Week Adjourned: 8.11.17 – CVS, Nissan, Mesh Implants

Top Class Action Lawsuits

Drug Co-Pays too much? CVS got hit with a proposed consumer fraud class action lawsuit this week, alleging it has engaged in a massive fraudulent scheme with third parties to increase generic prescription drug costs for consumers who buy them using their insurance. The goal of the scheme is allegedly to increase profits. Of course.

According to the lawsuit, filed in the U.S. District Court for the District of Rhode Island, CVS knowingly colludes with third-party pharmacy benefit managers (PBMs) to raise the prices of generic drugs, charging consumers what it calls a “co-pay.” However, a significant portion of this amount in fact goes back to PBMs. CVS also earns more money from the transaction compared to customers who don’t use insurance.

Using their leverage with pharmacies, the PBMs negotiate lower prices that the insurance companies have to pay to pharmacies, the complaint asserts. In turn, pharmacies, benefit from having enrollees in the insurance plan come to their stores to have their prescriptions filled.

According to attorneys for the plaintiffs, “when customers go to CVS to fill their prescription, they assume they should use insurance to buy their drugs. In fact, pharmacists often insist on getting customers’ insurance information, even if the customers don’t want to use it. Now we know why – pharmacies are making more money from insurance purchases than cash purchases because of the secret deals they reached with PBMs.”

The CVS pharmacy lawsuit alleges CVS engages in is a two-pronged drug pricing scheme and has done since at least 2010. This scheme allegedly violates the Racketeer Influenced and Corrupt Organizations (RICO) Act and federal ERISA laws.

In the first part of the scheme, customers who use their insurance to fill prescriptions at CVS are actually charged a higher price for the same medication than those who pay with cash or don’t use their insurance, according to the suit. CVS does not informs customers that they can save money by not using insurance, the complaint claims.

Megan Schultz, named plaintiff in the lawsuit, alleges she used her insurance to purchase a certain generic drug at her local CVS. Under her plan she paid $165.68, but if she had paid cash, without using her insurance, she would have paid only $92, a 45 percent difference that CVS never told her about. Seriously?

Further, the second part of the scheme involves CVS overcharging customers by collecting “co-pays” that exceed the pharmacists’ price and profit, again unbeknownst to the customer, according to the complaint. CVS gives this extra cash back to PBMs, again part of an undisclosed agreement between the PBMs and CVS, the complaint alleges.

These contracts between CVS and the PBMs are sealed from public view under strict confidentiality agreements, barring consumers from ever learning the true source of their drug cost.

Customers who used their insurance at CVS or another pharmacy to buy one of the following generic prescriptions may be affected, this list includes some but not all of the affected prescriptions: Acyclovir, Albuterol, Alprazolam, Amoxicillin, Amphetamine, Azithromycin, Cephalexin, Benzoyl Peroxide, Clindamycin, Clonazepam, Clonidine, Diazepam, Flonase, Hydrocodone, Ibuprofen, Lantus, Levocetirizi, Levofloxacin, Levothyroxine, Lexapro, Lorazepam, Oxycodone, Penicillin, Percocet, Prednisone, Restasis, Sertraline, Simvastatin, Singulair, SMZ/TMP, Tamiflu, Viagra, Vitamin D.

The lawsuit states that this hidden fraud violates federal racketing laws. The suit also brings claims of fraudulent concealment, fiduciary conflicts of interest, lack of adequate care and violations of state consumer rights laws.

Under ERISA, CVS has an obligation as a fiduciary to act “solely in the interest of the participants and beneficiaries,” according to the suit. Plaintiffs believe that by engaging in this alleged fraudulent scheme, CVS has failed to uphold this duty. Further, by basing its profits in this collusion with a third party, it has created a blatant conflict of interest that harmed its customers.

Top Settlements

And then there were two… It’s the scandal that keeps on giving. Nissan stepped up this week, agreeing to pay $97.7 million to settle allegations of consumer fraud regarding defective Takata Corp air bags. If this goes through, Nissan will be the fifth automaker to exit the multidistrict litigation (MDL), joining Toyota, Subaru, Mazda and BMW who have jointly ponied up $553.6 million to end their liability in the litigation.

Under the terms of the Nissan airbag deal, $87M would be set aside for the consumers’ settlement fund for reimbursement of all costs, ranging from child care payments and towing fees to lost wages. Nissan would also create a free rental vehicle program.

If the settlement does receive court approval, the only two remaining automakers named as defendants in the MDL would be Honda and Ford. Lawyers for the plaintiffs said they would continue to pursue their case against them.

The first consumer lawsuit was filed in 2014, alleging the Takata airbags, which contained volatile ammonium nitrate inflator, can misfire, especially in humid conditions. This sends shrapnel and fumes into the vehicle cabin at high velocity. Nissan recalled more than 52,000 vehicles as a result of the airbags. At least 11 deaths in the US are linked to the defective airbags, and Takata has faced enormous global recalls.

Under the terms of the agreement, an estimated 4.4 million Nissan vehicles will be covered. Nissan will inform the owners about the dangers of the Takata air bags and provide class members with coverage for repairs, including parts and labor. The plan also opens the possibility of a residual distribution payment of up to $500 per class member. The settlement does not involve claims of personal injury or property damage.

The case is In re: Takata Airbag Products Liability Litigation, case number 1:15-md-02599, in the U.S. District Court for the Southern District of Florida.

Endo seeing the end of AMS litigation… Finally, and end is in sight—at least for the litigation. This week, Endo International PLC announced that it will settle “virtually all known” AMS transvaginal mesh product liability lawsuits. This includes lawsuits in the US and internationally.

In a statement issued by the Irish-based maker of transvaginal surgical mesh, Endo stated it will end the known US claims at “reasonable values” and will make installment payments starting in the fourth quarter of 2017 and continue making payments until the end of 2019. It will set aside $775 million to cover roughly US 22,000 mesh implant claims as well as all known international mesh product liability claims and other related matters.

The company stated that it at this time it isn’t aware of any claims that won’t be covered by the $775 million.

In April 2014, Endo said that it had reached settlements with several of the remaining plaintiffs suing American Medical Systems (AMS) Inc. over allegedly harmful vaginal mesh products, resolving “substantially all” of the claims in the case without admitting any liability or fault.

Then, in March 2016, Endo said it was winding down its Astora Women’s Health unit, formerly AMS Women’s Health, to reduce the potential for product liability claims related to future mesh implants. At that time it was facing numerous lawsuits alleging health complications caused by a number of vaginal mesh devices. AMS, based in Minnesota, was a major manufacturer of transvaginal mesh medical devices, which are support systems designed to correct pelvic organ prolapse, (POP) and stress urinary incontinence (SUI).

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

Week Adjourned: 7.28.17 – Groupon, Nissan, Celgene

Top Class Action Lawsuits

Is Groupon discriminating? Someone thinks so. Andrew Huzar has filed a proposed discrimination class action lawsuit, alleging the discount promotion website discriminates against people with disabilities by not offering tickets for accessible seating at events. Further, the allegations state that Groupon does not provide booking options for disability-accessible hotel rooms. Hmm. Not good.

FYI – The lawsuit seeks to represent two nationwide classes, specifically classes of customers made up of those who were not successful in their attempts to either 1) buy tickets to events or 2) find disability appropriate travel accommodations through the Groupon website. Huzar states in his complaint that he has been unsuccessful in securing both tickets and accommodations.

According to Groupon lawsuit, in 2015, Huzar allegedly tried to purchase a “Groupon Getaway” deal to the Red Lion Hotel in Harrisburg, Pennsylvania. However he was unable to find any option to book an accessible room through the Groupon site. The complaint states that Hazar emailed Groupon about the likelihood of booking a wheelchair-accessible room with the offer, however the response he received allegedly stated, “I’m sorry, unfortunately handicap-accessible rooms are not available.”

“Since July 30, 2015, Mr. Huzar has been deterred from attempting to purchase accessible hotel rooms and Groupon Getaways from defendant as he knows such an attempt would merely be a futile gesture,” the complaint states. “Mr. Huzar continues to desire to purchase hotel rooms and Groupon Getaways from defendant, but fears that he will experience serious difficulty doing so as a result of the complete lack of accessible options.”

With respect to purchasing tickets for events, the complaint notes that in the summer of 2016 Huzar received an email advertisement from Groupon about a deal for New York Jets tickets at MetLife Stadium. When he tried to purchase them through Groupon’s website, he discovered the “complete absence” of any accessible-designated tickets in the stadium, he asserts.

“Mr. Huzar has personal knowledge that accessible-designated seating exists at the MetLife Stadium,” the complaint states. “Mr. Huzar is presently aware that if he tried to try to purchase accessible tickets on defendant’s website, he would be unable to do so.”

“Defendant continues to discriminate against … the classes by failing to make reasonable modifications in policies, practices or procedures, when such modifications are necessary to afford persons with disabilities the ability to purchase tickets; and by failing to take such efforts that may be necessary to ensure that no individual with a disability is excluded, denied goods and services, segregated or otherwise treated differently than other individuals,” the complaint states.

Huzar alleges Groupon has violated the 1990 Americans with Disabilities Act, which “prohibits discrimination on the basis of disability in the activities of places of public accommodations.”

The case is Andrew Huzar v. Groupon Inc., case number 1:17-cv-05383, in the U.S. District Court for the Northern District of Illinois.

Top Settlements

It’s not only the brakes that failed– it was Nissan. That’s what a jury found in a recent Nissan SUV had a defective braking system lawsuit.

A $25 million settlement was awarded to surviving family who suffered the loss of their mother and her two daughters who were killed in 2012 when a Nissan Infiniti QX56 SUV crashed into the family’s minivan in a Hollywood intersection.

Nissan faced claims from both the driver of the SUV, Solomon Mathenge, and the family of Saida Mendez, and her two children, Hilda and Stephanie Cruz. The jury returned a verdict finding the fatal accident was 100 percent attributable to the defective Nissan braking system in the Infiniti SUV. Further, the jury found that Nissan had been negligent in not recalling the vehicle.

Although Mathenge was charged with manslaughter after the crash, the charges were dropped following the Nissan defective brake system class action lawsuit filed against Nissan. That class action alleged the software braking system in certain of Nissan’s vehicles was prone to sudden failure, and inspection of Mathenge’s QX56 revealed it had suffered that very same software error, according to the plaintiffs’ trial brief.

The trial consolidated the claims made by the deceased children’s father, Hilario Cruz, the deceased mother’s surviving daughter, Araceli Mendez, and her mother, Juana de la Cruz Bernardino, with Mathenge’s claims.

The jury awarded Hilario Cruz $14 million in non-economic damages for the deaths of his daughters, and $7 million to Araceli Mendez for the loss of her mother and a further $431,000 for the loss financial support, gifts and household services she would have received from her mother had she not been killed. Mathenge was awarded $3.5 million in damages.

The award was significantly less than the amount plaintiffs’ attorneys were seeking. They had asked the jury to find Nissan guilty of malice, as the company was aware of the defect and its danger, but refused to recall the affected vehicles. However, the jury found Nissan did not act with malice.

The case is Cruz v. Nissan North America, et al., case number BC493949, in the Superior Court of California for Los Angeles County.

It’s a healthcare fraud whopper… but a stopper? Possibly. $280M should provide incentive to stop promoting off-label drugs. It likely will be for Celgene, which has agreed to pay $280 million to settle allegations made by a California Whistleblower under the False Claims Act that the biotech company promoted off-label uses for two of its cancer drugs.

The lawsuit, brought by a former sales rep for Celgene, Beverly Brown, alleged the company promoted two bone cancer drugs, Thalomid and Revlimid, for other cancers they weren’t approved to treat. As part of the promotion, Celgene paid kickbacks to physicians to promote the drugs’ off-label use. The lawsuit also alleged these actions were in violation of laws in no less than 28 states and the District of Columbia, in addition to False Claims Act.

Under the terms of the agreement, the United States will receive the majority of the settlement, $259.3 million, with $20.7 going to 28 states and the District of Columbia. California, where the suit was filed, will receive $4.7 million, the largest amount of any state.

According to documents from the Celgene whistleblower case, which was initially filed in 2010, and Celgene had a massive off-label promotion scheme in place for Thalomid and Revlimid. The documents, which were unsealed in 2014, further reveal that Brown alleged that the two drugs were only narrowly approved to treat multiple myeloma, a form of cancer that affects the bone marrow, however they were routinely marketed to treat other forms of cancer, including breast cancer and leukemia.

According to Brown, the off-label use of these drugs was paid for through government programs which, she contended, Celgene marketed by paying doctors speaker fees and other charitable donations in exchange for promoting Thalomid and Revlimid.

The case is United States of America et al. v. Celgene Corporation, case number 2:10-cv-03165 in the U.S. District Court for the Central District of California.

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

Week Adjourned: 3.10.17 – Nissan, Mesh Implants, Home Depot

Top Class Action Lawsuits

Nissan is listening…maybe literally & maybe too much. The automaker got slapped with a proposed privacy class action lawsuit this week, over allegations the company recorded calls between themselves and customers to or from customers’ cell phone without consent. Nice.

Filed in California state court by Dave Vaccaro, the complaint states that this is regular practice for Nissan, which records both inbound and outbound calls that are placed in California, without first obtaining permission or informing customers, in violation of the California Penal Code.

“Defendant concealed the fact that it was recording the aforementioned phone calls to create the false impression in the minds of plaintiff and those similarly situated without their knowledge or consent that they were not being recorded,” the complaint states. “At the outset of the phone calls there was no warning that the phone calls were, or even may, be recorded. Such warnings are ubiquitous today.”

According to the Nissan lawsuit, Vaccaro and Nissan were in contact by cell phone several times during February but at no time was he aware the automaker was recording the conversations, as they had not asked his permission to do so. Further, the complaint alleges that Nissan failed to provide an automated advisory at the beginning of the calls explaining that they could be monitored or recorded, nor did the company’s representatives give him warning. It’s enough to make you go back to writing letters…

Vaccaro states that he remained unaware of the recording until the end of one of the later calls. It was then that a Nissan agent informed him that Nissan’s calls, including collection and sales calls are recorded. Vaccaro claims that as he had no way of knowing the calls were being recorded until August and that recording calls is part of Nissan’s policy, he is justified in not bringing the claim earlier.

The plaintiff seeks to represent a class of all people in California who, in the last year, had inbound or outbound conversations on their cellphones recorded by Nissan without their permission. Although he doesn’t know how many members of the class there are, plaintiff believes the number to be in the tens of thousands, if not more, according to the complaint.

The complaint brings one count for invasion of privacy in violation of the California Penal Code, seeking the greater of statutory damages of $5,000 per violation or three times the actual damage per violation, as well as $2,500 per violation, exemplary or punitive damages, costs and prejudgment interest.

Vaccaro also seeks injunctive relief in the form of an order requiring Nissan to disgorge its ill-gotten gains and provide the class with full restitution, plus an injunction barring the company from recording calls with California residents without permission.

The case is Dave Vaccaro v. Nissan North America Inc., case number BC653385, in the Superior Court of California for the County of Los Angeles. 

Top Settlements

Mesh Mess. A good ending for a bad story… A proposed $12.5 million settlement has been approved by a California federal judge, resolving litigation involving Caldera Medical’s transvaginal mesh (TVM) implant. Thousands of insurance claims were filed against Caldera alleging the TVM caused injuries to some 2,700 women.

According to the terms of the Caldera mesh settlement, in which class members are not able to opt-out, Federal Insurance will distribute $10.58 million among 2,710 class member claimants. Further, it will pay class counsel attorneys’ fees and costs. In exchange, the claimants release Caldera and Federal Insurance from all future claims, according to court documents.

The Caldera TVM implant was used to treat pelvic organ prolapse and stress urinary incontinence in women. According to the suits, which were consolidated in California state court, Caldera knew or should have known that the TVM devices it manufactured and sold were hazardous and dangerous to people’s health. The claims were filed against Caldera which were then turned into insurance claims with Federal Insurance.

According to court documents, Federal Insurance had already paid out more than $6.3 million in settlements, notwithstanding the thousands of additional claims pending. Federal Insurance asked the court to certify a class of claimants and enjoin the claimants from pursuing further suits affecting the insurance policy.

The state litigation is In Re. Transvaginal Mesh Litigation, case number JCCP 4733, in the Superior Court of the State of California for the County of Los Angeles. 

Home Depot bringing it home—$25 million that is—to the banks. A settlement has been reached between Home Depot and financial institutions who brought a class action against the home hardware retailer alleging it was negligent in preventing a massive data breach in 2014.

The putative class action alleged that the data breach compromised 56 million credit and debit card numbers of Home Depot customers.

According to court documents, if approved, the Home Depot data breach settlement would require Home Depot to pay $25 million into a non-revisionary fund to be distributed to financial institutions that have not already released their claims against the retailer for losses stemming from the catastrophic data breach.

For financial institutions with a valid claim, a fixed payment estimated to be $2 per compromised card could be forthcoming, without the institutions having to submit documentation of their losses and regardless of whether any compensation already has been received from another source, according to the agreement.

Class members that submit proof of losses also are eligible for a supplemental award of up to 60 percent of their documented, uncompensated losses from the data breach, documents state.

The retailer also has agreed to pay up to $2.225 million to institutions whose claims were released by a sponsor, such as a card processor, in connection with the card brand recovery program provided by MasterCard.

The MDL is In Re: The Home Depot Inc., Customer Data Security Breach Litigation, case number 1:14-md-02583, in the U.S. District Court for the Northern District of Georgia.

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

Week Adjourned: 10.14.16 – Stewart’s Shops, Power Home, Nissan

stewarts-shopsTop Class Action Lawsuits

Stewing Over Pay at Stewart’s…It seems we just can’t get enough of the old employment class action lawsuit. This one, filed against Stewart’s Shops has been certified in New York. The complaint states that the Malta-based convenience store chain failed to properly compensate its employees for all the hours worked. There are so many instances of labor law violations, I wonder, does anyone actually get paid properly anymore?

The Stewart’s Shops lawsuit was filed by a former employee against the chain in January 2014, alleging she and other workers were not paid for all the hours they worked, and for mandatory call-in pay for store meetings and that they were deprived of an uninterrupted meal break.

The plaintiffs are seeking $20 million in damages on behalf of all non-exempt hourly employees who worked for Stewarts during the past three years.

Reportedly, a collective action has been certified under federal law for full-time employees who worked more than forty hours in any given week and were deprived of overtime compensation.

FYI—the Malta-based convenience store chain has 335 stores in upstate New York and Vermont, and $1.5 billion in sales. No comment.

Top Settlements

Power Home Power Calling You? You gotta love it when you actually stick it to a spammer. This week, court approval has been given to a $5.2 million settlement of a Telephone Consumer protection Act (TCPA) class action lawsuit pending against Power Home Remodeling Group LLC. The lawsuit claimed the company had violated the TCPA because it made automated marketing calls to over a million consumers without their consent.

The judge certified a class of more than 1.1 million people, and granted final approval of the Power Home Remodeling settlement, ending the lawsuit brought by plaintiff Teofilo Vasco. The autodialed telemarketing calls or prerecorded, computer-generated voice messages were made between October 2013 and April 2016, approximately.

The judge also awarded a $3,000 award to the named plaintiff, Vasco, who filed the lawsuit in August 2015. He alleged he gave his cellphone number to a Home Depot salesperson and later received 21 unsolicited phone calls from Power seeking his business by way of an autodialer or prerecorded voice message.

The case is Teofilo Vasco v. Power Home Remodeling Group LLC, case number 2:15-cv-04623, in the U.S. District Court for the Eastern District of Pennsylvania.

Nissan got hit this week, with a preliminary settlement deal reached in three defective automotive class action lawsuits. The first Nissan lawsuit, brought in 2014, alleged that the transmissions in certain model-year certain Pathfinder and Infiniti QX60 vehicles were defective. You may remember this one.

Under the terms of the proposed Nissan agreement, Nissan North America Inc. has agreed to give all owners and lessees of nearly 200,000 Nissan Pathfinders and Infiniti JX35s/QX60s vehicles from model years 2013 and 2014 a free, two-year 24,000-mile extended warranty for their transmissions. Also, owners will be instructed on how to update their vehicles’ software to include detection of the transmission vibration problem referred to as “judder.” Oh great, there’s computer technology involved.

According to the settlement, owners of affected vehicles that underwent two or more repairs to their transmissions may be eligible for discounts on future purchases of a Nissan or Infiniti vehicle. The deal requires court approval.

The case is Kenai Batista v. Nissan North America Inc., case number 1:14-cv-24728, in the U.S. District Court for the Southern District of Florida.

Well, that’s a wrap for this week. See you at the Bar!

Week Adjourned: 2.12.16 – Nissan, Target, TVM

NissanTop 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: 1.9.14 – DAP XHose, Nissan, Honda

The week’s top class action lawsuits and settlements. Top cases include Nissan, DAP Xhose and Honda.

DAP XhoseTop Class Action Lawsuits

Did you get hosed by DAP? A defective products class action lawsuit has been filed against hose manufacturer Dap Products, Inc, alleging the the Xhose and the Xhose Pro are defective and do not perform as advertised. No comment.

According to the DAP Xhose complaint, the hose is made out of a thin plastic internal tube with a thin cloth layer on the outside. Dap advertises the hose as providing an alternative to standard garden hoses because it is lightweight and can contract without “kinking.” “Defendants’ marketing and packaging states that the XHose is tough, durable, and long-lasting,” the lawsuit states. “Contrary to defendants’ representations, however, the XHose is defective and predisposed to leaking, bursting, seeping and dripping due to no fault of the consumer.”

According to Cynthia Finnk, who filed the complaint, she purchased two XHose Pros in December 2013 both of which eventually exploded during use. Oh yes—that could send you over the edge. Apparently, the company sent her a total of eight replacement hoses after the products continued to explode when in use, according to the lawsuit. Ok, what’s your first clue that quality control is an abstract concept here. The company allegedly refused to give a refund because the 90-day refund period had expired. Bingo!

The lawsuit was filed on December 24th, by plaintiffs Michael Carton, Cynthia Finnk, Rocco Lano, Laurina Leato, Marilyn Listander and Roger Mammon filed the lawsuit also names National Express and RPM International as defendants. The plaintiffs are seeking class status for the suit, and in excess of $5 million in damages. The case is United States District Court for the Northern District of Maryland case number 1:14-cv-04015.

Naughty Nissan! They got hit with a federal defective automotive class action lawsuit  this week, alleging Nissan North America failed to warn consumers about dangerously defective transmissions in 2013-2014 Pathfinder vehicles. The alleged defect poses a potentially serious problem at any time, particularly when a car is merging onto high-speed traffic on a freeway, according to the lawsuit. Really?

The Nissan lawsuit alleges that, on acceleration from 15 to 30 mph, the vehicles are subjected to unexpected shaking and violent jerking (“juddering” or “shuddering”), preventing the vehicles from accelerating. And no doubt putting fear into the hearts of drivers and passengers alike.

The lawsuit states: “This transmission defect creates an unreasonably dangerous situation and increases the risk of a crash; it is inevitable that an individual will be injured or killed due to a collision caused by this safety defect.” But hey—if it hasn’t happened yet—why worry about it, right?

The lawsuit alleges that Nissan concealed and knowingly sold and leased vehicles with the dangerously defective transmissions, and through its dealers failed to honor express and implied warranties to repair and replace the dangerously defective transmissions. Instead, the 77-page lawsuit claims, consumers’ complaints were delayed, deflected, and ultimately denied.

Heads up folks—this defect potentially affects tens of thousands of consumers throughout the country. The Consumer Class Action Complaint seeks damages in excess of $5 million, injunctive and declaratory relief, and punitive damages for claims of breach of express and implied warranties, violations of the Magnuson-Moss Warranty Act, and violations of the Florida Deceptive and Unfair Trade Practices Act.

The action, filed December 15, 2014, is Batista vs. Nissan North America, Inc., no. 1: 14-cv-24728-RNS, filed in the U.S. District Court for the Southern District of Florida.

Top Settlements

Honda got its knuckles wrapped this week, as they agreed to pony up $70 million in fines to resolve allegations made by US federal regulators that from 2003 to 2014, the auto maker failed to report 1729 deaths and injuries related to possible safety defects in its vehicles. According to the National Highway Traffic Safety Administration (NHTSA), Honda will pay two $35 million civil penalties, effectively resolving its alleged lapses in early-warning reporting.

The early-warning reporting requirements are part of the Transportation Recall Enhancement, Accountability and Documentation (TREAD) Act, which requires car manufacturers to submit reports to the NHTSA every quarter to alert the agency of deaths or injuries arising from possible safety defects. The NHTSA states that Honda failed to provide early-warning reports to the agency to alert it about safety-related issues. The fines also address Honda’s alleged failure to report some warranty claims and customer satisfaction-related claims during that time, according to the agency.

Honda faced a barrage of class actions related to defective Takata air bags late in 2014, after which the NHTSA issued a special order directing Honda to explain its failure to fully report deaths and injuries related to possible auto safety defects, as required under the TREAD act.

According to the early-warning reports filed with the NHTSA, the 1,729 unreported injuries and deaths that Honda allegedly failed to report constituted more than double the number of incidents the automaker reported to the NHTSA during the past 11 years.

According to Honda, the under-reporting of those death and injury notices was due to “errors related to data entry, computer coding, regulatory interpretation, and other errors in warranty and property damage claims reporting.” Yeah—blame it on the help. Good one guys.

So, under the terms of the settlement, Honda has also agreed to conduct third-party audits of its reporting, train its staff in fulfilling TREAD Act requirements and devise compliance procedures.

Hokee Dokee—That’s a wrap folks…Time to adjourn for the week. See you at the bar.


Week Adjourned: 12.12.14 – SeaWorld, CA Temp Workers, Nissan

The week’s top class action lawsuits and settlements. Top stories for the week include SeaWorld, California Temp Workers and Nissan.

SeaWorld LogoTop Class Action Lawsuits

Is SeaWorld EZPay not EZ to get out of? Jason Herman, Florida believes so. He filed a consumer fraud class action lawsuit against SeaWorld Parks & Entertainment in Florida this week, alleging the marine park automatically renewed annual passes without consumers’ consent and didn’t follow the terms as stipulated in its own contract when confronted by consumers who allege they were charged excessively. Nice. Know this song…

The SeaWorld lawsuit claims Herman, a Florida resident, purchased a one-year adult EZPay to SeaWorld in Orlando and Busch Gardens in Tampa. He anticipated his first payment of $35.40 on March 18, 2013 would be followed by 11 additional monthly charges of the same amount. However, payments continued to be charged to his credit card through to September 18, he alleges.

According to the proposed class action, Herman was later told by a SeaWorld customer service representative that the wording on the contract stated that if a pass was not paid for in less than 12 months, it would renew automatically on a month-to-month basis. Herman contends that this wording was not included in confirming emails, receipts, tickets or passes, and that his request for a refund was declined.

The lawsuit claims that two separate telephone conversations with SeaWorld customer service representatives failed to provide access to a contract with that wording. Herman found the information online at a later date.

The lawsuit further contends that despite SeaWorld’s allegedly hidden contract, the company was not authorized to automatically renew the passes. In Herman’s case, he purchased his pass on March 18, 2013, and the 11th subsequent payment was charged to his credit card on February 18, 2014 – fully paying off the cost of the annual pass in 11 months.

The lawsuit seeks to represent a class of SeaWorld customers from Florida, Texas, Virginia and California who continued to be charged for their EZpay passes after fully paying for them in less than 12 months.

California Temp Workers Getting Temporary Paperwork? According to a California woman, the temporary employment agency Career Strategies Temporary Inc., (CST), she worked for is in violation of  California labor law and she’s filed a class action lawsuit against CST as a result. She alleges CST intentionally failed to provide her and at least 1,000 others with accurate wage statements. That’s handy. The only thing worse than having to do paperwork is not having the paperwork to do the paperwork with, if you follow…

Heads up—the temp worker lawsuit seeks to represent a class of CST workers who were employed in California at any time from November 1, 2013, through the present and who were similarly deprived of accurate wage statements.

So, the allegations, specifically, are that CST violated California state labor law by issuing weekly wage statements that did not include the dates of the associated pay period. “Plaintiff and each class member suffered and suffer injuries as a result of the missing pay period because a reasonable person could not promptly and easily determine the pay period from the wage statement alone without reference to other documents or information,” the complaint states.

According to the employment class action, if an employer knowingly and intentionally fails to accurately itemize a wage statement, an employee can recover the greater of actual damages or statutory fines of $50 for the first violation and $100 for each subsequent violation up to $4,000.

Offering temporary and direct-hire staffing services, California-based CST has offices in seven states. It employed Bengel as a temporary employee “during the applicable statutory period,” during which time Bengal was paid on a weekly basis, according to the complaint. Wonder if anything else will come out of the woodwork on this one… 

Top Settlements

Nissan Settlement puts the Brakes on…a defective automotive class action lawsuit it’s facing. Under the terms of the deal, Nissan North America Inc.will  pay vehicle owners up to $800 each. If you’re confused as to exactly which defective automotive class action this settlement is for—cast your mind back—to a lawsuit that alleged the braking system in certain Nissan trucks and SUVs is prone to sudden failure, increasing the risk for injury and death.

The lawsuit was originally filed in April 2011 by Brandon and Erin Banks. It alleged the defective sensor posed a serious safety threat to consumers because it controls critical safety aspects of braking and was prone to failure. The defect caused drivers to be suddenly unable to stop their vehicles within a reasonably safe time and distance, or at all.

The complaint states the automaker knew about the defect but hid it from consumers “to [Nissan’s] significant financial gain.”

So to get to the deal, the proposed Nissan settlement terms would see current and former owners of approximately 350,000 2004-2008 Nissan Titans, Armadas and Infiniti QX56 vehicles in the US be able to file claims seeking reimbursement for out-of-pocket expenses they incurred in replacing or repairing a defective delta stroke sensor, which is a component of the faulty braking system.

According to court documents, the plaintiffs asked the court to certify a proposed nationwide class of consumers who own or formerly owned the affected vehicles and were forced to replace the faulty sensor. Plaintiffs with personal injury claims relating to the affected vehicles are excluded from the class.

Nissan will begin reimbursement at $20 for vehicle owners who had in excess of 120,000 miles at the time of the repair. Reimbursement will go up to $800 for vehicles that had less than 48,000 miles at the time of repair.

According to the settlement motions, Nissan will distribute notices to the class members via direct mail and to addresses obtained through Nissan or public records utilizing vehicle identification numbers, the motion says. Class members will be directed to a website and a toll-free number maintained by the settlement administrator that will provide information concerning the settlement, including, if requested, a copy of the long form notice.

The case is Banks et al v. Nissan North America, Inc. et al, case number 4:11-cv-02022, in the U.S. District Court for the Northern District of California.

Hokee Dokee—That’s a wrap folks…Time to adjourn for the week.  Have a good one!