Chinese Drywall Registration Deadline Extended

The deadline to register for the Chinese drywall global settlement has been extended. The previous deadline was tomorrow May 25th. This afternoon, Judge Fallon, by Order, extended the deadline until June 24th.

If you have not registered for the settlement and you filed a claim over Chinese drywall on or before December 9, 2011, you need to do so immediately. If your home has Knauf drywall markings and you had not filed a lawsuit on or before December 9, 2011, you need to contact a Chinese drywall attorney IMMEDIATELY.

U.S. Supreme Court Rules on Attorney's Fee Issue in Vaccine Injury Fund Case

The National Childhood Vaccine Injury Act of 1986 established a no-fault compensation system to stabilize the vaccine market and expedite compensation to injured parties. Under the Act, a proceeding for compensation is “initiated” by service upon the Secretary of Health and Human Services and “the filing of a petition containing” specified documentation with the clerk of the Court of Federal Claims, who forwards the petition for assignment to a special master. 42 U. S. C. 300aa–11(a)(1).

An attorney may not charge a fee for services in connection with such a petition, but a court may award attorney’s fees and costs incurred by a claimant in any proceeding on an unsuccessful petition, if that petition was brought in good faith.

In a recent opinion of the United States Supreme Court in Sebelius v. Cloer, the Court held that An untimely NCVIA petition may qualify for an award of attorney’s fees if it is filed in good faith and there is a reasonable basis for its claim.

In 1997, shortly after receiving her third Hepatitis-B vaccine, Cloer began to experience symptoms that led to a multiple sclerosis (MS) diagnosis in 2003. In 2004, she learned of a link between MS and the Hepatitis-B vaccine, and in 2005, she filed a NCVIA claim. The special master concluded that Cloer’s claim was untimely because the Act’s 36-month limitations period began to run when she had her first MS symptoms in 1997.The Federal Circuit agreed. Cloer then sought attorney’s fees and costs. The Federal Circuit ruled in Cloer’s favor. The Supreme Court affirmed.

Nothing in the attorney’s fees provision suggests that the reason for the subsequent dismissal of a petition, such as untimeliness, nullifies the initial filing. An NCVIA petition delivered to the court clerk, forwarded for processing, and adjudicated before a special master is a “petition filed under section 300aa–11.” The government’s contrary position is inconsistent with the fees provision’s purpose, which was to avoid limiting petitioners’ ability to obtain qualified assistance by making awards available for “non-prevailing, good-faith claims.”

 

In Admiral Ins. Co. v. Price-Williams, No. 1110993, Price-Williams was attacked and beaten at the Kappa Nu house (Kappa Nu being the local chapter of Kappa Sigma) at the University of South Alabama.  His attackers were Howard, Dean and Baber.  Howard was not a Kappa Nu member, Dean was the chapter president and Baber was the chapter vice-president. 

In addition to suing Dean and Baber because of their involvement in the actual attack, Price-Williams asserted that both were liable for wrongfully failing “to implement the risk-management program Kappa Sigma required of local chapters, which program, Price-Williams alleged, would have either prevented the assault entirely or, at a minimum, limited its duration and intensity.” 

After a judgment was obtained against Dean and Baber and Admiral Insurance refused to indemnify them as to the judgment, Price-Williams brought a “direct-action” against the insurer.  The subject Admiral CGL policy contained the typical “assault and/or battery” exclusion. 

The Alabama Supreme Court held that this exclusion applied not only to claims predicated on Dean and Baber’s participation in the actual attack despite non-insured Howard’s participation but also applied to the claims that Dean and Baber were remiss in failing to implement the risk-management program.  As to the latter, the Supreme Court observed that Price-Williams suffered a “single indivisible injury” because it was impossible to “segregate” an injury suffered as a result of the attack and an injury suffered because there was no risk-management program.  Therefore, the exclusion applied and Admiral had no obligation to indemnify or pay the judgment.

 

REGISTRATION DEADLINE FOR CHINESE DRYWALL CLAIMS FAST APPROACHING!!!

On March 27, 2013 the Honorable Eldon Fallon issued an Order governing the registration of claims for the 5 inter-related settlements involving Knauf drywall, and entities downstream from Knauf and their insurers.  A copy of the Order and the Registration Form are attached for your convenience.  Please note that the Registration Form is intended to be completed online. 

Further information regarding the Registration Form may be found on the Court’s website http://www.laed.uscourts.gov/Drywall/Drywall.htm, BrownGreer’s website https://www3.browngreer.com/drywall/, and at https://chinesedrywallclass.com.

Please note that there is a deadline of Saturday, May 25, 2013 to submit the Registration Form to register your client(s) in the settlement.  Since the title to the property must be submitted with the Registration Form, you should begin to collect them from your clients, if they are not already in your file.

If you are unsure if you should register, do so. We are registering all of our clients affected by Chinese Drywall-even those with Taishan board. In fact, I recommend registering even if you are not in the class of those folks who filed a claim on or before December 9, 2011.

 

 

 

Pilot Flying J In Serious Trouble

 

What happens when class action lawsuits and the sports world collide? You get coverage from every kind of source ranging from ESPN, to USA Today to plaintiffslawblog.

There have already been at least four class actions filed against Pilot Flying J for allegedly scamming trucking companies out of refunds on fuel. Jimmy Haslam, the President of the company, and now current owner of the NFL’s Cleveland Browns, is in a lot of hot water on this one.  Sadly, some of the companies that were defrauded were targeted because they were Hispanic-owned and could not communicate in English well enough to comprehend what occurred.  

Below is a series of links to news articles covering this extremely interesting story.

http://espn.go.com/nfl/story/_/id/9281639/cleveland-browns-owner-jimmy-haslam-absolutely-not-aware-pfj-issues

http://www.usatoday.com/story/money/business/2013/04/28/few-answers-in-pilot-flying-j-case/2117779/

http://profootballtalk.nbcsports.com/2013/05/04/lawsuits-piling-up-against-pilot-flying-j/

 

Pittman, Dutton & Hellums, P.C. is currently investigating claims against Pilot Flying J over fuel refunds. If you or someone you represent has been defrauded by Pilot Flying J, please contact Booth Samuels at 1-866-515-8880 or by email at booths@pittmandutton.com.

First DePuy ASR Case in MDL Rescheduled

The first bellwether trial for thousands of DePuy ASR hip lawsuits pending before the U.S. District Court, Northern District of Ohio, has been rescheduled. Originally slated to begin on June 3rd, the trial will now begin on September 9th, as per an order issued by U.S. District Judge David A. Katz on May 7th. Judge Katz continued the setting to allow time for further briefing and possible oral arguments on pre-trial motions. The next status conference in the federal DePuy ASR litigation will be held on May 14th, according to the Order.

There are about 10,750 lawsuits filed over the recalled all-metal hip implant. Approximately three-quarters of them are pending in the MDL.

Recent Alabama Appeals Court Opinion

Last Friday, the Alabama Court of Civil Appeals issued its opinion in Pell v. Tidwell, No. 2120313.

Tidwell, who worked for the Municipal Utilities Board of Albertville, was driving a truck with a lift bucket northbound on Highway 431 in Albertville, where Highway 431 is a divided four-lane highway with a grass median.  Tidwell got into the left-turn lane in anticipation of making a left turn onto Buchanan Road.  Tidwell observed Rucks’s Toyota in the paved portion of the median and obstructing his ability to make his left turn.  Based on the position of the Toyota, Tidwell assumed that Rucks intended to pull onto Highway 431 to travel north.  Tidwell made a hand signal to Rucks to indicate that it was clear for her to turn onto the inside, northbound lane of Highway 431.  Unfortunately, Rucks’s intention was to cross Highway 431 and she collided into Pell’s vehicle that was traveling in the outside, northbound lane of Highway 431 and had the right of way.  It was a clear day and there was nothing obstructing Rucks’s view down Highway 431.

After Pell entered into a pro tanto settlement with Rucks, Pell appealed the summary judgment which the trial court had granted Tidwell and his employer.  Pell maintained that, even if Tidwell was under no affirmative duty to act, once he volunteered to make the hand signal to Rucks, Tidwell was charged with the duty of acting with due care.  In rejecting Pell’s argument, the appellate court wrote:

“We agree … that a motorist’s hand signal to another motorist to proceed does not absolve the signaled motorist of his or her duty under Alabama law to ensure that it is safe to travel across an intersection and to yield to oncoming traffic.  This is especially true when, as in this case, there are no unusual obstacles or obstructions.

“Because a driver cannot delegate his or her responsibility for ensuring that it is safe to proceed across an intersection, especially under normal driving conditions, i.e., when there are no unusual obstructions or conditions, we now hold that, as a matter of law, a signaling motorist cannot be held liable for negligence when the signaled driver proceeds across an intersection without independently ensuring that it is safe to do so.”

According to the appellate court, as a matter of law, the proximate cause of the accident was Rucks’s breaches of the Rules of the Road, and not Tidwell’s conduct.

One cannot help but conclude that the critical fact was that Tidwell thought that Rucks wanted to turn onto Highway 431.  Therefore, Tidwell signaled that it was clear to turn onto the inside, northbound lane of Highway 431 without having made any determination as to whether there was an approaching vehicle in the outside, northbound lane, and was not “vouching” that it was safe to across Highway 431.  Tidwell’s truck was not obstructing Rucks’s ability to look for traffic in the outside, northbound lane and Rucks apparently made no effort to see the Pell vehicle before venturing to cross Highway 431.

 

Recent U.S. Supreme Court Opinion on Alabama Case

                In 2010, in Weatherspoon v. Tillery Body Shop, Inc., 44 So. 3d 447 (Ala. 2010), Weatherspoon’s vehicle was towed from a restaurant parking lot by Tillery as an abandoned vehicle.  Without making any effort to contact Weatherspoon, Tillery sold the vehicle.  Weatherspoon sued Tillery, not for anything related to the towing but for conduct occurring after the towing was completed.  The Alabama Supreme Court held that all of Weatherspoon’s claims were preempted by the Federal Aviation Administration Authorization Act of 1994 (“FAAAA”) and the ICC Termination Act of 1995 (“ICCTA”). 

 

                On May 13, 2013, in Dan’s City Used Cars, Inc. v. Pelkey, 2013 WL 1942398, the United States Supreme Court specifically abrogated the Weatherspoon opinion.  Like Weatherspoon, Pelkey was towed away and Pelkey’s claims against Dan’s City did not involve the towing but Dan’s City’s conduct in selling the vehicle.  There was federal preemption as to state law provisions “related to a price, route, or service of any motor carrier … with respect to the transportation of property.”  Yet, “state-law claims stemming from the storage and disposal of a car, once towing has ended, are not sufficiently connected to a motor carrier’s service with respect to the transportation of property to warrant preemption ….”  2013 WL 1942398 at *4 (emphasis in original).

 

               Obviously, the United States Supreme Court, with no dissenters, concluded that the Alabama Supreme Court had over-extended the preemptive effect of the FAAAA and ICCTA to cover matters totally unrelated with the actual towing, the transportation of property.

$6.5 Million Verdict Against Actos Maker Thrown Out

Actos users who were harmed by the drug suffered a major setback after Takeda Pharmaceutical Co., persuaded a judge to throw out a $6.5 million jury verdict against it. The mega-corporation’s lawyers argued that the Plaintiff did not produce sufficient evidence to show his cancer was caused by the medication. The Los Angeles case is Cooper v. Takeda Pharmaceuticals America Inc., CGC-12-518535, California Superior Court (Los Angeles).

The trial lasted nearly two months and the jury deliberated for almost five days.

Judge Kenneth Freeman ruled that the Plaintiff’s, Jack Cooper, attorneys were not able to properly link his bladder cancer to his Actos use and jurors should not have had a chance to return their verdict against Asia’s largest drugmaker. It was the first of more than 3,000 lawsuits over the medication to go to trial.

 

The Plaintiff in this case took the drug for more than four years before being diagnosed with bladder cancer in 2011. Takeda’s lawyers argued during the almost two-month trial that Cooper was more likely to develop bladder cancer because he was an elderly male former smoker who suffered from diabetes. That placed him in high-risk categories for the disease regardless of his Actos use, the company’s attorneys argued to jurors.

However, Judge Freeman’s ruling hinged on an expert doctor who concluded Cooper’s Actos use caused his bladder cancer turned out to be “inherently unreliable” and that justified throwing the case out. Freeman issued a 27-page ruling.

It is believed that Cooper’s lawyers will appeal Freeman’s post-verdict ruling throwing out the case.

It is estimated that Actos sales peaked in the year ended March 2011 at $4.5 billion, or 27 percent of Takeda’s revenue at the time.

More than 1,200 suits have been consolidated into an MDL in the U.S. District Court for the Western District of Louisiana. The first federal case is set for trial in January and Mark Lanier, who won a $253 million verdict against Merck in 2005 in the first trial over the company’s withdrawn Vioxx painkiller, is slated to try the case for plaintiff Ida St. John.

Former Actos users contend in court filings Takeda researchers ignored or downplayed concerns about the drug’s cancer-causing potential before it went on sale in the U.S. in 1999, and misled U.S. regulators about the medicine’s risks.