Jere Beasley Report, November 2010

Transcription

November 2010
Distributed to over 53,000 subscribers each month
www.BeasleyAllen.com
I.
CAPITOL
OBSERVATIONS
15-Passenger Vans Are Rolling Death
Traps
Our firm has filed a wrongful death
lawsuit on behalf of Plaintiff Horace
Walton, whose daughter, Jennifer Leanne
Walton, was killed on October 3, 2010,
when the 1987 Dodge 15-passenger van in
which she was riding rolled over several
times and crashed. The van became uncontrollable after the tread on a rear tire separated, causing the tire to go flat. The suit
was filed in the Circuit Court for Russell
County, Alabama, alleging products liability,
failure to warn, negligence and wantonness for the unsafe conditions of the van
and tire. Defendants include Chrysler
Group, L.L.C., Chrysler Group Vans, L.L.C.,
and R&J Tire Co. Inc.
The real tragedy behind this crash and
other fatal rollover crashes involving
15-passenger vans is that federal regulators
and auto safety experts have known for
years that these vans are unfit to transport
people, and yet they continue to be manufactured. This vehicle is, by design, inherently unstable and unsafe and yet it is
allowed to remain on the road. As a result,
people are injured and killed. This type of
tragedy is completely unnecessary. These
15-passenger vans are too dangerous to be
on the road and are rolling death-traps!
Fifteen-passenger vans were originally
designed to haul cargo, not passengers,
and so they lack some basic safety features
that are standard in other vehicles. Studies
have shown that the vans are three times
more likely to flip and roll in a crash when
they are fully loaded. According to the
National Highway Traffic Safety Administration (NHTSA), there were approximately
564,000 15-passenger vans in use in the
U.S. on July 1, 2007, but only 7% were 2004
or newer models, meaning the vast majority of 15-passenger vans in use today lack
even the most basic safety improvements
and NHTSA-required warnings and advisories. Federal law even prohibits the sale of
15-passenger vans for the school-related
transport of high school age and younger
students.
Ben Baker and this writer from our firm,
along with Derrell Dowdell, a lawyer from
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Columbus, Georgia, will handle the case
on behalf of the Walton family. The family
wants the public to know how dangerous
these vans are and wants to get them off
the highways so that others won’t have to
suffer the loss of their loved ones.
Some Say Too Much Corporate
Regulation
For years leaders in the National Republican Party—and their extreme right wing
supporters—have harped on too much
government regulation. It has been sort of
a rallying cry for those in Corporate
America who finance GOP candidates.
Even though the message was intended for
that audience primarily, it has had an influence with many in the media. Unfortunately, lots of ordinary citizens have also
bought into this political myth. But in
reality, over the years, we have had some
of the weakest regulation from the federal
government of Corporate America that
money can buy. Let’s take a look at what
that sort of regulation has actually caused
in the U.S. We have seen:
• the lack of regulation of Wall Street and
the large financial institutions which
a l m o s t d e s t ro y i n g o u r N a t i o n ’s
economy;
• the failure to regulate the big oil companies which led to the largest oil spill in
the Gulf of Mexico in our Nation’s
history;
• the weak regulation of the coal mining
industry resulting in the loss of a tremendous number of lives in a large
number of mine explosions;
• the weak regulation of the powerful
drug companies allowing dangerous
drugs such as Vioxx to be put on the
market; and
• the failure to regulate foreign products
coming into the U.S. causing tremendous safety and health problems for
American consumers.
Actually both national political parties
must share the blame for failing to properly regulate the automobile, drug, oil,
food, chemical and mining industries and
to monitor their activities. Hopefully, that
will soon change. I would like to hear
those who believe weak regulation is good
for the American people explain how that
can be. It’s good for the giants in Corporate America and bad for all consumers.
A Yes Vote On Amendment Three Will
Be Good For Alabama
Alabama voters will soon have an
opportunity to make sure our state’s highways are upgraded and made safer. Amendment Three—a proposal to spend about
$100 million a year, for ten years, on the
state’s transportation infrastructure—
deserves a yes vote on November 2nd. Sen.
Lowell Barron and my brother, Rep. Billy
Beasley, successfully guided the proposed
IN THIS ISS U E
I.
Capitol Observations. . . . . . . . . . . . . . . . 2
II.
A Report on the Gulf Coast Disaster. . . . . 3
III.
Drug Manufacturers Fraud Litigation. . . . 5
IV.
Purely Political News & Views. . . . . . . . . 6
V.
Recent Settlements by Firm. . . . . . . . . . . 7
VI.
Court Watch. . . . . . . . . . . . . . . . . . . . . . . 9
VII. The National Scene. . . . . . . . . . . . . . . . . 9
VIII. The Corporate World. . . . . . . . . . . . . . . 10
IX.
Campaign Finance Reform. . . . . . . . . . . 12
X.
Congressional Update . . . . . . . . . . . . . . 12
XI.
Toyota Litigation Update . . . . . . . . . . . . 13
XII. Product Liability Update . . . . . . . . . . . . 14
XIII. Mass Torts Update. . . . . . . . . . . . . . . . . 16
XIV. Business Litigation. . . . . . . . . . . . . . . . . 17
XV.
An Update on Securities Litigation. . . . . 18
XVI. Insurance and Finance Update . . . . . . . 19
XVII. Employment and FLSA Litigation. . . . . . 19
XVIII. Predatory Lending. . . . . . . . . . . . . . . . . 20
XIX. Premises Liability Update. . . . . . . . . . . . 21
XX.
Workplace Hazards. . . . . . . . . . . . . . . . 23
XXI. Trasportation. . . . . . . . . . . . . . . . . . . . . 23
XXII. Nursing Home Update. . . . . . . . . . . . . . 26
XXIII. Healthcare Issues . . . . . . . . . . . . . . . . . 26
XXIV. Environmental Concerns. . . . . . . . . . . . 26
XXV. The Consumer Corner. . . . . . . . . . . . . . 27
XXVI. Recalls Update. . . . . . . . . . . . . . . . . . . . 29
XXVII.Firm Activities. . . . . . . . . . . . . . . . . . . . 37
XXVIII.Special Recognitions. . . . . . . . . . . . . . . 38
XXIX. Favorite Bible Verses. . . . . . . . . . . . . . . 38
XXX. Closing Observations. . . . . . . . . . . . . . . 39
XXXI. Parting Words. . . . . . . . . . . . . . . . . . . . 39
constitutional amendment through the
Legislature. It must now be approved by
the voters. This is clearly an investment in
Alabama and one that will pay for repair
and replacement of aging roads and
bridges across the state. Each county and
city gets its fair share of this money. All of
this comes at a time when jobs in our state
are badly needed. Roads and bridges all
over the state are in desperate need of
repair.
If Amendment Three passes, a total of $1
billion, without any new taxes, will be
spent on improving transportation infrastructure over ten years. In a typical year
the money - $100 million each year—will
be distributed as follows:
• $39 million allocated for the Alabama
Department of Transportation to spend
in all counties, with 55% distributed
based on county population and 45%
divided evenly among all counties;
• $35 million divided evenly among Alabama’s seven Congressional districts for
projects earmarked in the amendment
or chosen by the state transportation
department;
• $25 million to be spent on transportation projects chosen by counties, with
money distributed according to the
same 55%/45% split; and
• $1 million allocated to a repair fund for
local shortline railroads.
The amendment, if adopted, would
require each county to give 10% of this
allocation to its municipalities, distributed
based on population, for projects chosen
by the municipalities. It’s been estimated
that projects funded by the amendment
would create 30,000 new jobs. The projects—without a doubt—will give a real
boost to the state’s economy. If this amendment fails to pass, I don’t know where the
money needed for roads and bridges will
come from. I strongly recommend a yes
vote on Amendment Three.
II.
A REPORT ON
THE GULF COAST
DISASTER
Rhon Jones Appointed To Key Position
In The MDL
Rhon Jones, who heads our firm’s Environmental Law section, has been selected
to help direct the litigation related to the
BP oil disaster. Rhon is one of 15 lawyers
out of more than 100 who applied who
will oversee the consolidated litigation as
part of the Plaintiffs Steering Committee
(PSC). The BP litigation, which involves
hundreds of cases against the oil giant and
other Defendants, was consolidated under
U.S. District Judge Carl Barbier in New
Orleans in August.
This appointment puts our firm in a
leadership role with the BP oil litigation.
Consolidating the cases into a multidistrict
litigation (MDL) will allow the committee
overseeing the process to make sure the
case moves forward. This also will allow
the cases to move more quickly to resolution. Lawyers on the PSC will coordinate
the litigation and work together on issues
such as discover y and pretrial
motions. This is a most important appointment and Rhon will do a good job.
Our firm has filed a number of lawsuits
in District Courts in Alabama, Mississippi,
Florida and Louisiana to help protect businesses and individuals harmed by the oil
spill. Complaints have been filed on behalf
of a broad range of clients including commercial fishing businesses, retail establishments, the restaurant industry, real estate
management companies, property owners,
persons suffering personal injuries and
others. These cases will all be sent to the
MDL in New Orleans.
MDL Judge Gets Things Moving
Source: Mobile Press Register
Judge Carl Barbier, who is presiding over
the oil spill MDL, has set a schedule for
trials in the lawsuits arising out of the oil
spill. The “test case” for claims filed against
BP by individuals and businesses under
the Oil Pollution Act will take place in
June 2011. A separate trial will be held in
2012 to assign percentages of fault to BP
and the other companies sued in connec-
tion with the rig explosion and fire that
caused over 200 million barrels of oil to be
spilled into the Gulf.
BP has informed Judge Barbier that it is
waiving a $75 million cap on its liability
for certain economic damage claims
spawned by the Gulf oil spill. BP lawyers
filed a pleading saying the company is
waiving the statutory limitation on liability
under the 1990 Oil Pollution Act. BP
denies engaging in any gross negligence in
connection with the explosion on the
Deepwater Horizon rig and resulting spill.
Feinberg Working For BP And Being
Paid Very Well
Lots of folks didn’t realize that Kenneth
Feinberg, who is responsible for compensating victims of BP’s Gulf of Mexico oil
spill, is actually on BP’s payroll. Some
believe that puts him in conflict with his
role, which was supposed to be as an
“independent” claims adjuster, and that
can’t be good for the victims. The Gulf
Coast Claims Facility that Feinberg runs
has been criticized by Gulf Coast residents
and policy makers for the slow pace of
payments and the inadequate compensation being paid to the victims of the oil
spill. Until recently, Feinberg had refused
to disclose his compensation package
even though numerous requests had been
made to him. He finally did so, but only
through a lawyer.
Thus far, Feinberg and his law firm have
been paid more than $2.5 million in a little
over three months to administer the $20
billion fund set up by BP to compensate
victims of the massive oil spill in the Gulf
of Mexico. BP agreed to pay his firm, Feinberg Rozen LLP in Washington, a flat fee of
$850,000 a month from mid-June through
October 1st. The report was issued on
Feinberg’s compensation by former
U.S. Attorney General Michael Mukasey.
Interestingly, the compensation disclosure
reveals that Feinberg is actually considered
an employee of BP. Tyson Slocum, director
of energy programs for Public Citizen, the
Washington-based consumer advocacy
group, believes this raises “concerns about
the management of the fund.” Interestingly,
Feinberg’s brother David is listed on the
law firm’s website as director of special
projects. The $850,000 monthly payments
to Feinberg’s firm will continue through
year-end and then will be reviewed. The
public is entitled to a full disclosure relat-
www.JereBeasleyReport.com
3
ing to Feinberg’s compensation package
and I don’t believe they have gotten it.
Source: Bloomberg
Alabama Restaurant Association Hires
Our Firm On Oil Spill Claims
Our firm has been hired by the Alabama
Restaurant Association (ARA) to provide
legal counsel to businesses suffering as a
result of the BP Oil Spill. Restaurants and
other hospitality industry businesses have
lost and unfortunately continue to lose significant revenue as a result of the oil
spill. The disaster in the Gulf severely
impacted the availability and pricing of
commercial seafood. It also crippled the
tourist industry at the beginning of its
peak season. ARA President Lawrence M.
Fidel in a letter to his membership, stated:
Initially we, as many of you, were
hopeful that BP would fully and
fairly compensate your losses
through the claims process. Unfortunately, the BP claims process has
miserably failed to live up to these
expectations as reflected through the
outright denial of claims based on
arbitrary rules such as how close the
location of a business is to the Gulf
Coast. Many of our members not in
proximity to the coast have been
and continue to be affected financially as a result of the oil spill.
A phone number and website specifically for members of the Alabama Restaurant Association has been set up. The
Association’s staff will be available to
answer questions and respond to any
inquiries from members concerning any
aspect of the disaster.
BP, Feinberg and the GCCF are all one
and the same, regardless of what they
pretend. Based on what we have seen, the
new GCCF process is no more fair than
the old one. In fact, it’s virtually the same.
Restaurants and the hospitality industry in
Alabama have taken a beating over the oil
disaster and these businesses deserve full
compensation, not pennies on the dollar
for clear losses they have suffered.
Our firm has filed a number of lawsuits
in District Courts in Alabama, Florida and
Louisiana to help protect businesses and
individuals harmed by the oil spill. Complaints have been filed on behalf of a
broad range of clients including commer-
4
cial fishing businesses, retail establishments, the restaurant industry, real estate
management companies, property owners,
persons suffering personal injuries and
others.
40-Fold Increase In Carcinogenic
Compounds In Gulf
Researchers from Oregon State University have found a 40-fold increase in polycyclic aromatic hydrocarbons (PAHs)
between May and June just off the shore
of Louisiana’s Grande Isle. The sampling
device used by the research team was specifically designed to measure the fraction
of PAHs in the environment that could
make their way through a biological membrane. Dr. Kim Anderson, an OSU professor
of environmental and molecular toxicology, had this to say:
This is a measure of what would
enter into an organism. There was a
huge increase of PAHs that are bioavailable to the organisms—and
that means they can essentially be
uptaken by organisms throughout
the food chain.
Water samples taken off the Mississippi,
Alabama and Florida coasts—as well as air
samples taken along the coast—also
showed elevated levels of PAHs, but not
nearly of the same magnitude. The samples
taken in August were still being tested at
press time. The operative question is how
many of the PAHs have biodegraded in the
interim. There were somewhere between
4 and 5 million barrels of oil spilled into
the Gulf’s waters between April 20th and
July 15th.
PAHs are a class of more than 100 hydrocarbon pollutants and 17 get particular
attention because exposure can have
harmful health effects. Almost every one
of those 17 particularly toxic compounds
experienced the 40-fold increase that the
entire class did. Different organisms—
plankton, fish, shellfish or humans—have
different exposure risks to PAHs in the
water according to the researchers. They
also have different capacities to metabolize the PAHs. It’s not known how many of
these toxic compounds actually ended up
in the food chain. To make that determination will take more studies and research.
It’s very important that the USDA make
sure that the seafood that goes to market is
safe to eat.
We have written in prior issues on the
chemicals dumped into the Gulf by BP.
Based on his findings and that of other
researchers, Dr. Anderson suspects that
the abundant use of dispersants by BP
increased the bioavailability of the PAHs.
In late July, we reported that scientists had
found signs of an oil-and-dispersant mix
under the shells of tiny blue crab larvae in
the Gulf. It appeared at that point to be an
indication that dispersants had broken up
the oil into toxic droplets so tiny that they
can easily enter the food chain. But two
months later, those researchers have yet to
finalize their conclusions. So the question
remains open.
But the bottom line is that researchers
testing the waters off Louisiana in June
found hugely elevated levels of PAHs, some
of which are known carcinogens. The
thing we should all be concerned about is
that the samples taken off the shore of
Louisiana’s Grande Isle registered a 40-fold
increase in PAHs between May and
June. That’s not a good thing!
Source: Huffington Post
Folks Outside The Coastal Region
Aren’t Getting The True Picture
People who live outside the Gulf Coast
region aren’t getting a complete story
about the effects of the oil spill, and much
of what is being reported is inaccurate. The further you get from the Gulf
Coast, the less the concerns over conditions there are. The long-range effects are
being pretty much watered down. An
emergency survey, conducted door-to-door
in coastal Alabama recently, confirmed elevated levels of depression and stress following the oil spill. The survey also
detected possible effects, such as respiratory ailments, according to a preliminary
report. Epidemiologists from the Centers
for Disease Control and Prevention joined
with local heath workers and counselors
to collect the data starting in late
August. The initial report, issued by the
CDC’s national Center for Environmental
Health, was based on responses from
households in the southern parts of
Mobile and Baldwin counties.
Concern about mental health issues
linked to the Gulf spill is based on experiences after the Exxon Valdez spill in
Alaska. The rates of suicide, domestic violence, and divorce spiked in areas of Alaska
m o s t a f fe c t e d b y t h e c o n t a m i n a tion. According to the CDC report, financial anxieties would also likely have an
impact on mental health and should be
considered a component of outreach
efforts. This is an area of concern that
must be watched closely.
Folks on the Coast are hurting and it’s
important for people outside the region to
be given complete and accurate information. After the Exxon Valdez spill, the rates
of suicide, domestic violence and divorce
soared in the areas most affected by the
contamination of Prince Edward Sound.
Many health officials are concerned that
the same is ahead for Gulf communities
where, for generations, families have made
a living from local waters.
Sources: Mobile Press Register and AL.com
Environmental Groups Sue BP For
Impact On Gulf Wildlife
Several non-profit watchdog groups
filed a lawsuit last month against BP under
the Endangered Species Act for the
ongoing unlawful harm and death of
endangered and threatened wildlife
caused by the company’s massive oil spill
blowout. At least 27 endangered or threatened animal species are known to inhabit
the Gulf region, including five species of
endangered sea turtles, four species of
endangered whales, threatened and endangered birds and Florida manatees. Testimony during the President’s National Oil
Spill Commission revealed that more than
50% of the total discharge of oil from the
Deepwater Horizon blowout remains in
the Gulf ecosystem, much of it in coastal
and marine sediments.
Defenders of Wildlife, the Southern Environmental Law Center and Save the
Manatee Club are asking the federal court
to order BP to mitigate the ongoing harm
from the oil disaster to endangered and
threatened wildlife that are part of the
web of life in the Gulf of Mexico. The
harmful effects of the BP oil well blowout
on endangered and threatened wildlife
will continue for many years. The Plaintiffs
in the lawsuit are asking the court to
compel BP to provide the resources necessary to ensure that imperiled species in
the Gulf recover from this disaster.
Source: The Locust Fork News-Journal
III.
DRUG
MANUFACTURERS
FRAUD LITIGATION
Drug Companies To Pay $82 Million To
Settle Medicaid Fraud Suits In Hawaii
About 40 pharmaceutical companies
that inflated drug prices will pay the State
of Hawaii $82 million to settle the
claims. Attorney General Mark Bennett
made the announcement of the settlement
on October 6th. The companies bumped
up the prices of their drugs bought for
Medicaid prescriptions from 1993 to 2006,
resulting in the state overpaying for medications for tens of thousands of patients.
In an extreme example, the Medicaid
program paid $1,480 for an ulcer medication that was available for $27.70. Lillian
Koller, director for the Department of
Human Services, had this to say:
We’re committed to the integrity of
our Medicaid program, to making
sure that the resources are there to
help the neediest people in the state.
We can’t allow people to be stealing
from us.
The settlements were made public after
Circuit Judge Gary Chang vacated a confidentiality order. The largest share of the
settlement comes from Merck & Co., the
country’s second-largest drug manufacturer, which will pay $28 million. The companies that settled include AstraZeneca
Pharmaceuticals, GlaxoSmithKline PLC,
Pfizer Inc., Johnson & Johnson, Novartis
Phar maceuticals, and Bristol-Myer s
Squibb. The government paid for drugs
based on the manufacturer’s figure for
their average wholesale price, which
exceeded prices paid by pharmacies. The
cost of prescription drugs in Hawaii’s Medicaid program soared from $45 million in
1999 to $117 million in 2004. The
methods used to inflate drug prices went
undetected for a considerable time. The
Attorney General had this to say:
The feds didn’t see it. We didn’t see it.
Everybody that we sued was doing
it. We alleged that this was an industry practice.
The actual damages suffered by Hawaii
were between $20 million and $25 million.
So this was a very good settlement for the
state. Taxpayers were the ones ultimately
cheated by the price gouging because
their federal and state levies fund Medicaid. The payment will give state government in Hawaii more money and will
reduce the need to raise taxes or further
cut services. The state is considering additional lawsuits against other companies
involved in related schemes, according to
the Attorney General’s office.
The settlement in Hawaii is the latest in
a series of ongoing litigation in states
throughout the country against pharmaceutical companies alleging Medicaid
fraud. Our firm represented the State of
Hawaii, along with the firms of Miner,
Barnhill & Galland, which has offices in
Wisconsin and Chicago, and Price
Okamoto & Lum of Honolulu.
Hawaii is yet another example of how
the drug manufacturers have systematically perpetrated their fraudulent pricing
schemes on state and federal Medicaid
programs to line their pockets at the
expense of the taxpayers of this country.
But for the jury system in this country, this
fraudulent scheme may have never been
fully unveiled. The Hawaii judicial system
is the real hero in this case and the State of
Hawaii is the beneficiary. The lawsuit was
filed by the State of Hawaii in 2006, alleging that for more than a decade the drug
makers had published inflated prices for
prescription drugs, causing the overpayment of millions of dollars in drug costs.
Sources: Release from Attorney General’s Office and
Associated Press
Jury Returns $4.6 Million Verdict
Against Merck
A jury in Massachusetts has returned a
$4.6 million verdict against the drugmaker
Merck & Co. in favor of the Commonwealth of Massachusetts. A jury found that
Warrick Pharmaceuticals overcharged Massachusetts pharmacists for generic versions
of the asthma medication albuterol. The
judge in the case deferred a decision on
how the penalties should be calculated,
but said the penalties could be substantial. The case was filed in 2003 and tried in
federal court in Boston. Warrick Pharmaceuticals, which closed in 2008, was a unit
of Schering-Plough Corp. Merck, which
merged with Schering-Plough in November 2009, says it will appeal the verdict.
Source: Associated Press
5
Johnson & Johnson Must Pay Louisiana
$257.7 Million
A jury in Louisiana has returned a
$257.7 million verdict against Johnson &
Johnson for making misleading claims
about the safety of the company’s Risperdal antipsychotic drug. The jury found
that J&J defrauded the state’s Medicaid
system by wrongfully touting Risperdal as
superior to competing antipsychotic drugs
and minimizing its links to diabetes. The
Louisiana verdict is the second trial loss in
a state lawsuit brought over Risperdal marketing. A West Virginia judge in a non-jury
trial last year awarded $3.95 million,
finding the company misled doctors about
the risks and benefits of Risperdal.
The jury found 35,542 violations of the
state’s Medical Assistance Programs Integrity Law in the Louisiana case and
imposed a penalty of $7,250 for each violation. The state’s case centered on drug
safety claims that J&J and Ortho-McNeil
Janssen made in November 2003 correspondence to 700,000 doctors. In those
letters, J&J touted Risperdal as safer than
competing antipsychotics such as Indianapolis-based Eli Lilly & Co.’s Zyprexa and
London-based AstraZeneca Plc’s Seroquel.
Risperdal global sales peaked at $4.5
billion in 2007, declining after the
company lost patent protection. The FDA
responded with a warning letter saying
J&J made false and misleading claims that
minimized the potentially fatal risks of diabetes and overstated the drug’s superiority to rival medicines.
Lawyers for the state asked jurors to
hold J&J liable for the 7,604 letters it sent
to Louisiana doctors and regulators
making those claims along with more than
27,542 sales calls in the state made by the
drug maker’s representatives in 2003 and
2004. The state sought a total of $351
million in damages, including penalties of
$10,000 for each fraudulent claim and misrepresentation in violation of the Medical
Assistance Programs Integrity Law. Patrick
Morrow, a lawyer with Morrow, Morrow,
Ryan & Bassell, located in Opelousas, Louisiana, represented the state and did a very
good job.
Source: Bloomberg
6
McKesson Corp To Pay Connecticut
$15 Million Fine For Artificially
Boosting Drug Charges
Connecticut will receive $15 million
under a settlement with McKesson Corporation, a pharmaceutical distributor, for
artificially inflating drug costs incurred by
consumers and state-funded health care
programs in that state. The inflated costs
affected over 400 brand name drugs,
including Allegra, Asmacort, Celebrex,
Flonase, Lipitor, Neurontin, Nexium, Prevacid and Valium.
Attorney General Richard Blumenthal
sued McKesson for allegedly conspiring to
inflate the average wholesale prices (AWP)
for pharmaceuticals—creating a larger
“spread” between the cost by the state
Medicaid program and the actual charges
to health care providers, such as physicians and pharmacies. McKesson’s practices gave windfall profits to its pharmacy
customers, which increased McKesson’s
market share at the expense of state taxpayers and consumers. The victims of this
scheme, according to the Attorney
General, included patients and taxpayers
in Connecticut who relied on these drugs
to treat asthma, allergies, pain, arthritis and
cholesterol.
Source: ctwatchdog.com
IV.
PURELY POLITICAL
NEWS & VIEWS
A Final Look At The Statewide Races
The general election will soon be here
and most folks—including this writer—
will be glad to see the negative ads and
political posturing come to an end. It has
been a most interesting campaign season. I
don’t recall a time when the negative feelings amongst the public were any greater.
Over the past few weeks, there have been
several events that have gotten more attention than have the activities of the candidates. There have been more rumors
floating around than normal and, as usual,
most of them are totally false. Also, some
of the political ads have been full of downright lies and distortions. The experts are
predicting there will be lots of “split-ticket”
voting in Alabama on November 2nd.
The Governor’s Race Winds Down
There doesn’t seem to have been any
significant change in the race for the top
job in Alabama. If what I am hearing from
around the state is correct, Dr. Robert
Bentley will be the next governor and
will win by a fairly large margin. From all
accounts, he has run a very good race and
will get votes from lots of folks who will
vote for Democrats in other statewide
and local races. Dr. Bentley comes across
as a good man who doesn’t have an
extreme agenda. The one certainty about
this election, however, is that the man
elected will inherit a state government
that is flat broke. That will require a governor who knows how to deal with the
legislature and who can cross party lines
in an effort to find solutions to our fiscal
and other problems.
The Race For Lt. Governor Has Heated
Up
The race for the number two job in state
government became very heated in early
October and that trend has continued. There have been lots of charges made
and some of them may affect the outcome
of this race to some degree. But regardless
of the wild and reckless charges made by
his opponent, I believe that Jim Folsom
will be reelected. He has received support
from groups such as the Business Council
of Alabama and Alfa and that has allowed
him to raise a considerable amount of
campaign money. His ads also were very
good. Jim identifies with ordinary citizens
in Alabama and he has a record of working
to create good paying jobs for our state.
The Race For Attorney General
Provides A Clear Choice For
Alabamians
There is a very clear choice for the
voters this time in the race for Attorney
General. Even though Luther Strange, the
Republican nominee, has outspent James
Anderson, the Democratic nominee, by a
large margin, James has made this a very
close race. The choice is very simple—
either a real lawyer or a Washington lobbyist will be the next Attorney General—and
the voters will make their choice known
on November 2nd. I thought James made
some points with the voters when he
made his tax returns public.
Supreme Court Races Have Been Very
Quiet
The races for the three seats on the
Alabama Supreme Court have been fairly
low key and very quiet. Most folks, according to recent polls, can’t name more than
two Justices on the Court at present and
that in itself is a story. When the Court is
mentioned, it’s usually along the lines of
“why do the Justices have to run under
party labels?” Occasionally, somebody will
say that they don’t like it that too much
money is being spent in these races.
The polls have shown that when potential voters are told that the current
members of the Court voted against the
State of Alabama in both the Exxon and
Medicaid fraud lawsuits, over 80% of those
polled say they won’t vote for any member
of the Court. I have been a little bit surprised that those votes haven’t been discussed more by the candidates. The
people of Alabama deserve a Supreme
Court where a litigant who appears before
the Court will get justice. A victim of corporate wrongdoing is entitled to no more
than a level playing field where the law
will be followed and the facts of the case
considered. Victims should have a chance
to win when their case has merit. I don’t
believe that’s expecting too much!
A Final Look At The Legislative Races
The races for both House and Senate
seats around the state have been hotly
contested with most of the candidates
really slugging it out. I have said before
that in legislative races elections are
usually decided on local issues and that
belief hasn’t changed. In an effort to influence voters, I have heard so-called liberal
candidates claim to be conservative and
even a few conservatives mention consumer issues and people. The GOP has
spent the largest amounts ever on their
candidates and it will be interesting to see
what effect it has had. Somebody in
authority may eventually ask how that
money was raised, how much, and from
whom. Some interesting political action
committees were used by the fund-raisers
and their fund-raising took place over a
period of several years.
GOP Spending Big Bucks In An Effort
To Take Over Congress
As of mid-October, the third party
groups set up to fund Republican candidates for the U.S. Senate had already spent
over $40 million on TV and radio ads. This
is compared to the groups aiding Democratic candidates that had spent $5.5
million. It’s estimated that these groups on
behalf of GOP candidates will spend over
$200 million in an effort to take over in
Congress. The sad part of this story is that
no voter will ever know where this money
came from. I doubt ver y seriously,
however, that one red cent came from
working men and women or from retirees.
It’s been reported that significant amounts
came from foreign countries.
The Department of Justice has been
asked to investigate the U.S. Chamber of
Commerce’s use of money from foreign
corporations to influence elections in this
country. A new report that came out last
month indicates that foreign companies
are funding some of the $75 million the
Chamber of Commerce is spending to
defeat Democratic Congressional candidates on November 2nd. I am told that funneling money from
foreign interests into U.S. elections is a
federal crime. But the Chamber says it has
internal systems that keep the money separate. Since the GOP has been instrumental in our government allowing the
outsourcing of jobs and giving huge tax
breaks to multi-national corporations, this
is something that should get the attention
of the public. But I am afraid folks simply
don’t have access to this type information.
V.
RECENT
SETTLEMENTS BY
FIRM
Ford Explorer Case Settled
Graham Esdale, working with Paul
Martin, a lawyer from Ponca City, Oklahoma, recently settled a portion of a case
arising out of an automobile accident
which occurred on November 1, 2006
near Ponca City. Killed in the accident
were Josh Harvey, his wife, Casey Rhodd,
Casey’s eight-month unborn child, and one
of their sons, six-year old Kaw-Liga
Harvey. Also injured in the accident were
five-year old Kyle Harvey and his brother,
one-year old Kellen Harvey. The accident
occurred when the Harvey family was
returning home after visiting with family
members. While traveling home, the Harvey’s 1994 Ford Explorer was struck in the
rear by a Mercury Cougar traveling over
the speed limit. At the time of the collision, Mr. Harvey and his wife were both
properly belted. But on impact, their seatbacks collapsed rearward, causing them to
be ejected out of their seats. The children,
who were seated behind them, were
struck in the process. No longer being in
the driver’s seat, Mr. Harvey was unable to
control the vehicle which left the road and
rolled over several times.
The driver of the Mercury Cougar had
been drinking. Approximately two hours
after the accident, his blood alcohol was
tested and found to be over the legal
limit. It was learned that the Defendant
driver had been gambling and drinking at
a casino for about four hours before the
accident occurred. The driver had run
out of money and returned to his home
approximately 20 miles away to get his
checkbook and was returning to the
casino when he ran into the back of the
Ford Explorer. Other witnesses observed
the Defendant driver leaving the casino
approximately 45 minutes before the
accident and say that he appeared to be
intoxicated.
The claims against Ford Motor Company
were based on the defective design of the
front bucket seats in the 1994 Ford
Explorer. The seats were not of sufficient
strength to maintain the occupant in a safe
upright seated position in a foreseeable
collision. While the federal government
requires vehicles to pass occupant protection standards at 35 mph frontal impacts,
there is no corresponding requirement for
rear impacts. In this case, the impact velocity of the rear-end collision was approximately 24 mph. Certainly, motor vehicle
seats should maintain occupants in their
seated upright position in a foreseeable
collision of this survivable magnitude.
Expert testimony in this case established
that had the seats remained upright, none
of the occupants would have received catastrophic or life-threatening injuries.
The Plaintiffs settled their claims against
Ford Motor Company for a confidential
amount. The remaining claims are still
7
pending against the Defendant driver for
causing this accident and against 7 Clans
Paradise Casino for serving alcohol to a
visibly intoxicated patron who they knew,
or should have known, was going to
operate a vehicle on Oklahoma highways.
Graham and Paul did a very good job for
the Harvey family. They will now proceed
with the rest of this case which will
include claims against the drunk driver
and the casino.
Another Roll-Over Case Settled
“diving” have also been exposed as legend
and myth.
Credible, trustworthy organizations
such as the Insurance Institute for
Highway Safety (IIHS), the Center for Auto
Safety, Monash University, and Public
Citizen, among many others, began
researching and investigating the “diving”
theory. They have all now concluded, with
no exceptions, that roof crush is causally
related to occupant injury and that stronger roofs will save lives. Even NHTSA now
agrees with them. This is best evidenced
by the fact that NHTSA has now doubled
the current roof strength requirement for
all passenger cars and light trucks. The
new standard will be phased in starting in
September 2012.
The shameful aspect of this is that
Bonnie Blackwell, along with countless
other catastrophically injured and killed
individuals, was exposed to defective roof
designs by the auto industry. Instead of
building stronger roofs, a handful of manufacturers, the “flat-earthers,” preferred to
perpetuate fraud in courtrooms across this
country. It’s a sad commentary on our
times that on many occasions they got
away with it. The amount of the settlement in this case is confidential. But
Graham and the Turner firm did a very
good job for a woman who badly needed
their help.
Graham Esdale from our firm, working
with Halron Tatum and Tatum Turner,
lawyers from Chatom, Alabama, recently
settled a case against Mazda and Ford
Motor Company involving a 2002 Ford
Escape, which is a sport utility vehicle. The
discovery phase of this case revealed that
Mazda was responsible for the design and
testing of the restraint system and roof
structure of the Ford Escape and its sister
vehicle, the Mazda Tribute.
This accident occurred on June 25, 2006
in Washington County, Alabama, when
Bonnie Blackwell swerved to avoid an
object in the road. While attempting to
regain control of the vehicle, it side-swiped
a tree, began to slide sideways and rolled
over one and one-half times. Despite being
properly belted, Ms. Blackwell was rendered a quadriplegic in this accident.
Expert testimony established that Ms.
Blackwell received her injury as a result of
excessive slack being introduced into the
restraint system combined with the A-pillar and roof header crushing in on her. It
was also established by experts that this
injury could have been prevented by
either limiting excessive slack in the
restraint system, thereby reducing occupant excursion, or by strengthening the
roof, which would limit roof intrusion.
Mazda and Ford defended this case just
like they have defended other roof crush
cases over the last 20 years. They always
claim that roofs stronger than the
minimum federal standard do not provide
any additional occupant protection. The
companies claim roof crush is not causally
related to occupant injury because belted
occupants “dive” into the roof before any
deformation occurs. This defense strategy
has become known as the “f lat earth
defense.” Folks used to say that ships
would fall off the edge of the earth. So
now the auto manufacturers’ claims of
Our firm recently settled a lawsuit for
three clients whose proper ty was
adversely affected by leaks from two separate underground storage tank (“UST”)
systems located in Walker County, Ala. In
this case, the two USTs leaked gasoline
and diesel fuel into the soil and groundwater on and near our clients’ properties. The
toxic gasoline and diesel constituents contaminated our clients’ property with dangerous chemicals, including benzene.
As in many UST leak cases, our clients
were not aware that a UST leak had
occurred until the owners of the USTs
removed the systems and conducted tank
closure environmental testing required by
the Alabama Department of Environmental
Management. After discovery of the leaks,
our environmental experts conducted
extensive testing of the soil and groundwater on our clients’ property and confirmed
the existence and extent of the gasoline
8
Leaking Underground Storage Tank
Case Settled
and diesel contamination on the properties. Because of the contamination, our
clients suffered a significant loss in the
value of their property.
Rhon Jones and Chris Boutwell from
our firm’s Toxic Torts Section along with
co-counsel Edward Jackson of Jackson,
Fikes, Hood & Brakefield, PC, located in
Birmingham, worked on this case and did
a very good job for their clients. The terms
and amount of the settlement are confidential, but our clients were well pleased
with the outcome. The case was referred
to us by Thomas Carmichael, a very good
lawyer from Jasper, Ala. If you would like
more information, believe that your health
or property has been harmed by a leaking
UST, or have questions, you can contact
Chris Boutwell (Chris.Boutwell@beasley
allen.com) in our office at 800-898-2034.
Apartment Fire Cases Settles
Our firm settled a case last month
against an apartment complex in Andalusia,Alabama, and its management company,
Huff Management, Inc. Our client suffered
second and third degree burns over 20%
of her body when a fire started on the
stove in the kitchen of the apartment she
was renting from the Defendants. The
victim turned one of the stove pilots on
medium to heat some grease to cook her
dinner. She left the kitchen for just a
moment when an ordinary grease fire
went undetected and spread rapidly out of
control because the smoke detectors in
the apartment did not work. Neither did
the complex provide fire extinguishers as
required by law.
In addition, the fire stop canisters
installed under the hood of the stove to
extinguish grease fires did not deploy. Had
the canisters deployed, the grease fire
would have been extinguished immediately, before it could pose any threat. The
reason the canisters failed to deploy was
because the canisters expired four years
prior to the fire. When our client returned
to the kitchen, she was faced with the task
of putting out a fire which threatened the
entire complex without an extinguisher
and which should have never spread like
it did. While she was attempting to extinguish the fire, our client was severely
burned. Her burns left her totally disabled
and unable to work at her present job and
any job in the future.
During the pretrial phase of the case,
we learned that the Defendants not only
tampered with some of the key evidence,
the fire stop canisters, but actually
destroyed them in an attempt to cover up
their wrong doing. At the outset, we
learned from some of the Defendants’
employees who were in our client’s apartment within days of the fire that the fire
stop canisters failed to deploy. But, when
we deposed the Defendants’ fire expert, he
produced photos that he took three weeks
after the fire showing that the canisters
did deploy. When we asked to examine the
canisters, however, the Defendants stalled
and eventually stated that they could not
find the canisters. After several requests,
the Defendants finally produced canisters
that they had attached to the stove’s hood
that was involved in the fire. Remarkably,
these canisters were not the ones involved
in the fire. The Defendants not only
destroyed the canisters, which implicated
them in this case, but they actually affixed
other canisters to the stove’s hood in an
attempt to cover up their wrongdoing. It
was not until we filed various motions for
sanctions with the Court did the Defendants admit that the real canisters were no
longer available.
While some of the motions for sanctions
were pending, the case settled for a confidential amount. The case was pending in
Covington County before Judge Ashley
McKathan. LaBarron Boone and Rick Morrison, lawyers in our firm, along with Wes
Laird of Opp, Alabama, handled this case
and did a very good job for our client.
Case Against Drunk Driver In Georgia
Settled
On November 15, 2009, our client,
Caitlin Skeen, was a passenger in a vehicle
driven by William Owen on a Georgia
highway in Gwinnett County. Owen, who
was 19 years old, was under the influence
of alcohol, fell asleep and lost control of
the vehicle, causing it to leave the
roadway. The vehicle went airborne and
flipped, ejecting our client. She lost consciousness and suffered severe injuries,
including a skull fracture, a concussion,
multiple fractures in her thoracic spine,
fractured left shoulder blade and left arm.
She also suffered hearing loss in one ear.
Our client was required to undergo a
multi-level thoracic spinal fusion and was
hospitalized for several days. This case was
settled for a confidential amount, but all
available liability insurance coverage and
underinsured motorist coverage available
were paid as part of the settlement. Julia
Beasley from our firm represented the
Plaintiff and did a very good job.
VI.
COURT WATCH
High Court Takes Up Baycol Class
Action Case
The U.S. Supreme Court will decide
whether a U.S. District Court can enjoin a
state court from certifying a product liability class action after it refused to certify a
class in similar cases brought by different
Plaintiffs. The Court has agreed to review
an Eighth Circuit case involving prescription drug users who alleged injury as the
result of taking Baycol, which is manufactured by Bayer. The Plaintiff’s case was one
of thousands of similar Baycol suits consolidated in a multidistrict litigation proceeding before the district court. The named
Plaintiff sought to represent a class of West
Virginia users of the drug.
After the district court denied class certification, two different Baycol users filed
a lawsuit in West Virginia state court, also
seeking certification of a West Virginia
class. In response, Bayer filed a motion
under the Anti-Injunction Act for the district court to enjoin the relitigation in
state court of the certification of a West
Virginia class. Although the Anti-Injunction Act generally prohibits federal courts
from interfering in state proceedings, it
also permits injunctions necessary to
protect federal judgments. The district
court in this case enjoined the state court
Baycol proceedings.
The Eighth Circuit concluded that the
injunction was authorized by the Act and
justified under principles of collateral
estoppel. The Court concluded that “in
the context of [multidistrict litigation]
proceedings, certification in a state court
of the same class under the same legal
theories previously rejected by the
federal district court presents an issue
sufficiently identical to warrant preclusion under federal common law.” A decision from the U.S. Supreme Court is
expected later this term.
Source: LawyersUSAonline.com
Lawyers Should Follow The Rules On
Pretrial Discovery
It goes without saying that lawyers on
both sides should follow the rules when
dealing with pretrial discovery issues. A
federal judge in Mobile has ordered
lawyers for ThyssenKrupp to pay more
than $11,000 to a Plaintiff’s lawyer in a discrimination lawsuit for failing to cooperate
with the other side. U.S. Magistrate Judge
Katherine Nelson previously had found
that the lawyers had failed to turn over
documents and make the steel mill’s
human resources manager and other
employees available for depositions. The
judge found “a pattern on the part of
Defendant’s counsel to thwart every effort
of the Plaintiff’s counsel to schedule the
depositions critical to Plaintiff’s case.” The Plaintiff’s lawyer now has all of the
documents he sought and has questioned
ThyssenKrupp’s employees under oath.
Plaintiff Regina White, who is black,
alleged in her lawsuit that she took a job
as an operations controller making
$85,000 a year and later discovered that
two white women hired to the same position after her received salaries of thousands of dollars more. The case is
scheduled for trial for this month. There is
no excuse for lawyers—regardless of
which side they represent—to refuse to
follow the rules that govern pretrial discovery. It’s good to see judges making sure
the rules are followed.
Source: AL.com
VII.
THE NATIONAL
SCENE
50 States Investigate MortgageServices Industry
The Attorneys General of all 50 states,
including Alabama, have started an investigation into whether sloppiness or deceit
led to the latest episode of the national
foreclosure drama, further threatening the
recovery of the U.S. housing market. Iowa
Attorney General Tom Miller, who is
heading the bipartisan investigation, said:
This is not a silver bullet to keep millions of Americans in their
homes. This is a chance to right the
9
law and get the process right, a
chance to have some extra time
... And maybe a chance to do some
modifications.
Attorneys General are investigating allegations concerning the accuracy and legitimacy of documents that lenders use to
evict people from the homes. Employees
of four large lenders have acknowledged
in depositions that they signed off on foreclosure documents without reading
them. The initial focus will be on whether
industry employees—so-called “robo-signers”—signed off on thousands of foreclosures every month without reviewing the
files as legally required. While robo-signing
is one problem, other issues should be
examined. The immediate goals of the
investigation appear to be a halt of
improper foreclosures and a review of the
past and present mortgage service practices.
There are over 400,000 homeowner
foreclosures ongoing at present. In courts
throughout the nation, lawyers for homeowners have alleged that lenders forged
signatures and improperly notarized documents in the rush to foreclose on homeowners. Connecticut Attorney General
Richard Blumenthal said in a statement:
Banks blatantly broke the law,
papering the courts with defective
documents to railroad consumers
into fast, possibly fraudulent foreclosures. At the best, banks engaged in
careless negligence, at worst, outright fraud.
Such practices might have violated laws
against unfair and deceptive trade practices, which could result in civil penalties.
Ohio Attorney General Richard Cordray,
who recently filed the nation’s first lawsuit
against a mortgage servicer over allegedly
fraudulent affidavits, said:
This is the clearest signal yet to the
major mortgage lenders and servicers that they need to take serious
measures to fix problems with affidavits. What we have seen are not
mere technicalities, as some suggest.
Rather, this is about the private
property rights of homeowners
facing foreclosure and the integrity
of our court system, which cannot
enter judgments based on fraudulent evidence.
10
The joint investigation into the practices
of the booming mortgage-servicing industry could pressure financial institutions to
rewrite a sea of corrupt paperwork. Previous calls for a nationwide foreclosure moratorium had industry insiders worried but
the states stopped short of requesting
such a measure.
On October 11th the Obama Administration rejected calls for a nationwide moratorium on foreclosures amid growing
concerns about the market’s recovery. A
moratorium would have helped families
on the verge of losing their homes. But the
banking industry claimed it would lead to
a backlog of homes on the market and
further depress prices. It appears the latter
group has more clout in the White House.
In recent weeks, major lenders such as
JPMorgan Chase, Ally Financial’s GMAC
Mortgage unit and Bank of America have
conceded that paperwork supporting an
unknown number of foreclosures contain
errors ranging from wrong dates to forged
or inconsistent signatures. In some
instances, mortgage company employees
signed foreclosure documents without
first verifying the information in them. In
response, the banks have suspended tens
of thousands of pending foreclosures.
Bank of America, for example, has suspended all its foreclosures in 23 states.
Source: ABC News
Transocean Ordered To Pay $4 Million
For Worker’s Injury
A federal jury has ordered Transocean to
pay more than $4 million in damages to an
oilfield worker injured in an offshore rig
accident. Dan Averette, a 32-year-old
worker, filed the lawsuit as a result of the
July 14, 2007, accident aboard the Amirante, a rig owned by Transocean Enterprise Inc. And operated by Transocean
Offshore Deepwater Drilling Inc. The
worker, a casing stabber employed by
Frank’s Casing Crew and Rental Tools, was
injured when the rig’s hydraulic basket
malfunctioned while he was working in it.
It was proven at trial that the accident left
him with permanent brain damage.
VIII.
THE CORPORATE
WORLD
Wyeth Promoted Dangerous Off-Label
Use Of HRT Medications
Letters written in July 2000 by sales representatives of Wyeth-Ayerst Laboratories,
a division of Pfizer pharmaceutical
company, have recently been made
public. The letters, addressed to Wyeth
executives and to the Alabama Office of
Ethics and Business Conduct, express
serious concerns by Wyeth employees that
the company encouraged and even
required its drug sales representatives to
promote dangerous off-label usage of its
hormone replacement therapy (HRT)
drugs, Premarin and Prempro. These off
label uses were never approved by the U.S.
Food & Drug Administration.
As we have written in prior issues, Premarin, Prempro and other HRT therapies
are traditionally used to treat symptoms of
menopause in women. Off-label uses promoted to physicians by Wyeth representatives included prevention and treatment of
cardiovascular disease, Alzheimer’s disease
and colorectal cancer. It’s now widely
known that Premarin and Prempro have
since been linked to the development of
breast cancer.
The sales representatives who wrote
these letters marketed medications to physicians in Alabama and Georgia in their
work for Wyeth. In one of the letters,
Cynthia L. Waldrep, who was a Territory
Specialist, wrote, “I fear that [patients’]
lives may be placed in serious potential
danger.” She goes on to say, “It appears the
only thing that matters now is increasing
market share.” Also Charles H. Payne, a
Wyeth-Ayerst Territory Manager, wrote,
“This is a potentially life threatening situation for the women in Alabama and
Georgia and I will not be intimated [sic] or
coerced to relent in my actions to correct
this problem.”
These letters were kept confidential as
part of ongoing litigation against Wyeth,
but recently were released as public
record. Our firm is representing numerous
clients who were either injured or had
family members to die as a result of using
Premarin and Prempro. The employees of
this company took a bold and courageous
step in speaking out against their unethical practices. By marketing these drugs for
uses that were never approved, Wyeth put
the lives of thousands of women at serious
risk. Now, since these letters can finally
come to light, more people can learn that
all too often Big Pharma is only concerned
about its own bottom line, not the health
and well-being of the public.
Military Vehicle Firm To Pay $24 Million
In Settlement
Armored vehicle maker Force Protection Inc. has agreed to pay $24 million to
settle a class-action lawsuit that alleged
some its former top executives profited by
selling stock while failing to warn shareholders about accounting problems and
other issues. The proposed settlement, a
majority of which will be covered by
insurance, will have to be approved by a
U.S. District Court.
The lawsuit was filed more than two
years ago by a class of individual shareholders. It was alleged that certain executives did not notify their investors about
delays in delivering the company’s trademark blast-resistant vehicles to the U.S.
military or about the failure to fix its
accounting system. Those shortcomings
affected the company’s ability to win contracts from the Department of Defense,
according to the lawsuit.
The executives profited by selling stock
for tens of millions of dollars, according to
the Complaint. It was alleged further that a
former Force Protection chairman, investor Frank Kavanaugh, sold more than $64
million worth of shares before stepping
down in June 2007. Gordon McGilton, the
company’s ex-president who left in
January 2008, sold shares worth more than
$23 million. But instead of disclosing information about the difficulties Force Protection faced, executives reassured investors
of their confidence in the company’s
future. As a result, the share price continued to trade at a high rate, according to
allegations in the Complaint. The filing of
the suit in March 2008 came after a year of
dramatic decline in the company’s stock. It
dropped from a high in May 2007 of
$30.27 to less than $3 a share.
The company’s accounting problems
came to light when Force Protection said
it would be late in filing its annual report
for 2007 and would restate earnings for
some previous reporting periods. Execu-
tives blamed the problem on an accounting error. Within days, two top executives
resigned. Those men, Raymond Pollard,
chief operating officer, and Michael Durski,
chief financial officer, were named as
Defendants in the lawsuit, along with
Kavanaugh, McGilton and Michael Moody,
the current president and chief executive.
Executives didn’t address the company’s
vehicle delivery problems even after a government report found that Force Protection had missed 98% of its deadlines. The
lack of accounting oversight jeopardized
the company’s ability to secure future contracts. A day after the price hit its peak in
2007, Kavanaugh made his final reported
sale of Force Protection shares, according
to filings with the SEC. Those filings
showed he sold more than 5.3 million
shares in the ten months leading up to
that peak. Force Protection still faces other
shareholder lawsuits in several states.
Source: Post and Courier
Government Settles With Two Of The
Three Largest Credit Card Companies
The Justice Department has filed suit
against the three largest U.S. credit card
companies for anticompetitive practices. A
proposed settlement has already been
reached with MasterCard and Visa, two of
the Defendants. Attorney General Eric
Holder, discussing the settlement, told a
news conference:
We want to put more money in consumers’ pockets, and by eliminating
credit card companies’ anticompetitive rule, we will accomplish exactly
that. T he companies put merchants
and their customers in a no-win situation and consumers are being
held hostage.
The Justice Department and various
state Attorneys General sued all three
companies in federal court in Brooklyn. It
was alleged the Defendants were attempting to insulate themselves from competition. Under the proposed settlement, Visa
and MasterCard agreed not to prohibit
merchants from offering customers discounts or rebates for using a particular
kind of card.
It’s alleged in the lawsuit that the card
companies are impeding merchants from
promoting the use of competing credit or
charge cards with lower acceptance fees.
Each time consumers use a credit card to
make a purchase, the merchant must pay a
fee. Such fees brought in $35 billion last
year to the three credit card companies
and their affiliated banks. The settlement
agreement with Visa and MasterCard are
most significant, leaving only one Defendant in the lawsuit.
Former Countrywide Chief Settles SEC
Charges
Countrywide Financial Corp. co-founder
Angelo Mozilo has agreed to a $67.5
million settlement to avoid going to trial
on civil fraud and insider trading charges.
He had been accused of profiting while
doling out risky mortgages and misleading
investors about the risks. Two other
former Countrywide executives also
settled before trial on charges filed by the
Securities and Exchange Commission.
Interestingly, employment agreements that
protect the men from lawsuits involving
the failed lender mean Bank of America
Corp., which bought Countrywide in July
2008, will actually pay most of the settlement. The settlement will allow the executives to avoid the risk of a guilty verdict
that could have been used against them in
lawsuits by shareholders. It may well also
help them if prosecutors decide to go
forward with a criminal probe into their
activities. However, it’s doubtful this will
happen.
The SEC accused the men of misleading
shareholders about the quality of the loans
on Countrywide’s books. The civil Complaint also accused Mozilo of acting on his
inside knowledge of the company’s precarious state when he sold shares between
November 2006 and October 2007 ahead
of its collapse, reaping more than $139
million. Mozilo was the nation’s highestprofile Defendant yet to face trial for risky
business practices leading to the housing
collapse that sent the country into recession. Under the settlement, Mozilo agreed
to never again serve as an officer or director of a publicly traded company. Sambol
agreed not to do so for three years.
Source: MSNBC
11
CVS To Pay $75 Million Fine In Meth
Case
CVS Pharmacy Inc. has agreed to pay
$75 million in fines for allowing repeated
purchases of a key ingredient in the
making of methamphetamine in at least
five states. The nation’s largest operator of
retail pharmacies will pay what is believed
to be the largest civil penalty under the
Controlled Substances Act. The company
also will forfeit about $2.6 million in
profits earned from the sales of pseudoephedrine, which can often be found in
cold medicine and is used to make meth.
CVS didn’t provide enough safeguards
to monitor how much pseudoephedrine
someone was buying. The company violated federal drug regulations in Arizona,
Georgia, California, Nevada, and South Carolina and possibly 20 other states.
U.S. Attorney Andre Birotte Jr. observed:
This case shows what happens when
companies fail to follow their ethical
and legal responsibilities. CVS knew
it had a duty to prevent methamphetamine trafficking, but it failed
to take steps to control the sale of a
regulated drug used by methamphetamine cooks as an essential ingredient for their poisonous stew.
The company paid the $75 million fine
last month. The remaining forfeiture is due
within 30 days. Thomas Ryan, chairman
and CEO of parent company CVS Caremark, admitted that the company unacceptably breached its policies, but has
worked to fix the problem. Ryan said CVS
will make certain this kind of lapse never
takes place again. He says the company
has strengthened its internal controls and
compliance measures. This will require
improving handling and monitoring of
CVS’ pseudoephedrine by implementing
enhanced technology and making other
improvements in the stores and distribution centers.
Federal agents began investigating CVS
in 2008 after the arrest of several people
in Southern California for unlawful possession of pseudoephedrine with the intent
to manufacture meth. They said those
people had bought large amounts of the
ingredient from CVS stores in the region.
Investigators learned CVS had committed
thousands of violations of a federal law
limiting the amount of pseudoephedrine a
customer can buy in a day. Although the
12
pharmacy chain created an automated
system to record individual sales, it didn’t
prevent multiple purchases by someone
on the same day. In some locations, it was
reported that buyers would clear entire
store shelves of cough and cold medicines
and that alone would make anybody
realize what was going on.
The company did eventually change its
sales practices but only after it became
aware of the investigation, according to
prosecutors. By agreeing to pay the fine,
CVS will not face potential criminal
charges and the company will implement
a compliance and ethics program over the
next three years. CVS has more than 7,100
stores in the U.S.
Source: CBS News
IX.
CAMPAIGN
FINANCE REFORM
Reform Is Badly Needed On The
National Level
There is an urgent need for campaign
finance reform on the national level. Our
current laws are grossly inadequate and
it’s quite obvious that many changes are
badly needed. But don’t expect anything
to happen this year. Hopefully, the public
will finally demand reform very early next
year. Now that the U.S. Supreme Court has
turned Corporate America loose, allowing
companies to spend unlimited amounts in
races, any meaningful reform must address
that issue. Also, third party groups have to
be controlled. Currently, under existing
law, it’s impossible to learn where the hundreds of millions of dollars are coming
from that are being funneled through
these groups. But you can rest assured that
none of it is coming from working men
and women. When you consider that at
least four shadow groups have access to
well over $250 million to spend, virtually
without restriction, on Congressional candidates, it’s time for the American people
to demand reform.
The Need For Reform In Alabama Is
Great
The next governor will have an opportunity to do something that no governor in
recent memory has really tried to accomplish: to bring about real reform of Alabama’s broken campaign financing system.
Until a governor and legislative leaders
really make campaign finance reform a top
priority, and then do more than talk about
it, nothing of real significance will happen.
It’s clear as a bell that we need reform
across the board in our state. Not only
should amounts that can be donated to
candidates be restricted, but the amounts
that candidates can spend in state elections must also have reasonable limits.
Limits on the amounts that political parties
can give must also be a part of real reform.
In addition, third-party groups that do not
have to disclose the sources of their funds
should not be allowed to participate at all
in state elections.
Judicial races must be treated differently
than other races for obvious reasons. Candidates for judicial positions must be
required to run in non-partisan elections. The amounts that can be given to
candidates and the amounts they can
spend must have reasonable limits. No PAC
money, no political party, and no third
party group money should be allowed in
judicial races.
Hopefully, the next governor will
make campaign finance reform one of
his top priorities and be 100% committed. That is the only way that real reform
will ever come about. But when you get
down to it, it will really be up to the
people of Alabama to make sure reform
is a top priority.
X.
CONGRESSIONAL
UPDATE
A Mixed Performance By Congress
When Democrats gained a stronger
majority in both the House of Representatives and the Senate after the 2008 election, most Americans hoped to see a
significant amount of progressive legislation pass and become law. But unfortunately, it hasn’t worked out that way. While
the Congress has made some improvements that affect consumers, it simply
hasn’t done enough. It appears that even
though a number of the members of Congress really want to do the right thing, the
powerful, special interests still run the
show. In most cases, lawmakers have
allowed industries to block legislation that
affected them or at least water it
down. The effort to bring about financial
reform is a classic example of how things
work in Congress. We got reform, but it
wasn’t nearly strong enough and left too
many loopholes.
After the financial sector and the U.S.
economy crashed in the Fall of 2008, taxpayers demanded that Wall Street be
reined in. The public wanted guarantees
that their money would never again be
used to bail out an industry that had acted
so recklessly. They waited for change, but
in many areas of concern, they are still
waiting. Legislation that would stop Wall
Street and the big banks from ripping off
consumers and endangering the economy
was introduced. The big banks countered
with their own lobbyists to block proposed constraints on their windfall-inducing, risky behavior. Wall Street brought in
the troops in an effort to kill or water
down the legislation. Organizations in the
financial services sector have deployed at
least 1,447 former federal employees to
lobby Congress and federal agencies since
the beginning of 2009, including at least
73 former members of Congress.
Despite the financial industry’s efforts,
Congress passed legislation in July to
reform the sector. The new legislation,
which President Barack Obama signed
into law, made many advances for consumers including creating a Consumer Financial Protection Bureau and making the
derivatives market more transparent.
Public Citizen also helped roll back bad
things that industry lobbyists had snuck
into the bill, such as a proposal to deregulate existing state insurance solvency and
other standards via trade agreement preemption. But, the law omitted meaningful
restraints on executive and top trader
compensation, a financial speculation tax
and rules to break up the biggest banks.
Robert Weissman, president of Public
Citizen, observed:
Particularly because it does not
break up the megabanks, the new
financial reform law does not
ensure that we will not have a
repeat of the financial crisis. Another
round of reform will be needed to
achieve that objective.
Hopefully, the Obama Administration
will realize next year that they must work
harder to get their programs through Congress. The President and his team must
also work to loosen the “hold” the powerful special interests and their lobbyist have
on Congress.
Source: Public Citizen
XI.
TOYOTA
LITIGATION
UPDATE
Toyota Says It Fixed 3.7 Million
Vehicles In Recall
Toyota Motor Corp. said last month that
it had fixed about 3.7 million vehicles in
the United States as part of its massive
safety recalls. The world’s largest automaker said in a progress report Monday
that it had aggressively responded to safety
problems at the urging of its president and
other top company officials. That sounds
good, but I believe the litigation the
company faces had more to do with it
than anything else.
It should be noted that U.S. regulators
fined Toyota $16.4 million earlier this year
for failing to promptly tell the government
about its car defects. The government has
received about 3,000 complaints about
sudden acceleration and estimated the
problem could be involved in the deaths
of 93 people over the last decade.
Allstate Files Suit Against Toyota
Allstate Insurance Co. has sued Toyota
Motor Corp., seeking to recover more than
$3 million the insurer and affiliates paid in
claims for accidents linked to unintended
acceleration in Toyota vehicles. The
lawsuit, filed in Los Angeles Superior Court
last month, marks a relatively new front in
the wave of litigation against the Japanese
automaker for economic losses stemming
from complaints about Toyotas that have
sped out of control and crashed. Allstate
said it expects to be one of several insurance companies that are taking this
action. The allegations are like those in a
major class-action consumer suit pending
in federal court against Toyota. The Allstate
complaint says the automaker long
ignored evidence of acceleration problems
in its vehicles and failed to install a brake
override system that would have prevented accidents.
The Allstate action asserts, as have other
lawsuits, that acceleration flaws were
rooted in a defect in an electronic throttle
system Toyota introduced in the 1990s,
and that Toyota ‘’essentially hid the
problem’’ instead of recalling the cars or
changing the design. “This has resulted in
numerous claims of instances of property
damage and injuries, including in some
instances fatalities,’’ the suit says.
Claims paid by Allstate and affiliates to
policyholders or third parties for accidents
involving unintended acceleration in
Toyotas total more than $3 million, according to the suit. That sum is a fraction of the
$10 billion in total potential U.S. civil liability Toyota is estimated to face overall from
unintended acceleration. But similar suits
from other insurance carriers are bound to
multiply the effect of such subrogation
claims.
The unprecedented magnitude of the
recalls has damaged Toyota’s once-sterling
reputation for safety and reliability in its
largest market. The National Highway
Traffic Safety Administration is investigating reports that as many as 89 crash deaths
since 2000 may be linked to unintended
acceleration in Toyota cars.
Source: Insurance Journal
Shareholders File Consolidated
Complaint On Vehicle Recalls
Toyota Motor Corp. has been accused
by U.S. investors of violating securities law
by failing to disclose acceleration-related
defects that it knew about, according to
allegations in a consolidated Complaint in
a class-action lawsuit. The shareholders,
led by the Maryland State Retirement and
Pension System, said in the October 4th
filing in federal court in Los Angeles that
internal documents show Toyota deliberately concealed unintended sudden acceleration problems in the U.S. They said the
company knew about the defects as early
13
as 2000 and “stonewalled” regulators to
avoid recalls. The investors said:
As government regulators and the
media began to focus on this serious
safety problem in the Toyota vehicles,
Defendants initially denied that any
unintended acceleration problem
existed, despite a plethora of internal evidence to the contrary, and
instead blamed driver error and
media-induced publicity.
Toyota’s recalls related to sudden acceleration defects have erased $30 billion in
market capitalization, the investors
said. The Maryland pension fund seeks to
represent investors who bought Toyota’s
American depositary receipts from May
10, 2005, to February 2, 2010. The fund
also wants to represent investors who
bought the carmaker’s common stock in
domestic transactions during that period
as well as, through claims made under Japanese law, all investors who bought the
common stock during that time, according
to the Complaint.
Source: Bloomberg
XII.
PRODUCT
LIABILITY UPDATE
The Fight Against Preemption
Several months ago, we reported on a
landmark achievement by the Obama
Administration related to federal preemption. On May 20, 2009, President Obama
reversed one of the most nefarious practices of the Bush Administration by issuing
a memorandum (Preemption Memo)
aimed at curbing federal preemption by
regulatory fiat. With the Preemption
Memo, the President made clear his intent
to limit federal agencies’ efforts to
preempt state law claims merely by declaring that they would conflict with federal
regulatory purposes. This position represents a radical shift from that taken by the
Bush Administration, which aggressively
encouraged federal agencies to seek to
preempt state tort law in precisely that
fashion. If you recall, the underlying premise of
federal preemption is that where a clear
conflict exists between a federal rule/regu-
14
lation and state law claims, the federal
rules govern and state law claims are preempted. For the first 150 years of government in the United States, there were
relatively few occasions when the
Supreme Court was called upon to
examine the extent of any alleged conflict
between federal and state laws. However,
as our country grew, and as our federal
government grew, so did federal rules and
federal regulations. Within the last 20 years
or so, there was a dramatic increase in the
demands upon our courts to determine
the extent of federal preemption of state
law claims.
During George W. Bush’s Presidency, his
Administration saw federal preemption as
an opportunity to enact stealth tort
reform. Seven federal agencies issued over
60 proposed or final rules that were
accompanied by introductor y statements—commonly known as preambles—
stating that the rule preempts state tort
law on the grounds that lawsuits involving
the regulating matters would conflict with
the agencies’ regulatory goals. The most
notorious example of this practice was the
preamble to a 2006 United States Food
and Drug Administration labeling regulation, which stated that the agency’s
approval of a prescription drug’s label
“preempts conflicting or contrary State
law,” including lawsuits seeking to hold
drug manufacturers liable for failing adequately to warn of a drug’s dangers. This
preemption preamble was particularly
egregious because it represented a 180degree reversal of the FDA’s prior views
on the matter: before the Bush Administration took power. The FDA enthusiastically
endorsed tort litigation as complementing
the agency’s ability to ensure the safety of
prescription drugs.
Hopefully, the Bush Administration’s
aggressive practice of seeking to expand
federal preemption of state tort law
through regulation ended with President
Obama’s Preemption Memo. But the fight
is not over. Recently, the United States
Supreme Court granted certiorari to determine whether one of the Federal Motor
Vehicle Safety Standards (FMVSS) issued
by the National Highway Traffic Safety
Administration preempts a state law
product liability claim. In Williamson v.
Mazda Motor of America, Inc., the Plaintiff seeks to hold Mazda accountable for
the death of Thanh Williamson, killed in a
head-on collision when her body “jack-
knifed” around a lap-only seatbelt installed
in the aisle seat of her family’s 1993 Mazda
minivan. Although the vehicle’s other
occupants had lap/shoulder seatbelts and
survived the crash, there was no lap/shoulder harness installed for Thanh’s seat.
Thanh’s parents filed a lawsuit in California state court against Mazda on state
tort claims, including products liability and
negligence. Their Complaint alleged, in
part, that Thanh’s seat should have been
equipped with a lap/shoulder belt to
restrain her upper torso in a frontal collision. Although lap/shoulder belts are universally understood to provide greater
safety to car occupants, Mazda argued that
the Plaintiffs’ claims were preempted by
the FMVSS that gave Mazda the choice of
installing either lap-only or lap/shoulder
seatbelts in the rear-center seats of cars
and in the aisle seats of minivans.
Both the trial court and the California
Court of Appeals agreed, holding that,
under a broad reading of Geier v. American Honda Motor Co., Standard 208—the
federal standard in question—“preempts
common law actions alleging [that] a manufacturer chose the wrong seat belt
option....” In Geier, the U.S. Supreme Court
held that a 1984 version of Standard 208
preempted a claim that a car maker should
be held liable for failing to install an airbag.
In Williamson, both the U.S. Government, through the Solicitor General, and
Public Justice, have argued that Geier has
been misapplied by courts across the
country, allowing federal preemption in a
host of areas that Congress never
intended. They maintain that, to resolve
the massive confusion caused by Geier, the
Court should limit preemption to circumstances where Congress has explicitly said
state law should be preempted, or where
the state law claim would directly contradict a specific federal law mandate. Needless to say, during the Bush Administration,
the U.S. Government would have never
sided with the Williamson family on this
preemption issue.
Clearly, Mazda should not be permitted
to hide behind a preemption defense for
its unsafe seatbelt. As the public well
knows, a three-point restraint more effectively protects occupants compared to a
lap belt only. Hopefully, the United States
Supreme Court will accept the arguments
of the United States Government and
Public Justice and will greatly curtail the
misuse of the preemption doctrine by car
manufacturers. Automobile manufacturers
should not be able to avoid liability for
their wrongdoing in manufacturing defective products that kill and seriously injure
people. If you need more information on
this subject, contact Cole Portis, who
heads up our firm’s Personal Injury/
Product Liability Section, or Dana Taunton,
a lawyer in the Section at 800-898-2034, or
by email at Cole.Portis@beasleyallen.com
or Dana.Taunton@beasleyallen.com.
Source: Public Justice
$19 Million Verdict In Seatbelt Case
Against Ford
A federal court jury in Arkansas returned
a $19 million dollar verdict last month
against Ford Motor Company. The Plaintiff
in the case was paralyzed in a December
27, 2005 motor vehicle accident in Greene
County, Arkansas, approximately 13 miles
from Jonesboro. He swerved as a dog ran
in front of his 1998 Ford Windstar and the
van began to roll. The Plaintiff was
wearing his seatbelt, but during the rollover he was ejected and sustained paralyzing injuries. The Plaintiff is now a
tetraplegic, with partial use of his hands
and arms.
The defect claim focused on the design
of the buckle and particularly the release
button housed within the buckle of the
restraint system on the 1998 Windstar.
The design utilized by Ford featured a protruding button. The top of the button is
located above the top of the buckle
housing permitting easier access to the
button. The protrusion of the button
renders the design of the buckle defective
and unreasonably dangerous because it
presents an unnecessary hazard for inadvertent release.
During the late 1980s and into the
1990s, Ford adopted a release button
designed for their seatbelt buckles which
was designed primarily to address aesthetics. Unfortunately, a protruding button
design increases the risk for accidental or
inadvertent release of the seatbelt. Since
the design was manufactured by TRW, it
was supplied not only on a number of
Ford vehicles but also other manufacturers
utilized the protruding button as well. By
the late 1990s, the entire industry, to
include Ford, started moving away from
the protruding buckle to a safer design
with a flush button. Also, later model vehi-
cles often used a console or some other
form of shielding for the buckle and
button from inadvertent release.
Those who have the Ford protruding
button in their vehicles should be aware it
does present a danger in the event of an
accident if an individual or object comes
in contact with the button causing an accidental release. Consumers are entitled to
have seat belts that work properly. Unfortunately, the protruding button design
causes the seat belts not to work properly
and protect occupants. Jim Pratt, a very
good lawyer with Hare, Wynn, Newell &
Newton, located in Birmingham, Alabama,
represented the Plaintiff and did an excellent job in the case.
Appliances In The Home That Can Tip
Over Are Dangerous
Many people don’t realize there are
certain appliances in their homes that can
create real hazards. This is because appliances, such as ovens that are unsecure, can
tip over. At least 34 people have been
killed in tip-over accidents in homes
across the country since 1980. The accidents are frustrating for safety advocates,
who have tried for years to get both the
manufacturers and consumers to recognize the risk. For example, the installation
of a simple bracket can secure an appliance
to a wall and that will solve the problem.
The U.S. Consumer Product Safety Commission counted 107 incidents resulting in
injur y or death from 1980 through
2006. Those included 33 fatalities—nearly
half involving children under age two—
and 84 injuries. Regardless of age, most
injuries were burns from hot liquids
spilled from pots or pans when a range
tipped. Of course, the real danger is when
a stove or other appliance tips over and
falls on a person.
Pressure put on an open over door, as
from a climbing child, may result in
enough leverage for a stove to pitch
forward. For example, Raven Holbert, age
three, of Sedalia, Missouri, died in December 2001 after she opened the stove door
in her family’s kitchen while reaching for
cookies on a countertop. She died two
days later from the blow to her chest. In
2009, a Modesto, California, toddler died
two days before his second birthday when
he climbed onto an oven door causing the
over to tip over. Investigators said he
opened the oven to use the door as a step.
The problem dates to the 1980s, when
appliance manufacturers began making
stoves lighter. Eventually, the industry
agreed to a voluntarily fix and it began
providing anti-tip brackets beginning in
1991. Every new stove is supposed to
include warnings and instructions on
installing the brackets. Now, the challenge
is getting homeowners and appliance
installers to use them. In 2007, consumer
experts estimated that as many as 45
million American homes had stoves
without an anti-tip device. Many communities require a bracket as a condition of
getting an occupancy permit. In those
areas, enforcement inspectors are not supposed to pass a property unless the oven
is installed to the manufacturer’s specifications.
Joan Claybrook, former president of the
Public Citizen advocacy group in Washington, pressed policymakers for years about
this issue. “We tried to lobby Congress to
ask for a recall,” she said. “They wouldn’t
do it.” Claybrook said the industry should
redesign stoves to remain stable without a
bracket. Manufacturers claim their products are already safe, if installed properly.
But safety principles require certain things
to protect the public.
When designing a product, the first obligation is to design out the danger. There
have been lots of lawsuits against manufacturers, home builders and installers due to
this safety hazard. In 2008, Sears settled a
class action lawsuit, agreeing to fix at least
3.9 million stoves that it sold and installed
from July 2, 2000, through September 18,
2007. The company agreed to install antitip devices for free, or pay $100 to anyone
who has paid Sears or a third party to
install the device. More information is
available from the Association of Home
Appliance Manufacturers online at http://
www.aham.org/consumer/ht/d/sp/i/2319.
Source: STLToday.com
An Update On Motorcycle Litigation
As many of you know, motorcycle use in
on the rise in this country. In the last
decade, motorcycle r ider ship has
increased over 50%. No longer are motorcyclists limited to the “easy rider” stereotype known for decades. In fact, it’s
estimated that almost 10% of all motorcycle owners are women. Harley-Davidson
has developed a strong following among
15
baby boomers and retirees. As a result, the
number of fatalities and serious injuries
involving motorcycle riders has increased
steadily. More motorcyclists were killed
last year than any year since the NHTSA
began collecting fatal crash data in 1975.
Many of the injuries and deaths are
caused by either defective motorcycles
and/or unsafe components. Last year,
Aprilia, Big Dog, BMW, Buell, Decati, HarleyDavidson, Honda, Kawasaki, Suzuki and
Yamaha all instituted recalls concerning
safety issues with their motorcycles. Some
of the defects commonly found with
motorcycles include defective tires, swing
arms, forks, throttles, kick stands, wheel
spokes, crash bars, helmets and brake
systems.
One of the most recent safety issues
concerning motorcycles are unsafe brake
systems. Defects in the braking system
which increase stopping time and distance
or the ability to control the bike in a
braking maneuver have been at the forefront of motorcycle litigation over the past
decade. One of the issues with motorcycle
brakes involves the manufacturer’s decision to equip motorcycles with anti-lock
braking systems (ABS). While manufacturers of other vehicles, such as tractor trailer
trucks, install anti-lock brakes on their
vehicles, motorcycle manufacturers have
lagged behind.
BMW first equipped its motorcycles
with ABS in 1988. By the year 2000, most
of the European manufacturers equipped
their production models with ABS. By
2005, the Japanese manufacturers were
offering them as options. Finally, in 2008,
Harley-Davidson began to make its bikes
with ABS.
In 2008, the Insurance Institute of
Highway Safety (IIHS) documented the
effectiveness of anti-lock brakes in preventing the number of crashes and the
fatality rate associated with motorcycle
crashes. The IIHS report in discussing the
usefulness of ABS stated:
Stopping a motorcycle is trickier than
stopping a car. For one thing, front
and rear wheels typically have separate brake controls. Both underbraking and overbraking the front and
rear wheels contribute to crashes. In
an emergency, a rider faces a splitsecond choice to brake hard, which
can lock the wheels and cause a
motorcycle to overturn, or to hold
16
back on the brakes and risk running
headlong into the emergency.
This is when antilocks can help. They
reduce brake pressure when they
detect impending lockup and
increase the pressure again when
traction is restored. Brake pressure is
evaluated multiple times per second,
so riders may fully brake without
fear of locking the wheels.
In summary, the IIHS concluded that
ABS-equipped motorcycles were involved
in 38% fewer fatal crashes than motorcycles without this feature.
Motorcycle manufacturers have known
for years that the most common motorcycle accident is the case of an automobile
driver turning left in front of the motorcycle. In such an emergency, the motorcycle
rider needs a braking system to help
control his motorcycle and avoid a potentially fatal accident. A motorcycle
equipped with ABS would provide the
rider with such a system. Unfortunately,
there are thousands of motorcycles made
in the last decade without ABS. The manufacturer’s decision not to equip its motorcycles with this feature has cost and will
cost several lives in the future. If you need
additional information on this subject
contact Rick Morrison, a lawyer in our
Product Liability Section, at 800-898-2034
or by email at Rick.Morrison@beasleyallen.com.
XIII.
MASS TORTS
UPDATE
An Update On Fosamax Litigation
As we have reported in past issues, our
firm is currently involved in litigation with
Merck involving the drug Fosamax. The
drug has been linked primarily to two
types of injuries. One is Osteonecrosis of
the Jaw (ONJ) and the other injury is
Femur Fracture. ONJ is a debilitating and
disfiguring condition which literally means
“jaw death.” You may recall our reporting
on the Boles case in the Fosamax MDL in
New York which involved ONJ and took
place last year resulting in a hung jury. The
case was recently re-tried, resulting in an
$8 million verdict for the Plaintiff. Since
that time, Judge Keenan has entered an
order giving the Plaintiff the option of
taking a reduced verdict of $1.5 million or
re-trying the damages portion of the case. There are three more Fosamax ONJ cases
scheduled to go to trial in the MDL over
the next eight months. Lawyers in our
firm’s Mass Torts Section have stayed busy
on these cases and they are currently preparing to try a Fosamax ONJ case in
January in Alabama.
The second type of injury we are investigating is subtrochanteric femur fractures. These fractures are occurring with
little or no trauma to the femur. They are
also referred to as “low-energy” femur fractures. On October 13, 2010 the FDA sent
out an advisory to patients and healthcare
professionals warning them of the risk of
femoral fractures linked to oral bisphosphonates, including Fosamax. There is consolidated litigation in New Jer se y
regarding Fosamax claims, some of which
involve femur fractures. There are cases in
New Jersey scheduled to go to trial this
year as well. If you want additional information on the Fosamax Litigation please
contact Chad Cook in our Mass Torts
Section at 800-898-2034 or by email at
Chad.Cook@beasleyallen.com.
DePuy Hip Replacement Litigation
On August 26, 2010, DePuy Orthopedics,
Inc., a subsidiary of Johnson and Johnson,
recalled two of its metal-on-metal hip
implant devices. The recall was due to
device malfunction causing a high rate of
revision surgeries and metal debris from
the devices’ components spreading
throughout a patient’s body. Studies that
led to the recall of the DePuy ASR XL Acetabular System and ASR Hip Resurfacing
Systems confirm that anyone who has had
one of these hip replacements have a
potential claim against DePuy.
In order to limit DePuy’s exposure and
determine how many potential claims
exist, DePuy has attempted to have
patients sign a consent form, which would
allow DePuy to obtain valuable information about the patient’s case before a
lawsuit is filed. In many cases, DePuy has
sent form letters to the orthopedic
doctors who have performed the surgeries, in order for the doctors to send the
letter to their patients. These form letters
request patients to contact DePuy in
order to obtain a claim number and
consent form for the patients to sign. In
some instances, the treating surgeon has
“required” their patients to contact DePuy
in order to get a claim number before the
surgeon agrees to see their patient for a
follow-up appointment.
Patients who sign this consent form and
subsequently decide to pursue a legal
action against DePuy may have negatively
affected their claims. If patients have
already signed a DePuy consent form, they
can revoke this consent at any time by
notifying in writing the person or organization that provided the consent form.
DePuy is working with an organization
called Broadspire to obtain consent forms
from patients and/or provide claim
numbers. The DePuy consent forms take a
potential client’s privacy rights away for
little in return and should be avoided. If
you want more information on this subject
please contact Navan Ward at 800-8982034 or by email at Navan.Ward@beasley
allen.com.
Abbott Withdraws Diet Pill In U.S. And
Canada
Abbott Laboratories will finally withdraw its diet pill Meridia in the U.S. And
Canada. This comes almost a year after
studies showed the drug increases the risk
of heart attack and stroke in patients with
a history of heart disease. The Food and
Drug Administration says it requested the
withdrawal because the drug’s risks were
not justified compared with “the very
modest weight loss that people achieve on
this drug.” Dr. John Jenkins, the FDA’s director for new drugs, said in a statement:
Physicians are advised to stop prescribing Meridia to their patients
and patients should stop taking this
medication.
On this same day, Health Canada, the
nation’s health department, announced
that Abbott would voluntarily pull the
drug from the market there. Meridia has
been available in both countries for more
than a decade. European regulators pulled
the product off the market in January after
a study showed that patients who had
heart disease had an 11% chance of heart
attacks or stroke while taking the drug
compared with a 10% risk for those not
taking it. Regulators in the U.S. And Canada
said they based their decisions on the
same data.
Meridia is not widely used in the U.S.,
with a steep decline in prescriptions in
recent years. About 283,000 prescriptions
for it were filled last year, just more than
half the number that were filled in
2005. The typical patient stays on the drug
for about 50 days, according to FDA
figures. Eighty percent of users are middleaged women. Abbott, which is based in
Chicago, says it still believes its drug has a
positive risk-benefit profile, but the
company agreed to comply with the FDA’s
request. A panel of FDA advisors had delivered a split vote of 8-8 on whether to
allow continued marketing of Meridia. The
FDA is not required to follow the advice of
the group, though it often does.
Medtronic To Pay $268 Million To
Settle Suits Over Defibrillator Wire
Flaws
Medtronic Inc., the world’s largest
maker of heart devices, has agreed to pay
$268 million to settle lawsuits over claims
that fractured wires in a line of its cardiac
defibrillators caused at least 13 deaths. The
company is resolving claims that wires
connecting implantable Sprint Fidelis defibrillators to patients’ hearts were defective. Medtronic halted sales of the so-called
defibrillator leads in October 2007 after
they were linked to users’ deaths.
The settlement covers about 8,100
cases or “virtually all” U.S. claims, Garland
said. The settlement resolves cases in both
federal and state courts. It will provide an
average payout of more than $33,000 to
patients who have defibrillators with
wires that have broken or are considered
likely to break. The amount will depend
on the extent of the injuries and defects.
Medtronic had more than 50% of the $5.8
billion global market for defibrillators
before sales of the leads were halted. The
wires deliver electrical jolts from the stopwatch-size defibrillators to regulate faltering heartbeats. About 268,000 patients had
the targeted leads at one time, according
to the company. They were introduced in
2004, the officials said. The company estimates that 170,000 people worldwide still
have defibrillators with the Sprint Fidelis
leads inside them.
The fractures were caused by poor
welding and quality control at Medtronic’s manufacturing facility in Puerto Rico.
Patients also alleged the wires were defectively designed. Medtronic acknowledged
in March 2009 that the flawed wires “may
have been a possible or likely contributing factor” in 13 deaths. U.S. District Judge
Richard H. Kyle in Minnesota, who is overseeing all suits over the heart wires filed
in federal courts around the U.S., dismissed those cases in January 2009 after
finding they were preempted by federal
law. The ruling was being reviewed by a
federal appeals court in St. Louis when the
settlement was reached. The settlement
over the Sprint Fidelis defibrillators is the
second such resolution over a line of the
Medtronic’s heart devices. The company
agreed in 2007 to pay more than $114
million to settle lawsuits over its Marquis
line of defibrillators.
Source: Bloomberg
XIV.
BUSINESS
LITIGATION
Federal Government Files Antitrust
Suit Against BCBS Of Michigan
The Justice Department has sued Blue
Cross Blue Shield of Michigan, asserting
that the company has violated antitrust
laws in order to gain a competitive advantage against rival health insurance carriers.
BCBS-Michigan is the state’s dominant
health insurer, covering more than 60% of
Michigan’s 3 million insured residents. The
suit, filed in Federal District Court in
Detroit, alleges that BCBS-Michigan has
used its market power as leverage to
coerce hospitals to charge higher prices to
BCBS-Michigan’s competitors.
Antitrust is the law of competition. Antitrust law seeks to encourage and enforce
competitive markets. Antitrust law is principally codified in the federal Sherman Act
and Clayton Act, and many states also have
enacted statutes modeled after these Acts.
In many cases, antitrust law provides for
treble damages and attorney’s fees against
an offending party for anticompetitive
conduct.
Our firm has recently filed a similar antitrust suit on behalf of a Florida hospital
17
against a major pharmaceutical
company. T he class action suit, filed in
Federal District Court in Tampa, involves
the market for the drug adenosine, which
is used by healthcare providers as an
adjunct to cardiac stress tests. Japanese
pharmaceutical giant Astellas controls over
90% of the market for adenosine used in
cardiac stress tests, and also holds a patent
over the recommended method of administering adenosine in connection with
stress tests. The suit alleges that Astellas
has used this market power as leverage to
coerce healthcare providers to purchase
its branded adenosine drug as opposed to
chemically identical, but cheaper, generic
alternatives. Astellas charges approximately 450% more for its branded drug as
compared to the price charged by its
unbranded competitors. The overall
excess cost to U.S. healthcare providers
exceeds $100 million annually.
In the Michigan suit, the Justice Department has focused on contractual provisions stipulating that healthcare providers
must charge other insurers up to 40%
more than they charge BCBS-Michigan. The Justice Department asserts that
these “most favored nation” clauses simultaneously have inflated healthcare costs
and prevented competing insurers from
entering the market. This is consistent
with findings of the Government Accounting Office, which reveal growing concentration in insurance markets for small
groups, such as those with 50 or fewer
employees. A 2008 study showed BCBS as
the largest carrier in 36 of the 44 states
that identified their top carriers.
This is an area of law that is highly specialized and for that reason most lawyers
won’t take these cases. Our firm handles
antitrust cases on behalf of businesses of
all types and sizes. Please contact Archie
Grubb at 1-800-898-2034 or Archie.
Grubb@beasleyallen.com to learn more
about our antitrust practice.
Source: New York Times
Unabomber Victim Wins $625 Million
Patent Suit Against Apple
A small business founded by a victim of
the Unabomber has been awarded a
$625.5 million verdict by a Texas jury. The
jurors found that Apple Inc. infringed on
three of the business’s patents. The
company was created by David Gelernter,
18
a brilliant New York native-turned-Yale
University professor and author targeted
by the Unabomber in June 1993. The case
involved technology commonly used on
its enormously popular Macintosh computers, iPods and iPhones.
Apple requested that the trial judge hold
off on imposing the payout to the Plaintiff,
Mirror Worlds LLC., a small technology
company. U.S. District Judge Leonard Davis
will hear arguments from both sides
before deciding on Apple’s request. The
patents involve the well-known Apple
technologies Cover Flow, which allows
users to easily flip through album covers
and other content; Spotlight, used to
search the computer hard drive, and Time
Machine, which automatically saves copies
of files. The lawsuit was filed seven years
after Mirror Worlds launched a patented
product called Scopeware in 2001.
Among other things, the product organized information in a style similar to
Cover Flow. The federal court jury found
Apple infringed on all three patents held
by Mirror Worlds, awarding the smaller
company $208.5 million for each one. Gelernter was blinded in one eye, lost most of
his right hand and suffered various other
injuries when a book-sized parcel sent by
Unabomber Ted Kaczynski exploded 17
years ago in his Yale office. His 1991 book
“Mirror Worlds” predated the popularity of
the Internet, and predicted the use of computers for real-time, real-world data.
Source: New York Daily News
XV.
AN UPDATE ON
SECURITIES
LITIGATION
Shareholders File Fraud Lawsuit Over
Recalls Against Johnson & Johnson
Johnson & Johnson has been sued for
fraud over claims it lied to investors about
contamination at manufacturing plants
and about the repurchase of defective
Motrin tablets from store shelves by J&Jhired consultants. The shareholder suit
alleges that J&J made misleading statements before disclosing contamination at
plants in Puerto Rico and Pennsylvania. As
previously reported, the Motrin recall is
now under investigation by Congress. The
Complaint also cites the April 30th recall of
more than 40 types of children’s medicines. It’s alleged in the lawsuit:
As a result of the blatant, systemic,
and repeated failure of Defendants
to maintain proper manufacturing
practices at their facilities, Defendants have been forced to issue over
eight separate recalls including
dozens of products and hundreds of
millions of individual packages.
The lawsuit, filed in federal court in
Newark, New Jersey, comes amid a U.S.
criminal investigation of the recalls and a
probe by a Congressional panel. The Plaintiff seeks to proceed as a class-action, or
group, lawsuit for investors who bought
shares between October 2008 and July
2010. It’s alleged that J&J withheld material information before its decision in April
to shut down a plant in Fort Washington,
Pennsylvania, where contamination led to
the unpublicized recall of defective Motrin
tablets in 2009. The purchases by J&J have
been labeled a “phantom recall.”
Source: Bloomberg.com
New York City Pension Fund Settles
Apple Option Backdating Lawsuit
Apple Inc. has agreed to pay $16.5
million to settle a class action suit by the
New York City Employees’ Retirement
System that the company improperly backdated stock options between 2001 and
2006. Apple will return $14 million to
shareholders and contribute a total of $2.5
million to corporate governance programs
at various U.S. universities, including
Harvard,Yale and Columbia. Administrative
and attorneys’ fees of $4 million will be
paid separately by Apple, bringing the total
value of the settlement to over $20 million.
Corporation Counsel Michael A. Cardozo,
the city’s chief legal officer and counsel to
the city’s pension funds, said in a written
statement:
This settlement is an excellent
example of shareholder advocacy
and compensates shareholders for
systemic options backdating at the
company. We are happy to have
reached an accord with Apple after
four years of litigation.
The city must obtain preliminar y
approval of the settlement in U.S. District
Court for the Northern District of California tomorrow. Those eligible for distributions from the settlement fund purchased
Apple common stock at a price in excess
of $65.71 between August 24, 2001, and
June 29, 2006. The New York City Employees’ Retirement System, the courtappointed lead Plaintiff in the class action,
is the largest municipal public employee
retirement system in the country with
more than 300,000 active members and
retirees.
Source: Bloomberg
XVI.
INSURANCE AND
FINANCE UPDATE
Ohio Settles Antitrust Lawsuit With
Marsh
Ohio has settled its antitrust lawsuit
against Marsh & McLennan Cos. for $4.75
million. Public entities throughout the
state—including universities, schools,
cities and counties—will receive reimbursements from the settlement, accordi n g t o A t t o r n e y G e n e ra l R i ch a rd
Cordray. The lawsuit was filed in an Ohio
State Court and accused Marsh, the
world’s largest insurance broker, of conspiring with various insurers to eliminate
competition in the commercial casualty
insurance industry.
It was alleged that from 2001-2004, the
insurers and Marsh conspired to provide
customers with fictitious quotes that
created a false impression that competitive
bidding had produced the best possible
price. The Ohio Attorney General’s Office
has recovered more than $27 million as a
result of the entire antitrust lawsuit against
Marsh and various insurers. The Attorney
General settled with American International Group and Hartford Financial Services Group earlier this year for more than
$9 million. The case will continue against
Defendants ACE American Insurance
Co. And The Chubb Corp.
The 26 public entities represented by
the Attorney General in this case include,
among others, several universities, a
number of retirement systems, and the
City of Cincinnati. Additional funds from
this settlement will be distributed to the
state’s Antitrust Revolving Fund for anti-
trust enforcement, the Ohio Attorney
General for litigation costs and the Ohio
Department of Insurance for investigative costs.
Bad Faith Lawsuit In Florida Against
Citizens Will Go Forward
A lawsuit alleging bad faith claims handling by Florida’s state-created insurer, Citizens, will proceed to trial over the
objection of the insurer that it is protected
against such suits by immunity granted
government entities. A three-judge panel
in the First District Court of Appeals in
Florida denied a bid by Citizens Property
Insurance Corp. last month to have a bad
faith claim lawsuit against it dismissed.
The original suit by San Perdido Association against the insurer alleging bad faith
claims handling has not yet gone to trial,
but the Lower Court also refused to
dismiss the suit on the basis of sovereign
immunity. Citizens appealed the denial of
its immunity claim. Now the two-judge
majority on the Appeals Court has said
that the case must be tried before their
Court can rule on whether Citizens
enjoys immunity.
This case involves a claim by San
Perdido under a windstorm insurance
policy with Citizens after Hurricane Ivan
caused substantial property damage in
2004. Citizens refused to fully pay its obligation under the terms of the insurance
policy, requiring San Perdido to file a
circuit court action to compel such
payment, and then defend that award
when Citizens appealed it. The circuit
court ruling was upheld in 2009. San
Perdido then filed its bad faith action. Citizens filed a motion to dismiss, asserting
that the action is barred by the immunity
conferred on Citizens by Florida law.
In creating Citizens, the Legislature gave
Citizens the status of a government entity
and gave it a limited grant of immunity in
connection with its performance of its
duties or responsibilities. But, state law
provides that such immunity does not
apply to a willful tort or for a breach of
contract pertaining to insurance coverage.
San Perdido has alleged that Citizens
engaged in a series of bad faith practices
in its handling of its insurance claim, and
that such conduct was both a breach of
contract and a willful tort.
In denying Citizens’ motion to dismiss,
the trial court reasoned that San Perdido’s
lawsuit is within the exceptions to Citizens’ immunity. Although Citizens could
challenge that ruling if San Perdido should
win at trial, Citizens instead asked the
Appeals Court to halt any further proceedings in the trial court. It would seem that if
Citizens enjoy immunity, the Appeals
Court would have said so rather than send
the case back for trial.
XVII.
EMPLOYMENT AND
FLSA LITIGATION
MetLife Underwriters File Overtime
Class Action
Two former MetLife Home Loans underwriters have filed a class action lawsuit
seeking back pay for unpaid overtime. The
underwriters allege that MetLife Home
Loans misclassified them as being exempt
from overtime pay requirements. MetLife
paid the underwriters a salary and no
overtime for hours worked in excess of 40
hours per week. Recently, and prior to the
lawsuit, MetLife Home Loans re-classified
its underwriters as eligible for overtime,
started paying them overtime, but the
company has failed to pay the underwriters for their previous overtime hours
worked prior to the reclassification. The
former employees who filed the suit are
seeking class action status for a nationwide class of current and former MetLife
Home Loans underwriters.
This is not the first overtime class action
lawsuit brought by loan underwriters
claiming they were misclassified as
exempt. In November of 2009, underwriters for J.P. Morgan Chase won a class
action lawsuit against the company. The
U.S. Court of Appeals for the Second
Circuit held that J.P. Morgan was not justified in refusing to pay overtime. The Court
found that J.P. Morgan’s justification for
not paying underwriters overtime pay—
the administrative exemption—did not
apply to underwriters because they are
not administrative employees. Rather,
according to the Court, underwriters
engage in production work relating to
loan sales.
19
Currently, our firm represents employees in similar FLSA litigation. Also, in an
effort to help workers who have been
wrongly denied their overtime compensation, our lawyers routinely pursue class
action litigation under the Fair Labor Standards Act to recover unpaid overtime
wages. For more information, contact
Larry Golston at 800-898-2034, by email at
Larry.Golston@beasleyallen.com, or visit
our website at www.beasleyallen.com.
tractor, supplying Coke-brand products to
a number of military and government
agencies.
XVIII.
PREDATORY
LENDING
Source: www.LegalFi.com
$175 Million Settlement Involving AK
Steel In ERISA Case Approved
A federal judge has approved AK Steel
Corp.’s $175 million settlement with two
classes of retirees in an Employee Retirement Income Security Act lawsuit. The
company was accused of unlawfully
cutting its health insurance benefits in violation of its collective bargaining agreements. In his ruling, Judge Timothy Black,
in the U.S. District Court for the Southern
District of Ohio, gave the settlement agreement his preliminary approval, and certified a class of hourly employers.
Source: Law360
North Carolina Bottler To Pay
$495,000 In Hiring Bias Claims
The second-largest bottler of Coca-Cola
products in the U.S. will pay $495,000 to
settle a federal case involving charges of
racially discriminator y hiring practices. The Coca-Cola Bottling Company
Consolidated, a Charlotte, N.C.-based firm
that is separate from the Atlanta-based
Coca-Cola Company, will pay the money in
back wages plus interest to 95 black and
Hispanic jobseekers who applied for sales
positions in 2002, according to the U.S.
Department of Labor. In addition, the
bottler has agreed to offer jobs to those
applicants until at least 23 are hired.
According to the Labor Department’s
Office of Federal Contract Compliance
Programs, an investigation determined that
qualified nonwhite applicants were not
being hired at the same rate as qualified
white applicants. In some cases, the black
and Latino applicants had more experience and education than some of the
whites who did get jobs, according to the
agency. The Office launched the investigation because the bottler is a federal con-
20
Wells Fargo Pays $24 Million To End
Deceptive Mortgage Practices Probe
Wells Fargo has agreed to pay $24
million to end an investigation by eight
states investigating whether the company
made risky mortgages to consumers
without disclosing their perils. The states
charged that loans known as option adjustable rate loans, referred to as “pick-a-payment” mortgages, were deceptive to
borrowers. Those particularly toxic loans
allowed borrowers to defer some of their
interest payments and add them to the
principal balance. The settlement was
reached with Attorneys General in Arizona,
Colorado, Florida, Illinois, Nevada, New
Jersey, Texas and Washington State. The
loans were made by Wachovia and a California company it acquired, World Savings
Bank. San Francisco-based Wells Fargo purchased Wachovia during the financial crisis
two years ago.
Source: USA Today
Racial Predatory Loans Sparked
Housing Crisis
A new study reveals that the large
number of foreclosures that led to the
nation’s housing crisis was triggered by
predatory lenders targeting poor minority
neighborhoods. The study published in
the American Sociological Review found
that racially-segregated minority neighborhoods were beset with unreasonable fees
and interest rates by lenders beginning in
the 1990s.
Because lenders could pool high- and
low-risk loans to sell on the secondary
market, the study’s authors say, minority
areas tended to have lenders that “charge
high fees and usurious rates of interest” such as pawn shops and check cashing
services. The study, which analyzed data
from the 100 biggest U.S. metro areas,
found that African-Americans were more
likely to receive subprime loans than
white borrowers with similar credit. The
report’s authors concluded:
As a result, from 1993 to 2000, the
share of subprime mortgages going
to households in minority neighborhoods rose from 2% to 18%. In 2008,
a federal lawsuit claimed that black
neighborhoods in Baltimore were
disproportionately affected by the
subprime mortgage fallout. (Emphasis Added.)
It’s both legally and morally wrong for
the predatory lenders to do what they did
in poor minority neighborhoods. It’s good
to see both the federal and state governments finally taking a serious look at the
overall problem.
Source: Reuters and CBS News
Citi Ordered To Pay Actor $11.5
Million In Damages
Larry Hagman, the actor who played the
role of J.R. Ewing in the 1980s TV show
Dallas, has won his case against Citigroup
Inc. The bank was ordered to pay over $11
million in damages. The total award
includes $10 million in punitive damages
that Citi must pay to charities selected by
Hagman, $1.1 million in compensatory
damages and nearly $440,000 in legal fees.
Hagman, who also played astronaut
Anthony Nelson in I Dream of Jeannie in
the 1960s TV show, accused Citi in May
2009 of a breach of fiduciary duty and
breach of contract, fraud by misrepresentation and omission, failure to supervise and
violation of federal and state law. The
ruling was by an arbitration panel of
FINRA, a self-regulatory body of the U.S.
financial industr y. The allegations
stemmed from unspecified securities held
in Citi accounts, as well as the purchase of
a life insurance policy. The arbitrators
found Citigroup Global Markets “engaged
in serious misconduct,’’ meeting FINRA’s
standards for punitive damages.
Hagman, who turned 79 last month,
continues to appear on TV and in movies,
including the 1998 political spoof Primary
Colors. More recently he has played off his
role as a Texas oilman to become a spokesman for a solar energy company. According to Solar World, Hagman’s California
home was the largest residential producer
of solar power in the United States. Since
industr y arbitration panels are not
required to explain their rulings, we have
to assume the arbitrators found Citigroup
guilty of some pretty bad conduct and that
their award was legally sound.
XIX.
PREMISES
LIABILITY UPDATE
Dow Settles Hazardous Chemical
Exposure Claims With Alabama Miners
Class-Action Status Granted To
Investors Suing Washington Mutual
Dow Chemical Co. And Flexible Products Co. has settled with nearly 1,400
Alabama miners over their claims they
were exposed to hazardous chemicals. The
settlement involving 1,394 miners came in
a Tuscaloosa Circuit Court just as opening
statements were due to begin. It took
about a month to select a jury and the trial
was expected to last three to four
months. The terms of the settlement and a
related case in West Virginia are confidential. The cases had been pending for a significant period of time. The miners alleged
that they were exposed to isocyanate, or
rock glue, which was used to shore up
walls and ceilings in the mines in central
Alabama. The case involving active and
former miners was filed in 2001.
Rock glue can cause severe, sometimes
life-threatening, asthma. The U.S. Centers
for Disease Control and Prevention
describes it as a “powerful irritant’’ that
can affect the eyes, gastrointestinal and
respiratory tracts. Exposure sensitizes
workers, and deaths have been reported
from asthma attacks. The case was before
Tuscaloosa County Circuit Judge John
England. The case had been moved from
Jefferson County, Ala. Dow’s specialty
chemical, advanced materials, agrosciences
and plastics businesses deliver technologybased products to customers in approximately 160 countries. For 25 years, Flexible
Products Co. has produced low-cost, highquality injection molded rubber components for the automotive industry.
Investors suing Washington Mutual Inc.,
the former owner of the biggest U.S. bank
to fail, won certification as a class-action
case of their suit alleging shoddy lending
practices. U.S. District Judge Marsha
Pechman in Seattle ruled that shareholders
who lost money on stock purchased from
October 2005 to July 2008 can proceed
with claims under a single lawsuit. The
judge appointed the New York-based law
firm Bernstein Litowitz Berger & Grossmann to lead the Plaintiffs’ case. The
lawsuit consolidates more than 20 cases
filed against Washington Mutual that claim
the bank secretly lowered lending standards, artificially inf lated home-price
appraisals and failed to disclose its deteriorating financial condition when the loans
began to fail.
The named Plaintiffs in the case
include Ontario Teachers’ Pension Plan
Board, the largest single-profession
pension plan in Canada, and four other
pension groups. They seek to represent
tens of thousands of shareholders who
lost money on three types of preferred
stock purchased between October 2005
and July 2008 and certain securities
of fered b y the bank in 2006 and
2007. The shareholders contended that
the case should be granted class-action
status because their claims are typical of
what other investors experienced and are
based on common legal issues.
WaMu filed for bankruptcy September
26, 2008, the day after its banking unit was
taken over by regulators and sold to JPMorgan Chase for $1.9 billion. Before it
failed, Washington Mutual Bank had more
than 2,200 branches and $188 billion in
deposits. Judge Pechman ruled on September 28th that a separate federal shareholder
lawsuit in Seattle claiming the bank misled
purchasers of $10.8 billion in mortgagebacked securities could proceed.
Source: Seattle Times
California Woman Sues Wal-mart For
Injuries In Store
A California woman is suing Wal-mart
for injuries she sustained in one of its
stores. On September 20, 2008, Eloise
Hanson visited a Wal-mart store in Morgantown, West Virginia, and sat down on a
bench to rest while her friends continued
to shop. Shortly after she sat down on the
bench, a Wal-mart employee was pulling a
cart near her loaded with a stack of boxes.
She says the stack of boxes collapsed and
landed on her head, neck, shoulder and
back.
It’s alleged that the employee was at
fault in causing or allowing the stack of
boxes to land on Ms. Hanson. It’s further
alleged that she has suffered significant
and permanent injuries and is seeking
compensatory damages. Under California
law both pre- and post-judgment interest
are allowed. The Plaintiff is being represented by Andrew G. Meek, a lawyer from
Morgantown.
Source: wvrecord.com
Settlement Reached In Amusement Park
Ride Case
We have written in prior issues about
how dangerous some “rides” are in amusement parks. The family of a 13-year-old
Florida girl who was seriously injured
when she fell about 100 feet to the ground
from an amusement park ride has reached
a settlement with the park. The settlement
was reached with Extreme World in Wisconsin Dells and it still must have court
approval. The park was subject to a foreclosure sale which was held on October
19th. The sale was to satisfy a more than
$2.7 million judgment in favor of the bank
against Anderson Amusements LLC and
Extreme World Inc. The bank filed the
foreclosure action in December.
The teenager, who was visiting Wisconsin from Parkland, Florida, on July 30th, hit
the ground in the free-fall ride after nets
and air bags that were supposed to catch
riders were not raised. She suffered swelling in her brain, multiple severe fractures
of her spine and pelvis and lacerations to
her liver, spleen and intestines. At press
time she was still in the hospital in
Florida. The ride was called Terminal
Velocity and it was made by German manufacturer Montic.
The 33-year old ride operator was
charged with one count of first-degreereckless injury, a felony punishable by up
25 years in prison and $100,000 in
fines. The operator told investigators he
“blanked out” and never saw the “all-clear”
signal before releasing the girl. The state
Department of Commerce has said the
operator did not follow protocol. A report
says the girl was dropped before the cage
in which she was riding reached the top
and before a net was in proper position.
21
Stuart Grossman, a lawyer from Coral
Gables, Flordia, represented Teagan Marti
and he did a very good job.
Lawsuit Filed By Woman Hurt In
Transformers 3 Stunt
A lawsuit has been filed by the family of
a Chicago woman injured this summer
during filming of a stunt for the movie
Transformers 3. It’s alleged in the lawsuits
that the victim is permanently brain-damaged. The suit, filed in Cook County Circuit
Court, says the makers of the movie were
at fault and caused the injuries suffered by
24-year old Gabriela Cedillo. She has been
at Loyola Medical Center in Maywood
since she was injured in Hammond,
Indiana, on September 1st. She suffered a
severe open head trauma. Ms. Cedillo was
among 80 extras and was driving her own
car in the westbound lanes of a vacated
part of Cline Avenue for the stunt. While
she and the others were driving, stunt
vehicles were being towed by flatbed
trucks in the opposite lanes at 50
mph. The stunt called for two of the
towed vehicles to rise in the air and then
flip “by use of a pulling cable with the idea
being to cause violent rolls of the cars
involved.”
On the day of the accident, a cable and
bracket attached to the bottom of a stunt
car closest to Ms. Cedilla and the other
extras snapped. The vehicle became airborne into the oncoming lanes, striking
the hood of Ms. Cedillo’s vehicle. The
lawsuit alleges that movie officials were
negligent through faulty welding and the
design of the bracket and allowed extras
to be too close to the stunt. Todd A. Smith,
a lawyer from Chicago, represents the
family in this lawsuit.
County, filed the lawsuit against the
company.
The Complaint alleges that the spill of
about 6,100 barrels of oil from Enbridge’s
670,000 barrel-per-day Line 6A in Romeoville, Illinois, caused danger to the public
health and welfare, violated the water and
air pollution laws and created a public nuisance. The court also agreed to a request
for an interim order requiring Enbridge to
inspect water mains, sanitary and storm
sewers, private wells and groundwater
within a half mile of the site to ensure all
oil from the spill has been cleaned up.
According to Enbridge, it has co-operated with all regulatory authorities since
the spill and has nearly completed all the
requirements imposed by the U.S. Environmental Agency after the incident. The suit
seeks repayment for the costs incurred by
the Illinois Environmental Protection
Agency for its oversight of the spill’s
cleanup and remediation.
Wrongful Death Suit Filed Against
Bayer
The Illinois Attorney General has filed a
lawsuit against Enbridge Inc.’s U.S. Affiliate
Enbridge Energy Partners. The state seeks
to have the company pay the costs
incurred cleaning up an oil pipeline spill
that occurred in September. Michigan
Attorney General Lisa Madigan and James
Glasgow, the State’s Attorney for Will
The mother of a West Virginia State University student who died less than three
weeks after an August 2008 explosion at
Bayer CropScience’s Institute plant says he
died as a result of exposure to substances
released during the incident. Ra’Sean Gray,
a student at the University, died September
18, 2008 in a local hospital after being
admitted for respiratory distress. An
autopsy found that the student died as the
result of a pulmonary embolism, which is
a blood clot in the main artery of the
lungs.
The victim’s mother, Portia Gray, filed a
wrongful death suit in a state court, alleging that the student died as a result of the
explosion. The suit says the teen obeyed a
shelter-in-place order that night and
remained indoors at an unspecified location until an all-clear signal was given.
When he returned to his dorm room later
that night, he found his window, which
faced the direction of the Bayer plant,
open and dust or soot covering the room.
It’s alleged that he noticed a foul-smelling
odor.
The University was said to have been
notified several times of the condition of
his room and at least one request was
made for it to be cleaned. On September
22
Source: Boston Herald
Illinois Files Suit Against Enbridge
Over Oil Cleanup
17th, the student went to the emergency
department of a local hospital complaining of chest pains and shortness of breath.
He was treated and released. The following day, he was again admitted to the hospital and died following respiratory
distress. The suit alleges that Bayer failed
to maintain its Institute plant in a reasonably safe condition and neglected to warn
the public of the release of chemicals hazardous to human health. Bayer is said to
have been at fault since air monitors—
designed to trigger alarms if hazardous
chemicals are released—were out of
service for maintenance on the day of the
explosion.
The suit also names West Virginia State
University and the State Board of Education as co-Defendants, saying they were
negligent in responding to Gray’s
requests to have his room cleaned of the
dust and soot he found on the night of
the explosion.
In April, the company agreed to pay a
$143,000 fine to the U.S. Occupational
Safety and Health Administration to resolve
15 safety citations stemming from the
explosion. Bayer also said in 2009 it would
spend nearly $25 million on safety
upgrades at the Institute plant. As part of
that, the company agreed to cut storage of
the hazardous chemical methyl isocyanate
by 80% and build an underground storage
tank to hold the chemical. The company
also has agreed to eliminate use of the pesticide aldicarb - a major product made at
the Institute site.
Bayer Corp. President Greg Babe has
admitted that the company “did not
handle the situation well during and after
the incident.” He says Bayer is “working
hard to restore trust” and is making safety
improvements. This is the first wrongful
death suit arising out of the August 2008
explosion at the plant. Two Bayer
employees died from injur ies that
occurred during the incident. T he U.S.
Chemical Safety Board is still conducting
an investigation into the explosion. The
Board’s report should be released sometime this fall.
Source: dailymail.com
Jury Awards Woman $843,567 In TripAnd-Fall Case
A jur y has awarded $843,567 in
damages to a woman for injuries she suf-
fered falling down the stairs of an office
building. It was contended that the stairs
were unsafe and that the owners of the
building that housed a medical clinic
knew that and failed to fix the stairs or
post warning signs. The total jury verdict
was $1.05 million, but jurors determined
the Plaintiff was 20% responsible for her
fall. She suffered back, leg, hip, arm and
other injuries and continues to need injections and other treatments for permanent
nerve damage. She now walks with a limp.
Source: santacruzsentinel.com
Starbucks Settles Pasadena Woman’s
Lawsuit For $4.8 Million
Starbucks has agreed to pay a $4.8
million dollar settlement to an elderly Pasadena woman who sued the company
after she tripped and fell at one of its
coffee shops. Mildred Rodgers, 78, fell
after entering the Starbucks store on
November 15, 2005 due to a bulge on the
rear entrance stairway. When the woman
fell down a few steps, she fractured her
femur and two days later had surgery. As a
result of the surgery, Ms. Rodgers had a
stroke and ultimately had three more
strokes three years later.
Today, Ms. Rodgers is unable to speak,
except for very short sentences, and is
pretty much wheelchair-bound. She can
walk in her house with assistance. A contractor who was called in to temporarily
fix the floor wrote a note in April, 2005
that the flooring should be replaced. In
addition, a city health inspector told the
store it needed to replace the flooring an
hour before the trip and fall. The case was
settled on the first day of trial.
Source: Pasadenastarnews.com
Whitesell willfully tampered with the
safety mechanisms of its hydraulic
forging presses at its Tuscumbia
plant to speed up production, resulting in the amputation of a worker’s
hand. Companies like Whitesell that
value short-term gain over their
workers’ safety will be held responsible for their reckless actions.
OSHA began an inspection of the Tuscumbia plant in March after receiving a
report that a worker’s hand had been
amputated. Due to the seriousness of the
hazards noted during that initial visit,
OSHA expanded the complaint investigation to a comprehensive safety and health
inspection of the facility. The inspection
was again expanded three weeks later to
include the Muscle Shoals plant due to the
probability that similar hazards existed at
that location. Assistant Secretary of Labor
for OSHA Dr. David Michaels stated:
This employer knowingly exposed
these workers to serious injuries. The
objective of OSHA’s actions today is
to save the hands, and perhaps the
lives, of other workers in the future.
XX.
WORKPLACE
HAZARDS
Alabama Plants Cited For Safety
Violations
Global manufacturing firm Whitesell
Corp. has been cited for a multitude of
safety and health violations. Federal investigators discovered the problems in the
company’s two northwest Alabama facili-
ties. According to U.S. Labor Secretary
Hilda Solis, the violations created dangerous conditions for Whitesell’s employees.
One of the employees had his hand
severed by a hydraulic forging press earlier
this year.
The U.S. Occupational Safety and Health
Administration announced fines of
$3,071,500 against the company for 72
violations found throughout its manufacturing plants in Tuscumbia and Muscle
Shoals. Whitesell’s Tuscumbia location
employs 17 workers and manufactures
parts used in the automotive, lawn care,
and home appliance industries. The
Muscle Shoals plant employs 103 workers
and manufactures fasteners and HVAC
components. Whitesell employs more than
1,000 workers in 25 locations in the U.S.,
Canada, and China. Secretary of Labor
Hilda L. Solis stated:
OSHA proposed $986,500 in penalties
for safety violations found in the Tuscumbia facility. The violations included 14
willful violations, six serious violations,
and two lesser health violations. The
willful safety violations addressed the
plant management’s failure to develop critical safety procedures for employees
working with hydraulic forging presses
and for bypassing safety features intended
to protect workers. The serious safety citations concerned the lack of safety guards
on machines and electrical hazards.
For the Muscle Shoals plant, OSHA proposed $2,085,000 in penalties for 29
willful and 21 serious violations. As with
the Tuscumbia facility, the willful safety
violations addressed this plant’s failure to
develop and utilize lockout/tagout procedures for the plant’s mechanical forging
presses and to lock out mechanical forging
presses when dies are changed or maintenance is performed.
Serious citations involved obstructed
exit routes, various machine guarding
hazards, and several electrical dangers.
Other citations for noise hazards and the
management’s lack of controls and training for employees affected by loud noise
were included. OSHA issues a willful citation when it finds a violation committed
with plain indifference to or intentional
disregard for legal requirements and
employee safety and health. Serious citations are given when death or serious
physical harm is likely to result from a
hazard about which the employer knew or
should have known.
XXI.
TRANSPORTATION
Oklahoma Turnpike Deaths Case
Settled For $62.7 Million
A lawsuit arising out of a collision on
Oklahoma’s Will Rogers Turnpike that
killed ten people has been settled for
$62.7 million. The settlement covers eight
of the deaths and one injury claim. A relative of the other two victims who were
killed had reached an earlier settlement. A
tractor-trailer driven by 76-year-old Donald
Creed slammed into vehicles that had
stopped for a previous accident on Interstate 44 near Miami on June 26, 2009.
The Oklahoma Highway Patrol released
a report in August 2009 that said the accident was caused by the inattention of the
driver of the tractor-trailer. The Associated
Press previously reported that the investigation showed no attempt by the truck
driver to brake or take evasive action. No
apparent problems with the truck’s brakes
or steering were found. There was “strong
23
evidence” that cruise control was in
use. The truck was traveling “consistently
at 69.5 to 71 mph” for about 4.5 minutes
before the collision
The suit was filed in Cleveland County
District Court by family members of those
killed in the accident. The suit named the
truck driver; Kansas City, Kan.-based Associated Wholesale Grocers; two insurance
companies; a California company; and two
individuals as Defendants. The truck driver
was driving that day for Associated Wholesale Grocers.
Source: Associated Press and Insurance Journal
Settlements Reached In New York
Plane Crash
Families of at least five passengers killed
when a plane crashed into a home last
year have reached settlements with the airlines involved. More agreements are
expected before a wrongful-death trial
begins, lawyers said. Thus far, 39 lawsuits
have been filed in U.S. District Court since
the Newark, N.J.-to-Buffalo flight crashed
into a house in suburban Clarence on an
icy February night. All 49 people aboard
the plane and the home’s owner were
killed.
During a conference on October 6 th
with the lawyers involved in the lawsuits,
Judge William Skretny said he likely would
rule this month on the key issue of
whether jurors in the trial, scheduled for
March 2012, will be allowed to hear the
full cockpit voice recording. According to
lawyers for the victims’ families, the unedited recording of Continental Connection
Flight 3407 will go beyond the already
released written transcript in illustrating
an overly-relaxed atmosphere in the
cockpit, which investigators have said contributed to the Februar y 12, 2009,
crash. They want the actual recording, but
lawyers for the airlines contend that for
the written transcript of the conversations
between Capt. Marvin Renslow and First
Officer Rebecca Shaw is sufficient.
The lawsuits name Houston-based Continental Airlines; Colgan Air, the Manassas,
Virginia, regional carrier that operated the
flight, and Colgan parent Pinnacle Airlines,
of Memphis, Tennessee. Also named in
some cases are Montreal-based Bombardier Aerospace, the company that made
the plane, and FlightSafety International,
which helped train the pilots.
24
The National Transportation Safety
Board in February said that the pilots’
improper response to a low-speed
warning led the plane to go down just five
miles from its destination. Among contributing factors, the panel said, were the
crew’s inattention to airspeeds and violation of regulations prohibiting unnecessary conversation during takeoffs and
landings. While the NTSB findings cannot
be used in court, they parallel claims in the
lawsuits that the pilots were improperly
trained and made errors. The Defendants
have denied that they recklessly operated
and monitored Flight 3407, that they
improperly trained its crew, and that the
aircraft was not equipped to fly in icy conditions. The amounts of the settlements,
while substantial, have not been disclosed.
Settlement Approved In 2005 Metra
Derailment
Metra has agreed to pay $1.45 million to
a woman injured when a speeding train
derailed in 2005. The plaintiff was a passenger on a Rock Island line Metra train
traveling from Joliet toward downtown
Chicago on September 17, 2005, when it
sped through a 10-mph track crossing at
69 mph and derailed. Two passengers
were killed, and 117 were injured in the
crash. The Plaintiff suffered a broken leg
and will require knee replacement surgery
as a result of the crash.
The families of two persons who were
killed reached an $11 million settlement
with Metra in November 2008. Another
passenger who was severely injured in the
crash received a $29.5 million jury verdict
in February 2009 to compensate for her
injuries and to pay for a lifetime of therapy
and round-the-clock care.
The National Transportation Safety
Board blamed the engineer who was subsequently fired for failing to heed signals
and slow the train. The NTSB also faulted
Metra for lacking an automatic system to
override human error. Dan Kotin, a lawyer
with Chicago-based Corboy & Demetrio,
represented the Plaintiff in the recentlysettled case and he did a very good job.
Source: Chicago Tribune
Jury Awards Bus Passenger $6.4
Million
A California jury awarded 38-year-old
Thomas Avery $6.4 million last month in
his pending lawsuit. The Plaintiff, who has
been a quadriplegic since a 1989 traffic
accident, uses a motorized wheel chair to
get around. In 2008, the Plaintiff was trying
to board a Roseville Transit bus. He was
using a wheelchair lift at the time, which
was operated by the bus driver. And while
he was being loaded onto the lift, the
Plaintiff was dropped from about six-toseven feet off the ground. The Plaintiff’s
head struck the pavement with about
1600 pounds of force. He suffered a brain
injury in the fall.
The jury found the lift malfunctioned
because it was defective. It was supposed
to have a working barrier to prevent the
wheel chair from rolling backward. The
roll barrier had been poorly maintained
and was missing a bolt on one side. The
jury’s award requires the bus company to
pay the plaintiff about $5.4 million. The
City of Roseville, which is responsible for
the remainder of the money, has reviewed
all its practices since the incident to make
sure nothing like the Plaintiff’s accident
will happen again. Christopher W. Wood
and Roger Dreyer, lawyers from Sacramento, California, represented Mr. Avery
and they did a very good job.
FAA Issues Fire Warning For Lithium
Batteries
Federal aviation officials have urged air
carriers to voluntarily take steps to reduce
the risk of cargo fires caused by overheated lithium batteries. This is an indication of the FAA’s growing concern about
the threat posed by air transport of the
batteries. The warning follows the crash in
September of a United Parcel Service
plane in Dubai that killed both pilots. The
Federal Aviation Administration acknowledged publicly for the first time in the
safety directive that the Boeing 747-400
was carrying a large quantity of lithium
batteries. Smoke from a fire in the plane’s
main cabin, which was used for cargo, was
so thick that the pilots told air traffic controllers they couldn’t see their instruments
as they struggled to land the plane.
The Pipeline and Hazardous Materials
Safety Administration proposed new regu-
lations in January that would require
lithium batteries be treated as hazardous
cargo. Battery shipments would need
special packaging and workers who ship
them would have to receive special training. There would also have to be special
labeling and pilots would have to be told
that their cargo contained lithium batteries. The regulations, which have not yet
been made final, have been strongly
opposed by the electronics industry,
battery makers and some cargo carriers,
including UPS.
Arkansas Family To Receive $10.3
Million
A jury in Prairie County, Arkansas,
awarded $10.3 million to the family of an
Iraq war veteran who was burned while
rescuing his wife and two children after a
devastating collision on an interstate
highway in July 2008. Mark Rogers and his
family were traveling through Arkansas
while on vacation when their car was corralled by several tractor-trailers. One of the
rigs ignited, and the fire spread, setting
Rogers’ car on fire. His was the only door
that would open, so the 34-year-old
escaped and kicked in the windshield to
rescue his wife, daughter and son. T he
accident left three of the four Rogers
family members severely burned.
The jury found U.S. Express, Inc. 47.5%
at fault in the accident and awarded the
$10.3 million verdict. At the time of the
accident, Mark Rogers was a staff sergeant
in the U.S. Army Reserves. He had recently
returned from his second tour in Iraq,
where he served as a combat engineer. In
an ironic twist of fate, Staff Sgt. Rogers was
a K-9 handler who searched for explosives
in Iraq with the goal of maintaining safe
highways. The law firm of Wilkes &
McHugh handled this case and they did a
very good job.
Alabama’s Guest Statute Must Be
Changed
Most folks don’t know about Alabama’s
guest statute law and those who do really
don’t see the need for it. For the uninformed, a “guest statute” is a law passed by
many states between 1927 to 1939 to
protect drivers from hitch hikers suing a
hospitable driver and to prevent collusion
between a driver and a family member or
friend against an insurance company. This,
at that time, was thought to be a noble
undertaking.
Between 1927 and 1939, thirty-three
state legislatures passed a form of a “guest
statute.” In 1935, the Alabama Legislature
passed a “guest statute” and the reasoning
for the passage of the Act, like all other
states, was to encourage hospitality by
host drivers since it would be unfair for a
hitchhiker to sue his benefactor. Also it
was to prevent any opportunity for collusion against a liability insurance company
in the event a driver and his guest were
related or knew one another.
Beginning in the 1970’s, and continuing
through the 1980’s, many state legislatures
started to repeal the existing “guest statutes.” State supreme courts and federal
courts began to find these statutes unconstitutional because the justification and
reasoning for enacting these statutes had
no rational basis fifty to sixty years after
the statutes were initially enacted. Many
courts and legislative bodies began to
realize that:
• The protection of the host driver does
not justify the different treatment of an
automobile guest from other recipients
of the host generosity. Further with
compulsory insurance laws made the
hospitality justification meritless.
• The collusion prevention argument was
meritless, too. Although the “guest
statute” may prevent a few collusive
suits between drivers and passenger, the
statute operated to bar a great majority
of valid claims.
Today, Alabama is the only state with a
comprehensive guest statute which precludes an action for simple negligence
unless the passenger confers a benefit to
the driver such as paying for gas or sharing
trip expenses, or the driver’s conduct is
wanton or willful. Three other states have
a less comprehensive and less limiting
guest statute.
The Alabama Supreme Court has
reviewed three cases that have challenged
the constitutionality of the “guest/passenger statute.” On all three occasions, the
Supreme Court failed to declare the guest
statute unconstitutional. In fact, in one of
the cases, one of the justices suggested it
was a function of the Legislature to repeal
the guest statute and not a function of the
Court to declare it unconstitutional. It has
been 35 years since that case and neither
the Alabama Supreme Court nor the
Alabama Legislature has done anything to
repeal the statute or to declare it unconstitutional. A Nevada Supreme Court Justice
summed it up best when he wrote:
The friends of the driver, his family,
those to whom he stands in the
closest relationship of faith, and
trust, in confidence, must suffer injuries at his hands without recompense, solaced only by the thought
that, after all the skull was cracked
by a friendly hand. His legal status;
this invited guest; is no better than
that of a trespasser. The hospital bill,
the loss from a long illness, all
arising from the wrong of another
and without fault of the part of the
victim, must be shouldered without
the aid of him who did the wrong.
Why? Because of the relationship
between them was one of trust and
friendship. No money had changed
hands. If, however, not a neighbor
himself is carried to town, but rather
his livestock to the slaughter house,
many modern courts would permit
full recovery for the injury to the
unfortunate animal through failure
to use reasonable care for its safety.
Is this one answer of an enlightened
people to the hollowed question:
How much then is a man better
than a sheep?
Hopefully, something will be done next
year to get rid of an antiquated law that
serves no useful purpose. Either the
Alabama Legislature or the Alabama
Supreme Court should repeal the law or
declare it unconstitutional. If you would
like to have more information on this
subject, contact Mike Crow, a lawyer in
our firm who handles personal injury
cases, at 800-898-2034 or by email at Mike.
Crow@beasleyallen.com.
25
XXII.
NURSING HOME
UPDATE
Civil Suits Uncover Nursing Home
Abuse
Civil suits help uncover abuses by
nursing home and insurance companies.
Where regulatory and legislative bodies
have been unable to cope with this distressing rise of neglect and abuse of our
elderly, the civil justice system has stepped
into the breach. A report,“Standing Up For
Seniors: How the Civil Justice System Protects Elderly Americans,” reveals that litigation is critically important to protect
nursing home residents.
According to the report, the vast majority of the nursing facilities that house
more than 1.5 million elderly Americans
are owned by private corporate chains,
making it difficult for consumers to hold
them accountable for abuse. The report
also asserts that insurance companies are
more likely to take advantage of older
patients with practices like miscalculating
mortality rates, denying claims and cutting
off benefits for needed treatments.
The report outlines how, through litigation, trial attorneys across the country
have uncovered evidence of corporate
programs aimed at terminating seniors’
benefits as well as evidence of nursing
home abuse and neglect. The report warns
that efforts to combat nursing home
abuses through civil suits are hampered by
the use of mandatory arbitration clauses in
nursing home and insurance contracts.
Source: LawyersUSAOnline.com
Drug Administration, in a proposal
released last month, said it aims to invest
in a wide range of efforts, from developing
methods to assess new products to creating better tests to identify food contaminants. All of them are aimed at keeping up
with rapidly changing science and technology. “We need new approaches, new
collaborations and new ways to take
advantage of 21st century technologies,”
the agency said in a white paper announcing the effort. Ultimately, the plan should
“bolster” regulatory science “and—above
all—creative approaches to product development and safety for both food and
medical products.”
FDA Commissioner Margaret Hamburg,
a public health expert and former health
commissioner for New York, has promised
to boost the agency’s scientific focus since
taking over the agency last year. The
agency has already launched a recent
handful of initiatives aimed at collaborating with other government agencies, such
as the National Institutes of Health as well
as universities and medical industries. But
its latest plan aims to formalize and
broaden the effort.
The proposed budget for fiscal year
2011 includes $25 million for this project.
It is unclear whether the FDA would have
the money to boost science to the extent
it wants. The President requested a 23%
funding increase for a total of $4 billion for
the FDA, but most agencies are being
funded at 2010 levels since Congress failed
to pass next year’s budget.
Source: Reuters
FDA Admits Mistake In Approving Knee
Implant Device
Health regulators plan to spend millions
of dollars to step up their scientific
prowess in a move that officials say will
help quickly get new treatments to
patients and protect the public against
possible health threats. The U.S. Food and
The Food and Drug Administration
made a mistake in approving a knee
implant against the advice of its scientific
reviewers. It has now admitted that it
shouldn’t have approved the device. The
announcement comes a year after the
agency first acknowledged that its decision to approve the Menaflex implant,
made by ReGen Biologics, was influenced
by outside pressure, including lobbying by
four lawmakers from the company’s home
state of New Jersey. The 2008 decision to
approve the implant was made despite
protests by FDA scientists that Menaflex—
which reinforces damaged knee tissue—
p rov i d e s l i t t l e , i f a ny, b e n e fi t t o
26
XXIII.
HEALTHCARE
ISSUES
FDA To Push For More Investment In
Science
patients. The FDA says it’s taking steps to
revoke Menaflex’s approval.
Source: MSNBC
XXIV.
ENVIRONMENTAL
CONCERNS
Federal Court To Hear West Virginia
Families’ Claims Against Dupont
The complaints of 14 West Virginia families who blame illnesses—ranging from
cancer to rashes—on long-term exposure
to toxic waste piled up at a former DuPont
zinc-smelting plant will be tried together
in federal court. Lead Plaintiffs Rebecca
Morlock and Waunona Crouser have
already won a class-action lawsuit involving the plant located in Spelter. They and
others are now seeking damages for
dozens of maladies they attribute to
arsenic, cadmium, lead and other toxins.
The lawsuits were filed in a state court
in June and were removed by DuPont to
U.S. District Court in Clarksburg. The Plaintiffs are seeking unspecified damages for
pain and suffering, medical testing and
treatment, lost wages and emotional distress. The complaints include ovarian and
uterine cancer; bipolar disorder and
mental distress; kidney problems; migraine
headaches; seizure-like activity; skin
lesions; low IQ scores; numbness and tingling of extremities; and thyroid, vascular
and connective tissue diseases.
The smelter in north-central West Virginia produced more than 4 billion
pounds of slab zinc and 400 million
pounds of zinc dust for use in rustproofing
products, paint pigments and battery
anodes. By 1971, a toxic waste pile stood
100 feet tall and covered nearly half of the
112-acre site. Dust often blew into
homes. The plant closed in 2001, and
DuPont worked with state regulators to
demolish factory buildings and cap the
site.
But in 2007, a jury ruled DuPont was
negligent in creating the waste pile, and
that it had deliberately downplayed and
lied to its neighbors about possible health
threats. The jury awarded $380 million in
punitive damages. The state Supreme
Court cut the verdict to $196 million. The
High Court affirmed that thousands of resi-
dents were entitled to a $130 million,
40-year medical monitoring program and a
$55.5 million cleanup fund for private
properties. But a jury has yet to decide
whether the underlying claims were filed
in time to permit those remaining
damages
XXV.
THE CONSUMER
CORNER
Mini Cooper Steering Probe May Be
Indication Of An Industry-Wide Issue
BMW’s iconic Mini brand is under
federal investigation because power steering on as many as 80,000 2004 and 2005
Mini Cooper models could fail. This is the
latest in a rising tide of steering-related
problems. We may see more steering complaints as automakers overhaul the most
basic control system on a car. This is being
done in a quest for the last one-tenth of a
mile per gallon in fuel economy.
The probe by the National Highway
Traffic Safety Administration cites 54 complaints and “a confidential number of field
reports” from Mini about sudden and
unexpected loss of power-steering
assist. That makes the car hard to steer and
could cause the driver to lose control.
NHTSA lists no mishaps due to the
problem, and Mini has said it knows of
none.
David Champion, head of auto testing
for Consumer Reports magazine, says,“We
had that on a Mini with electric steering” a
few years back, and it “scared the hell out
of the driver.” Automakers are switching to
electric motors instead of hydraulic
pumps to provide power-steering assist.
Electric power-steering systems (EPS) can
add 0.1 of a mpg, or more, by eliminating
drag on the engine caused by hydraulic
pumps.
But EPS is hard to tune to make it feel
similar to the age-old hydraulic systems. It
can seem numb or too light to drivers.
Mechanical systems often give an audible
warning—harsh sounds—of imminent
failure. EPS systems, “when they fail, they
fail completely,” according to Jesse Toprak,
vice president at auto researcher TrueCar.
com. NHTSA says starting in 2006, it has
“seen an increase in investigations of vehicles equipped with electric power steering.” But the agency says it is not clear if
that’s because EPS is inherently troublesome or simply is more common.
According to Mr. Champion, there will
be “more issues where the steering system
feels vague” as carmakers eliminate
normal, slightly off-center, alignment of
tires and steering. That customary “toe-in”
or “toe-out” of tires improves steering
response, but uses slightly more energy
than when tires are aligned
straight. Truecar.com says it has had “an
overwhelming number of steering cases
this year,” with most “involving EPS.”
Hyundai recently recalled 139,500 2011
Sonata midsize sedans because the steering shaft could come apart, causing the
driver to lose control. Earlier this year,
NHTSA opened an investigation into “unresponsive or loose” steering on 2009 and
2010 Toyota Corollas, which is believed to
be a result of how Toyota tuned the cars’
new EPS. About that same time, General
Motors recalled more than 1 million 20052010 Chevy Cobalts and similar 2007-2010
Pontiac G5 small cars because the electric
power steering could suddenly fail.
drugs had disasters happen. Then came
fen-phen and Vioxx. The FDA approved
Meridia and kept it on the market for a
long time, despite a very modest weight
loss benefit and obvious problems with
the safety of the drug. Only now that conclusive evidence is in, does the drug get
recalled. The question has to be why it
took so long to figure out that the drug
was too dangerous to be on the market.
The real story here is what appears to
be a changing regulatory environment. In
the wake of Merck’s Vioxx scandal and the
mess relating to GlaxoSmithKline’s
Avandia, a drug like Meridia should no
longer be allowed to slip through the
cracks. Hopefully, the FDA will no longer
approve a drug for the masses based on a
small symptomatic benefit or mild
improvement in a lab value if a medicine
isn’t demonstrated to have tangible
improvements on patient health down the
road. Approving a drug on a hope that it
will help folks shouldn’t be enough
anymore. Hopefully, things are really
changing at the FDA and, if so, consumers
will be better protected.
Source: Forbes
Source: USA Today
Johnson & Johnson Let The Public
Down Over Recalls
Meridia Recall Says Lots About The
FDA
The FDA has finally recalled Meridia,
Abbott Laboratories’ obesity drug. The
final nail-in-the-coffin was a big new study
showing that the drug can increase heart
attacks and strokes in high-risk patients.
But it must be noted that the potential for
harm had been obvious from day one.
From the very beginning, it was clear the
drug raised blood pressure and heart rate.
Given this effect, it was always hard to
imagine how the drug would have a net
benefit to patients. I thought there was a
balancing approach to new drug approvals. Way back in 1996, an advisory panel
agreed that the blood pressure rise produced by the drug was clinically important. Public Citizen has been petitioning to
get the drug off the market since 2002
based on the potential for heart harm.
But back in the good old days (for the
drug industry) of the mid-1990s, the FDA
was far less stringent about the safety of
obesity drugs that would be used by millions. At that juncture, none of the bad
The company’s chief executive says that
Johnson & Johnson disappointed consumers when it recalled millions of bottles of
popular children’s medicines. William
Weldon admitted that the company had let
the public down, saying:
We let the public down. We did not
maintain our high quality standards, and as a result, children do
not have access to our important
medicines. I accept full accountability for the problems at McNeil, and I
will take full accountability for
fixing them.
Since the April 30th recall that saw 40
popular medicines such as Children’s
Tylenol pulled from store shelves, J&J has
“undertaken significant improvements at
McNeil’s facilities,” Weldon said, adding
that the company is spending $100 million
to do so. J&J has said its Fort Washington,
Penn. plant, which made the 135 million
bottles recalled in April, would not reopen
until the second half of next year.
27
As far as the controversial so-called
“phantom” recall last year of a faulty adult
version of Motrin, Weldon said the
company “should have handled things differently.” Regardless of how badly J&J has
acted in the past, the company must do
more than talk. It must recognize its safety
responsibility and take all steps necessary
to correct all problem areas.
Source: Reuters
a given day in a consumer account. The
Webster settlement comes after a lawsuit
filed in Connecticut in April and will also
resolve a similar suit against Webster in
New York. Robert Izard, the lawyer who
filed the Connecticut lawsuit, said that
Webster now clears checks in the order
they are received. The proceeds from the
settlement will be distributed to Webster
customers.
Source: Courant.com
Farmers To Pay $455 Million To Settle
Overcharging Claims
Farmers Group Inc. And its Swiss corporate parent have agreed to pay $455
million to 13 million current and former
policyholders to settle a lawsuit filed in
2003 that accused them of charging excessive fees to customers. The settlement, if
approved by a Los Angeles County Superior Court judge, would resolve all claims
dating back to 1999. Payments to folks
who purchased Farmers home, automobile, personal liability and commercial
property coverage are expected to average
only $35, but individual settlements could
vary considerably, according to Farmers
Group. Benjamin Fogel, the lead Plaintiff in
a nationwide class action, purchased policies from three exchanges that in turn
paid management fees to Farmers Group.
He alleged that Farmers charged its policyholders too much.
Source: statesman.com
Webster Bank Will Pay $2.8 Million To
Settle Overdraft Fees Lawsuit
Government Warns Parents Not To Use
Baby Sleep Positioners
Baby sleep positioners, a popular
product for safety-conscious parents, were
supposed to save lives by keeping infants
from rolling onto their stomachs. Instead,
these products are now being added to
the growing list of dangerous nursery
products. While the products haven’t been
banned, the government is warning
parents and caregivers to stop using infant
sleep positioners. These are the soft fabric
products that parents put in cribs to keep
babies safely sleeping on their backs.
The Consumer Product Safety Commission and the Food and Drug Administration say they know of 12 infants in the last
13 years who died when they suffocated
in a positioner or became trapped and suffocated between the positioner and the
side of a crib. This is a significant safety
problem that must be addressed. Hopefully it will soon be resolved. Parents
should be able to rely on the manufacturers of product used for babies to design
and sell only products that are safe to use.
Sources: USA Today and LA Times
For years, consumer advocates have
fought the practice by banks of clearing
the largest check or debit first on any
given day, arguing that it simply raises the
chances of collecting more overdraft fees.
Webster Bank, one of Connecticut’s largest
banks, will pay $2.8 million to settle a
class-action lawsuit alleging the Waterburybased bank used the practice in hopes of
collecting more overdraft fees. Penalty fees
have become a crucial component of fee
income for many banks.
The settlement, disclosed in a regulatory
filing, comes after a landmark ruling in
August in which a federal court required
Wells Fargo & Co. To repay $203 million in
overdraft fees reaped because the bank,
which owns the Wachovia name in Connecticut, cleared the largest checks first on
The U.S. Food and Drug Administration
has warned doctors and patients about an
increased risk of thigh fractures with a
widely-used group of bone-strengthening
drugs. The agency said patients taking
bisphosphonate drugs such as Fosamax
and Boniva appear more likely to suffer a
rare type of fracture of the femur. The fractures occurred just below the hip joint
and make up less than 1% of all femur fractures.
In more than half the cases reported to
the FDA, patients experienced pain or
aching of the groin before the frac-
28
FDA Warns Of Fractures With
Osteoporosis Drugs
ture. The FDA is updating the drugs’ labels
about the fracture risk. Drugmakers will
also be required to distribute pamphlets
about the risks to patients. Bisphosphonates work by slowing the loss of bone
cells that lead to osteoporosis. Prescription
drugs in that class include Merck & Co.’s
Fosamax and Roche’s Boniva, as well as
Warner Chilcott’s Actonel and Atelvia and
Novartis’ Reclast. More than 5 million prescriptions for the drugs were written last
year, according to the FDA. The drugs are
mainly prescribed to women after menopause. The FDA says patients should continue taking the treatments unless directed
to stop by their doctor. The agency said it
will continue reviewing safety information
on the drugs and eventually make recommendations on their use.
Source: News4Jax.com
Drug Firms Must Speed Up Major Trial
Risk Reports
The FDA is now requiring more notification of safety problems by drug manufacturers. The drugmakers will have 15 days
to report serious adverse events according
to a new rule. Drugmakers studying experimental drugs in anticipation of sales in
the U.S. must now tell regulators about
serious health problems that arise during
clinical trials within about two weeks. This
is a badly-needed change and it will help
streamline safety monitoring.
The Food and Drug Administration, in
the new rule, called on companies to
report problems such as serious side
effects that occur more often than anticipated to the agency within 15 days. Rachel
Behrman, associate director for medical
policy at the FDA’s Center for Drug Evaluation and Research, said the rule would
help “expedite FDA’s review of critical
safety information and help the agency
monitor the safety of investigational drugs
and biologics and these changes will
better protect people who are enrolled in
clinical trials.”
The rule offers companies specific
guidelines and examples of what to
report and when. In theory, drugmakers
must present the FDA with data that
shows their medicines are safe and effective to win approval. I’m not so sure that
this has always been the case. Hopefully,
the FDA is doing a better job in its regulatory capacity and we are making sure
nothing falls through the cracks when it
comes to safety.
Source: Reuters
Button Cell Batteries Can Be Lethal If
Ingested
There is a hidden hazard that could
cause serious injury and even death to
young children and unfortunately most
folks don’t realize it. Small button cell batteries found in bathroom scales, remote
controls, iPod chargers, and even musical
greeting cards are dangerous. If ingested,
the tiny lithium batteries can bore holes
through the esophagus and surrounding
organs causing serious and often permanent problems. Currently, there are no
warnings on the products containing the
batteries. Cara George of Littleton, Colorado, is pushing to raise awareness about
lithium batteries. Two years ago her
18-month-old daughter died after ingesting
one of the tiny batteries.
These batteries can cause serious problems for young children and the elderly.
It’s reported that children can think the
small, disc-shaped batteries are candy. The
elderly often mistake them for medicine.
Symptoms similar to the stomach flu or an
upper respiratory infection usually can
occur within hours of ingestion. It can be
particularly difficult to pinpoint a diagnosis, especially when many children who
eat the batteries are too young to communicate it to their parents or a doctor.
Nearly 3,500 cases of button cell battery
ingestion are reported each year to poison
control centers. But, the newer lithium cell
batteries are stronger and are more likely
than their predecessors to cause serious
damage to internal organs. According to
the National Capital Poison Center in
Washington, the incidence of severe complications from ingestion of button cells
has increased sevenfold over the past few
years. Moderate to severe cases have
climbed from about a dozen cases a year
to nearly 100 per year. The most lethal batteries that can be ingested are those that
begin with the number 20, such as 2032,
2025 and 2016. Those are responsible for
more than 90% of the serious injuries from
cell battery ingestion.
Source: Southerninjurylawyer.com
XXVI.
RECALLS UPDATE
I have been looking forward to putting
out an issue of the Report and not having
to include product recalls. But that won’t
be the case this month. Once again, we are
listing an extremely large number of
product recalls in this issue. Unfortunately,
as we have pointed out, serious safetyrelated recalls have become rather commonplace. The following are some of the
more significant recalls since those
reported in our last issue. Our readers are
encouraged to contact our firm if more
information is needed on a recall.
Toyota Recalling 1.53 Million
Vehicles
Toyota is recalling 1.53 million Lexus,
Avalon and other models, mostly in
the U.S. And Japan, for brake fluid
and fuel pump problems. This is the
latest in a string of quality lapses for
the world’s No. 1 automaker. Toyota
Motor will call back for repairs about
740,000 cars in the U.S. And 599,000
in Japan. The remainder are in
Europe and other markets around
the world. Over the past year, Toyota
has recalled more than 10 million
cars and trucks worldwide for a
variety of safety problems. In August,
Toyota called back 1.33 million
Corolla sedans and Matrix hatchbacks in the U.S. And Canada
because their engines may stall.
The majority of vehicles this time
around need to be fixed for a problem
with the brake master cylinder, which
could lead to weaker braking power.
Some models in Japan and elsewhere—but not in North America—
have an electrical problem with the
fuel pump, which could cause the
engine to stall.
GM Recalls Chevrolet Vehicles
General Motors is recalling more than
300,000 Chevrolet Impala sedans
because the seat belts may fail to
restrain people in the front seats
during a crash. According to The
National Highway Traffic Safety
Administration the front-seat belt
webbing may not be secured properly
to a lap belt anchor on the side of the
seat near the doors. The recall
includes Impalas from the 2009 and
2010 model years. GM said 303,100
vehicles are in the United States and
more than 19,000 are in Canada.
GM said it did not know of any injuries or deaths connected to the
recall. The automaker told NHTSA
that it had received 32 warranty
reports with the seat belt conditions
through mid-August. Dealers will
inspect how the belts are
anchored. The will reinstall the
anchors if needed at no cost to the
owners. Owners will be notified later
this month and can contact Chevrolet
at 1-800-630-2438.
GM Recalls 4,000 Cadillac SRXs
Over Power Steering
General Motors is recalling nearly
4,000 Cadillac SRX crossovers from
the 2010 model year to fix power
steering problems that could lead to
engine fires. GM says in a statement
that power steering fluid could leak
and lead to a fire in the engine compartment. GM says it is aware of one
fire in an unattended SRX, according
to the company. There have been no
crashes or injuries linked to the
problem.
The vehicles under recall were built
in December 2009. Most of the vehicles are in the United States and more
than 300 were exported to China. GM
says it believes only a small number of
the recalled vehicles have the
problem. Owners will be notified
about the recall and their vehicles
will be repaired at no charge.
BMW Recalls Vehicles
BMW is recalling certain BMW and
Rolls-Royce models. The recall
includes 198,000 cars in North
America and will soon include
another 150,000 cars worldwide. It
will be a worldwide recall but each
region will be handled separately. The
affected cars have V-8 or V-12 engines
and come from the MW 5 Series, 6
29
Series, 7 Series, and Rolls-Royce Motor
Cars models produced between 2002
and 2010. They may develop a leak in
the power braking system, causing a
risk of vacuum loss and consequent
reduction of power braking.
Mechanical braking will still be available to slow and stop the vehicle,
which may explain why there have
been no reports of accidents or injuries. Owners of affected cars are
encouraged to contact an Authorized
BMW Center to schedule inspection
and possible repair. Drivers who have
already experienced reduced power
braking assistance should go in to
their dealership immediately. You can
contact Shanna Malone at Shanna.
Malone@beasleyallen.com to get a
copy of the list of affected BMW and
Rolls-Royce Models.
Mercedes-Benz C-Class, E-Class
Recall For Power Steering
Mercedes-Benz is recalling 85,078 of
its 2010 and 2011 C-Class and E-Class
sedans and 2010-11 E-Class coupe and
cabriolet cars because the power
steering “may fail due to the loss of
power steering fluid.” Mercedes-Benz
says that if that happens, drivers “may
not have sufficient control of the
vehicle in areas, such as parking lots,
where maximum power steering is
required, increasing the risk of a
vehicle crash.” Dealers will check the
power steering system and retorque
the problem connection.
Hyundai Recalling 139,500 Sonata
Sedans
Korean automaker Hyundai has
recalled 139,500 Sonata sedans in the
United States because of a defect that
could create a loss of steering
control. The Sonata, which was redesigned for the 2011 model year, is
built at Hyundai’s Montgomery plant.
It is the automaker’s best-selling
vehicle in the United States and has
helped set U.S. sales records and
Montgomery production records for
Hyundai. The recall affects 2011
models built between December 11,
30
2009 and September 10th, according
to NHTSA.
correct the problem. Owners will be
notified starting later this month of
recall No. R229 and can contact Volvo
at (800) 458-1552.
Chrysler Recalls Thousands Of
Vehicles
Chrysler is recalling about 26,000
cars and pickup trucks because
power steering fluid can leak onto a
hot engine and cause a fire. According
to NHTSA, the recall includes some
2010 models of the Chrysler 300 and
Sebring, the Dodge Avenger, Challenger and Journey, and some 2011
Dodge Ram pickups. A power steering hose assembly can separate at the
crimped end and leak fluid onto the
engine, according to NHTSA. Dealers
will inspect the vehicles and replace
the hoses for free. Owners with questions can contact Chrysler at 1-800853-1403.
Honda Issues Recall Because Of
Brake Fluid Leaks
Honda Motor Co. says it plans to recall
an undetermined number of vehicles
because of brake f luid leaks that
could lead to weaker braking power,
the same issue that led Toyota Motor
Corp. To recall 1.5 million vehicles.
Honda says the recall includes certain
2005-2007 model year Acura RL
sedans and Honda Odyssey minivans
from the 2005 to early 2007 model
year. Honda says it does not know at
present how many vehicles will be
covered by the recall. There have
been no injuries or accidents tied to
the problem. The Japanese automaker
says it plans to officially notify the U.S.
government of the recall on Thursday.
Volvo Recalls S80, XC70, XC60,
V70 To Fix Air Bags
Volvo Cars of America is recalling
9,746 vehicles to fix front air bag
systems that may not deploy correctly
or at all in a crash. The recall includes
certain 2010-2011 S80 sedans and
XC70 crossovers, 2011 XC60 crossovers and 2010 V70 wagons. Volvo
says a potentially faulty clockspring
wiring connector is to blame and
dealers will install a metal shim to
Tesla Motors Recall
Tesla Motors (TSLA) has recalled its
Roadster 2.0 and 2.5 models, after an
incident in which an auxiliary cable
chafed against a carbon fiber panel,
causing a short, smoke and possible
fire behind the vehicle’s right-front
headlamp. The recall includes around
36% of all the cars Tesla has ever sold,
based on disclosed data through June
30th. That 36% only works out to 439
actual vehicles. So this is not a huge
recall.
Aston Martin Recalling Cars
Aston Martin Lagonda Ltd. is recalling
some DB9, DBS and V8 Vantage
models to fix a steering flaw that can
lead to crashes. The automaker, based
in Gaydon, England, will replace the
bolts holding the lower control arm
in the front suspension to prevent the
possibility of cracking, according to
NHTSA. The recall covers 1,090 U.S.
cars in the 2007 and 2008 model
years, and 4,110 worldwide. In a letter
notifying NHTSA of the defect in September, Aston Martin said the bolts
hadn’t been made to specification.
Broken bolts may influence steering
control, the company said.
Aston Martin, whose models have
been featured in James Bond films,
was owned by Ford Motor Co. for two
decades before being sold for 479
million pounds ($760 million) in May
2007. The luxury carmaker is now
half-owned by Investment Dar Co., a
Ku w a i t i f i n a n c i a l s e r v i c e s
company. The model sticker prices
range from $145,000 for the V8
Vantage to $275,000 for the DBS,
which is considered the brand’s flagship car.
Recreational Trailers Recalled
NU WA has recalled Certain Model
Year 2000-2010 Recreational Trailers
equipped with Dimplex electraflame,
symphony, or optiflame branded electric fireplaces, stoves, and fireplace
inserts. The plug-in remote control
receiver for the fireplace can overheat
and cause a fire. NU WA is working
with Dimplex and will, as I understand it, provide owners a free
replacement plug-in remote control
kit. Owners may contact Dimplex
North America customer service at
1-888-346-7539.
Evenflo Recalls 18,000 Booster
Seats
Evenflo Co. Inc. is recalling certain
Maestro Combination Booster Seats,
the latest in a string of recalls involving the company. No incidents or
injuries have been reported for
booster seats already sold. In certain
laboratory tests simulating a highimpact, frontal collision, a crack has
occur red. Evenf lo said it fir st
observed the issue at a test laboratory
in late September. The recall involves
13,792 booster seats with model
numbers that begin with “310” built
between November 24, 2009, and
April 9, 2010. In Canada, 4,479 units
manufactured between December
17 th and April 26 th are involved.
Unsold units will be removed from
shelves, and Evenflo said it is sending
a consumer notice to registered
owners of the affected seats.
The company said Maestro child
restraints built after April 2010 aren’t
affected by the action. Children
weighing under 40 pounds should
not be placed in the seat without the
use of a free repair bracket. Children
who weigh more than 40 pounds may
continue to use the seat as a belt-positioning booster until a remedy kit
arrives, the company said. ConsumerReports.org said the recall comes
after its tests show the seat can crack
and fail in a simulated 30-mph frontal
collision.
A free reinforcement kit can be
obtained in the United States by
calling 1 (800) 233-5921 between 8
a.m. And 5 p.m. Eastern Time. Evenflo
urged customers not to return seats
to retail stores where purchased.
Between December 2008 and Sep-
tember 2010, Evenf lo had eight
recalls through the U.S. Consumer
Product Safety Commission, more
than any other manufacturer. But the
current booster seat recall isn’t
through the CPSC, which does not
regulate car seats.
Drop-Side Cribs Sold At JCPenney
Recalled
Jardine Enterprises Ltd., of Taipei,
Taiwan has recalled about 11,400
Alexander Designs Ltd. brand dropside cribs. The cribs were distributed
by J.C. Penney of Plano, Texas. The
drop-side rail hardware on the cribs
can break or fail, allowing the drop
side to detach from the crib. When
the drop side detaches, a hazardous
gap is created between the drop-side
rail and the crib mattress in which
infants and toddlers can become
wedged or entrapped, posing risks of
suffocation and strangulation. In addition, children can fall out of the crib
when the drop-side rail falls unexpectedly or detaches from the crib.
Drop-side rail failures also can occur
due to incorrect assembly or with
age-related wear and tear. Other
models of Jardine drop-side cribs
were recalled for repair on June 24,
2010.
The CPSC has received two reports of
incidents involving drop-side malfunctions on Alexander Designs drop-side
cribs. According to the CPSC, no injuries have been reported. This recall
involves full-size cribs sold under the
Alexander Designs brand name.“Alexander Designs Ltd.” and the JCPenney
catalog/item number are printed on a
label on the crib’s headboard.
Consumers should immediately stop
using the cribs and obtain a free
repair kit that will immobilize the
drop-side rail. In the meantime,
parents are urged to find an alternate,
safe sleeping environment for their
child, such as a bassinet, play yard or
toddler bed depending on the child’s
age. For additional information,
contact Jardine at (800) 295-1980
anytime or visit the company’s
website at http://www.jdservice.biz/
jcp-safety-notice.
Siemens Circuit Breakers Recalled
Siemens and Murray circuit breakers
have been recalled due to a fire
hazard. About 2.2 million circuit
breakers, load centers and meter
combos were imported from Mexico
by Siemens Industry Inc. of Alpharetta,
Georgia, and sold nationwide at hardware outlets from June 2010 through
August 2010 for between $2.50 and
$235.
The circuit breakers include a spring
clip that can break during normal use,
which can result in an insufficient
electrical connection in the panel
board. This can cause heat to build
up, posing a fire hazard. The recall
includes Siemens and Murray single
and double pole 15 through 50 AMP
circuit breakers, load centers and
meter combos, which contain a load
center and a meter socket. The circuit
breakers involved in the recall are
labeled with date codes 0610 or
0710. The load centers and meter
combo units include date codes Jun
23, 2010, through August 25, 2020.
Consumers were advised to contact
Siemens for a free inspection and
replacement, if necessary. Consumers
can call 1-800-756-6996 for information.
Rugs Recalled By Brumlow Mills
Due To Fire Hazard
Brumlow Mills, of Calhoun, Georgia,
has recalled about 1,000 Zen Large
and Small Room Rugs. The large rugs
fail to meet federal flammability standards and could ignite, posing the risk
of fire and burn hazards to consumers. The small rugs fail to meet federal
labeling requirements. Small rugs are
not required to meet the federal flammability standard; however, they are
required to be permanently labeled
with the following statement: “FLAMMABLE (FAILS U.S. DEPARTMENT OF
COMMERCE STANDARD FF 2-70):
SHOULD NOT BE USED NEAR
SOURCES OF IGNITION.”
This recall involves “Zen design” polypropylene rugs in rust and sage
colors. Zen rugs in other colors are
not involved in this recall. Only rugs
purchased from January 2010 through
31
March 2010 are involved in this
recall. The rugs were sold exclusively
through J.C. Penney’s website and
catalog from January 2010 through
March 2010 for between $40 and
$400. Consumers should immediately
stop using the recalled rugs. Consumers with large rugs should contact
Brumlow Mills to obtain a replacement or refund. Consumers with
small rugs should contact Brumlow
Mills to obtain a new label including
warning information. The firm is contacting all known users. For additional
information, call Brumlow Mills at
(877) 879-0176.
Promotional Gift Night Lights
Recalled
The U.S. Consumer Product Safety
Commission has announced a voluntary recall of Molenaar LLC night
lights due to a risk of electric
shock. About 315,000 electroluminescent night lights were distributed
nationwide free of charge under
various company names as promotional gifts from October 2001
through November 2009. They were
manufactured by Molenaar LLC of
Willmar, Minnesota.
No injuries have been reported, but
Molenaar has received four reports of
night lights melting, which could
pose a hazard of either a shock or a
burn. Consumers were advised to
throw the night lights away. The night
lights involved in the recall include
model No. 2019, which is shaped like
a house, and model No. 2017, which
has a square shape with a rounded
top edge. The nightlights, which glow
green when plugged in, have “71980
U.S.A.” molded in the back panel of
the light. Consumers can call 1-877719-4442 for information.
Briggs & Stratton Recalls Riding
Mowers
About 500 Craftsman riding mowers
have been recalled by their manufacturer Briggs & Stratton Power Products Group, LLC, of Milwaukee,
Wis. These riding mowers came to
consumers with the side discharge
32
chute not fully secured to the mower.
Bolts can be forcefully discharged
from mower if not properly tightened,
posing an injury hazard to consumers. The firm received one report of a
bolt that discharged forcefully, breaking a window. This recall involves
Craftman riding mower with model
nu m b e r 1 0 7 . 2 8 0 3 4 a n d s e r i a l
numbers listed below. The rear engine
mounted riding mower is black. The
model and serial numbers can be
found on the data tag on the back of
the riding mower.
The mowers were sold at Sears stores
nationwide between February 2010
and May 2010 for about $1,400. Consumers should immediately stop
using these recalled riding mowers
and contact Sears for a free inspection
and repair. Sears is sending consumers
letters with information on scheduling an inspection and repair. For additional information, contact Sears at
(800) 859-7026 or visit the company’s
website at www.sears.com.
60 Million Tablets Of Blood
Pressure Drug Recalled
Bristol-Myers Squibb Co. is recalling
60 million tablets of the blood pressure medication Avalide in the United
States and Puerto Rico. The company
said it took the action on behalf of the
Bristol-Myers Squibb/Sanofi-Synthelabo partnership because of a potential variability in levels of the
less-soluble form of the active ingredient in Avalide, irbesartan, which could
result in slower dissolution.
Bristol-Myers said 62 lots, or 60
million tablets, manufactured before
November 2009 at its plant in Puerto
Rico are included in the recall. Avalide
is comprised of the drugs irbesartan
and hydrochlorothiazide. The recalled
tablets contain 300 mg of irbesartan
and 25 mg of hydrochlorothiazide. In
a statement, the company said while
“a thorough review of the global postmarketing safety database has not
revealed evidence of a signal suggesting reduced efficacy,” it “cannot definitively exclude this possibility.” The
company said there is a “potential for
an impact on the anticipated blood
pressure lowering efficacy.”
Other lots of Avalide 300/25 mg, as
well as other dosage strengths of both
Avalide and Avapro, or irbesartan, are
not affected, and no interruption in
supply is anticipated, according to the
company.
Pfizer Recalls 191,000 Lipitor
Bottles After Musty Odor
Reports
Pfizer Inc., the world’s biggest drugmaker, recalled 191,000 bottles of
Lipitor after receiving three complaints of a musty odor coming from
the containers of the cholesterol
drug. The complaints were received
in July and originated from the same
batch of bottles from a third-party
manufacturer, according to a spokesman for Pfizer. The company says an
investigation found that the odor is
unlikely to be harmful. The cost of the
recall won’t be material, and the
company doesn’t plan to take a
charge for it. Pfizer, based in New
York, is working with the maker to
determine the odor’s cause.
Musty Odor Sparks Another
Tylenol Recall
A moldy odor has again stricken
Johnson & Johnson’s Tylenol, and the
company is recalling another lot of
the over-the-counter painkiller. J&J,
which has recalled tens of millions of
bottles of Tylenol and other consumer
medicines in the past year because of
complaints of a musty or moldy odor
in the product, is recalling another
lot. The company, which is facing a
U.S. Congressional probe of quality
control lapses that have led to its
numerous recent recalls of Tylenol,
painkiller Motrin and allergy treatment Benadryl, said almost 128,000
bottles of Tylenol have been recalled
in the latest action.
The product involved is adult Tylenol
eight-hour caplets sold in 50-count
bottles in the United States and
Puerto Rico. The company said the
recalled lot was made in March at a
factory in Fort Washington, Pennsylva-
nia, operated by J&J’s McNeil Consumer Healthcare unit. J&J shut down
the McNeil plant the following month
and is upgrading the facility to correct
quality control lapses discovered by
U.S. Food and Drug Administration
inspectors. The FDA cited thick dust,
grime and contaminated ingredients
at the Fort Washington plant. J&J
plans to reopen the plant next year,
and is using other McNeil plants to
help offset lost production of the
recalled products.
“S T U F F” And Paw Wall Hooks
Recalled By Midwest-CBK
Midwest-CBK, Inc., of Union City, Tennessee, has recalled about 4,450 “S T U
F F” and Paw Wall Hooks. Paint on the
metal hooks and on the blue paw
hook contains excessive levels of lead,
violating the federal lead paint standard. The wall hook sets were sold in
three models: model numbers 74641
and 74642, constructed of five separate wooden letters spelling out the
word “S T U F F” and model number
65262 consisting of four separate, different colored wooden paws. Model
number 74641 has a Purple S, a Red T,
an Orange U, a Green F and a Pink F.
Model number 74642 has an Olive S, a
Blue T, a Yellow U, a White-striped F,
and a Blue F. Attached to each letter is
a painted metal coat hook with a
painted wooden ball at the end. Each
letter is approximately 4 inches long,
3/4 inches wide and 9 ¾ inches tall.
Model number 65262 has four separate paw-shaped wooden pieces of
different colors—red, blue, green and
pink.
Attached to each paw is a wooden
peg with a wooden ball at the
end. The “S T U F F” wall hook sets
have a label on the back of the letter
“S” that includes the models 74641 or
74642. The Paw wall hook sets have
the model number 65262 on the
outside of the box. The hooks were
sold at gift stores, drug stores, furniture stores, décor outlets and variety
stores nationwide from December
2008 through August 2010 for
between $10 and $30. The wall hook
set should be returned to MidwestCBK for a full refund. Contact Mid-
west-CBK at the number provided
below to receive a prepaid shipping
label and merchandise credit. For
additional information, contact Midwest-CBK toll-free at 1 (800) 4225583.
Ryobi Recalls Cordless Drills Due
To Fire Hazard
About 455,000 Ryobi Model HP
1802M Cordless Power Drills have
been recalled by Ryobi Technologies
Inc. of Anderson, S.C. The switch on
the cordless drill can overheat, posing
a fire and burn hazard to consumers.
Ryobi has received 47 reports of the
drills overheating, smoking, melting or
catching fire, including 12 reports of
property damage to homes or vehicles. Two of the incidents involved
minor burns from touching an overheated switch. The Ryobi Model HP
1802M cordless drill is powered by an
18 volt rechargeable NiCad battery.
The drills are blue and black in color
with “Ryobi” appearing in red and
white on the left side. The model
number can be found on a white label
on the right side of the drill. The drills
were sold at Home Depot from
January 2001 to July 2003 for about
stop using the recalled drill, remove
the rechargeable battery and contact
Ryobi to receive a free replacement
drill. For additional information,
contact Ryobi Customer Service at 1
(800) 597-9624 or visit the company’s
website at www.r yobitools.com.
CPSC is still interested in receiving
incident or injury reports that are
either directly related to this product
recall or involve a different hazard
with the same product.You may make
a report by visiting https://www.
cpsc.gov/cgibin/incident.aspx.
Black & Decker Recalls Cordless
Electric Lawnmowers
Black & Decker (U.S.) Inc. of Towson,
Maryland, has recalled Black & Decker
and Craftsman brand cordless electric
lawnmowers. The lawnmower’s
motor and blade can unexpectedly
turn on after the mower’s safety key
is removed, posing a laceration hazard
to consumers. Removing the safety
key is designed to keep this from
occurring. Black & Decker has
received 34 reports of the motor
operating after removal of the safety
key, including two incidents that
resulted in finger lacerations, one
requiring stitches. The recalled cordless electric mowers were sold under
both the Black & Decker and Craftsman brand names. The recalled Black
& Decker mower s have model
number CMM1000 or CMM1000R. All
date codes and types are
included. The date code and type
information are both located on a
silver and black label affixed to the
rear door of the mower.
The Black & Decker mowers have
either an orange or green deck with a
black motor cover. The Craftsmanbrand mowers have model number
900.370520 and include all date
codes and types. The model number
is located on the silver and black label
affixed to the rear door of the
mower. The Craftsman-brand mowers
have a dark green deck with a black
motor cover. The lawnmowers were
sold at home center, hardware and
discount stores and authorized Black
& Decker dealers nationwide from
September 1995 through December
2006 for about $450. Craftsman-brand
mowers were sold at Sears and
Orchard Supply Hardware stores
nationwide from Januar y 1998
through December 2000 for about
$450.
Consumers should stop using the
recalled lawnmowers immediately
and call Black & Decker or Sears for a
free inspection and repair, or a credit
towards a new cordless lawnmower.
Consumers who had their mowers
repaired as a result of the previous
recalls should also have their mowers
inspected and repaired as part of this
recall. For additional information, consumers with Black & Decker mowers
should contact Black & Decker tollfree at 1 (866) 229-5570 or visit the
company’s website at www.blackanddecker.com. Consumers with Craftsman-brand mowers should call Sears
toll-free at 1 (888) 281-5314 or visit
the company’s website at www.sears.
com.
33
Fire Alarm Control Panels
Recalled
Fire-Lite Alarms, a Northford, Conn.
company, is recalling about 530 fire
alarm control panels found in commercial facilities, such as office buildings, because one model series fails to
successfully sound an alarm in the
event of a fire.“The recalled fire alarm
control panels used with an SLC-2LS
expander module can fail to sound an
alarm in the event of a fire,” according
to the CPSC.
The CPSC and Fire-Lite Alarms said
building managers should contact
Fire-Lite immediately for a free software upgrade by calling 1-800-6273473 or visiting its website at www.
firelite.com. The company is also contacting its customers directly. The
recalled products were sold by authorized wholesalers and distributors
nationwide between October 2008
and March 2010 for between about
$875 for the expander module and
$2,285 for the control panel. The
control panel is the main portion of
the fire alarm system. The software in
the expander module tells the system
to sound an alarm and flash warning
lights. The words “Fire-Lite Alarms by
Honeywell” and the model number
are located on the front of the fire
alarm control panel.
Oxmoor House Books On Wiring
Recalled
The Consumer Product Safety Commission has announced a voluntary
recall of Oxmoor House Home
Improvement Books due to faulty
wiring instructions. Following the
wiring instructions in technical diagrams and narrative instructions in
about 540,000 books in a series of
publications could result in shock and
fire hazards, the commission said.
Oxmoor House Inc., which is located
in Birmingham, Alabama, has added
the books to a previous recall in
which 951,000 titles were pulled
back.
The new recall involves books sold
nationwide from 1955 through
December 2005 for between $5 and
$20. The titles in the recall include
34
Fix-It Maps: Replacing Switches and
Receptacles, Southern Living Basic
Home Repairs, Southern Living
Basic Wiring (2nd edition), Southern
Living Basic Home Wiring Illustrated
(1st edition), Southern Living Bathrooms Planning & Remodeling,
Southern Living Home Lighting,
Southern Living Kitchens Planning
& Remodeling, Sunset Basic Wiring
(3 rd edition), Sunset Basic Home
Wiring Illustrated (1st and 2nd editions), Southern Living Complete
Patio, Sunset Bathrooms Planning &
Remodeling, Sunset Home Lighting,
Sunset Home Lighting Handbook,
Sunset Home Remodeling Illustrated, Sunset Kitchens Planning &
Remodeling, and Sunset Kitchens
Planning & Remodeling. Consumers
were advised by the CPSC to stop
using the recalled books and contact
Oxmoor House for a full refund. Consumers can call 1-866-696-7602 for
information.
Trisonic Compact Fluorescent
Light Bulbs Recalled
About 124,000 Compact Fluorescent
Light Bulbs have been recalled by
Eastern America Trio Products Inc. of
Flushing, N.Y. The light bulbs may
overheat and catch fire. The firm has
received four reports of incidents,
including two fires that resulted in
minor property damage. This recall
involves Trisonic 15-, 20-, 22- and
25-watt compact fluorescent light
bulbs with the model numbers TS-EN
15W/SP, TS-EN 20W/SP, TS-CFL 22WB
or TS-EN 25W/SP printed on the base
of the bulb. The lights were sold at
discount stores in New York, New
Jersey, Pennsylvania and Connecticut
from January 2008 to December 2008
for between $1 and $1.50.
using the light bulbs and contact the
company for a full refund. For additional information, contact Eastern
America Trio Products Inc. At 1-800661-7146 or visit the company’s
website at http://www.trisonic.com.
Photos are available at http://www.
cpsc.gov/cpscpub/prerel/
prhtml10/11001.html CPSC is still
interested in receiving incident or
injury reports that are either directly
related to this product recall or
involve a different hazard with the
same product. You may make a report
by visiting https://www.cpsc.gov/
cgibin/incident.aspx.
Tree Stand Safety Harnesses
Recalled
Area hunters who have purchased the
HSS 300 Ultra Lite Harness should be
aware of a voluntary recall associated
with the tree stand safety product.
Hunter Safety System, manufacturer of
the harness, announced that the carabineers included with the harness
aren’t up to company standards and
strongly suggests their return.
According to the company, there have
been no reported incidents involving
the carabineers. But recent tests by
the company indicated that “the carabineer gate retention pins can inadvertently detach, permitting the
carabineer gate to open and creating
the possibility of the treestrap or lineman’s climbing strap to release from
the carabineer, thereby allowing the
user to fall.”
Hunter Safety System representatives
have been contacting dealers and
individuals who have purchased the
suspect har ness regarding the
recall. The UPC Code for the item is
8-59540-00083-0. All owners and
users of the HSS 300 Ultra Lite
Harness should immediately discontinue use of the carabineers and the
included Lineman’s Climbing Strap,
and should contact Hunter Safety
System at 1 (877)-296-3528 for a carabineer exchange.
Valco Baby Recalls Jogging
Strollers
About 12,000 Valco Baby Tri Mode
Single and Twin Jogging Strollers have
been recalled by Unique Baby Products USA LLC, of Brooklyn, New
York. The opening between the grab
bar and seat bottom of the stroller can
allow an infant’s body to pass through
and become entrapped at the neck by
the grab bar, posing a strangulation
hazard to young children when a
child is not harnessed. When using a
stroller, parents and caregivers are
encouraged always to secure children
by using the safety harness and never
to leave them unattended.
This recall involves the grab bar on Tri
Mode Single and Twin strollers.“Valco
Baby” is printed on the head rest and
the padding on the footboard. The
grab bar is optional and can be
removed from the stroller. The stroller’s model numbers are located on a
white sticker on the left hand side of
brake bar. The recalled strollers with
the affected grab bars are listed in the
chart below. The strollers were sold at
juvenile product stores and websites
including www.amazon.com between
November 2007 and March 2010 for
between $480 to $700. Consumers
should immediately remove the grab
bar from the stroller and contact
Valco Baby to receive a free replacement grab bar. For additional information, contact Valco Baby at 1 (800)
610-7850, visit the company’s website
at www.valcobaby.com or send an
email to recall@valcobaby.com.
Bravo Sports Recalls Trampolines
Due To Fall Hazard
Bravo Sports, of Santa Fe Springs, California has recalled about 160,000
Bravo Sports Trampolines. Incorrectly
assembled trampolines can allow the
top rails and legs to bend or break
during normal use, resulting in partial
collapse of the trampoline. This poses
a fall hazard to consumers. Bravo has
received 247 reports of top rails
bending or breaking during normal
use. Four injuries have been reported
due to the bending and breaking of
trampolines. This recall involves
AirZone and Variflex trampolines with
model number s 137083 (with
wheels), 137536, 137683, 138088,
138467, 138472, 138489, 139275,
139283, 139284, 139300 and
139706. The model number is found
on the safety label sewn to the pad
cover. The units are 12’, 13’ and 14’
and come in blue, yellow and red.
The trampolines were sold at sporting
goods and mass market retail stores
nationwide and on the Internet from
January 2007 through September
2010 for between $200 and $400.
using the recalled trampolines. Consumers should contact Bravo Sports
for instructions on how to inspect the
trampoline for top rail damage and to
request revised assembly instructions. Top rails and legs damaged due
to assembly errors will be replaced at
no charge by Bravo Sports. For additional information, contact Bravo
Sports toll-free at 1 (877)-500-2459, or
visit the company’s website at www.
airzonevariflex-recall.com.
Green Mountain Vista Inc. Recalls
Roman Shades
of the bench tipping over but it says
no injuries have been reported. The
recalled metal two-seat bench is 51
inches long with SKU number
400051794482 printed on the price
tag. The bench is a bronze color. The
benches were sold at Ross Stores
nationwide between July 2010 and
September 2010 for about $90. Consumers should immediately stop
using these benches and return them
to any Ross Store for a full refund. For
additional information, contact Ross
at 1 (877) 455-7677 anytime. Consumers also can visit the Ross Stores’
website at www.rossstores.com.
Jakks Pacific Reannounces Recall
Of Spa Factory Aromatherapy
®
™
Green Mountain Vista, Inc. of Williston, Vermont has recalled 200,000
roman shades. Strangulations can
occur when a child places his/her
neck between the exposed inner
cord and the fabric on the backside
of the shade or when a child pulls
the cord out and wraps it around his/
her neck. This recall involves all
G re e n M o u n t a i n Vi s t a R o m a n
shades. These shades have a small
sewn-on label on the back side of the
shade with RN#107875. The shades
were sold by specialty home textile
retail shops and mail order companies nationwide from September
2004 through August 2010 for
between $40 and $120. Consumers
should immediately stop using the
Roman shades and contact the
Window Covering Safety Council
(WCSC) for a free repair kit at 1 (800)
506-4636 anytime or by visiting
www.windowcoverings.org. For additional information, contact Green
Mountain Vista at 1 (800) 639-1728 or
gmvista.com.
Iron Lover’s Bench Sold
Exclusively At Ross Stores
Recalled
About 185 Iron Lover’s benches have
been recalled by the importer, Ross
Stores Inc. The bench can tip over
when only one person is seated on
it. This could pose a fall hazard to consumers. Ross has received two reports
JAKKS Pacific® is reannouncing the
recall of 516,000 Spa Factory™ Aromatherapy Fountain & Bath Benefits
Kits. Consumers should immediately
take the toy’s jars and caps away from
children and dispose of any jar lids
without vent holes. Only use jars that
have lids with vent holes.
This children’s product was originally
recalled in January 2009. Since that
time, there have been additional injuries caused by the Spa Factory™ Spa
Fantasy Aromatherapy Fountain &
Bath Benefits Kits. Pressure from the
buildup of carbon dioxide in the jars
of Bath Bombs/Balls or Bath Fizzies
that come with the kits can cause the
unvented lids to blow off, posing
explosion and projectile hazards. The
flying pieces also can cause property
damage. Additionally, the mixture of
water with the Bath Bombs/Balls or
Bath Fizzies can create citric acid. This
acid can get into consumers’ eyes
when the jars explode, posing a risk
of eye irritation.
As of Januar y 2009, CPSC had
received 88 reports of exploding jars,
including 13 injuries to children.
Since that time, CPSC has received 12
additional reports of exploding
unvented jars of JAKKS’ Bath Bombs/
Balls or Bath Fizzies, including 13
additional reported injuries. The new
injuries include irritated eyes, irritated
skin and one eye injury from projectile jar lids. JAKKS Pacific ® Spa
35
Factory™ Spa Fantasy Aromatherapy
Fountain & Bath Benefits Kits were
sold at Sam’s Club,Walmart,Target and
other stores nationwide from August
2008 through August 2010. They sold
for between $13 and $50 and continue to be available in some stores.
Consumers should immediately take
the toy’s jars and caps without vent
holes away from children, dispose of
any jar lids without vent holes and
contact JAKKS Pacific to receive free
jar lids with vent holes. Contact
JAKKS toll-free at 1 (877) 875-2557,
myspafactory.com or email the firm at
caps@jakks.net.
Munchkin, Inc. Recalls Bathtub
Toys For Laceration Hazard
Munchkin, Inc. of North Hills, California, announced a voluntary recall of
approximately 34,000 submarine
bath toys because the intake valve on
the submarine can suck up a child’s
loose skin and pose a laceration
hazard. The CPSC and Munchkin,
Inc. Are aware of 19 incidents of lacerations to boys’ genital areas, one of
which required medical attention.
The recalled bath toys were manufactured in China and were sold at mass
merchandise retail stores and children’s stores from November 2009
through September 2010 for about
stop using the recalled bathtub toys
and contact Munchkin, Inc. To learn
how to return the toy and obtain a
free replacement. You can contact
Muchkin by phone at 1-877-242-3134
or through its website at www.
Munchkin.com.
Graco Recalls Quattro And
MetroLite Strollers
™
™
Graco Children’s Products Inc., of
Atlanta, Georgia, is recalling about 2
million Graco strollers due to risk of
entrapment and strangulation. The
CPSC and Graco have received four
reports of infant strangulations that
occurred in these strollers between
2003 and 2005. In addition, the CPSC
is aware of five reports of infants
36
becoming entrapped, resulting in cuts
and bruises, and one report of an
infant having difficulty breathing.
Entrapment and strangulation can
occur, especially when infants
younger than 12 months of age are
not harnessed. An infant can pass
through the opening between the
stroller tray and seat bottom and his/
her head and neck can become
entrapped by the tray. Infants who
become entrapped at the neck are at
risk of strangulation. The recall
involves older versions of the Graco
Quattro Tour™ and MetroLite™ strollers and travel systems manufactured
prior to the existence of the January
2008 voluntary industry standard
which addresses the height of the
opening between the stroller’s tray
and the seat bottom. This voluntary
standard requires larger stroller openings that prevent infant entrapment
and strangulation hazards.
This recall involves Graco Quattro
Tour™ strollers and travel systems
manufactured prior to November
2006 and MetroLite™ strollers and
travel systems manufactured prior to
July 2007. The strollers and travel
systems were distributed between
November 2000 and December
2007. The model numbers are printed
on a label at the lower portion of the
rear frame, just above the rear wheels
or underneath the stroller. The name
“Graco” appears on a label on the
stroller tray and the headrest.
Quattro and MetroLite strollers
ending with the number 3 are NOT
affected by this recall. The strollers
were sold at AAFES, Babies R Us, Burlington Coat Factory, Fred Meyer,
Kmart, Meijers, Navy Exchange, Sears,
Target, Walmart and other stores
nationwide between November 2000
and December 2007 for between $90
and $190 for the strollers, and
between $190 and $250 for travel
systems. The strollers were manufactured in China.
using the recalled strollers and
contact Graco for a free repair kit. To
order a repair kit, contact Graco tollfree at 1 (877) 828-4046 anytime, or
gracobaby.com. Consumers can continue use of the stroller as a “travel
system.” When the stroller is used
with the infant car seat, the entrapment and strangulation hazards posed
by the space gap are not present.
Frigidaire And Electrolux
Cooktops And Slide-In Ranges
Recalled
Electrolux Home Products Inc. of
Charlotte, N.C. has recalled about
122,000 Frigidaire and Electrolux
ICON Smoothtop Electric Cooktops
and Frigidaire Slide-in Ranges with
rotary knobs and digital displays.
Liquids can pool under the control
knob and cause the surface heating
element to turn on unexpectedly, heat
to temperatures other than expected
and then not turn off, posing a risk of
fire and burn hazards to consumers.
Electrolux has received 70 reports of
incidents, including three reports of
fires that resulted in property
damage. Three minor burn injuries
were reported. This recall involves
Frigidaire and Electrolux ICON
smoothtop electric cooktops and
Frigidaire slide-in ranges with rotary
knobs and digital displays. Model and
serial numbers for the slide-in ranges
can be found inside the oven door on
the left side of the unit or on the
underside surface on cooktop models.
The ranges or cooktops were sold at
mass merchandise and independent
retail stores from Januar y 2005
through August 2010 for between
$500 and $2,500. Consumers should
immediately stop using and unplug
the recalled ranges or power off cooktops at the circuit breaker. Contact
Electrolux for information on how to
obtain a free repair kit contact Electrolux at (888) 281-5310 or visit the
company’s website at www.smoothtoprangerecall.com (Frigidaire) or
www.cooktoprecall.com (Electrolux).
Claire-Sprayway Recalls Fabric
Protector
Claire-Sprayway Inc. of Addison, Illinois has recalled fabric protector.
Overexposure to fumes, vapor or
spray mist from the product can pose
a serious respiratory hazard to consumers. The company has received 36
incidents of overexposure to fumes,
vapor or spray mist, 34 of which
involved coughing, wheezing or
shortness of breath. One incident
resulted in a serious respiratory
injury. The recall involves fabric protector which is an aerosol coating
used to protect fabric. The fabric protector was sold under the following
brand names: Sprayway® No. 980
Industrial Fabric Protector; 3D Fabric
Protector; Auto Brite Fabric Protector
Guardatela; Auto Magic® Fabric Protector No. 91-S; Crystal Aire Products
#680 Fabric Protector; Falcon Labs®
Spotless Fabric Protector; Quiltprotect™ Spray; Robbie’s™ Fabric Shield;
Showcar Fabr ic Protector and
Simoniz® System 5 Stain Sentry
Fabric Protector. The can size is 13.5
oz., and the product code is located
on the bottom of the can. The protector was sold at automotive supply,
auto detailing, upholstery, textiles, furniture and fabric stores nationwide
from January 2005 through August
2010 for about $10. Consumers
should immediately stop using the
recalled product and contact ClaireSprayway to receive a full refund. For
additional information, contact ClaireSprayway toll-free at 1 (877) 416-7324
or visit the company’s websites at
w w w. c l a i r e m f g . c o m o r w w w.
spraywayinc.com.
Blue Buffalo Recalls Dog Food
Blue Buffalo has issued a recall for its
Wilderness Chicken-Dog, Basics
Salmon-Dog and Large Breed Adult
Dog foods. The recall was issued after
Michigan State University veterinarians linked the food to dog illnesses
across the country. The food was
causing elevated levels of vitamin D in
the dogs, with symptoms ranging
from increased thirst and urination, to
weight loss, loss of appetite and signs
of kidney damage. Sick dogs were
found in eight states: Michigan, Texas,
Colorado, Wisconsin, California, Illinois, North Dakota and Utah. You may
call Blue Buffalo at 1-877-523-9114 to
arrange for return of the product and
reimbursement.
Again, if you need more information on
any of the recalls listed above, or would
like information on a recall not listed, you
can go to our firm’s web site at www.BeasleyAllen.com/recalls. We would also like to
know if we have missed any significant
recall that involves a safety issue this
month. If so let us know. You may also
contact Shanna Malone at Shanna.
Malone@beasleyallen.com for more recall
information.
XXVII.
FIRM ACTIVITIES
Employee Spotlights
Ali Douillard
Ali Douillard came to the firm as a Law
Clerk after her first year of law school in
May of 2008. She currently works on the
Medicaid Fraud AWP Litigation in the Consumer Fraud Section. Ali has finished law
school and sat for the Georgia Bar Exam in
July of this year. She is currently awaiting
her bar exam results. After passing the
Georgia Bar Exam, Ali will work as a staff
attorney on the AWP Litigation that is
ongoing in several states. Ali is originally from Kennesaw, Georgia,
where her entire family—from grandparents to cousins—were born and raised.
Most of them continue to reside there. Her
parents, Mark and Gail Douillard, are avid
tennis players as well as dedicated Auburn
and Vanderbilt fans. While they share Ali’s
love for Auburn football, they have also
spent a lot of their time in Nashville supporting Vanderbilt baseball since Ali’s
brother Jonathan Douillard played there.
Ali is a 2007 graduate of Auburn University with a degree in Business Administration. After leaving Auburn, Ali moved to
Montgomery and started her law school
career.While in law school,Ali was a senior
editor for the Law Review, a member of
the trial team, a finalist in a national championship trial in San Antonio, a recipient of
the Best Opening Statement Award in a
2009 national trial competition, and a
Knabe Scholar for her entire three
years. Ali graduated in 2010 on the Dean’s
List. She will take the Alabama Bar Exam in
February. In addition to attending Auburn
games, Ali loves to spend her weekends
boating on beautiful Lake Martin. Ali has
been a very good employee and we are
fortunate to have her with us as a staff
attorney.
Savannah Richardson
Savannah Richardson has been with the
firm since June of 2009 as a Clerical Assistant in our Mass Torts Section. She currently works on hor mone therapy
litigation and helps in the preparation of
medical billing charts, copying, scanning
and reviewing documents as well as
helping with various other projects. Savannah, who is the granddaughter of Genie
Pruett, has one daughter, Madi, who is five
years old and in kindergarten. Pretty much
everything Savannah does is with Madi, so
it’s natural that she likes to do things Madi
enjoys. They both love being outside
together. Savannah also enjoys reading and
just hanging around with the family on the
weekends. She is a very hard worker and
we are glad she is a part of the Beasley
Allen family.
Larry Golston Elected President Of
The Alabama Lawyers Association
Larry A. Golston, a lawyer in our firm,
has been elected to lead the Alabama
Lawyers Association as President. Larry,
who works in our Consumer Fraud
section, assumed the leadership role at the
organization’s annual meeting on September 18th. The Alabama Lawyers Association
is the oldest and largest bar association of
predominantly African-American lawyers
in the state. Established in 1971, the Association exists to enhance the integrity of
the legal profession, to improve the quality
of legal services provided to the public
and to protect the civil rights of the citizens of the State of Alabama. Larry, in
taking over as President, had this to say:
It is with honor and humility that I
become President of the Alabama
Lawyers Association. I am honored
that such a great organization
would choose me to lead it and I am
humbled to follow in the footsteps of
the many great leaders, such as the
Hon. Oscar W. Adams, Jr., Attorney
Fred Gray, the Hon. U.W. Clemon, and
Senator Michael Figures, who have
come before me and served as President of this organization.
We are very proud of Larry and are
highly pleased to see him in the important
37
role as President of this group. It’s always
good for our lawyers to be active in groups
such as this one. I am confident that he
will do an outstanding job.
XXVIII.
SPECIAL
RECOGNITIONS
Jones School Of Law Building To Be
Named For Greg Allen
Greg Allen, who is one of our lawyers,
has been honored by his alma mater. A
new addition to the Thomas Goode Jones
School of Law will be named in his
honor. A groundbreaking ceremony was
held recently for the Allen Law Center on
the campus of Faulkner University. The
new facility will add approximately 17,000
square feet to the existing law school
building, and will include additional study
space in the law library, a classroom,
faculty office space, a courtroom, and
space for the school’s three law clinics.
Dean Charles I. Nelson had this to say:
The Allen Law Center will be a
major addition to Jones School of
Law. This is another major step
forward for the law school in its
effort to become an excellent
regional law school in the Southeast. The unfailing support of
alumni like Greg Allen is an essential part of that progress and we are
very grateful for him.
Greg, who has been a consistent supporter of the school, served as chairman of
the steering committee in Jones School of
Law’s effort to obtain full accreditation
from the American Bar Association. This
was accomplished in December 2009.
Greg is a member of the advisory board
for the school and teaches products liability seminars at the school.
Southern Poverty Law Center Fights
For Justice
The Southern Poverty Law Center and
my good friend Morris Dees have been
fighting for justice and equality in this
country for years. Morris, considered to be
a legend in his own time, is a great lawyer
38
in every respect and has been a real inspiration to lawyers who fight for justice on a
daily basis. The SPLC is a nonprofit civil
rights organization dedicated to fighting
hate and bigotry, and seeking justice for
the most vulnerable members in our
society. Founded by Morris and Joseph
Levin Jr. in 1971, the SPLC is internationally known for tracking and exposing the
activities of hate groups.
The SPLC was founded to ensure that
the promises of the civil rights movement
became a reality for all. Since its founding
in 1971, the SPLC has won numerous landmark legal victories on behalf of “the
exploited, the powerless and the forgotten.” Lawsuits by the SPLC have toppled
institutional racism in the South, bankrupted some of the nation’s most violent
white supremacist groups, and won justice
for exploited workers, abused prison
inmates, disabled children and other
victims of discrimination.
Since its founding, the SPLC has been
led by a strong team of board members,
civil rights lawyers, and program staffers
who are totally committed to ensuring
justice and equality for all. The American
people owe a tremendous debt of gratitude to all who have been a part of SPLC
over the years.
XXIX.
FAVORITE BIBLE
VERSES
Tom Methvin, our Managing Shareholder, furnished a verse for this issue. Tom
believes this verse speaks to all of us at the
firm.
And the King will answer and say to
them, ‘Assuredly, I say to you, inasmuch as you did it to one of the
least of these My brethren, you did it
to Me.’
Matthew 25:40
The following verse was furnished by
my brother Billy Beasley. A graduate of
Auburn University, and a pharmacist in our
hometown of Clayton, Billy is the Democratic nominee for the Alabama State
Senate in District 28. It’s a verse that all
public servants should take to heart.
Let nothing be done through selfish
ambition or conceit, but in lowliness
of mind let each esteem others better
than himself. Let each of you look
out not only for his own interests,
but also for the interests of others.
Let this mind be in you which was
also in Christ Jesus.
Phil 2:3-5
Rev. Walter Allbritton, a pastor at St.
James United Methodist Church in Montgomery, sent in what he says is one of his
favorite verses:
And we know that all things work
together for good to those who love
God, to those who are the called
according to His purpose.
Romans 8:28
Les Steckel, the national director for the
FCA, sent in this verse:
Do you not know that those who
run in a race all run, but one
receives the prize? Run in such a
way that you may obtain it.
1 Corinthians 9:24
Johnny Houston, who is a long time
employee at Pickwick Antiques in Montgomery, sent a verse in this month. Johnny,
who is a hard worker, is very popular with
Pickwick customers. He is a good man and
says he really likes the following verse:
Sing to the LORD a new song, for he
has done marvelous things; his right
hand and his holy arm have worked
salvation for him. The LORD has
made his salvation known and
revealed his righteousness to the
nations. He has remembered his love
and his faithfulness to the house of
Israel; all the ends of the earth have
seen the salvation of our God. Shout
for joy to the LORD, all the earth,
burst into jubilant song with music;
make music to the LORD with the
harp, with the harp and the sound
of singing, with trumpets and the
blast of the ram’s horn—shout for
joy before the LORD, the King. Let the
sea resound, and everything in it,
the world, and all who live in it. Let
the rivers clap their hands, let the
mountains sing together for joy; let
them sing before the LORD, for he
comes to judge the earth. He will
judge the world in righteousness
and the peoples with equity.
Psalm 98
XXX.
CLOSING
OBSERVATIONS
brought to the surface—during which we
could feel good about something. The
miners were heroes—victims—but more
importantly, they were survivors. We can
thank God for that!
A Monthly Reminder
Most folks would probably agree that
our country is badly in need of a wake-up
call. We could learn lots from how the
people of Chile, including the country’s
top political leaders, handled the rescue of
the 33 miners who were trapped over
2,000 feet underground for 69 days. A
spirit of unity and thankfulness was
present throughout the long ordeal and
especially when the rescue efforts were
completed. The world could learn valuable lessons from these events. It was
evident that the miners were giving God
credit for taking care of them throughout
the ordeal. It was very good to have a
period of time—as the miners were being
If my people, who are called by my
name, will humble themselves and
pray and seek my face and turn
from their wicked ways, then will I
hear from heaven and will forgive
their sin and will heal their land. 2Chron7:14
continue to seek out His will for our lives.
If we will do this, His awesome power will
then work in us and through us in our relationships with others. We must never
forget that God is able to do so much more
for us—in us and through us—that we can
ever imagine. There is absolutely no limit
to what he can and will do.
I am thankful for all that God has done
for us and thankful that He is always available both in the good as well as the bad
times. Once we accept Jesus as our Lord
and Savior, and truly surrender to Him, our
lives will never be the same. The great
news is that Jesus will never leave us or let
us down. His promises are true and everlasting. You won’t get that guarantee anywhere else. May God bless each of you and
your families in a very special way!
XXXI.
PARTING WORDS
I pray daily for my family and for all of
those who work with me. That prayer is
that we will all learn to love our Lord more
each day—learn more of His ways—and
To view this publication on-line, add or change an address,
or contact us about this publication, please visit our Website: BeasleyAllen.com
No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.
39
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Jere Locke Beasley, founding shareholder of the law firm Beasley, Allen, Crow,
Jere Locke Beasley,
founding
shareholder
the is
lawone
firmofBeasley,
Allen,
Crow, Methvin,
Portis
& Miles,
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& Miles, of
P.C.,
the most
successful
litigators
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time,
with the
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record
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lawyer
America.
Beasley’s
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firm,
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successful
litigators
ofof
allverdicts
time, with
trackinrecord
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established
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“helping
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for over
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it most for over 30 years.
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 that the quality of services to be performed is greater than the quality of legal services performed by other lawyers.
it most for overNo30
years.

Jere Beasley Report, November 2010

Transcription

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