TVM

Week Adjourned: 2.12.16 – Nissan, Target, TVM

Top Class Action Lawsuits

Heads Up Owners of 2011-2012 Nissan Frontier Trucks… Nissan North America got hit with a defective automotive class action lawsuit this week over claims its side air bags are, well, just a little too enthusiastic. Plain English—the air bags deploy unnecessarily.

Filed by plaintiff Bobette Brantley, the Nissan airbag lawsuit asserts that the automaker designed side air bags in 2011-2012 Nissan Frontier trucks to inflate in rollover and near rollover conditions. However, it failed to warn consumers about how sensitive the air bags and seatbelt pretensioner igniters actually are. The seatbelt pretensioner igniters tighten any slack in seatbelts during an accident.

The lawsuit states that a defect in the class vehicles causes the side curtain air bags to deploy simultaneously and unnecessarily while also causing the seat belt pretensioner igniter to deploy. Once this happens, the vehicles are no longer safe to drive and consumers must pay thousands of dollars to have extensive repair work done. Adding insult to injury, Brantley also claims that Nissan refuses to pay for the resulting repairs.

According to the lawsuit, “The deployment of the side curtain air bags and the seatbelt pretensioner igniters is extremely distracting to drivers of class vehicles. The distraction is of such a magnitude that drivers of class vehicles are at risk of losing control of class vehicles, greatly increasing the possibility of a traffic accident, and injury.”

In the suit, Brantley states that while she was driving her vehicle in December, in a way that she said Nissan represented the vehicle can be driven, the side curtain air bags suddenly and unexpectedly deployed, causing her to nearly lose control of the vehicle. As a result, she spent thousands of dollars to restore her Frontier to a safe, driveable condition.

Brantley asserts that Nissan was aware of the alleged defect as a result of consumer complaints, internal testing and dealership repair records. However, she claims, the automaker failed to disclose the defect and, in fact, actively concealed it from consumers.

The suit further claims that evidence of Nissan’s knowledge of the alleged defect can be seen in the owner’s manual for the Frontier, which states that the curtain air bags are designed to inflate in rollover or near rollover conditions and can inflate due to certain vehicle movements such as severe off-roading.

“It is plaintiff’s contention, based upon plaintiff’s own experiences, and based upon plaintiff’s awareness of the complaints of other class members, that the class vehicles are too sensitive. As a result the ‘near rollover conditions’ design threshold, which signals the side curtain air bags and seatbelt pretensioner igniters to deploy, signals deployment under conditions where there is no true risk of a rollover,” the complaint states.

Brantley asserts Nissan refused to warn customers about the alleged defect, refused to remedy the defect and refused to compensate customers for any damages resulting from the defect.

The suit seeks certification of a class consisting of everyone who has bought or leased a class vehicle, as well as an order holding Nissan financially responsible for the defect, enjoining the automaker from continuing its deceptive practices, requiring the automaker to fix the defect and making Nissan disgorge part or all of its profits received from the sale or lease of the class vehicles.

The case is Brantley v. Nissan North America Inc. et al., case number BC609400, in the Superior Court of California, County of Los Angeles.

Target not on Target with Overtime Pay? The discount retailer got hit with an employment class action lawsuit this week. Filed in New York, by Robert LaPointe Jr, on behalf of himself and others similarly situated, the Target lawsuit claims violations of New York Labor Law, specifically, that Target failed to compensate him for overtime worked.

According to the suit, LaPointe worked for Target as an operations group leader in the company warehouses in New York from 2011 to 2015. While at work, the suit states that LaPointe regularly worked in excess of 40 hours per week.

LaPointe asserts that Target failed to pay an overtime premium to him and others in the class for additional hours worked. This, the suit states, is because the employees were misclassified as exempt from the overtime requirements of the New York Labor Law. Additionally, the suit claims Target failed to provide accurate wage statements.

LaPointe and others in the class seek to recover unpaid overtime wages, interests, statutory penalties, injunctive relief, attorney fees and other court costs.

The case is U.S. District Court for the Southern District of New York Case number 1:16-cv-00656-VSB.

Top Settlements

TVM Award for the Victim…This settlement makes two out of two for the plaintiffs. A $13.5 million verdict has been awarded by a Philadelphia jury in the second transvaginal pelvic mesh injury lawsuit pending against Johnson & Johnson, and its subsidiary Ethicon, makers of the defective pelvic mesh.

The jury agreed that an Ethicon Inc. transvaginal tape product, known as TVT, was not reasonably safe, and that plaintiff Sharon Carlino’s physician would never have implanted the product had he been aware of its risks.

In her suit, Carlino claimed that as a result of having the defective pelvic mesh implanted, she was in near constant pain and discomfort, and was unable to have sex.

The transvaginal mesh verdict is the second damage award against Ethicon. The company is facing nearly 180 cases consolidated as part of a mass tort program in Philadelphia County’s Court of Common Pleas, which began to go to trial in December.

In the initial case, the jury awarded $12.5 million to the plaintiff, agreeing that Ethicon’s Prolift pelvic mesh product was negligently designed and that a physician who implanted the product in plaintiff Patricia Hammons in 2009 received inadequate warnings about the risks.

This most recent verdict returned for Carlino includes $10 million in punitive damages, $3.5 million in compensatory damages, and another $250,000 to Carlino’s husband for loss of consortium.

The case is Carlino et al. v. Ethicon Inc. et al., case number 130603470, in the Court of Common Pleas of the State of Pennsylvania, County of Philadelphia.

Ok! So, that’s a wrap folks… See you at the Bar!

Week Adjourned: 7.10.15 – Ford, Capital One, Transvaginal Mesh

Top Class Action Lawsuits

Ford is not in the driver’s seat on this one…They got hit with a defective design class action this week, alleging certain Ford Explorer, Ford Edge and Lincoln MKX models allow carbon monoxide to enter the passenger compartment. Yeah, not so good guys. The suit covers 2011-2015 Ford Explorers as well as Edge and MKX models from 2011-2013 with 3.5L and 3.7L TIVCT engines.

The proposed Ford class action was filed on behalf of New Jersey owners or lessors of the vehicles in question. The complaint also proposes a subclass of consumers with claims under New Jersey’s Lemon Law for claimants who reported the defect to Ford in the first two years or 24 months of ownership.

According to the legal documents, Ford has known of the defect since 2012 but has not warned owners to get it fixed. Surprised? Apparently Ford has issued two technical safety bulletins to dealers about the problem but to date, has not notified owners, despite the related safety hazard. Ford has attempted to fix the problem on customers’ vehicles with a variety of remedies but none have proved effective, according to the complaint.

“Given that the defect renders driving the subject vehicles a health hazard that is potentially deadly, the vehicles are valueless,” the lawsuit states.

The lawsuit alleges breach of implied and express warranty, violation of the New Jersey Consumer Fraud Act, of the Magnuson-Moss Warranty Act, and of the New Jersey Motor Vehicle Warrant Act, also known as the Lemon Law. Love that Lemon Law!!!

Capital One should change its tag line…from “What’s in your Wallet” to “If at first you don’t succeed.” These guys are frankly, incorrigible—nay—unrepentant. They are facing yet another robocalls class action lawsuit—this one against Capital One Financial Group. Filed by plaintiff Nakia Pitr, this latest lawsuit alleges Capital One is in violation of the Telephone Consumer Protection Act by calling consumers through robodialing without their consent. Yeah, know this one off by heart.

Pitre claims in the Capital One lawsuit that within the space of two months, she received 37 calls on her cellphone from the bank, despite not being a customer. Capital One ignored her requests to stop calling, she claims.

According to the lawsuit, the calls were from the company’s credit card division. During each of the calls she received and answered, she told the bank they had the wrong number and asked them to stop calling. However, she continued to receive calls. According to the suit, the frequency and nature of the calls indicates they were made from an automatic telephone dialing system.

Pitre further alleges she has never been a Capital One customer, has never given the bank her number or given her consent for them to call her.

If approved, the class would include anyone contacted by Capital One using a robodialing system from July 1, 2014, through July 2, 2015, without prior consent and who received calls after asking not to be contacted.

FYI—the case is Pitre v. Capital One Financial Corporation, case number 1:15-cv-00869, in the U.S. District Court for the Eastern District of Virginia.

Top Settlements

Not a class action settlement—but a significant settlement none the less. Sadly, at great personal expense. Boston Scientific has been ordered to pay a $100 million settlement by a jury hearing the case of a women who suffered injury from the company’s Pinnacle and Advantage Fit vaginal mesh. Fifty-one year old Deborah Barba was awarded $25 million in compensatory damages with an additional $75 million in punitive damages.

In her personal injury lawsuit, Barba alleged she received a Boston Scientific’s Pinnacle mesh product in 2009 for pelvic organ prolapse (POP) and stress urinary incontinence (SUI). However, following the implant she began experiencing serious medical complications and despite two subsequent surgeries to rectify the problems, parts of the vaginal mesh implant remain in her body and continue to cause her pain.

The trial took just two weeks, after which the jury reached a decision within seven hours. They found Boston Scientific was negligent in designing and making the devices and that it had failed to warn patients and doctors about potential risks.

To date, this verdict is the largest regarding litigation over transvaginal mesh devices against Boston Scientific or any other mesh manufacturer. The company announced last month it had reached agreements to pay about $119 million to resolve 2,970 cases about transvaginal mesh. There are more than 25,000 defective product lawsuits pending against Boston Scientific concerning injuries resulting resulting from the Pinnacle mesh implant.

Reuters reports that this latest verdict is the sixth so far against the company by women who say that the devices are poorly designed and use subpar materials, resulting in painful physical injuries such as bleeding, infection and pain during sex.

That’s a wrap folks…See you at the Bar!

Week Adjourned: 8.17.12 – Jones Lang Lasalle, Doctor Discounts, Avaulta Mesh

The weekly wrap of top class action lawsuits and settlements for the week ending August 17, 2012.

Top Class Actions

More unpaid overtime lawsuits this week – and top of the pile is a potential class action lawsuit filed against commercial real estate brokerage giant Jones Lang Lasalle.

The unpaid overtime class action lawsuit was filed by maintenance worker and lead plaintiff Larry Jackson who alleges he was incorrectly classified as exempt from overtime. In January, Jones Lang Lasalle allegedly reclassified its maintenance workers from salary to hourly employees, according to a lawsuit. Jackson claims that as a result, the refuses to pay him overtime after 40 hours a week.

“Since plaintiff has been re-classified, there have been multiple instances where he has not been paid for all of his overtime hours,” the lawsuit states. “Plaintiff’s manager has either doctored his time card to show that plaintiff only worked 40 hours or outright refused to pay plaintiff for his overtime hours.”

Jackson seeks actual and punitive damages for violations of the Fair Labor Standards Act. He is represented by J. Derek Braziel with Lee Braziel in Dallas.

Top Settlements

It’s settled but not over… for Christine Scott, who was awarded $5.5 in settlement of her Avaulta lawsuit. Scott filed the lawsuit against C.R. Bard over a transvaginal mesh implantation.

Scott, just 53, claims the problems stem from the Bard Avaulta mesh implant she was provided with in 2008 to treat occasional urinary incontinence. The TVM lawsuit alleged Scott now suffers from chronic pain and can no longer enjoy intercourse with her husband as a result of a transvaginal mesh implant. The case is Scott v. Kannappan, S-1500-CV-266034-WDE, Superior Court for Kern County, California (Bakersfield).

Scott was given the Avaulta Plus Biosynthetic Support System, a product C.R. Bard no longer sells in the US. It remains available elsewhere in the world. Scott launched her Avaulta lawsuit in January 2009 upon learning the previous October that the US Food and Drug Administration (FDA) had issued a warning to doctors pertaining to “rare” but “serious” complications originating with the mesh in some patients.

Scott testified that for five months she could only urinate with a catheter. It has also been discovered the mesh has eroded within her body, breaking apart and becoming intertwined with her organs and surrounding tissue. The mesh is causing ongoing internal lacerations, infection and abscesses.

The Bard mesh is also protruding through and into her vagina, making intercourse impossible. And because the mesh has become so intertwined with her vital pelvic organs and other tissue, it can never be safely removed.

The problems with Bard Avaulta have resulted in eight subsequent surgeries and nine additional procedures related to the internal damage wrought by the mesh product. The experience has also resulted in the need for ongoing psychiatric care. At trial, her psychologist testified the plaintiff would require ongoing therapy for the remainder of her life.

Doctor discount program? In what parallel universe does that happen? Certainly not ours, is the answer the courts handed down this week. Final approval of a consumer fraud class action settlement in Smith, et al v. Collinsworth, et al. has been obtained on behalf of approximately 48,000 consumers who were sold a limited benefit health insurance policy and a membership in a doctor discount program marketed as providing coverage that was as good or better than major medical, but who found out otherwise when they got sick and were saddled with large unpaid bills.

According to the Circuit Court of Saline County Arkansas, which approved the settlement, “the value of the settlement exceeds $40 million,” plus it “provides … injunctive relief designed to address the gravamen of the claims at issue in this Action.” The doctor discount program lawsuit has been in progress for seven years.

The lawsuit alleged that the health insurer and the doctor discount network, through their shared sales force, misrepresented the combination of a limited benefits health insurance policy and the doctor discount program as providing coverage that was equal to or better than major medical policies issued by companies such as Blue Cross Blue Shield. In fact the combination of products provided only a fraction of what would have been paid by major medical policy and left class members with crippling bills. The litigation class was certified in September 2009 by the Circuit Court of Saline County, Arkansas, and class certification was affirmed by the Arkansas Supreme Court in December 2010 in United Am. Ins. v. Smith (see 2010 Ark. 468 (2010)).

Ok – that’s it for this week – see you at the pool bar!