July 2021 - Beasley Allen Law Firm
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July 2021
I. been on a quest to secure signatures from leaders in
every state. Alabama State Supreme Court Chief Jus-
tice Tom Parker is one of the many Alabamians who
CAPITOL OBSERVATIONS have signed the tribute, which was notarized on Na-
tional Constitution Day in September 2020. There
are over 190 signatures from U.S. citizens reflecting
The Goal: A More Perfect Union diversity in race, religion, politics, age, gender and
America is at a crossroads today, and we are in a battle vision for the future. I am proud to have been an
to save our democracy. Recently Flag Day was celebrated early signer.
in our country, and it should have made us take stock
A five-year master strategy will involve engaging
of where we are in America. The American Flag offers
signers in a planned National Joint Blue-Ribbon
a shared symbolism of patriotism, and it embraces the
Commission for A More Perfect Union. There will
American spirit. The United States of America, a Repub-
be seven working groups. Each group will represent
lic, is relatively young, having come into existence less
one of the seven parts of the Preamble, and each
than 250 years ago. The question now is how long will
working group will include three components – re-
our Republic last?
search, decision-making and action plan. Toby ex-
While our flag’s patriotic value and symbolism have re-
plains:
mained the same over the years, there has been a marked
demise of patriotism in the country. We are more divid- The U.S. Trust pledges to advance a needed emphasis
ed today than ever. Patriotism should not be conflated, for A More Perfect Union. To this end, we shall honor
as it has been recently, with nationalism. Patriotism is our Constitution in these most important pursuits
support and devotion to your country. While national- and practices to promote the general welfare and to
ism has a similar basis, it is often expressed in a way that secure the blessings of liberty to ourselves and our
excludes or is detrimental to other nations or people of posterity.
different nationalities.
The amalgamation of patriotism and nationalism has This Sept. 13–17, the group plans to celebrate “A
led to a shift in discourse in our country. What once was More Perfect Union Week for the General Welfare
a healthy debate among varying opinions on the national of the People.” It will encourage activities each day
stage has become bloated with animus-filled diatribes. that are designed to promote a more perfect union.
This shift has taken us to the brink of a dark abyss filled
with far too much fear and hate resulting in the weak-
ening of our Republic. This does not reflect all that our
country has stood for nearly two-and-a-half centuries. IN THIS ISSUE
We must support our country during the good and bad
times. While we can disagree, we must work together in I. Capitol Observations....................................................2
critical areas of concern for the common good. We must II. The Talc Litigation.........................................................3
strive to make things better for our country and all Amer- III. The JUUL Litigation...................................................... 4
icans. As we stand at this crossroads, now is the time, as a IV. Opiod Litigation..............................................................6
nation, that we take a step back and assess where we are V. The Whistleblower Litigation....................................8
and where we want to go. VI. Product Liability Update............................................ 11
Two recent examples of patriotism have demonstrat- VII. Update on Motor Vehicle Litigation...................... 12
ed that it isn’t too late for our country to turn things VIII. Aviation Litigation.......................................................14
around. IX. Premises Liability Litigation.................................... 15
X. Workplace Hazards.................................................... 15
A More Perfect Union XI. Mass Torts Litigation.................................................. 17
A movement born in Lee County, Alabama, has XII. Shareholder Litigation............................................... 19
gained national prominence and support. The XIII. Toxic Tort Litigation..................................................... 19
group is spearheading an initiative called “A More XIV. The Ongoing Roundup Litigation..........................20
Perfect Union,” prompted by the vision of the late XV. Class Action Litigation............................................... 21
Lieutenant General (LTG) Hal Moore, who resided XVI. Pharmacy Benefits Manager (PBM) Litigation...24
in Lee County until his death in February 2017. Toby XVII. The National Scene........................................................25
Warren, also a longtime Lee County resident, prom- XVIII. The Consumer Corner...............................................25
ised his mentor, LTG Moore, that he would contin- XIX. Current Case Activity at Beasley Allen.............. 27
ue the work the two had championed – to create a XX. A Look at Damages Under the Jones Act.........28
better future for the country, especially for veterans XXI. Resources to Help Your Law Practice.................29
and youth. XXII. Practice Tips of the Month For Trial Lawyers...29
XXIII. Recalls Update............................................................30
Eleven months after LTG Moore’s death, Toby draft- XXIV. Beasley Allen Employee Spotlights.....................30
ed the Declaration for a More Perfect Union to hon- XXV. Special Recognitions................................................32
or the Preamble of the U.S. Constitution. Since then, XXVI. Favorite Bible Verses.................................................32
he established the United States Trust (U.S. Trust) to XXVII. Closing Observations................................................33
compliment the efforts of the National Endowment XXVIII. Our Monthly Reminders............................................34
for the Humanities in preparation for the country’s XXIX. Parting Words..............................................................35
250th-anniversary celebration in 2026. Toby has also
2 BeasleyAllen.comAmerica is not perfect, but it is a nation that has sur- the country. The MDL team has finished up the plaintiff,
vived a bloody civil war, two world wars and several re- fact witness and expert depositions for the bellwether
gional wars with Americans participating in them. Each cases. The bellwether cases are a mix of plaintiff picks,
war has left its mark on our union. But those marks, rec- defense picks and random selections from the court.
ognized and appropriately addressed, can shine as sym- The MDL has continued to work on corporate liability
bols of a maturing nation – exhibiting the strength and discovery depositions, with several additional deposi-
unity demanded of a more perfect nation. tions taken in May, including continuing a number of
While we live in a country where “freedom and justice depositions that have gone for multiple days. Other lia-
for all” is promised to all of its citizens, that hasn’t always bility depositions are planned for July. Some former and
been the case. Slavery in America is one of the ugliest current Johnson & Johnson employees were identified
scars our nation bears. But we should let that scar serve and researched for this project.
as a reminder of our failure and embolden us to strive In state court, Beasley Allen’s trial schedule has been
together to do better. It is our obligation to make “free- moving forward without any further Covid delays. In St.
dom and justice for all” a reality in America. Clair County, Illinois, the Cadagin case is set to begin on
July 12. Preliminary hearings are complete, and discus-
Juneteenth sions continue about the jury selection process as well
Last month, President Biden signed legislation for- as Covid-related accommodations.
mally recognizing Juneteenth as a national holiday. In Philadelphia, the Kleiner case’s July 29 start remains
It was another patriotic effort to move the U.S. to- on track, with preliminary hearings and conferences on-
wards a more perfect union. The holiday commem- going. The Beasley Allen team has several additional tri-
orates June 19, 1865, which was the day Union Ma- al-ready dates in Philadelphia, with the Wilson case to
jor General Gordon Granger announced the end of be set within 90 days of May 5th and additional settings
slavery in Galveston, Texas, in accordance with the possible throughout the year.
Emancipation Proclamation President Abraham Lin- In Georgia, the Brower retrial is still being reset, with
coln had created two years earlier. Juneteenth has plans to retry this case as soon as it can be safely sched-
been celebrated for 149 years, and formalizing the uled in 2021. While working on getting the Brower retrial
day as a federal holiday was a symbolic step towards set, additional discovery efforts have continued against
remembering and admitting a part of our country’s Johnson & Johnson’s longtime talc packager/manufac-
history that is painful and regretful. turer PTI, which has a significant presence in Georgia
and Missouri. The multi-plaintiff trial in St. Louis, Mis-
In signing the law, President Biden urged Americans souri, involving three plaintiffs, remains set in August,
to make the day about reflection and action, saying, with several additional potential trial dates in St. Louis
“We can’t rest until the promise of equality is ful- throughout the rest of the year and into 2022.
filled for every one of us in every corner of this na- Along with multiple trials already set in Missouri, Illi-
tion. That to me is the meaning of Juneteenth.” nois, and Pennsylvania for 2021 and the potential trial in
Like our flag, Juneteenth now stands as a symbol for Georgia in 2021, the Beasley Allen team is now moving
a turning point in our country. One that we hope forward with the Carl and Balderrama trials in Atlantic
will serve as an enduring reminder of patriotism City, with potential trial dates in early 2022. The team
and a recommitment to the principles and values on is also exploring South Florida as a potential venue for
which our country was founded. additional trials in 2021 and 2022. It has been working
on discovery efforts against various retailers of talcum
“Old Glory” has seen our country through good times powder throughout the states.
and bad. Our flag has stood the test of time, and we For additional information on these cases, contact
should look to it with reverence and appreciation for its Ted Meadows, Leigh O’Dell, or Brittany Scott at 800-
meaning of freedom and love for the country regardless 898-2034 or by email at Ted.Meadows@BeasleyAllen.
of the political party in power. We must strive together com, Leigh.ODell@BeasleyAllen.com, or Brittany.Scott@
to truly make America “the land of the free and the home BeasleyAllen.com.
of the brave” and a nation where “liberty and justice for
all” is a reality. The goal is for a more perfect union. I am U.S. Supreme Court Denies J&J Petition To
confident America will survive the current division, but Review Talcum Powder Verdict
we must all work together and strive to make that goal
a reality. Nearly seven months after the Missouri Supreme
Court declined to review the matter, Johnson & Johnson
Sources: East Alabama Living and CNN
received another defeat. The U.S. Supreme Court refused
II.
to take on its challenge to a $2.1 billion verdict awarded
in Missouri to almost two dozen women who blamed the
asbestos in its talcum powder for their ovarian cancer.
THE TALC LITIGATION The company argued that too many claims were com-
bined for a single trial. Still, the Court followed prece-
dents in both state and federal law regarding due pro-
Talcum Powder Litigation Update cess and plaintiffs’ ability with common claims to come
together in seeking justice.
Beasley Allen’s Talc Litigation Team continues to prog-
Among other arguments, J&J asserted that the consol-
ress in both the MDL and state courts. There are numer-
idation of claims from 22 women, led by named plaintiff
ous trials rapidly approaching in state courts throughout
BeasleyAllen.com 3Gail Ingham, violated its due process rights and that the O’Dell (Leigh.Odell@BeasleyAllen.com), Ted Meadows
trial court lacks personal jurisdiction over plaintiffs who (Ted.Meadows@BeasleyAllen.com), Kelli Alfreds (Kel-
never lived in Missouri nor purchased or used the prod- li.Alfreds@BeasleyAllen.com), Ryan Beattie (Ryan.Be-
ucts there. attie@BeasleyAllen.com), Beau Darley (Beau.Darley@
The high court’s decision comes nearly three years BeasleyAllen.com), David Dearing David.Dearling@
after jurors awarded $550 million in compensatory and BeasleyAllen.com), Liz Eiland (Liz.Eiland@BeasleyAllen.
$4.14 billion in punitive damages against J&J and its sub- com), Jennifer Emmel (Jennifer.Emmel@BeasleyAllen.
sidiary Johnson & Johnson Consumer Inc. over claims com), Jenna Fulk (Jenna.Fulk@BeasleyAllen.com), Lauren
their talcum powder products contained asbestos, James (Lauren.James@BeasleyAllen.com), James Lamp-
which caused the women to develop ovarian cancer. kin (James.Lampkin@BeasleyAllen.com), Caty O’Quinn
A Missouri appeals court reduced the verdict to $2.1 in (Caty.OQuinn@BeasleyAllen.com), Cristina Rodriguez
June 2020. The court dismissed the awards for two out- (Cristina.Rodriguez@BeasleyAllen.com), Brittany Scott
of-state plaintiffs on jurisdictional grounds as they only (Brittany.Scott@BeasleyAllen.com), Charlie Stern (Char-
used products manufactured in Georgia while finding lie.Stern@BeasleyAllen.com), Will Sutton William.Sut-
jurisdiction concerning the other 15 non-Missouri plain- ton@BeasleyAllen.com), Matt Teague (Matt.Teague@
tiffs. That was because J&J had contracted with a Missou- BeasleyAllen.com) and Margaret Thompson (Margaret.
ri-based business to manufacture a product the women Thompson@BeasleyAllen.com).
used. The Missouri Supreme Court later refused to wade
into the dispute.
The plaintiffs are represented by Kenneth W. Starr, W. III.
Mark Lanier, Kevin P. Parker, Arthur R. Miller, Benjamin T.
Major, Harvey Brown and K. Rachel Lanier of The Lanier
THE JUUL LITIGATION
Law Firm; David C. Frederick, Ariela M. Migdal and Mat-
thew N. Drecun of Kellogg Hansen, Todd Figel & Freder- An Update On The JUUL Litigation
ick PLLC; Thomas C. Goldstein and Kevin K. Russell of
Goldstein & Russell PC; Eric D. Holland and Patrick R. JUUL has agreed to pay North Carolina $40 million
Dowd of Holland Law Firm; and John D. Ashcroft. The to settle the first of several lawsuits brought by states
case is Johnson & Johnson et al. (case number 20-1223) involving the company’s marketing practices that fu-
in the Supreme Court of the United States. eled widespread addiction among young people to
its high-nicotine e-cigarettes. The settlement was an-
Beasley Allen Talc Litigation Team nounced on June 28 by North Carolina Attorney General
Josh Stein, who sued the company in May 2019.
The Talc litigation continues around the country at a The consent decree requires JUUL to sell its products
record pace, as indicated above, with no quick end in only behind the counter in North Carolina stores, and
sight. The lawyers on our Talc Litigation Team have been to use third-party age verification systems for online
very busy preparing for upcoming trials. Beasley Allen sales. The order also commits JUUL to sending teenage
lawyers Ted Meadows and Leigh O’Dell head up the Bea- “mystery shoppers” to 1,000 stores each year, to check
sley Allen Talc Litigation Team. The team handles claims whether they are selling to minors. It also bars the com-
of ovarian cancer linked to talcum powder use for fem- pany from using models under age 35 in advertisements
inine hygiene. Will Sutton and Charlie Stern are on the and states that no advertisements should be posted near
team, but they are exclusively handling mesothelioma schools.
claims. Will and Charlie are looking at cases of indus- The North Carolina complaint accused JUUL of design-
trial, occupational, and secondary asbestos exposure ing, marketing and selling e-cigarettes to attract young
resulting in lung cancer or mesothelioma and claims of people, and of misrepresenting the potency and danger
asbestos-related talc products linked to mesothelioma. of nicotine in the company’s products, in violation of
The Talc Litigation Team at Beasley Allen has followed the state’s Unfair and Deceptive Trade Practices Act.
closely to the filings of the U.S. Supreme Court in Ing- Thirteen states, including California, Massachusetts
ham v. Johnson & Johnson, et al. Beasley Allen lawyers and New York, as well as the District of Columbia, have
Ted Meadows and Leigh O’Dell (Co-Lead Counsel in the filed similar lawsuits. The central claim in each case is
MDL) stated: that JUUL knew, or should have known, that it was it was
As we move forward in the MDL, thousands of “hooking teenagers on pods that contained high levels
women and families who have been devastated by of nicotine.” Some of the youths in the cases claimed se-
a deadly disease because they used talcum powder rious harm, including possible lung damage and mood
products will have their voices heard. The scores of disorders.
peer-reviewed medical studies demonstrating the A group of 39 attorneys general have spent the past
link between ovarian cancer and talc-based powders 16 months investigating JUUL for its marketing and sales
will be further validated. Soon New Jersey juries will practices, as has the Food and Drug Administration
have the opportunity to hear and see evidence of (FDA). JUUL also faces other legal threats. The Federal
Johnson & Johnson’s reprehensible conduct in hiding Trade Commission (FTC) is suing JUUL, Altria and relat-
the cancer-causing propensities of the company’s ed parties, seeking to unwind the 2018 deal which gave
products for decades, needlessly putting at risk mil- Altria 35% of JUUL. Altria, the nation’s largest tobacco
lions of mothers, sisters, and daughters. company, paid $12.8 billion for that stake, but has since
written down the value of the investment to $1.5 billion.
Members of the Talc Litigation Team include Leigh The FTC says that the two companies entered into a
4 BeasleyAllen.comseries of agreements, including Altria’s investment, that Francisco headquarters, sixty interviews with former
eliminated competition in violation of federal antitrust and current JUUL personnel, interviews with doctors, re-
laws. The Commission also claims that Altria and JUUL searcher, public health officials, vaping industry insiders,
started as competitors in the e-cigarette markets, but and lawmakers. Her reporting interviews included the
that as JUUL became more popular, Altria dealt with the company’s founders, James Monsees and Adam Bowen,
threat by taking its own Mark Ten e-cigarette off the and other executives such as former CEO Kevin Burns.
market in exchange for a share of JUUL’s profits. During the book’s preparation, these three declined to
There is also multi-district litigation in U.S. District give further interviews.
Court for the Northern District of California. That ex- The book brilliantly tells the origin story of JUUL Labs,
tremely important litigation consolidates cases on three Inc. (JLI), or PAX Labs, Inc, as it was initially called. Ducha-
tracks: personal injury, which includes plaintiffs claim- rme details the relevant biography of Monsees and Bow-
ing addiction, lung injuries and other health problems; en, their studying of big tobacco tactics as Stanford stu-
a consumer class action track, claiming that individuals dents, and their e-cigarette prototypes, objectives, and
paid too much for a product that addicted them; and a early business moves. Ducharme skillfully weaves the key
government entity track, consisting of school districts players, warning signs, government actions, public reac-
and counties seeking monetary reimbursement for va- tions, and consequences of all kinds into a reliable and
ping-relating damages. Investors in JUUL, like Altria reserved chronicle.
and other entities, are also involved. Depositions have Big Vape reveals the naivety and false assumptions of
begun, and the first case is scheduled to go to trial in JUUL’s founders, as well as their academic and engineer-
February 2022. ing genius. The book shows that warnings about the ad-
Beyond all the legal challenges, the company is await- dictiveness and youth appeal of JUUL were regularly ig-
ing a decision from the FDA on whether its products can nored within the young start-up, as the company seemed
remain on the market. The agency must decide by ear- to have instead intentionally amplified and benefited
ly September whether JUUL and other new tobacco and from these qualities and other misrepresentations.
vaping products are “appropriate for the protection of Big Vapes’ online listings have uniformly four or five-
public health” and can continue to be sold. star ratings by the public, and its review from critics has
The JUUL MDL has been very active. Three of the four been equally as positive. The book has been called “a
personal injury bellwether cases in the MDL are Beas- landmark piece of investigative reporting,” “brilliantly
ley Allen clients. Our firm is honored to represent these reported and elegantly written . . . an exceedingly im-
three individuals in the three cases who were lured by portant story,” and “an instructive tale.”
JUUL’s conduct as minors and became severely addicted As Big Vape details, JUUL created a super-charge nic-
to nicotine. Beasley Allen looks forward to working with otine product with maximum youth appealability and
the JUUL Plaintiff Steering Committee (PSC) to pres- intentionally marketed this product to youth. Beasley
ent our clients’ cases to juries. The bellwether trials are Allen continues to play a leading role in multidistrict lit-
scheduled to start in February 2022, with five trials to igation against JUUL. Beasley Allen has devoted a team
take place in 2022. of talented lawyers to work on this critical litigation. The
Approximately 2,187 cases are pending in the JUUL firm represents hundreds of youths who became severe-
MDL, consisting of individual personal injury and gov- ly addicted to nicotine because of JUUL and suffered
ernment entity public nuisance cases. A total of 2,734 other serious physical injuries. The firm also represents
cases are pending in the California state court litigation hundreds of school districts suing JUUL for the public
pending in Los Angeles Superior Court. nuisance its products have caused in schools around the
Beasley Allen’s Joseph VanZandt serves on the JUUL country. Beasley Allen’s Joseph VanZandt serves on the
PSC. He and Mass Torts Section Head Andy Birchfield plaintiff steering committee (PSC) in the federal JUUL
heads our firm’s efforts to hold JUUL accountable for the MDL, and Beasley Allen lawyer Beau Darley serves on
damage they have done to thousands of youth around the PSC in the California state court consolidated litiga-
the country. Beasley Allen’s Beau Darley serves on the tion against JUUL. If you or a loved one has experienced
PSC for the California state court litigation. Lawyers at physical, mental, or emotional harm from using a JUUL
Beasley Allen continue to take new JUUL cases for indi- product, call 800-898-2034 or email Joseph.VanZandt@
viduals, school districts, and other government entities BeasleyAllen.com or Beau.Darley@BeasleyAllen.com.
that JUUL has impacted. You can contact Joseph VanZan-
dt (Joseph.Vanzandt@BeasleyAllen.com) or Beau Darley FTC Administrative Trial On Altria – JUUL Deal
(Beau.Darley@BeasleyAllen.com) if you want to discuss The Federal Trade Commission (FTC)’s administrative
a case. trial on antitrust claims in the Matter of Altria Group/
JUUL Labs, Inc. (Case #: 191-0075) began on June 2. Typ-
New Book Details The Rise Of JUUL
ically, this type of proceeding takes place at the FTC’s
Big Vape: The Incendiary Rise of JUUL, largely com- headquarters in Washington, D.C., but this trial is be-
pleted over 2019 and 2020 by Times magazine journalist ing conducted remotely because of the ongoing public
Jamie Ducharme, was published on May 25, 2021. Ducha- health concerns and is the FTC’s first entirely virtual
rme is a staff writer at the magazine and covers health, administrative trial. A key question at trial is why Altria,
science, and medicine. Before publishing Big Vape, she when it was in talks with JUUL, stopped selling its e-cig-
reported on JUUL and the e-cigarette industry for sev- arettes.
eral years. In October 2018, Altria announced it was halting the
Ducharme synthesized the book from her prior re- sale of its pod-based and fruity-flavored e-cigarettes in
porting on JUUL, visits to JUUL Labs, Inc.’s (JLI) San response to the Food and Drug Administration’s call for
BeasleyAllen.com 5e-cigarette makers to help stem a surge in vaping among ing this issue to the printer. Johnson & Johnson (J&J)
children and teens. Then in December of that year, two reached a $230 million settlement with New York state
weeks before Altria acquired a 35% stake in JUUL, Altria and two Long Island counties in the case that was set to
pulled its remaining e-cigarettes off the market. go to trial on June 28. The settlement payments will be
The FTC’s enforcement action alleges that the Al- made over nine years. The two Long Island counties in
tria-JUUL deal was part of an illegal agreement between the settlement are Suffolk and Nassau. This changes the
the companies not to compete. In opening remarks at makeup of defendants in the nation’s first jury trial over
the antitrust trial, the FTC argued that Altria pulled its the crisis.
e-cigarettes off the U.S. market illegally at the insistence J&J’s settlement includes the company’s agreement
of JUUL as the two companies were discussing a deal. to end its national sales of opioids. New York Attorney
Altria argued that its e-cigarettes were failures, and it General Letitia James announced the settlement, which
dropped them amid regulatory pressure and an inter- was negotiated in coordination with a larger global set-
nal reckoning about the company’s inability to develop tlement. Talks are still ongoing among additional parties.
a vaping product that consumers liked. JUUL and Altria The announcement of the J&J settlement came a day
argued that since the deal was struck, competition in the after Walmart, CVS and Rite Aid settled and were severed
e-cigarette market has increased, not decreased. JUUL’s from the trial. These pharmacies all reached settlements
market share has fallen, as have e-cigarette prices. with the state and counties for an undisclosed amount.
If the FTC prevails, it could unwind Altria’s 35% interest The remaining defendants in the trial are Walgreens
in JUUL, which the cigarette maker bought in December (the sole remaining pharmacy defendant), Endo Pharma-
2018 for $12.8 billion. The agency is seeking to force Al- ceuticals, Teva Pharmaceuticals, Allergan, Cardinal Health,
tria to divest its stake and terminate the companies’ non- AmerisourceBergen, McKesson Corp. and Anda Inc.
compete agreement. The case is being heard by an ad- Opening arguments were set to start on June 29 in the
ministrative law judge, who will make the initial decision; trial, to be held at Touro College’s Jacob D. Fuchsberg
the agency’s commissioners will then vote on the matter. Law Center. If it goes forward now against the remain-
Stay tuned! ing defendants, will be not only the first case over the
Sources: FTV.gov, Law360.com and WSJ.com opioid epidemic to be heard by a jury, but also the first
trial against defendants across the opioid supply chain.
The JUUL Litigation Team The counties and New York state contend that the com-
panies accelerated the opioid crisis by playing down the
Beasley Allen lawyers, led by Joseph VanZandt, are risks of addiction and turning a blind eye to suspiciously
heavily involved in the JUUL litigation. They currently large drug orders.
represent individuals who are suing JUUL, the top U.S. There are two other ongoing bench trials over the opi-
vape maker, for the negative impact its products have oid epidemic, one in California state court and the other
had on their lives. Beasley Allen also represents *a num- in West Virginia federal court. J&J lost the first opioid
ber of school systems in the JUUL litigation. Lawyers on trial in 2019 in Oklahoma state court when a judge con-
our firm’s JUUL Litigation Team have filed JUUL lawsuits cluded that it owed a $465 million judgment for creating
on behalf of school districts nationwide. This litigation a public nuisance in the state for its opioid marketing.
seeks to protect students and recover resources spent The trial in California, which began in mid-April, pits
fighting the vaping epidemic. the counties of Los Angeles, Orange, and Santa Clara,
If you have a potential claim or need more informa- along with the City of Oakland, against pharmaceutical
tion on JUUL, contact any of the lawyers on the JUUL manufacturers Johnson & Johnson, Endo Pharmaceuti-
Litigation team at 800-898-2034 or by email. Members cals, Teva Pharmaceuticals, and Allergan PLC.
are Joseph.VanZandt@BeasleyAllen.com, Sydney.Ever- Another ongoing trial started in May in West Virgin-
ett@BeasleyAllen.com, Beau.Darley@BeasleyAllen.com, ia federal court, is ongoing. Cabell County and its seat,
Davis.Vaughn@BeasleyAllen.com, Seth.Harding@Beas- Huntington, are up against the Big 3 pharmaceutical
leyAllen.com or SooSeok.Yang@BeasleyAllen.com. Andy distributors: AmerisourceBergen Corp., Cardinal Health
Birchfield (Andy.Birchfield@BeasleyAllen.com), who Inc., and McKesson Corp. The trial’s first few weeks fea-
heads up the firm’s Mass Torts Section, works with the tured testimony from a wide range of witnesses, includ-
team on the JUUL litigation. ing drug company executives, fire and police profession-
IV.
als, academics, regulators, and doctors. The trial could
continue until August.
The State of Alabama’s case against Endo Health Solu-
OPIOID LITIGATION tions and McKesson Corp. has a trial set for November 1,
2021. Beasley Allen and the Tuscaloosa firm Price, Glover
and Hayes, have joined Alabama Attorney General Steve
Opioid Litigation Update: Ongoing Cases To Follow Marshall to represent the State of Alabama in the case.
There are other upcoming opioid trials to take place
The pressure cooker of opioid litigation continues to
over the next few months. One will start on July 26 in
heat up with long-awaited trials across the country along
Tennessee state court, and another on October 4 in Ohio
with some very recent settlements. There are several trials
for the first multidistrict litigation trial against pharma-
set for the coming weeks and months. It doesn’t appear
cies. I believe these cases will likely be settled because of
that COVID-19, which delayed some trials that were ready
the overwhelming evidence that juries will see and hear
to go in 2020, is now a major problem in getting trials set.
if the cases are tried. Stay tuned!
A major development took place as we were send-
Source: Law360.com
6 BeasleyAllen.comA Look At Purdue’s New Chapter 11 Plan Docs Chapter 11 plan of reorganization that is largely premised
And Claims Trust Framework on the Sackler family giving up their ownership in the
company and contributing $4.275 billion to a trust set up
Purdue Pharma has asked U.S. Bankruptcy Judge Rob- to pay out on opioid-related claims. The company would
ert Drain to extend the injunction pausing suits over be owned by an opioid abatement trust and run for the
opioid sales against the company and its owners, the public benefit, using profits to address issues created by
Sackler family. Purdue requested a 75-day extension, say- the opioid crisis.
ing they need protection as they seek confirmation of its As stated above, the Sacklers seek releases of all claims
Chapter 11 plan. against them in exchange for their contributions. The
On May 26, Bankruptcy Judge Drain gave preliminary family has made it clear there will be no settlement with-
approval to Purdue’s Chapter 11 plan disclosure, hold- out the releases, and claimants would be forced to bring
ing an approval order until Purdue clears up some set- their claims through individual litigation.
tlement details. The preliminary approval came after a Judge Drain has given preliminary approval to Purdue›s
virtual hearing that scrutinized Purdue’s disclosures Chapter 11 plan disclosure statement and, on June 3, en-
intended to inform creditors on how to vote regarding tered an order giving Purdue approval to send the plan
Purdue’s bankruptcy plan. to its creditors for a vote. The order sets July 14 as the
In its filings, Purdue’s plan provided new informa- voting deadline, July 19 as the deadline for plan objec-
tion about how private claims against the company will tions and Aug. 9 as the beginning of the plan confirma-
be handled under its Chapter 11 plan, including how a tion hearing.
personal injury trust will be funded and disbursed. The An examiner has been approved for appointment
three funds are described below: by Judge Drain, a decision that came on the heels of a
•
The personal injury trust will receive between filed examiner motion that questioned the integrity of
$700 million and $750 million, depending on the the bankruptcy proceedings. Temple University’s Beas-
amount of proceeds Purdue receives from its in- ley School of Law professor Jonathan C. Lipson, in his
surers, and the lion’s share of that money will be examiner motion on behalf of an opioid victim’s father,
directed to cover the claims of those who suffered alleged that Purdue’s board of directors was unduly in-
a personal injury from their opioid use. Those fluenced by the Sacklers when presenting the Chapter
claimants are projected to receive between $3,500 11 plan currently under consideration. The examiner,
and $48,000 each, depending on the nature and appointed by Judge Drain, will be limited to the narrow
severity of their claimed injury. task of assessing the independence of the Purdue board
of directors from the Sackler family when it approved
• A group of claimants suffering from neonatal ab- the submission of the Chapter 11 plan featured in the
stinence syndrome (sometimes referred to as NAS settlement.
babies) will share a $45 million portion of the per- The case is In re: Purdue Pharma LP (case number 7:19-
sonal injury trust funds. Each claimant is projected bk-23649) in the U.S. Bankruptcy Court for the Southern
to receive about $7,000 under the plan. District of New York.
• A third fund will be created under the plan to cover Source: Law360.com
the claims of third-party payors to the tune of $365
million, with a third, $250 million trust to cover the Opioid Bellwether Trials Against Pharmacies To
claims of hospital systems. About $60 million will Be Bifurcated
be set aside to provide funding for NAS monitoring
services to track the needs of the NAS babies who U.S. District Judge Dan Polster has split five upcom-
were exposed to opioids while in the womb. ing bellwether trials in the opioid multidistrict litigation
against pharmacies into two phases. The public nuisance
Personal injury claimants will have the option to opt- claims by local governments alleging that the pharma-
out of the trust distribution plans and pursue their cies created a public nuisance by overlooking suspicious
claims against Purdue in the civil court system. If a claim- orders will go first. All other claims will be stayed. Judge
ant chooses to seek recovery through the courts and re- Polster says this will simplify the trials and make the cas-
ceives a judgment, those judgments will also come out es more manageable. He says that bifurcating the claims
of the trust funds and would likely reduce the recoveries allows the local governments and the pharmacy chains
available to other claimants. to give a “more coherent presentation” of the legal is-
We have mentioned before that the plan includes re- sues surrounding the companies’ alleged liability for
leases of claims against Purdue and also its owners — the making a public nuisance. Judge Polster said further:
Sackler family. So, claimants won’t be able to sue those
entities if they opt to litigate their claims. It appears the Bifurcating the public nuisance claims asserted
opt-out suits would be against the trust itself. against the pharmacy defendants will allow the
As previously reported, Purdue filed for Chapter 11 court to focus its attention on development and
protection in September 2019 in the wake of a tentative litigation of these issues and claims, which are likely
settlement with 24 states that sued to hold the compa- to be applicable in many other MDL actions against
ny responsible for damages caused by opioid addiction. these and similar defendants on a bellwether basis.
Under the deal, Purdue would be turned over to a public This may also help facilitate settlement.
trust and share profits with claimants against the estate
The order applies to five new bellwethers recently se-
and fund programs addressing the opioid crisis.
lected by Judge Polster in April. Those cases are Durham
You will recall that in March, Purdue filed its proposed
County, North Carolina, in the Fourth Circuit; Tarrant
BeasleyAllen.com 7County, Texas, in the Fifth Circuit; Montgomery County, 3:21-md-02996) in the U.S. District Court for the North-
Ohio, in the Sixth Circuit; Santa Fe County, New Mexico, ern District of California.
in the Tenth Circuit; and Cobb County, Georgia, in the Source: Law360.com
Eleventh Circuit.
The pharmacies had opposed bifurcation, instead The Beasley Allen Opioid Litigation Team
suggesting that the cases be remanded to their original
districts, and the judges there would decide whether to Our Opioid Litigation Team has a heavy workload, and
split them. The trial had been delayed due to COVID-19; they continue to be very busy. As we stated in the last
in December, Judge Polster pushed back a May start date issue, activity in opioid litigation has intensified nation-
to the fall. ally. There has been no slowdown, but it appears more
The MDL is In re: National Prescription Opiate Liti- settlements will be happening.
gation (case number 1:17-md-02804) in the U.S. District Lawyers in our firm’s Opioid Litigation Team continue
Court for the Northern District of Ohio. to work in the national opioid MDL. Beasley Allen law-
yers represent the State of Alabama, the State of Geor-
Source: Law360.com
gia, and numerous local governments and other entities
and handle individual claims on behalf of victims in this
JPML Sends McKinsey Opioid Cases To New MDL
litigation.
The Judicial Panel on Multidistrict Litigation (JPML) The team includes Rhon Jones (Rhon.Jones@Beas-
on June 7 created a new MDL in California federal court leyAllen.com), Parker Miller (Parker.Miller@BeasleyAl-
for a number of lawsuits over the role of McKinsey & Co. len.com), Ken Wilson (Ken.Wilson@BeasleyAllen.com),
in prescription opioid marketing. This will keep the cas- David Diab (David.Diab@BeasleyAllen.com), Rick Strat-
es out of the existing Opioid MDL in Ohio federal court. ton (Rick.Stratton@BeasleyAllen.com), Will Sutton (Wil-
This development follows oral arguments on May 27 liam.Sutton@BeasleyAllen.com), Jeff Price (Jeff.Price@
over how to handle dozens of pending lawsuits from cit- BeasleyAllen.com), Gavin King (Gavin.King@BeasleyAl-
ies, counties and tribes in the wake of $640 million in len.com), Tucker Osborne (Tucker.Osborne@BeasleyAl-
settlements that McKinsey reached with states over its len.com) and Matt Griffith (Matt.Griffith@BeasleyAllen.
consulting for OxyContin seller Purdue Pharma LP and com). This team of lawyers represents the State of Ala-
other drugmakers. bama, the State of Georgia, numerous local governments
Most plaintiffs had wanted McKinsey’s cases sent to and other entities, and individual claims on behalf of
the existing MDL, with some other plaintiffs recom- victims.
mending the Southern District of Illinois. McKinsey ad- If you need more information on the Opioid Litiga-
vocated a new MDL in the Southern District of New York. tion, contact one of the lawyers on the team at 800-898-
So California’s selection came as a surprise. The panel 2034 or by email.
V.
wrote in selecting the California court:
In the unique circumstances that are presented by
this nationwide litigation, we are persuaded that
the Northern District of California is the appropri- THE WHISTLEBLOWER LITIGATION
ate transferee district for this litigation. In selecting
[U.S. District] Judge Charles R. Breyer as the trans-
feree judge, we are choosing a jurist who is familiar
Whistleblower Asks U.S. Supreme Court To
with [the existing MDL], as he was a member of this Review Dismissal Standard For FCA Claims
panel when that docket was initially centralized. Whistleblower Cimznhca LLC, represented by Beasley
The JPML noted that Judge Breyer is presiding over a Allen, has petitioned the Supreme Court of the United
bellwether case brought by San Francisco in the existing States to review a Seventh Circuit Court of Appeals deci-
MDL. That role «likely has afforded Judge Breyer granular sion that dismissed its case centering around a kickback
insight into the federal opioid litigation that few other scheme for doctors to prescribe defendant’s drug treat-
judges have obtained,» the panel wrote, adding: ment for Crohn’s disease. However, at the end of May,
the federal government requested that the Supreme
Judge Breyer has presided over a total of 11 MDL Court not review the Seventh Circuit decision. Cimzn-
dockets, and he possesses tremendous insight into hca’s case centered around allegations that the defen-
the conduct of multidistrict litigation. dant provided multiple kickbacks to doctors, who would
then give out prescriptions for brand-name prescription
It should be noted that the existing MDL primarily in-
drug Cimzia over competing treatments.
volves lawsuits against drug manufacturers, distributors
The Seventh Circuit decision added to several other
and pharmacies. McKinsey is a management consulting
court decisions grappling with how courts should con-
firm. The company has argued that it is a unique defen-
sider the federal government’s motion to dismiss an FCA
dant and an improper target for lawsuits seeking money
case after it declines to participate in the litigation. After
to deal with rampant abuse of prescription and illicit
the 2018 Granston memo — a DOJ directive for govern-
narcotics.
ment lawyers to reduce FCA cases –the DOJ has sought
The matter is In re: McKinsey & Co. Inc., National Pre-
to dismiss numerous whistleblower cases in addition to
scription Opiate Consultant Litigation (case number
simply declining to participate. In the case at hand, the
2996) in the Judicial Panel on Multidistrict Litigation.
government refused to intervene in late 2017, yet more
The new MDL is In re: McKinsey & Co. Inc., National
than one year later decided to ask the court to dismiss
Prescription Opiate Consultant Litigation (case number
8 BeasleyAllen.comthe case in December 2018. of the money Navistar is returning to the Government.
Almost all cases have been analyzed using one of two If you are aware of fraud committed against the federal
standards: the D.C. Circuit’s Swift standard, which essen- or state governments, you could be rewarded for report-
tially gives the DOJ an “unfettered right” of dismissal, ing the fraud. If you have any questions about whether
and the Ninth Circuit’s Sequoia Orange standard, which you qualify as a whistleblower, please contact a lawyer
requires the dismissal to be related to a valid govern- at Beasley Allen for a free and confidential evaluation of
ment purpose. The Seventh Circuit, however, declined your claim. There is a contact form on this website, or
to apply either of these standards. you may email one of the lawyers on our whistleblower
Cimznhca argued that the Seventh Circuit lacked ju- litigation team: Lance Gould, Larry Golston, Leslie Pes-
risdiction to review a lower court’s denial of the gov- cia, Paul Evans, Lauren Miles or Tyner Helms.
ernment’s motion to dismiss the case because it failed Source: Department of Justice News Release
to meet the standards for review of an interlocutory ap-
peal. Still, the Seventh Circuit decided to treat the gov- Contractor In Nuclear Cleanup Settles False
ernment’s motion as a motion to intervene (despite the Claims Suit
government expressly noting numerous times that it was
declining to intervene). A U.S. Department of Energy contractor has agreed to
In doing so, the Seventh Circuit improperly side- pay more than $3 million to resolve claims that it falsely
stepped analysis of the standard entirely and wrongfully presented two subcontractors as HUBZone small busi-
exercised appellate jurisdiction. By treating the motion nesses in billing for a nuclear waste remediation con-
to dismiss as a motion to intervene, the Seventh Circuit tract worth $7 billion.
analyzed the motion under an inapplicable standard. The settlement, announced on June 4 by the U.S. At-
Worse, although the Seventh Circuit dismissed the case, torney’s Office for the Eastern District of Washington, is
it did so without prejudice to the government, yet with set to resolve and end more than seven years of False
prejudice to the whistleblower. On behalf of our clients, Claims Act litigation against CH2M Hill Plateau Remedi-
Cimznhca, we argue that doing so dramatically under- ation Co., a unit of CH2M Hill Cos. Ltd.
mines the purpose behind the FCA and deprives whis- The whistleblower in the case, Savage Logistics LLC, is
tleblowers of due process rights. also expected to receive more than $865,000 from the
In addition to jurisdiction, on behalf of Cimznhca, we settlement. DOE Inspector General Teri Donaldson said
have asked the Supreme Court to apply the Sequoia Or- in a statement:
ange as the uniform standard for government dismissals
This settlement affirms the [Office of Inspector
and permit the district court’s ruling to stand.
General’s] commitment to protecting the integrity of
The whistleblower Cimznhca is represented by Beasley
the Department of Energy’s procurement process to
Allen lawyers Lance Gould and Leslie Pescia. The Peti-
provide opportunities for small and disadvantaged
tion for Writ of Certiorari was docketed for the court’s
businesses.
June 24, 2021 conference. We will keep our readers post-
ed on the progress of this appeal. The case involved CH2M’s contract to clean up the
central plateau of the DOE’s Hanford site in Washington,
Navistar Defense Agrees To Pay $50 Million To where plutonium for U.S. nuclear defense programs was
Settle FCA Case produced for more than 40 years. The five-year reme-
Navistar Defense LLC (Navistar) has agreed to pay diation contract was valued at $4.5 billion when CH2M
the Government $50 million to resolve allegations that landed its prime contractor role in 2008. That figure lat-
Navistar used falsified documents to induce the U.S. Ma- er increased to $7.16 billion to cover CH2M’s operations
rine Corps to purchase Navistar products at artificially into December 2020, according to a summary of major
inflated prices. According to the lawsuit, Navistar vio- contracts the Office of Environmental Management
lated the False Claims Act (FCA) by fraudulently induc- published in September.
ing the Government to enter into a contract to produce As part of its winning submission, CH2M included a
Mine-Resistant, Ambush-Protected (MRAP) vehicles. small-business subcontracting plan that outlined its ap-
During contract negotiations with the Government, proach to “meeting or exceeding socioeconomic goals
Navistar was asked to provide commercial sales informa- specified by the DOE.” The contractor said it would sub-
tion on the contract parts to assess the reasonableness contract a percentage of its work to companies regis-
of Navistar’s proposed prices. The government alleges tered with the Small Business Administration, including
Navistar created and presented fraudulent commercial firms involved in its Historically Underutilized Business
sales invoices to artificially inflate the cost of the MRAP Zone (HUBZones) program. However, at least one of
vehicles. According to the Department of Justice, the CH2M’s subcontractors, Indian Eyes LLC, had already
government relied on these fake invoices in deciding to been disqualified from the program when it started
accept the inflated rates of the contract. working for CH2M. Indian Eyes settled its part of the FCA
The settlement resolves a whistleblower lawsuit litigation with the whistleblower, Savage, in October.
brought by a former Navistar employee under the qui tam The whistleblower also challenged CH2M’s subcon-
provisions of the FCA. The FCA allows private individu- tract award to Phoenix-ABC A Joint Venture, a company
als with knowledge of fraud against the government to Savage Logistics claimed was set up by a much larger
bring a lawsuit on behalf of the government and to share firm, Federal Engineers and Constructors, “for the sole
in the recovery. As part of the resolution with Navistar, purpose of obtaining federal contracts as a HUBZone
the whistleblower will receive approximately $11 million contractor.” Despite that aim, Savage said that minimal
due diligence — such as calling the SBA or checking its
BeasleyAllen.com 9HUBZone database — which CH2M committed to in its scored partial wins in the case of Suzanne Ivie, who al-
subcontracting plan would have informed CH2M that leged the company fired her after she raised concerns of
the joint venture was not certified. off-label marketing. While a federal jury in Oregon found
Litigation in the case was temporarily halted in 2016 that AstraZeneca violated the whistleblower statute by
while the U.S. Supreme Court reached a decision in firing Ms. Ivie after she made a “good faith” report of
Universal Health Services Inc. v. Escobar and resumed alleged marketing misconduct, jurors rejected allega-
after the justices determined that firms could face tions of age discrimination. Neither did the jury hold the
FCA liability for billing the federal government while drugmaker liable under the False Claims Act for market-
out of compliance with regulations that aren›t explicit ing violations.
conditions of the payment. An initial notice of settle- After a trial that started in mid-June, jurors awarded
ment issued in April fell apart that same month when the Ms. Ivie, the whistleblower, $2.4 million. She will receive
parties couldn’t agree on the wording of the settlement. $1.87 million in damages plus another $510,423 for wages
But in a joint status report, the parties now say they have lost. Ms. Ivie lost her job in 2019 after 19 years with the
settled their differences and resolved the matter. company. During her career, Ivie worked in the compa-
Savage is represented by Bruce P. Babbitt and Matthew ny’s respiratory division. After a new director took over
T. Adamson of Jameson Pepple Cantu PLLC and Brad J. in 2018, the director allegedly pushed the team to pro-
Moore and Karen K. Koehler of Stritmatter Kessler Whel- mote certain AstraZeneca drugs for uses that the FDA
an Koehler Moore Kahler. didn’t approve. When Ms. Ivie refused to play ball and
The government is represented by Tyler Tornabene complained to the company, a pattern of retaliation
and Daniel H. Fruchter of the U.S. Attorney’s Office for emerged.
the Eastern District of Washington. The case is U.S. et al. After raising concerns, Ms. Ivie said she was removed
v. CH2M Hill Plateau Remediation Co. et al. (case number from leadership roles, had her bonus slashed and more
4:14-cv-05002) in the U.S. District Court for the Eastern retaliatory measures imposed. AstraZeneca claimed she
District of Washington. was fired for failing to do her work as a district sales
Source: Law360.com manager.
The Beasley Allen Whistleblower Litigation Team
Avis Car Rental To Pay $10 Million For
Overcharged Insurance Our prediction that there would be no slowdown in
the False Claims Act (FCA) litigation now appears to
Car rental giant Avis Budget Group Inc. will pay $10.1 have been squarely on target. Lawyers on Beasley Allen’s
million to settle claims that it overcharged the U.S. gov- Whistleblower Litigation Team continue to be very busy
ernment over vehicle liability and accident insurance handling cases around the country under the FCA. Fraud
payments. The U.S. attorney’s office said that from Janu- against the federal government by all too many indus-
ary 2014 to December 2019, Avis Budget filed false claims tries in this country, especially in the health care field,
to the government requesting overpayment and charged remains a huge problem. During the pandemic, fraud
extra amounts for supplementary car insurance. These against the federal government has increased dramat-
payments were already included in the government’s car ically. The combination of the national mishandling of
rental payment, according to acting U.S. Attorney Ra- the coronavirus pandemic by the Trump Administration
chael A. Honig. and corporate greed has been a significant factor in the
The U.S. Department of Justice (DOJ) said Avis Budget increase in FCA violations.
received «unallowable» additional charges from the We continue to stress that whistleblowers are essen-
U.S. government, including collision damage waiver tial and the key to exposing corporate wrongdoing and
insurance, supplemental liability coverage, personal ac- government fraud. Their role has intensified dramatically
cident insurance, and late turn-in fees. and will continue in that direction in the immediate fu-
According to the settlement agreement, Avis Budget ture and beyond. A person who has first-hand knowledge
provided rental car services to the U.S. government, in- of fraud or other wrongdoing may have a whistleblower
cluding the DOJ, under a deal managed by the U.S. De- case. Before you report suspected fraud or other mis-
fense Travel Management Office. Under the agreement, conduct – before you “blow the whistle” – it is essential
military service members and government employees can to make sure you have a valid claim and that you prepare
rent vehicles from the company. But the Department of for what lies ahead. The experienced group of lawyers on
Defense and Defense Criminal Investigative Service later our team is dedicated to handling whistleblower cases.
discovered that the company overcharged government If you are aware of any fraudulent activity in Corpo-
employees for car insurance payments for five years. rate America against the federal or state governments,
Avis Budget has agreed to pay over $10.1 million for the you could be rewarded for reporting the fraud. If you
claims, including $6 million in restitution to be trans- have any questions about whether you qualify as a whis-
ferred back to the government. The United States is rep- tleblower, you can contact one of the lawyers on Beasley
resented by Assistant U.S. Attorney Mark C. Orlowski of Allen’s Whistleblower Litigation Team for a free and con-
the U.S. Attorney’s Government Fraud Unit in Newark. fidential evaluation of your claim. There is also a contact
Source: Law360.com form on the Beasley Allen website that you can use.
The Beasley Allen lawyers set out below are on the
Jury Awards Former AstraZeneca Sales Manager Whistleblower Litigation Team: Larry Golston (Lar-
$2.4 Million In Whistleblower Retaliation Case ry.Golston@BeasleyAllen.com), Lance Gould (Lance.
Gould@BeasleyAllen.com), James Eubank (James.Eu-
AstraZeneca and a former sales manager have each bank@BeasleyAllen.com), Paul Evans (Paul.Evans@Beas-
10 BeasleyAllen.comleyAllen.com), Leslie Pescia (Leslie.Pescia@BeasleyAllen. vehicles and failed to inform the customer their tires
com), Leon Hampton (Leon.Hampton@BeasleyAllen. needed to be replaced.
com), Tyner Helms (Tyner.Helms@BeasleyAllen.com) For instance, our lawyers resolved a case for a client
and Lauren Miles (Lauren.Miles@BeasleyAllen.com). Dee whose son suffered an amputated leg when his mother’s
Miles (Dee.Miles@BeasleyAllen.com) heads our Con- vehicle sustained a tread belt separation and overturned.
sumer Fraud & Commercial Litigation Section, partic- One week before the crash, the vehicle’s brakes had been
ipates in whistleblower litigation, and works with the serviced, the tires were removed for servicing, and the
Litigation Team. The lawyers can be reached by phone at client inquired if the tires needed to be replaced. She
800-898-2034 or by email. was told the tires were in good condition and did not
VI.
need replacing. In reality, the tires were over ten years
old and should have been taken out of service.
Our product liability lawyers successfully handled
PRODUCT LIABILITY UPDATE another case where a service center placed 14-year-old
tires on a vehicle. Two weeks later, one of the tires suf-
fered a tread belt separation leaving the client with a se-
Tire Aging And Used Tires Produce vere spinal cord injury.
Catastrophic Results Such tragedies could be avoided if the service cen-
ters would warn consumers about the age of their tires.
Many people do not think of tires as a safety device; Moreover, many consumers do not know how to read the
however, they are one of the most important safety de- DOT number of a tire. The last four digits of a DOT num-
vices on a vehicle. Tire failures, such as blowouts and ber on a tire sidewall provide the week and year of man-
tread separations, can lead to loss of vehicle control and ufacture. For instance, DOT Y2XX PQRT 3109 means that
result in serious and fatal injuries. The condition and age the tire was manufactured on week 31 of 2009. There-
of a tire can be contributing factors leading to tire fail- fore, in tire defect cases, not only does liability rest with
ures. the tire manufacturer, but in many cases, the used tire
Often tires are kept on a vehicle well past their ser- dealer and service center are liable for selling, servicing
vice life. Many consumers are aware of the importance and / or failing to warn the consumer of the age of a tire.
of looking at the tread depth of a tire, but many are un- If you need more information or have questions, con-
aware that the tire’s age is a factor that should be con- tact Mary Leah Miller, a lawyer in our Personal Injury &
sidered when replacing tires. It is recommended within Products Liability Section. She handles product liability
the industry that tires be replaced at six years of age and cases at 800-898-2034 or by email at MaryLeah.Miller@
no later than age ten. This is because the rubber compo- BeasleyAllen.com.
nents begin to break down over time, allowing oxygen
to permeate the rubber, resulting in internal damage to Split Decision In Two 3M Bellwether Trials
the tire. Alleging Faulty Earplugs
While many people are familiar with dry rot on the
outer appearance of a tire, the internal components are There have now been two more bellwether trials
what hold the tire together. Those components suffer against 3M. The second trial resulted in a win for the de-
from age and exposure to oxygen over time. This in- fendant, with the third ending with a $1.7 million plain-
creases the likelihood of a tread belt separation, leading tiff’s verdict. The cases are a part of the class action over
to losing control of a vehicle and serious injury or death claims that 3M’s combat earplugs didn’t protect service
to vehicle occupants. members’ hearing the way they were supposed to.
While tires are an essential safety device on a vehicle, The federal jury in the trial in Pensacola, Florida,
they can also be costly to replace. Thus, leading to the found that 3M was not responsible for the hearing loss
growing number of used tire dealers and the purchase of Dustin McCombs, an Afghanistan veteran. He expe-
of used tires by consumers. If the tread depth appears rienced an IED explosion there in 2009, which started
sufficient and the outer appearance of the tire seems a tinnitus problem that worsened when McCombs was
to look satisfactory, neither the used tire dealer nor the later stationed at Fort Richardson in Alaska. McCombs
consumer pays attention to the tire’s age. A consumer said the earplugs made by 3M predecessor Aearo were
could purchase a fourteen-year-old tire that should nev- supposed to protect him better.
er have been sold and instead should have been taken A Florida federal court jury on June 18 said that Lloyd
out of service. Baker, a service member, sustained $1.7 million in hear-
Compounding the problem are automobile service ing loss damages from 3M’s combat earplugs. The jury
centers that will place these used tires on vehicles with- noted that 3M was 62% responsible, finding that 3M
out checking the tire’s age when they should be doing so failed to warn of issues with the earplugs. But the jurors
and warning the consumer that the tire is past its service also said that plaintiff Baker was 38% at fault.
life. In addition to service centers that place the tires on Some 235,000 service members have brought claims
vehicles, many service centers will service the vehicle, in the nation’s largest-ever MDL, saying the earplugs
including the tires, yet fail to provide the customer in- failed to protect their hearing in ultra-loud training and
formation on the tire’s age. combat environments. In this third trial, Baker, a former
Beasley Allen has successfully litigated cases against infantryman and M240 machine gun operator said he ex-
tire manufacturers for design and manufacturing de- perienced muffled hearing and ringing beginning when
fects. It has also litigated cases against service centers he had training at Fort Lewis in Washington state in 2005
that installed tires well past their service life or serviced and 2006 before going to Iraq. Baker was diagnosed with
BeasleyAllen.com 11You can also read
