Month: October 2017

Week Adjourned: 10.27.17 – Dimensions Health, School Bus Stop, Lumber Liquidators

Top Class Action Lawsuits

Doctor Who? A medical malpractice class action lawsuit has been filed against Dimensions Health Corp., alleging it allowed a former OB-GYN, who obtained his medical license fraudulently using a false Social Security number, to perform hundreds of deliveries and emergency cesarean sections.

The lawsuit was filed by named plaintiffs Monique Russell and Jasmine Riggins, who assert they had unplanned emergency C-sections performed by Oluwafemi Charles Igberase who obtained medical privileges at Dimensions in Prince George’s County under a false identity.

According to the lawsuit, over the course of roughly four years, Igberase saw at least 1,000 patients and performed at least 500 C-sections. However, in 2016 he pled guilty to using a fraudulent Social Security number to obtain his medical license from the state of Maryland.

According to the complaint, Dimensions is responsible for patient safety and should have been able to discover and report any misconduct among its doctors, and that it was negligent in credentialing Igberase and letting him practice.

“Dimensions breached its common law duties and the applicable standards of medical practice on an ongoing basis by negligently failing to investigate, credential, qualify, select, monitor and supervise its medical personnel and to discover, stop and report Oluwafemi Charles Igberase,” the complaint states.

According to the complaint, the plaintiffs have suffered physical pain, emotional anguish, fear, anxiety, embarrassment and other emotional injures as a result of Dimension’s alleged violations of the standards of care.

“On information and belief, Oluwafemi Charles Igberase recommended and performed a statistically significant number of unplanned emergency cesarean section surgeries,” the complaint states. “Many of the unplanned emergency cesarean sections were not medically necessary.”

Further, the plaintiffs assert that Dimensions only terminated Igberase shortly after the criminal proceedings at federal court. In 2016, Igberase was sentenced to six months in prison and three years of supervised release, according to March court records.

However, in March 2012, the federal government denied Igberase’s application to enroll in Medicare reimbursement after determining he didn’t provide an accurate Social Security number. “In 2012, Dimensions knew or should have known that the Social Security number provided to Dimensions by Igberase belonged to another person,” the lawsuit states.

The civil lawsuit brings a claim for negligent and grossly negligent hiring, retention, supervision, selection, qualification and credentialing. Additionally, it brings claims for invasion of privacy, stating Igberase “intruded upon the solitude, seclusion or private affairs and concerns of named plaintiffs and class members by viewing private areas of each patient’s body, performing medical procedures on each patient, inserting his extremities inside each patient, performing surgical procedures on patients and other boundary violations all without authorization or consent.”

Further claims include intentional infliction of emotional distress, battery and negligent entrustment.

The lawsuit seeks to represent a class of patients examined or treated by Igberase and a subclass of anyone on whom he performed a C-section.  The case is Russell et al. v. Dimensions Health Corp., case number 8:17-cv-03106, in the U.S. District Court of Maryland.

Top Settlements

Settlement for school bus stop injuries. Negligence leading to personal injury and finally, a settlement. A $36.1 million settlement has been awarded to the family of a young girl who was hit by a car while attempting to catch her school bus. The accident left her with severe injuries including fractures to her neck, arm, leg and pelvis, and a permanent traumatic brain injury that requires she is cared for by a licensed vocational nurse (LVN) 24 hours a day, seven days a week for the rest of her life.

On the morning of October 3, 2012, then six-year old Isabella Escamilla Sanchez, attempted to cross 9th street mid-block to get to the bus stop where her school bus was en route to Bonnie Oehl Elementary School. While attempting to cross the road, the driver of a Subaru Impreza struck her.

In filing their lawsuit, Isabella’s family named Durham School Services as a defendant for failing to report and prevent mid-street crossings, which is a blatant violation of their own policies and procedures. The family’s attorneys showed that it was a common practice for parents and students to cross 9th street mid-block directly in front of the Durham bus driver.

The family also argued that had the bus driver warned parents and students about the dangers of attempting to cross the street mid-block, this tragedy could have been prevented. During the trial, all the parents with children at the same bus stop testified that they never used the controlled intersection near the stop because they didn’t realize the danger and always crossed in the middle of the block.

Additionally, the parents stated that crossing mid street was common practice and that they did so in plain view of the Durham bus drivers who never took steps to prevent this behavior. The San Bernardino School District’s transportation director stated at trial that the drivers are the “eyes and ears for the school district” and that the district relies on drivers to report dangerous conditions at bus stops including unsafe mid-block crossings.

Other defendants names in the personal injury lawsuit include the County of San Bernardino, City of Highland, San Bernardino City Unified School District, Bonnie Oehl Elementary School, Shanita Cottia Mason, the bus driver, and Lillian Thanh Vo, the driver of the Subaru.

And the deal lumbers on… A $36 million settlement deal has been reached between Lumber Liquidators (LL) and two classes of consumers, potentially ending multidistrict litigation alleging LL manufactured and sold defective and hazardous laminate flooring.

According to litigation, one class alleged that the durability of the wood was not what not up to grade advertised, while the other class claimed the wood contained levels of formaldehyde beyond the legal standard.

According to the terms of the proposed deal, LL will pay $22 million in cash and another $14 million as in-store credit.

Class members include all persons who purchased Chinese-manufactured laminate flooring sold by LL between January 2009 and May 2015. They will be eligible for cash or vouchers, according to LL.

The proposed Lumber Liquidators agreement must receive final court approval. The case is Leticia Ruiz v. Lumber Liquidators Holdings Inc. et al., case number 1:15-cv-02745, in the U.S. District Court for the Eastern District of Virginia. 

Ok – That’s a wrap for this week. See you at the bar!

Week Adjourned: 10.20.17 – Subaru, Live Nation, Brickman Group

Top Class Action Lawsuits

Subaru Defect? Is your Subaru WRX and WRX STi suffering from defects? Read on. A defective automotive class action lawsuit has been filed against Subaru of America Inc. and Subaru Corporation alleging they failed to disclose a defect involving connecting rod bearings, defective connecting rod side clearances, and/or insufficient channels of engine lubrication, which results from an alleged defective rotating assembly. According to the complaint, the affected vehicles include model year 2013 and 2014 Subaru WRX and WRX STi vehicles.

The Subaru lawsuit, filed by Plaintiff Vincente Salcedo of California, claims Subaru used a rotating assembly that has a defect that existed at the time the vehicles were manufactured but typically manifested after the expiration of the limited warranty period.

Specifically, the defect manifests with the connecting rod bearings failing and metal debris allegedly begins to circulate throughout the engine via contaminated engine oil. This results in spun connecting rod bearings and catastrophic engine failure, potentially causing life-threatening stalling events while the vehicle is in operation, the complaint asserts.

“Despite notice and knowledge of the defect from the numerous complaints it has received, information from dealers, National Highway Traffic Safety Administration (‘NHTSA’) complaints, and its own internal records, including pre-sale durability testing and quality policies, Subaru has not recalled the Class Vehicles to repair the defect, offered its customers suitable repairs or replacements free of charge, or offered to reimburse its customers who have incurred out-of-pocket expenses to repair the defect,” the complaint states.

Salcedo states in the lawsuit that he purchased a 2013 Subaru Impreza WRX from a private party in August 2015. Nearly two years later, at approximately 68,759 miles, the vehicle’s engine allegedly made a “knocking” sound while he was driving on the highway and catastrophically failed.

Salcedo states that he had his vehicle towed to an authorized Subaru dealer for diagnosis and repair related to the engine failure and was allegedly quoted in excess of $5,700 to complete the necessary repairs. The complaint claims the dealer contacted Subaru of America, which offered to cover $2,000 of the repairs as a goodwill gesture. Salcedo subsequently paid $3,711.15 himself for parts and labor.

Salcedo claims he would not have purchased the Subaru Impreza vehicle, or would have paid far less for it, had Subaru publicly disclosed the engine defect prior to the time he purchased the vehicle.

The Subaru class action lawsuit alleges violations of the New Jersey Consumer Fraud Act, breach of express warranty, breach of the implied warranty of merchantability, breach of the duty of good faith and fair dealing, violations of California’s Consumers Legal Remedies Act, violations of California’s Unfair Competition Law, violations of the Song-Beverly Consumer Warranty Act, and breach of written warranty under the Magnuson-Moss Warranty Act.

The lawsuit is Vincente Salcedo v. Subaru of America Inc., et al., Case No. 1:17-cv-08173-JHR-AMD, in the U.S. District Court for the District of New Jersey.

Top Settlements

Live Nation has agreed to pony up $1.1 million to settle allegations it illegally denied breaks to 1,500 parking and traffic employees in California. If approved, this will end the employment class action it’s currently facing.

The entertainment company was sued in September, 2015, by named plaintiff Lee Webster, a former traffic controller at Live Nation’s Shoreline Amphitheater in Mountain View, CA. Webster alleged that she and other parking lot employees were required to work without meal and rest breaks as a matter of routine.

According to the terms of the settlement, the funds will pay litigation costs and fees, with the remaining funds distributed to class members pro rata based on the number of hours each class member worked performing parking or traffic control duties during the class period. The estimated net recovery for each class member will likely average $421.55 Any funds from checks that remain uncashed after 180 days will be split between two nonprofits: the Katherine & George Alexander Community Law Center and Lambda Legal, according to the settlement.

Further, the settlement allows for Webster to seek an additional award of $20,000 as class representative.

As per the terms of the Live Nation settlement, the class is defined as consisting of all current and former Live Nation nonexempt employees who performed parking or traffic control duties for the company in California from September 28, 2011, to the present.

The case is Lee Webster v. Live Nation Worldwide Inc. et al., case number 2015-1-CV-286202, in the Superior Court of the State of California, County of Santa Clara.

Brickman Group settles... Another group of happy plaintiffs this week. Final approval of a $4.4 million settlement has been granted ending an employment class action lawsuit involving hundreds of employees of The Brickman Group Ltd. LLC (now Brightview Landscapes LLC).

The plaintiffs claims filed in their October 2013 lawsuit that Brickman Group underpaid overtime to its salaried Supervisors by using a half-time “fluctuating workweek” overtime pay plan that allegedly did not comply with the Fair Labor Standards Act (FLSA) and state laws.

The Brickman Group settlement classes involve approximately 476 original opt-in Plaintiffs and Pennsylvania class members in Group 1, and approximately 345 individuals in Group 2 who did not originally join the case but accepted their settlement offers to join and participate in the settlement.

The case is Acevedo, et al. v. Brightview Landscapes, LLC (f/k/a/ The Brickman Group Ltd. LLC), No. 3:13-cv-02529-MEM (M.D. Pa.)

So folks – on that happy note – this week’s a wrap –see you at the bar!!

 

Week Adjourned: 10.13.17 – Whole Foods, Hip Implants, Burger King

Top Class Action Lawsuits

Whole Foods wholly implicated? …in a potential data breach class action lawsuit alleging that it wasn’t paying as much attention as it should have in safeguarding its customers’ personal info. In other words, negligence. According to the complaint, the hack took place in September and resulted in consumers’ personal information being stolen.

According to the Whole Foods lawsuit, filed by named plaintiff Patricia Banus, the data hack affected Whole Foods taprooms and restaurants. Banus alleges in the lawsuit that she paid for goods at a Whole Foods Market Group Inc. taproom four days before the September 28 announcement of the breach. As a result, she asserts she must now cancel her card, given that her personally identifiable information may have been compromised through the breach of the taproom’s point-of-sale system.

“Plaintiff, individually and on behalf of those similarly situated, brings this action to challenge the actions on Whole Foods in the protection and safekeeping of the plaintiff’s and class members’ personal information,” the complaint states. “Whole Foods’ failures to safeguard the consumer PII has caused plaintiff and class members damage.”

According to the complaint, Whole Foods had a duty under the Fair Credit Reporting Act to safeguard customers’ personally identifiable information from being disclosed to third parties. As part of those responsibilities, Whole Foods should have been following security protocols from Mastercard and VISA in the processing of card transactions. The breach may have resulted from a failure by Whole Foods to comply with these security standards, the complaint states.

Further, Whole Foods allegedly violated Ohio consumer protection laws and if consumers had known that their personal data was not properly protected, they would have potentially have shopped somewhere else, the complaint states.

The plaintiff claims there is a good probability that the full extent of the identity theft and fraud that could result from the Whlole Foods data breach has yet to be disclosed and consumers’ information might be available to purchase on the dark web.

The proposed class is made up of all US consumers whose personal data was released during the September breach. Banus also seeks to represent an Ohio subclass. The size of the proposed class is unclear with the company reporting that 117 venues were affected.

The case is Banus v. Whole Foods Market Group Inc., case number 1:17-cv-02132, in the U.S. District Court for the Northern District of Ohio.

Top Settlements

Wright to pay for what’s wrong… Wright Medical Technologies wants out and they’re willing to pay for it. This week, the company announced it will pay $340 million to end about 2,000 claims resulting from alleged failure of its hip implant devices. This settlement will augment the Wright defective hip implant settlement reached in 2016 by $90 million, according to the defendant’s legal counsel.

The lawsuits are consolidated in multidistrict product liability litigation (MDL) in the Northern District of Georgia or in Los Angeles Superior Court in judicial counsel coordinated proceedings, California’s equivalent to a federal MDL.

The first bellwether case was heard in 2015 and resulted in an $11 million jury verdict for Robyn Christiansen, a 73-year-old Salt Lake City ski instructor who had suffered a catastrophic failure of her Wright-manufactured hip implant. The award was eventually reduced by $9 million.

According to the terms reported for the 2016 settlements, each claimant with a Conserve Cup device received about $170,000. Each claimant implanted with either a Dynasty or Lineage replacement hip that had failed received $120,000.

The Wright hip implant metal-on-metal design was responsible for the device failures, because it caused metal wear, according to court records. This resulted in the shedding of metallic debris into the surrounding tissue, leading to a condition known as metallosis, which inflamed and poisoned tissue, dissolved bone that anchored the implant and ultimately caused the implant to fail, court records state.

According to attorneys for the plaintiffs, this new settlement agreement will include hundreds of cases excluded in the first agreement because Wright Technology, the medical device company’s new Chinese owners, and Wright’s insurance carrier did not have sufficient funds to cover all the claims.

The new cases include those with hip implants that failed after the statute of limitations on suing had expired, cases filed after the original settlement was consummated, and suits by plaintiffs who reconsidered after initially deciding not to accept a settlement offer last year, the attorneys said.

Those plaintiffs who refuse to settle as part of the $340 million agreement, will be dismissed and remanded to their states of origin, according to the attorneys.

Burger King BOGO Rewind… in the form of a settlement that could see consumers get $2 gift cards. Yup- it’s part of the terms of the settlement meant to end the pending consumer fraud class action lawsuit. Under those terms consumers who ordered Croissan’wiches with a coupon, will receive $2 gift cards. Well, shut the front door!

According to the lawsuit, some customers who ordered their sandwiches without eggs, cheese or meat may have been overcharged and those customers who presented a buy-one-get-one-free coupon paid a higher price for the sandwich.

The lawsuit was filed by Burger King customer Koleta Anderson, in Maryland federal court on May 2017, on behalf of aggrieved breakfast patrons who alleged they were overcharged when using a coupon. This resulted in Burger King conducting its own investigation into the allegations.

According to court documents, Burger King Corp did in fact find that customers who used a buy-one-get-one-free coupon to order two of the breakfast sandwiches that were modified to exclude eggs, cheese or meat may have been charged the cost of a regular Croissan’wich instead of the lower cost of the pastry without the eggs, cheese or meat.

The faulty point-of-sale programs that caused the overcharges have been updated, Burger King said. Further, the restaurant chain has agreed to give $5 to customers who have a receipt showing their overcharge on modified BOGO Croissan’wiches, and $2 gift cards to customers who meet certain other terms.

The proposed settlement also includes a permanent injunction barring the fast-food chain from repeating the mistake.

Anderson will receive a service award of $500 for assisting in the case. That’s a lot of sandwiches…

The case is Anderson v. Burger King Corp., case number 8:17-cv-01204, in the U.S. District Court for the District of Maryland.

So folks – on that happy note – this week’s a wrap –see you at the bar!!

 

 

 

Week Adjourned: 10.6.17 – Royal Caribbean, AndroGel, Align

Top Class Action Lawsuits

Your dream cruise turned nightmare. And it could have been avoided. That’s what a family is claiming it their negligence class action lawsuit against Royal Caribbean Cruise Lines. Filed by Canadian traveler Nikki McIntosh, the lawsuit alleges the cruise line should have cancelled a Galveston cruise scheduled during hurricane Harvey. You think?

According to the proposed class action lawsuit, rather than allowing would-be vacationers to reschedule their cruise in light of the category 4 hurricane, Royal Caribbean offered the choice of either taking the cruise or forfeiting all the money customers paid for their trip on the Miami-based cruise line’s Liberty of the Seas. The cruise was scheduled to depart on August 27th from Galveston, Texas.

According to the court filings, toddlers waded through flood waters as their stranded families searched for food after they were “strong-armed” into coming to Galveston when the cruise line “repeatedly” told passengers they would lose the entire cost of the trip if they cancelled.

The day before Harvey made landfall, Royal Caribbean issued an online notice that the Sunday cruise was still set to leave port as scheduled. The following day, as the storm made landfall in Texas, airlines started cancelling flights and officials closed the Port of Galveston, according to the complaint.

The port closure trapped Liberty of the Seas and three Carnival Cruise ships at sea, stranding more than 20,000 passengers set to disembark in Galveston. Regardless, Royal Caribbean told incoming travelers to expect an on-time departure that Sunday, plaintiffs claim.

The lawsuit notes that while Carnival rerouted its ships to other ports, Royal Caribbean “sailed straight ahead.” On the afternoon of Saturday, August 26, the cruise line’s chief meteorologist tweeted: “Weather looking favorable tonight and tomorrow,” according to court documents.

Just a few hours later, cruise passengers were again told that their cruise was going ahead, the ship would sail as planned. “By this time, catastrophic flooding had already begun,” the complaint states. “Hundreds of flights were cancelled, and highways were flooded, impassable and deadly. Yet RCCL was still attempting to find a way to make the scheduled sailing.”

However, late Saturday night, Royal Caribbean delayed the Sunday departure to Monday, as the closure of the port prevented it from docking and boarding the customers.

“At or around this time, was the last chance that these passengers likely could have escaped being trapped in Hurricane Harvey’s flood waters but RCCL did its best to convince these passengers to stay. Only on Sunday, August 27, the worst day of flooding in Galveston County, did the cruise line email the passengers offering them the ability to cancel for a full refund and future discount. A few hours later, they called off the cruise altogether. However, by this time, dozens of passengers were in the Galveston area.

“Had the cruise been cancelled a day or two earlier, just like Carnival did, then these passengers would not have been trapped in the path of Hurricane Harvey and subjected to 5-6 days of terror, hardship and inconvenience in a place foreign to them,” the lawsuit alleges.

The proposed class action lawsuit claims that Royal Caribbean was negligent in its refusal to cancel the sailing sooner and for failing to appropriately monitor the weather. The plaintiffs have suffered emotional distress with symptoms ranging from nausea to nightmares, as a result of the defendant’s actions, the lawsuit claims.

Unbelievable. 

Top Settlements

The $140M settlement deterrent? AbbiVie, maker of the testosterone replacement therapy AndroGel, has been ordered to pay over $140 million to a man who alleges he suffered a heart attack as a result of using the drug.

The verdict is for second case of more than 6,000 such cases in an Androgel mass tort pending against AbbieVie and other companies, which have been consolidated in the Chicago court.

The case involves Tennessee resident Jeffrey Konrad, who filed the lawsuit, with his wife, in 2015. Konrad was awarded $140 million in punitive damages, intended to deter the defendant and others from engaging in similar behavior, and $140,000 in compensatory damages, according to Konrad’s attorneys.

According to the claims made by Plaintiffs across the US, AndroGel can cause heart attacks, strokes and other injuries.

In another case, a federal jury found AbbVie fraudulently misrepresented Androgel’s risk for cardiac events and consequently ordered the company to pay $150 million in punitive damages.

According to Konrad, aged 56, he suffered a heart attack in 2010, after using AndroGel for two months. He has since recovered from his injuries.

In 2014, the FDA convened an advisory committee to consider the adverse cardiovascular outcomes associated with testosterone replacement therapy. On the committee’s recommendation, the FDA required AbbVie to add a warning about cardiovascular risk to AndroGel’s label in May 2015, Reuter’s reports.

Proctor & Gamble’s gamble has ended up costing them $30 million. That’s the amount of a settlement deal agreed by P&G, potentially ending a consumer fraud class action lawsuit claiming the company falsely advertised its probiotic supplement Align as “clinically proven” to promote digestive health.

The proposed deal comes after seven years of litigation and months of negotiations and would, under the terms of the deal, see P&G pay up to $15 million in cash refunds to people who bought Align, and provide $5 million to $10 million worth of other benefits, in addition to fees and court costs.

Further, Procter & Gamble has also agreed not to make the “clinically proven” claim without new, reliable supporting clinical data or a change in Align’s formula.

Should the deal receive approval, the settlement class will consist of anyone who bought Align in the US or its territories for personal use between March 1, 2009, and June 6, 2016. Each class representative could receive up to $2,500.

Specifically, the terms of the proposed deal state that each class member could receive up to $49.26 in cash refunds, including $31.76 for two purchases of Align between March 1, 2009, and October 31, 2009, the time period in which Procter & Gamble specifically advertised Align’s benefits as clinically proven. For purchases made after that date, class members may receive one refund of $17.50.

The case is Rikos, et al. v. Procter & Gamble Co., case number 1:11-cv-00226, in the U.S. District Court for the Southern District of Ohio. 

Ok – That’s a wrap for this week. See you at the bar!