September 2009

Distributed to over 45,000 subscribers each month

www.BeasleyAllen.com

I.
CAPITOL
OBSERVATIONS
ORDINARY FOLKS NEED LOBBYISTS IN OUR
NATIONS CAPITOL
As we all know, all of the major corporations have their own lobbyists in
Washington, D.C. In addition, the trade
associations,which represent the various
segments of corporate America, have
their lobbyists hard at work. Ordinary
folks badly need their own lobbyists in
our Nations Capitol in order to try and
level the playing field. During the eight
years of the Bush Administration, the
bad guys in Corporate America had an
even greater advantage than ever
before over consumers and those who
potentially would become victims of
corporate wrongdoing and abuse. Even
the Nixon yearsas bad as they were
for ordinary American citizenspaled
in comparison to the Bush years.
An example of how Washington lobbying works was recently reported by
the media. It appears that two oil
giants, Chevron and Exxon, spent well
over $20 million in the first half of the
year lobbying the federal government
on issues that affect consumers and
you can guess whose side the lobbyists
were on. In addition to these companies, the drug industry also spent millions during the same time period for
their very special interest.
Fortunately, there are a few groups
that do their best to serve as the
peoples voice in our Nations Capitol.
One of these is Public Citizen, which
was founded in 1971, and which continues to do good work. Since its beginning, Public Citizen has worked hard
on issues affecting real people and it
has tried diligently to see that all citizens are represented in the halls of
power in Washington. Public Citizen
has championed citizen issues and
interests before Congress, executive
branch agencies and in the courts of
America. They have been fighting on
behalf of all Americans to make sure
that their government works for them.

There are several specific areas where

the hard work of Public Citizen has
been most effective. Public Citizen has
challenged the abusive and oftentimes
hazardous practices of the pharmaceutical, oil and automobile industries, as
well as many others and it is to be commended. But Public Citizen and the
other groups need help in protecting
the interests of ordinary citizens in
Washington.
I encourage all of our readers to
learn more about the work of Public
Citizen by going to www.citizen.org.
You can obtain a copy of the organizations annual report which is most
informative. Also, you may want to
email the president of Public Citizen,
Chris Helfrich, at [email protected]
and request more information about
issues that Public Citizen is currently
working on.
Source: Public Citizen

THE STATE ATTORNEYS GENERAL PLAY

IMPORTANT ROLES
Some in Corporate America appear
to be concerned about the role and
power of the 50 state Attorneys
General. Its said by persons in the
know that in terms of casesas well as
the significance of casesthe state
Attorneys General rival their colleagues
at the U.S. Department of Justice. There
is good reason for those who have
been guilty of corporate wrongdoing
and abuse to be concerned. Many cases
have been brought by state Attorneys
General in the civil courts against companies that have been guilty of fraudulent conduct and wrongdoing on a
grand scale. Those cases have definitely
gotten the attention of corporate
boardrooms across the land.
In addition, there are a number of
ongoing corporate investigations that
are looking into a variety of subjects.
Some Attorneys General have been
more active than others. For example,
Bill Pryor from my State of Alabama
was one of the very first to file a significant civil suit when he took on the
powerful oil giant ExxonMobil a few
years ago. His successor Troy King

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picked up where now-Judge Pryor left

off by continuing with the ExxonMobil
litigation and by filing Medicaid fraud
lawsuits against the drug industry.
There have been several others who
have taken on the bad guys, including
Lori Swanson of Minnesota,; Andrew
Coumo of New York; Jerry Brown of
California; Richard Blumenthal of Connecticut; Martha Coakley of Massachusetts; Darell McGraw of West Virginia;
Henry McMaster of South Carolina; Jim
Hood of Mississippi; James E. Doyle of
Wisconsin; Lisa Madigan of Illinois;
Steve Six of Kansas; Mark L. Shurtleff of

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

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

II.
III.

Purely Political News & Views . . . . . 3

Update of the Medicaid . . . . . . . . . 3
Fraud Litigation

IV.

Recent Filings and Settlements . . . . 5

By the Firm

V.

Legislative Happenings . . . . . . . . . . 7

VI.

Court Watch . . . . . . . . . . . . . . . . . . 8

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

VIII. The Corporate World . . . . . . . . . . 11
IX.

Congressional Update . . . . . . . . . . 12

X.

Product Liability Update . . . . . . . . 14

XI.

Mass Torts Update. . . . . . . . . . . . . 16

XII. Business Litigation . . . . . . . . . . . . 18

XIII. An Update on Securities Litigation. 19
XIV. Employment and FLSA Litigation . . 20
XV.

Insurance and Finance Update . . . 21

XVI. Predatory Lending Update. . . . . . . 22

XVII. Premises Liability Update . . . . . . . 23
XVIII. Workplace Hazards. . . . . . . . . . . . 25
XIX. Transportation . . . . . . . . . . . . . . . 25
XX.

Arbitration Update . . . . . . . . . . . . 28

XXI. Healthcare Issues . . . . . . . . . . . . . 28

XXII. Environmental Concerns . . . . . . . . 30
XXIII. The Consumer Corner. . . . . . . . . . 33
XXIV. Recalls Update . . . . . . . . . . . . . . . 37
XXV. Firm Activities . . . . . . . . . . . . . . . . 42
XXVI. Special Recognitions . . . . . . . . . . . 45
XXVII.Favorite Bible Verses. . . . . . . . . . . 45
XXVIII. Closing Observations . . . . . . . . . . 46
XXIX. Parting Words . . . . . . . . . . . . . . . . 47

Utah; Mark Bennett of Hawaii; and Terry

Goddard of Arizona. If any of our
readers know of others, let me know.
As expected, the defenders of corporate wrongdoing and abuse have
stepped up their campaigns in an effort
to undermine the good work of the
state Attorneys General. There will be
legislation introduced in state legislative bodies designed to derail the
efforts of the states. Op-ed pieces are
being sent to media outlets, as well as
letters to the editors of state newspapers, attacking the Attorneys General
and attempting to mislead folks about
what they have accomplished thus far.
If you agree that state Attorneys
General should go after the bad guys
in Corporate America when they
commit massive wrongs, let the Attorney General in your state know that
you support him or her.

II.
PURELY POLITICAL
NEWS & VIEWS
RESULTS OF A RECENT POLL ARE NOT TOO
SURPRISING
A recent poll reveals that 47% of
Alabamians say theyre worse off this
year compared to last and that really
shouldnt come as a big surprise. The
telephone poll, conducted by Auburn
Universitys Center for Governmental
Services, also shows that many Alabamians say they are optimistic about their
economic future and thats encouraging.The poll, conducted between July
6th and July 19th, found that 53% of
those polled said they were living
comfortably during the recession, with
42% saying they were struggling to
make ends meet.
Also, 19% of homeowners in Alabama
were either very worried or somewhat worried about making their
mortgage payments in the next six
months. More than half (52%) said they
were not worried at all. Looking
ahead to 2010, 55% of respondents said
they would be better off next year.

In my opinion, if we could convince

the news media to report all of the
good news that develops about our
nations economyand there is some
on a daily basis for a few months, the
badly-needed economic recovery would
happen much sooner. Folks need to
feel good about thingsfor a change!
Source: Mobile Press-Register

ALABAMA IS SAID TO BE THE MOST

CONSERVATIVE STATE IN THE NATION
Alabama is the most conservative
state in the nation, according to a
Gallup Poll. The poll, which was
released last month, says that 49% of
Alabamians polled identified themselves as being conservative. Alabama
was followed by Mississippi, which ran
a close second with 48% identifying
themselves as conservative. In the top
ten conservative list are: Utah,
Louisiana, Oklahoma, South Carolina,
North Dakota, South Dakota, Idaho, and
Wyoming.
The District of Columbia, which had
the fewest people identifying themselves as conservative, was ranked as
the place where the most people identified themselves as being liberal. Massachusetts,
Vermont,
Oregon,
Washington, New York, New Jersey, California, Hawaii, and Connecticut round
out the top ten liberal states in the poll.
The polls results were based on
answers to a question asking whether
peoples political views are very conservative, conservative, moderate,
liberal, or very liberal. The data comes
from Gallup Daily tracking in the first
half of 2009, with more than 160,000
adults interviewed nationwide.
It would be most interesting to take
the polling a step further, however,
and ask those polled for their definitions of conservative and liberal.
Their answers might be quite revealing
and perhaps even surprising. Had I
been asked, I would have had to say
that I am a conservative on fiscal and
moral issues and somewhat moderate
in some other areas. The bottom line is
that I believe in following the Golden
Rule in my dealings with others. So I

doubt if I could answer the pollsters

question without explaining my answer
in more detail.
Source: Birmingham News

III.
UPDATE OF THE
MEDICAID FRAUD
LITIGATION
OVERVIEW OF THE MEDICAID FRAUD
LITIGATION
In last months issue, we reported on
a number of jury verdicts that had been
rendered throughout the country in
the Medicaid fraud litigation. One of
the cases we reported on was the Kentucky jury verdict of $16 Million
against Defendant Sandoz. But we have
discovered a slight error in our reporting. In the article we stated the jury
found that punitive damages must be
imposed in the form of civil damage
penalties. We should have reported
that the jury returned a verdict against
Sandoz for $16 million and now it is up
to the Kentucky trial judge, not the
jury, to determine any additional
amount of civil penalties over and
above the $16 million jury verdict for
the fraudulent pricing conduct of the
Defendant Sandoz.
We also reported that the Kentucky
jury found 2900 violations of fraudulent price reporting. However, while it
is unclear how many violations Sandoz
may have been guilty of, the 2900 violations are what the State of Kentucky
had alleged to the trial judge that the
civil penalties should be based upon.
While the jury did not make this
finding, the State of Kentucky has
argued to the trial court that this is the
basis upon which civil penalties must
be imposed.
We explained in last months article
that civil penalties are statutory, punitive in nature, and imposed by the trial
judge, all of which is correct information. However, the jury did not find and
the jurors do not impose punitive
damages in the form of civil damages.

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Instead, in Kentucky, the trial judge is

charged with that duty. The State of
Kentucky has a pending motion before
the Kentucky trial judge to impose a
$2,000 per violation penalty for the
alleged fraudulent conduct of Sandoz
for false price reporting.We will keep
you posted on any new developments
that occur in these cases.We regret the
errors made in last months report on
the Kentucky case.

Defendant Pharmacia; and $7 million

for the State of Missouri against Schering-Plough Warrick.Therefore, considering this track record, mediation would
appear to be a logical and productive
event. For the sake of the citizens of
Alabama and especially those on Medicaid, we certainly hope that is the
case. If the mediation process is successful, we will promptly report the
results.

MEDIATION ORDERED IN ALABAMA

WATSON & MAYLEN CASES SET IN ALABAMA

The most recent development in the

Alabama Medicaid Fraud litigation is
that Chief Judge Charles Price has
ordered the State of Alabama and 17
pharmaceutical company Defendants
to a mandatory mediation proceeding
to occur before December 1, 2009.The
very well-respected Opelika, Alabama
lawyer, Phil Adams, will serve as the
court appointed mediator.
Each of the 17 Defendants are scheduled for different trial dates which are
set out as follows: on December 7,
2009, State of Alabama vs.Watson Laboratories, Watson Pharma, Inc., and
Watson Pharmaceuticals, Inc.; on
January 25, 2010, State of Alabama vs.
Mylan Laboratories, Inc., Mylan Pharmaceuticals, Inc., and UDL Laboratories, Inc.; and on April 30, 2010, State of
Alabama vs. Merck & Co., Inc., Wyeth
Pharmaceuticals, Inc., Wyeth, Inc.,
ALZA Corporation, Janssen Pharmaceutical Products, L.P., Johnson &
Johnson, McNeil-PPC, Inc., Ortho Biotech
Products, L.P., Ortho-McNeil Pharmaceutical, Inc., Roche Laboratories, Inc.,
and Hoffman-LaRoche, Inc.
Every jury verdict returned in the
Alabama cases has been in favor of the
State of Alabama. These verdicts total
$352 million to date. Also 24 drug manufacturer Defendants have settled with
the State of Alabama for a total of $135
million. All of the recent jury verdicts
outside of Alabama have also been in
favor of the states and against the drug
manufacturers. These were in favor of
the State of Kentucky for $16 million
against Defendant Sandoz; $9 million
for the State of Wisconsin against

The State of Alabamas next Medicaid

fraud trial will occur on December 7,
2009 against Defendants Watson Laboratories,Watson Pharma, Inc. and Watson
Pharmaceuticals, Inc.The Watson Defendants were previously consolidated
with Defendants Abbott Laboratories,
Forest Laboratories and Forest Pharmaceuticals, Inc., but these Defendants
recently settled all of the claims that
the State of Alabama alleged against
them as part of the recently-announced
$89 million settlement this past June.
The Watson Defendants were the only
Defendants remaining from that consolidation after the settlement was concluded. Again, that trial will begin on
December 7, 2009.
After the Watson Defendants trial,
the States next trial will take place on
January 25, 2010 against Defendants
Mylan Laboratories, Mylan Pharmaceuticals, Inc., and UDL Laboratories, Inc.
These generic drug companies will
face their first- ever Medicaid fraud trial
before a Montgomery County jury in
January.This case was originally set for
trial on September 22, 2009, but due to
scheduling conflicts by the Mylan
lawyers, the case had to be rescheduled
for January, 2010.

THE WATSON TRIAL IN HAWAII

The next Medicaid fraud lawsuit trial
that our firm will be involved in will be
on October 26, 2009, in Honolulu,
Hawaii against the Watson Defendants
(Watson Pharmaceuticals, Inc.,Watson
Pharma, Inc., f/k/a Schein Pharmaceuti-

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cals, Inc., and Watson Laboratories,

Inc.). We will be trying the case with
Attorney General Mark J. Bennetts
office and the local Honolulu law firm
of Price, Okamoto, Himeno & Lum. This
case provides for a slightly different
challenge than the previous cases tried
by our firm. If the State of Hawaii
proves that the Watson Defendants
committed fraud by reporting false
drug prices to the State of Hawaii, then
the State will be awarded statutory civil
penalties by operation of law. These
penalties are mandatory under the Civil
Liability Law for which Hawaii is prosecuting Watson and other Defendants.
On November 30th, the State of
Hawaii will try Defendant Sandoz, Inc.,
for the same conduct mentioned above
relating to Watson. Our firm will be
involved in this trial as well with Attorney General Bennetts office, the Honolulu law firm of Price, Okamoto, and
the Chicago law firm of Miner, Barnhill
& Galland, P.C. This will be the third
Medicaid fraud trial for Sandoz. As
you may recall, we have previously
reported that the State of Alabama
obtained a verdict against Sandoz in
February, 2009 for $78,443,572.00 and
that recently the State of Kentucky
obtained a verdict against Sandoz in the
amount of $16,000,000.00. The trial
judge in Kentucky may still impose
additional penalties on Sandoz as a
result of a civil penalty statute utilized
in that case by the State of Kentucky.
The trials against the Watson Defendants and Sandoz in the State of Hawaii
will be Hawaiis first two Medicaid
fraud trials. The State of Hawaii previously settled cases with Defendants
Dey Laboratories, Baxter Healthcare
Corporation and Bristol-Myers Squibb
Company.
We look forward to trying these two
cases with Attorney General Bennetts
office as well as the law firms of Price,
Okamoto and Miner, Barnhill. As always,
we will promptly report the results of
these trials once the jury verdicts have
been announced.

KENTUCKY MEDICAID SETTLES MEDICAID

FRAUD LAWSUIT WITH BOEHRINGER
INGELHEIM
On July 15, 2009, Kentucky Attorney
General Jack Conway announced a
$4.5 million settlement with a pharmaceutical manufacturer accused of
reporting fraudulently inflated Average
Wholesale Prices, prices which caused
the states Medicaid program to unknowingly and unnecessarily spend millions
of extra dollars on prescription drugs.
The settlement was reached with
Germany-based Boehringer Ingelheim
GmbH and its subsidiaries Boehringer
Ingelheim Pharmaceuticals, Inc., Boehringer Ingelheim Roxane, Inc., Roxane
Laboratories, Inc. and Ben Venue Laboratories, Inc.The State of Kentucky filed
47 lawsuits targeting drug manufacturers for fraudulent drug price reporting
practices that have cost the states Medicaid program millions of dollars.
State Medicaid programs rely on the
prices furnished by drug manufacturers that are published to calculate Medicaid drug-reimbursement rates. The
lawsuits allege the Defendants published false and inflated prices which
were not reflective of the actual purchase prices pharmacies and doctors
paid in the marketplace. In announcing
the settlement, Kentucky Attorney
General Jack Conway stated:
My office is committed to ensuring that drug companies truthfully report their prices and do
not engage in false or misleading
marketing of their products. Taxpayers should not be footing the
bill for these inflated drug prices.
Previously,Attorney General Conway
announced a $16 million verdict in the
states case against drug maker Sandoz
that we wrote about last month. Since
January 2008, the State of Kentucky has
recovered $63 million from various
drug manufacturers for defrauding its
Medicaid program. Kentucky is one of
27 states that have filed lawsuits against
drug manufactures in the Medicaid
fraud litigation which is commonly
referred to as the AWP litigation.
Source: legalnewsline.com

IV.
RECENT FILINGS
AND
SETTLEMENTS BY
THE FIRM
DEATH CASE SETTLED IN TROY, ALABAMA
Our firm recently settled a wrongful
death case arising out of a trucking collision which killed Deborah Ann Fields on
December 19, 2007. At the time of the
accident, Ms. Fields was operating an 18wheeler truck on Highway 231 North
between Grove Road and Oak Grove
Road in Troy, Alabama. The collision
was caused when a tractor-trailer driven
by Dusty Lee Scott Conner and owned
by Kathy McKenzie Trucking failed to
yield the right of way leaving Mrs. Fields
no time to react. Unable to stop or
avoid the truck in her lane of travel, Ms.
Fields vehicle slammed into the back of
the tractor trailer operated by Mr.
Conner. Ms. Fields was killed when her
truck exploded and burst into flames.
Mr. Conner could have easily avoided
this accident by turning into the unoccupied inside lane, which he admitted
was possible, or he could have yielded
to traffic as the law requires.
The claims were brought against the
Defendants for the negligence of the
driver in operating his tractor trailer.
The Defendants argued that Ms. Fields
was not paying attention and could
have avoided the collision. These allegations were rebutted by eye witness
testimony that said Ms. Fields had no
time to react.We had expert testimony
from an industry accident reconstructionist who supported the eye witness
testimony.
At the time of the accident, Mr. Conner
was pulling a load of pine lumber owned
by Peacock Timber Company, Inc. We
brought claims also against Peacock
Timber Company alleging that Mr.
Conner was an agent of that timber
company while pulling that companys
logs at the time of the accident.
Ms. Fields was driving a Freightliner
tractor trailer at the time of the collision. There will also be product liabil-

ity claims against Freightliner because

of product defects in Ms. Fields vehicle
that caused it to explode upon impact.
The product liability claims allege that
the magnetic starter switch was
improperly placed in the cab of the
vehicle. Our expert testified that the
magnetic starter switch, which ignited
the fire, should have been placed in a
position where it was unlikely to be
impacted in a vehicle collision. Freightliner denied the allegations of defect.
The case was settled with all Defendants for a confidential amount. The
case was handled by Greg Allen and
Chris Glover from our firm and they
did a very good job for our clients.

MISSISSIPPI CASE INVOLVING MAN CRUSHED

BY PIPE WON ON APPEAL
On August 6, 2009, the Supreme
Court of Mississippi affirmed the jury
verdict in a death case handled by our
firm along with a Mississippi firm.
Michael Raines was killed in 2001
when a 1,500-1,800 pound dredging
pipe rolled off the top of a truck and
trailer owned by Kittle Heavy Hauling
and struck Mr. Raines head. The driver
of the Kittle Heavy Hauling truck
pulled a load of 16 of these large pipes
from Sardis, Mississippi, to Greenwood,
Mississippi, when the accident happened. The pipes had shifted during
transportation and fell after one of the
chains was released.
After Michael Raines death, his family
filed the lawsuit against Kittle Heavy
Hauling and Kittles driver of the truck.
The company and its driver acted negligently or wantonly in failing to secure
the load of pipes with chocks, triangular wooden blocks, which are nailed to
the end of a four-by-four timber and
placed between the pipes. Had the
Defendants secured the pipes with the
required chocks, Michael Raines would
not have been crushed to death
because the pipe would not have fallen
off the trailer.
The case was filed in Leflore County,
Mississippi. After five years of discovery and after the trial court denied
Defendants Motion for Summary Judg-

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ment, the case was presented to a jury

in Greenwood, Mississippi in February
2008. For four days, the jury heard evidence concerning the Defendants duty
to Michael Raineshow that duty was
breachedand how that breach proximately caused the death. The Defendants claimed that Inland Dredging
Company, Michael Raines employer,
and Inlands employees, had the sole
responsibility to secure the load of
pipes. The Defendants argued to the
jury that Inlands employees and actually Michael Raines himself were at
fault. After hearing all of the evidence
presented, and after being properly
instructed by the trial judge on the
applicable law, the jury rendered a
unanimous verdict finding that Michael
Raines and his co-employees were zero
percent at fault. The jury awarded
$850,000 for the death of Mr. Raines.
The trial court entered an order awarding $340,000 to Plaintiffs which represented 40% of fault the jury allocated to
the Defendants.
On appeal, the Defendants did not
claim error in the trial courts evidentiary rulings at trial or with the trial
courts jury instructions. However, the
Defendants argued that the trial court
should have ruled as a matter of law
that these Defendants owed no duty to
safely secure the pipes. The Supreme
Court of Mississippi disagreed with the
Defendants and affirmed the judgment.
Interest accrued on the judgment
totals approximately $40,000. In addition to the interest accrued on the
judgment, the Defendants will be
required to pay an additional 15% statutory penalty for an unsuccessful appeal
of a monetary amount. Since this case
was filed in March of 2002 and tort
reform in Mississippi was not passed
until 2003, the statutory penalty still
applies in this case.
The case was tried by Julia A. Beasley
and Navan Ward from our firm along
with Charles Swayze, Jr., and Charles
Swayze, III, two very good lawyers, who
are with Whittington, Brock & Swayze,
in Greenwood, Mississippi. The case
was sent to our firm by Randall
Cheshire of Almond & Cheshire, another

very good lawyer, who is from Tuscaloosa, Alabama. This was a long, hard
battle and one that finally came out right.

INTERSTATE DEATH CASE SETTLES

Our firm recently settled a very
important case in Louisiana. On July
28, 2008, a four-vehicle crash on Interstate 12 in Baton Rouge claimed the
lives of a young couple from Mississippi and their seven-year old daughter. Additionally, their four-year-old
daughter was critically injured in the
crash and is still undergoing treatment
and therapy for permanent nerve
damage. Along with Jim Reeves, a very
good lawyer from Biloxi, Mississippi,
we were fortunate to represent the
estates of Phillip, Shyla and Haylie Van
Alstine for their wrongful deaths and
Kaytie Van Alstine for her permanent
injuries. Prior to his death, Phillip was a
member of the Mississippi National
Guard and was a chemical engineer.
His wife Shyla was a school teacher.
On July 28, 2008, the Van Alstine
family was returning home from a
summer afternoon at a local water park
just before the new school year started.
As the family traveled along Interstate
12 in their Chevrolet van, traffic
became congested and slowed to a
stop. Just prior to the accident, the
family was sitting parked on the interstate behind a flat-bed tractor trailer.
Behind them a Chevrolet Express van
came to a stop. Although the drivers of
the other vehicles recognized that
traffic was slowing and stopped, a
speeding Waste Management tractor
trailer failed to stop and struck the rear
of the Express van. The Waste Management truck then pushed the Express
van into and through our clients van.
The force of the impact was so great
that the entire body of our clients van
was separated from its frame. Although
they were all properly wearing their
seatbelts, Shyla and Haylie were killed
at the scene and Phillip was transported to the hospital but died a short
time later. Kaytie, who was properly
buckled in her child seat, suffered
extensive orthopedic and nerve

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injuries and requires ongoing therapy.

Although we were prepared to
provide extensive expert testimony,
this case settled prior to trial for a confidential amount. Mike Andrews and
Jim Reeves did a very good job representing this unfortunate family.

WAL-MART PARKING LOT CASE IS SETTLED

Mark Stubbs was struck by a motor
vehicle in the Wal-Mart parking lot in
Prattville, Alabama, on December 24,
2008. Mr. Stubbs and his teenage son
were walking in the parking lot when a
vehicle driven by Carol Harris caused a
multi-vehicle collision with her vehicle
hitting Mr. Stubbs. According to Mrs.
Harris, she suffered a seizure due to
improper medication given to her by
her physician. Mr. Stubbs suffered
severe injuries to his left knee which
required a ligament reconstruction.
Mr. Stubbs also sustained a fracture to
his right arm and right ankle as well as
injuries to his shoulder. The surgery to
repair the severe ligament damage to
his left knee was not successful and Mr.
Stubbs was required to undergo
another surgery. He was employed as a
truck driver and has been unable to
return to work. It is unlikely that he
will ever return to work as a truck
driver. This case settled for the total
amount of Mrs. Harris liability insurance limits and Mr. Stubbs underinsured motorist coverage. Julia A. Beasley
from our firm handled this case for Mr.
Stubbs and did a very good job.

COMPLAINT FILED AGAINST ALABAMA

POWER AND DRUMMOND COMPANY
Our firm continues to monitor mine
subsidence damages to surface properties as a result of underground mining
operations. On August 3, 2009, we filed
a lawsuit on behalf of Jack Rainer and
Kerry Rainer against Alabama Power
Company and Drummond Company.
The Complaint, filed in the Circuit
Court of Walker County, alleges that the
Defendants failed to provide an adequate support structure to the surface

properties above their underground

room and pillar mine. As a result of the
Defendants failure, the Rainers property was damaged from a phenomenon
known as mine subsidence. Mine subsidence is either the sudden or gradual
sinking, cracking or settling of surface
property as a result of an underground
mine collapse.
Because our clients property was
above and adjacent to the Defendants
properties, the Defendants had a duty
to provide a proper support structure
to the Rainers property. Otherwise, the
removal of rock and coal hundreds of
feet below the surface would cause
rocks, minerals and actual surface property to cave into the void left from the
mining operations. The Defendants also
had a duty to not interfere with the use
and enjoyment of the Rainers property.
Over the past year, the Rainers begin to
notice the formation of large sinkholes
and cracks on the surface. These symptoms are telling signs of mine subsidence and can cause significant
devaluation of property and damage
existing structures. Unfortunately, mine
subsidence cases are not an isolated
occurrence in Alabama. High extraction
longwall coal mines are prevalent
throughout the state and result in substantial property damage. Further,
closed room and pillar mines remain as
a constant threat to surface properties.
In their Complaint Jack Rainer and
Kerry Rainer alleged four causes of
action against the Defendants: Subsidence, Nuisance, Trespass, Negligence
and Wantonness. In almost every
instance of mine subsidence,our lawyers
and investigators are unable to venture
into the mine and physically view the
support structure left behind by the
Defendants. Therefore, expert testimony
is critical to these cases in demonstrating
that mining activities caused the damage
on the surface. Rhon Jones and Parker
Miller from our firm will be handling this
case for the Rainers.

V.
LEGISLATIVE
HAPPENINGS
THE SPECIAL SESSION WAS A SUCCESS
The Alabama Legislature stepped up
to the plate and passed the requested
bills that hopefully will keep Jefferson
County out of bankruptcy. Governor
Riley and the Democratic members of
the House and Senate worked in
concert making the special session a
success. At least one Republican also
supported the needed legislation. Governor Riley and the Legislature simply
couldnt afford to let Jefferson County
go into bankruptcy. Had that happened, it would have been a severe
blow to the entire state and one which
would have had an adverse ripple
effect on our governmental entities.
The sessioncompleted in five days
was a success. Now I just hope and
pray that Jefferson County can get its
act together and put the countys business back on a sound fiscal footing.

GOP WANTS TO TAKE OVER THE ALABAMA

LEGISLATURE
A plan that was said to be top
secret to take over the Alabama Legislature by the State Republican Party
was leaked to the blog Docs Political
Parlor which made it public for all the
world to see. The GOP has a goal of
winning 17 selected seats in the House
and Senate. The 88-page report was
very detailed and apparently put
together by professionals. Frankly,
based on past performance, I dont see
the GOP making any significant
inroads in the House or Senate. Its my
belief, however, that if Democrats
running for legislative office would
stress real consumer and people
issues in their campaigns, the GOP candidates wouldnt stand much of a
chance on Election Day.

LOOKING AHEAD TO 2010 AND BEYOND

It was reported recently that the revenues that fund state government operations and public education in Alabama
saw decreases that were steeper and
longer than anything the Legislative
Fiscal Office (LFO) has ever seen.The
record for decreases in the general
fund taxes had been set in 1954 and
the current decrease was two-and-a-half
times larger than it was then. Unfortunately, the budget cuts that took place
this year as a result wont be anything
like what is expected in the near
future.
The question looms, what is the
answerboth short and long term?
Without the influx of federal money
from the ARRA, our state would have
been in extreme difficulty this year. The
LFO says $513 million from the ARRA
funds went into the general fund and
about $1 billion went to the special
education trust fund. So what happens
when the federal funds are no longer
available?
Of the $3 billion in ARRA funds the
state expects to get, only about $659
billion will remain in 2011 according to
reports from the LFO. Education is
expected to get $511 million of that
amount, leaving only $148 million in
ARRA funds to help out in the general
fund. According to a number of fiscal
experts, Alabama has two choices on
the short term solutions:
Borrow more money from the
Alabama Trust Fund which would
require a constitutional amendment.
Make more drastic cuts in state
spending which means good programs and services will be cut
sharply.
The long range solution to the states
fiscal problems will be much more difficult. The following have been suggested as long-term solutions:
Fewer earmarks of state tax revenues.
Revise our tax code which would
require some tax increases in certain
areas. It would also include the cutting
out of some existing tax loopholes.

www.JereBeasleyReport.com

Increase taxes, such as property

taxes, and keep spending levels fairly
stable.
Nobody, including me, believes the
Alabama Legislature will pass any tax
increases in 2010. Perhaps 2011 will be
a different story, but that depends on
several factors. The economy may have
improved to the extent that no additional revenues are needed. But, if that
doesnt happen, the solution for the
long term will depend on how badly
the needed servicesincluding public
educationhave already been cut and
how the in 2011 cuts would affect
Alabama citizens.

VOCAL NEEDS HELP

VOCAL is a group of dedicated individuals led by my longtime friend
Miriam Shehane that serves a most
important function in our state.
VOCALs goal has always been to help
victims of crime and it has done a
tremendous job. But VOCAL has experienced severe financial problems due to
a lack of state support over the years.
They need help now! The following is
an editorial from the Eufaula Tribune
that discusses VOCALs needs:
Its been more than 30 years since
Clio native Queenie Shehane was
murdered in Birmingham. Queenie
was a beautiful, bright young
lady who was attending Birmingham-Southern College at the time.
Her promising life was way
too short. It wasnt long after
Queenies death that her mother,
Miriam, went to work as an advocate for crime victims and their
families. God only knows the
thousands of individuals she has
assisted in the past three decades.
She co-founded VOCAL (Victims of
Crime and Leniency) in 1982, a
program that has statewide significance. Weve heard Attorney
General Troy King praise the
program on numerous occasions.
Queenies name lives on today in
part through VOCAL. Rep. Billy
Beasley hopes her name will live
8

on in the future. Beasley recently

introduced the Quenette Shehane
Act in the House. If approved by
Montgomery lawmakers, it would
create a victims service fund to
assist programs within the State of
Alabama. As of Wednesday the bill
was in the committee on government appropriations. The bill
would provide a $2 court cost on
each conviction.The money would
go to the victims assistance programs. Programs that would be
assisted include: the Statewide
Victims Information and Notification System, the Victims Service
Officers with the Office of the
Attorney General, the VOCAL
Angel House Crime Victims Board
and the Alabama Criminal Justice
Information Center.
The bill would also provide
funding for two victims service
officers to work within the Attorney Generals office. This is an
important bill for obvious reasons.
According to its Web site, Wiregrass Angel House advocates for
victims rights and services for
victims of violent crime, provides
direct services to victims and
their families, and provides public
education and awareness. Our
staff members are available to
assist the family and loved ones
of a homicide victim, the Web site
states.Advocates assist survivors
in communicating with police,
the Attorney Generals office, and
Governors office and provide
emotional and physical support
throughout the course of your
case. Advocates work closely with
the staff in all phases of the criminal justice system.
What a great source of help and
strength in a time of such loss.We
commend Rep. Beasley for introducing this valuable piece of legislation, and hope it does not get
bogged down in the current session.
Our lawmakers should vote yes.
Eufaula Tribune
August 2009

www.BeasleyAllen.com

Even though 2010 is an election year,

I hope the Legislature will pass the bill
mentioned above. VOCAL and victims
of crime need it!

VI.
COURT WATCH
SENATE CONFIRMS JUDGE SOTOMAYOR FOR
SUPREME COURT
The Senate confirmed Judge Sonia
Sotomayors nomination on August 6th by
a 68-31 vote, making her the first Hispanic on the U.S. Supreme Court. The
confirmation also makes the 55-year-old
federal appeals court judge the 111th
person to sit on the Supreme Court, but
only the third female justice. Nine
Republicans, who should be commended, joined a unanimous Democratic caucus in supporting her nomination.
Senators spent the final morning of
debate rehashing the main arguments
for and against Judge Sotomayor.
Democrats praised the nominee as a
fair and impartial jurist, which her
record bears out, and as a person with
an extraordinary life story. But before
her confirmation many Republicans
for selfish political purposescontinued to portray her as a judicial activist,
intent on reinterpreting the law to
conform with her own political beliefs.
Vermont Sen. Patrick Leahy, chairman
of the Senate Judiciary Committee,
helped open the final day of debate by
praising the nominees lengthy judicial
record. Senator Leahy had this to say
about this extraordinary woman:
Judge Sotomayor is a judge of
unimpeachable character and
integrity. These critics have
chosen to ignore her extensive
record of judicial modesty and
restraint, a record made over 17
years on the federal bench.
Instead they focused on and mischaracterized her rulings in just a
handful of her more than 3,600
cases.
I am convinced that Justice
Sotomayor will be an outstanding

member of U.S. Supreme Court. In my

opinion, she will be a force for good on
the High Court. President Obama made
a great selection.

state law. Instead, it will allow states to

continue to experiment with different
approaches. Hopefully, Congress will
pass the needed legislation to create
the CFPA.
Source: Des Moines Register

VII.
THE NATIONAL
SCENE
ATTORNEYS GENERAL CALL FOR CONSUMER
AGENCY
Attorneys General from 24 states are
urging Congress to create the consumer protection agency proposed by
the Obama Administration. President
Barack Obama proposed the Consumer
Financial Protection Agency on July 17th
as part of sweeping financial regulation
reform. Specifically, the agency would
oversee most consumer-oriented financial products, such as credit cards and
mortgages, and require lenders to give
customers the option of plain vanilla
plans with straightforward terms. Iowa
Attorney General Tom Miller, who has
been one of the leaders in the movement, said in a statement:
Working with the states, this
agency will be able to prevent
and root out unfair and deceptive
practices by the financial services
industry.
The letter, which was sent to leaders
of the Senate Banking Committee and
the House Financial Services Committee, read:
The current financial crisis,
caused in part by irresponsible
subprime lending and inadequate oversight, has demonstrated
the need for comprehensive and
effective consumer protection and
enforcement at the federal level.
President Obama asked lawmakers to
adopt a new regulatory regime by
years end. The letter from the Attorneys General also called for the preservation of the states authority and
ability to fight unfair and deceptive
practices. The CFPA will not preempt

CONGRESS LISTENS ON HEALTHCARE

REFORM
The efforts to reform our broken
healthcare system have gotten down to
one simple issue:Who does Congress
listen to? It could also be put this way:
Who controls Congress? Few Americans would deny that health care costs
in the U.S. are out of control, folks are
losing coverage, and quality and availability of care are growing concerns
among citizens throughout the
country. Most folks probably support
reform, but only if the reform makes
quality health care more affordable and
more accessible. Over the years the
insurance and pharmaceutical industries have literally taken over our
healthcare system. The insurance companies have pushed medical professionals to the second tier of influence
in most all areas in the system.We now
have clerical personnel working for
insurance companies deciding what
level of healthcare folks get in America
and thats just unacceptable.
The town hall meetings throughout
the country have developed into little
more than an opportunity for folks to
express their legitimate concerns over
the failures of the existing system and
their even greater fear of a government
takeover of American healthcare.While
some may question motives, I am a
strong believer in the town hall
meeting concept. Most of us have not
read any of the versions of the reform
bills being considered in Washington.
Some who attended these meetings
obviously have.
One thing is for certain, and that is
that the members of Congress are listening more to the lobbyists for the
insurance industry than to the voices of
ordinary citizens. Unfortunately, much
of what the public is hearing is either
false or partially falseand both are

badand all of it is coming by and

large from the insurance and pharmaceutical industries. I hope some real
reform occurs, but I have real doubts
that the insurance and drug bosses and
their lobbyists will let up. The corporate opposition to reform has labeled
the central issue as a government
takeover of healthcare, which was
described in an editorial in the USA
Today as rhetoric worthy of the mad
hatter. When the debate started, I
thought reducing the cost of healthcare and making healthcare accessible
were the major issues.
The healthcare reform issue is most
complex and there is no easy solution.
There is little doubt that we need
meaningful reform of our healthcare
system so that all Americans can have
access to quality, affordable healthcare.
The insurance and drug industries have
had far too much control over the
system. We have seen the cost of
healthcare and health insurance premiums skyrocketing out of control with
no end in sight. In Alabama there are
over 600,000 adults who are uninsured
and that is unacceptable.
As stated above, there have been so
many untruths and half-truths put out
that efforts by the Obama Administration and Congress have been stalled.
Hopefully a good bill that is real reform
will pass and become law.

TOP TARP BANKS PAID OUT $32.6 BILLION

IN BONUSES
Nearly a dozen banking giants,
including Merrill Lynch & Co., Citigroup Inc. and Bank of America Corp.,
paid out more than $32.6 billion in
bonuses in 2008. At the same time, the
banks were accepting $175 billion in
taxpayer funds through the Troubled
Asset Relief Program. A report, released
by New York Attorney General Andrew
Cuomo, analyzed the original nine U.S.
banks that received TARP funding in
2008 and concluded that even though
the banks profits fell drastically, they
continued to pay out large bonuses. I
would have thought the top officials
with these banks would have learned

www.JereBeasleyReport.com

their lesson. But apparently not, and

their greed continued to override their
judgment of fair play.
In the report, entitled No Rhyme or
Reason:The Heads I Win,Tails You Lose
Bank Bonus Culture, the Attorney
Generals office analyzed 2008 bonuses
at nine banks that received TARP
financing from the U.S. government.
Citigroup and Merrill, since taken over
by Bank of America Corp., received
TARP funding totaling $55 billion.
Goldman Sachs Group Inc., Morgan
Stanley and JPMorgan Chase & Co. paid
out a total of $18 billion in bonuses in
2008, while receiving a combined total
of $45 billion in taxpayer dollars
through TARP. In 2008, the three firms
earned a combined $9.6 billion last
year, according to the report.
Its absolutely impossible to justify
the TARP funds being used to pay
bonuses to officers or employees of
banks that recorded billions of dollars
in losses. For example, Citigroup and
Merrill Lynch suffered losses of more
than $27 billion at each firm, according
to the report. Even so, Citigroup paid
out $5.33 billion and Merrill $3.6
billion in bonuses.
Source: Law 360 and TransWorld News

REPORT FINDS ONLY NINE PERCENT OF

HOMEOWNERS ARE GETTING HELP
It was reported recently by Associated Press that the federal governments $50 billion program to ease the
foreclosure crisis is helping only a tiny
fraction of struggling homeowners.
According to the report, as of July, only
9% of eligible borrowers had seen their
mortgage payments reduced. A
progress report on the plan in early
August, showed that ten lenders had
not changed a single loan. Both Bank of
America Corp. and Wells Fargo & Co.
which have received billions in federal
bailout moneywere below average.
The following was the score card:
Bank of America had modified 4% of
eligible loans;
Wells Fargo had modified 6%;

10

Wachovia Corp., which was taken

over by Wells Fargo last December,
had modified only 2% of eligible
loans.
Foreclosures, meanwhile, continue to
rise. About 1.5 million households
received at least one foreclosure-related
notice in the first half of this year,
according to RealtyTrac Inc. It was
reported that there are more foreclosures taking place in the country than
there are loan modifications. Also, not
all of the companies that should be in
the plan are participating. There are 38
companies participating in the program, but there are holdouts that
control 15% of outstanding mortgages.
For example, Litton Loan Servicing,
owned by Goldman Sachs, and HomEq
Servicing, owned by Barclays PLC, have
yet to join. American Home Mortgage
Servicing and PNC Financial Services
Group Inc. were among the companies
that had a zero next to their names on
the Administrations recent report.
For each homeowner who makes
regular payments for three months, the
loan servicer collects $1,000 from the
government. The company is paid thousand of dollars more if the borrower
stays current for three years. Housing
advocates cite numerous cases in
which companies havent followed the
programs rules. And when borrowers
are denied, they often arent told why.
In response to such complaints, the
Treasury Department says Freddie Mac
will be doing random audits to see if
borrowers are being improperly
rejected.
Source: Associated Press

THE GOVERNMENTS MORTGAGE PARTNERS

ARE ABUSING THE SYSTEM
With so many folks being hurt as a
result of a bad economy and millions
still suffering, it is sad to learn that
others are making piles of money
under the pretense of helping those
who are suffering. An investigation conducted by the Associated Press has
found that billions of dollars the government is spending to help financially-

www.BeasleyAllen.com

troubled homeowners avert foreclosure

are actually enriching companies that
are supposed to be helping. These companies have been accused of preying
on the very people they are supposed
to help.
Companies, known as mortgage servicers, are middlemen which collect
monthly payments from homeowners
and funnel the money to the banks
who made the loans or to investors
who now hold the loans. The government apparently believes thatas the
only link between borrowers and
lendersthese mortgage servicers are
in the best position to rework the
terms of loans under the governments
$50 billion mortgage-reduction program. The companies earn a fee for
every successful loan modification and,
according to Associated Press, apparently the amounts earned are in the billions of dollars.
The Associated Press reports that this
industry has a checkered history.
According to the report, at least 30 servicers have been accused in lawsuits of
harassing borrowers, imposing illegal
fees and charging for unnecessary
insurance policies. More recently, the
companies also have been criticized for
not helping homeowners quickly
enough. Those delays led to more fees
for homeowners and more profits for
the servicers.
The plan, called the Home Affordable
Modification Program, was designed to
help up to 4 million homeowners
avoid foreclosure. But thus far only
about 200,000 loan modifications are
under way. Thats totally unacceptable.
The biggest players in the servicing
industry are Bank of America, Wells
Fargo & Co., JPMorgan Chase & Co. and
Citigroup Inc. It appears that the
system in place is broken and in need
of a quick and effective fix.
Source: Associated Press

ITS TIME FOR CONGRESS TO PUT A STOP

TO PRESCRIPTION DRUG ADS
I have never felt that prescription
drug manufacturers should be allowed
to advertise their products to the con-

suming public. In fact, there can be no

justification for a drug company using
ads to market drugs that are prescribed
by a medical doctor. Medical professionals are trained to make the decisions when it comes to prescribing
drugs to persons who need them. The
$4.3 billion ad sector has now come
under attack from lawmakers in Washington who want to get the ads off the
airwaves. In my opinion, Congress
should ban direct-to-consumer advertising once and for all. While it will be
hard to get this done, its something
thats badly needed.

VIII.
THE CORPORATE
WORLD
PFIZER SETTLES CLAIMS IN NIGERIA OVER
TROVAN
Pfizer has entered into a settlement
which has been estimated to be worth
up to $75 million with Nigerias Kano
state arising out of a 1996 meningitis
drug trial. In May 2007 the northern
state of Kano sued Pfizer, the worlds
largest drugmaker, for $2 billion in
damages over the testing of the meningitis drug Trovan. It was contended in
the lawsuit that the drug killed 11 children and left dozens disabled. Apparently, the settlement over the Trovan
litigation by Pfizer and the Kano state
government ends this matter.
Details of the drug trial were first
made public in December 2000 in a
Washington Post investigative series.
The articles reported that the trial
failed to conform to U.S. patient-protection standards and that the oral form of
the drug used in the trial had not been
previously tested in children. Apparently, Pfizer had no signed consent
forms for the children and the
company was said to have relied on a
falsified ethics approval letter.
Five years later, in May 2006, the Post
obtained and published a confidential
report that concluded that Pfizer violated Nigerian and international law in

the experiment. That set in motion the

criminal charges. It should be noted
that Trovan was never approved for use
by children in the United States. The
Food and Drug Administration approved
it for adults in 1998, but later severely
restricted its use after reports of liver
failure.The European Union banned it
in 1999.
Under the agreement, the worlds
largest drug company agreed to pay
$30 million over two years toward
health-care initiatives chosen by the
Kano state government. It will reimburse the state for $10 million in legal
costs. And Pfizer agreed to create a
fund that will pay up to $35 million
toward valid claims for financial
support submitted by patients who
took part in the clinical trial. A panel
appointed by Pfizer and Kano state will
determine eligibility and levels of
support.
A lawyer for the state of Kano, where
the charges were lodged, said the settlement was a long time coming but still
welcome because it set the record
straight about Pfizers culpability. The
lawyer, Babatunde Irukera, said:
People and entities can and must
be held accountable for the consequences of their conduct. People
around the world are no different
and must be accorded the same
levels of protections, always.
Charges filed against Pfizer by
Nigerias federal government, which is
seeking about $6 billion in damages,
are unaffected by the settlement. Two
lawsuits related to the Trovan experiment also remain pending in New York.
Source: Reuters

ANOTHER MEDTRONIC CONSULTANT IS

UNDER FIRE IN THE U.S. SENATE
The U.S. Senate investigation of very
close ties between doctors and the
medical device maker Medtronic has
revealed that another of the companys
consultants, Dr. David W. Polly Jr., may
have had a good reason to favor
Medtronic. In 2006, the doctor urged
members of a Senate panel to continue

paying for Defense Department

medical research into combat-related
injuries. But interestingly, Dr. Polly failed
to disclose during his testimony that he
was a Medtronic consultant and was
billing the company $6,000 for his
appearance before the Senate panel.
Instead, according to a report by the
New York Times, the doctor told lawmakers that he was representing a professional medical association of
orthopedic surgeons.
Source: New York Times

ASTRAZENECA HAS SPENT $593 MILLION

FOR SEROQUEL DEFENSE
In its second quarter report,
AstraZeneca revealed that it has already
spent $593 million defending Seroquel,
its antipsychotic drug that is involved
in state and federal litigation across the
country. Seroquel is an atypical antipsychotic drug approved by the FDA for
treating schizophrenia and bipolar disorders. There have been more than
10,000 lawsuits filed in state and
federal courts in the U.S. in which
Plaintiffs accuse the company of illegally marketing Seroquel for off-label
uses and failing to warn users about
the risks of severe weight gain, diabetes
and other serious medical conditions.
The drug manufacturer says the cost
of defending the litigation has already
exceeded its liability insurance. The
company says it will most likely face
legal disputes over at least some of its
insurance coverage. Currently, 10,381
cases are pending2,556 have been
dismissed. I dont believe there has
been a case tried so far. The Seroquel
litigation has been described as a roller
coaster ride for both sides.
Two bellwether cases, which were
set to be tried in the multi-district litigation, were dismissed by the court.
While this was in a victory for the
Defense, it was followed by a big win
for the Plaintiffs when numerous
company documents were unsealed.
That revealed that AstraZeneca had
cherry picked favorable information
about the drug from medical studies
and failed to make negative results

www.JereBeasleyReport.com

11

public.The next trials were scheduled

to begin in May in a Delaware state
court, but the named Plaintiff was dismissed in the case and replaced by a
bankruptcy trustee. The trustees ability
to recover damages is capped at
$14,000 plus litigation costs. But, in
another victory for the Plaintiffs, the
MDL judge ruled in June that the Plaintiffs expert epidemiologist could
testify that Seroquel can cause weight
gain and diabetes.
Source: Lawyers USA Online

BOEING TO PAY $2 MILLION FOR FALSE

BILLING
Boeing Co. is paying a $2 million fine
to settle allegations it inflated maintenance bills for a U.S. Air Force contract.
A lawsuit was filed in 2006 by a whistle
blower, who said he was the only
person performing non-routine maintenance on the KC-135 between 2002
and 2005 at a facility in San Antonio,
Texas, and it appears Boeing committed fraud. It was reported that Boeings
billing statements were manipulated to
show workers performing tasks who
had never been near the plane.
The lawsuit was kept secret under
Justice Department guidelines while
the Department investigated the allegations. As usualeven though it paid a
fineBoeing denied it had made any
false claims. Corporations being
awarded government contracts of any
kindincluding defense contracts
and which are making big bucks, must
not be allowed to cheat or defend the
government. Those who do so should
be punished severely.
Source: UPI.com

MERCK AND SCHERING-PLOUGH SETTLE

CLASS ACTION LAWSUIT
Merck and Schering-Plough will pay
$41.5 million to settle class-action lawsuits filed by patients taking the cholesterol drugs Vytorin and Zetia. It was
alleged in the lawsuits that the companies purposefully delayed the release of
study results showing the cholesterol

12

treatments were no more effective than

older, less expensive medications.
The suits claimed the drug makers
violated state consumer protection
laws by delaying unfavorable study
results because they would hurt sales.
Merck and Schering-Plough faced more
than 140 class action lawsuits involving
Vytorin. Marketed jointly by Merck and
Schering-Plough,Vytorin is a composite
of Schering-Ploughs Zetia and Mercks
Zocor, a statin now available as a lowpriced generic.
The suits accused Merck and Schering-Plough of grossly overpricing
Vytorin and covering up findings that
the drug was no more effective than
lower-priced generics. A study released
in January 2008 by the companies
showed that Vytorin is no more effective than the generic form of Zocor in
reducing plaque buildup. Also, its only
slightly more effective than the generic
drug alone in reducing LDLbad cholesterollevels.The settlement follows
a $5.4 million settlement last month
with Attorneys General from 35 states
and the District of Columbia who had
made similar allegations.
The settlement came while Merck &
Co. was in the process of buying Schering-Plough Corp. for $41.1 billion. That
deal has now been approved by shareholders for the two companies.
Source: Forbes

IX.
CONGRESSIONAL
UPDATE
CONSUMERS MUST BRING CLAIMS AGAINST
GENERAL MOTORS AND CHRYSLER IN
BANKRUPTCY COURT
Under the bankruptcy plans that
were approved for Chrysler and GM,
several thousand American consumers
with pending claims against the companies alleging that defects in the companies vehicles caused death or injury
will be forced to bring their claims in
the bankruptcy court. Under the bankruptcy plan for Chrysler, all consumers

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who purchased Chrysler vehicles

before New Chrysler emerged from
bankruptcy will likewise be relegated
to bringing claims in the bankruptcy
court if a defect in one of those vehicles causes a death or injury. There are
approximately 30 million Chrysler
vehicles that are currently on the road
that were purchased before New
Chrysler was established.
New GM, on the other hand, has
accepted responsibility for injuries or
deaths caused by defects in Old GM
vehicles as long as those claims were
not pending before New GM emerged
from bankruptcy. That means that
Chrysler is the only car company in
America that will not stand behind the
safety of its vehicles. There will be virtually no money in the bankruptcy
court to pay any sums to the tort
Claimants who have cases against
Chrysler LLC and only a small sum
available to the tort Claimants with
cases against General Motors Corporation.
This situation leaves these Claimants
victimized twicefirst, by an unsafe
car that, in many cases, caused devastating injury or death; and second, by a
bankruptcy they had nothing to do
with. This result is unfair and unnecessary.With only a small additional investment, Chrysler and GM can afford to
give every victim with a claim their day
in court. Chrysler and GM have agreed
to indemnify their dealers in product
liability cases. While indemnification
will not give all injured victims the
ability to prove their case in court, it
will help many victims.
For example, in testimony before the
House Judiciary Committee on July 22,
2009, Kevyn Orr, a lawyer with Jones
Day, appearing on behalf of Chrysler,
testified as follows:
Chrysler Group has agreed to
indemnify its dealers against
product liability lawsuits. These
dealers sold approximately 85%
of the vehicles sold by Old Carco.
As a result, in the vast majority of
product liability cases involving
Old Carco vehicles sold before the
bankruptcy, Chrysler Group will

defend its dealers pursuant to its

dealership agreements.

simply to avoid burdening the local

dealer.

Similarly, General Motors Corporation has agreed that it will continue to

honor all dealership indemnification
contracts and will provide payment to
Claimants who obtain a dealership
network. For example, a section of the
GM Dealer Sales agreement states:

It will be difficult for Claimants to get

discovery against the manufacturer if
the Claimant can only sue the dealer.
This will make it difficult, if not
impossible, for the Claimants to
access the information they need to
prove their cases.

General Motors will assume the

defense of Dealer and indemnify
Dealer against any judgment for
monetary damages or rescission
of contract, less any offset recovered by Dealer, in any lawsuit
naming Dealer as a Defendant
relating to any Product that has
not been altered when the lawsuit
concerns:

Congress should pass legislation that

would require Chrysler and GM to
accept liability for product liability
claims that were pending as of the time
that the companies declared bankruptcy and would require Chrysler to
accept liability for product liability
claims involving its vehicles that were
sold pre-bankruptcy. According to the
companies, this will not impose a great
deal of additional costs on the companies since they are already indemnifying their dealer network, but at the
same time, it will ensure that all the
victims receive their day in court and
not remain victims of both a defective
vehicle and then of the bankruptcies of
the two carmakers.

The Participation Agreement with

GMs dealers that have been terminated
states:
GM reaffirms the indemnification
provisions of Article 17.4 of the Dealer
Agreement and specifically agrees that
such provisions apply to all new Motor
Vehicles sold by Dealer.
There are, however, circumstances in
which dealer indemnification will not
provide redress for injured Claimants:
In ten states, Plaintiffs may not
recover from non-negligent dealers
even if manufacturers become insolvent: Colorado, Georgia, Kentucky,
Louisiana, Michigan, Mississippi,
Nebraska, North Dakota, South Dakota
and Utah.
In many cases, non-owners of vehicles, such as passengers or pedestrians, often cannot sue the car dealer.
It is misleading for jurors to believe
that they are holding Dealerswho
had nothing to do with design and
for
manufacturingresponsible
product defects when the real party
of interest is the manufacturer. In
addition, jurors will naturally be
more reluctant to assess liability
against a local merchant who may be
significantly involved in community
affairs, or they may assess smaller
damages than is fair to the consumer

THE HEALTHCARE REFORM DEBATE

Even though we discussed the
ongoing healthcare debate at length in
another section, I will repeat that
passage of meaningful reform of our
healthcare system remains a top priority for the Obama Administration. It
should be a top priority for all American Citizens.We cant let the insurance
and pharmaceutical industries dictate
what reform will look like.

THE FEDERAL GOVERNMENT MUST ADDRESS

THE PROBLEM OF GLOBAL WARMING
Global warming is one of the most
serious challenges facing our country
today. To protect the health and economic well-being of current and future
generations, its essential that our emissions of global warming pollution be
reduced by using the technology,
know-how, and practical solutions
already at our disposal. The United

States can curb climate change, break

our dependence on oil, and put Americans back to workbut it will take a
bi-partisan effort by all of our lawmakers to do it. In late June, the House of
Representatives took an historic vote
to pass comprehensive climate and
energy legislation. The Senate should
now strengthen and pass the House
bill. President Obama must play an
active role in ensuring that Congress
passes a strong, comprehensive climate
and energy policy this fall.
Passing strong, comprehensive
climate legislation remains key to
putting Americans back to work, breaking our dependence on oil, and protecting our health and environment. The
American Clean Energy and Security
Act must be passed, but the Senate
must strengthen it. To maximize the
potential health, economic, and climate
benefits, this legislation should:
Reduce U.S. global warming pollution by 35% below current levels by
2020 and at least 80% by 2050.
Require utilities to generate at least
25% of their electricity from clean,
renewable sourcessuch as the
wind and sunby 2025.
Invest more money in renewable
energy and energy efficiency programs that will save consumers
money.
Preserve the Environmental Protection Agencys existing authority to
regulate global warming pollution
under the Clean Air Act.
Ensure policies can be rapidly
adjusted in response to emerging
climate science.
The Obama Administration and Congress must pass comprehensive climate
and energy legislation this year. If you
agree, take the time to write the President and the Senators in your state and
urge them to act now and help save
our planet.
Source: Democrats.com

www.JereBeasleyReport.com

13

CONGRESS SHOULD PASS THE MEDICAL

DEVICE ACT
Congress should pass without delay
the legislation that would restore the
law on federal preemption that has
existed for years prior to the U.S.
Supreme Court decision that totally
ignored existing law and ruled that
federal preemption would bar all state
common law lawsuits involving a
defective medical device.

X.
PRODUCT
LIABILITY UPDATE
THE SINGLE VEHICLE ACCIDENT: A SERIES
HIGHLIGHTING OFTEN OVERLOOKED
PRODUCT CLAIMS: CAB GUARDS
Several months ago, we began a
series of articles discussing product liability claims that arise from single
vehicle accidents. As all of our readers
should know, a product liability claim
focuses on whether or not a product is
defective. The purpose of this series is
to emphasize the many different kinds
of product liability claims. In automobile cases, the defective product could
be the entire vehicle, or a component
part such as the seat belt or tires. Unfortunately, the average motorist has no
idea how unprotected he or she will be
in an accident as a driver or passenger
in a defective vehicle.
Our lawyers are trained to recognize
defect claims in motor vehicle accident
cases. Any single vehicle accident
involving death or serious injury,
including paralysis, loss of limb or brain
damage, should be investigated and
carefully analyzed for possible product
liability claims. Last month, we looked
at electronic stability control systems.
This month, we look at defective cab
guards and the injurious consequences
of those defects.
Cab guards, or what are often called
headache racks, are required as frontend structures on 18-wheelers that pull
flat beds, trailers and log trailers. The
purpose of a cab guard is to prevent

14

shifting cargo from contacting the cab

of a heavy truck. Many cab guards are
made of welded heat-treated aluminum
which results in a weakening of the
cab guard over time.The weakening of
the cab guard due to fatigue stress is
relatively unknown to drivers. Many
welding requirements established by
national organizations are not followed
by cab guard manufacturers. The failure
to follow such guidelines results in
poor welds, poor quality control, and
poorly-designed cab guards. Those
defective guards dont work for their
intended purpose of protecting truck
occupants.
In August of 2003, our firm received a
positive result in a case involving a
defective truck cab guard. A jury in
Lamar County,Alabama, awarded a $12
million verdict to a Mississippi resident
in a case involving a defective product
that killed her son. The product liability
lawsuit was brought on behalf of her
deceased son against the manufacturer
of a defective truck cab guard. The
victim was driving a log truck for a
trucking company when the passenger
side wheels went off the side of the
road. Before he could ease the truck
back onto the road, the truck tipped
over on the passenger side. When the
vehicle turned over, part of the load slid
forward, hitting the drivers protection
devicethe cab guard.The protection
device failed, allowing the few logs that
slid forward to press against the back
of his cab, causing nearly three feet of
intrusion into the occupant compartment. As a result, the victim was killed.
A cab guard is installed on a truck to
ensure that a truck drivers load does
not intrude into the cab. Instead of
designing and manufacturing a cab
guard that works, the manufacturer in
the Lamar County case used poor
design and fabrication and inferior
welding procedures that resulted in a
failure, causing the death. The manufacturer did this to save money, and put
profits over the safety of its consumers.
The company claimed and advertised
that its cab guard met the minimum
Federal standards and provided
maximum protection, even though it

www.BeasleyAllen.com

did not.The minimum standards require

the cab guard to be able to withstand
one half of the load applied uniformly
across the back of the guard. In our
case, the manufacturer never tested the
model cab guard on the truck.
Unfortunately, this sort of thing is a
common occurrence. Truck drivers
make up one of the largest occupations
in the United States, spending countless hours on the road. They do this
while driving vehicles that are less regulated than passenger cars and small
trucks.Without more regulation, these
men and women will continue to risk
their lives daily to keep America
runningsometimes not even realizing
how dangerous their jobs are.
We pursue claims against heavy
truck manufacturers for defective
design and manufacturing including
claims for defective cab guards. If you
would like more information or have a
question, you can contact Ben Baker
([email protected]) in our
office at 800-898-2034.

MESOTHELIOMA CASE RESULTS IN $700,000

VERDICT FOR VICTIMS FAMILY
A South Carolina jury awarded
$700,000 to the family of a man who
died from mesothelioma, following the
asbestos exposure he experienced on
the job in the 1950s. As our readers
should know, mesothelioma is a rare
asbestos-related cancer. Thomas Firth
was diagnosed with mesothelioma in
November 2006 and died from the
cancer on July 13, 2007. Firth and his
family filed a lawsuit against Garlock
Sealing Technologies, a global leader in
high-performance fluid sealing products for the worlds processing industries, alleging the company was
responsible for his exposure to
asbestos that occurred when he
worked as a mechanics assistant at a
Bethlehem Steel Corporation plant in
Sparrows Point, Maryland.
Mr. Firth worked with Garlock
gaskets and packing on many pumps
and valves found on a variety of coke
ovens, used to heat and control coal.
The jury determined Garlock failed to

warn Mr. Firth, and others who used its

products, of the inherent dangers associated with handling these asbestoscontaining products.
Mr. Firths only known exposure to
asbestos occurred at the plant in Maryland in the 1950s.Though he worked at
the plant for less than a year, the
asbestos exposure Mr. Firth experienced
on the job led to his mesothelioma
diagnosis. Mesothelioma develops when
asbestos fibers are inhaled or ingested
into the body. The fibers then become
lodged in organs or cavities, causing
inflammation and infection. Patients
with mesothelioma typically do not
demonstrate symptoms of mesothelioma for 20 to 50 years after initial
exposure to asbestos occurred.
If you would like more information
or have any questions about asbestos
exposure,you can contact Mike Andrews
([email protected]) or
Ben Locklar (Ben.Locklar@beasleyallen.
com) in our office at 800-898-2034.

AN UPDATE ON THE RHINO LITIGATION

CBS News reported last month that
in July, 2002, test drivers gathered in
Kentucky to try out the Yamaha Rhino.
During the testing, Keisuke Casey
Yoshida, President of a U.S. subsidiary
of Yamaha Motor Co. Ltd., was behind
the wheel of a Rhino prototype. Ike
Miyachi, a company vice president in
charge of Rhino development, rode
beside him in the passenger seat.
During the ride, the Rhino tipped over,
giving Miyachi a foot injury. Yoshida
raised a question a few weeks later
during a Rhino meeting that now
seems prophetic.Casey wants update
on instability of vehicle for future liability cases, according to Yamaha meeting
minutes.
The Rhino is dangerously unstable
due to its unusually narrow stance,
high ground clearance and lack of a
rear differential to help in turning. The
Rhinos seat belts tend to unspool
during rollovers, resulting in belted
occupants being partially ejected. The
Rhino has significant problems, said
Inez Tenenbaum, who in June became

chairman of the U.S. Consumer Product

Safety Commission.
Under pressure from the agency,
Yamaha announced a free repair
program to improve the Rhinos handling and stability. Seemingly a recall in
everything but name, the company
agreed to install spacers on the rear
axles of the vehicles to make them a
few inches wider, to remove their rear
anti-sway bars, and install protective
half-doors. Its possible that the CPSC
could still ban the Rhino. In an interview with CBS News, Commissioner
Tenenbaum said the safety commission
is continuing to investigate. She said
that if the Rhino is found to be too dangerous even with the changes, she
would be willing to seek a ban.
Serious accidents have occurred
under seemingly benign conditions-at
low to moderate speeds, on relatively
flat ground, and without drivers knowingly doing anything adventurous or
sporty. Our firm represents a number of
victims of this dangerous vehicle. If you
have questions about the Yamaha
Rhino, please contact Chris Glover, a
lawyer in our firm, at 800-898-2034
or by email at Chris.Glover@beasley
allen.com.

$1.8 MILLION JURY VERDICT AGAINST

NISSAN UPHELD
Nissan Motor Co. must pay the $1.85
million in damages a jury awarded to a
woman involved in a three-vehicle collision. Rebecca Perdue filed a product
liability lawsuit against Nissan in
December 2007, in a Texas State Court.
Ms. Perdue was driving her 1995 Nissan
Pathfinder when a vehicle that had collided with another vehicle then struck
her Nissan. She was properly wearing
her seatbelt at the time of the accident,
but was injured when the Nissan failed
to protect her. Ms. Perdue alleged that
the Pathfinder was not reasonably
crashworthy and was unreasonably
dangerous and defective, as demonstrated through its poor crash test performance, stiff crash pulse, performance
in real world crashes, and high death
rate.

Nissan failed to provide an adequate

restraint design or an advanced
restraint system necessary for vehicles
with rigid and stiff structures to
achieve ride-down, which is the
reduction in restraint loading and risk
of occupant injury. Nissan has been
involved in the development of
advanced restraints systems for
decades but decided not to include an
advanced restraint design in Ms.
Perdues 1995 Pathfinder.
It was alleged in the suit that to eliminate the consequences of the dangerously stiff and rigid vehicle, an airbag
and/or other advanced safety restraint
must be used because the restraint
system is incomplete and ineffective
without such features. Nissan had
investigated the use of front-end structure modification to improve the crashworthiness of its vehicles, but did not
incorporate an appropriate design to
the vehicle at issue. If her 1995 Nissan
Pathfinder had contained a properly
designed advanced restraint system
including an airbag, Ms. Perdue says she
would not have been injured in the
three-car collision.
After a four-day trial, the jury agreed
with the Plaintiff, awarded $1.85
million in damages, and found that
there were no responsible third parties.
After U.S. District Judge Leonard Davis
entered a final judgment on the jury
verdict, Nissan filed a motion for new
trial or alternatively for judgment as a
matter of law. Nissan argued that the
jury verdict was against the great
weight of the evidence.The Defendant
also requested a new trial arguing that
the court improperly commented on
evidence and that the Plaintiffs lawyers
made improper jury arguments. The
Court denied Nissans requests, stating
that the Defendant failed to challenge
the sufficiency of evidence during the
trial and failed to reference any legal
authority supporting its claims.
In the denied request, Nissan argued
that the jury should have apportioned a
percentage of damage upon a third
responsible party, the drivers of the
two other vehicles involved in the collision. Judge Davis wrote that the jury

www.JereBeasleyReport.com

15

was properly asked whether Perdues

injuries were caused by the negligence
of others and the jury found the
actions of others did not cause the
Plaintiffs injuries. Todd Tracy of the
Tracy Firm in Dallas was the lead
lawyer for Ms. Perdue and did a very
good job.
Source: www.setexasrecord.com

$8.3 MILLION AWARD TO WOMAN INJURED IN

SUV CRASH UPHELD ON APPEAL
A state appeals court in New Jersey
has upheld an $8.3 million jury award
against Ford Motor Co. and a Ford
dealer in favor of a woman who lost
most of the use of her right arm in a
2000 accident. Rebekah Zakrocki, who
was 22 at the time, was traveling in a
1997 Ford Explorer on a public
highway when its throttle became
stuck, making the Explorer surge. She
lost control of the SUV and it rolled
over, crushing her arm, which was
hanging out of the open sunroof.
During the 2007 trial in a state court in
New Brunswick, it was proved that
sludge, which had built up on the throttle, amounted to a design defect. The
jury found the plaintiff driver partially
liable because she was not wearing her
seat belt at the time of the accident.
The original verdict of $10.6 million
in compensatory damages was reduced
because of the Plaintiffs share of the
liability. The Defense lawyers claimed
at trial that the Plaintiff was going 83
mph when the accident occurred. But,
according to the Plaintiff, she was traveling at 73 mph. The jury rejected a
related claim that the Explorer was
unstable, causing it to roll over during
the accident. Ford Motor Co.s share of
the compensatory damages is about
$6.5 million.The jury awarded $42,000
in punitive damages, which the Plaintiff
appealed. The three-judge panel also
ruled against the Plaintiff on that issue
in her appeal.
The jurys finding that a defective
throttle on a 1997 Ford Explorer
caused the rollover accident that left
Rebekah Zakrocki with a useless right
arm was upheld. The crash nearly

16

severed Ms. Zakrockis right hand and

tore out the nerves connecting her
spinal cord to her arm. She had 21
operations, including multiple muscle,
vein, nerve and skin grafts.
Source: myCentralJersey.com

NHTSA IS LOOKING AT JEEP WRANGLERS

FOR FIRE RISKS
The federal government is investigating a potential fire risk in more than
200,000 Jeep Wranglers. The National
Highway Traffic Safety Administration
opened a preliminary investigation last
month into 2007-2008 model year
Wranglers with automatic transmissions. The government has received
three complaints in the United States
alleging overheating of the vehicles
transmission. One complaint said a fire
occurred. Another said transmission
fluid leaked onto the catalytic converter, leading to smoke.
Chrysler says it is aware of a small
number of alleged fires in China involving the Wrangler, but is not aware of
any U.S. cases. It says there have been
no injuries and that the automaker is
working with regulators in the U.S. and
China on the issue. Vehicle investigations can lead to product recalls. So far
there have been no recalls relating to
this issue, but the fact that a defect
investigation was opened is significant.
Source: Associated Press

XI.
MASS TORTS
UPDATE
MERCK FACES FIRST FOSAMAX TRIAL
By the time this issue is received, the
first Fosamax trial should have began in
a New York court. The trial was scheduled to start on August 11th. Merck &
Co., the drug maker, faces a tremendous number of lawsuits over claims
that its osteoporosis drug Fosamax
causes the death of jawbone tissue. The
outcome in the New York case may
affect the others. This case, filed by

www.BeasleyAllen.com

Shirley Boles, 71, is being called one of

three bellwether cases that is being
watched closely.
As of June 30th, Merck faced about
900 Fosamax cases, including suits with
multiple patients. Merck, which has
bought rival Schering-Plough Corp., has
set up a reserve of about $42 million
for the litigation. There are as many as
2,000 plaintiffs in the state and federal
Fosamax cases.
The judge, who will preside over the
Boles case, has ruled out the possibility
of punitive damages in the case, but he
rejected Mercks motion to find in its
favor without a trial. Last year, the Plaintiffs request to treat the litigation as a
class-action lawsuit, which would have
allowed the Plaintiff to ask for courtordered medical monitoring of all
Fosamax users, was denied. The Fosamax Plaintiffs claim Merck misrepresented the drugs safety and failed to
warn doctors and patients that it might
hamper blood flow to the jaw, causing
jawbone-tissue death and leading to
partial removal in some patients.
Jawbone tissue death is called osteonecrosis of the jaw, (ONJ). The Plaintiffs
claim Merck didnt sufficiently warn
about the drugs risks when it changed
the label in 2005.
Fosamax, available in pill or liquid
form, is part of a group of medicines
known as bisphosphonates. The only
cases of jaw necrosis have been found
in the drugs users and cancer patients
receiving chemotherapy, according to
Mahyar Etminan, a pharmacy expert for
the Plaintiffs.
Ms. Boles used Fosamax from 1997 to
2006 and eventually developed osteonecrosis. Merck had a duty to change
the Fosamax label to warn doctors
about a connection to the disease as
early as the mid-1990s. But, the drug
manufacturer failed to do so. Merck had
notice of the problems through
adverse reports starting in 1996. The
company has thousands of reports of
jawbone loss related to Fosamax. Patients
with dental problems are most vulnerable to developing ONJ by using Fosamax.Those are the people who are the
most at risk.
In the Boles case, oral maxillofacial

experts, but not an epidemiologist, will

be allowed to testify that Fosamax
causes osteonecrosis of the jaw.
Mercks lawyers had sought to exclude
testimony on general causation by four
Plaintiffs experts: three oral maxillofacial experts and an epidemiologist.The
court held that the testimony of the
oral maxillofacial experts was admissible, but granted Mercks motion to
exclude the testimony of the epidemiologist on general causation.The judge
wrote:
In forming their opinions on
general causation, [the oral maxillofacial experts] rely upon their
clinical experience in treating
ONJ, understanding of the physiology of the jaws and the pharmacology of bisphosphonates, and
review of the available scientific
literature and evidence. Their
theory on the mechanism of causation is generally accepted as
biologically plausible. In addition,
they formed their opinions independently of litigation, have published them in leading peerreviewed journals, and frequently
are cited by others in the field.
But the judge ruled that the Plaintiffs
steering committee did not show that
the epidemiologist reached his general
causation opinion in this case by applying the same level of intellectual rigor
that characterizes his work as an epidemiologist in the field.
Federal court trials are scheduled for
December and January.We have a case
set for trial in Alabama state court starting on October 21st. About 700 of the
lawsuits have been consolidated before
one judge in a New York federal court
for discovery purposes only. About 140
cases are before Judge Carol Higbee in
state court in Atlantic City, New Jersey.
The New York suits are combined in In
Re Fosamax Products Liability Litigation, MDL 1789, U.S. District Court,
Southern District of New York (Manhattan). The firm of Levin Papantonio
Thomas Mitchell Echsner & Proctor PA
in Pensacola, Florida, represents Ms.
Boles in her case.

UPDATE ON THE VIOXX SETTLEMENT

PROGRAM

WYETH PAID FOR GHOSTWRITTEN PREMPRO

ARTICLES

The Vioxx Claims Administrator continues to review claims and is on pace

to complete its review of the heart
attack claims by the end of September
2009. Since the Settlement Programs
inception, the Claims Administrator has
reviewed over 30,000 heart attack
claims and, by the date of this publication, will have issued interim settlement payments to over 19,000 victims
of Vioxx-related heart attacks and their
families.These interim settlement payments represent over $1.5 billon being
distributed to Vioxx heart attack
victims since payments began in August
2008. This remarkable feat is a testament to the efficiency of the Settlement Program.
Once the Claims Administrator finalizes its evaluations of the remaining
heart attack claims, a final point value
will be calculated.The Claims Administrator will then issue final settlement
payments based upon the final point
value.The Vioxx Claims Administrator
has represented to the Court that the
Settlement Program is currently on
track for the final settlement payments
for the heart attack claims to be calculated by September 30, 2009. We
expect to issue final settlement checks
in October 2009 to most of our clients
who have been deemed eligible for
compensation for their Vioxx-related
heart attacks.
As of July 30, 2009, interim settlement payments have been issued to
2,086 stroke claims, and interim payments are expected in an additional
248 stroke claims in August 2009.This
represents over $70 million being distributed to victims of Vioxx-related
strokes and their families since payments began in February 2009. The
Claims Administrator will continue
reviewing stroke claims until all stroke
claims are evaluated.We do not expect
final settlement payments for stroke
claims until sometime next year.

Newly unsealed court documents

reveal that Wyeth Pharmaceuticals paid
ghostwriters to produce forty scientific
papers to promote the benefits and
downplay the risks of Premarin and
Prempro, their hormone therapy drugs.
These drugs grossed nearly $2 billion
dollars in 2001. The articles, published
in medical journals between 1998 and
2005, failed to disclose Wyeths role in
initiating and paying for the work.
What seemed like a growing medical
consensus started falling apart in 2002
when a large government study was
halted after researchers found that
menopausal women who took
Prempro had an increased risk of invasive breast cancer, heart disease and
stroke. Nevertheless,Wyeth Vice President, Doug Petkus now tells the news
media that the ghostwritten articles
were scientifically accurate and never
misrepresented the science. However,
Ted Meadows, one of our lawyers,
specifically asked Petkus in his 2005
deposition whether there was ever
any ghostwriting done with respect to
hormone therapy products? His
answer:I dont know.
Most of the ghostwriting documents
were uncovered by our friend and a
fine lawyer, Jim Szaller. They provide a
paper trail showing how Wyeth contracted with a company to draft articles
and solicit well-known physicians to
sign their names, even though the
doctors contributed little or no
writing. Because practitioners rely on
medical literature, the concern is that
such subterfuge leads to changes in
prescribing habits without knowing
the articles were written by a drug
company.
Approximately 12,000 women have
sued Pfizer and/or Wyeth claiming that
their hormone drugs caused serious
medical conditions, including breast
cancer. So far, eight of ten juries have
agreed and returned large verdicts. The
companies have also settled at least
eight other cases on the eve of trial.
Our firm represents a number of
women who have filed suit against

www.JereBeasleyReport.com

17

Wyeth and/or Pfizer. We are currently

set for trial in Philadelphia, where
Judge Moss has ordered that 16 cases
be tried, starting in September and
ending in the first half of 2010.We also
hope that several other hormone
therapy cases will soon be set for trial
in other parts of the country during
2010. If you would like more information, you can contact Ted Meadows,
Melissa Prickett or Russ Abney at 800898-2034 or by email at Ted.Meadows@
beasleyallen.com, Melissa.Prickett@
beasleyallen.com, or Russ.Abney@beasley
allen.com.
Source: Bloomberg News

ARTHRITIS DRUGS RAISE CANCER RISK IN

CHILDREN
Blockbuster prescription drugs used
to treat rheumatoid arthritis and other
conditions can increase the risk of
potentially deadly cancer in children
and teenagers, according to the Food
and Drug Administration. The FDA,
which urged greater caution with socalled tumor necrosis factor (TNF)
blockers last September, said an analysis of 48 reported cancer cases in children using the drugs showed an
increased risk of cancer, occurring after
30 months of treatment on average.
Eleven of the reported cases were fatal,
according to the FDA.
Anti-TNF drugs include Johnson &
Johnsons Simponi (golimumab) and its
Remicade (infliximab);Abbott Laboratories Humira (adalimumab); UCB SAs
Cimzia (certolizumab pegol); and
Amgen Inc. and Wyeths Enbrel (etanercept). As many of you will know,
Rheumatoid arthritis is an autoimmune
disease that can strike young people,
causing pain, stiffness and swelling.
Reports indicate it affects about 20
million people worldwide. The referenced drugs are used to treat other
inflammatory conditions, including the
bowel disorder known as Crohns
disease. The drugs already carry the
strongest warnings possible about the
risk of possible serious infections. The
FDA says a new caution about cancer
in younger patients will be added to

18

the black box warning.

Source: Reuters

FLEET LAWSUITS MOVE FORWARD

The Fleet Phospho-soda litigation is
on track. Status briefs were filed in
court on August 13th. Currently, there
are 550 known claims with intention to
file lawsuits that have been presented
to C.B. Fleet Co. Inc., the maker of the
over-the-counter laxative. The claims
involve severe kidney damage to
patients using the laxative as a bowel
cleanser before colonoscopies.
There are currently estimated to be
over 100 filed cases in the U.S. Over
120 cases were settled with Fleet
before the litigation was consolidated
in multi-district litigation in the U.S. District Court for the Northern District of
Ohio. The product was removed from
the market on December 11, 2008. The
withdrawal came on the same day the
Food and Drug Administration issued
an alert stating that products such as
Phospho-soda should be available by
prescription only and not sold over the
counter. Most recently, four more lawsuits were filed in April 2009 alleging
that patients took a double dose of
Phospho-soda at the advice of their
doctors. If you need more information
on this subject, contact Roger Smith at
800-898-2034 or by email at Roger.
[email protected].

tuguese bank $170 million. The MiamiDade jury verdict means that only BDO
Seidman will be responsible for the
$170 million in damages that another
Miami-Dade jury awarded Banco Espirito Santo in 2007. In that trial, $351
million of the verdict was for punitive
damages. Chicago-based BDO Seidman
is appealing the 2007 verdict.
In the 2007 trial, the jury found that
BDO Seidman was grossly negligent in
not detecting fraud while auditing the
books of the Miami financial services
firm, E.S. Bankest, from 1998 to 2002.
Espirito Santo owned 50% of E.S.
Bankest. BDO International originally
was a Defendant in the 2007 trial, but
was dismissed from the case after a
judge found the bank didnt present
any evidence establishing its claim
against the Brussels firm. But the ruling
was overturned by an appeals court,
which ordered that a new jury should
decide whether BDO International was
responsible for ensuring the quality of
BDO Seidmans audits.
E.S. Bankest was a factoring firm, set
up to buy companies accounts receivable at a discount. Factoring firms
collect the full payments, pocketing the
difference as profit. But in the case of
E.S. Bankest, the bills it supposedly collected were largely fake. Several E.S.
Bankest executives were sentenced to
federal prison for their roles in the
fraud. The firm collapsed in 2003.
Source: Miami Herald

Source: Lawyers USA Online

XII.
BUSINESS
LITIGATION
JURY VERDICT IN FLORIDA AGAINST
ACCOUNTING FIRM
A Florida jury returned a verdict
recently against the accounting firm
BDO Seidman and awarded $421
million in damages. The jury found that
since Belgian-based BDO International
didnt control member BDO Seidman, it
wasnt responsible for the U.S. firms
failure to uncover fraud that cost a Por-

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JURY AWARDS $178.7 MILLION AGAINST NL

INDUSTRIES, INC.
A Texas jury awarded more than $178
million recently to minority shareholders of a subsidiary of NL Industries, Inc.
It was alleged that a pattern of misconduct deprived the shareholders of the
true value of their investment. Defendants included Dallas-based NL Industries, its subsidiary NL Environmental
Management Services, Inc. (NL EMS)
and a Dallas businessman, Harold
Simmons, who controls NL Industries.
In 1998, the Plaintiffs, Efficasey Environmental LLC, Highland Environmental Management, LLC, and Industrial

Recovery Capital Holdings Company,

invested in NL EMS. For the next seven
years, the minority shareholders ran the
subsidiary, which was created to
manage the cleanup of environmental
liabilities for NL Industries across the
United States. NL Industries retained a
controlling position in the subsidiary.
When the Plaintiffs exercised their contractual right to sell their stock back to
NL Industries in 2005, NL Industries
refused to pay more than a small fraction of what the stock was worth.
Plaintiffs proved during the trial that
NL Industries and several of its officers
had improperly drained NL EMS of
assets in the months leading up to the
minority shareholders sale of their
stock back to the company. The Plaintiffs also proved that the Defendants
were guilty of bad faith by artificially
reducing the value of the assets that
they left in the company. The jury
found NL Industries liable for breaching its fiduciary duty to the Plaintiffs. In
addition, the jury found three executives of another Simmons-controlled
company, including Simmons himself,
liable for conspiring to drain assets
from the company and improperly calculating the value of the Plaintiffs
stock. The jurys award includes $33.7
million in actual damages and $140
million in punitive damages against NL
Industries. Jurors levied an additional
$5 million in punitive damages against
NL Industries general counsel.
Plaintiffs Efficasey Environmental
and Industrial Recovery Capital Holdings Company were represented by
Steve Susman, Katherine Treistman and
Stephen Shackelford, Jr., all from
Susman Godfrey. Plaintiff Highland
Environmental Management was represented by Tom Melsheimer, M. Brett
Johnson, Renee Skinner and Scott
Thomas, all lawyers from the Dallas
firm of Fish & Richardson.
Source: Findlaw.com

MEDTRONIC WINS $57 MILLION VERDICT

AGAINST AGA MEDICAL
Medtronic Inc., the biggest maker of
heart-rhythm devices, was awarded

$57 million in a patent-infringement

trial against AGA Medical. At issue were
the medical devices that treat holes
caused by congenital heart defects. A
federal jury in San Francisco found that
some of AGA Medicals products
infringed Minneapolis-based Medtronics
patents. AGA will have to pay $57
million, plus a royalty of 11% of future
U.S. sales. A second phase will be held
to determine how much AGA Medical
will have to pay.
The verdict was about half of what
Medtronic had originally sought in its
suit. The inventions relate to ways that
doctors locate and expand devices to
repair holes in the heart, treat aortic
aneurysms or treat damaged heart
valves. Medtronic also has a pending
lawsuit against W.L. Gore & Associates
Inc. over the very same patents. The
trial in that case was scheduled to
begin on August 31st.
Source: Bloomberg

XIII.
AN UPDATE ON
SECURITIES
LITIGATION
THE SEC HAS BECOME MORE AGGRESSIVE
After taking a beating for its supervision of the now-defunct Bear Stearns
and missing Bernard Madoffs $65
billion fraud, the Securities and
Exchange Commission has really
started to crack down hard on financial
fraud. Last month, the SEC filed charges
against Bank of America and pursued
its first naked short selling case. They
also settled fraud charges with General
Electric and with former AIG executive
Hank Greenberg. Since Mary Schapiro
took over as the boss at the SEC late in
January, the agency has opened 525
investigations, a 10% rise over the same
period last year.
The SEC also filed 397 enforcement
actions, a 30% increase from the yearago period. The Commission is on a
record pace and thats good news for
investors who have been victims of

fraud. One reason for the new aggressiveness of the SEC is Robert Khuzami, a
former federal prosecutor, who now
holds down the job of enforcement
director. Khuzamiknown as tough,
organized and drivenis bringing about
dramatic changes, such as taking steps
to speed up investigations by giving top
enforcers more subpoena power. Prior
to joining the SEC, Khuzami led a securities fraud task force at the U.S. Attorneys
office. Its refreshing to see the SEC
doing its job and hopefully the good
work will continue.
Source: Insurance Journal

FEDERAL JUDGE APPROVES $925 MILLION

UNITEDHEALTH SETTLEMENT
A federal judge has approved a settlement that will pay UnitedHealth Group
shareholders more than $900 million to
resolve a class-action lawsuit over
options backdating. The Minnetonka,
Minn.-based managed care company
will pay $895 million toward the settlement. Former Chairman and CEO
William McGuire will pay $30 million
and cancel 3.6 million stock options.
The insurers former general counsel
David J. Lubben will contribute
$500,000 to the settlement.
The case centers on a scandal over
the backdating of stock options that
forced McGuire to step down in 2006.
U.S. District Court Judge James Rosenbaum gave preliminary approval to the
settlement in December. The lead Plaintiff in the case is the California Public
Employees Retirement System.
A federal judge has approved a
$925.5 million settlement with UnitedHealth Group Inc. and two of its former
executives over alleged stock options
backdating. Judge James M. Rosenbaum
of the U.S. District Court for the District of Minnesota ruled on August 10th
that the settlementwhich includes an
$895 million payment from UnitedHealthwas approved.
Source: Law360 and Associated Press

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19

BANK OF AMERICA IS FINED $33 MILLION

BY THE SEC
Bank of America will pay a $33
million fine to settle government
charges that it misled investors about
Merrill Lynchs plans to pay bonuses to
its employees. In seeking approval to
buy Merrill, Bank of America told its
shareholders Merrill had agreed not to
pay year-end bonuses without Bank of
Americas consent. But according to the
Securities and Exchange Commission,
Bank of America had actually authorized New York-based Merrill to pay $5.8
billion in bonuses. The bonuses amount
to nearly 12% of the $50 billion Bank of
America paid for Merrill.
Source: Associated Press

BRISTOL-MYERS SETTLES PLAVIX

SECURITIES SUIT FOR $125 MILLION
Bristol-Myers Squibb Co. has settled a
securities class action suit for a $125
million. The Plaintiffs accused the drug
maker of misleading shareholders and
causing a stock drop when it failed to
properly disclose a patent deal for a
generic version of its blood-thinning
drug Plavix. The settlement, reached in
May, was disclosed to the public in the
companys quarterly report filed with
the U.S. Securities and Exchange Commission.

stock as an investment and matching

contribution to its retirement program.
The Plaintiffs contended that the
investment of GE stock wasnt economically prudent and that losses occurred
as a result. Judge Gary L. Sharpe
approved a settlement that would
provide over $10 million in cash to
former plan participants and $30
million worth of structural changes to
benefit current employees.
Source: Law360

TYCO SETTLES ERISA CLASS ACTION FOR

$70.5 MILLION
Tyco International Ltd. has agreed to
pay about $70.5 million to settle a
lawsuit filed by participants in Tyco
retirement plans. It was alleged that the
company breached its fiduciary duties
to Tyco employees while a massive
accounting fraud was taking place. The
Plaintiffs, representing participants in
seven Tyco retirement plans, have
requested Judge Paul J. Barbadoro of
the U.S. District Court for the District
of New Hampshire, where the multidistrict litigation is pending, to approve
the settlement.
Source: Law360

GENERAL ELECTRIC SETTLES ERISA CLASS

ACTION FOR $40 MILLION
General Electric Co. has agreed to
pay a settlement worth $40 million to
end a class action filed on behalf of
318,000 current and former employees
who claimed the conglomerate imprudently invested more than two-thirds of
the assets of their 401(k) retirement
savings plan in company stock. GE had
made the decision to put up company

20

Sprint Nextel has agreed to pay $17.5

million to settle a class-action suit over
early termination fees for cell-phone
contracts.The proposed settlement will
bring to a close a case filed last November in federal district court in New
Jersey. Sprint was accused in that suit
of illegally charging $1.2 billion in early
termination fees since 1999. While
Sprint denied the allegations, the
carrier agreed to pay $14 million into a
fund to be distributed to members of
the class action. Another $3.5 million in
non-cash benefits will be provided to
the suits participants as well.
Customers who had a wireless contract with Sprint, Nextel or Sprint
Nextel from 1999 to the end of 2008
could be eligible for a settlement if
they had a claim related to early termination fees. Sprint also agreed not to
insert a flat fee for early termination
into its personal cell-phone agreements
in the U.S. until January 1, 2011. But,
until then, the carrier can charge a prorated termination fee. Sprint received
preliminary court approval to settle
this case last December and a hearing
for final approval is set for October 21st.
Source: Kansas City Star

BANK OF AMERICA SETTLES $55 MILLION

PENSION FUND LAWSUIT

Source: Law 360

XIV.
EMPLOYMENT AND
FLSA LITIGATION

A $17.5 MILLION SETTLEMENT ON EARLY

TERMINATION FEES

Bank of America has agreed to settle

a lawsuit for $55 million brought by
Countrywide employees who contended their employer violated its duty
to protect their retirement accounts,
according to court documents. The
employees of Countrywide contended
that Countrywide Financial Corp violated the Employee Retirement Security Act by not selling the companys
shares and withheld information about
the company from pension participants. As previously reported, Countrywide was later taken over by Bank of
America. The settlement was scheduled
to go before U.S. District Court Judge
John F.Walter of the Central District of
California for a hearing to determine if
the agreed upon settlement should be
approved on August 31st.

www.BeasleyAllen.com

COMPANY SETTLES RACIAL DISCRIMINATION

SUIT
A Missouri company has agreed to
pay $57,500 to a worker who was fired
for complaining about discrimination,
according to the U.S. Equal Employment Opportunity Commission. Material Resources LLC, which does business
as Gateway Co-Packing Co., will pay
$7,500 in back pay and $50,000 in
compensatory damages to settle a 2008
civil lawsuit filed by the EEOC.
An African-American employee, Charles
Franklin, did not receive the same pay
and health insurance coverage as his
white colleagues, according to the
EEOC. When Mr. Franklin filed a complaint with the EEOC, he was fired.
Retaliation is a violation of federal law. In
addition to the monetary penalties, the
company promised to train supervisors

and take other steps to prevent discrimination and retaliation in the future.
Source: St. Louis Post-Dispatch

ILLINOIS SETTLES WORKER CLASSIFICATIONS

CLAIMS
Illinois Attorney General Lisa
Madigan has reached an agreement to
settle claims against five Chicago-area
construction firms that were falsely
classifying their employees as independent contractors, rather than fully
employed laborers. Under the settlement agreement, the businesses will
end the practice. As we have learned in
litigation, this practice is all too common. It has been used as a way for companies to skirt labor laws. The practice
greatly harms the misclassified workers
by limiting their legal protections,
including access to workers compensation, unemployment assistance and fair
wages.
The settlement follows claims investigated by Attorney General Madigan and
the resulting lawsuit alleging the five
small construction companies were in
the practice of misclassifying dozens of
their workers as independent contractors when they were actually employees of the companies. Under Illinois
law, workers must be treated as
employees unless they meet specific
criteria permitting them to be classified
as independent contractors.
All five companies have agreed to
pay more than $79,000. The agreement
also forbids the companies from participating in construction projects with
public bodies for the next four years.
Additionally, pursuant to the agreement, the Attorney General can inspect
the businesses for compliance with Illinois labor laws at any time during the
next five years. Finally, the agreement
requires the Defendants to properly
classify their workers as employees and
pay all required contributions to the
State of Illinois.
Source: Illinois Attorney Generals Office

CINTAS WILL PAY $24 MILLION TO SETTLE

DRIVER OVERTIME PAY LAWSUIT
Cintas Corp. has agreed to pay about
$24 million to resolve a 2003 class
action lawsuit arising when the
uniform manufacturer misclassified
thousands of delivery drivers as
exempt employees to avoid paying
overtime. Cintas reached a mediated
settlement with the drivers, and at
press time the settlement was awaiting
approval by the U.S. District Court for
the Northern District of California.
Source: Law360

XV.
INSURANCE AND
FINANCE UPDATE
MERCK AND INSURANCE PLANS SETTLE
VIOXX SUITS FOR $80 MILLION
Health insurers, unions and other
private groups that paid for prescriptions for the withdrawn painkiller
Vioxx have settled their claims with its
maker, Merck & Co., for $80 million.
These third-party payers filed about
190 claims against the drugmaker
claiming they would not have covered
Vioxx had they known about its risks.
As everybody now knows, Merck
pulled the blockbuster painkiller from
the market in 2004 because it doubled
the risk of heart attacks and strokes.

Kenner that were damaged by the 2005

storm. A jury awarded money to cover
building damage, business interruption,
tenant improvements and loss of business personal property from windstorm and from vandalism, theft or
looting. The Kenner store reopened in
November 2005. Three storesincluding one closed before the hurricane,
and another for which Mr. Robert lost
the lease because he ran out of money
to pay $30,000 a month rentwill not
reopen. Mr. Robert says he hopes to
reopen the fifth store once he gets
money from the judgment and an
agreement on repairs with the buildings owners, who were awarded $1
millionhalf for lost rent and half in
penalties.
Mr. Robert has a separate lawsuit
against the insurer for a sixth store,
which reopened in November. Philip
Franco, a lawyer with the firm of Adams
and Reese, who represented the Plaintiffs, had this to say:
The verdict was completely
upheld and the court awarded us
an additional $900,000 to $1
million under the penalty statutes.
Basically, we won every issue on
appeal.
Its good to see Katrina insurance
company victims receiving justice in
the court system. Phil Franco should be
commended for his persistence in representing his clients.
Source: Insurance Journal

Source: Forbes

FIFTH CIRCUIT COURT OF APPEALS

UPHOLDS KATRINA DAMAGE AWARD
A federal appeals court has upheld a
$21 million jury award to the owner of
a New Orleans grocery chain that sustained damage in 2005 from Hurricane
Katrina. The Court of Appeals for the
Fifth Circuit also ordered United Fire &
Casualty Insurance Co. to pay Marc
Robert II, Roberts Fresh Markets
owner, an additional $1 million in bad
faith penalties.
The grocery chain had five stores
around New Orleans and one in

COURT UPHOLDS $10.7 MILLION JUDGMENT

AGAINST KEMPER AFFILIATES
An appeals court has ruled that a
New York construction firm will
receive $10.7 millionplus interest
against two Kemper-affiliated insurers
that failed to indemnify and defend the
company when a subcontractor accidentally touched off a blaze that
destroyed a Manhattan synagogue in
1998. The U.S Court of Appeals for the
Second Circuit upheld a decision by
the U.S. District Court in New York. The
Lower Court ruled that Turner Construction was covered by liability insur-

www.JereBeasleyReport.com

21

ance policies issued to the subcontractor,

Trident Mechanical Systems, by American Manufacturers Mutual Insurance
Co. (AMMIC) and Lumbermens Mutual
Casualty Co. (LMCC)
The background of the original law is
very interesting. A fire at Manhattans
Central Synagogue destroyed a building, which was revered as one of the
citys architectural landmarks. It took
three years to rebuild the synagogue,
which re-opened in September 2001.
The Appeals Court decision means
that LMCCTridents excess insurer
will pay $9.75 million and AMMC will
pay $945,000 to resolve the case. The
decision also includes pre-judgment
interest of 9% per year. The court also
upheld the U.S. District Courts ruling
that the companies breached their
duties to defend Turner in the case and
that the construction company was
therefore entitled to recoup reasonable
attorneys fees and legal costs.
Source: Insurance Journal

XVI.
PREDATORY
LENDING UPDATE
PAYDAY LOAN COMPANY AGREES TO
SETTLEMENT
An internet payday loan company
charging triple-digit interest on twoweek loans has agreed to close all of its
outstanding loans in Wisconsin, worth
nearly $500,000, and pay $180,000 in
restitution, fees and fines to settle a
class-action lawsuit. The company was
accused of numerous, blatant consumer law violations. The company,
Kansas-based Arrowhead Investments,
wont be able to do business in the
state for five years. It will rectify credit
histories of the borrowers as a part of
the settlement.
Suit was filed in 2007 in the name of
a Verona woman, Bonnie Bernhardt,
and others. The State Department of
Justice, working with the University of
Wisconsin School of Laws Consumer
Law Litigation Clinic and the State

22

Department of Financial Institutions,

estimated up to 1,300 state residents
could get relief, both financial as well as
from collection agency calls.
Arrowhead Investments used a third
party to solicit borrowers over the Internet, responding to general inquiries
about loan offers. The settlement,
which has been approved by the court,
cancels all loans made between December 21, 2001, and December 21, 2007,
totaling $432,000 in loan, cost and fee
forgiveness. All of the loans were
payday loans with unregulated interest
rates which reach triple digits.
The class-action Complaint accused
Arrowhead Investments of numerous
violations of fee, interest and other disclosure requirements in the Wisconsin
Consumer Act and other consumer protection laws. The company had failed
to register with the Department of
Financial Institutions. Lara Sutherlin, an
assistant Attorney General in Wisconsin, stated:
The bulk of this settlements relief
is in the loan forgiveness.The consumers who will get cash payments are mostly those who paid
more than the loan principal.
In a similar case last August, the same
Plaintiffs settled with another loan
company, Tremont Financial, that
included $60,000 in restitution and a
release from loan obligations for 137
borrowers. For those of our readers
who dont know how a payday loan
works, this is the general procedure:
The person seeking a loan fills out an
application, providing the lender
with items such as paycheck stubs
and a photo ID;
A loan agreement is signed and a
postdated check is written to the
lender;
Money is advanced by the lender;
The check is held until the loan
payment is dueusually two weeks;
The lender then deposits the
checkunless the loan has been
repaid. Normally, another check is

www.BeasleyAllen.com

written and another loan is made.

Payday lenders should be regulated
in every state and state legislative
bodies must make sure that the laws
are strong and tough. In all too many
states the laws are weak and do very
little to protect folks who take out
payday loans.
Source: Wisconsin State Journal

BANK OF AMERICA LOSES BID FOR U.S.

TRIAL IN COUNTRYWIDE LAWSUIT
A lawsuit against Bank of America
Corp. aimed at forcing Countrywide
Financial Corp. to buy back mortgages
sold to trusts will stay in state court.A
federal judge has ordered the case to
be tried in state court. Countrywide,
the lender acquired by Bank of
America, was sued last year by hedge
fund Greenwich Financial Services
Fund over claims the value of trusts
used to package its mortgages into
securities will fall if it revises 400,000
loans in an agreement with 15 state
Attorneys General.
The fund contents that investors
would be harmed by the settlement
Bank of America reached to aid homeloan borrowers by a combined total of
$8.4 billion.The bank said two U.S. laws
aimed at helping owners keep their
homes gave loan servicers the right to
modify any mortgage loans, without
repurchasing them, if certain guidelines
are maintained. Judge Richard Holwell
of the Southern District of New York
said in his order:
Congress passed two statutes
within a year of each other to
address the mortgage crisis. In
neither of these statutes did Congress federalize the case before
this court.
In the proposed class action the
Greenwich, Connecticut-based fund
demands a declaration that Countrywide must purchase modified mortgage loans for the full unpaid amount
that it sold to any of the 374 securitization trusts.
Source: Bloomberg

XVII.
PREMISES
LIABILITY UPDATE

ball accident, according to allegations in

the lawsuit. Kowiak was airlifted to Carolinas Medical Center in Charlotte and
died there the following day.
Source: Miami Herald

HAZING SAID TO HAVE LED TO DEATH OF

COLLEGE STUDENT
A lawsuit was filed recently by the
parents of a 19-year-old university
student who died last year. The student
was repeatedly tackled by members of
a fraternity who were hazing him at an
off-campus farm, according to allegations in the lawsuit. Harrison Kowiak of
Tampa, Florida, died after a head injury
caused a severe brain hemorrhage. The
Complaint seeks damages and blames
Theta Chi Fraternity, the fraternitys
members and Lenoir-Rhyne University.
Raleigh-based lawyer David Kirby, who
represents the parents, said:
We believe Harrisons death was
part of a long history of hazing at
this fraternity. There is absolutely
no reason for this dangerous
activity to still be occurring in
this day and age, and it needs to
be stopped immediately.
The parents allege in the lawsuit that
Kowiak and another pledge were told
to walk across a field one night in
November, 2008 while wearing light
clothing. They said members of the fraternity wearing dark clothing repeatedly tackled the pledges during the
initiation, leading to the injury.
Kowiak was a 160-pound sophomore
and a member of the golf team, and
according to the parents, some members of the fraternity were Lenoir-Rhyne
football players who weighed more
than 250 pounds. It was alleged that the
student was being tackled by men who
were much larger than he and who
were trained in tackling. Fraternity
members eventually realized that
Kowiak was badly injured, according to
the Complaint, but they attempted to get
Kowiak to stand up and walk until he
collapsed. The fraternity brothers then
drove him to a Hickory hospital. But
they told hospital staff that Kowiak had
been injured in an on-campus flag-foot-

ANOTHER TRAGIC COLLEGE HAZING CASE

A hazing lawsuit has been filed
against Utah State University. Its
alleged in the suit that University officials had tolerated a culture of drug
and alcohol abuse at a fraternity house
for a long time where a teenage freshman pledge died of alcohol poisoning
after a hazing incident last fall. The
students family filed the lawsuit in a
state court, alleging that the Sigma Nu
fraternity chapter had long been the
scene of misconduct, including an
alcohol-related suicide by hanging,
underage drinking, arson, thefts, vandalism, false fire alarms and assaults.
The suit not only accuses fraternity
chapters of straying from their chartering principles, but contends that universities have a legal obligation to bring
student organizations into line, especially if they encourage students to
join. The allegations in the lawsuit are
based on police reports over the ten
years before the students death, as well
as on police interviews with fraternity
members after the tragedy. Its alleged
in the suit that the fraternity brothers
got drunk as a group, sometimes to the
point of collapse, and performed baptisms by pouring liquor on the heads
of brothers as they kneeled with their
hands bound behind their backs. The
familys lawyers have photographs,
pulled from a Sigma Nu members
MySpace page, documenting one such
beer-drenched baptism.
The suit seeks unspecified damages
from the university and from the state.
The victims parents have already
reached out-of-court settlements with
the national organizations of Sigma Nu
and the Chi Omega sorority, whose
members captured the student, bound
his hands with duct tape, and provided
him with vodka at an initiation ritual the
night he overdosed. The university suspended the chapters and their national

organizations soon shuttered them. The

Greek societies own rules and the Universitys student code strictly prohibit
alcohol abuse and hazing.
Logan police concluded the student
was poisoned during an illegal hazing.
Prosecutors charged 12 USU students
and their two Greek chapters with
hazing. The hazing charges were dissmissed, but five students served jail
time for furnishing the vodka or
hiding the bottle. The civil suit also
alleges USU failed to warn incoming
students of the dangerous activities at
its fraternities. Instead, the university
encouraged students to think Greek
and join sororities and fraternities,
which were described as once being
an integral part of campus life. Interestingly, in 1941, one-fourth of USU
students were Greeks, while currently
just 1% belong to the eight remaining
chapters. Charlie Thronson of the Salt
Lake City law firm of Parsons, Behle
and Latimer and David Bianchi, a
Florida lawyer, are representing the
students family.
Source: Salt Lake Tribune

LAWSUIT FILED OVER FATAL FIRE AT

BUSINESS
The family of a Wisconsin woman,
who died in a building fire at Fort
Smith during a fishing trip, has filed a
wrongful death lawsuit against the
business where she was staying. The
2006 fire destroyed the Big Horn Trout
Shop, part of an adjacent lodge, and the
Yellowtail Market. Three personsall
from the Milwaukee suburb of Glendalewere in their room at the lodge
and died in the fire.
The lawsuit, filed in federal court,
seeks damages for the death of the
woman, one of the persons killed in the
fire, and there likely will be other suits
filed. It was alleged that Big Horn Trout
Shop Inc. wasnt equipped with adequate safety equipment, including a
working in-room smoke detector, and
that the shop failed to keep the premises reasonably safe by maintaining an
adequate fire safety system.
Source: Associated Press

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23

FAMILIES FILE LAWSUIT IN CONNECTICUT

POND DEATHS
Two families have filed suit in a Connecticut state court against the City of
Bridgeport and the Connecticut Zoological Society over the deaths of two
children who drowned when a minivan
plunged into a pond in 2007. Relatives
of the two children, ages six and two,
allege the city and the Zoological
Society were negligent for not placing
barriers at a public park to prevent
vehicles from rolling into a pond on or
adjacent to the premises.
A third child and the vans driver also
died. The minivan was parked when it
began rolling down a hill toward the
pond. The driver ran after it and got in
the van before it went into the pond.
The city later installed a rail barrier
along the road above the pond.
Source: Insurance Journal

LAWSUIT SETTLED IN CAR WASH CRASH

DEATH
A wrongful death lawsuit against a
woman charged with driving a car into
a woman at a Massachusetts car wash
and killing her in 2007 has been
settled. The suit was filed against the
Defendant last year. The crash killed
Robin Young, a resident of Danville,
N.H., as she was wiping down her car
outside a carwash in Haverhill, Mass.
Terms of the settlement are confidential and cant be disclosed. Mrs.Youngs
daughter, Taylor, who was 12 at the
time, and inside the car, will receive
about $100,000 as a part of the settlement. There was a separate claim for
the children. The Defendant claimed
her brakes failed. She was to go back to
court August 25th to stand trial again on
charges of vehicular manslaughter. An
April trial in the criminal case ended in
a hung jury.
Source: Associated Press

TOWN OF BULLS GAP SUED IN 2008

WORKERS DEATH
A lawsuit seeking $3 million in compensatory damages and $1 million in

24

punitive damages has been filed against

the Town of Bulls Gap,Tennessee. The
suit by Mary Neill Carmichael alleges
breach of contract that led to the July
2008 death of her husband, Ronnie
Carmichael, who was the supervisor of
the Mosheim sewer department. The
lawsuit, filed in Greene County Circuit
Court, seeks judgment against the
Defendant in an amount not to exceed
$3 million for the injuries, pain and suffering, and wrongful death of Ronnie
Carmichael. The suit also seeks punitive damages not to exceed $1 million.
The lawsuit alleges that Bulls Gap
was contractually bound to treat its
sewage with a chemical to reduce the
amount of hydrogen sulfide and the
dangers resulting from the high concentrations of hydrogen sulfide. Apparently, the town did so for a time, then
stopped, creating a situation which
allegedly caused Mr. Carmichaels
death. The lawsuit alleges that, pursuant to the contract, Mosheim treated
sewage generated by Bulls Gap at the
time of Mr. Carmichaels death.
At the time of his death the decedent, who was employed by the Town
of Mosheim as supervisor of the sewer
department, was working on a pump
station owned and operated by the
Town of Mosheim. It was alleged that
the decedent, while working in the
pump station which was receiving
sewage from Bulls Gap, was overcome
by excessive concentrations of hydrogen sulfide and drowned in raw human
sewage. Mr. Carmichael was overcome
by the dangerous and toxic fumes
emitted by the sewage transmitted to
the pump station, lost consciousness,
and became submerged in raw human
sewage pouring into the pump station
where he was working. He suffered a
slow, painful and traumatic death by
drowning in the sewage.
A co-worker also died while trying to
bring Mr. Carmichael out of the pump
station. Its alleged that Bulls Gap had
experienced odor problems with its
sewer facilities, caused by excessive
amounts of toxic gases, including but
not necessarily limited to hydrogen
sulfide. It should be noted that hydro-

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gen sulfide is a deadly and corrosive

gas, and a known by-product of sewage
treatment.
Source: The Greenville Sun

ABUSE OF AN INFANT AT A DAY CARE

CENTER RESULTS IN $3 MILLION JURY
VERDICT
A jury in Florida awarded an infant,
whose leg was broken in 2006 at a day
care center, $3 million in damages, with
$2 million of the verdict being punitive. KinderCare was the owner and
operator of the facility. About the time
the infants leg was broken, licensing
authorities were monitoring five of
KinderCares six Pinellas County centers
for serious or repeat rule violations. It
appears that KinderCare has since
cleaned up its violation history.
The ten-month-old boy who was
injured was said to have been squirming on the day care centers diapering
table. It was reported that a caregiver
frustrated that the baby wouldnt stay
putbent his tiny leg back until it
broke. The caregiver, Stacey Doty, told
authorities at the time that didnt mean
to hurt him and that she was just trying
to hold him in place. But when licensing officials and a Pinellas County jury
took a closer look at the day care
center, owned by KinderCare, the
nations largest child care chain, they
found a disturbing pattern.
Several workers and parents said
they had told the center director that
Doty was mishandling children. One
co-worker said Doty had dropped a
clipboard on a toddlers fingers as punishment and had picked up another
toddler by the wrist and moved her
across the room because she wouldnt
obey. On the day of the incident, in September, 2006, another caregiver on
duty went on a break, leaving Doty
alone with the six infants. She broke
the babys leg while changing his
diaper.
When the parents lawsuit went to
trial last month, the childs leg had
healed. The issue was whether he had
suffered lasting brain trauma. Several
witnesses said Doty sometimes dropped

infants into their cribs. One girls head

reportedly bounced against the cribs
backboard. The jury awarded $250,000
for future medical costs and $750,000
for future pain and suffering.
The jury faulted the center director
for not heeding repeated warnings that
Doty was mishandling children. KinderCare had not installed cameras so
supervisors could monitor classrooms.
With 1,700 schools in 38 states, KinderCare grosses $1.5 billion a year. Day
care facilities have both a legal and
moral duty to provide good care for
childrenand especially infantsin
their facilities.When they fail to do so,
they must face the consequences.
Source: TampaBay.com

LAWSUIT FILED AGAINST INDIANA CITY IN

SWIMMING POOL MISHAP
The father of a 13-year-old boy
injured last year in an eastern Indiana
swimming pool has filed suit against
Union City over the incident. The
lawsuit alleges that negligence on the
part of Union City led the boy to suffer
severe injuries. The boys swimming
suit had become entangled in a grate at
the bottom of the Union City Swimming Pool.
The boy was pulled from the pool
by lifeguards and airlifted to a hospital
in Dayton, Ohio. The boy suffered
severe injuries as a result of the incident. The suit alleges that the city
failed to maintain the grate, and that
the pool personnel failed to properly
supervise the boy.
Source: Associated Press

FAMILY OF IDAHO TRUCKER CRUSHED BY

SILAGE FILES SUIT
A lawsuit has been filed by the
widow and father of a trucker
crushed to death when a pile of silage
fell on top of him. The Idaho dairy
where the accident occurred was
charged with negligence.The lawsuit
was filed on behalf of Chad Thompson, 30, who was killed March 7, 2008,
when part of a silage pile at least 40

feet high fell on top of his truck.The

lawsuit filed recently in state court
contends the owners of 4-Bros Dairy,
located northwest of Shoshone,
Idaho, were negligent in stacking and
maintaining the pile.
The Plaintiffs contended that the
dairy manager told the decedent to
park his truck in front of the pile. The
victim, who was driving for Hermiston,
Oregon,-based Medelez Trucking
Company, was delivering apple silage
to the dairy. Its alleged in the lawsuit
that dairy officials directed Chad
Thompson to the location and failed to
warn him of the dangerous/hazardous
condition.The dairy was cited by the
Occupational Safety and Health Administration and agreed to pay a $1,700
fine for safety violations.

released into the air more than 1,200

pounds of the hazardous chemical
mononitrotoluene, MNT, a chemical
related to TNT that can be explosive
when exposed to high temperatures.
Operators thought the process had
been shut down weeks earlier. Plant
staff did not realize that valves used to
shut off steam to the tower had deteriorated, the U.S. Chemical Boards investigation determined.
Source: Mobile Press Register

XIX.
TRANSPORTATION
UNFORTUNATELY U-HAUL APPEARS TO BE
DOING BUSINESS AS USUAL

Source: Associated Press

XVIII.
WORKPLACE
HAZARDS
FIRST CHEMICAL TO PAY $731,000
SETTLEMENT FOR 2002 EXPLOSION
First Chemical Corp. will pay the
federal government $731,000 in civil
penalties for an October 2002 explosion at the companys Pascagoula plant
on Bayou Cassotte that was caused by a
dangerous chemical reaction. The
company also agreed to correct violations of the Clean Air Act, according to
the U.S. Department of Justice. According to the U.S. Chemical Board, the
explosion occurred in a chemical distillation tower. The explosion sent heavy
debris over a wide area, and three
workers in the control room were
injured by shattered glass, according to
the Boards report.
The explosion occurred in a distillation column that was not in use at the
time. Flying debris from the column
ruptured a storage tank holding a
chemical used to make home laundry
detergents and red printing inks,
according to news reports. Government officials said that the blast

We have written numerous articles

about U-Haul tow dollies and trailers.
We have attempted to relay the serious
hazard created by pulling a U-Haul unit
with any type of car or SUV. Over the
past two weeks, we have received multiple inquiries from persons who have
had serious accidents involving U-Haul
towing units. Since U-Haul continues
to be the only renter of tow dollies and
trailers that will rent to drivers of cars
and SUVs, it is not surprising that we
continue to consistently receive inquiries
about U-Haul-related accidents. It is also
not surprising (and unfortunately, in a
few cases, extremely tragic) that lives
are being lost and personal property is
being destroyed.
In one accident involving a U-Haul,
the driver was towing his motorcycle
and, as a result, the motorcycle was
totaled. In another incident, most of the
drivers personal belongs were
destroyed. In an extremely tragic case,
and one which highlights the dangers
of these U-Hauls, the accident resulted
in two deaths. The two individuals
who lost their lives were driving other
vehicles in close proximity to the UHaul towing vehicle when the accident
occurred. Given the number of incidents on the roads that involve U-Haul
towing units, it is not surprising that UHaul towing vehicles pose a serious

www.JereBeasleyReport.com

25

threat to themselves and to other drivers

on the road. Again, if it becomes necessary to use a U-Haul towing unit, we
suggest you only pull it with a U-Haul
truck. If you are driving on the road
and you notice a car or an SUV pulling
a U-Haul towing unit, pay close attention while in close proximity. Since UHaul obviously does not care about
safety on our roads, look out for your
own safety. If you need more information on the U-Haul issues, contact
Kendall Dunson in our firm at 800-8982034 or by email at Kendall.Dunson@
beasleyallen.com.

UNSAFE TRUCK AND BUS OPERATORS ARE

STILL ON THE ROADS
Hundreds of tractor-trailer and bus
companies which had been ordered to
shut down because of federal safety
violations ranging from suspended
licenses to possible drug use have
stayed on the road. They have done this
by using different names. A study by
the Government Accountability Office,
obtained by The Associated Press,
comes a year after an unlicensed
charter bus carrying a VietnameseAmerican Catholic group blew a
retreaded tire installed on a steering
axle and skidded off a Texas highway,
killing 17 people in one of the nations
deadliest bus crashes. The use of
recapped tires on the steering axle is a
violation of federal regulations.
The GAO report found that at least
20 of the roughly 220 commercial bus
companies that had been fined and
ordered out of service in 2007 and
2008 by federal regulators evaded compliance by operating under a new
name. This had been done by the bus
operator in the Texas crash.
The investigation by the GAO found
offenders in at least nine states
Arizona, Arkansas, California, Georgia,
Maryland, North Carolina, Texas, New
York and Washington. It was reported
that the violators owed tens of thousands of dollars in delinquent fines and
a tremendous number of violations
ranging from operating without the
proper license to failing to test drivers

26

for illegal drugs and alcohol.

Its believed that another 1,073 commercial trucking firms are operating
under new names after incurring fines
and violations. Reportedly, they are
often using the same address, owner
name, employees
and
contact
numbersonly the business name is
different. In all, more than 500 of the
tractor-trailer and bus companies were
still operating as recently as July,
according to investigators. Greg Kutz,
GAOs managing director for special
investigations, wrote:
These companies pose a safety
threat to the motoring public.We
believe that these carriers reincarnated into new companies to
evade fines and avoid performing
the necessary corrective actions.
There were about 300 fatalities from
bus crashes last year. Kutz warned that
the number of violators is likely higher,
since the GAO reviews only identified
companies based on exact matches of
information. The Federal Motor Carrier
Safety Administration says it has put in
place new oversight measures after last
Augusts crash, including a computermatching process to compare new
applicants to poor-performing motor
carriers dating back to 2003. Newlylicensed carriers also must undergo a
safety audit within 18 months of
approval, a step that helped the agency
identify several of the rogue companies
cited by the GAO. But, the GAO says the
federal agency did not yet have full
computer capability to identify companies that had used similar addresses and
names but not necessarily exact
matches of each other. There appears
to be uncertainty as to what level of
government has the proper enforcement power. Federal law also is somewhat ambiguous about whether FMCSA
or the states have that authority.
The House Transportation and Infrastructure Committee, led by Rep. James
Oberstar, D-Minn., is proposing a
federal standard that would give the
FMCSA more power to revoke licenses
and impose fines. The measure also
would direct FMCSA to improve its

www.BeasleyAllen.com

computer systems. The measures are

included in a proposed six-year, $500
billion highway reauthorization bill
that the Obama administration wants
delayed for 18 months because of questions about cost.
In the Texas crash referred to above,
Iguala BusMex Inc. of Houston had
received a Transportation Department
number and was awaiting approval for
a federal license when one of its buses
crashed near Sherman, Texas. The
company was run by Angel de la Torre,
who operated Angel Tours Inc., which
was forced to take its vehicles out of
interstate service just two months
earlier after an unsatisfactory review by
federal regulators. Other cases cited by
GAO, without identifying the companies, were:
Inspectors examined a bus operated
by a Texas bus company in October
2006, fining it $850 after deeming
the vehicle unsafe to drive. A few
months later, the company was found
illegally transporting 33 passengers
from Mexico into the U.S. and was
fined $2,380. That same month, a
new company opened with two of
the same drivers, three of the same
vehicles, the same last name for the
company owner and virtually identical addresses. The new firm operated
for 18 months before it was cited for
drug testing violations in September
2008; it was ordered out of service
last month.
An Arkansas motor carrier was cited
for nine safety violations in May
2007, including failing to get the
proper licenses and maintaining
driver qualification files, and fined
$3,050. A new company with the
same business address, phone
number and company officer name
started in June 2007, three months
before the old carrier was ordered
out of service. The new carrier operated for more than a year before it
was cited in November 2008 for violations including insufficient registration. A $2,000 fine was assessed; the
company was ordered out of service
in March.

A California bus company was cited

for 18 safety violations in May 2007,
including drivers who refused to take
mandatory drug tests, and was fined
$2,200. The carrier began to correct
some of its violations but failed to
pay the fine. A new company with
the same phone number, fax number
and company officer name was
formed in October 2007. FMCSA subsequently ordered the old company
out of service in February; the new
company was still active as of May.
This is a problem that the government regulatory agencies must fix. Its
quite evident that Congress should
pass legislation needed to fix the
problem. Highway safety should be a
top priority for the Obama Administration and Congress.
Source: Insurance Journal

A $5,400,000.00 SETTLEMENT IN FLOYD

COUNTY, GEORGIA
A lawsuit that arose out of a motor
vehicle collision was settled recently in
Floyd County, Georgia. On April 10,
2007,Amanda McAdams and her nineyear-old son, Seth, had just left his
schools field trip. Instead of going
home with his mother, Seth took the
bus back to school so he could spend
more time with his friends. Mrs.
McAdams was driving to Seths school
to pick him up and take him home, but
she never made it.
Vincent Sewell, working for Vend
Service, Inc, was driving west on
Highway 20. As Mr. Sewell came around
a bend in the highway, a red car was in
his lane heading towards him. Mr.
Sewell swerved to the right and off of
the road to avoid crashing into this red
car. However, once Mr. Sewells vehicle
left the road, his tractor trailer hit a
ditch and numerous trees. That forced
his tractor trailer back onto the road,
and across the double yellow line. It
was then that he crashed into Mrs.
McAdams vehicle which was traveling
in the opposite direction. Mrs.
McAdams was seriously injured in the
violent crash.

Mrs. McAdams was taken by helicopter to Grady Memorial Hospital in

Atlanta where she underwent surgery
on her pelvis. Although she had numerous injuries, her hip was by far the
most significant injury sustained.
Approximately six months later, her hip
became dislocated and she underwent
another pelvic surgery. Her surgeon
noted that she was suffering from avascular necrosis and post-traumatic
arthritis of her hip. Ultimately, Mrs.
McAdams required a total hip replacement due to bone loss and destruction
of her hip. She would require multiple
additional hip surgeries over her lifetime due to her age and deterioration
of her hip. She was permanently disabled.
The Defendant hired Dr. David
Hungerford from Johns Hopkins whose
opinion was that Mrs. McAdams would
not require any additional hip surgery.
But this expert said that, if she did, it
would only be one surgery during her
lifetime which would be fairly minor.
Additionally, Dr. Hungerford believed
that Mrs. McAdams would be able to
resume her normal activities once she
recovered.
Mr. Sewells lawyers blamed the
driver of the John Doe (red) vehicle
and at trial were planning on having
the jury apportion fault between Mr.
Sewell and the John Doe driver who
forced him off of the road. Before trial,
the case was settled for $5,400,000
during mediation. Michael Werner, a
lawyer from Atlanta, Georgia, represented Mrs. McAdams and did an outstanding job. Interestingly, he graduated
from Emory School of Medicine and
was a practicing doctor before deciding to go to law school.

CELL PHONES AND TEXTING WHILE DRIVING

ARE VERY DANGEROUS
We have written in several issues on
how dangerous it is for the driver of a
motor vehicle to talk on a cell phone
while driving. Studies have revealed
that this sort of thing is extremely dangerous and creates hazardous conditions both for the driver and for others

on the road. An example involves a

recent motor vehicle accident that
occurred in New York State.
In that accident, a tow truck driver
was texting on one cell phone while
talking on another when he slammed
into a car and crashed into a swimming
pool. According to sheriffs deputies,
the 25-year-old truck driver admitted
he was texting and talking when his
flatbed truck hit the car on the
morning in question. The incident
occurred in Lockport, New York, which
is outside Buffalo. The car that was hit
by the truck then crashed through a
fence and sideswiped a house before
rolling into an in-ground pool.
The 68-year-old woman driving the
car suffered head injuries and fortunately was in good condition. Her
eight-year-old niece suffered minor
injuries. The truck driver was charged
with reckless driving, talking on a cell
phone and following too closely.While
the injuries in this incident were relatively minorand no person was
killedit teaches a very good lesson.
Do not talk on a cell phone or text
while driving a motor vehicle. This
should be a lesson for all of us.
Source: Insurance Journal

SUIT IS FILED OVER FATAL CRASH OVER A

BLUFF
The family of a woman killed last year
when her vehicle fell from a bluff along
an Interstate highway in Missouri has
filed a wrongful death lawsuit against
the Missouri Highways and Transportation Commission. Andrea Whitehead
was trying to change lanes when she
lost control of her vehicle and fell 76
feet over the cliff on June 26, 2008. Her
two children, both of whom were in
the vehicle with her, survived. Its
alleged in the lawsuit that the Highway
Commission knew the road was dangerous, but did not provide a barrier to
protect vehicles and thats a rule that
should be followed by all drivers.
Source: STLtoday.com

www.JereBeasleyReport.com

27

XX.
ARBITRATION
UPDATE
BANK OF AMERICA DROPS ARBITRATION
FOR CONSUMER DISPUTES
Its quite significant that Bank of
America Corp., the third-largest creditcard issuer, has ended a requirement
that consumer disputes be settled
through binding arbitration.This comes
after two resolution bodies, as reported
last month, stopped taking new cases.
Hopefully, there will be others following suit, There hasnt been a level
playing field between companies like
Bank of America and their customers
when a dispute arose. Other companies
using arbitration as a weapon against
consumers should do exactly as Bank
of America has done, which would be
good news for consumers.
Source: Bloomberg

CONGRESS SHOULD ACT ON PENDING

LEGISLATION
There are several important bills
dealing with arbitration pending in
Congress that need to be passed
without delay. These bills involve arbitration in consumer transactions and
also in nursing home admissions.

XXI.
HEALTH CARE
ISSUES
ANTIDEPRESSANT USE IN THE UNITED
STATES HAS DOUBLED
A recently-released study shows that
the number of Americans taking antidepressants doubled to 10.1% of the U.S.
population in 2005 compared with
1996, increasing across income and age
groups. An estimated 27 million people
in the U.S., ages six years and older,
were taking the drugs by 2005, while
their use of psychotherapy was said to

28

have declined. Each person treated for

depression in 2005 also filled more prescriptions, an average of 6.9 that year
compared with 5.6 in 1996. The study
by Columbia University was published
in the August issue of the Archives of
General Psychiatry.
The surge in antidepressant use
resulted in that class of treatments
becoming the top-selling medicines in
the U.S. in 2005, surpassing blood-pressure prescriptions. Those findings highlight the need for doctors who arent
psychiatrists and who prescribe these
medicines to be trained to diagnose
and manage depression so patients get
the most effective treatment. The
author was Dr. Mark Olfson, a professor
of clinical psychiatry at Columbia University and New York State Psychiatric
Institute in New York.
The number of children ages six to
17 who took antidepressants jumped
78% between 1996 and 2005, according to Dr. Olfson. This was from a rate
of 1.4 per 100 children to 2.6 per 100.
The increase continued after the Food
and Drug Administration in October
2004 issued a black box warning that
antidepressants increase the risks of
suicide in children and adolescents. The
study was sponsored by the Agency for
Healthcare Research and Quality and
the National Alliance for Research on
Schizophrenia and Depression.
Source: Bloomberg

TANNING BEDS ARE SAID TO BE HAZARDOUS

TO HEALTH
International cancer experts have
moved tanning beds and other sources
of ultraviolet radiation into the top
cancer risk category, comparing them
to arsenic and mustard gas. For years,
scientists have described tanning beds
and ultraviolet radiation as probable
carcinogens. But now a new analysis of
about 20 studies concludes that the
risk of skin cancer increases by 75%
when people start using tanning beds
before age 30.
The research was published online in
the medical journal Lancet Oncology,
by experts at the International Agency

www.BeasleyAllen.com

for Research on Cancer in Lyon, the

cancer arm of the World Health Organization. Dr.Vincent Cogliano, one of the
cancer researchers, observed:
People need to be reminded of the
risks of sunbeds.We hope the prevailing culture will change so
teens dont think they need to use
sunbeds to get a tan.
Most lights used in tanning beds give
off mainly ultraviolet radiation, which
cause skin and eye cancer, according to
the International Agency for Cancer
Research. But, as use of tanning beds
has increased among people under 30,
doctors have seen a parallel rise in the
numbers of young people with skin
cancer. Experts found that all types of
ultraviolet radiation are dangerous. Previously, it was believed only one type of
ultraviolet radiation was lethal.
In Britain, melanoma, the deadliest
kind of skin cancer, is now the leading
cancer diagnosed in women in their
20s. Normally, skin cancer rates are
highest in people over 75. Previous
studies found younger people who regularly use tanning beds are eight times
more likely to get melanoma than
people who have never used them. In
the past, the World Health Organization
warned folks younger than 18 to stay
away from tanning beds. Dr. Cogliano
cautioned that ultraviolet radiation is
not healthy, whether it comes from a
tanning bed or from the sun. For those
who want to keep a good tan, the
American Cancer Society advises them
to try bronzing or self-tanning creams
instead of tanning beds.
Source: News4jax.com

FDA ISSUES ALERT ON SUPPLEMENTS FOR

ATHLETES
Federal regulators have warned consumers not to use body-building products that are sold as nutritional
supplements, but may contain steroids
or steroidlike substances. Reports of
acute liver injury and kidney failure
were cited. According to the Food and
Drug Administration, the warning was
issued because of increased reports of

medical problems in men who had

used such products. But except for
naming eight specific supplements
sold by a single company, the FDA did
not provide much clear guidance to
consumers on what other products to
avoid. The agency acknowledged that
it did not know how many products
its warning affects.
According to the FDA, buyers should
beware of body-building products that
claim to enhance or diminish the
effects of hormones like testosterone,
estrogen or progestin. In particular, the
agency said consumers should not buy
products labeled with code words like
anabolic and tren, or phrases like
blocks estrogen, and minimizes
gyno. The references to estrogen and
gyno are meant to indicate the products do not have a feminizing effect on
the body, like swelling breasts or shrinking testicles, which can be unwanted
side effects of steroid use in men.
The FDA cited eight popular products from American Cellular Labs,
including Mass Xtreme and Tren
Xtreme, that the agency found to
contain hidden and potentially hazardous steroids. The agency sent a
letter warning the company to make
the products comply with federal regulations. The FDAs warning follows the
agencys crackdown on more than 70
brands of weight-loss supplements that
the agency found to illegally contain
hidden and potentially dangerous
active pharmaceutical ingredients.
Federal regulations governing dietary
supplements are inadequate to protect
consumer health.
Unlike drug makers, which at least
in theory must demonstrate that a
drug is safe and effective before the
agency approves it for sale to the
public, dietary supplements are a
largely self-regulating industry. Manufacturers of such products are themselves responsible for the safety and
effectiveness and marketing claims
of their products, and for voluntarily
recalling them if problems arise. The
FDA has authority to act only after it
has received reports of serious
health problems associated with
products already on sale and it is

able to prove a serious health

hazard. If a company refuses to voluntarily recall problem products, the
FDA can then file an injunction and
seize the products.
Over the last two years, the FDA has
received 15 reports of serious health
problemsincluding stroke, liver
problems and pulmonary embolism
associated with body-building products from various makers. Steroids are
organic compounds, like hormones or
cholesterol, that naturally occur in the
body. Some compounds called anabolic androgenic steroids, which affect
both the metabolism and the
endocrine system, are approved as
drugs to treat medical problems like
testosterone deficiencies.
Americans spent nearly $24 billion
on dietary supplements in 2007, according to Nutrition Business Journal, a
market research firm. Of that total, its
estimated that tablets or capsules that
claim to build muscles or enhance athletic performance represented perhaps
$2.8 billion in sales. Consumers
shouldnt buy any body-building products with hyped-up claims.

ment-written statement detailing the

mercury controversy and explaining
what science shows.
Too much mercury, according to
studies, can harm the brain. The FDA
says that available scientific evidence
supports the conclusion that patients
with dental amalgam fillings are not at
risk for mercury-associated adverse
health effects. Anti-mercury activists
accused the agency of bowing to the
dental industry and said theyd go back
to court to try to force a change.
Charles Brown, who is with Consumers
for Dental Choice, had this to say:
FDA broke its contract and broke
its word that it would put warnings for children and unborn children. This contemptuous attitude
toward children and the unborn
will not go unanswered.
I hope the FDA is correct on this issue.
But I must confess that its record over
the years doesnt give me much comfort.
Source: Associated Press

ACCURACY OF FLU TESTS QUESTIONED

Source: New York Times

FDA NOW SAYS MERCURY IN DENTAL

FILLINGS IS NOT RISKY
The U.S. Food and Drug Administration has now declared that silver dental
fillings contain too little mercury to
harm the millions whove had cavities
filled with themincluding young childrenand that only people allergic to
mercury need to avoid them. This was
an about-face for the FDA. The Associated Press reports that, last year, the
FDA settled a lawsuit with anti-mercury
activists by posting on its Web site a
precaution saying questions remained
about whether the small amount of
mercury vapor the fillings can release
were enough to harm the developing
brains of fetuses or the very young.
Now, the FDA says its final scientific
review ends that concern. But, the
agency did slightly strengthen how it
regulates the fillings, urging dentists to
provide their patients with a govern-

With children returning to school,

many parents are concerned about
their children being exposed to the
strain of flu, H1N1, which is commonly
referred to as the Swine Flu. Some
people are predicting that the risks
associated with this strain of influenza
could have pandemic implications. As
of August 20th, there were 190 confirmed cases in Montgomery,Alabama,
where I live. Because of these concerns, well-founded or not, many companies have developed quick tests
which can be used by healthcare professionals, in schools, and in other settings. The sales of these tests are
soaring.
But how accurate are these tests?
According to one study, they are not
very accurate at all. Most alarming, the
tests do not reveal false positives, but
are far more likely to reveal a false negative. In other words, administering the
test may actually show that the person
does not have the H1N1 virus, while in
fact he or she may actually have it.

www.JereBeasleyReport.com

29

According to a test conducted by Dr.

Christine Ginocchio, director of microbiology, virology and molecular diagnostics of the North Shore-Long Island
Jewish Health System, the tests may fail
as much as half of the time. According
to Dr. Ginocchio, one rapid test that she
and her staff reviewed identified the
Swine Flu in only one out ten cases.
Other tests had accurate results in 40%
to 69% of the cases studied.
Dr. Ginocchios concerns seem to be
verified. The Centers for Disease
Control (CDC) has cautioned healthcare professionals about relying on the
quick tests. Similarly, the U.S. Navy
found that one test it used identified
the virus in only half of the cases
reviewed.
What this means is that some people
may not receive the treatment they
need in a timely manner and, worse,
may assume they can expose other
people because they do not have the
potentially deadly influenza virus.
Hopefully, the threat of swine flu wont
be as bad as predicted. But, if it is, then
testing and vaccines developed should
be accurate and should work for the
intended purpose.
Sources: The New York Times, Journal of Clinical
Virology, and New England Journal of Medicine

ALABAMA DEPARTMENT OF PUBLIC HEALTH

ISSUES 2009 FISH CONSUMPTION
ADVISORIES
Concern about protecting the public
from possible exposure to mercury
from eating fish led to the issuance of
nine new fish consumption advisories
by the Alabama Department of Public
Health (ADPH) for bodies of water in
Alabama in the following counties:
Barbour, Covington, Escambia, Greene,
Russell and Shelby. Advisories for three
other bodies of water also were modified. All advisories previously issued
using Food and Drug Administration
guidelines remain in effect for 2009.
The quality of water, based upon the
levels of contaminants in fish from the
waters in Alabama, generally continues
improvements made in recent years.
The advisories were issued on August 21st.

30

The ADPH annually updates fish consumption advisories based on data collected the preceding fall by the
Alabama Department of Environmental
Management. ADEM collected samples
of specific fish species from various
bodies of water throughout the state
during the fall of 2008. ADPH assessed
the analytical results to determine
whether any of the tested contaminants in the fish could give rise to
potential human health effects. Fish
consumption advisories are issued for
specific bodies of water and specific
species taken from those areas. In reservoirs, advisories apply to waters as far
as a boat can be taken upstream in a
tributary; that is, to full pool elevations.
Source: ADPH

XXII.
ENVIRONMENTAL
CONCERNS
UPDATE ON THE TVA COAL ASH SPILL
LITIGATION
Our firm filed a class action lawsuit
in January on behalf of residents and
property owners affected by the catastrophic release of over a billion
gallons of coal ash sludge. As we have
reported, the release occurred on
December 22, 2008 when a coal ash
impoundment at the Tennessee Valley
Authority Kingston Fossil Plant ruptured, sending a deluge of toxic slurry
onto over 300 acres and into nearby
waterways.
According to a report from the Tennessee Valley Authoritys internal
watchdog, the utility knowingly
schemed to divert an investigation into
the cause of the massive coal ash spill.
This appears to be an effort to protect
itself from lawsuits arising out of the
spill. TVA also is trying to restore its tattered public image. The report suggests
the nations largest utility tried desperately to keep the public from knowing
the complete story behind the cause of
the spill, which, as we have reported
previously, destroyed more than two

www.BeasleyAllen.com

dozen homes and created one of the

nations largest environmental disasters. As you will recall, more than a
billion gallons of toxic coal ash were
spilled onto the neighboring community and waterway. The author of the
report, Richard Moore, the utilitys
Inspector General, stated:
It appears the TVA management
made a conscious decision to
present to the public only facts
that supported an absence of liability for TVA for the Kingston
spill.
According to the Inspector Generals
report, the real blame for the spill lies
with TVA management for not taking
measures to address issues regarding
the structural integrity of the Kingston
coal ash pond. Those issues initially
were raised in a 1985 internal memo,
and again in 2004 in two engineering
reports. This latest released report
states that,necessary systems, controls,
standards and culture were not in
place at the TVA to prevent a disaster
like the one that occurred at Kingston.
That is pretty much to the point and
confirms what we have learned so far
in the pending litigation arising out of
the spill.
Meanwhile, the affected area in
eastern Tennessee continues to suffer
from the ramifications of the largest
industrial accident in U.S. history. The
volume of the TVA coal sludge spill was
about 100 times greater than the
volume of the Exxon Valdez oil spill.
The latest estimate for cleanup costs is
about $1.2 billion.
TVA recently announced that it will
incur additional expenses in converting
all of its fly ash ponds to dry disposal
methods over the next eight years in
hopes of avoiding another spill like the
12/22 disaster in Kingston. TVA plans
to capture fly ash from the plant stack
using dry techniques instead of storing
coal ash sludge in retention ponds. Six
of TVAs 11 coal-fired power plants currently use wet storage, including the
Widows Creek plant in Alabama.
Our goal, on behalf of individuals and
a class of clients in this lawsuit, is to

bring about a complete clean-up of the

area; ensure that people affected are
fully compensated for the damage to
their property, including the loss in
property values; and to obtain longterm medical monitoring relief for area
residents who have been exposed to
the toxic contaminants in TVAs coal
ash sludge.While the litigation is still in
the early stages, quite a bit of work has
been accomplished thus far. Corporate
Representative
depositions
have
started, and our lawyers are working
with a group of lawyers on the various
discovery issues that a case of this magnitude involves.
If you need additional information on
this subject, contact Rhon Jones or
David Byrne in our firm at 800-8982034 or by email at Rhon.Jones@
beasleyallen.com or David.Byrne@beasley
allen.com.
Sources: Chattanooga Free Press, Knoxville News
Sentinel; Associated Press, Gannett News Service

WHAT YOU NEED TO KNOW ABOUT MINE

SUBSIDENCE
While many people have heard
stories of the dangers of underground
mining operations, the stories that are
often forgotten are the ones told by
surface property owners above those
mines. Every year, mining companies
tear through rock and remove minerals
underneath the surface for a profit. The
more minerals mined underneath the
soil, the more money the mining
company will make as a result. Unfortunately for the surface property owner,
this process can wreck havoc on the
home, the surrounding property and
the water supply in the form of mine
subsidence damage.
In general terms, mine subsidence is
the sinking, cracking or settling of
surface property as a result of an underground mine collapse. There are many
ways that mine subsidence damages
property. In high extraction methods
like longwall mining, where rooms that
span several hundred feet are completely robbed of coal, subsidence can
be instant and devastating. In some
instances, subsidence from longwall

mining has been known to produce

giant cracks several inches wide in
home foundations and property, cave in
portions of homes and cause giant sinkholes and troughs to form. In some of
those same instances, homes are condemned and families are forced to
vacate their premises.
In room and pillar mining, where
rooms are mined and coal pillars are
left behind as support, mine subsidence is unpredictable and can occur
decades after the mine has closed. Subsidence from room and pillar mines
usually takes the form of cracks and
sinkholes on surface properties.
However, if the mining company robs
the pillars, or fails to provide pillars
that are sturdy enough to support the
surface over time, similar subsidence
effects as are found in longwall mining
can result.
Underground mining operations are
also a threat to our water supply,
natural streams, and lakes. Because
mine subsidence can create cracks that
permit water to escape into the earths
crust, a subsidence event can cause
water supply and natural water
resources to disappear overnight. Additionally, contaminated water that collects inside the mine can be released
during a subsidence event and contaminate adjacent drinking water wells and
streams with poisonous water.
Oftentimes in these cases, property
owners are approached by the mining
companies and are convinced to settle
for amounts significantly less than they
would receive with representation. It
has been our experience that settlement deals should never be struck with
parties that share a conflicting interest
without legal representation.
We are committed to investigating
and pursuing claims on behalf of property owners that have suffered significant property damage as a result of
mine subsidence. Rhon Jones and
Parker Miller, lawyers in the Toxic Torts
Section of our firm, are investigating
these claims. Should you need additional information, you can contact
Rhon or Parker by calling 800-898-2034
or by email at Rhon.Jones@beasley

allen.com or Parker.Miller@beasley
allen.com.

JUDGE ORDERS CITGO TO PAY DAMAGES IN

OIL SPILL
In a recent ruling by State District
Judge Mike Canaday, 14 Plaintiffs were
awarded more than $500,000 in
damages from a 2006 oil spill at the
Citgo refinery south of Sulphur,
Louisiana. Included are $30,000 in
punitive damages for each Plaintiff and
$2,500 in damages for mental stress
over the Plaintiffs fears of developing a
future disease. Judge Canaday found
that, not only was Citgo responsible for
the spill and the injuries that resulted,
but that it rose to a level high enough
that he awarded punitive damages.
There are 800 lawsuits arising out of
the oil spill against Citgo that remain to
be tried in state court. Judge Canadays
ruling is said to be the benchmark for
other cases still pending. Citgo says it
will appeal the ruling.
The lawsuit involves claims arising
from an oil spill and air release that
closed down the Calcasieu Ship
Channel. The Plaintiffs in the lawsuit
were involved in the cleanup operation. Citgo admitted fault and agreed to
pay all compensatory damages that the
Plaintiffs could prove were caused by
the spill. But Citgo contended it was
not liable for punitive damages. Judge
Canaday said he had to determine
whether Citgos actions were the proximate cause of each Plaintiffs injury
and assess the extent of those injuries.
Heavy rains and a series of equipment failures early on June 19, 2006,
led to a spill of nearly 100,000 barrels
of waste oil at Citgos refinery south of
Sulphur. The spill was called the largest
in Southwest Louisianas history and
one of the largest ever in the state. It
took months and millions of dollars to
clean up. In September 2008, Citgo
pleaded guilty in U.S. District Court to
misdemeanor negligence and paid a
$13 million fine for the oil and chemical spill.
Richard Wilson and Wells Watson,
from Lake Charles, Louisiana, repre-

www.JereBeasleyReport.com

31

sented the Plaintiffs in their lawsuit and

did a very good job.
Source: Associated Press

THE TIME FOR NUCLEAR ENERGY HAS

ARRIVED
In an age where energy costs continue to rise, the question must be
asked if it is time for this country to
become more serious about developing nuclear energy. The United States is
far behind Europe and other parts of
the world in terms of building nuclear
plants.
In the 1950s, Lewis Strauss, who was
then the head of the U.S. Atomic
Energy Commission, predicted that the
availability of nuclear energy in the
future would become too cheap to
meter. In other words, he envisioned a
United States where the cost of nuclear
energy would be so cheap that it
would be essentially free to the consuming public. Despite this, the nuclear
energy development programs in this
country have been stalled time and
time again.
To many, the word nuclear conjures
up safety concerns. We all remember
the Three Mile Island and Chernobyl
incidents. But nuclear energy has
proven to be efficient, safe and clean.
By one report, in 2007,nuclear power
accounted for about 74% of the
nations carbon dioxide emissions-free
electric generation.With new restrictions on gas and coal emissions, some
are predicting a renewal of interest in
nuclear energy sources.
The production of nuclear energy
works like any other form of energyproducing plants.Water is heated, creating steam that turns a turbine, which is
attached to a generator. The electricity
is then transferred from the generator
to our homes and businesses. With
nuclear energy, the heat source comes
not from burning coal or fuel but from
energy stored in uranium atoms.
Today, coal produces 49% of our
nations electricity, followed by natural
gas (22%) and nuclear generation
(19%). The percentage of electricity
produced by nuclear energy has not

32

changed in this country since 1988. No

new nuclear plants have been constructed from scratch in the United
States since 1973. For proponents of
nuclear energy, the good news is that
plans are in the work to establish 26
new reactors in 16 different states, with
most being built in the South. Presently,
the plan is to have nearly half of our
countrys energy produced by nuclear
plants by 2050.
Source: Alabama Living Magazine (August 2009)
Publication of the Alabama Electric Cooperatives

MORE ON THE DANGERS OF BPA

A team of scientists, engineers, policy
experts, lawyers and computer programmers at the Environment Working
Group (EWG) have gone through government data, legal documents, scientific studies and their own laboratory
tests to expose threats to the health of
people as well as to the environment.
These folks are also working hard to
find solutions. Their research has
brought to light some unsettling facts
that all citizens need to know.
We have written in prior issues about
the dangerous chemical BPA. Now the
EWG tells us there is more shocking
news. In June, food and chemical lobbyists met in our Nations Capitol and
made plans to save this toxic plastic
chemical. EWG says the lobbyists and
their bosses are desperate to block
state and federal efforts to regulate the
$6 billion industry. Internal meeting
memoranda have revealed that the
industry has instituted a dangerous and
unethical strategy to ensure that
people keep eating and drinking from
BPA-laden containers. This dangerous
strategy has been formulated despite
the mounting scientific evidence that
exposure to even extremely low levels
of BPA can have adverse health effects,
particularly during infancy. Hopefully,
the federal and state governments will
not let these lobbyists control what
happens on BPA.
Source: Environmental Working Group

www.BeasleyAllen.com

RESIDENTS FILE SUIT AGAINST MISSOURI

TANNERY
Residents of two Missouri towns,
Cameron and Gallatin, have filed lawsuits against Prime Tanning Corp. of St.
Joseph, Missouri, claiming the leather
company introduced cancer-causing
agents to rural farms by spreading toxic
sludge as fertilizer. William Kemper,
whose wife, Karen, died from complications from a brain tumor in 2008, and
Janet Lasher, a Gallatin resident recently
diagnosed with lung cancer, filed their
lawsuit in a state court. Plaintiffs in the
lawsuits allege that the hexavalent
chromium, or chromium 6, caused an
outbreak of brain tumors in the
Cameron, Missouri area. Other similar
lawsuits have also been filed against
Prime Tanning Corp., including a class
action lawsuit on behalf of all residents
of Andrew, Buchanan, Clinton and
DeKalb counties.
The lawsuits generally allege that
Maine-based Prime Tanning, which is
owned by National Beef Leathers, LLC,
who acquired the Prime Tanning property in St. Joseph this year, spread thousands of tons of sludge containing the
chemical hexavalent chromium, which
causes cancer, across Missouri farms
from the companys St. Joseph operation. Hexavalent chromium was used at
the plant to remove hair from leather
hides during the tanning process.
According to the lawsuits, the byproduct from that process was spread across
farms through a spreader, much like fertilizer. Many tanneries quit using
chromium 6 by the end of the 1990s
because of the environmental hazards.
Others have closed or moved their operations overseas, where chromium pollution has now become a big problem.
As you will most likely recall, Hexavalent chromium is the same carcinogen
that prompted a $333 million settlement in 1996 from Pacific Gas &
Energy for exposing a California town
to the chemical. This was the basis for
the 2000 film Erin Brockovich starring
Julia Roberts. Ms. Brockovich, who now
is working for a law firm, has appeared
in Cameron to talk about the dangers
of hexavalent chromium.

Prime Tanning denies the sludge contained the chemical, but the lawsuit
contends that they gave it to farmers to
spread during a period of 1983 to early
2009 in order to avoid paying for disposing of it in a landfill. The lawsuit
contends that the sludge contained
high levels of hexavalent chromium
even though the company told the
State of Missouri that the sludge did not
contain the carcinogen. New soil
testing was scheduled to begin in late
August on farmland where tannery
sludge had been applied as fertilizer.
Three agenciesDepartment of Natural
Resources, Environmental Protection
Agency and Missouri Department of
Health and Senior Servicesare cooperating in this project.
Source: Associated Press

DAUPHIN ISLAND EROSION LAWSUIT SETTLED

IN ALABAMA
After being in litigation for almost a
decade, Dauphin Island property
owners and the federal government
have reached a proposed final settlement over erosion. This settlement
gives the island about $1.5 million
toward restoring the beaches. The
Dauphin Island Property Owners Association filed the lawsuit against the
federal government in 2000 blaming
chronic erosion and land loss on the
U.S. Army Corps of Engineers dredging
activities in the Mobile Ship Channel.
The lawsuit contended that sand naturally flowing on westward currents was
trapped in the channel and prevented
from replenishing the islands beaches.
According to the proposed settlement, the federal government would
pay $1.44 million and the State of
Alabama would pay another $60,000.
The fundsafter legal feeswould
have to be applied to restoring the
beach. Because this is a class action
lawsuit, a hearing for property owners
to voice their opinions about the proposed settlement was scheduled for September 15th in federal court. A federal
judge must approve the settlement.
Erosion has plagued the island and
hundreds of feet of beach have been

lost in some areas on the Gulf of

Mexico side. Barrier islands naturally
grow, change shape and move with the
currents, but the lawsuit claimed land
loss was caused by the Corps dredging
practices.
Source: Mobile Press Register

WATER POLLUTION VIOLATIONS NEARLY

TRIPLE
A review by an environmental watchdog group has found that the number
of Alabama facilities violating water pollution regulations has nearly tripled
since 2006. The review also shows that
enforcement by the State Department
of Environmental Management dropped
from 1,408 in 2006 to 22 in 2008. The
review was conducted by David
Ludder, who was the agencys chief
lawyer from 1984 to 1988. He was
scheduled to present the findings last
month to the Alabama Environmental
Commission, which oversees ADEM.
Source: Mobile Press-Register

MERCURY FOUND IN ALL FISH CAUGHT IN

U.S.-TESTED STREAMS
A government test of fish caught in
about 300 streams in the USA found
every one of them contaminated with
some level of mercury. The U.S. Geological Surveys research marks its most
comprehensive examination of mercury contamination in stream fish. The
study found that 27% of the fish had
mercury levels high enough to exceed
what the Environmental Protection
Agency considers safe for the average
fish eater, those who eat fish twice a
week.
The findings in wild-caught fish
underscore how widespread mercury
contamination in the nations waterways has become. Previous research
has found levels of concern in ocean
and lake fish. Forty-eight states have
fish consumption advisories in place
for certain species. A full list of such
warnings is available at www.epa.gov/
waterscience/fish/advisories.

XXIII.
THE CONSUMER
CORNER
THE BIGGEST DATA BREACH OF THE YEAR
Its been widely reported that a
hacker, Albert Gonzalez, recently gained
access to millions of credit and debit
card numbers. The hacker has now
been indicted by the U.S. Department
of Justice. According to the indictment,
Gonzalez, 28, gained a foothold into the
systems of credit card processors such
as Heartland Payment Systems and
retailers like OfficeMax, Barnes &
Noble and TJX Cos. He used an amateur
hacking technique called wardriving,
which I am told uses wireless access
points to find vulnerable networks
from which to launch attacks.
Once connected to those private networks, Gonzalez used a well-known
technique called SQL injection to
trick Web applications into turning
over private information that gave him
deeper access into networks. Even
though it sounds complicated, I understand from our computer experts that
its very easy.
Source: Forbes

BE CAREFUL ON TWITTER
By now most folks have heard of
Twitter. According to one definition
found at Wikipedia,Twitter is considered a free social networking and
micro-blogging service that enables its
users to send and read messages
known as tweets. Tweets are text-based
posts of up to 140 characters displayed
on an individuals profile page. The
messages posted are delivered to the
authors subscribers who are known as
followers. The author can restrict delivery to those in his or her circle of
friends or can allow open access. Users
can send and receive tweets using:
Twitter website,
through text messaging, or

Source: USA Today

via external applications.

www.JereBeasleyReport.com

33

While the service is free, using your

cell phone can cause you to incur
service provider fees. Twitter is not just
being used by the younger generations.
It is a phenomenon that has caught on
with all age groups and is even being
used by Corporate America to disseminate certain information.
Like all forms of communications,
when using Twitter, individuals and
companies should exercise caution and
not just assume that all posts or use is
without possible consequences. For
example, using Twitter, as well as other
social networking sites, can expose
individuals and companies to issues of
defamation, as well as intellectual property infringements. If individuals or
employees post content to their own
page or a corporate blog, that defames
or invades the privacy of third parties,
the entity responsible for the page may
be legally responsible. Posts that
include a third partys intellectual property, such as copyrighted material or
trademarks, may expose a company or
individual to liability for infringement.
The case filed recently in San Francisco, Anthony LaRussa v.Twitter, Inc.,
illustrates the potential exposure in
these areas. Tony LaRussa, the manager
of the St Louis Cardinals, alleged in his
lawsuit that the twitter.com/TonyLaRussa site contains unauthorized photographs of him and written statements
that imply they were made by the
popular manager when in fact they
were not. Based on this, LaRussa contends that Twitter is liable for trademark
infringement, false designation of origin,
trademark dilution, cybersquatting, misappropriation of name, misappropriation of likeness, invasion of privacy, and
intentional misrepresentation.
Another area of the law that may be
affected by the use of Twitter is that of
addressing conduct in the work place.
Companies may take discipline against
or terminate employees who spend
excessive work time on sites such as
Twitter, or who engage in conduct that
is harassing, discriminatory or potentially violent on those sites. On the
other hand, companies must be very
careful and not infringe on its employees right to organize, their right to free

34

speech, or their right to engage in political activities. Many companies routinely monitor their employees social
networking sites for disparaging or
inappropriate information. This type of
oversight is not unlawful and may often
serve to prevent greater harm from
occurring.
As a practical matter, companies
should have established (written) policies that discuss and set out clear
guidelines for the use and access of
these social networking sites. Those
companies should then take steps to
educate their employees about the possible pitfalls that may occur from use of
these sites. Individuals should also be
aware that whatever they post on the
world-wide-web may actually get back
to their employer, or to an unintended
person. Just because you think you are
posting something anonymously, does
not mean it will stay anonymous. If you
need additional information on this
subject, contact Roman Shaul at 800898-2304 or by email at Roman.Shaul@
beasleyallen.com.
Source: http://www.howardrice.com/uploads/
content/Twitter-May2009.html

CIVIL LAWSUIT FILED AGAINST FACEBOOK

FOR PRIVACY VIOLATIONS
Five Facebook users have filed a civil
lawsuit alleging that the social networking site is violating Californias privacy
laws and misleading members about
how their personal information is used.
The lawsuit, filed in a state court, asks
for damages and attorneys fees
The Complaint alleges that Facebook
violates California privacy and online
privacy laws by disseminating personal
information posted by users to third
parties. The lawsuit also alleges that
Facebook engages in data mining and
harvesting without fully disclosing
those practices to its members. The suit
was filed on behalf of several individuals, including a professional photographer, two children under the age of 13,
a user of the original Facebook, and a
Los Angeles-based actress and model.
Privacy concerns have become a real
issue for Facebook, which has grown to
more than 200 million users.

www.BeasleyAllen.com

The Palo Alto, Calif.-based company

announced earlier this year it was
tweaking its privacy controls and
giving users a hand in determining
various policies after tens of thousands
of members protested over who controls the information they share on the
site. The social networking site said in
February it would allow users to
review, comment and vote on changes
to privacy, ownership and sharing
before they are put into place. And in
late 2007, a tracking tool called
Beacon caught Facebook users offguard by broadcasting information
about their activities at other Web sites,
including their purchase of holiday
gifts for those who could see the information. The company ultimately
allowed users to turn Beacon off.
Because of the popularity of Facebook,
this lawsuit will get lots of attention.
Source: Associated Press

PHARMACY GIVES CHILD WRONG MEDICINE

DIRECTIONS
A pharmacy in DeKalb County,
Georgia gave the wrong prescription
directions for a little girl, causing her to
overdose and get sick. Now the parents
want to make sure it doesnt happen to
your child. Helen Vickers went to a CVS
store to fill a prescription for antibiotics for her daughter. When Mrs.
Vickers picked up the prescription
from the store, she thought it seemed
like a large dose of medicine for a little
girl. But it was written on the prescription that it was the proper dose. So she
believed the dosage was correct as
described.
Mrs. Vickers realized a big mistake
was made when she refilled the bottle
two days later and the directions were
different. The child had taken nearly
five times the dose she was supposed
to receive. Instead of the correct dose
of three-and-a-half milliliters, the first
prescription told them to give the child
three teaspoons of Azithromycin. The
little girl had symptoms that included
itchy, watery eyes, sleepiness, and
droopy eyelids.
Azithromycin overdose symptoms

may include nausea, vomiting, diarrhea,

and stomach discomfort. The parents of
this child say they want to see changes
made in the way doctors and pharmacies handle prescriptions. They hope to
save other people from the scare they
had to endure.
Source: CBSAtlanta.com

GYM CLASS INJURIES SENDING MORE YOUNG

PEOPLE TO EMERGENCY ROOMS
A new study out in Pediatrics indicates that children are more likely to
get hurt in gym class than they were a
decade ago. A lack of supervision and
school nurses may be part of the
reason behind a 150% jump in physical
education-related injuries treated at
emergency departments between 1997
and 2007, according to Dr. Lara McKenzie of National Childrens Hospital in
Columbus, Ohio, the lead researcher on
the study. But whatever the cause
behind the trend, Dr. McKenzie told
Reuters Health that the benefits of participating in physical education far outweigh any risks.
Dr. McKenzie and her team looked at
data from the U.S. Consumer Products
Safety Commissions National Electronic Injury Surveillance System. This
system tracks sports and recreationrelated injuries treated at a nationally
representative sample of about 100
hospital emergency departments.While
the system reported an estimated
24,347 physical education-related
injuries in 1997, there were 62,408 in
2007. The increase was seen for both
boys and girls and across all age
groups. About one in five of the injuries
were strains or sprains of the legs,
while about one in seven were broken
arms, or arm sprains or strains. Six
sports accounted for 70% of injuries:
running, basketball, football, volleyball,
soccer, and gymnastics.
The safety commissions data indicate that cheerleading is the leading
cause of catastrophic injuriesthose
usually involving spinal cord damage
among high school and college athletes. High school cheerleading
accounted for about 73 such injuries,

according to the report by The National

Center for Catastrophic Sports Injury
Research. Dr. McKenzies study didnt
look at why physical education injuries
had increased. But she told Reuters
Health that it may be because fewer
schools have full-time nurses on staff to
help injured children. Schools may also
be packing more kids into gym classes,
making it harder for teachers to supervise them, according to Dr. McKenzie.
Just 36% of schools that require PE
classes set a maximum student/teacher
ratio, the report notes.
Dr. McKenzie says that instructors
must get comprehensive training in
injury prevention, and kids need to
get safety education as well. Schools
must also make sure that teachers
and students use all appropriate
safety equipment. But the benefits of
gym classwhich has become one of
the main strategies for fighting
obesity among young peoplefar
exceed any risks.
Source: Reuters

GOVERNMENT SEIZES SANITIZER FOR

BACTERIA PROBLEMS
Officers with the U.S. Marshals
Service have seized all skin sanitizers
and skin protectants, including ingredients and components, at Clarcon Biological Chemistry Laboratorys facility
in Roy, Utah. The Food and Drug Administration warned the public last month
not to use any Clarcon products
because they contain harmful bacteria
and are promoted as antimicrobial
agents that claim to treat open wounds,
damaged skin, and protect against
various infectious diseases. Thus far, no
cases have been reported to the FDA.
Clarcon voluntarily recalled the affected
products, marketed under several different brand names, in June 2009, following an FDA inspection that revealed
high levels of potentially diseasecausing bacteria in the products.
The inspection also uncovered
serious deviations from the FDAs regulations, including poor practices that
permitted the contamination. The
seizure by the FDA of these products,

along with their ingredients, occurred

after Clarcon failed to promptly destroy
them. The FDA said it is protecting the
public by preventing these products from
entering the marketplace. Deborah M.
Autor, director of the FDAs Center for
Drug Evaluation and Research Office of
Compliance, had this to say:
The FDA is committed to taking
enforcement action against firms
that do not manufacture drugs in
accordance with our current good
manufacturing practice requirements.
Clarcon has produced over 800,000
bottles of these products and distributed them in several regions of the
country since 2007. The FDA says consumers should not use any Clarcon
products and should dispose of them
in their household trash. Analyses of
several samples of the topical antimicrobial skin sanitizer and skin protectant products revealed high levels of
various bacteria. The FDA warns that
some of these bacteria can cause
opportunistic infections of the skin and
underlying tissues. Such infections may
need medical or surgical attention and
may result in permanent damage,
according to the FDA.
Source: ABC News

ROSS STORE, INC.S AGREES TO PAY

$500,000 CIVIL PENALTY
According to the U.S. Consumer
Product Safety Commission, Ross Stores
Inc., of Pleasanton, Calif. has agreed to
pay a civil penalty of $500,000. The
penalty settlement, which was provisionally accepted by the Commission,
resolves CPSC staff allegations that
Ross knowingly failed to report to
CPSC immediately, as required by
federal law, that childrens hooded
sweatshirts it sold had drawstrings at
the neck. Childrens upper outerwear
with drawstrings, including sweatshirts,
pose a strangulation hazard to children
which can result in serious injury or
death. CPSC and the sweatshirts
importers have recalled the products.
In February 1996, CPSC issued draw-

www.JereBeasleyReport.com

35

string guidelines to help prevent children from strangling or getting entangled in the neck and waist drawstrings
in upper outerwear, such as jackets and
sweatshirts. In May 2006, CPSCs Office
of Compliance announced that childrens upper outerwear with drawstrings at the hood or neck would be
regarded as defective and as creating a
substantial risk of injury to young children.
Federal law requires manufacturers,
distributors, and retailers to report to
CPSC immediatelywithin 24 hours
after obtaining information reasonably
supporting the conclusion that a
product contains a defect which could
create a substantial product hazard,
creates an unreasonable risk of serious
injury or death, or fails to comply with
any consumer product safety rule or
any other rule, regulation, standard, or
ban enforced by CPSC.
Source: Consumer Product Safety Commission

CPSC TO ENFORCE NEW REQUIREMENTS

FOR CHILDRENS PRODUCTS
On August 14, 2009, new requirements of the Consumer Product Safety
Improvement Act (CPSIA) took effect.
These are aimed at making childrens
products safer and increasing consumer confidence in the marketplace.
The U.S. Consumer Product Safety
Commission is educating domestic and
overseas manufacturers, importers, and
distributors of childrens products and
other consumer goods of these important new safety requirements. CPSC
Chairman Inez Tenenbaum, who says
the CPSIAs new requirements will help
protect families, had this to say:

Lead Content: The limit for lead in

childrens products drops from 600
parts per million (ppm) to 300 ppm.
After August 14th, it will be unlawful
to manufacture, import, sell, or offer
for sale, a childrens product that has
more than 300 ppm of lead in any
part (except electronics) that is
accessible to children.
Lead in Paint and Similar Surface
Coating Materials: The limit for
lead in paint and similar surfacecoating materials for consumer use
drops from 600 ppm to 90 ppm. The
lead paint limits also apply to toys
and other articles intended for children as well as certain furniture
products. Products subject to these
limits cannot be sold, offered for sale,
imported or manufactured after
August 14th unless they meet the new
lower lead limits.
Civil Penalties: Civil penalties
increase substantially to a maximum
of $100,000 per violation and up to a
maximum of $15 million for a related
series of violations. Previously, civil
penalties were a maximum of $8,000
per violation and up to a maximum
of $1.825 million for a related series
of violations.

I will ensure that these requirements are enforced vigorously

and fairly. By ensuring that toys
and other childrens products
meet strict lead limits and can be
tracked in the event of a recall, I
believe children will be better protected in their homes.

Tracking Labels: Manufacturers

must place permanent distinguishing
marks (tracking label) on any consumer product primarily intended for
children aged 12 and younger made
on or after August 14, 2009. The permanent marks must enable consumers
to ascertain basic information, including the manufacturer or private
labeler, location, the date of manufacture, and more detailed information
on the manufacturing process such
as a batch or run number. The permanent distinguishing marks must
appear on the product itself and its
packaging to the extent practicable.
You can learn more about the tracking label requirement at www.cpsc.
gov/about/cpsia/sect103.html#faqs

The requirements of the new Act,

which became effective on August 14th,
include:

Catalog Advertising: Advertising for

certain toys and games intended for
use by children from three to six

36

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years old must have warnings regarding potential choking hazards to children younger than three. The
requirement to include warnings in
Internet advertisements went into
effect on December 12, 2008. There
was a grace period for the requirement for catalogues and other printed
materials, but this grace period
expired August 9, 2009. All catalogues
and other printed materials distributed on or after August 9, 2009, regardless of when they were printed, must
include the appropriate warnings.
You can visit CPSCs Web site at
www.cpsc.gov/about/cpsia/cpsia.html
for more information about the agencys
implementation of the CPSIA.
Source: Consumer Product Safety Commission

RENTAL CAR COMPANY SOLD VEHICLES

WITHOUT AIR BAGS
One of the nations leading rental car
companies recently ordered thousands
of cars without side impact airbags in
an attempt to save millions of dollars,
then later sold the cars to buyers
without the standard safety feature,
according to a report from the Kansas
City Star. It appears that Enterprise
Rent-A-Car ordered a fleet of Chevy
Impalas without the side impact airbags
between 2006 and 2008. Although
Chevy sells Impalas with that type of
air bag as standard equipment, the
buyer has the option to opt out of it,
which Enterprise apparently did.
After renting out the vehicles, the
Star learned that St. Louis-based Enterprise turned around and sold the used
vehicles on its Web site, but failed to
make clear that the Impalas were
missing the air bags. Enterprise
defended its decision to opt out of the
air bags, stating that the needed safety
feature is not yet required by the
federal government. It was reported
that the decision saved Enterprise
$11.5 million on the roughly 66,000
vehicles. Enterprise also said it is not
the only company to buy fleets of cars
without side impact air bags.
But according to the Insurance Insti-

tute for Highway Safety, studies have

shown that side air bags with head
protection can reduce highway deaths
by up to 45%. An estimated 8,000
people were killed in side-impact collisions in 2007 alone, according to
reports. Enterprise has apologized and
pledged to rectify the situation, but the
company blamed a software glitch for
the false advertising. According to
Enterprise, 745 of the Impalas were
sold nationwide.
Source: Fox News

XXIV.
RECALLS UPDATE
The following are recent recalls that
we believe to be significant. The results
are broken them down by category.
Hopefully, this information will be
helpful to our readers.
Motor Vehicles
Volkswagen, Audi Recall
Thousands Of Vehicles

Volkswagen and Audi are recalling

16,000 new vehicles due to transmission problems causing them to
lose power or completely stall.
Government officials have been
investigating the problem since
July 17th. The affected vehicles
utilize a new type of transmission
called a direct shift gearbox (DSG)
and, in some cases, have stranded
motorists amid fast-moving traffic.
According to Clarence Ditlow of
the nonprofit Center for Auto
Safety, the problem is a classic
safety hazard. Consumers are
being stranded on freeways,
Ditlow said. Its only a matter of
time before we have consumers
being killed. Volkswagen says it
has not received any reports of
injuries or deaths.Volkswagen and
Audi say the problem is caused by
faulty temperature sensors, affecting 13,500 Volkswagen models and
2,500 Audi models.

General Motors Recalls Vehicles

GM is recalling 1,800 model year

2007 Chevrolet Kodiak, T-Series
and F-Series and H-Series passenger
vehicles equipped with 7.8L diesel
engine. The air compressor in some
of these vehicles may not build
enough air pressure to support the
air brake system. If this condition
were to occur while the vehicle
was stationary (brakes applied),
the air brakes would remain
applied and prevent the vehicle
from moving.
If the driver were to ignore these
warnings and continue to drive the
vehicle, and if there was a continued loss of pressure, the rear
spring parking brakes would automatically apply, preventing the
truck from being driven.
Dealers will inspect the air compressor for its ability to build air
pressure, and either modify the air
compressor by elimination of the
suppression valve or replace the
air compressor assembly free of
charge. The recall is expected to
begin during August, 2009. Owners
may contact Chevrolet at 1-800630-2438, GMC at 1-866-996-9463,
Isuzu at 1-800-255-6727 or at
www.GMownercenter.com.
Honda Expands Recall Of Drivers
Air Bag

A safety recall of the drivers air

bag in certain Honda vehicles is
being expanded to include more
vehicles. The recall now involves
certain 2001-2002 Honda Accords,
2001 Civics and 2002-2003 Acura
TLs. The recall is due to a potential
defect in the airbags inflation
system. Acura is Hondas luxury
brand. American Honda Motor Co.
says that 440,000 additional vehicles are included in the expanded
recall, which will require the
replacement of the drivers steering-wheel-mounted air bag inflator.
The recall initially began in November, 2008.

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In some vehicles, air bag inflators

can produce over-pressurization of
the drivers front air bag inflator
mechanism during air bag deployment. If an affected inflator
deploys, the increased internal
pressure may cause the inflator
casing to rupture. According to a
statement from Honda, metal fragments could pass through the
cloth air bag cushion material, possibly causing an injury or fatality to
vehicle occupants. Registered
owners of vehicles that potentially
contain affected inflators will
receive a recall notice in the mail
over the next few months, according to the company. Further
instructions will be given to help
schedule a repair to each vehicle.
BMW Recalls

BMW is recalling certain model

year 20062008 R1200 GS motorcycles manufactured between
August, 2006 and January 2008. The
sealing of the fuel pump control
unit housing might be insufficient
and water could intrude into the
control unit housing creating a
humid atmosphere. Under such
conditions, the fuel pump could
corrode and then fail.
Failure of the fuel pump will cause
inadequate fuel to reach the
engine and cause the engine to
stop running. A loss of engine
power without warning could
increase the risk of a crash. The
manufacturer has not yet provided
the agency with a remedy or notification schedule. Owners may
contact BMW at 1-800-831-1117.
Owners may also contact the
National Highway Traffic Safety
Administrations vehicle safety
hotline at 1-888-327-4236 (TTY 1800-424-9153), or go to www.safer
car.gov.

37

Products For Children

BabySwede LLC Recalls Bouncer
Chairs

The U.S. Consumer Product Safety

Commission has announced a voluntary recall of BabyBjrn
Babysitter Balance and BabyBjrn
Babysitter Balance Air bouncer
chairs. Consumers should stop
using recalled products immediately unless otherwise instructed.
There are about 6,500 of the chairs
which were manufactured by
BabyBjrn AB of Sweden and
imported by BabySwede LLC of
Cleveland, OH. Small, sharp metal
objects found in the padded area
of the bouncer chair can protrude,
posing a laceration hazard to children. Thus far no incidents or
injuries have been reported. The
recall involves the BabyBjrns
Babysitter Balance and Babysitter
Balance Air bouncers.These bouncing chairs for babies have a red
safety latch on the height adjustment mechanism and a plastic
footrest with the BabyBjrn logo.
The chairs were sold by baby
product retailers and various mass
merchants nationwide, online
retailers and catalogs from September, 2008 through July, 2009. The
Babysitter Balance sold for about
$170, and the Babysitter Balance
Air sold for about $190.
Consumers should immediately
stop using both Babysitter Balance
and Babysitter Balance Air bouncer
chairs and contact BabySwede LLC
for instructions on how to return
the recalled products for inspection and relabeling. If any metal
pieces are found through inspection, the consumer will be provided with a new BabyBjrn
Babysitter Balance product. For
additional information, please contact BabySwede, LLC toll-free at
(866) 424-0200 anytime, or visit
the manufacturers Web site at
www.babyswede.com.

38

Little Tikes Recalls Clubhouse

Swing Sets Due To Fall Hazard

The U.S. Consumer Product Safety

Commission has announced a voluntary recall of Little Tikes Clubhouse Swing Set. There were about
1,950 units sold. They were manufactured by Little Tikes, of
Hudson, Ohio. The recalled swing
sets did not come with assembly
directions for the swing seat
harness. The swing seat harness
assembly needs to be completed
by the consumer. The swing seats
can detach if the harness is not
assembled properly, which could
result in fall and injury during use.
Thus far no incidents/injuries have
been reported.
The Little Tikes Clubhouse
Swing Set is a plastic molded
product that features a climbing
wall, rope ladder, slide and two
swings with blue and yellow seats.
Only the blue seat model is being
recalled. The model numbers are
400V and 612398. They were sold
at various retailers including Toys R
Us and Walmart from October
2008 through March 2009 for
about $450.
Consumers should stop using
recalled swing sets immediately
until they have obtained and carefully read the assembly instructions
for the swing seat harness. Instructions can be obtained by accessing
the Little Tikes Web site or by
calling the firms hotline. For additional information, contact Little
Tikes toll free at (800) 321-0183
between 9 a.m. and 8 p.m. ET
Monday through Friday, between 9
a.m. and 2 p.m. ET Saturday, or visit
the firms Web site at www.littletikes.com
Little Tikes Recalls 1.6 Million
Toy Workshops And Trucks

Little Tikes is recalling 1.6

million toy workshops and trucks
after a toddler choked on a plastic
nail. The voluntary recall covers

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five toy models sold by Little

Tikes as far back as March, 1994,
the Consumer Product Safety Commission said. The problem involves
the bright red and blue plastic nails
that accompanied the Hudson,
Ohio-based companys Electronic
Project Workshop, the Little Handiworker Workhorse, the Home
Improvements Two-sided Workshop, the Swirlin Sawdust Workshop and the Black Pickup Truck
with Tools.
The toys were sold by major retailers including Toys R Us as well as
online at www.littletikes.com and
other websites for $25 to $100.
Consumers should immediately
take the toy nails away from young
children and contact Little Tikes
for a free replacement. Little
Tikes said in a statement that the
toys were intended for children
ages two and older. The child who
swallowed the toy part was an 11month-old boy from Goose Creek,
S.C. The plastic nailabout 3 14
inches long by 114 inch in diameter
forcefully lodged in the boys
throat. He was hospitalized and has
made a full recovery.
Some of the products are no longer
sold by the company. But the toys
may have been handed down to
new owners or sold at garage sales.
Tom Richmond, general manager
of Little Tikes Worldwide, said that
we realize Little Tikes toys are
actively played with in homes
where younger siblings reside and
for that reason believe we must do
everything possible to ensure the
safety of not only the toddler or
preschooler for whom the toy is
intended, but also for other children who may come in contact
with the toy.The CPSC said it was
also 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.

Spalding In-Ground Basketball

Hoops Recalled

About 1,700 Spalding In-Ground

Basketball Hoops have been
recalled by Russell Brands LLC, of
Alexander City,Alabama. The bolts
at the base can fail, causing the
unit to fall. This poses a risk of
serious injury to consumers.
Russell is the importer/distributor
of the hoops.

printed on the backside of the seat

next to the consumer warning
information.Circo can be found
on a label located in the front of
the seat.
Target stores nationwide sold the
seats from December 2008
through June 2009 for about $13.
Consumers should immediately
stop using the booster seat and
return the item to the nearest
Target store to receive a full
refund. For additional information,
contact Target at (800) 440-0680,
or visit the companys Web site at
www.target.com.

This recall involves Spalding inground basketball hoops with a

supporting pole and a clear backboard. The hoops were sold at MC
Sports,Academy Sports, Dunhams
Sports and other sporting goods
stores nationwide for between
$600 and $1,700.

Little Tikes Recalls Childrens

Toy Workshop Sets And Trucks
Due To Choking Hazard

Consumers should stop using the

recalled basketball hoops immediately and contact Russell Brands
for instructions on receiving free
replacement bolts. If the product is
installed in concrete, the firm will
arrange for free deinstallation,
repair and reinstallation of the
product at the consumers home.
For additional information, contact
Russell Brands at (800) 431-5827
between 9 a.m. and 5 p.m. CT
Monday through Friday or visit the
firms Web site at www.spalding.com.

Little Tikes Workshop Sets and

Trucks manufactured by Little
Tikes, of Hudson, Ohio, have been
recalled. The recalled workshop
sets and trucks have oversized,
plastic toy nails that can pose a
choking hazard to young children.
The firm has received one report
of an 11-month old boy from
Goose Creek, S.C. who choked
when the toy nail became forcefully lodged in his throat. The child
was hospitalized and made a full
recovery.

Target Recalls Circo Booster Seats

Due To Fall Hazard

The oversized, plastic toy nail is

about 314 inches long by 114 inch in
diameter and comes in red or blue
colors. It has a large round head;
about 1 ? inches below the head is
a plastic ridge, slightly smaller than
the nail head and about 1 inch in
diameter. They were sold with a
variety of Little Tikes childrens
products. The toys were sold by
various web sites such as www.littletikes.com and mass merchandise retailers nationwide, including
Toys R Us, from March 1994
through June 2009 for between
$25 and $100. Consumers should
immediately take the toy nails
away from young children and
contact the firm for a free replacement toy nail. For additional infor-

About 43,000 Circo Booster Seats

have been recalled. The seats were
imported by Target of Minneapolis,
Minn. The booster seat restraint
buckle can open unexpectedly,
allowing a child to fall from the
chair and be injured. Target has
received eight reports of the
booster seat buckles opening
unexpectedly, including three
reports of bruises. This recall
involves Circo booster seats with
manufacture date codes XJ0811,
XJ0812, XJ0901, and XJ0902. The
plastic booster seat is blue with
green trim and has white straps.
The manufacture date code is

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mation, contact Little Tikes at

(800) 791-2737, or visit the firms
Web site at www.littletikes.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.
Please tell us about it by visiting
https://www.cpsc.gov/cgibin/incident.aspx.
Jump N Jive Doorway Jumpers
Recalled By Graco Due To
Choking Hazard

Graco Childrens Products Inc. of

Atlanta, Georgia, has recalled about
2,400 Jump n Jive Doorway
Jumpers. The recalled doorway
jumpers include detachable toys
that are attached to the jumper
straps with strips of hook and loop
fabric.The strips of fabric are not
permanently attached to the toys
and can become detached during
use, posing a choking hazard. The
company has received one report
of a child removing the fabric strip
and placing it in his/her mouth. No
injuries have been reported. The
recalled doorway jumper includes
an interactive musical dance mat
and two detachable toys. The
model number, 1755544, appears
on the carton UPC label and on the
underside of the jumper tray.
The doorway jumpers were sold
from April, 2009 through July, 2009.
The jumpers were sold at Babies R
Us and other childrens specialty
retail stores nationwide and online
from Amazon.com for about $55.
Consumers should immediately
stop using the recalled product
and remove and discard the
detachable toys and the attaching
fabric strips and call the manufacturer for a replacement set of toys.
After the toys and fabric strips are
removed, consumers can continue
to use the jumper and interactive
musical dance mat. For more information, contact Graco at (800)
345-4109 or visit the companys
Web site at www.gracobaby.com.

39

Burley Child Trailers Being

Recalled

Child trailers designed to be

hitched to bicycles are being
recalled because a defect can
cause one of the trailers wheels to
fall off. The Consumer Product
Safety Commission has said that
the recall covered about 2,700
trailers made by Burley Design LLC
of Eugene, Ore. The recall covers
2009 dlite ST and Solo ST twowheeled child trailers with serial
numbers starting with D939 or
D948. The serial number is located
behind the seat on the lower left
rear frame tube. The products have
dlite ST or solo ST on the cover.
The commission said a sleeve
inside the axle assembly can
loosen, causing one wheel to come
off the trailer, risking injury to the
child or bike rider. The commission
said there have been no reports of
incidents or injuries. The trailers
were sold by bike and specialty
outdoor retailers nationwide and
on the Internet from November,
2008 through June, 2009 for
between $550 and $600. They
were manufactured in the Philippines. Consumers should stop
using the trailers and contact
Burley for a free repair kit or help
in finding a retailer to assist with
free repairs.
Household Products
Frigidaire Recalls Clothes
Washers Due To Fire Hazard

The U.S. Consumer Product Safety

Commission announced a voluntary recall of Crosley, Frigidaire,
Kelvinator, Kenmore,Wascomat,
and White-Westinghouse clothes
washers. Consumers should stop
using recalled products immediately unless otherwise instructed.
There were about 35,000 units sold.
The distributor was Frigidaire of
Cleveland, Ohio. An internal defect
in the washers drain pump can

40

cause heat to build up, posing a

fire hazard to the consumer. Thus
far no incidents or injuries have
been reported. This recall involves
the Crosley, Frigidaire, Kelvinator,
Kenmore,Wascomat, and WhiteWestinghouse top load washers,
3.1 cubic foot front load washers
and laundry centers.

scrapers were sold at SherwinWilliams Paint stores, Duron Paint

stores, MA Bruder Paint stores,
United Paint Stores, Norfolk Paint
Stores, Mercury Paint Stores, Old
Quaker Paint Stores, Flex Bon Paint
Stores and Columbia Paint Stores
nationwide from February, 2009
through June, 2009 for about $9.

Sears and other retailers nationwide sold the products from February, 2009 through May, 2009 for
between $300 and $1100. They
were manufactured in the United
States. Consumers should immediately unplug and stop using these
machines. Consumers should contact Frigidaire or Sears (if unit was
purchased there) to schedule a
free repair. For additional information, contact Frigidaire at (800)
734-4519 between 8 a.m. and 11
p.m. ET Monday through Saturday,
or visit the companys Web site at
www.laundrypumprecall.com. For
consumers who purchased their
product at Sears, call Sears toll free
at (888) 549-5870 between 8 a.m.
and 10 p.m. ET Monday through
Saturday, or visit Sears Web site at
www.sears.com.

Consumers should stop using the

recalled scraper immediately and
return it to any Sherwin-Williams
store or the place of purchase for a
free replacement. For additional
information, contact SherwinWilliams at (888) 304-3769 between
9 a.m.and 5 p.m.ET Monday through
Friday or visit the companys Web
site at www.sherwin-williams.com.

Sherwin-Williams Recalls Purdy

Scrapers Due To Laceration
Hazard

The U.S. Consumer Product Safety

Commission has announced a voluntary recall of Purdy 2 12 " 4-Edge
Scrapers. About 76,000 units were
manufactured in China by Allway
Tools Inc. of Bronx, New York. The
recalled scrapers body can break
away from the handle when struck
against a hard object. This poses a
laceration hazard to users. The
manufacturer has received four
reports of the scrapers body separating from the handle. There have
been no reported injuries.
The recalled scraper is a 212 " wide
steel tool with a four-sided edge.
The handle has a soft black grip
with Purdy printed in red letters
on the side of the handle. The

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Ross Stores Recalls Marble Top

Plant Stands

About 1,800 Marble Top Plant

Stands have been recalled by the
importer, Ross Stores Inc., of
Pleasanton, Calif. The marble top of
the plant stand can detach from
the base and fall onto consumers,
posing a risk of injury. Ross Stores
has received two reported incidents in which the marble top fell
off the plant stands base and
bruised consumers. The plant
stands have gray marble tops and
black wrought iron bases. They
were sold in three sizes: small (24
inches tall), medium (28 inches
tall), and large (32 inches tall).
The plant stands were sold exclusively at Ross Stores nationwide
between March, 2009 and June,
2009 for between $15 and $27.
Consumers should immediately
stop using these plant stands and
return them to any Ross Store for a
full refund. For additional information, contact Ross Stores at (800)
305-0510 anytime, or visit the
stores Web site at www.rossstores.com.
Trimmer/Edgers Recalled Due To
Laceration And Burn Hazards

Black & Decker (U.S.) Inc. of

Towson, Md. has recalled about

200,000 Black & Decker GH1000
Grasshog XP String Trimmer/
Edgers. The trimmer/edgers spool,
spool cap and pieces of trimmer
string can come loose during use
and become airborne projectiles,
posing a serious laceration hazard
to the user, as well as bystanders.
The trimmer/edgers can also overheat, posing a burn hazard to consumers.
At the time of the original
announcement in July 2007, Black
& Decker had received more than
700 reports of incidents, including
58 reports of injuries.To date, the
company has received over 100
additional injury reports, including
ten that required medical attention
and others in which minor injuries
such as bruises and lacerations
were reported. There were also
reports of minor property damage,
including broken windows.
The Black & Decker GH1000
Grasshog XP String Trimmer/Edgers
are electric-powered.Trimmer/edgers
with date codes 200546 through
200645 (representing manufacture dates of November 14, 2005
through November 6, 2006) are
included in this recall. The date
code is located on the underside of
the trimmer/edgers handle. Only
tools with black spool caps are
included in the recall. Those with
orange spool caps are not included
in the recall.
Consumers should stop using the
string trimmer/edgers immediately
and contact Black & Decker for a
free repair kit. For additional information, contact Black & Decker
toll-free at (888) 742-9158 between
8 a.m. and 5 p.m. ET Monday
through Friday or visit the
companys Web site at www.blackand
decker.com.

Black & Decker Coffeemakers

Recalled By Applica Consumer
Products Due To Burn Hazard

About 9,800 Black & Decker Thermal

Coffeemakers have been recalled.
The distributor of the coffeemakers is Applica Consumer Products
Inc., of Miramar, Fla. The coffeemakers can overheat and melt,
posing a burn hazard to consumers.
The company has received one
report of a coffeemaker melting. No
injuries have been reported. This
recall involves Black & Decker 8cup programmable thermal coffeemakers. Model number TCM
1000IKT is printed on the rating
plate on the bottom of the coffeemaker.Wal-Mart and small retail
stores nationwide sold the coffeemakers from April, 2008
through July, 2009 for between $50
and $65. Consumers should immediately stop using the coffeemakers and contact Applica to receive
a free replacement. For additional
information, contact Applica at
(866) 699-4595, or visit the companys Web site at www.acpre
call.com.
DVD Players Recalled By
Wal-Mart Due To Fire Hazard

About 1.5 million Durabrand DVD

Players have been recalled. The
players were imported by Wal-Mart
Stores Inc., of Bentonville,Ark. The
DVD players can overheat, posing a
fire and burn hazard to consumers.
Wal-Mart has received 12 reports
of DVD players overheating, five of
which have resulted in fires that
caused property damage. No injuries
have been reported. This recall
involves a single DVD player with a
remote control. The device is silver
colored and has a U-shaped opening
at the top to insert the DVD. The
players were sold exclusively at
Wal-Mart stores nationwide from
January, 2006 through July, 2009 for
about $29. They were manufactured in China. Consumers should
immediately stop using the product
and return it to the nearest Wal-

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Mart for a full refund. For additional

information, contact Wal-Mart
Stores at (800) 925-6278, or visit
the companys Web site at
www.walmartstores.com.
Other Products
Wii Battery Recharge
Stations Recalled Due To
Burn And Fire Hazards

About 220,000 Psyclone Essentials

and React Wii 4-Dock Battery
Recharge Stations have been recalled by distributor Griffin International Cos., Inc. of Minneapolis,
Minn. The battery pack can overheat, posing a burn or fire hazard
to the consumer. Six incidents of
overheating have been reported to
the manufacturer. Two consumers
reported minor burns to the hand.
The Wii 4-Dock Recharge Station
includes a white docking station
with four recharge stations and a
four rechargeable battery pack.
Brand names are on the front of
the packaging and the model
numbers, Psyclone (PSE6501) and
React (RT530), can be found on
the bottom side of the product.
The Psyclone Essentials brand was
sold at Target, Toys R Us and
Amazon.com nationwide; React
was sold at Best Buy stores nationwide. Both were sold from January,
2008 through July, 2009 for about
$50. Consumers should immediately stop using these recharge stations
and contact Griffin International to
obtain information on how to
return the product and receive a
free replacement. For additional
information, contact Griffin International toll free at 888-344-4702,
email productsafety@psyclonegamer.
com or visit this Web site www.psy
clonegamer.com/Wii4Dock.
Homelite, Husky And Black Max
Generators Recalled Due To Fire
Hazard

Homelite Consumer Products Inc.

of Anderson, S.C. has recalled about
51,750 Homelite, Husky and Black

41

Max Brand Generators. The fuel

gauge can leak excessive amounts
of gasoline, posing a fire hazard to
consumers. This recall involves
Homelite and Husky brand generators sold exclusively at Home
Depot stores and Black Max brand
generators sold exclusively at
Sams Club stores. Affected generators include Homelite models
HG3500, HG3510, HG5700 and
HG5700R, Husky models HU3650,
HUCA5700 and HUCA7000, and
Black Max models BM10700A,
BM10700B, BM10711A,BM10700DG,
BM10700R, BM10700BR & BM10
722G. Generators included in this
recall have manufacturing date
codes between BML306-BMM151,
CHL122-CHM151 and CRL153-CRM
059. The model number and manufacturing date code are included
on the data label located on the
top or side of the generator
engine. Products with a green dot
on the outside of the package or a
silver dot on the fuel gauge face
are not included in the recall.
The generators were sold by Home
Depot and Sams Club stores
nationwide from July, 2008
through May, 2009 for between
$480 and $1,600. Consumers
should immediately stop using
their generators and contact
Homelite Consumer Products Inc.
(Homelite and Husky brands only)
or Black Max (Black Max brands
only) for a free repair kit. For additional
information
regarding
Homelite or Husky brand generators, contact Homelite Consumer
Products, Inc. at (800) 242-4672, or
www.homelite.com. For additional
information regarding Black Max
brand generators, contact Black
Max at (800) 726-5760 or visiting
www.blackmaxtools.com.
Ridgid Table Saws Sold
Exclusively At Home Depot
Recalled By One World
Technologies Due To Laceration
Hazard

About 3,000 Ridgid 10-inch Table

42

Saws distributed by One World

Technologies Inc. of Anderson, S.C.
have been recalled. The table saws
arbor shaft can fail when used with
a stacked blade set (commonly
known as a stacked dado set),
which is used to cut grooves. The
stacked blade set can be ejected
from the saw, posing a potential
laceration hazard to consumers.
One World Technologies has
received three reports of shafts
failing when used with a stacked
dado set. No injuries have been
reported.
This recall involves Ridgid 10-inch
table saws, model R4511. The
recalled saws have manufacturing
date codes between CD0829 and
CD0837. The model number and
manufacturing date code are
located on a metal plate on the
rear of the cabinet. Products with
an Arbor Inspected sticker
directly above the plate or an
orange square on the outside of
the package are not included in
the recall. The saws were sold
exclusively at: Home Depot stores
nationwide from January, 2009
through July, 2009 for about $600.
Consumers should immediately
stop using the recalled table saw
and contact One World Technologies to schedule a free on-site
repair. For additional information,
contact One World Technologies
toll-free at (866) 539-1710 or visit
www.ridgid.com.

XXV.
FIRM ACTIVITIES
EMPLOYEE SPOTLIGHTS
LEIGH ODELL
Leigh ODell returned to the firm in
May of 2005 to work in our Mass Torts
section. Leigh was a lawyer with the
firm from 1994 through 1998, but she
left in 1998 to take a position with
Focus on the Family. Under the leadership of Dr. James C. Dobson, Leigh

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served Focus on the Family as Director

of Womens Ministries. In that capacity,
she was responsible for Renewing the
Heart, a nation-wide series of one-day
arena events designed to encourage
and refresh women through worship
and the Word of God.
Leigh came back to the firm for a
short time in 2000, before joining
AnGeL Ministries, the ministry of Anne
Graham Lotz, daughter of Dr. Billy
Graham. As Director of Events, Leigh
was responsible for the development
and execution of Just Give Me Jesus, a
series of free, two-day revivals. Since
the year 2000, twenty-three revivals
have taken place throughout the
United States and the world, including
South Korea, Paraguay, Puerto Rico and
the United Kingdom. Just Give Me Jesus
is devoted to the exaltation of Jesus
Christ and is designed to draw Gods
people into a fresh encounter with
Jesus Christ through the preaching of
Gods Word, prayer and worship.
Leigh served as a law clerk for the
Honorable Ira DeMent, United States
District Judge for the Middle District of
Alabama from 1993-1994.While at the
University of Alabama School of Law,
Leigh served as Managing Editor of the
Alabama Law Review. Leigh, originally
from Prattville,Alabama, is the daughter
of the late Billy ODell and Beverly
ODell Malone. Leigh enjoys spending
time with her large family as well as
playing tennis, cycling and participating in other sporting activities. Leigh is
a tremendous lawyer and we are
blessed to have her back with us.
SHARLA DONOHOE
Sharla Donohoe, who has been with
the firm since January 2006, works as a
Legal Assistant to Jay Aughtman in our
Consumer Fraud Section. In this position, she assists on discovery matters
and helps with client documents.
Sharla is also working on all aspects of
the Morgan Keegan securities cases,
which includes helping to prepare the
cases for arbitration before FINRA. She
also works for Scarlette Tuley, another
lawyer in the section, who handles
securities cases.
Sharla and Bill Donohoe were

married in July 2002 and they have a

daughter, Amber Lee, who just started
first grade at Prattville Primary. When
Sharla is not working, she spends her
time at the dance studio with Amber
who is on a competition dance team.
The family attends St. Josephs Catholic
Church in Prattville. They enjoy lounging around the pool, yard work and
NASCAR.When the Donohoes have free
time, they travel between Mississippi
and Louisiana to see family. We are most
fortunate to have Sharla with us. She is a
very good and dedicated employee.
KATHERINE ETHEREDGE
Katherine Etheredge, who has been
with the firm for three years, serves as a
Staff Assistant in the Mass Torts Section.
She currently works on Vioxx and
Medtronic Lead Wire cases. She has
worked on different parts of the Vioxx
litigation from initial client profile
forms to the current settlement
process. In the Medtronic Lead Wire
cases she keeps the clients updated on
their current case status and other dayto-day staff assistant duties. Katherine is
originally from Springville, Alabama,
where her parents currently live. She
moved to Montgomery in 2001 to
attend Huntingdon College.
Katherine graduated from Huntingdon College in 2005 with a Bachelor of
Arts degree in Business Administration
with a concentration in Accounting
and a minor in Communication Studies.
She received the Montgomery Chapter
of Certified Public Accountants Outstanding Achievement award while
attending Huntingdon. Katherine was a
member of the Omicron Delta Kappa,
Lambda Pi Eta Communication Studies
Fraternity, and Sigma Beta Kappa International Business Fraternity. She was
also a member of Circle K International
where she served in many positions
throughout her four years of membership including being an International
Officer. Currently, she stays active volunteering with many projects throughout her community. Katherine enjoys
family time, scrapbooking, and cooking.
Katherine is a very good employee and
is an asset to the firm.We are fortunate
to have her with us.

KATHLEEN HENRY
Kathleen Henry, who came to the
firm in July of 2007, is a staff assistant
for Frank Woodson in our Mass Torts
Section. She is currently working on
pain pump cases. Her duties include
intakes, ordering records and assisting
in communications with clients. The
work in Mass Torts is complex, time
sensitive and quite demanding.
Kathleen has a 15-year-old daughter,
Keyanna, who attends G.W. Carver High
School. She also has three dogs: Poppi,
Alex, and Mordecai. Kathleen is proud
to say her mother, Fannie Henry, is a
cancer survivor with two bone marrow
transplants under her belt. Kathleen is a
formally educated chef, and has worked
in the legal field for six years and said
she loves what she does. She also likes
to read novels, especially those written
by Patricia Cornwell and John Grisham.
Katherine is a very good employee
who works hard and even listens to
Franks Crimson Tide tales.We are fortunate to have her with us.

assisted Kay Dickey, a lawyer in the Universitys paralegal studies program.

Before coming with our firm, Dana
worked at GKN Aerospace as a contracts administrator assisting on the
Honda project. She is currently assisting Janet Little with Aart Thatt Workss,
Inc., an Alabama non-profit organization, which offers a wide variety of educational and scholarship programs to
assist youth in art appreciation, the
building of an enrichment center, and
helping those children regardless of
their economic or social background.
Dana, a native of North Carolina,
received a degree in Liberal Arts after
attending Wingate College in North
Carolina and Albuquerque Community
College in New Mexico. She has two
daughters: Shelby, age 15, who attends
Loveless Academic Magnet Program;
and Leslie, age 12, who attends Floyd
Middle Magnet School. Dana is a very
good employee and we are fortunate to
have her with us.

DA NA SIMON
Dana Simon, who came to work for
the firm in May 2008, currently serves
as a Legal Assistant and Secretary to
Parker Miller in our Toxic Torts Section.
Since Parker is assigned to work on the
firms Hot Fuel cases, along with Rhon
Jones, Dana helps oversee the Offensive Committee teleconference coordination for approximately 15 other
Plaintiffs law firms located in 12 other
states. Multiple lawsuits have been filed
against big oil companies like ExxonMobil, Chevron, BP and Citgo. Dana
also assists Parker in Subsidence cases
against Alabama Power and a number
of mining companies. She makes
initial contact with new clients, assists
in research, handles correspondence,
calendar deadlines, document review
and many other tasks.
After Dana served as an enlisted
member of the United States Air Force,
she was employed as a paralegal/office
manager for ten years in several private
practice Montgomery law firms. She
has served as both an advisor and
office manager trainer to several South
University paralegal students, and

GIBSON VANCE NAMED PRESIDENT-ELECT OF

AAJ
As mentioned last month, Gibson
Vance, one of the lawyers in our firm,
has been elected President-Elect of the
American Association for Justice. His
selection was announced at the organizations annual convention. AAJ is dedicated to preserving the civil justice
system and making sure that powerful
special interests are held accountable
when they engage in misconduct or
wrongdoing. As an executive officer of
AAJ, Gibson will serve in an important
position of leadership in the organizations effort to educate the publicas
well as legislators on both the state and
national levelson issues of critical
importance to consumers and our
nations judicial system.
In our firm, Gibson specializes in personal injury litigation and consumer
fraud cases. He has been active in the
Montgomery County Bar Association,
serving as its President in 2005. He also
served recently as President of the
Montgomery County Trial Lawyers
Association and the Alabama Civil

www.JereBeasleyReport.com

43

Justice Foundation. The Pike County,

Alabama native also served in 2008 as
President of the Alabama Association
for Justice. Gibson was recently
appointed to the Alabama Judicial Compensation Committee by Alabamas Lt.
Governor, Jim Folsom.
Gibson has been active in the American Association for Justice for a number
of years, and has served on several key
committees within the organization,
including the National Finance Committee, Public Affairs Committee,
Budget Committee and Membership
Oversight Committee. He was recently
presented the Joe Tonahill award by
AAJs New Lawyers Division for his outstanding service to the civil justice
system. Gibson had this to say about his
election:
It is a great honor to serve an
organization of trial attorneys
that represents individuals who
have been injured by the misconduct and negligence of others. Its
our mission to ensure that everyone can get justice in the courtroom, no matter how small their
stature and how powerful the
interest they may be taking on.
We are extremely pleased to have
Gibson so actively involved in organizations at both the state and national levels
that are dedicated to serving the needs
of people. As you may know,AAJ is the
worlds largest trial bar. You can visit
www.justice.org for more information.

A MESSAGE FROM ALABAMA STATE BAR

PRESIDENT TOM METHVIN
In the next several issues we will
carry a series of messages from Tom
Methvin, who is currently serving as
Alabama State Bar President. Tom has
set priorities for what he wants to
accomplish during his term in office.
Access to JusticeNow More
Than Ever

It is estimated that about 25% of

Alabamas population, or about 1
million people, live in poverty. In
the current economic climate, it is

44

likely that these numbers may

grow.

in ensuring true access to justice

for all.

Research indicates low-income

Alabama households experience
more than 700,000 legal issues
on average per year. Common
civil problems include consumer
issues like creditor harassment
and bankruptcy, as well as issues
involving family law, housing,
health and unemployment. With
no money for legal services,
where will these people turn for
help?

Information in this article is

excerpted from the Presidents
Message published in the September
issue of The Alabama Lawyer. For more
information about Access to Justice,
you can read the complete article
online at www.alabar.org.

To address this problem, the

Access to Justice Commission was
established by order of the
Alabama Supreme Court. Its goal
is to serve as a coordinating
entity for the legally underserved,
the legal community, social
service providers and the private
and public sectors. The Alabama
State Bar works in cooperation
with the Commission to find solutions to meet the legal needs of
Alabamas poor. Together, we are
looking for creative methods to
fund and deliver access to justice.
It is a priority of my term as President of the Alabama State Bar to
emphasize this need, and to
encourage all Alabama lawyers to
participate in these efforts. There
is still much to do, and Alabama
is still at the bottom of the list
when it comes to funding access
to justice. Even if we double our
current funding, were not even
close to providing true, full
access to justice for a person
living in poverty.
Our intention is not to reach the
national average, or fall somewhere in the middle. Our goal is
to create the best access to justice
system in the country for the provision of civil legal assistance to
the poor. Its going to take all of
us, working together, to accomplish this. It is our opportunity,
and our responsibility, to be a
part of making Alabama a leader

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CHILDREN IN CARS SHOULD BE PROPERLY

BUCKLED UP
Its been said by many that children
are our countrys most precious
resource and I totally agree with that
statement. We allparents and caregivershave a responsibility to keep
Americas children safe. Each year, thousands of children are tragically injured
or killed in automobile crashes. For
children ages three-six, and eight-14,
this is the leading cause of death. Its
very hard to overstate the toll this takes
on families. Together, we can put an
end to this suffering.
September 12th18th is National Child
Passenger Safety Week, beginning with
National Seat Check Saturday on September 12th. There will be hundreds of
free child seat inspection stations set
up across the country. Our firm is
encouraging all parents and caregivers
to take advantage of this service and
ensure that their children are getting
the very best protection.
We at Beasley Allen are committed to
working closely with our partners and
safety advocates to help reduce the
number of young lives lost on our roadways. Our goal is to educate parents and
caregivers about how to properly install
and use safety restraints. In recognition
of these efforts, Montgomery Mayor
Todd Strange will present a proclamation declaring Child Passenger Safety
Week in Montgomery September 12th
18th, and Seat Check Saturday in Montgomery, on September 12th.
Today, all 50 states, the District of
Columbia and our territories have laws
requiring the use of child safety seats,
booster seats and seat belts for children
traveling in motor vehicles. These laws

were enacted because of the tremendous safety benefits they provide. We

know that child restraints help save
lives and reduce injuries.We also know
that they are most effective when
installed and used correctly. Sadly, three
out of every four child restraints are
not properly used.We must join forces
with others to prevent injuries and
deaths on our highways. Using seat
belts and doing so properly is a step in
the right direction.

sented a proclamation declaring Meso

thelioma Awareness Day in Montgomery.
Current statistics show as many as
3,000 people are diagnosed with
mesothelioma in the United States each
year, and 10,000 Americans die from
asbestos-related diseases.

XXVI.
SPECIAL
RECOGNITIONS

BEASLEY ALLEN RECOGNIZES

MESOTHELIOMA AWARENESS DAY
September 26, 2009, has been designated as Mesothelioma Awareness Day.
Our firm is participating in a series of
special activities in recognition of this
event beginning September 21st, including a radio campaign featuring public
service announcements and on-air
interviews. Mesothelioma is a deadly
cancer that affects the lining of the
lungs or, more rarely, the lining of the
abdomen and/or the heart. There is
only one way to develop this type of
cancerexposure to asbestos, and
thats most significant.
Our firm has a web site, www.my
Meso.org, that provides a mesothelioma and asbestos awareness outreach
program. Throughout the week leading
up to Mesothelioma Awareness Day, the
web site will feature the personal
stories of those affected by mesotheliomasome of them patients, others
caregivers, and some who have lost a
loved one to this devastating and as-yet
incurable disease.
Since 2008, myMeso.org has provided a forum to connect people
affected by mesothelioma through an
active blog-based web site and handson activities. Outreach efforts were
expanded in 2009 to include contributions to help support mesothelioma
research through the Mesothelioma
Applied Research Foundation (Meso
Foundation).
Governor Bob Riley has presented a
proclamation declaring September 26th
as Mesothelioma Awareness Day in
Alabama, and, at the local level, Montgomery Mayor Todd Strange also pre-

REV. JOSEPH LOWERY AWARDED THE

PRESIDENTIAL MEDAL OF FREEDOM
Rev. Joseph Lowery, a true American
hero, was presented the Presidential
Medal of Freedom, the nations highest
civilian honor, by President Barack
Obama last month. Rev. Lowery, a native
of Huntsville,Alabama, co-founded the
Southern Christian Leadership Conference with Dr. Martin Luther King Jr. He
was an early leader of the civil rights
movement and is considered to be a
civil rights icon.You will recall that Rev.
Lowery gave the benediction at President Obamas inauguration.
As you may know, President Harry S.
Truman established the Medal of
Freedom in 1945 to recognize civilians
for their efforts during World War II.
President John F. Kennedy reinstated
the medal in 1963 to honor distinguished service. The following is the
White House statement concerning
Rev. Lowery:

around the world.The United States

proudly honors this outstanding
leader.
We at Beasley Allen are very proud of
Rev. Lowery, a great American, who has
accomplished lots of good things for
his fellow man. He definitely paid his
dues during some trying times in our
country, but this man never gave up the
good fight. Rev. Lowery is a deserving
recipient of this high honor. God has
blessed this man!

XXVII.
FAVORITE BIBLE
VERSES
Linda Rush, who is the biggest Elvis
Presley fan in the country, sent in her
favorite Bible verse which is set out
below. Linda also suggested that we
should include 2 Chronicles 7:14 in
each issue of the Report from now on.
Linda pointed out that God wants to
bless this nation, but we have to seek
Him and His ways and allow Him to
live through us. That is very true and I
need to be reminded of that truth from
time to time. Linda and her husband
Jim attend St. James United Methodist
Church and are my very good friends.
For God so loved the world that
He gave His only begotten Son,
that whoever believes in Him
should not perish but have everlasting life.
John 3:16

Rev. Joseph E. Lowery has marched

through life with faith and purpose,
carrying with him the legacy of a
movement that touched Americas
conscience and changed its history.
At the forefront of the major civil
rights events of our timefrom the
Montgomery bus boycott to protests
against apartheidhe has served
as a tireless beacon for nonviolence
and social justice. As a pastor and
civil rights advocate, he co-founded
the Southern Christian Leadership
Conference and championed the
cause of peace and freedom

James Lee Ford, Sr., a very good

lawyer from Atlanta, Georgia, sent in
the following verses. Jim says he
learned to trust God very early in his
legal career and that is definitely a good
thing.

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The fear of the LORD is the beginning of wisdom; all who follow
his precepts have good understanding. To him belongs eternal
praise.
Psalm 111:10 (NIV)

45

The fear of the LORD is the beginning of knowledge, but fools

despise wisdom and discipline.

XXVIII.
CLOSING
OBSERVATIONS

Proverbs 1:7 (NIV)

James F. (Doc) Holliday, who is from
Sebring, Florida, sent in his favorite
verse. For those of us who sometimes
are prone to be concerned and worry,
this message explains very well that
turning over our cares and concerns to
our Heavenly Father is the only answer.
Therefore I tell you, do not worry
about your life, what you will eat
or drink; or about your body,
what you will wear. Is not life
more important than food, and
the body more important than
clothes? Look at the birds of the
air; they do not sow or reap or
store away in barns, and yet your
heavenly Father feeds them. Are
you not much more valuable
than they? Who of you by worrying can add a single hour to his
life?
Matthew 6:25-27 (NIV)
My good friend Joe Pate, who now
serves as an associate Athletic Director
at North Carolina State University, sent
in his favorite Bible verse. Joe, who is
originally from Dothan, coached football at the school before moving into
administration. He is also one of the
best turkey hunters in the country and
a very good man.
Be not deceived; God is not
mocked; for whatsoever a man
soweth, that shall he also reap. For
he that soweth to his flesh shall of
the flesh reap corruption; but he
that soweth to the Spirit shall of
the Spirit reap life everlasting.
And let us not be weary in well
doing; for in due season we shall
reap, if we faint not. As we have
therefore opportunity, let us do
good unto all men, especially
unto them who are of the household of faith.
Galatians 6:7-10

46

The second of the four-part series by

Dr. John Ed Mathison is set out below.
We really appreciate John Ed doing this
for our readers. I have always been big
on setting priorities and found very
early in my legal career that it is
absolutely essential. Setting priorities is
also very important in our personal
lives, especially when it comes to
family. John Eds second article comes
at a time when many Americans are
looking for answers to problem areas in
their lives. Lets see what he has to say.
First Things First
The first lesson of life is to know
what comes first in life. The problems of life occur when we put
second things first and first things
second. Misappropriated priorities
create havoc with life.
A flight instructor in Colorado
Springs almost lost his life when
he forgot what to do first. He is a
retired Air Force colonel and has
decades of experience as a flight
instructor. When giving a flying
lesson last week he forgot about
the first lesson. He didnt check the
gas gauge!
There are a lot of important
aspects to teaching a student to
flythe first lesson ought to be to
check the gas gauge. The instructor had a student flying with him.
They ran out of fuel near the end
of the 45-minute lesson. He miraculously was able to bring the
single engine Aviat Husky to a
bumpy but safe landing in a field.
You can imagine how embarrassed the instructor is. He is the
instructor!
Checking the gas gauge first is
very important in life. To get
ready to cut the grass, it is good to
know how much gas is in the
lawn mower. If you run out of

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gas, its not detrimental but it is

annoying. When you get in the
car, check the gas gauge. If you
run out of gas in a car, it probably wont be a life/death experience, but it does cause a lot of
inconvenience. But when you get
in an airplaneit is a matter of
life and deathnot inconvenience or annoyance.
Jesus said that the first life lesson
is to love God with all your heart,
mind, soul, and strength. The
second life lesson falls in line with
that as we love our neighbors as
ourselves. Now missing some
lessons might just be an inconvenience or annoyance. Missing
the number one life lesson is a
matter of life and deathnow
and forever.
I know the instructor was probably busy and anxious to teach the
lesson. I know most of us stay
very busy in todays world. We
have got a lot to do. It is easy to
overlook the importance of the
most important thingchecking
the gas gauge. In life it is easy to
unintentionally sacrifice the most
important thing for merely
helpful and beneficial things.
I am going to check my priorities.
I dont want to give primary
attention to secondary priorities. I
must constantly look at my life to
be sure that my first priority is
loving God with everything I
have. Everything else comes secondary. The main thing is to keep
the main thing the main thing
whether you are talking about
flying or living.
If you would like to thank John Ed
for contributing this timely message for
our readers, you can do so by writing
him at Dr. John Ed Matthison, JAM Executive Suite 4, 4131 Carmichael Road,
Montgomery,AL 36106.

A LIVING LEGEND FROM GEORGIA

Last month I was with the legendary
lawyer, Bobby Lee Cook of Summerville, Georgia, at a function in Tennessee. Bobby Lee, who is widely
recognized as one of the truly outstanding trial lawyers in America, has been
featured in almost every legal publication in the country over his distinguished career. As many of you may
know, the television series Matlock was
said to have been based on Bobby Lee
Cooks colorful life and law practice.
The only difference in the TV lawyer
and Bobby Lee is that the Georgia

lawyer is much better than Matlock

ever was. Bobby Lee is a living legend
and still going strong.

cific mandate. I can think of no better

ending for this part of the Report.
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
I will hear from heaven, and will
forgive their sin and heal their
land.

XXIX.
PARTING WORDS
I am going to do exactly as my good
friend Linda Rush suggested and set
out the specific order given by God to
His chosen people. In fact, I plan on
doing this at the end of each Report
until such time as Christians in this
country collectively obey this very spe-

2 Chronicles 7:14
May God continue to bless you, your
families, and the United States of
America.

To view this publication on-line,

add or change an address,
or contact us about this publication,
please visit our Website: BeasleyAllen.com

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

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for over
30 years.
Jere
Locke
Beasley,
founding
shareholder
of need
the itlaw
Beasley,

Allen, Crow,
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. Beasleys law firm,
established in 1979 with the mission of helping those who need it most, now
employs 44 lawyers and more than 200 support staff. Jere Beasley has always
been an advocate for victims of wrongdoing and has been helping those who need
representation is made that the quality of services to be performed is greater than the quality of legal services performed by other lawyers.
it most for overNo30
years.