In this issue:

• Alabama Supreme Court rules for drug companies
• Court rules that ford can be sued for airbag failure
• The Toyota recall fails to address all safety concerns
• Beasley Allen 2009 Legal Strategies Conference and Expo

These are just a few of the subjects reviewed in the July 2009 issue of The Jere Beasley Report, distributed monthly by Beasley, Allen, Crow, Methvin, Portis & Miles, P.C.

Jere Beasley Report, November 2009

http://www.jerebeasleyreport.com/2009/11/

SOURCE: Jere Beasley Report › Jere Beasley Report, November 2009

We consider this to be the premiere annual event for Alabama lawyers in private practice. It gives us the opportunity to enhance our knowledge of current legal issues while earning continuing legal education credits. The event features a wide range of speakers this year, including former Alabama Governor Albert Brewer; Alabama’s senior U.S. Senator Richard Shelby; Greg Cusimano, sought-after trial consultant with Winning Works LLC; Morris Dees, Founder and Chief Trial Counsel of the Southern Poverty Law Center; and noted sports author and head of The Paul Finebaum Radio Network, Paul Finebaum.

This year, in response to the overwhelming feedback from last year’s event, the Conference also will include a legal services expo featuring a very limited number of the nation’s top legal services providers. Additionally, the BeasleyAllen.com Racing ARCA car will be on display. Other highlights of this year’s conference include a prayer breakfast, luncheon, and dinner reception.

We would like to thank our sponsors for this event, including Lexis Nexis, LegalTube, Lawyers.com, Forge Consulting LLC, Freedom Court Reporting, Asbury Newton, and MediConnect Global. For more information, registration and a complete agenda, visit expo.beasleyallen.com

SOURCE: Jere Beasley Report › Beasley Allen 2009 Legal Strategies Conference and Expo

By refusing to allow oral argument, the Court did not allow the members of the news media who had not attended the actual trials that began in 2008 to hear first-hand about the bad conduct of these companies. The AstraZeneca case had been pending for so long that even the few members of the news media that attended that trial may have forgotten just how strong the State’s case against that Defendant really was.

I also find it most unusual that absolutely nothing relating to the Defendants’ bad conduct was even mentioned by the Court in its opinion. The decision reached by the Alabama Supreme Court is most difficult to understand when you consider that:

• The federal government did an investigation in 2002 and reported in 2003 that the drug manufacturers had been committing massive frauds in the Medicaid program and issued guidelines designed to eliminate the fraudulent conduct. If the federal government hadn’t known about the fraudulent activity how could individual state Medicaid agencies be expected to know especially since most have been underfunded and understaffed?

• Committing fraud against the Medicaid program hurts the elderly, the disabled, the young, and the poor as well as every Alabama taxpayer;

• The federal government had conducted an investigation and found massive frauds by drug manufacturers in the state Medicaid programs.

• AstraZeneca – one of the companies – entered a guilty plea to a charge of criminal fraud in federal court involving state Medicaid reimbursement;

• AstraZeneca paid a criminal fine of $570 million relating to that criminal guilty plea;

• AstraZeneca settled state Medicaid fraud cases involving reimbursement for $355 million;

• A top official at AstraZeneca prepared an internal pricing document containing a virtual roadmap for cheating state Medicaid agencies;

• AstraZeneca, as a part of the settlements mentioned above, agreed to submit true prices to state Medicaid agencies;

• AARP – a national group with 500,000 Alabama members – has fully supported Alabama in its lawsuit against the drug companies and in the appeal;

• Thirteen state Attorneys General have supported Alabama’s position and each filed a brief on Alabama’s behalf;

• Since the Alabama case was tried – and after the case was appealed in July 2008 to the Alabama Supreme Court – a Federal Appeals Court heard a separate appeal in a case where AstraZeneca was found guilty of fraudulent conduct in a Medicaid reimbursement case;

• A Federal Appeals Court in that case found that AstraZeneca was guilty of extremely bad conduct;

• A Kentucky jury, after hearing the same evidence we had developed and presented in the Alabama case, delivered a verdict against the drug manufacturer in the amount of $14.72 million. This verdict came one day before Alabama’s cases were reversed.

• We had settled with several drug manufacturers in Alabama – with the very same law and the very same facts involved – for $138 million.

Taking all of the above into consideration, and knowing the facts of this case, it is extremely difficult to see how the Alabama Supreme Court could side with the drug companies and against the citizens of Alabama who are in the Medicaid program and against all Alabamians who pay taxes that support the program. All Alabamians are the losers, and politically-powerful drug companies were declared winners by the Alabama Supreme Court. This is a sad day for the Alabama Medicaid Program and all Alabama taxpayers.

We have asked the Supreme Court to reconsider what it has done. We again requested an opportunity to appear before the Court and argue in person the State’s case. Hopefully, the Court will grant oral argument so that the people of Alabama can find out exactly what has happened to them.

SOURCE: Jere Beasley Report › Alabama Supreme Court rules for drug companies

Bayer is the world market leader in hormonal contraceptives. Sales of Yaz and Yasmin were more than $1 billion last year. Jan Pehrke, who is from the Coalition against Bayer Dangers, says:

The side effects of Yaz and Yasmin are more dangerous than those of older oral contraceptives. Bayer concealed the risk of injury, failed to warn doctors or their patients and downplayed the risks of Yasmin and Yaz in comparison to other available birth control pills.

Both Yaz and Yasmin contain 3mg drospirenone, a hormone which promotes dehydration and leads to a slight weight loss. However, the loss of fluid also increases the risk of blood clots. German authorities reported seven deaths related to Yasmin. German and Swiss authorities recently started investigations into the risks of Yasmin.

In the United States at least 48 lawsuits have been filed against Bayer. It’s alleged in the suits that from 2004 through 2008 Yaz/Yasmin has caused more than 50 deaths. Some of the deaths occurred in women as young as 17. Deaths associated with cardiac arrhythmia, cardiac arrest, intracardiac thrombus, pulmonary embolism, and stroke have been reported. Bayer has refused to release any figures on side effects linked to contraceptives. Apparently, its reluctance is so as “not to make its customers uneasy.” Hubert Ostendorf from the Coalition against Bayer Dangers, had this to say:

Bayer is trying to establish hormone products as a standard contraceptive throughout the world, because their profits are enormous. That’s why the severe side effects are pushed into the background.

The Coalition has demanded that all studies and all reported side effects be published. Yaz/Yasmin is heavily advertised by Bayer, especially towards girls and young women, by promising reduction of weight and acne relief. In a television ad, for instance, Bayer claimed that Yaz “can help keep your skin clear,” despite the fact that clinical studies have not concluded that taking Yaz results in acne-free skin.

Yaz advertisements in the United States also claimed that it would treat the symptoms of premenstrual dysphoric disorder. In October of 2008, Bayer was cited by the FDA for deceptive claims. The ads, according to the FDA, were overstating the benefits of Yaz while distracting viewers from the risks. Bayer had to conduct a $20 million corrective advertising campaign. California Attorney General Edmund Brown stated:

Bayer’s deceptive ad campaign led young women to believe that its oral contraceptive would cure symptoms for which it was not approved for use.

Our firm has been investigating claims involving Yaz and Yasmin and will continue to do so. If you have questions about this matter, contact Frank Woodson in our firm at 800-898-2034 or by email at Frank.Woodson@beasleyallen.com.

Source: Coalition against Bayer Dangers

SOURCE: Jere Beasley Report › Dangerous contraceptive pills should be removed from the market

The king stood by his pillar and renewed the covenant in the presence of the LORD–to follow the LORD and keep his commands, regulations and decrees with all his heart and all his soul, and to obey the words of the covenant written in this book.

2 Chron 34:31

I find that most folks who don’t have a connection to the FCA have never heard of the Josiah Challenge and that’s certainly understandable. According to Chette, this challenge is for students to: read the Bible; share the personal impact of the Bible; challenge each other to read the Bible; and challenge each other to commit to Jesus Christ.

Since 2004, more than 200,000 students have gathered to hear Josiah’s challenge and take a stand. You can go to www.FieldsofFaith.com to learn more about Josiah’s challenge and how you can help. You might also want to support the FCA in its overall mission. I can think of no better group to support than the FCA. It is taking the Gospel message to our young people and that’s good news! To learn more about the FCA, go to www.FCA.com.

SOURCE: Jere Beasley Report › Parting words for October

Catch It – Spread It

With the recent outbreak of Swine Flu, people are taking a lot of measures to keep from spreading that particular deadly disease. Here in the Montgomery area we saw high school athletic events cancelled, multiple instruction sheets from businesses and churches about how to avoid catching and passing on the flu, etc. Hopefully, it has been contained. It really got a lot of publicity and people expended a lot of energy to keep from catching it and spreading it.

There are also things for which we need to encourage an epidemic. We need to see that it could spread rapidly. This list could be almost endless. I would like to see a contagious outbreak of Christian commitment, Christian witness, church attendance, prayer, Bible study, etc. These would be excellent subjects for an epidemic. The big question is – Is there something about me that people ought to catch? What would happen to the gross national product in America if everybody caught my work ethic? What would be the trust level of people if everybody caught my core ethical values? What kind of atmosphere would pervade our country if everybody caught my attitude? You can go on with the list.

There is one thing that I hope we can all catch. I learned it from a man whom I admire and serve with on the Board of the United Methodist Publishing House. His name is Dr. Robert Spain. He is a retired United Methodist Bishop and serves as chaplain to the Publishing House. He tells about his first pastorate in Shawnatee, Tennessee. It was a small church in a rural area of Tennessee.

The real leader of the church was Mr. William Dixon – known affectionately as “Uncle Billy.” He was the patriarch of the community. Everybody loved him. Even though the church had elected officials, Uncle Billy really made the decisions. He made the announcements on Sunday mornings. He was quite elderly. He had one eye. He had lost one arm. When he prepared to make the announcements in church he would simply tuck the paperback hymnal under his arm, walk up, and start talking. Bob Spain said, “I learned to just sit down and let him say what he had to say.”

A mysterious illness began to spread among the people in Shawnatee. People became seriously ill. A public health nurse came in from Knoxville to investigate. The nurse determined that the illness was due to the fact that people were all drinking from the same dipper on a well which was located between the school and town. Anyone who was thirsty would simply drop the bucket in the well, pull it up, use the dipper that was always there, and get a refreshing drink of water.

The nurse explained to Bob Spain that the illness was being passed on by people drinking from the common dipper. She asked for his help to inform the people and stop this practice. In small rural towns in Tennessee, people don’t take well to people from the “big city” like public health nurses, etc. Rev. Spain decided to ask Uncle Billy to help him tell the church. Uncle Billy agreed on Sunday morning to help spread the word. He encouraged people to quit drinking from the dipper at the well. He said this is where we are catching and spreading the illness. He pleaded with them to quit drinking from that dipper. They listened and obeyed.

Uncle Billy then tucked his paperback hymnal under his arm, knelt at the communion table, removed a white cloth from the communion elements, took the cover to one of the communion trays off, and took one of the little glasses out. He walked back and forth in front of the first row holding the cup, spilling some of the communion grape juice. He walked back and forth. He said to the people with intense emotion, “I plead with you that we all drink from this cup and catch what Jesus had.” Please drink from the cup and catch what Jesus had! This is what we need to catch – what Jesus had. We need to spread it. Let’s start an epidemic!

John Ed Mathison

October 1, 2009

SOURCE: Jere Beasley Report › More from Dr. John Ed Mathison

I only wish that I had always had the sort of courage exhibited by Lawyer Finch in my life to stand up for right and justice regardless of the odds against me. Having grown up in rural Alabama at a time when few lawyers would have had the courage to take on a case such as the one Harper Lee wrote about, I can fully understand the extreme challenges Atticus Finch faced. Each of us who has chosen the Law as our field of work should reflect on how we would have reacted had such a case been put in our hands for a defense. Here is how Rheta wound up her excellent column:

Atticus Finch has been a role model for a lot of us. … He saw racism as a “sickness,” which it is. And, by the way, it’s still a sin to kill a mockingbird.

Atticus Finch should serve as a role model for all lawyers in the United States – both young and old – as they take on just causes at times when the popular route would be to avoid taking a stand.

SOURCE: Jere Beasley Report › Lawyers need role models, too

Do not let this Book of the Law depart from your mouth; meditate on it day and night, so that you may be careful to do everything written in it. Then you will be prosperous and successful. Have I not commanded you? Be strong and courageous. Do not be terrified; do not be discouraged, for the LORD your God will be with you wherever you go.

Joshua 1:8-9

Mrs. Tara Davis, the wife of Artur Davis, sent a verse in this month. Tara says she relies on this verse to keep her grounded and motivated in her daily work.

The King will reply, I tell you the truth, whatever you did for one of the least of these brothers of mine, you did for me.

Matthew 25:40

SOURCE: Jere Beasley Report › Favorite Bible Verses

Alabama Celebrates National Pro Bono Week

The Alabama State Bar will celebrate National Pro Bono Week, Oct. 25-31, 2009. This celebration recognizes the valuable work lawyers do throughout the year to represent those who cannot afford civil legal assistance. The event provides a time to reflect on this core value of our profession, celebrate the achievements of pro bono activities, and elevate them to even higher levels of service. This is a time to both educate the public about the pro bono services attorneys provide, and to celebrate those providing those services – Alabama lawyers.

Alabama was the first state in the nation to officially designate October 25-31, 2009 as Pro Bono Week, with a proclamation signed by Gov. Bob Riley.

Pro Bono work is a priority for the Alabama State Bar, and is accomplished through the Volunteer Lawyers Program (VLP). The VLP works to meet the needs of low-income Alabamians with the active participation of our members, who donate their time to ensure the underserved have equal access to justice. Our clients are low-income persons who cannot afford an attorney and who have a wide range of legal problems including consumer, domestic, housing, and probate matters.

As part of Pro Bono Week, the Bar set a number of goals designed to help those in need, to promote Volunteer Lawyer service to our colleagues in the legal community, to help increase funding for these services, and to raise public awareness of pro bono work.

Outreach activities will include a partnership with every circuit in the State, and all five law schools to provide pro bono services in their communities. VLP clinics will provide free legal services all over the state within the 60-day timeframe surrounding Pro Bono Week.

In addition to participating in hands-on service events, Bar members also will speak to members of the media, as well as to civic clubs and organizations, and Public Service Announcements about Pro Bono Week will be broadcast throughout the state on television and radio. These efforts will help raise the profile of the legal profession by illustrating the good work attorneys do within the community, while helping to educate the public about the varied nature of pro bono work and the many people it serves.

The Alabama State Bar has set up a special web site with more information about plans for the National Pro Bono Celebration, including a calendar of events that will be taking place throughout the state. Visit us at http://www.alabar.org/ProBonoWeek/index.cfm.

Tom Methvin

October 1, 2009

SOURCE: Jere Beasley Report › The monthly message from State Bar President Tom Methvin

Part of the military training they had recently undergone included how to upright an overturned vehicle and provide emergency medical assistance. These soldiers from Detachment 1, 2101st Transportation Company are heroes and all Alabamians should be proud of them. Governor Riley had this to say:

The terrorists we fight kill innocents. They don’t save them. The terrorists have been taught there is a “right” way to die. We’re taught that there is a right way to live.

These Alabama National Guard troops will be deployed to Iraq early in 2010. Our prayers and support will go with them.

SOURCE: Jere Beasley Report › National guard heroes are honored

SOURCE: Jere Beasley Report › Southern governors to work for economic success

It is tragic to talk to people who thought they were doing a good thing, that they were doing the right thing, by buckling up their children in safety seats. Then they find out that the seats weren’t installed properly, and they blame themselves if their child is injured.

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, helping to save lives and prevent serious injuries in the event of a crash. However, three out of every four child restraints are not properly used.

During National Child Passenger Safety Week, there were hundreds of free child seat inspection stations set up throughout the country. Hopefully, parents and caregivers took advantage of this service so their children can get the very best protection. For more information, visit http://www.cdc.gov/motorvehiclesafety/child_passenger_safety/childseat-spot.html.

SOURCE: Jere Beasley Report › Mayor Todd Strange designates child passenger safety week

Stephanie graduated Magna Cum Laude from South University with an associate of science degree in Paralegal Studies. She is currently studying so she can obtain a Legal Assistant Certification. Stephanie is a member of the National Association of Legal Assistants and the Spina Bifida Association of Alabama. She enjoys spending time with her family, teaching her boys how to cook, riding four-wheelers, watching movies and playing board games. Stephanie works hard and is a very good employee. We are fortunate to have her with us.

SOURCE: Jere Beasley Report › Stephanie Wall

SOURCE: Jere Beasley Report › Senator Shelby will be a featured speaker at annual retreat

SOURCE: Jere Beasley Report › No Auburn reception this year

• Toyota Recalls Nearly 100,000 Vehicles

• Baby Jogger Recalls Strollers Due To Fall Hazard

• Window Shades And Blinds Are Recalled After 3 Strangulation Deaths

• Frigidaire And Kenmore Smoothtop Electric Ranges Recalled Due To Fire Hazard

• Maytag Recalls More Refrigerators

• Simplicity Bassinet Recall Re-Announced After Two More Infant Deaths

• Recall Durabrand DVD Players Recall Is Expanded

• OfficeMax Recalls Office Chairs Due To Fall Hazard

• Kellogg’s Recalling Two Types Of Eggo Waffles

• California Firm Recalls Spinach After Salmonella Found

Please let us know how this approach works. We need your input.

SOURCE: Jere Beasley Report › Recalls update

SOURCE: Jere Beasley Report › Recorded telemarketing calls are now illegal

The federal survey is the most comprehensive list to date of coal ash storage sites and includes information submitted by 219 facilities. The EPA says that to date it had not received any information or detected any issues at the 584 coal ash storage sites identified that required immediate action. But environmental groups believe that the number of sites and the danger they pose to surrounding communities clearly reveals that coal ash ponds need federal regulation.

Coal ash is a byproduct of burning coal that can include heavy metals and other toxic contaminants. Although the EPA has long recognized coal ash as a risk to human health and the environment, no federal regulations or standards govern its storage or disposal. I believe strong regulation is badly needed as well as inspections of all of the existing sites. The EPA is aware of 67 cases where coal ash has polluted or is suspected of polluting water. EPA Administrator Lisa Jackson has said that the agency would consider federal rules. It will be interesting to see what happens on that front.

Source: Associated Press

SOURCE: Jere Beasley Report › Coal Ash sites found in 35 states

The law creating the database was passed in 2007, after Congress criticized the FDA for its handling of safety problems with a range of foods and drugs. The FDA has had all sorts of problems since then trying to manage a number of food-safety recalls, including national outbreaks of salmonella. President Barack Obama has pledged to improve the safety of the nation’s food supply and that’s good news. Hopefully, this new rule will benefit regulators in their efforts to improve our food safety system.

Source: Associated Press

SOURCE: Jere Beasley Report › FDA requires faster food safety reporting

The law creating the database was passed in 2007, after Congress criticized the FDA for its handling of safety problems with a range of foods and drugs. The FDA has had all sorts of problems since then trying to manage a number of food-safety recalls, including national outbreaks of salmonella. President Barack Obama has pledged to improve the safety of the nation’s food supply and that’s good news. Hopefully, this new rule will benefit regulators in their efforts to improve our food safety system.

Source: Associated Press

SOURCE: Jere Beasley Report › FDA requires faster food safety reporting

The jury found for Mrs. Castle and awarded $450,000 in damages with $50,000 of the amount being punitive. While the 55-year-old never finished her degree, she says telling the college administration what was happening was the right thing to do. Mrs. Castle said she and other students would arrive for clinical training early in the morning, but by 8 a.m., the instructor would dismiss the students. A total of 740 hours of hands-on training is required for a degree. According to Mrs. Castle, meeting that requirement would have been impossible based on the instructor’s actions.

Mrs. Castle said she and her husband had moved to Jasper so she could attend the college and “pursue her dream of being a nurse.” With their children grown, she felt the time was right for her to go back to school. This was a situation when a person saw a wrong and reported it – was punished for reporting – and was ultimately compensated for doing the right thing. Unfortunately, her dream of becoming a nurse was derailed.

Source: Atlanta-Journal Constitution

SOURCE: Jere Beasley Report › Jury awards whistle-blower student $450,000

The suit seeks the return of about $1 billion in “special allowance” payments wrongfully obtained under a federal subsidy program. The subsidy guaranteed a 9.5% return on a limited class of student loans. It was created in the 1980s to ensure low-cost student loans at a time when the economy was souring and interest rates were high. The civil suit seeks triple damages – $3 billion – plus civil penalties of $11,000 for each violation.

It was largely phased out in 1993, but companies found a loophole that allowed them to actually expand the number of loans receiving the subsidy by recycling older loans and packaging them with newer ones. It was reported that Nelnet has acknowledged using the loophole. The Department’s Inspector General recommended the company repay the federal government $278 million. Instead, in a rather interesting development, Nelnet and the Department of Education reached a settlement in January 2007 that allowed the lender to actually keep the $278 million. Under the settlement Nelnet agreed to stop using the subsidy, giving up as much as $882 million in future profits.

Also named as Defendants in the civil suit are: Sallie Mae; Southwest Student Services Corp., a Sallie Mae subsidiary; the Kentucky Higher Education Student Loan Corp.; the Pennsylvania Higher Education Assistance Agency; the Vermont Student Assistance Corp.; the Panhandle Plains Higher Education Authority; Brazos Higher Education Services Corp.; the Arkansas Student Loan Authority; and Education Loans Inc. of South Dakota. The case is expected to go to trial early next year. Interestingly, earlier this summer, Nelnet was chosen by the U.S. Department of Education to be one of four student loan companies that will service federal student loans. Bert Rein represents the whistleblower in this case.

Source: Lincoln Journal Star

SOURCE: Jere Beasley Report › Nelnet and others sued over misuse of subsidy

In the 2003 settlement over very large fees paid to Visa and MasterCard, which dominated the payments market, Visa agreed to pay $2 billion over a period of ten years, in equal annual installments of $200 million. MasterCard Inc, the world’s second-largest credit card company, had previously agreed to prepay its obligations at a discount.

As you may recall, a few years back, Visa and MasterCard also agreed to pay almost $4 billion to American Express Co. and $2.75 billion to Discover Financial Services after the credit card networks accused their bigger rivals of harming their business by preventing banks that issued MasterCard and Visa cards from also offering their cards.

Source: Reuters

SOURCE: Jere Beasley Report › Visa to pay off settlement early

The lawsuit seeks reinstatement, unspecified compensatory damages and reimbursement for lost wages. The FDA and Florida authorities are still investigating while Franck’s Pharmacy continues to do business. Franck’s denies that it caused the horses’ deaths and says it didn’t fire the employee because she cooperated with investigators.

Florida’s state veterinarian, Dr. Thomas J. Holt, has blamed the horses’ deaths on an overdose of a common mineral that helps muscles recover from fatigue. Holt said in April that toxicology tests showed significantly increased selenium levels. The horses from the Venezuelan-owned Lechuza Caracas team began collapsing in April as they were unloaded from trailers at the International Polo Club Palm Beach before a championship match. Some died at the scene and others died hours later. The horses had been given the supplement that day.

Franck’s Pharmacy has acknowledged the concoction contained too much selenium. The Lechuza team had ordered a compound similar to a name-brand supplement known as Biodyl, which includes vitamin B, potassium, magnesium and selenium. The supplement is used around the world but hasn’t been approved by the FDA for use in the U.S. Ms. Harris, the whistleblower, says she worked at Franck’s for more than 13 years. She said she mixed the compound as ordered, but later noticed “its consistency had changed, and the liquid had become cloudy.”

The Complaint alleges Ms. Harris was told by a pharmacy manager to simply “adjust the Ph balance and to filter the drug again.” It was then labeled and delivered, according to the suit. Harris claimed she spoke with FDA investigators twice after the horses died. She was fired on May 14^th, the day before an FDA investigator was set to return for a third interview. Franck’s Pharmacy contended in a termination letter to Harris, included in the Complaint, that she was fired “as part of a company-wide effort to improve performance and increase efficiencies,” not for misconduct.

Source: Associated Press

SOURCE: Jere Beasley Report › Lawsuit filed in the death of 21 polo horses

Both Alli and Xenical are marketed by British drug maker GlaxoSmithKline PLC, (GSK) but Xenical is manufactured by Swiss firm Roche. The FDA says it has not established a direct relationship between the weight loss treatments and liver injury, and advised patients to continue using the drugs as directed. The agency says: “Consumers should consult their health care professional if they are experiencing symptoms.”

The FDA said 30 of the liver injury cases occurred outside the United States and involved 120 milligram doses of prescription Xenical. The two U.S. cases were associated with GSK’s nonprescription version of the drug, which is sold under the name Alli, according to the FDA. The nonprescription dose is half of the prescription dose. Roche reported first-half 2009 sales for Xenical of 209 million Swiss francs ($197 million). GSK reported Alli sales of $125 million for the second quarter.

The FDA first approved Xenical in 1999 and alli in 2007. The prescription pill is twice as potent as alli, which can be bought over the counter. GSK reported $123 million in sales for alli last year, while Roche posted $472 million in revenue for Xenical. Signs of liver damage include fatigue, fever, nausea and vomiting. The FDA said it’s reviewing additional details about the suspected cases of liver injury submitted by manufacturers. In general, the FDA has started notifying the public earlier about possible safety issues with drugs, after coming under fire for acting too slowly on problems with blockbuster treatments like Merck’s painkiller Vioxx.

Source: Yahoo News

SOURCE: Jere Beasley Report › FDA probes liver damage caused by weight loss pill Alli

In August 2008, Airborne Inc. agreed to pull misleading ads as part of an FTC probe. As part of that settlement, Airborne agreed to add up to $6.5 million to a $23.5 million fund created by a separate class action lawsuit filed against Airborne in California. According to CVS, the packaging for Airshield, the store brand equivalent to Airborne, was changed in 2008. CVS has also agreed to pay $2.78 million to the FTC to cover the costs of a refund program for customers who purchased CVS Airshield from July 2005 through November 2008.

FTC will administer the refund program based on purchase information provided by CVS. The commission warned consumers to be aware of claims made about dietary supplements. David Vladeck, director of the FTC’s Bureau of Consumer Protection, had this to say:

With orders against Airborne, Rite Aid, and now CVS, manufacturers and retailers are on notice that they have to tell the truth about what dietary supplements can and cannot do.

There is no telling how much money is paid out annually by the American people for drugs and supplements – with lots of them being virtually worthless and others not as advertised – and that’s a shame.

Source: Reuters

SOURCE: Jere Beasley Report › CVS to pay $2.8 million in refunds for immune-support ads

Currently, drinking water standards in California, and many other places, limit only the amount of total chromium, without requiring a limit on each specific type of chromium. The new regulatory limit on hexavalent chromium proposed in California, which is .06 parts per billion, was the result of a long battle led by health and environmental activists. Big industry fought against placing a limitation on this chemical.

The sad reality is that most people assume that their drinking water is safe, simply because it is regulated and tested. Before making this assumption, it would be wise to find out what is regulated and what is not. You may be shocked at what you find out.

Source: Environmental Working Group

SOURCE: Jere Beasley Report › California is first state to limit Erin Brockovich chemical

The Clean Air Act’s MACT program regulates emissions of hazardous air toxins, such as mercury, which can cause severe neurological deficits in infants, fetuses, and young children. Judge Spencer ruled that the “mercury emission limit . . . must be set ‘irrespective of cost or achievability,’” and that the “escape hatch” was “violative of the laws addressing pre-construction mandates.”

When Congress passed the Clean Air Act, it required companies to obtain such permits before construction began on a power plant. The goal was to ensure that the plant was designed and built in a way to protect the public health and welfare. Dominion, which started construction a week after the Virginia air board approved the permits in June 2008, has said the plant is about 20% complete. The judge’s ruling invalidated the MACT permit.

The Wise Energy for Virginia Coalition has raised a host of concerns regarding Dominion over the past several years including air pollution and the health of the local community, water quality, mountaintop removal coal mining, and the impacts of the plant’s carbon emissions on global warming. Over 42,000 Virginians signed petitions and sent letters to state and company officials opposing the project.

Source: Southern Environment

SOURCE: Jere Beasley Report › Virginia court rules in favor of environmental groups

The Houston “rally” was the first of these orchestrated events. Public Citizen says it was more like a company picnic than a real rally. In fact, ordinary citizens were barred from entering the rally. The only people allowed in were energy company employees, who were bused in and who had to show a company ID in order to get in. This sort of thing should be made known to the news media and more importantly to the American people. It’s no more than a well-financed effort to control Congress by those big companies opposing climate change legislation.

Source: Public Citizen

SOURCE: Jere Beasley Report › Public citizen exposes a fraud in Texas

Other Gulf states didn’t fare any better on the “Clean Up Your Act!” Report Card released last month. The best grade went to Texas, but that state only got a “C.” Alabama’s grade was low because ADEM failed to set limits on the amount of nitrogen and phosphorus that can be dumped into rivers and Mobile Bay by industry and municipal sewer systems, according to the groups. Such limits are called for under the Clean Water Act.

As you may know, nitrogen and phosphorus are key ingredients in fertilizers and organic waste. Together, they represent the main culprits in the formation of both the Gulf of Mexico’s low-oxygen area, known as the dead zone, and the smaller dead zone that develops in Mobile Bay each summer. This year, the Mobile Press Register reported that Mobile Bay’s dead zone developed earlier than normal and appeared to be more widespread than in previous years.

Under the Clean Water Act, Alabama was supposed to have adopted statewide limits for nitrogen and phosphorus by 2004. Those standards, according to the environmental groups, have still not been adopted in 2009 regardless of whether ADEM has enforced limits on some facilities.

Source: Mobile Press Register

SOURCE: Jere Beasley Report › Environmental groups give Alabama a low grade on water quality

Source: Baltimore Sun

SOURCE: Jere Beasley Report › $150 million gas-spill award upheld

According to the United States Environmental Protection Agency there are more than 18,000 USTs in active use in Alabama. Leaks from these USTs have been reported in every county in Alabama. According to data released by the Alabama Department of Environmental Management (ADEM) in 2006, 147 new UST leaks were reported. In 2007, 101 new leaks were reported, and 81 were reported in 2008. Already in 2009, at least 82 new leaks have been reported to ADEM. Currently, ADEM has more than 1,000 active UST leak sites under investigation throughout the state.

USTs are used by gas stations and oil distributors to store gasoline, oil and other toxic petroleum products. Many of the USTs in use today were installed decades ago and were constructed of materials that are susceptible to corrosion. If they are not properly maintained, monitored and replaced periodically, these USTs can develop leaks which allow toxic petroleum contaminants to migrate through the soil and groundwater to neighboring properties. Some of these contaminants have been found to cause cancer, respiratory illness, kidney and liver disease, as well as other serious illnesses.

We are fighting to protect the rights of clients whose health and property have been damaged by contamination from a leaking UST. If you would like more information, believe that your health or property may have been harmed by a leaking UST, or have questions, you can contact Alyce Robertson Addison or Chris Boutwell in our office at 800-898-2034 or by email at Alyce.Addison@beasleyallen.com or Chris.Boutwell@beasleyallen.com.

SOURCE: Jere Beasley Report › New UST leaks in Alabama occur frequently

In the two years before this paramedic touched this woman inappropriately, three women reported similar behavior by him. The Plaintiff testified that she is afraid to leave home and has had frequent panic attacks. A psychologist testified that the Plaintiff suffers from post traumatic stress disorder. AMR Northwest is owned by a parent company, AMR. Companies that hire medical personnel have a strong duty to do adequate background checks. Individuals must be screened carefully before they are hired. Once hired, a person doing this sort of work must be carefully supervised.

Source: The Oregonian

SOURCE: Jere Beasley Report › Jury returns verdict in molestation case

The researchers focused on 14,000 “binge drinkers” — people who said that at least once a month they had five or more drinks on a single occasion. About 12% said they had gone driving within two hours of their last bout of heavy drinking. Of those drivers, more than half took the wheel after drinking in a bar, restaurant or other licensed establishment. Half of the drivers who left an establishment said they had seven or more drinks, and a quarter said they’d had at least ten. Some people can handle alcohol better than others, and eating food or drinking over several hours can soften alcohol’s impact. By any standard, however, ten drinks is a lot.

Dr. Timothy Naimi, an epidemiologist with the CDC’s alcohol program, who led the study, says that binge drinking is a main factor behind the more than 11,000 deaths annually from alcohol-related motor vehicle crashes. The study will be in the October issue of the American Journal of Preventive Medicine. Nearly every state has a law that in theory prohibits licensed establishments from selling alcohol to drunk patrons. But most states don’t have enough enforcement personnel to stop in on bars and watch for over-serving of customers. “These are among the most disregarded laws in the country,” Dr, Naimi said. Without policing, there’s little incentive for bars, clubs and restaurants to discourage drinking. Tips depend on keeping patrons happy and buying, noted Jim Mosher, a Washington, D.C.-based legal researcher and consultant on alcohol issues.

The CDC study was based on a telephone survey done in 2003 and 2004, and some things have changed since then. Drunk driving fatalities have decreased, dropping nearly 10% from 2007 to 2008, according to the National Highway Traffic Safety Administration. Also, there have been a variety of efforts to reduce drunk driving, including court-mandated devices that prevent a car from starting if a driver is drunk. I give the organization MADD a great deal of credit for any advancement in the battle to curtail drinking and driving. Most efforts focus on punishing the driver and not preventing drunk driving by focusing on those who enable it. Dr. Naimi observed:

The drinking location is really important. We’re trusting these licensed establishments to serve responsibly, and more than half of the intoxicated people who drive have been drinking in these places.

A follow-up survey in 2008 found the situation hadn’t changed, but those results haven’t yet been released. Binge drinking is a serious problem and we had better get a handle on how to combat it.

Source: Associated Press

SOURCE: Jere Beasley Report › A study of binge drinkers reveals some disturbing results

You will probably be shocked to learn that teens – and even pre-teens – can legally purchase energy drinks containing alcohol. Rock Star 21 has 6% alcohol and Sparks contains 7% alcohol. There are eight products on the market that contain 200% more alcohol than that found in a typical can of beer. Currently, Alabama has no law regarding placement of alcoholic drinks in a store separate from non-alcoholic. These AEDs are often stocked with the non-alcoholic brands. Because these cans have similar graphics, consumers and even store clerks are mistaking the alcoholic brands for regular energy drinks.

It has been reported that 31% of 12-17 year olds and 34% of 18-24 year olds regularly consume energy drinks. Producers are now focusing, not on television and radio, but on sporting events, text messaging and internet forums such as Facebook and MySpace to market their products. Alcohol producers, which spend $4.5 billion marketing their products, have built on the popularity of these drinks by blurring the line between alcoholic and non-alcoholic beverages.

A web-based survey of more than 4,000 students revealed that, of the students who drank alcoholic beverages in the last 30 days, 24% mixed energy drinks with alcohol in order to “drink more and drink longer.” A separate survey showed that 54% of those drinking an energy drink do so to improve the taste of alcohol. We all know that alcohol and young people do not mix. It’s illegal for many reasons, one of them being that alcohol is the leading cause of death among youth. Also, research has shown that alcohol consumption, even in modest amounts, can result in permanent brain damage because the brain continues to develop into a person’s mid-twenties. In addition, about 70,000 teens are sexually assaulted and more than 600,000 are physically assaulted each year as a result of drinking or being with someone who is drinking.

Marin Institute performed an in-depth study on the effects of mixing energy drinks with alcohol. Public Health and Safety Officials have become alarmed by their findings. Researchers found in this study that: “The subjects’ performance was significantly worse after ingesting the AED despite their perception of increased alertness and reduced intoxication.”

Alcohol and energy drinks create a dangerous mix. The caffeine, a stimulant in these drinks, disguises the intoxicating effects of alcohol. Fatigue is the body’s way of saying it’s had enough to drink. High doses of caffeine mask the body’s natural way of alerting a person to stop drinking. The alcoholic beverages industry, as a whole, refuses to alert users to the potential for misjudging one’s intoxication. Instead, the industry suggests that the beverages will enhance alertness and energy. It’s predicted that companies in this industry will gross $10 billion yearly by 2010.

Source: ParentTalk Alert

SOURCE: Jere Beasley Report › Alcoholic energy drinks are a big problem

The extent of contamination we found in the data was breathtaking and alarming. The EPA found atrazine almost everywhere they looked. I think that the public will find this hard to swallow and I hope it will help force the EPA to address the situation more aggressively.

The report finds that all of the watersheds monitored by EPA and 90% of the drinking water sampled tested positive for atrazine, which is sold under dozens of brand names. It is now found in more than 45 pre-mixes in the U.S. and is the active ingredient most frequently used by manufacturers in combination herbicide products.

It should be noted that while atrazine is banned by the European Union, it’s regulated in the United States by the EPA. Under the Safe Drinking Water Act, the EPA has determined that an annual average of no more than three parts per billion (ppb) of atrazine may be present in drinking water. One of the chief findings of the NRDC report is that this reliance on a “running annual average” allows levels of atrazine in drinking water to peak at extremely high concentrations. The effects associated with atrazine, even at low levels of exposure, are said to be well documented.

Some scientists are concerned about exposure for children and pregnant women, as small doses could impact development of the brain and reproductive organs. Atrazine also acts as a multiplier to increase the toxic effects of other chemicals in the environment. The federal Agency for Toxic Substances warns:

Atrazine may affect pregnant women by causing their babies to grow more slowly than normal. Birth defects and liver, kidney, and heart damage has been seen in animals exposed to high levels of atrazine.

The NRDC says the herbicide has “limited economic value” and “safer agricultural methods can be substituted to achieve similar results.” The environmental group would like to see atrazine phased out, more effective atrazine monitoring, and the adoption of farming techniques that can help minimize the use of atrazine to keep it from running into waterways.

The NRDC recommends that consumers concerned about atrazine contamination in their drinking water use a simple and economical household water filter, such as one that fits on the tap. They say that consumers should make sure that the filter they choose is certified by NSF International to meet American National Standards Institute Standard 53 for the reduction of volatile organic compounds. That would make reasonably sure the filter was capable of reducing many contaminants, including atrazine and other herbicides and pesticides. NRDC’s SimpleSteps website includes an online form to allow people to take on a watchdog role by collecting information on how their public water systems are treating these issues. Visit www.simplesteps.org/atrazine for more information.

Source: NRDC

SOURCE: Jere Beasley Report › Hormone-disrupting herbicide widespread in U.S. drinking water

The number of cancer cases that the radiation might cause over the next several decades was not mentioned in the study. It has been estimated, however, that the number could be in the tens of thousands of additional cancers. Each individual patient is a relatively minor additional risk from the tests, but because they are given to so many people, it is felt that the cumulative risk is significant.

The use of the tests has risen sharply in the last two decades, as more and more physicians have bought CT and PET scanners and installed them in or near their offices. In 2007, the Department of Health and Human Services estimated that the number of CT scans given to Medicare patients had almost quadrupled from 1995 to 2005, while the number of PET scans had risen even faster. The new study’s lead author, Dr. Reza Fazel, a cardiologist at Emory University, said the use of scans appeared to have increased even more from 2005 to 2007, the period covered by the survey.

Source: New York Times

SOURCE: Jere Beasley Report › Study finds radiation risk for patients

An investigation revealed that the barefoot resident fell down about 85 feet from the door and then tried to crawl back. She made it about 14 feet before her body gave out. The coroner’s report said the poor lady died of hypothermia. The family told the judge:

We entrusted our mother to the Arbor staff, but she was left alone to die alone in the cold. Her will to survive was overcome by the bitter cold, and she suffered a lonely and painful death.

While the incident described above may seem extreme, we have seen similar conduct in many instances where our firm was hired by the family of a nursing home resident who had been injured or died. Nursing home owners and operators owe a high duty, in my opinion, to provide good treatment and supervision for the residents in their facilities. Governments at the federal and state level must do their jobs of regulating these facilities and monitor the level of care and treatment provided to residents.

Source: Chicago Tribune

SOURCE: Jere Beasley Report › Better regulation of nursing homes needed

It is outrageous that Mrs. Sherrod was treated so horrifically. She wasn’t turned and repositioned and developed terrible pressure ulcers. She wasn’t kept clean and developed infections. In addition, she suffered the indignity of languishing in her own waste for long periods of time. We can only hope that other nursing homes take heed and reconsider the way in which they operate their facilities. It is particularly satisfying to have unanimous decisions when you seek justice for a negligence victim’s family.

The arbitration panel was comprised of two former trial and appellate judges and a lawyer who had represented Mariner. The parties each selected an arbitrator and those two arbitrators picked a third arbitrator who presided over the proceeding. The panel rendered its award, finding unanimously for the Plaintiff on the negligence, medical malpractice and TAPA survival claims. The damage awards were determined by a majority of the panel. The amounts awarded, totaling $2,773,396.32 were as follows: TAPA violations — $250,000; Medical malpractice — $626,396.32; Punitive damages — $1,500,000; Attorneys fees for intentional, malicious or fraudulent misconduct resulting in a TAPA violation — $400,000.

Lawyers for the Plaintiff at the arbitration hearing, Kenneth Connor and Henry Giessel of the firm Marks, Balette & Giessel, in Houston, Texas, and Matthew Mussalli, a lawyer in Woodland, Texas, represented the Plaintiff in this arbitration proceeding and did an outstanding job.

Source: Memphis Business Journal

SOURCE: Jere Beasley Report › Arbitration panel finds in favor of victim of nursing home wrongdoing

As we have reported on many occasions, consumers are stripped of their right to go to court over disputes when they open a bank or credit card account, obtain cell phone service, hire a stockbroker or buy a house. The same is true about half of the time when consumers buy computers or obtain cable or Internet service. Arbitration is commonplace in the purchase of automobiles and trucks.

The study, Forced Arbitration: Unfair and Everywhere, is based on inquiries of major credit card providers, banks, cell phone providers, computer manufacturers, cable/Internet providers, auto dealers, brokerages and home builders. The majority of data in the report was obtained by Public Citizen researchers inquiring as consumers about businesses’ arbitration policies. David Arkush, director of Public Citizen’s Congress Watch division, observed:

Even though forced arbitration has been exposed as grossly unfair to consumers, the practice remains ubiquitous in many industries. This means that millions of Americans have been stripped of their right to hold corporations accountable in court.

Forced arbitration requires consumers to settle disputes before secretive, private tribunals instead of courts. Consumer advocates have long said that forced arbitration is unfair because it undermines corporate accountability and deprives people of core protections against corporate wrongdoing. Americans believe they should have the right to legal recourse – including a judge, jury and the ability to appeal – and demand that decisions be based on law, according to recent polling conducted by Lake Research Group. The same poll also found that a majority of Americans – six in ten – oppose forced arbitration.

The continued use of forced arbitration coupled with overwhelming evidence of the processes’ unfairness points to the need for Congress to pass the Arbitration Fairness Act, which would prohibit businesses from forcing arbitration on consumers and employees. The LakeResearch public opinion polling showed that Americans support the Arbitration Fairness Act by a margin of more than two-to-one, including majorities of men and women, as well as Democrats, independents and Republicans. If you agree that forced arbitration that is binding on consumers is unfair, let the members of Congress know how you feel and ask them to support the Arbitration Fairness Act.

Source: Public Citizen

SOURCE: Jere Beasley Report › Congress should act on arbitration legislation

Source: Chicago Tribune

SOURCE: Jere Beasley Report › $15 million settlement in plane crash death

Both drivers in the accident sued each other and the jury award, in favor of Chraca, came after a two-week trial in Cook County Circuit Court. Both Miles, an IDOT employee using IDOT equipment at the time of the crash, and the state, are responsible for the jury award. Martin Healy, Jr., a Chicago, Illinois, lawyer, represented the Plaintiff and did a very good job.

Source: Chicago Sun Times

SOURCE: Jere Beasley Report › Illinois jury awarded $24 million to man injured in crash

The jury awarded Ms. Mayer $750,000 for future medical expenses; $250,000 for past and future loss of earnings; $1.75 million for past and future pain, suffering, disability and disfigurement; $375,000 in punitive damages; and $17,588 for out-of-pocket expenses for a total of $3.14 million.

Obviously, this jury wanted to send a message to the community that drinking and driving will not be tolerated, and it has significant consequences. Bowe crashed his car nearly head-on into Mayer’s vehicle. Bowe admitted he had left a bar in Chippewa Falls and lost control of his car, causing it to collide with Mayer’s vehicle. He had a blood alcohol level of 0.16, which is twice the legal limit. A videotape showed that Mr. Bowe could hardly stand up.

In the criminal case, Bowe pleaded no contest to injury by intoxicated use of a vehicle, operating while under the influence, causing injury while operating a vehicle under the influence, reckless driving, negligent operation and disorderly conduct. Scott McCarty, a lawyer from Madison, represented the Plaintiff and did a very good job.

SOURCE: Jere Beasley Report › Drunken driving crash victim awarded $3.14 million

Cody Murray, who was six years old at the time of the accident, spent weeks in a coma and still can’t walk or talk normally. His sister Shay, 11 at the time, had a broken leg, a lacerated liver and cuts to her head requiring more than 200 stitches. Both of the children were in the back seat of the Mustang. Three hours after the accident, Moore was found to have a blood-alcohol level of .085%, according to court documents. A person with a blood alcohol level of .08% or higher is considered to be driving under the influence in Alabama.

There were 11,773 deaths in the U.S. last year caused by drunk drivers. It is already a national problem. The jury in this case was asked to send a message about driving under the influence and it responded. The jurors obviously made a statement about how dangerous drunk driving is. The jury awards, returned in Circuit Judge Tom King Jr.’s court, were broken down as follows: Moore Asphalt Paving Co., for whom Moore was running an errand at the time of the accident, was ordered to pay $250,000 in compensatory damages and $500,000 in punitive damages; and Moore was ordered to pay $800,000 in compensatory damages and $1.5 million in punitive damages.

Adam Gober, who is with the Gardendale firm of Townes, Woods & Roberts, and Jim Roberts, Jr. of Turner, Webb & Roberts in Tuscaloosa, represented the Murrays and did a tremendous job.

Source: Birmingham News

SOURCE: Jere Beasley Report › Alabama jury awards family more that $3 million in drunk driving crash

It was proved at trial that Mr. Kunzler knew about the construction, but didn’t know where traffic was backing up. As he came over the crest of a hill on July 18, 2006, the driver ahead of him saw stopped cars and slammed on his brakes. Mr. Kunzler tried to swerve around the vehicle and crashed into another vehicle. He died 13 days later.

The jurors awarded damages totaling $4,396,268, awarding $2,896,268 for economic damages and $375,000 each for the decedent’s wife and three children for loss of care, comfort and companionship. They also found that Mr. Kunzler was responsible for 20% of the fault, meaning about $879,254 will be deducted from the total award. The jurors found UDOT to be 35% responsible, and Staker & Parson Cos. 45% responsible. UDOT’s share will be reduced to about $500,000 under a law that caps damages that can be assessed against state agencies. Tyler Young, a Provo lawyer, represented the family and did a very good job.

Source: The Salt Lake Tribune

SOURCE: Jere Beasley Report › Family awarded $4.4 million in wrongful death case

The truck driver, Jeffrey D. Knight, was blamed for the wreck. The truck driver was reaching for a cell phone and distracted when his tractor-trailer rig crashed into vehicles on an interstate highway on July 15, 2008, causing the three fatalities and 14 injuries. The driver and the trucking company, Holmes Transport Inc. located in Muscle Shoals, Alabama, were ordered by U.S. Magistrate Judge David D. Noce to pay damages for Mr. Tiburzi’s injuries.

In addition, the Judge ordered that Mr. Tiburzi’s wife, Cheryl, will receive more than $4.2 million from Holmes Transport Inc. The couple has two children and a grandchild. Tiburzi, a district sales manager for Famous Footwear, was on a business trip when the crash happened. The truck driver violated regulations by driving beyond the maximum hours allowed over an eight-day period.

There are other lawsuits pending arising out of this incident. Two of the persons killed were Amish from northeastern Missouri who were heading to a funeral in Tennessee with a hired driver. Another man, a copier salesman, also was killed. At least two other families have civil suits pending against the driver and the company.

Source: St. Louis Post Dispatch

SOURCE: Jere Beasley Report › Judge awards $18 million to victim in highway crash case

The gravel truck was overloaded past the level allowed under state vehicle regulations by nearly 20,000 pounds. As a result, the truck, which was only going about 50 miles per hour when the driver attempted to brake, was unable to come to a stop at the intersection. That resulted in an accident with a terrible result. The lawsuit named as defendants McCarty; APAC-Tennessee, the asphalt paving company that commissioned McCarty; and Memphis Stone & Gravel, the company that loaded the truck.

Documents obtained during discovery revealed that McCarty had made at least 15 trips with a haul that exceeded the state limit. He had also not received his trucking license until July 31^st of that year, but had driven loads for APAC-Tennessee for about three weeks prior to that time. APAC-Tennessee claimed that this man was an “independent contractor,” and not an agent or employee. So a key issue was whether APAC-Tennessee was an employer of McCarty, and whether the company was at fault for failing to supervise the loads he was carrying.

The jury awarded $30 million to Ethan and his parents for past and future medical expenses and loss of income. The jury found APAC-Tennessee 70% responsible for the accident; Memphis Stone & Gravel 20% responsible, and the driver, McCarty 10% responsible. McCarty had previously pleaded guilty to manslaughter and aggravated assault and was put on 15 years probation. Robert R. Morris III and Paul R. Scott of Smith Phillips Mitchell, Scott & Nowak, in Batesville, Miss., represented the Plaintiffs and did a very good job in the case.

Source: Lawyers USA Online

SOURCE: Jere Beasley Report › Jury awards $30 million to teenager in truck crash

The report concludes that the minimum insurance requirements for commercial trucks are “completely inadequate to compensate those who have been seriously injured in a collision involving multiple vehicles or multiple injured individuals.” It should be noted that Congress set the minimum level of insurance to $750,000 in 1980. When adjusted for inflation, $750,000 is only $292,000 in 1980 dollars. While large trucking companies may carry more than the required level of coverage, quite often smaller companies carry just the bare minimum. The analysis of the U.S. trucking industry found that 87% of the companies in violation of safety standards are small companies that have fleets of ten trucks or less.

Many folks don’t realize that lots of deadly accidents involving unsafe trucks are never recorded as safety violations. A 2005 Government Accountability Office (GAO) study found that nearly one-third of commercial motor vehicle crashes that states are required to report to the federal government were never recorded. Additionally, state crash reports were not always accurate. The analysis by the American Association For Justice follows a GAO study in July 2009 which found that more than 1,000 commercial trucking firms that were ordered out of service because of federal safety violations evaded compliance by operating under a different name, but often using the same owner, address and employees. Congress should increase the minimum insurance limits for commercial trucking companies to at least $5 million per incident.

Source: American Association For Justice

SOURCE: Jere Beasley Report › Liability insurance limits for trucking firms are too low

Data was obtained on the safety performance of U.S. trucking companies through the Motor Carrier Management Information System, which is maintained by the Federal Motor Carrier Safety Administration (FMCSA). Over a million lines of data were analyzed in an effort to pinpoint just how many unsafe trucks might be on the road. West Virginia, North Dakota, Nebraska, Vermont and Iowa had the highest rate of companies in violation of federal safety requirements. The effects of these violations are deadly. While truck accidents occur for a variety of reasons, many are preventable, and often a direct result of trucking companies violating safety standards to cut corners and maximize profits.

Source: American Association For Justice

SOURCE: Jere Beasley Report › Motor carrier companies keep unsafe trucks on roadways

At the San Ysidro and Laredo crossings, bus inspections were being carried out on the road’s shoulder within inches of moving passenger buses, according to the report. It was stated in the report: “These constraints lessen the impact border inspections have as a deterrent to unsafe buses entering the United States.”

As we have written previously, the North American Free Trade Agreement (NAFTA) granted U.S. road access to Mexican trucks and buses. But Congress delayed their travel further into this country by first requiring that certain safety measures be in place. The Federal Motor Carrier Safety Association, which oversees safety monitoring for Mexican trucks and buses, agreed with all recommendations made by the Inspector General’s office. The association said in a written response to the audit that it was working with Customs and Border Protection to improve space for bus inspections.

The report also said some states are not consistently reporting traffic convictions of people driving in the U.S. with Mexican driver’s licenses. This appears to be a widespread problem. The report said that delayed reporting or non-reporting of convictions could lead to Mexican federal commercial driver’s license holders continuing to drive in the U.S. despite the traffic conviction. According to the Federal Motor Carrier Safety Association “the lower conviction reporting could be attributed to law enforcement budget cuts, court noncompliance and drops in commercial driving because of the economic slump.” Regardless, both the federal and state governments must make sure that the problems reported as a result of the audit are corrected.

Source: Claims Journal

SOURCE: Jere Beasley Report › Mexican buses avoid safety checks when entering the United States

Source: Quad-City Times

SOURCE: Jere Beasley Report › Jury awards $6.7 million in fatal ADM accident

The workers at the company’s underground, refrigerated warehouse and distribution facility were needlessly exposed to multiple episodes of life-threatening injury and chemical exposure due to improper procedures and malfunctioning equipment.

The serious violations relate to inadequate process safety management of highly hazardous chemicals, lack of emergency preparedness and response procedures, and poor respiratory protection for workers. Violations also were identified relating to permit-required confined spaces, lockout/tagout procedures to prevent accidental energy start-up, electrical equipment and safe work practices, and powered industrial truck operations. The other-than-serious violation relates to inadequate employee access to personal sampling results.

Source: OSHA, http://www.osha.gov

SOURCE: Jere Beasley Report › Missouri firm is fined for safetly violations

Willful citations are being issued against the Brent, Tuscumbia and Olive Branch bark plants and the Tuscumbia stone plant for allowing workers to service, unjam and clean machinery without procedures in place to ensure that workers won’t be caught in or struck by equipment or burned by machines’ heat strips. Identified hazards involve lack of employee training, exposure to electric shocks, lack of fall protection, lack of machine guards, exposure to noise hazards, struck-by dangers and accumulations of combustible dust. The agency is issuing other-than-serious violations against all of the locations for failing to keep workplace injury logs according to OSHA rules. Cindy Coe, OSHA’s regional administrator in Atlanta, stated:

Sims Bark and Sims Stone management have displayed a systemic indifference to the safety and health of their own employees, resulting in a dangerous work environment.

With two plants in Alabama and one in Mississippi, Sims Bark is one of the largest manufacturers in the nation for mulch, soil and landscape rocks. It appears they need to get their safety house in order.

Source: DeSotoTimesTribune.com

SOURCE: Jere Beasley Report › Plants in Alabama & Georgia hit with OSHA penalties

Zachry says that Texas A&M was a “responsible third party” and should have liability to the victims. Texas A&M, which had reached a $2.1 million settlement with several Plaintiffs last October, told the court that Zachry’s argument is moot. Families of some of the students killed and injured sued university administrators and construction contractors hired to help build the 59-foot-tall tower of logs that collapsed.

Source: Houston Chronicle

SOURCE: Jere Beasley Report › Bonfire case is before Texas Supreme Court

We think the jury did a tremendous service for the community by sending a clear message to businesses that sell alcohol that this type of reckless over-serving will not be tolerated.

A Ruby Tuesday bartender served the patron the equivalent of 19 beers over a 2½-hour period. The patron later attacked Maddy causing severe injuries. Interestingly, Ruby Tuesday never reprimanded, suspended or otherwise disciplined the bartender. This case was tried under Tennessee law.

Source: Tennessean.com

SOURCE: Jere Beasley Report › Jury awards $10 million in assault case

Because there was no comprehensive list of Whitco’s customers, the alert was sent to public agencies and others who might own or be responsible for large lighted areas. The warning does not speculate on what caused the company’s poles to fail. The alert warned that the galvanized steel poles, weighing up to four tons each, “can fracture or crack and fall over, posing a risk of serious injury and death to patrons and bystanders from being hit or crushed.” It stated further that “to reduce the risk of injury, Whitco Co. LP outdoor steel stadium light poles should be inspected immediately.”

In March, a 125-foot pole at Bob Shelton Stadium in Hays County, Texas, fell onto the roof of a gymnasium during a girls junior varsity soccer game. Over the next several months, the Statesman documented more than a dozen Whitco poles falling in recent years. Thus far the commission says it has confirmed nine incidents of falling Whitco poles between 2000 and 2006. Most of the incidents occurred at public school athletic facilities.

Whitco declared bankruptcy in 2006, so most of the school districts bore the cost of replacing the lights themselves. The company also did not leave behind a customer list, which has made it difficult to alert other stadium owners of the potential danger. Even though no one has been injured so far, there have been near misses that caused significant property damage and left spectators shaken. While most of the incidents have taken place in Texas, others have been reported in Kansas, South Dakota, Mississippi, Massachusetts and other locations.

The CPSC said it also has tabulated “nearly 50″ Whitco poles that had not fallen, but had developed worrisome cracks and were removed. The Statesman has counted about 100 Whitco poles that school districts and other athletic facility owners removed for safety reasons in recent years. Though some of those did not have visible cracks, they were taken down as a precaution because other poles at the same location were cracked.

While experts said the poles should last decades, all of the cracked or fallen Whitco poles were less than ten years old. Some engineers who examined the broken poles blamed rapid vibrations caused by light winds for cracks that have appeared at the poles’ bases. But others have concluded that Whitco’s poles were poorly designed, with the base plates and the metal used in the tubes too thin to support the towers. Although Whitco didn’t fabricate the poles, they were made to the company’s specifications. It’s not known when the CPSC’s final report on Whitco and its poles will be completed.

Source: Austin American-Statesman

SOURCE: Jere Beasley Report › CPSC issues alert about light poles

Rich Behm, who was paralyzed from the waist down, and coach Joe DeCamillis, are seeking both compensatory damages and punitive damages. Summit Structures is the company that built the practice facility. It should be noted that the Cowboys are not named in the lawsuits.

Summit entered into a contract in 2003 to build the facility. Two other companies — Canada-based Cover-All and Minnesota-based Midwest Building and Fencing — were involved in the construction, and Burleson-based Wrangler Concrete Construction poured the foundation. Hilti, a Tulsa company, provided an adhesive material; JCI Holding and Scott Jacobs were involved in the engineering. The building reportedly was designed to sustain winds of up to 90 mph for up to three seconds. The highest winds that day were around 58 mph.

The lawsuits, filed in a Dallas state court, contend that the structure’s concrete foundation was improperly constructed and that the facility should have been repaired or rebuilt after design problems were discovered in 2007. The lawsuits say that while the Cowboys were informed, the problems were never addressed.

Source: Star-Telegram

SOURCE: Jere Beasley Report › Lawsuits filed over fottball practice facility collaspe

Cases tied to foreclosures, including actions against foreclosures-rescue firms, jumped to 12, triple from the four cases in the prior period. Lawsuits filed by mortgage-backed securities investors also increased, from four to 13, which pushed investor class actions to 21 cases – the most of any type. These increases come as no surprise to the lawyers in our firm involved in mortgage-related litigation. If you want more information on mortgage-related litigation contact Bill Robertson at 800-898-2034 or by email at Bill.Robertson@beasleyallen.com.

Source: Law.com

SOURCE: Jere Beasley Report › Mortgage-related litigation on the rise

Fortis said it revoked the policy because the policyholder didn’t reveal his diagnosis when he applied for insurance in May 2001 as the then 17-year-old prepared to head to college and could no longer be covered under his mother’s policy. The company cited a note made by a nurse on a medical chart that incorrectly gave the wrong year for the test confirming the HIV diagnosis, placing it one day before the policyholder’s application for insurance.

The committee for the insurance company that decides whether to revoke policies heard the policyholder’s case along with 45 others in a two-hour session. The members were given a report from an underwriter that included the note: “Technically, we do not have the results of the HIV test. This is the only entry in the medical records regarding HIV status. Is it sufficient?” The policyholder hired a lawyer who sent the company the original test results with the correct date. But a second committee also upheld revoking the insurance and the policyholder didn’t have coverage for 20 months before Fortis reversed its decision, according to trial testimony. Fortis, which now does business as Assurant Health, appealed the case. The company’s “conduct involved repeated acts of deliberate indifference for more than two years,” the Justices wrote in their decision.

Source: Associated Press

SOURCE: Jere Beasley Report › South Carolina awards $10 million in health insurance rejection case

The Vioxx Resolution Program is not only the largest pharmaceutical resolution program in history, but has set a new benchmark as the most efficient resolution program in the history of mass torts. More than 30,000 heart attack claims have been reviewed in full at this time and more than 20,400 are scheduled to be paid at the end of September. This monumental accomplishment is the result of the terrific work of Brown Greer and numerous lawyers, including Andy Birchfield, Leigh O’Dell and Roger Smith of Beasley Allen.

In addition, Brown Greer announced at a September 17^th hearing that the point value for heart attack claims will range between $1860 and $1870 per point. These amounts are within 2-3% of the dollar value projected in August 2008 when interim payments for heart attack claims were begun. Interim payments have continued since that time. The heart attack final payments will result in the depletion of the $4 billion heart attack fund that was established by the program.

More than 18,000 Claimants who suffered strokes as a result of taking Vioxx have enrolled in the program. Interim payments in stroke cases began in February 2009 in accordance with the terms of the settlement agreement. To date, interim payments have been issued to over 2,800 Claimants with almost $80 million dollars being distributed to Claimants and their families. Interim payments in stroke cases will continue until final payments are made in early 2010. Stroke claims are being paid from a fund established by the settlement in the amount of $850,000,000.

Lastly, the Vioxx Settlement Agreement dictated that certain claims would be given extraordinary injury consideration under the Settlement Program. Only those claims that qualify for compensation of the underlying heart attack or stroke claim will be considered for extraordinary treatment. By the September 1, 2009 deadline, approximately 3,600 Claimants had applied for extraordinary injury treatment. Reviews of those applications are ongoing and awards are expected in both heart attack and stroke cases in early 2010.

SOURCE: Jere Beasley Report › Vioxx Settlement Program – Heart Attack final payments to be made on schedule

No one claims to know how often policies are canceled — in large part, Congressional investigators say, because insurance companies are regulated by a patchwork of state laws and policies. But the practice is common enough to have resulted in lots of lawsuits and some state regulatory action. Health insurers use their power and their resources to deny benefits to folks who are most in need of care. But insurance company officials say they need to be able to cancel policies to control fraud, which they claim by some estimates, to be as much as $100 billion annually.

Insurance regulators have said that many omissions by policyholders on their applications appear to be honest mistakes on forms that are needlessly complex and hard for a lay person to understand. Others result from a lack of information given to patients by their doctors. In many cases it’s been revealed that insurers pay bonuses to personnel who find ways to cancel polices.

SOURCE: Jere Beasley Report › Insurance companies find ways to drop coverage

The judge also awarded, as part of the judgment, M&A and its founder, David Schofield, $500,000 in punitive damages. It was stated in the court’s order that Prisco “showed willful misconduct and specific intent to harm” Merger & Acquisition Services. The award of damages followed a court finding that Prisco “concealed evidence, destroyed evidence and made false statements about such evidence” showing “a blatant contempt for this court and a fundamental disregard for the judicial process.

After Prisco left M&A in 2003, he brought contract claims against the company for unpaid compensation and for retirement benefits. M&A subsequently filed counterclaims, alleging that Prisco improperly competed after his departure. The case will now go up on appeal.

Source: Insurance Journal

SOURCE: Jere Beasley Report › Prisco consulting owner appeals $1.76 million judgement

HealthMarkets Inc., mostly through its Mega Life and Health and Mid-west National Life subsidiaries, has about 27,000 customers in Massachusetts. HealthMarkets has been battling for years with regulators over accusations it hasn’t properly overseen its agents. In 2006, it agreed to pay $850,000 to settle disputes with the State. Attorney General Martha Coakley and Insurance Commissioner Nonnie Burnes came down hard on HealthMarkets. Attorney General Coakley said in a statement: “With health reform in Massachusetts and the requirement that individuals in Massachusetts have health insurance, it has been even more important to stop predatory practices in the health insurance market.”

Commissioner Burnes says HealthMarkets just wouldn’t or couldn’t control the inaccurate coverage promises made by representatives to potential customers, adding “they weren’t controlling their agents.” Under the settlement, Health Markets will pay $17 million, much of it going to compensate people for coverage-related disputes. The firm is banned from signing up new customers for five years. Under a separate agreement with Commissioner Burnes, HealthMarkets will pay an additional $2 million – and possibly $3 million more if it doesn’t abide by agreements – which is good for the people of Massachusetts.

Source: Boston Herald

SOURCE: Jere Beasley Report › Health insurer to pay $17 million to Massachusetts

According to the EEOC Allstate had adopted a hiring moratorium for a period of one year, or while severance benefits were being received, that had a disproportionate impact on workers over age 40 because more than 90% of the agents subjected to it were in that age group. Allstate denied that its hiring moratorium violated the Age Discrimination in Employment Act of 1967.

Source: Business Insurance

SOURCE: Jere Beasley Report › Allstate settles age discrimination class action lawsuit

In the settlement in a U.S. District Court, Mars agreed to pay to the Plaintiff $118,000 as back pay, damages and her attorney’s fees. Other female applicants denied a meat cutter’s job at Mars will also receive back pay. The EEOC says that Mars has been ordered to train managers and offer jobs to any woman denied a meat cutter’s position.

Source: Insurance Journal

SOURCE: Jere Beasley Report › Maryland grocer to pay $275,000 to settle gender suit

Jackson began working as general manager of food and beverage services in 1990, when Delaware North held the airport contract. Host International received the contract in January 2007, hired Jackson as general manager, but then fired him nine weeks later. Jackson alleged that his problems began immediately with Host International, which cut his pay. He said that the Host International district manager told him that his $70,000-a-year salary was good “for a person your age.”

In February 2007, Jackson said the desk manager told him that the disparity in salaries was intended to attract “younger, talented people.” Host International said it fired Jackson not because of his age but because he performed poorly. But the quality of Jackson’s work was never criticized in writing by the company. His last performance review actually commended him.

Source: El Paso Times

SOURCE: Jere Beasley Report › Jury finds worker in age-discrimination case

Source: Associated Press

SOURCE: Jere Beasley Report › Cintas to pay $22.8 million to settle overtime pay lawsuit with drivers

• revise policies on discrimination, harassment and retaliation;

• provide training on those concerns to all employees at the company’s 37 stores in Washington state and 13 stores in Oregon; and

• report regularly to the Equal Opportunity Employment Commission, which filed the lawsuit.

Acting EEOC Chairman Stuart J. Ishimaru, in a prepared statement, made it very clear that Lowe’s conduct was very bad:

Severe sex-based harassment of young workers was permitted to run rampant at one of the nation’s largest retailers. It is shocking that Lowe’s store managers actively engaged in and even encouraged such blatant unlawful conduct and then retaliated against the victims for objecting to it.

As you may know, Lowe’s is the nation’s second-largest home improvement retailer, trailing only Home Depot, with more than 1,675 stores in the U.S. and Canada. According to the three workers, their problems began within months after they started work when the store opened in November 2005. One, a 21-year-old woman, said she repeatedly was implicitly propositioned by the 44-year-old store manager and that he sexually assaulted her in his office after she was given a promotion. Two other male employees, both in their 20s at the time, said department heads called them gay although they are heterosexual and subjected them to graphic sexual references. All three said they were subjected to months of verbal abuse and a sexually hostile work environment before two of them were fired and the third resigned under pressure, all by September 2006.

Source: Associated Press

SOURCE: Jere Beasley Report › Lowe’s settles harrassment case

Source: New York Times

SOURCE: Jere Beasley Report › Low-Wage workers are often created

Despite numerous credible and detailed complaints, the SEC never properly examined or investigated Madoff’s trading and never took the necessary, but basic, steps to determine if Madoff was operating a Ponzi scheme.

The Inspector General said the SEC’s “most egregious” lapse was its failure to verify Madoff’s purported trading with any independent third parties, even after it took testimony from Madoff in May 2006. Even Madoff believed he was caught at that time. Madoff thought the “game was over” and said he was “astonished” that the SEC did not follow up. It certainly appears that the SEC dropped the ball. It knew Madoff was clearing his trades through the Depository Trust Co., part of the U.S. Federal Reserve, and the SEC even had his account number.

A 22-page summary of the report has been released, and it’s posted on the SEC’s website at http://www.sec.gov/spotlight/secpostmadoffreforms/oig-509-exec-summary.pdf. The full report contains 450 pages. Senator Charles Grassley, an Iowa Republican, who called the report evidence of the SEC’s “culture of deference toward the Wall Street elite,” said the SEC must be transformed so it can be “the tough cop-on-the-beat that the public needs.” I totally agree with the Senator. Hopefully, the SEC and Congress have learned a great deal from the Madoff scandal which hurt lots of folks – some beyond financial repair – and that’s something that the SEC will have to live with. I hope and pray it has learned its lesson!

Source: Insurance Journal

SOURCE: Jere Beasley Report › SEC really dropped the ball in the Madoff case

U.S. District Judge Jed Rakoff, in his decision, said the proposed settlement was “neither fair, nor reasonable, nor adequate.” Judge Rakoff also said that if Bank of America “is innocent of lying to its shareholders, why is it prepared to pay $33 million of its shareholders’ money as a penalty for lying to them?” Judge Rakoff also came down hard on the SEC, stating: “The proposed consent judgment was a contrivance designed to provide the SEC with the facade of enforcement.” Judge Rakoff also said that the settlement would effectively punish shareholders twice, stating:

The notion that Bank of America shareholders, having been lied to blatantly in connection with the multibillion-dollar purchase of a huge, nearly bankrupt company, need to lose another $33 million of their money in order to better assess the quality and performance of management is absurd.

I totally agree with Judge Rakoff’s decision to reject this settlement. The judge directed Bank of America and the SEC to prepare for a trial by February 1^st.

Source: USA Today

SOURCE: Jere Beasley Report › Judge rejects settlement by Bank of America with SEC

Source: Birmingham News

SOURCE: Jere Beasley Report › Morgan Keegan ordered to pay Horace Grant $1.4 million

SOURCE: Jere Beasley Report › Class action lawsuit against Tyco settled

Two Louisiana pension funds, the Louisiana Sheriffs’ Pension and Relief Fund and the Louisiana Municipal Police Employees’ Retirement System, were the lead Plaintiffs in the case. About 20 former Merrill executives and directors were named as Defendants, including former chief executives Stanley O’Neal and John Thain. As you may recall, Bank of America acquired Merrill Lynch & Co in January, creating the largest U.S. bank by assets.

Source: Reuters

SOURCE: Jere Beasley Report › Bank of America to settle Merrill lawsuit for $150 million

Chrysler emerged from Chapter 11 bankruptcy protection in June after the bulk of its assets were purchased by Italian automaker Fiat Group SpA. Most all of Chrysler’s liabilities were left behind and are being liquidated under court supervision. This lawsuit revolves around a dispute over payments for diesel engines supplied by Daimler. Chrysler accused Daimler of using the dispute as a basis for refusing to sign deliveries of steering columns and torque converters.

It was alleged that the “Chrysler Group believes Daimler’s effort to extort Chrysler Group into paying for costs for a diesel engine that Daimler agreed to forego a few months ago is a breach of its obligation to negotiate in good faith.” If deliveries of the parts stop, according to a Chrysler spokesman, it would affect production at its assembly plant in Brampton, Ontario, and its Jefferson North plant in Detroit. Daimler Chrysler’s lawsuit is “without merit,” Daimler said in a statement:

This is not a dispute about Chrysler’s rights to existing contracts … Rather Chrysler has been asking Daimler to change existing agreements and enter into completely new agreements.

As you most likely know, Daimler owned Chrysler for several years until it sold its stake to private-equity firm Cerberus Capital Management LP in 2007. It’s sort of ironic and a little sad to see Chrysler using the courts to its own advantage, but denying the same access to its customers who were sold vehicles with defects.

Source: Associated Press

SOURCE: Jere Beasley Report › Chrysler sues daimler over key vehicle parts

Shareholders contended that the Defendants manipulated Broadcom’s stock options from 1997 to 2007 to enrich themselves and that Broadcom issued false and misleading statements to regulators. Broadcom restated earnings downward by $2.2 billion. Richard Heimann, a partner at San Francisco’s Lieff Cabraser Heimann & Bernstein is the lead Plaintiffs’ lawyer in the case.

SOURCE: Jere Beasley Report › Broadband backdating suit is settled for $118 million

Since the vaccine’s approval by the FDA in June of 2006, more than 16,000 adverse event reports have been filed with the Vaccine Adverse Event Reporting System, operated jointly by the Food and Drug Administration (FDA) and Centers for Disease Control (CDC). More than 6% of these reports were considered serious, including 43 deaths. In fact, one of the leading researchers on the vaccine warned that the rate of serious adverse events associated with Gardasil is greater than the incidence rate of cervical cancer.

Gardasil has been shown effective against four strands of HPV but offers no protection against the remainder of the more than 40 strands of HPV that are linked to cervical cancer and genital warts. Furthermore, for these four strands, the vaccine has only been proven effective for five to seven years. This means that if a young girl is vaccinated at age 11 or 12 – the age recommended by the CDC – by the time she is 17 or 18 years old, she may no longer be protected. The vaccine contains no warning about this potential “wearing off” so girls may enter their college years with a false sense of security that they are protected from HPV in general and cervical cancer specifically when in fact they may not be.

Two lawsuits have been filed on behalf of two girls who were injured after being vaccinated with Gardasil. In one case, a 15-year-old girl began vomiting on the day she received the shot and then developed pancreatitis. In the other, a 14-year-old girl contracted Guillan-Barré Syndrome one week after receiving her second dose of Gardasil. She became paralyzed in her lower arms and legs and had to learn to walk all over again. Attorneys anticipate that more lawsuits will be filed on behalf of the other girls who have suffered similar injuries. For all those considering encouraging their daughters or granddaughters to be vaccinated with Gardasil, extreme caution should be used. If you need more information on Gardasil, contact Leigh O’Dell in our firm at 800-898-2034 or by email at Leigh.odell@beasleyallen.com.

SOURCE: Jere Beasley Report › Gardasil may prove to be more risky than beneficial

The FDA ordered the companies to put the strongest warning possible about the risks of IV push and Phenergan, also known as promethazine, on the drug label. The stronger warning, referred to as a “black box,” will tell medical professionals that the preferred way to administer promethazine is through intramuscular injection. While the FDA’s action is good, I believe the warning – even though it is a black box warning – should have been even stronger.

Source: Philadelphia Inquirer

SOURCE: Jere Beasley Report › FDA orders warning on Phenergan

A third drug, tibolone, which is not approved in the United States, but is sold elsewhere, was also included in the study. Tibolone significantly reduces breast cancer risk, but increases the risk of strokes in older women, according to the study. All three drugs were said to reduce the risk of fractures. The paper assessed the risks and benefits of the drugs when used by healthy women, who have never had breast cancer, but are considered at greater risk for the disease. Most of the data analyzed by the study was drawn from eight large clinical trials.

Source: New York Times

SOURCE: Jere Beasley Report › Breast cancer drugs have health risk

Paxil, approved by the FDA in 1992, generated about $942 million in sales last year. GSK has settled other Paxil-related cases, including a suit brought by the New York Attorney General’s office accusing the company of withholding safety data about the antidepressant. In addition to the David case, GSK will face two more Paxil trials later this fall and early next year in state court in Philadelphia.

Source: Bloomberg

SOURCE: Jere Beasley Report › GlaxoSmithKline to defend Paxil in birth-defect case

Last month, we reported that newly unsealed court documents prove that Wyeth paid ghostwriters to produce forty scientific papers to promote the benefits and downplay the risks of its $2 billion dollar a year hormone therapy drugs. The articles, published in medical journals between 1998 and 2005, failed to disclose Wyeth’s role in initiating and paying for the work. This type of subterfuge, coupled with Wyeth’s continuing denial that its drugs cause breast cancer, certainly played a major role in lulling many women (and their doctors) into thinking they did not have a case. Consequently, they did not consult with a lawyer until after their shorter home state statutes of limitations had expired. This ruling by the Minnesota Supreme Court, coupled with its six-year statute of limitations, will allow thousand of breast cancer victims to present their case against Wyeth to a jury.

Approximately 12, 000 women have sued Pfizer and/or Wyeth claiming that their hormone therapy 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 Wyeth and/or Pfizer. We are currently set for trial in Philadelphia, Pa., where Judge Moss ordered 16 cases be tried starting in September 2009 and ending in the first half of 2010. We are also hopeful that several other hormone therapy cases will soon be set for trial in other parts of the country in 2010. If you would like more information please contact Ted Meadows, Melissa Prickett or Russ Abney in our office at 800-898-2034 or by email at Ted.Meadows@beasleyallen.com, Melissa.Prickett@beasleyallen.com, or Russ.Abney@beasleyallen.com.

SOURCE: Jere Beasley Report › Minnesota Supreme Court denies Wyeth Loophole Defense

Metoclopramide litigation has a lengthy history, and record indicates that a significant amount of the common discovery has already taken place.

This denial by the MDL panel means that any future Reglan/Metoclopramide lawsuits will proceed as individual suits and will not be formally coordinated. Reglan, or its generic version, Metoclopramide, is a drug approved for the short-term treatment of gastrointestinal disorders like gastroparesis, gastroesophageal reflux, and delayed gastric emptying. Use of this drug for longer than three months has been linked to Tardive Dyskinesia, a neurological disorder that causes repetitive and involuntary movements of the face, torso and limbs. Currently, there is no effective treatment for Tardive Dyskinesia. For more information, please contact Danielle Mason or Chad Cook, who are lawyers in our firm working on Reglan cases, at 800-898-2034 or by email at Danielle.Mason@beasleyallen.com or Chad.Cook@beasleyallen.com.

SOURCE: Jere Beasley Report › More on the Reglan litigation

This simply reflects what’s been known in the science for a while now, that there is no magic window where a patient can be automatically said to be safe from developing ONJ after beginning Fosamax.

The ruling comes in cases separate from the one on trial before Judge Keenan in a Manhattan federal court referred to above. Merck says as of June 30^th it was defending about 900 Fosamax cases including lawsuits with multiple Plaintiffs. There are as many as 1,200 Plaintiffs in the cases which are in state and federal courts, according to Merck. Plaintiffs in the 24 cases covered by the latest ruling submitted a profile form disclosing Fosamax use for fewer than three years. The court’s ruling has to be considered good for future cases involving Fosamax use for less than three years. Our firm is handling a number of Fosamax cases. If you need more information contact Chad Cook at 800-898-2034 or by email at Chad.Cook@beasleyallen.com.

Source: Bloomberg

SOURCE: Jere Beasley Report › 24 Fosamax lawsuits will go forward

Source: Forbes

SOURCE: Jere Beasley Report › Judge declares mistrial in first Fosamax Trial

Source: The Times-Standard

SOURCE: Jere Beasley Report › Toyota steering recall lawsuits consolidated

The Federal Court judge entered an order denying Cooper Tire’s Motion for Summary Judgment on the Plaintiffs’ design defect and punitive damage claims. The Court stated that the Plaintiffs’ expert had identified three design defects in the subject tire: the lack of a full nylon cap ply; the lack of a belt edge gum strip or wedge; and inadequate aging resistance.

All of these designs are known countermeasures for the prevention of tire tread separation. The Plaintiffs alleged that Cooper’s competitors employed these reasonable alternative designs, and that Cooper’s internal documents showed that Cooper explored these alternatives, but rejected them so the company could make bigger profits.

In his order, the Federal Judge found that the Plaintiffs submitted evidence showing that “Cooper knew that the lack of a proper antioxidant package caused tread separation, and that this fact was publicized broadly.” The antioxidant package is the chemical mixture added to the rubber compound to prevent the tire from aging prematurely. The Court’s order also states that the Plaintiffs’ evidence “bolsters their theory that Cooper delayed implementing this design improvement because of cost considerations.” The Plaintiffs’ expert outlined several defects in the inner liner of the tire and offered various alternative designs which would have prevented the tread separation.

Ultimately, the Judge found that Plaintiffs “presented evidence upon which a reasonable jury could find that these design defects caused the tread belt separation and the accident and that there were feasible, safer alternatives that would have corrected the identified product deficiencies.” Interestingly, the Judge noted that “Cooper’s Australian website provides some evidence that the manufacturer was aware of the feasibility and importance of this alternative design.”

The Judge also denied Cooper’s Motion for Summary Judgment as to the Plaintiffs’ claim for punitive damages. The Plaintiffs contended that Cooper knew the defects caused tread belt separations, and refused to implement simple, relatively inexpensive solutions. The Judge found that the Plaintiffs “presented some evidence that Cooper knew of the four design defects in 1996.” The Judge went on to state that “there is some evidence that other tire manufacturers adopted these safety measures starting in the 1960s, that they were widely used in the 1980s, and that Cooper rejected the safer design alternatives.” Most importantly, the Court noted that the Plaintiffs presented evidence that “Cooper knew that each of these design features prevented tread separations, but that Cooper decided against such changes because they cut into Cooper’s profit margin.”

It’s significant that this Court order confirms what our tire experts have been saying for years about Cooper tires – that they are cheap and poorly made. Our firm currently has several cases involving death and serious injury due to tread separations of tires manufactured by Cooper Tire. We expect to prove the same type of conduct as that set out in the federal court order. A recent list we have seen indicates that Cooper Tire tread separations over the last decade have resulted in over 218 deaths. Hopefully orders such as the one entered by this Federal Court Judge will shed some light on Cooper’s bad conduct and force it to reassess its decisions in regard to the safety of its tires. If you need more information on the Cooper Tire problems, contact either JP Sawyer or Rick Morrison, lawyers in our firm, at 800-898-2034 or by email at JP.Sawyer@beasleyallen.com or Rick.Morrison@beasleyallen.com.

SOURCE: Jere Beasley Report › More on the Cooper Tire Bad conduct

Several manufacturing defects, which allowed moisture and other contaminants into the tire components prior to manufacture, were alleged by the Plaintiffs. It appears the moisture came from a leaky roof in the Tuscaloosa plant. Testimony revealed that moisture created a blister of trapped air or steam that caused a defect in the finished tire and caused the tread to separate. Evidence at trial also showed that misplaced or poorly spliced belts affected the real world performance of the tire and in this case caused the tread to separate. The evidence also established very poor adhesion of the tire components demonstrated by bare fretted belt cords and degradation of the tire.

The evidence also showed that there was another design defect in the tire. There was an absence of a nylon cap ply, which helps reduce tread separation, in tires sold in the United States. Michelin provided this important component in its tires sold in the Europe. Although this evidence was very strong, the jury was not allowed to hear it for consideration. The jury only considered the manufacturing defects of this tire that was produced by Michelin at its Tuscaloosa plant. In other words, the design aspect wasn’t allowed in the case.

Michelin was also censured by the trial court for tampering with potential witnesses. Michelin sent letters to former employees of the plant instructing them not to talk to the lawyers representing the Plaintiffs. The lawyers representing the Plaintiffs in the case included Joseph Barrientos, John Sanger, Carlos Guerra, Michael Moore and Mikal Watts of the Watts Law Firm. They did an outstanding job for their clients.

SOURCE: Jere Beasley Report › Verdict against Michelin in defective tire case

Dimitrios Biller, the lawyer who managed Toyota’s defense of rollover cases in the U.S., alleges in the suit that “there are vehicles on the road today” that don’t meet a “required” safety margin when it comes to roof crush issues. The lawyer says in the lawsuit his Toyota bosses “made every effort” to stop, prevent and delay the completion of investigations involving rollover cases between 2004 until he resigned in 2007. In one probe, Biller says he was ordered to destroy electronic documents related to the design, engineering, testing and evaluation of vehicles in the U.S. He also says he wasn’t allowed to complete another investigation, which allowed Toyota’s engineering and manufacturing arm to go ahead and destroy relevant information and documents that should have been turned over in discovery to Plaintiffs’ lawyers in 300 lawsuits.

Source: USA Today

SOURCE: Jere Beasley Report › Toyota destroyed evidence in rollover lawsuits

The federal government, over the past several years, has done a pretty sorry job of regulating the industries that must be regulated by law. Weak regulation allowed industries such as the drug companies, and the huge financial institutions, to literally run wild. Fortunately, the regulatory climate is changing for the better, though much too slowly, in the Obama Administration. Clearly there is much more that must be done in our nation if ordinary folks are to have a chance when it comes to protecting and preserving their rights and freedoms.

SOURCE: Jere Beasley Report › Ordinary folks need a champion

The Bootay lawsuit, filed in federal court, concerns exposure to sodium dichromate while the solider was deployed in 2003 at the water plant which KBR was hired to rebuild. Bootay, a 30-year-old, is disabled and takes up to 35 medicines because of the chemical exposure. KBR should settle his claim, all of the other claims that have been filed, and any others that are still out there.

Source: Associated Press

SOURCE: Jere Beasley Report › Pittsburgh soldier files suit against KBR over Iraq toxin

This man was one of 75 dissidents rounded up in 2003 and he was sentenced to the longest term. His mother, Olivia Saludes, who now lives in Kentucky, sued the Cuban government for pain and suffering under the Alien Tort Claims Act. She says her son was subjected to inhumane treatment, including substandard food that still had animal hair and skin on it. It was alleged that her grief left her ill and unable to work. U.S. District Court Judge Alan Gold wrote:

I have no doubt that the acts of the Cuban government are intended to oppress those in Cuba who seek to freely voice their opinions and ensure the suffering of their families, and that a punitive damage award of sufficient magnitude is needed to serve as a deterrent against similar acts in the future.

The judge ordered the government to pay $2.5 million in compensatory damages and the Communist Party to pay $25 million in punitive damages, which was more than double what lawyers trying the case had requested. It will be interesting to see how this matter winds up.

Source: Miami Herald

SOURCE: Jere Beasley Report › Federal Judge awards mother of jailed journalist $27.5 million

According to State Democratic Party Chairman Joe Turnham, at least two other circuit judges and a prominent Birmingham lawyer are considering running for the Court as Democrats. I believe there will be several other candidates in all three of these races – both Republicans and Democrats – before qualifying time. Based on what court-watchers are saying, there will be some very strong candidates in each race.

SOURCE: Jere Beasley Report › Jefferson County Circuit Judge to run for Alabama Supreme Court

Source: Associated Press

SOURCE: Jere Beasley Report › Group backs GOP candidates for Alabama Supreme Court

SOURCE: Jere Beasley Report › The American people must be protected

I have some thoughts on the priorities that should be set for the legislature and I suspect some of our readers do, too. The following would be my top priorities for the election year session: funding public education adequately at every level; funding general fund agencies adequately; passage of strong campaign finance reform laws; passage of a stronger ethics law; making Alabama’s consumer protection laws stronger; stronger regulation of payday lenders; tax reform; and constitutional reform. Clearly, the items on my list would be hard to achieve in any session, and most likely impossible during an election year. But that doesn’t mean that any of them should be ignored. If you could set the priorities in order of importance for Alabama for 2010 – what would they be?

SOURCE: Jere Beasley Report › Legislative Priorities should be set

According to a number of polls, most folks believe Troy has done an outstanding job as Attorney General and deserves to be reelected. He has taken on some powerful groups by simply doing his job as the State of Alabama’s chief law enforcement officer. But he has learned that when you take on powerful groups such as the drug manufacturers, you can expect them to retaliate and that’s obviously what we are seeing in this race. It started with a number of rumors, followed by a grand jury investigation, and then an announced opponent comes along with strong backing from some of Troy’s biggest enemies. I don’t believe Troy should sit back and run a defensive campaign this time. He has a good record and it’s one that folks around the state seem to like. Most polls indicate that the voters will respond favorably on Election Day.

SOURCE: Jere Beasley Report › The Attorney General’s race in Alabama

SOURCE: Jere Beasley Report › Chuck Norris wades in again

I’m Lilly Ledbetter, and I’m proudly supporting Artur Davis for governor. Artur has the vision, the grit, and the determination to transform Alabama’s economy. He believes in this state, and he knows that with the right leadership, Alabama can lead the country. I just recorded a short video from home explaining why I support Artur. Watch my endorsement video today — and then if you haven’t already, sign on to pledge your support for Artur too.

Until about eleven years ago, I was just another working grandmother. But after years of fighting for what I was rightfully owed, my employment discrimination suit came before the Supreme Court, and eventually Barack Obama signed a bill with my name on it. I never expected to be in the political spotlight, but I’ve learned that sometimes you have to stand up and speak out for what you believe in. Alabama is facing some tough challenges. A lot of families are struggling just to make ends meet and put food on the table. It’s going to take a strong leader to rebuild our economy, improve our public schools, and restore the trust in state government.

That’s why we need Artur Davis in the Governor’s office. Watch my endorsement of Artur Davis now — then stand up and join me as we roll up our sleeves to elect Artur Davis the next Governor of Alabama. When Artur Davis says that he will fight for working women and working families, believe me, I know he’ll keep his word. Artur has what it takes to lead us to victory next fall. But he can’t do it alone. He needs our help and our support.

In my opinion, this was a most significant endorsement. Coming just after the Labor Day holiday made it even more important. Working men and women, and especially women, all understand and appreciate what this endorsement means in the Governor’s race from their perspective.

SOURCE: Jere Beasley Report › Lilly Ledbetter endorses Artur Davis for Governor

The early start by present-day candidates with their campaigns has taken some of the luster off of what had been a very active and most entertaining political day. I really believe that the campaigns start much too early these days and by the time Election Day comes the public has been pretty well worn out with politics and with some politicians. The early starts also unduly increase the cost of campaigns. Clearly, times have changed and so have our politics.

SOURCE: Jere Beasley Report › Labor Day used to have greater political significance