Times control and 57% were cited for deficien- www.JereBeasleyReport.com 27 T cies. he study didn’t look at whether safety equipment. Kiddie pools were Between 1999 and 2001, and without any of the lapses actually led to infections most likely to be the germiest, from fecal the approval of Massachusetts environ- A in patients. few centers in the study matter and improper chlorination. he T mental regulators, Exxon Mobil made hadn’t been inspected in 12 years. State report is based on more than 120,000 changes to the vapor collection and agencies have the main responsibility for inspections of public swimming pools in recovery system used to control emis- making sure centers comply with federal 2008, including those in parks and hotels. sions of volatile organic compounds at its standards, but states often fall behind. It’s the largest study of the topic ever Everett terminal. Changes included the States now are required to use the new done by the Centers for Disease Control removal of certain emissions controls audit tool to inspect centers participating T and Prevention. he new study is pub- required under state air permits. Exxon in Medicare. Of surveys using the tool so lished by CDC in the Morbidity and Mor- Mobil also failed to control VOC emis- far, 61% of centers have been cited for an tality Weekly Report. sions during the degassing of a storage infection control deficiency. Source: Associated Press T tank in Everett in 2008. he state also Source: Associated Press alleged that Exxon Mobil did not prop- erly control emissions of VOCs from gaso- l i n e t a n k t r u ck s d u r i n g l o a d i n g FdA PosTs sAFeTy inFormATion on neW XXII. operations and failed to comply with drugs ENVIRONMENTAL emissions monitoring, repair and report- The Food and Drug Administration has CONCERNS ing requirements at both locations. Bulk terminals are facilities where large quanti- announced that it will begin posting ties of gasoline are stored before distribu- safety data on recently approved drugs Our firm’s Toxic Torts Section has a tion to gas stations. and biologics on its website in an effort number of very important projects Source: Associated Press to better educate patients and health care ongoing relating to environmental con- T professionals. he agency released safety T cerns. he BP oil spill and the TVA litiga- summaries on 26 approved drug prod- T tion are two of our major projects. he ucts based on reports from manufactur- firm has dedicated adequate resources to XXIII. ers, consumers and others who have these two projects so we can get the job THE CONSUMER used products since they were approved to market. he summaries include safety T done. Rhon Jones heads up the section. In addition to Rhon, the following lawyers CORNER problems and adverse events that have work in the section: Chris Boutwell, been reported in association with each David Byrne, John Tomlinson, Meggan more ThAn 2 million CriBs reCAlled drug, as well as any actions or surveil- Huggins, Parker Miller, Rick Stratton, lance activities the FDA has undertaken Brantley Fry, and Chenoa Vick. If you More than 2 million cribs from 7 differ- in response to the reports. would like more information about the ent companies were recalled last The Food and Drug Administration work of this section, you can contact T month. his came because of concerns Amendments Act of 2007 (FDAAA) Rhon Jones at 800-898-2034 or by email that babies can suffocate, become requires the FDA to prepare the safety at Rhon.Jones@beasleyallen.com. trapped or fall from the cribs. Most of the summaries within 18 months after a cribs were drop-sides, which have a side product’s approval or after it has been rail that moves up and down so parents used by 10,000 patients, whichever mAssAChuseTTs reAChes $2.9 million can lift children from them more comes later. he information that the T seTTlemenT WiTh exxon moBil T easily. hat movable side, however, can summaries are based upon comes from malfunction or detach from the crib, cre- reports made to the FDA’s Adverse Event A Exxon Mobil Corp. nd two affiliates ating a dangerous gap where babies’ Reporting System, the Vaccine Adverse have agreed to pay a $2.9 million civil heads can become trapped, leading to Event Reporting System maintained by penalty to resolve allegations that the suffocation or strangulation. the FDA and the Centers for Disease company violated Massachusetts air pol- The companies involved in the recall Control and Prevention, periodic safety T lution laws. he settlement requires were Evenflo, Delta Enterprise Corp., information manufacturers submit, Exxon Mobil to reduce gasoline vapor Child Craft, Jardine Enterprises, LaJobi, medical literature and data from ongoing emissions by updating and improving air Million Dollar Baby and Simmons Juve- studies. pollution control systems at its bulk gaso- nile Products. So far, no deaths have been Source: Lawyers USA Online line terminals in Everett and Springfield. linked to the recalled cribs. But there Laurie Burt, commissioner of the state were more than 250 reports of drop-sides Department of Environmental Protection, detaching or failing and at least 16 entrap- sWimming Pools Closed For A good observed: ments of infants. In one case, a child was reAson “Big oil can no longer marginalize found unconscious and later hospitalized. environmental compliance while In the announcement from the Con- A new government report shows one increasing their gasoline sales and sumer Product Safety Commission, all in eight public swimming pools were distribution in Massachusetts. seven companies recalled drop-side cribs. shut down two years ago because of dirty water or other problems, like missing 28 www.BeasleyAllen.com Delta and Child Craft also acknowledged ing of cribs has been outsourced to While we are not involved in the Penn- problems with fixed-side cribs. foreign factories and as a result, in trying sylvania case, our firm is involved in other These cribs and many others con- to drive costs down and production litigation involving the very same defect. structed in a manner that babies and very levels up, they have substituted hardware If you need more information on this small children can be trapped are very that is just not as durable.” Don Mays is subject, contact Chris Glover at 800-898- dangerous. Hopefully, the CPSC will stay the senior director of product safety at 2034 or by email at Chris.Glover@beasley T on top of this situation. he risks are far Consumers Union, publisher of Con- allen.com. too great to allow the manufacturers to sumer Reports. He believes the cribs “are Source: Lawyers USA Online continue using the drop-side design inferior with regard to durability and infe- without remedying the safety issues. rior with regard to performance.” The CU Source: Associated Press lab tests about 20 cribs a year, and has TWo hoT Fuel CAses geT ClAss been testing cribs for more than 20 years. CerTiFiCATion sTATus Older cribs had metal rods that guided lAWmAkers should BAn droP-side CriBs the drop-side up and down. Newer cribs Recently, two “hot fuel” lawsuits in have plastic tracking guides for the drop- Kansas became the nation’s first to We have written on crib safety in side that Mays says is more prone to receive certification as class actions. U.S. several issues over the past year. his has T breaking. When the hardware malfunc- District Judge Kathryn Vratil of Kansas been a very active area of concern. Now tions, the drop-side rail can detach par- City, Kansas, ruled that the two suits meet legislative bodies are looking at the tially from the crib. hat creates a T the class standards to represent not just problem. Cribs with a side rail that moves dangerous “V”-like gap between the mat- the few individuals named in the suits, up and down so parents can lift children tress and side rail where a baby can get but other, unnamed consumers affected from them more easily would be banned caught and suffocate or strangle. Manu- T by the hot-fuel practice. his is a signifi- under legislation aimed at reducing infant facturers also have seen cases where cant ruling and a major step towards res- deaths. Sen. Kirsten Gillibrand, (D-NY), parents installed the drop-side improp- olution of the entire litigation, which has introduced a bill to outlaw the sale erly, sometimes upside down, or they spans nationwide and encompasses 26 and manufacture of the cribs following have reassembled a crib for a second or “hot” states. the deaths of at least 32 infants and tod- third child with some of the screws or As we have reported in previous issues, dlers who suffocated or were strangled in other hardware missing—which can also the oil industry transfers motor fuel drop-side cribs since 2000. he cribs are T lead to detachments of the drop-side. within the industry based on the U.S. suspected in another 14 infant fatalities Source: Associated Press Petroleum Gallon—an established stan- during that time. Rep. Joe Crowley, dard that measures motor fuel based on a (D-NY), has introduced similar legislation T temperature of 60 degrees. he purpose in the House. ClAss ACTion Filed AgAinsT Ford over of the standard is to compensate for loss The industr y has already started minivAn deFeCT in energy that occurs in each 231 cubic- phasing out drop-sides and big retailers inch gallon as the fuel heats. However, such as Babies R Us and Wal-Mart have Owners of Windstar minivans are suing the oil industry has consistently fought taken them off sale floors. Yet there are Ford Motor Company, alleging that the against providing the same benefit to still plenty for sale on the Internet and rear axles of their vehicles have a design consumers, who are purchasing fuel in being used in homes and day cares. he T defect that can cause them to fail. It’s hot states where the fuel’s temperature Consumer Product Safety Commission, contended that the 1999 to 2003 models can exceed 100 degrees. Based on a which regulates cribs, has warned about of the Ford Windstar minivan have a series of 2006 stories and a Congressional the problem. A nd its chairman, Inez design defect that traps water and other study, it has been estimated that the Tenenbaum, has pledged to ban the man- corrosive agents inside the rear axle, industry practice of selling hot fuel costs ufacture and sale of cribs by the end of T rusting it from the inside out. he axle consumers $2.3 billion annually. the year with a new standard that would can then split apart during operation, Judge Vratil said if the Plaintiffs prevail make fixed-side cribs mandatory. It could putting the occupants of the car at a risk on the liability and injunctive portions of be several months into 2011 before the T of severe injury and even death. he suit their claims, she would consider whether standard becomes effective. Sen. Gilli- was filed in U.S. District Court for the T to certify a class for damages. he Defen- brand hopes to accelerate efforts for a Eastern District of Pennsylvania. dants in the Kansas case include BP, ban, whether it be from Congress or the The named Plaintiff, Aaron D. Martin, Casey’s General Stores, Chevron, Circle K, CPSC. contends that the axle of his 2001 Wind- Citgo, ConocoPhillips, 7-Eleven, Shell Oil, More than 7 million drop-side cribs star minivan broke due to internal rust Valero, Kum & Go, QuickTrip and Wal- have been recalled in the past five damage while he was driving in May. It’s Mart. T years. he industry says drop-side cribs alleged that more than 949,000 Windstars Beasley Allen lawyers Rhon Jones and that haven’t been recalled are safe as long were manufactured with a defective Parker Miller, who are in our firm’s envi- as they are used and assembled properly. T axle. he law firm of Golomb & Honik of ronmental section, have played a major Consumer advocate Don Mays says drop- Philadelphia filed this suit, claiming that role in the progression of the hot fuel liti- sides these days are not as sturdy as those Ford breached its implied warranty of gation. If you want more information, of the past. He says that “the manufactur- merchantability and its express warranty. please contact Rhon Jones and Parker www.JereBeasleyReport.com 29 Miller at 800-898-2034, or by email at always been rare to die this way. pool safety advocates to make presenta- Rhon.Jones@beasle yallen.com and But the bigger point is that it’s pre- tions to the commission. On behalf of the Parker.Miller@beasleyallen.com. ventable and it’s a violent and hor- pool industry, pool equipment manufac- rible way for a small child to die. turer Leif Zars argued that redesigned How many kids have to die or be drain covers were enough to prevent A BAd deCision relATing To Pool drAin maimed in that way for the CPSC? pool suction accidents. When I learned sAFeTy lAW that a majority of the CPSC commission- Members of Congress aren’t the only ers agreed with the pool industry’s posi- I really thought tremendous progress ones putting pressure on the CPSC. On tion I was shocked. Now public and hotel had been made in 2007 when Congress June 9th, Mrs. Baker signed a letter from pools won’t have to install a secondary passed legislation designed to make the group Safe Kids to Robert Adler, one anti-entrapment system in order to be in swimming pools safer. Now four of the three commissioners who voted to compliance with the Pool Safety Act’s members of Congress have sent letters of interpret the law, urging him to change clear wording of “unblockable drain.” Pool protest to the federal commissioners his vote. Paul Pennington of the Pool safety advocates argue that larger, who they say weakened that safety law Safety Council has also launched an rounded drain covers are not enough and which was meant to prevent deaths from on-line petition that targets Commis- I agree with them. Rep. Wasserman pool-drain suction. he commissioners T T sioner Adler. he letters signed by the Schultz, who introduced and pushed for were asked in the letters to reverse their four members of Congress went to Adler the passage of the Pool Safety Act, had decision. he letters, which were identi- T and Anne Northup and Nancy Nord, the this to say: cal, stated in part: two other commissioners who voted to reinterpret the Act. This ruling leaves children’s lives We are sorely disappointed to learn The vacuum effect in pool drains is only as safe as the first layer of pro- that [the Consumer Product Safety powerful enough to hold swimmers, tection, which leaves them vulnera- Commission] has chosen to inter- especially children, to the bottom of a ble to human error and mechanical pret the law in the most egregious pool. Contact between human skin and a failure, with no further layer of pro- and narrow way possible, eliminat- flat pool drain can create suction equal to tection. ing the requirement for pools and hundreds of pounds of pressure. In one spas to be equipped with back-up horrific instance, four adult men were The CPSC’s decision even went against systems. The swimming season is unable to pull a young girl from the grasp the position of Chairman Tenenbaum, upon us. We are writing to you to of a deadly drain. Swimmers can die from who stated: urge you in the strongest possible drowning or evisceration. From 1999 to In my role as Chairman I am not way to reverse these rulings. 2008, according to CPSC data, there were willing to gamble the safety of our The letters, signed by Democratic Rep- 83 reports of suction entrapment, includ- children in the hope that drain resentatives Debbie Wasserman Schultz ing 11 deaths and 69 injuries. Experts say covers throughout the nation that of Florida and James Himes and John the number of deaths and injuries may be are commonly removed for mainte- Larson of Connecticut, and Republican much higher, however, because police nance always will be reinstalled Frank Wolf of Virginia, are the latest devel- and medical records don’t always list spe- correctly or that a missing or opment in a pool-season push to get the cific causes for drowning. broken drain cover will be immedi- CPSC to enforce what safety advocates In December 2007, in a rare bipartisan ately noticed by an observant pool consider to be the original intent of a law vote, Congress passed the Virginia operator who will then shut down passed in 2007 to prevent deaths from Graeme Baker Pool And Spa Safety Act to the pool before any children are at drain suction. In March, the CPSC voted provide basic drain safety standards and risk. to interpret the Virginia Graeme Baker layers of backup protection from danger- ous drain suction for the nation’s public Hopefully, the Commission will reverse Pool and Spa Safety Act, named for a and hotel pools and hot tubs. he law T what I consider to be a very bad decision seven-year-old who died in a pool-drain mandates that drains in about 300,000 of and will follow the law as Congress incident in 2002, to no longer require the nation’s public and hotel pools and T intended. he public interest—and safety back-up anti-entrapment systems in the hot tubs be covered with larger, rounded concerns—in combination, should cause drains of as many as 150,000 public and covers that do not create suction, and the commissioners who weakened the T hotel pools and hot tubs. hat action is that there be a back-up mechanical intent of the Act to change their votes. indefensible and should be reversed. system installed in drains to prevent Since the summer months are here, time The decision outraged pool-safety suction in those pools that have a single is of the essence. advocates and the parents of children A killed by pool-drain suction. fter Nancy A main drain. s many as half of the pools Source: ABC News Baker, mother of Virginia Graeme Baker, and hot tubs covered by the Pool Safety read comments from the commissioners Act have single main drains. who voted to reinterpret the law, she had New CPSC chairwoman Inez Tenen- Johnson & Johnson FACes lAWsuiTs And baum asked for a review of the Pool FederAl ProBes over reCAlls this to say: Safety Act shortly after taking the helm of They say the problem [of pool-drain the commission last year. She called on On April 30th, Johnson & Johnson faced suction] is small and rare. It’s representatives of the pool industry and a recall of more than 136 million bottles 30 www.BeasleyAllen.com of pediatric Tylenol, Motrin, Benadryl and alties to settle a case in which the infant in a curled position bending the Zyrtec due to manufacturing problems. company was accused of overcharging chin toward the chest, the airways can be While so far investigators haven’t linked California customers and neglecting r e s t r i c t e d , l i m i t i n g t h e o x y ge n the defects in the medication to any T animals in its stores. he settlement has T supply. he baby will not be able to cry health problems, the U.S. Food and Drug T received court approval. he case was for help and can slowly suffocate. CPSC Administration said the division of the prosecuted by the San Diego County Dis- has determined that a mandatory stan- company responsible for quality control trict Attorney’s Office, the San Diego City dard is needed for infant sling carriers. at the Pennsylvania-based plant, McNeil Attorney’s Office and district attorneys While a mandatory standard is being Consumer Healthcare, had a pattern of from Marin, Los Angeles, San Mateo and developed, CPSC says its staff is working violations and delayed reporting of prob- Santa Barbara counties. It was filed as a with ASTM International and concerned lems to the FDA. result of state and county inspections of companies such as Infantino to quickly While Johnson & Johnson’s troubles Petco stores around the state between develop an effective voluntary standard have drawn less attention than those of A 2005 and 2008. ccording to prosecu- for slings. Currently there are no safety companies like BP and Toyota Motor tors, an investigation revealed that Petco standards for infant sling carriers. hat T Corp., the company is facing legal prob- failed to remove expired price tags from must be changed and effective standards T lems on several fronts. wo class actions store shelves and did not instruct its promulgated and enforced. have been filed against the McNeil divi- employees on weighing and charging for Source: CPSC Release sion—one in the Northern District of Illi- bulk sale items such as dog biscuits. nois and the other in the Eastern District The court order requires each Petco of Pennsylvania—trying to force it to store to deduct $3 from the lowest adver- BAnk oF AmeriCA seTTles TelemArkeTing broaden the recall and offer cash refunds tised or posted price of the item if a cus- lAWsuiT instead of coupons for new products. tomer is overcharged, prosecutors said. If Shareholders filed suit against Johnson & the item is $3 or less, the customer would Bank of America has agreed to pay the Johnson in New Jersey, alleging that the receive one of the items free. Petco must state of Missouri $195,000 to settle allega- company breached its good-faith duty by also conduct regular pricing audits, tions that it violated telemarketing failing to act after the FDA had expressed according to the settlement. Inspections A laws. ttorney General Chris Koster said earlier concerns about quality control of Petco stores in Marin County by some Missouri residents whose phone and manufacturing practices at the plant. humane society officials revealed that numbers are on the do-not-call list com- Meanwhile, the FDA is considering some animal habitats were not being plained about receiving unwanted calls criminal penalties against McNeil. he T properly cleaned and maintained. In from Bank of America and its affili- House Committee on Oversight and Gov- some instances, sick animals were not T ates. he Attorney General said his office ernment Reform, which has held a identified and removed from the sales has reached an “assurance of voluntary hearing on the recalls, is still checking floor, authorities said. compliance” with Bank of America that into the issue. Edolphus Towns, (D-NY), As a condition of the settlement, Petco has been filed in St. Louis Circuit Court. the Committee Chair, plans to introduce agreed to conduct daily animal and Besides paying the state, Bank of America legislation giving the FDA mandatory habitat inspections and comprehensive will maintain a comprehensive do-not- recall authority. But getting much done employee training, and to provide prompt call program for its telemarketers. involving drug companies in Congress is veterinary care for sick or injured animals. Source: Associated Press never easy. Johnson & Johnson has a Prosecutors said Petco paid more than steady roster of Washington lobby- $850,000 to resolve a case involving ists. he company’s lobbying expenses T similar allegations in 2004. he company T FdA Fines red Cross $16 million For were $2.1 million in the first quarter of operates 23 stores in San Diego County sAFeTy lAPses 2010, before the recall, and nearly $6.4 and about 160 throughout the state. million in 2009. Its Washington office Source: Signonsandiego.com The Food and Drug Administration has includes 14 in-house registered lobbyists. fined the American Red Cross $16 million Eleven outside lobbying firms have regis- for violating blood safety laws and other tered Johnson & Johnson as a client, A WArning messAge From The CPsC regulations. Fortunately, it appears no including some of the real heavy patients were harmed and the blood weights. ll of these lobbyists are being A The CPSC issued a warning on March T supply is still safe. he Red Cross was paid very well. 12, 2010 about sling carriers for babies. fined for violating federal law during col- Source: Law.com Slings can pose two different types of suf- lection and processing of blood in 2008 focation hazards to babies. In the first few A and 2009. mong the problems were mis- months of life, babies cannot control labeling of blood, failing to record com- PeTCo PAys $1.75 million in their heads because of weak neck plete information about donors and overChArging PenAlTies muscles. he sling’s fabric can press T T potential air contamination. he FDA, against an infant’s nose and mouth, block- which periodically inspects Red Cross Petco Animal Supplies, which has many ing the baby’s breathing and rapidly suf- operations, notified the charitable organi- locations throughout San Diego County, focating a baby within a minute or zation last October of the failure to inves- California, has paid $1.75 million in pen- two. dditionally, where a sling keeps the A tigate and identify problems and take www.JereBeasleyReport.com 31 preventive action during its blood pro- Wranglers from the 2006 through gm reCAlling 1.5 million vehiCles cessing operations. 2010 model years due to a potential over Fire ConCerns With four million blood donors, the brake fluid leak. It also is recalling Washington, D.C.-based organization is 284,831 Dodge Grand Caravan and General Motors is recalling about 1.5 the largest supplier of blood, plasma and Chrysler Town & Country minivans million vehicles worldwide to other blood products in the United from the 2008 and 2009 model years address a problem with a heated States. he $16 million fine is only the T because a wiring problem can cause windshield wiper fluid system that latest penalty assessed against the organi- a fire inside the sliding doors. T could lead to a fire. he recall affects zation. he FDA has already sent 12 T several pickup trucks, sport utility letters to the American Red Cross and Neither problem has caused any vehicles and passenger car models imposed over $21 million in fines since crashes or injuries, according to from the 2006 to 2009 model years. 2003, not including this most recent Chrysler. On the Jeeps, the front GM conducted a similar recall in fine. ccording to the FDA, the Red Cross A inner fender liners can rub against 2008 but came across new reports of has taken significant steps to correct the the brake fluid tubes and cause a fires in vehicles that had been fixed. problems. leak. NHTSA says the leak could lead to a partial brake loss. he minivans T GM plans to disable the heated Source: Reuters washer fluid system module that can have improperly placed wires that can come into contact with could lead to fires. GM will pay sliding door hinges. hat could cut T owners and those leasing vehicles XXIV. through the insulation and in some $100 since the feature is being dis- abled. GM says there are no known RECALLS UPDATE cases cause a fire inside the door, injuries or crashes reported. GM says according to Chrysler and NHTSA. it is aware of five fires. Nearly 1.4 There have been a number of product Chrysler will notify owners and million vehicles are in the U.S. More recalls which will be reported in this dealers about the repairs, which will than 100,000 vehicles are in Canada, issue. he following are some of the more T T be made free of charge. he recall Mexico and elsewhere. significant recalls since those reported in T was to start in June. he Wranglers our last issue. affected by the recall were made from May 15, 2006 through August 9, BmW issues reCAll T 2010, according to NHTSA. he mini- vans were made from February 2007 BMW has recalled vehicles in the volvo reCAlls 60,000 TruCks United States for defects that could through September 2007. Volvo Trucks North America is recall- cause fires. BMW recalled 1 Series ing more than 60,000 tractor trailer luxury cars for the model years 2008 trucks to address potential steering nissAn To reCAll 48,000 TruCks to 2011 for a flaw in front-seat safety- problems. NHTSA says there have And suvs T belt retractors that could ignite. he been 23 reported crashes and two notice didn’t say how many vehicles T injuries. he safety recall affects Nissan Motor Co. is recalling 48,700 are affected. certain VNL and VNM trucks from trucks and SUVs for problems with a the 2001 to 2006 model years. he T suspension part that could lead to a government says a ball socket could rough ride. It will cover some, but volksWAgen reCAlls rouTAn separate in the steering system, not all, 2010 Nissan Armadas, Fron- minivAns causing the truck to completely lose tiers, Titans, Pathfinders and Xterras and Infiniti QX56 models. T he Volkswagen AG is recalling nearly T steering control. he steering loss 16,000 Routan minivans to address could result in a crash. Volvo dealers Armada, Titan and Infiniti QX56 are produced at the company’s Canton fire concerns involving latches on will inspect and repair the compo- T the sliding doors. he German auto- nents in the steering if neces- T plant. he Frontier, Pathfinder and Xterra are produced at its Smyrna, maker says the recall affects 2009 T sary. he recall is expected to begin minivans, which are jointly devel- in mid August. Owners can contact T Tenn., plant. he problem centers on a lower suspension control link, oped with Chrysler LLC and built at Volvo Trucks at (800) 528-6586 or Chrysler’s Windsor, Ontario, plant. (800) 528-6586. which may not have been welded properly. It could cause the bushing Chr ysler has recalled vehicles collar to crack, leading to a rough recently—as reported in this issue— and noisy ride. So far no accidents dealing with similar problems. Volk- Chrysler To reCAll ABouT 600,000 swagen spokesman Kerry Christopher JeePs, minivAns have been reported. said the automaker was aware of “a Chrysler is recalling nearly 600,000 couple of incidents” indicating over- minivans and Jeep Wrangler s heating in the minivans and the because of brake or wiring problems company contacted Chrysler when that could create safety issues. he T it received the reports. No injuries or automaker is recalling 288,968 Jeep crashes have been reported. 32 www.BeasleyAllen.com PFizer reCAlls iv drugs ThAT The smell was caused by contamina- tion on how to locate the date code Could kill PATienTs tion from a chemical byproduct of a on your tree step. substance used to treat wooden Pfizer is recalling intravenous drugs transport pallets, the company with f loating matter in them, said. lthough risk of serious medical A ikeA reCAlls Blinds due To risk warning they could potentially kill problems was remote, the company oF sTrAngulATion weakened patients, after U.S. regula- said, people should stop using the tors had warned about the worries products. Refund requests can be IKEA Home Furnishings, of Con- T prior to the recall. he products— made using a company Web site, shohocken, Pennsylvania, has issued made by Claris Lifesciences and dis- mcneilproductrecall.com, or toll-free a recall of Roller, Roman, and Roll-Up tributed in the U.S. by Pfizer—are number: 888-222-6036. T blinds. his recall expands previous the antibiotics metronidazole and recalls of Roman and roller blinds ciprofloxacin and a drug used to McNeil is already under scrutiny by and has added its name to the retail- prevent nausea and vomiting caused the House Committee on Oversight ers joining the voluntary recall by surger y and chemotherapy, and Government Reform over a announced in December 2009 of ALL named ondansetron. recall in April of an estimated 136 R o m a n s h a d e s a n d r o l l - u p million bottles of liquid pediatric T blinds. his recall includes about The Food and Drug Administration Tylenol, Motrin, Benadryl and Zyrtec. 3,360,000 of the binds. A bout warned doctors and hospitals not to 790,000 Roman blinds were recalled use the drug because of worries the in November 2008 and August 2009 floating matter meant the products PrimAl vAnTAge exPAnds reCAll oF and about 533,000 Roller blinds weren’t sterile. Pfizer says non-steril- PlAsTiC Tree sTePs were recalled in October 2009. ity in intravenous drugs could be fatal for patients with weakened Primal Vantage Co., Inc., of Randolph, The Roller Blinds: Strangulations immune systems. In addition to the New Jersey, has recalled about can occur if the blind’s looped bead recall, Pfizer is halting its distribution 17,800 Ameristep Plastic Strap-On chain is not attached to the wall or of all sterile injectable products and T Tree Steps. he plastic portion of the the floor with the tension device IV bags licensed from Claris. steps can break, posing a fall hazard provided and a child’s neck becomes to the user. Primal Vantage has entangled in the free-standing loop. received six complaints of step Johnson & Johnson uniT reCAlls breakage, including two reports of The Roman Blinds: Strangulations AddiTionAl over-The-CounTer consumer s being br uised and can occur when a child places his/ drugs cut. he product is a plastic tree step T her neck between the exposed inner that attaches to a tree via a nylon cord and the fabric on the backside The Johnson & Johnson unit whose of the blind or when a child pulls the strap and a large metal buckle. It is recall of liquid children’s Tylenol and cord out and wraps it around his/her used to climb a tree in order to hunt other pediatric medicines is under A neck. n additional hazard exists from an elevated position. Models Congressional investigation is recall- when the Roman blind has a contin- 105 and 155 both have either a ing additional over-the-counter uous looped bead chain that is not 10/08 or 12/08 date code, which is drugs. McNeil Consumer Healthcare, attached to the wall or floor, which stamped on the plastic portion of the Johnson & Johnson unit, is recall- poses a strangulation hazard to chil- the step. ing four lots of certain Benadryl dren. allergy tablets and one lot of Extra The Tree Steps were sold from Strength Tylenol gel pills. December 2008 through November The Roll-up Blinds: Strangulations 2009 at various outdoor and sporting can occur if the lifting loops slide off The company said in a statement the side of the blind and a child’s goods retailers nationwide as a that “the products were inadver- neck becomes entangled in the free- 3-step package in model 105 or as a tently omitted” from an earlier standing loop or if a child places his/ single step in model 155. Consumers recall—one preceding the children’s her neck between the lifting loop should stop using the tree steps drug recalls—involving medicines and the roll-up blind material. T immediately. hey should contact made at a company plant in Puerto Primal Vantage for details on how to CPSC and IKEA received a new Rico. Since last November, McNeil obtain a full refund. Consumers are report of a 1 ½-year-old boy in has recalled about 11.7 million asked not to return the product to Lowell, Mass., who suffered a near bottles of various Motrin products retail stores as refunds can only be strangulation in February 28, 2010. and about 6.3 million bottles of provided by Primal Vantage. For addi- On April 4, 2008, a one-year-old girl Tylenol Arthritis Pain caplets made at tional information, contact Primal in Greenwich, Connecticut, became that Puerto Rico plant, according to Vantage toll free at (866) 972-6168 entangled in the inner cord of an T the FDA’s Web site. he company or visit their website at www.trees- IKEA Roman blind and strangled. began the recall after receiving con- tandcustomerservice.com to print a CPSC and IKEA also received a sumer complaints about a moldy return form or for further informa- report of a two-year-old boy who suf- odor emanating from some products. www.JereBeasleyReport.com 33 T fered a near strangulation. he last target.com from February 2009 machine and make contact with a two incidents prompted previous through April 2010 for between $50 metal part on the washtub while the recalls. No incidents have been and $130. Consumers should imme- machine is operating, posing fire and reported for the Roll-up or Roller diately stop using the recalled shock hazards to consumers. GE is blinds. storage trunks and return them to aware of seven incidents in which any Target store for a full refund or flames escaped the units and caused This recall involves roller blinds that replacement product. For additional minor smoke damage. No injuries do not have a tension device information, contact Target at (800) T have been reported. his recall attached to the bead chain, all 440-0680, or visit their website at involves GE front-load washing Roman blinds and all roll-up www.target.com. machines without auxiliary water T blinds. he blinds were sold at IKEA heating. Model and serial numbers stores nationwide from January 1998 are listed in the chart below. Recalled through June 2009 for between $5 slings mAde By sProuT sTuFF washing machines were manufac- and $55. Consumers should immedi- reCAlled tured between December 2006 and ately stop using the roller blinds that T February 2010. he model and serial do not have a tension device The U.S. Consumer Product Safety numbers are located on the bottom attached to the chain, all Roman Commission has announced the right side and on the bottom door blinds and all roll-up blinds and recall of about 40 Sprout Stuff infant frame of the washers. return them to any IKEA store for a ring slings. CPSC advises consumers full refund. In a previous recall, IKEA to immediately stop using these The washing machines were sold at reminded consumers who have slings due to a risk of suffocation to department and various retail stores roller blinds with a tension device infants. CPSC and Sprout Stuff are nationwide from December 2006 attached to the bead chain to make aware of one report of a death of a through May 2010 for about $700. sure the tension device is installed tenS-day-old boy in the recalled sling Consumers should immediately stop into the wall or floor. If the con- in Round Rock, Texas in 2007. using the recalled washer, unplug it sumer has difficulty installing the from the electrical outlet and tension device, contact IKEA for The Sprout Stuff infant ring sling is contact GE for a free repair. Consum- additional information. For additional fabric/natural muslin and comes ers should not operate the washer information, contact IKEA toll-free at with or without a shoulder pad. he T until it has been repaired. For addi- (888) 966-4532 anytime, or visit their sling is worn by parents and caregiv- tional information, contact GE toll- website at www.ikea-usa.com. ers to carry a child up to two years free at (888) 345-4124 or visit the of age. “Sprout Stuff” is printed on firm’s website at www.geappliances. the back side of the tail’s hem. com. TArgeT reCAlls sTorAge Trunks Sprout Stuff sold the recalled infant due To sTrAngulATion hAzArd slings, which were made in the United States, directly to consumers mAyTAg reCAlls 1.7 million About 350,000 woven storage trunks between October 2006 and May dishWAshers have been recalled by Target Corp., 2007 for between $35 and $45. T of Minneapolis, Minn. he lid of the Sprout Stuff is directly contacting Maytag Corp. is recalling about 1.7 trunk can drop suddenly when known purchasers of the recalled million dishwashers because of a fire released, posing a strangulation infant slings. hazard. T he Consumer Product hazard to small children opening or S a fe t y C o m m i s s i o n , s ay s t h e reaching into the trunks. CPSC has Consumers should immediately stop company has received 12 reports of received two reports of injuries that using the recalled slings and contact electrical failures in the dishwasher occurred when the storage trunks’ Sprout Stuff to return the sling for a heating element that led to fires and lids suddenly closed on children, full refund. Contact Sprout Stuff toll- damage, including one kitchen fire including one report of an 18-month- free at (877) 319-3103 anytime, email that caused extensive damage. No old girl who reportedly suffered the company at sproutstuffrefunds@ injuries have been reported. brain damage when the trunk’s lid gmail.com or contact them by mail came down on the back of her neck at Sprout Stuff Refunds, P.O. Box 612, The recall includes Maytag, Amana, and pinned her throat against the Buda, Texas 78610. Do not attempt to Jenn-Air, Admiral, Magic Chef, Per- rim of the trunk. he recall involves T fix these carriers. forma by Maytag and Crosley brand 14 different models of the storage T dishwashers with plastic tubs. he trunks made of woven rattan, abaca recalled dishwashers were made or banana leaf with standard ge reCAlls FronT loAd WAshers with black, bisque, white, silver and T hinges. hey measure more than 1.1 due To Fire And shoCk hAzArds stainless steel front panels and sold feet in length, width and depth and at department and appliance stores GE Appliances & Lighting, of Louis- nationwide from February 2006 T are brown or natural color. he ville, Kentucky, is recalling about trunks were sold at Target stores through April 2010 for between 181,000 GE Front-Load Washing $250 and $900. CPSC advises con- nationwide and on the Web at www. A Machines. wire can break in the 34 www.BeasleyAllen.com sumers to immediately stop using told to stop using the glasses and pose a choking hazard to young chil- the recalled dishwashers and discon- visit www.mcdonalds.com/glasses T dren. his recall involves the Beado nect the electric supply by shutting beginning June 8th for instructions hand-held beaded play toy with off the fuse or circuit breaker con- on how to return them and get a model number 1501 and date code trolling it. refund. Customers can also call T 02910 04323A. he product mea- McDonalds toll-free number at 1-800- sures six inches in diameter and is Consumers can schedule a free T 244-6227. he Shrek Forever After composed of four blue plastic hubs, in-home repair or receive a rebate of glassware was offered in four glass six white plastic “wires” and twelve $150 or $250 toward the purchase designs at McDonalds restaurants multi-colored beads that slide along of select new Maytag dishwash- beginning May 21st. he four designs T the wires. ers. T he amount of the rebate include Puss n’ Boots, Shrek, Princess depends on the type of model to be Fiona and Donkey. The model number and date code purchased. More information on the are printed on the bottom of the numerous serial numbers involved in packaging and the date code is also the recall can be found at the com- some deFiBrillATor BATTery PACks inside of the blue hubs. Beados that pany’s website or the website for the reCAlled have a date code different than Consumer Product Safety Commis- 02910 or have a date code of 02910 sion. The U.S. Food and Drug Administra- and an inspection sticker on the tion has announced the recall of bottom of the packaging and a black battery packs used in some auto- mark by the date code inside the WAl-mArT reCAlls ‘ToxiC’ miley mated external defibrillators manu- blue hub are not included in this Cyrus JeWelry T factured by Defibtech LLC. he FDA T recall. he beads were sold at spe- said the Guilford, Connecticut, cialty toy and juvenile retailers from U.S. retail giant Wal-Mart announced company initiated the voluntary March 2010 through May 2010 for that it is recalling Miley Cyrus-brand recall of 5,418 DBP-2800 battery about $12. Consumers should imme- jewelry after learning it contains packs because they might falsely diately stop using this recalled toy high levels of cadmium—a toxic detect an error condition during and return it to the store where it metal known to cause kidney charging for a shock and then cancel was purchased to receive a full T failure. he Miley Cyrus & Max Azria T the charge. he recalled batteries refund or a replacement Beado hand- jewelry which was sold in Wal-Mart are used in the company’s Lifeline- held beaded toy. For additional infor- stores across the country has been` model and Revive-model defibrilla- mation, please contact Rhino Toys deemed unsafe due to the carcino- tors. Officials said the recall affects toll free at (877) 887-4433 or visit genic properties of cadmium, a state- all DBP- 2800 units shipped prior to their website at www.rhinotoys.com. T ment on Wal-Mart’s website said. he June 4, 2007. jewelry is especially dangerous for children because they are more The recalled battery packs were dis- kiWi indusTries reCAlls inFAnT likely to touch their hands with the tributed worldwide to fire depart- APPArel due To Choking hAzArd product and put their hands in their ments, emergency medical service mouth. he cadmium in the jewelry T units, health clubs, schools and other Holtrop & McIndoo LLC dba Kiwi can also be absorbed into the skin. organizations. he company said it T Industries, of Albuquerque, New mailed users recommendations that Mexico has recalled about 450 infant The Miley Cyrus & Max Azria line allow the battery packs to remain in onesies and rompers. Snaps on the was not for children. It is sold in Wal- service until the problem is cor- onesies and rompers can detach Marts ladies apparel section and it rected. hose procedures are also T from the garment, posing a choking was designed for and marketed to available at www.defibtech.com/ T hazard to young children. he firm T older consumers. he giant retailer batteryFA1. Consumers with ques- has received two reports of snaps says it is ”possible that a few younger tions can contact the company at detaching. No injuries have been consumers may seek it out in stores.” 877-453-4507 or 203-453-4507. T reported. he onesies and rompers Wal-Mart has removed all of the were sold in eight colors and prints. jewelry from shelves while it investi- “Kiwi industries” is printed on a tag gates, the statement added. rhino Toys inC. reCAlls BeAd Toy sewn inside the garment’s collar. due To Choking hAzArd The onesies were sold at children’s mCdonAlds is reCAlling ‘shrek’ About 5,500 Beado handheld bead specialty stores nationwide from drinking glAsses play toys have been recalled by the March 2010 through May 2010 for importer Rhino Toys Inc., of Santa between $24 and $28. Consumers McDonalds is recalling its four “Shrek T Cruz, California. he toys’ plastic should immediately stop using the Forever After” drinking glasses wires can detach from the hubs due garments and contact Kiwi Indus- because they were found to contain to insufficient adhesive, allowing the T tries for an exchange. he company the toxic metal cadmium, which can T beads to slide off. he loose beads will provide a postage-free package pose health risks. Customers were www.JereBeasleyReport.com 35 for the return of the recalled return them to any Target store to Section Administrator of our Toxic Torts garment. For additional information, receive a full refund. For additional Section. In this position, Sandra assists contact Kiwi Industries toll-free at information, contact Target at (800) Rhon Jones, who heads up the Section, in (877) 509-4891 or visit the compa- 440-0680 or visit the firm’s website a number of areas. For example, Sandra ny’s website at www.kiwiindustries. at www.target.com. works to make sure all support staff have com. Consumers can also email the what they need to get their jobs done in company at firstname.lastname@example.org toxic tort cases. Without a doubt, Sandra regAl lAger reCAlls inFAnT plays an important role in the day-to-day CArriers due To FAll hAzArd activities of the Section. sPAgheTTios reCAll By CAmPBell Sandra is married to Johnny Walters Regal Lager Inc., of Kennesaw, and they have three children: Melanie Campbell Soup Co. is recalling 15 Georgia, has recalled CYBEX 2.GO Seithalil, Holly Busler, who also has been million pounds of SpaghettiOs with T Infant Carriers. his includes about employed by our firm for ten years, and meatballs due to possible underpro- 2,700 in the United States and 400 in Hunter Walters. She also has six grand- cessing. he company is recalling T Canada. A shoulder strap slider children. Sandra is a strong supporter of certain lots of three varieties of the buckle can break, posing a fall hazard the March of Dimes, having had a prema- pasta product often consumed by T to babies. he company has received ture grandson born in March 2009 weigh- children: SpaghettiOs with Meatballs, three reports of broken buckles. No ing 1 lb. 5 oz. Her favorite activity is SpaghettiOs A to Z with Meatballs, T injuries have been reported. his spending time with her family and sup- and SpaghettiOs Fun Shapes with recall involves CYBEX 2.GO infant porting her son, Hunter, in local drag Meatballs (Cars). he recalled prod- T carriers. “CYBEX” is embroidered on racing events. We are blessed to have ucts have “EST 4K,” as well as a the fabric covering on the top of the Sandra with the firm. She is a dedicated use-by date between June 2010 and head support. “2.GO” is printed on employee who works very hard. December 2011 printed on the an orange ta g near the head bottom of the can. So far there have T support. hey were sold in the fol- MARy JAne SMITheRMAn T been no reports of illnesses. hese lowing colors: chili, indigo, purple Mary Smitherman, who was with the products should not be eaten. Return and slate. Baby furniture and baby firm as a temp for over a year and a half, them to the store where you got product stores nationwide sold the became a full-time employee in January. them for an exchange or full refund. carriers and they were sold on T She is now a Relief Receptionist. he firm various websites from August 2009 employs six receptionists who handle through April 2010 for about $100. the tremendous number of incoming TArgeT reCAlls Children’s BelTs Consumers should immediately stop calls each day. When Mary is not assisting due To leAd PAinT violATion using the recalled carriers and the Receptionists, she works as a clerical contact Regal Lager to receive a free assistant in the Personal Injury depart- Target has recalled about 105,150 replacement carrier. For additional ment. She assists the PI staff with any boys’ and girls’ belts. T he belt information, contact Regal Lager at clerical duties they may need help with. buckles contain excessive levels of (866) 678-8940, visit the company’s Mary is a single mother of a 16-year-old lead, violating the federal lead paint website at www.regallager.com/ son, Billy Smitherman, who will be a T standard. his recall involves two recalls or email the company at senior at Brewtech next year. Billy, who types of belts: The Cherokee boys’ email@example.com, attends St. Luke United Methodist Church T belts and Circo girls’ belts. he Cher- regularly, hopes to attend college at okee belts are black and brown If you need more information on any of Auburn University. Mary enjoys reading in reversible belts with heavy stitching the recalls listed above, or would like her spare time. She is a good employee in sizes M-XL. he belts came in a T information on a recall not listed, you can and we are pleased to have her with the pack of two with the numbers go to our firm’s web site at www.Beasley- firm. 202/08/0018, 202/08/0019 or Allen.com/recalls. You may also contact 202/08/0020 embossed on the Shanna Malone at Shanna.Malone@beas- SCoTT GUnn belt. he girls’ Circo belts are pink T leyallen.com for more recall information. Scott Gunn, who has been with the and white with heart buckles in sizes firm for over five years, works as a Staff T XS-L. hey were sold in a 2-pack with Assistant in the Mass Torts Section. He t h e n u m b e r s 2 0 2 / 0 5 / 0 0 7 1 , 202/05/0072, 202/05/0073 or XXV. works on many different cases and is a contact person with clients. Scott helps 202/05/0074 listed on the product FIRM ACTIVITIES to keep them advised and up to date on label attached to the inside of the their claims. He began working on Vioxx T belt. he belts were sold at Target cases in 2004 by recording intakes for stores and on Target.com nationwide emPloyee sPoTlighTs T potential clients. hat work has contin- from December 2008 through ued to the present as we are now disburs- December 2009 for between $7 and SAndRA WAlTeRS ing settlement payments to our clients. $9 Consumers should immediately Sandra Walters, who has been with our Scott has also helped with Bextra, Cele- stop using the recalled belts and firm for 18 years, currently serves as brex, and other Mass Torts projects. He 36 www.BeasleyAllen.com also has done new client intakes for Mass ACCess To JusTiCe: A rePorT CArd a new executive director and Torts for multiple pharmaceuticals. Board, and helped 38% more Scott is married to Kathy Gunn, who is I want to thank everyone who has people than last year. one of the firm’s Receptionists. Scott and worked so hard this year. In particu- Kathy have been married for almost 25 lar, I want to thank President-Elect • T he Montgomer y County Bar years and they have four children: three Alyce Spruell and Vice President started a monthly Pro Bono Clinic. girls and one boy. he eldest are twin T Phillip McCallum. Their hard work and dedication were an integral • The Mobile County Bar continued girls, one of whom just graduated from to lead the state with its VLP, and it college. he others are now in college. T part of the success of our programs and initiatives. helped 24% more people than last Scott graduated from Austin Peay State year. University with a B.S. in Biology and Choosing a focus for our work this Chemistry and from Auburn University past year was easy. In July 2009, • Legal Services helped 15,000 people with an M.S. in Systematic Botany. He Alabama stood dead last in in 2009, an increase of 4,000 worked over 25 years as a biologist and funding for Access to Justice in civil people from the previous year. has written or published a number of matters. As a result there have been • We hired a lawyer to work with technical articles. Scott enjoys hunting, a lot of hurting people without Legal Services, to handle domestic fishing, gardening, and faithfully serving legal representation. Ensuring legal violence cases that our VLP could in his church. He is a very good employee help for the poor in these cases was, not handle. and we are blessed to have him with us. and still is, a matter of the utmost importance. • We celebrated Pro Bono Week and ChRIS AldeRTon drew public attention to the need Chris Alderton, who has been with the We attacked this problem by secur- for Access to Justice. Alabama firm for two years, currently serves as a ing additional funding for Access to lawyers were mentioned positively A Runner. runner’s duties at our firm are Justice from Alabama lawyers and every day in publications, on televi- T very important. he work covers a wide from the Legislature, and by sion and radio throughout the state. range of activities and I understand there increasing participation in our Vol- is never a dull moment. Courier services, unteer Lawyer Program (VLP). We • We had the biggest Law Day cele- purchasing and stocking supplies, serving have made significant progress in a bration in recent memory, with a subpoenas and summons, filing court lot of areas. The following is a theme of “And Justice for All,” and documents, traveling with the trial team, report card of our progress: again drew public attention to this and providing help for miscellaneous area. tasks are all involved. • Alabama lawyers gave their money. Chris and his wife, Kathr yn, are Lawyers agreed to make voluntary What a great start we’ve made in extremely dedicated to their church, donations of $850,000 for Access to ensuring Access to Justice for all. We Courts of Praise in Millbrook, where Justice. have not yet earned an “A” for our Chris serves as the Music Leader. Chris performance in this area. That is • Alabama lawyers gave their time. our goal, not just for our lawyers, enjoys music and plays the guitar, bass, More than 1,450 new lawyers have but for the poor in Alabama who piano and drums and he also enjoys joined our VLP and agreed to repre- desperately need our help. So many singing. He spends his free time playing sent the poor for free. lawyers have given so much to this golf, fishing, swimming, and most of all, playing video games. We are fortunate to • The Alabama Legislature gave us a effort. I firmly believe we can go to have Chris, a ver y good, dedicated 12% increase in funding for Access new heights if we keep focusing on employee, with the firm. to Justice, even though funding was this over the next five years. I have cut for most other things. enjoyed being a part of this effort for Access to Justice. With your con- • Our Mortgage Foreclosure program, tinued effort, we can achieve. XXVI. which provides a free lawyer to Source: This article is reprinted from the July 2010 SPECIAL those who need one, has helped edition of The Alabama Lawyer magazine. RECOGNITIONS more than 3,000 people. It is widely recognized that Tom has • Lawyers worked 23,231 volunteer done an outstanding job as State Bar Pres- hours in 2009. ident. He has brought to the public’s It seems like only yesterday when Tom attention the fact that low income Ala- Methvin from our firm was elected presi- • The Huntsville/Madison County bamians have been largely shut out of the dent of the Alabama Bar Association. But VLP completely turned around with T civil justice system. om has involved it’s been a full year when Tom completes a new executive director and hundreds of lawyers across the state in an T his term as president this month. om has Board, and helped 67% more effort to right a wrong. Lawyers have vol- had a most successful term and he has people than last year. unteered their time to help solve this T accomplished a great deal. he following T most serious problem. om—who is com- is Tom’s final message. • The Birmingham/Jefferson County passionate about helping folks—is to be VLP completely turned around with www.JereBeasleyReport.com 37 commended for his service. He has been most distinguished career. Mac, a great you have; for He has said “I will a most effective spokesman for folks who person, is one of the most knowledgeable never leave you nor forsake you.” generally have no real voice when it folks around when it comes to Alabama comes to obtaining justice and fair treat- history. He especially is an expert on our Hebrews 13:1-5 ment. state’s political history. Mac should write My good friend Joyce Spear tells me another book on that subject. her favorite Bible verse is one that gives Many observers say Mac wrote the her comfort when times get tough. Joyce John Wooden WAs more ThAn JusT A rules of the Senate, but that really isn’t and her husband, Cecil, have been our greAT CoACh true. But he does know them better than good friends for years and they attend St. any Senator who has ever served in that James United Methodist Church with us. Even those who have never kept up body. It’s well known that Mac has had to Joyce was originally from Crenshaw with sports know who John Wooden bail out a number of presiding officers County where some of my kinfolks live. T was. he very successful basketball coach when they found themselves in a difficult She will tell you exactly what she thinks at UCLA was much more than just a great spot, having to resolve disputes dealing and believes and I like that trait. Joyce’s coach. He was a great man and a person with rules that might not be of the ordi- contribution to the Report this month who affected in a positive way the world nary sort. I can speak from experience on comes from Matthew: around him. Coach Wooden, who died that front. Mac bailed me out on more last month at the age of 99, has been than one occasion and he has never let Come to Me, all you who labor and described as one of the greatest coaches me forget it. are heavy laden, and I will give you T and humans of all time. he man, who I am firmly convinced that one of the rest. won more national championships than best traits any person can have is loyalty any coach ever, came from a humble to friends. ll who have known Mac over Matthew 11:28 A beginning. He never lost the common the years will tell you that he tops the list Several of the youngsters who attended touch even though he became a living when it comes to being loyal to his many a summer camp in Montgomery operated T legend. he following are a few of the friends. When Mac leaves the Senate, he by Common Ground last month fur- statements made by Coach Wooden: will do so with class and dignity. But he nished their favorite verses for this issue. • Never mistake activity for achievement. will be sorely missed and in my opinion I really appreciate Shanijer Miller (five nobody will be able to replace him. His years old), Keanete Shipper (seven years • Be more concerned with your charac- departure will be the state’s loss and that old) and Latrierra Davis (seven years old), ter than your reputation, because your can’t be denied. I consider my friend, taking time to send me their pic- character is what you really are, while Charles McDowell Lee of Barbour County, T tures. hey also sent some great draw- your reputation is merely what others to be a great American and truly a legend ings. T his verse was sent by these think you are. in his own time. children: • Be prepared and be honest. But Jesus said, “Let the little chil- dren come to Me, and do not forbid • You can’t let praise or criticism get to XXVII. them; for of such is the kingdom of you. It’s a weakness to get caught up in either one. FAVORITE BIBLE heaven.” VERSES Matthew 19:14 • You can’t live a perfect day without doing something for someone who will Bryan Kelly, with Common Ground, is never be able to repay you. Rev. Mike McKnight, who now serves doing a tremendous job with young folks as Pastor of the Fairhope United Method- in West Montgomery. Bryan also sent in a • Success comes from knowing that you ist Church, sent in his favorite Bible verse verse for this month: did your best to become the best that this month. Mike and I became friends you are capable of becoming. several years ago. Oh, magnify the LORD with me, And let us exalt His name together. • Talent is God-given. Be humble. Fame is Let brotherly love continue. Do not man-given. Be grateful. Conceit is self- neglect to show hospitality to Psalm 34:3 given. Be careful. strangers for in doing so some have I can think of no organization that does enter tained angels unaware. Source: CoachWooden.com more for young folks than the FCA. Les Remember those in prison as Steckel, who is president of FCA, sent us though you were with them; and the following verses: those who are ill-treated since you The end oF An erA in The AlABAmA are in the body. Let marriage be Strengthened with all might, sTATe senATe held in honor and the marriage according to His glorious power, for Charles McDowell Lee, a native of bed undefiled for God will judge all patience and longsuffering with Barbour County, has served as Secretary those who practice unfaithfulness. joy; of the Alabama Senate since 1963. He will Keep your life free from the love of money and be content with what Colossians 1:11 retire from this important position after a 38 www.BeasleyAllen.com He who began a good work in you being emotionally and sometimes perma- XXIX. will perfect it until the day of Christ nently scarred when they play these Jesus. games. It’s not like just watching some- PARTING WORDS thing bad or evil, children are actually Phil 1:6 participating in the event. Some of the The disaster in the Gulf of Mexico is Larry Wilson, a very good lawyer from events are murder, rape, and other violent affecting folks in all of the states along Houston, Texas, says he enjoys reviewing acts. Could you imagine a very young the Gulf Coast and it will eventually the Jere Beasley Report each month. child having access to a video game with affect folks outside the region. People Larry says he particularly likes this that sort of content? Surely not in the have lost their ability to make a living section on the Bible verses and sent in United States. along the coast and they badly need the following verse: But, children of all ages can rent these hope. Unfortunately, there doesn’t seem games—even though they are rated T to be any end in sight to this crisis. he Then I heard the voice of the Lord Mature (M) without the knowledge or damage done to an entire region of our saying, ‘Whom shall I send, and consent of their parents or guardians. Sci- country, and the losses that will be in the who will go for Us?’ Then I said, entific and clinical research has linked tens of billions of dollars, are almost ‘Here am I. Send me! the playing of these games to a harmful impossible to comprehend. It’s difficult T and lasting impact on children. his is to get a handle on how terrible, vast and Isaiah 6:8 why the Parents Television Council is lasting the effects of this disaster are, and Larry says this verse shows an attitude leading a national campaign to prevent to fully understand what the future holds. that all Christians should have in terms of video game retailers from selling these But our Nation and its people have sur- reaching out to the lost world. hat is T ultra-violent products to children. If you vived major problems of all sorts over the absolutely true and badly needed in these want more information, you can go to years and I am confident we will eventu- trying times. www.parentstv.org. It’s high time that ally survive this man-made disaster. We folks who want to protect children from must never lose sight of the fact that God evil influences get involved and let our is still on His throne and always hears our political leaders know this sort of thing XXVIII. can’t be tolerated in the Untied States. prayers. Sometimes I forget this and have to be reminded. Our prayers are with all CLOSING of the victims, regardless of where they OBSERVATIONS are located, and we must support them in A monThly reminder any manner possible. An imPorTAnT messAge For PArenTs If my people, who are called by my name, will humble themselves and Many parents fail to realize that young pray and seek my face and turn children have access to some popular from their wicked ways, then will I video games that can do long-term hear from heaven and will forgive damage to them. Unfortunately, most their sin and will heal their land. parents don’t even know anything about the content of these games. If they did, 2Chron7:14 they would be shocked. Children are To view this publication on-line, add or change an address, or contact us about this publication, please visit our Website: BeasleyAllen.com No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers. www.JereBeasleyReport.com 39 218 COMMERCE STREET (36104) PRESORTED POST OFFICE BOX 4160 STANDARD MONTGOMERY,ALABAMA 36103-4160 U.S. POSTAGE (334) 269-2343 PAID TOLL FREE MONTGOMERY,AL (800) 898-2034 PERMIT NO. 275 TELECOPIER (334) 954-7555 WEB PAGE www.BeasleyAllen.com RETURN SERVICE REQUESTED 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.
"Jere Beasley Report_ July 2010"