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NTL member Geoffrey Fieger gets $23.5M med-mal verdict

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National Trial Lawyers member Geoffrey Fieger announced that a Cook County (Illinois) jury, sitting in the courtroom of Judge Lorna E. Propes, has awarded a verdict against Presence St. Joseph Hospital in the amount of $23.5 million dollars on behalf of a brain-damaged child. Mr. Fieger was assisted by Chicago attorneys Matthew Patterson and Jack Beam.

Amirah Whiten was born on December 19, 2014 at the St. Joseph Hospital. Fetal Monitor Strips showed the baby was in fetal distress and needed to be born by immediate C-section. The doctors waited over three hours to perform the C-section, and by the time it was done, the baby had suffered severe brain damage from lack of oxygen. Fieger stated:

“The verdict is one of the largest malpractice verdicts in Chicago this year. Presence St. Joseph, through its attorneys, for years have refused to take responsibility for Amirah’s brain damage. The facts showed that after birth, the baby needed brain cooling, and the Doctor assigned to care for Amirah did not even know that the hospital had the ability to perform such cooling. I asked for justice for Amirah, and the Jury gave it.”

The Jury deliberated for over two days before returning a verdict late Friday, March 22, 2019.

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Subpoenas Fly! Senate Demands Docs in Tainted Talcum Powder Probe

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Can federal investigations unstick talcum powder lawsuits?

Washington, DCThe long-running Johnson & Johnson (J&J) talcum powder lawsuits have now taken a strangely contemporary turn as long-silent witnesses, both in this world and the next, tell tales. The Department of Justice (DOJ) and Securities and Exchange Commission (SEC) have subpoenaed corporate documents, and Sen. Patty Murray (D-WA) Ranking Member of the Senate Committee on Health, Education, Labor and Pensions (HELP) has requested information back to 1966. Could this end the corporate stonewalling that has stymied so many J&J talcum powder lawsuits for so long?

Or was it the perfect crime?

Very old evidence, deeply buried

The lawsuit brought by Terry Leavitt in Alameda Superior Court in Oakland, CA illustrates the problem. Ms. Leavitt alleges that her mesothelioma was caused by asbestos contamination of the Johnson’s Baby Powder she used for years. Mesothelioma, however, has latency period of twenty or more years, so the relevant evidence – either contaminated samples or company research demonstrating that J&J knew or had reason to know of the contamination – would be decades old. The samples are really rare, so the conversation moves to internal reporting evidence.

A December 2018 investigative report details J&J’s efforts to bury its own damning assessment from 46 years ago that “no final product will ever be made which will be totally free from respirable particles.”

One tack was to persuade the Food & Drug Administration to approve a testing method that would automatically permit asbestos contamination ten times greater than the FDA’s recommended limit. Failing that, J&J lobbied the agency to accept industry self-policing. This included industry-sponsored safety studies – safety washing – or a strategy some have described as “regulatory capture.”

The company also adopted a policy of conducting research only to respond defensively to allegations of contamination, rather than to ensure proactively that the product was safe. The goal was to minimize “the risk of possible self-generation of scientific data which may be politically or scientifically embarrassing.” No information creates no hazard.

But some industry studies that were produced misidentified the principal authors, essentially buying the credentials of distinguished manuscript reviewers to obscure the corporate origins of data and analysis. No one escapes ethical fire in this situation. The outrage in the research community has been palpable. J&J has been accused of polluting the scientific literature through lack of transparency. And where the funding source of the research is deliberately obscured, allegations of money laundering quickly follow.

Finally, some evidence was destroyed, as seems to have been the case in connection with the sale of a mine in 1989. An epidemiological study of talc mine workers to see if they contracted cancer was simply trashed, according to Dr. David S. Egilman, an expert witness testifying for Ms. Leavitt.

Witnesses – here, long gone and a zealot hot on the scent

Some of the witnesses are likely dead, but they made records. Some of the witnesses are still alive, but they only caught the later part of the early story. Dr. Egilman is the child of a Holocaust survivor, determined to do justice. Ragtag hardly captures the picture.

Newly zealous government investigators

Since the end of 2018, however, the DOJ, SEC and Senate HELP Committee have begun to pursue the lost and hidden evidence that might link contaminated Baby Powder to mesothelioma and other cancers.

In a letter to J&J CEO, Alex Gorsky dated January 28, 2019, Sen. Patty Murray requested documents to support assertions that J&J consumer talc products are asbestos-free, including:

• Data to prove that there are not trace amounts of contaminants in J&J products;
• All documentation from internal testing, testing done by outside consultants or other testing entities that identified asbestos in J&J products; and
• The percent of all products sold that are tested for asbestos or other contaminants.

In addition, the Committee requested:

• All communications with the FDA regarding the safety of J&J Baby Powder, dating from 1966 to present; and

• All promotional materials and other documents intended for the public that contain assurances of the safety of J&J Baby Powder, dating from 1966 to present.

On February 20, 2019, J&J also acknowledged that it had received subpoenas from the DOJ and the SEC related to litigation involving alleged asbestos contamination in its signature Baby Powder product line. The company has said that it intends to cooperate fully with these inquiries.

The future for talcum powder lawsuits

The information uncovered in these investigations will not necessarily be immediately useful in long-running litigation. However, as the long lost evidence makes its way into the public domain, it may finally allow plaintiffs who are suffering from long developing cancers some greater measure of justice. It’s good to see some public watchdogs involved.

$29 Million Verdict in Talcum Powder Lawsuit

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Are talc-based cosmetics next up?

Oakland, CAOn March 13, a jury in California Superior Court awarded Terry Leavitt and her husband $29.4 million in the first Johnson & Johnson (J&J) talcum powder lawsuit to go to trial in 2019. Ms. Leavitt linked her mesothelioma diagnosis to her use of asbestos-contaminated J&J baby powder and Shower-to-Shower talcum powder. The verdict includes $22 million for pain and suffering, $5 million in compensatory damages, nearly $1.3 million for her medical costs and $1.2 million for lost wages.

J&J has had a rough year. In 2018, a Los Angeles jury awarded $21.7 million to a woman who blamed her cancer on asbestos contaminated powder. J&J also lost a motion to overturn a jury verdict that awarded more than $4 billion to 22 women who blamed their ovarian cancer on the company’s products. The company faces more than 13,000 upcoming talcum powder lawsuits.

But the new frontier for talcum powder lawsuits may go far beyond J&J. Congressional investigations are now reaching into the heart of the health and beauty industry to discover how talc products are being marketed to a whole new generation of young girls. Cradle to grave, are young women the vulnerable demographic group where dangerous talc consumption habits begin?

What price freshness?

Ms. Leavitt first came into contact with J&J Baby Powder as an infant and used J&J talc products for a long time during the 1960s and 1970s. Talcum powder products were widely promoted as a way to combat diaper rash in infants and body order in adults. Talc is still used in health and beauty products, including the lipstick and eyeshadow brands that Claire’s and Justice specifically market to teenage and tween girls.

In 2016 Ms. Leavitt experienced escalating back pain, and a chest X-ray revealed a malignant mass above her diaphragm. She was diagnosed with mesothelioma in 2017. Now quite ill, she is not expected to survive longer than twenty-eight months.

Cancer link was no secret

Mesothelioma has been tied to asbestos exposure. Naturally occurring asbestos is often found in underground talc deposits, leading to the possibility of cross-contamination, according to geologists. But since mesothelioma has a very long latency period, talcum powder lawsuit plaintiffs have been challenged to demonstrate that the products they used were contaminated or that J&J knew of a reasonable risk that they were.

Recent investigative reporting has, however, managed to unearth internal J&J documents from more than 40 years ago that appear to demonstrate that J&J knew of the risk and failed to either warn consumers or re-formulate the products.

The jury ordered J&J to pay $29 million in damages for Ms. Leavitt’s injuries after finding that the company’s handling of the asbestos-laced baby powder was a substantial contributing factor in her cancer’s development. The panel also cited J&J for failing to adequately warn about the powder’s potential risks. J&J vows to fight on, claiming that there were judicial errors on procedure and evidence that should have resulted in a mistrial.

Turning tide of talcum powder lawsuits

J&J has consistently denied that its products are contaminated with asbestos, citing the possibility of asbestos exposure at work or though building materials in homes or offices. The company, however, still faces more than 13,000 lawsuits claiming its baby powder line caused mesothelioma and ovarian cancer. That is an increase from more than 11,000 last year.

The verdict is J&J’s seventh trial loss over claims that it hid the health risks of talc products for decades. It is the first defeat since a Missouri jury ordered the company to pay $4.69 billion to 22 women who blamed their ovarian cancer on the product. There are more than two dozen talcum powder trials scheduled throughout the country in 2019.

Meanwhile, back on Capitol Hill

The Department of Justice and Securities and Exchange Commission have subpoenaed corporate documents. Sen. Patty Murray (D-WA), Ranking Member of the Senate Committee on Health, Education, Labor and Pensions has also requested information from J&J that goes back to 1966.

On Tuesday, March 12, the House Oversight Committee’s Subcommittee on Economic and Consumer Policy decided to focus its first meeting of 2019 on baby powder. Specifically, the goal was to examine the potential health hazards of talc. After the hearing, Rep. Rashida Tlaib (D-MI), who sits on the subcommittee, said:

“This is a new Congress. We not only look different, but we serve differently and we act differently. Most of us have this sense of urgency that I think has been lacking… And yes, I think it matters that a lot of us are women, and are women of color, and are at the front lines.”

So, what happens next? Only time will tell. Except for the fact that they are very sick, the litigation situation for talcum powder lawsuit plaintiffs has only gotten better. Once the public has turned its attention to cosmetics, however, the baby powder lawsuits may prove to have been only the tip of the iceberg.

‘A big deal’: Former foes AARP, nursing home lobbying groups unite to improve eldercare

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AARP, an occasional foe for nursing home advocates, is now joining forces with providers in Florida in a bid to together improve care for seniors.

The retired persons interest group announced last week that it is teaming up with both LeadingAge Florida and the state affiliate of the American Health Care Coalition. Together, they are forming the Coalition for Silver Solutions, which they say is aimed at putting “seniors at the top of the legislative priority list.”

AARP and nursing home trade groups have often been at odds, including over one Florida staffing bill currently being contemplated by legislators. Those involved, however, say past disagreements will not impact their collaboration — which is focused in the near-term on retaining $138 million in Medicaid funding for long-term care.

“People complain about Congress not getting anything done because everyone is so polarized. We take the exact opposite path,” J. Emmett Reed, executive director of the Florida Health Care Association, told McKnight’s Friday. “We’re not going to agree on everything. But I think, when you look at all three of us, you’ve got a group of really good people who want to come up with big solutions.”

Beyond the immediate urgent need to restore Medicaid funding for nursing centers in 2020, the coalition will also have its eye on addressing the industry’s workforce needs, evaluating and improving the regulatory environment in Florida, and making sure that reimbursement levels are adequate in the long-term. They also plan to convene a Silver Summit later this year, ahead of the 2020 legislative session.

At a press conference last week, state Sen. Ben Albritton called this collaboration a “big deal,” and LeadingAge Florida President and CEO Steve Bahmer agrees. He and Reed both hope this could serve as a model for other states to emulate.

“The challenges are big and complicated, and we really do believe that responding to those challenges in a thoughtful way and doing something meaningful is really going to require collaboration, not just between providers and senior organizations like AARP, but also regulators and lawmakers across the spectrum,” Bahmer told McKnight’s.

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Johnson & Johnson Talc Tribulations Spark ERISA Lawsuit

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. By Anne Wallace

As J&J stock tanked, so did employee 401(k) accounts

Newark, NJOn January 25, participants in the Johnson and Johnson Savings Plan (the “401k Plan”), filed a class action ERISA lawsuit claiming that the 401k Plan fiduciaries encouraged them to invest imprudently in company stock. The lawsuit, Tarantino v. Johnson and Johnson Pension and Benefits Committee , claims that the value of the stock was inflated because J&J hid the possibility that Baby Powder, its signature product, was contaminated with asbestos. The company allegedly held on to the secret for decades.

The fiduciaries either knew or had reason to know about the deception and failed to act in the interest of participants and beneficiaries. When the truth began to emerge in the course of lawsuits linking Baby Powder to various forms of cancer, the stock price dropped precipitously. Along with all the other harms that followed, the 401k Plan participants lost their retirement savings.

The lie at the root of it all

The Complaint alleges that J&J first became aware of asbestos in the talc used to make Baby Powder as long ago as 1957, more than 60 years ago. Internal documents from the 1960s and 1970s appear to demonstrate both the company’s knowledge of asbestos contamination and the growing fear about the damage this news might do to the reputation of the company and the value of its stock.

J&J reportedly spent years trying to hide what it knew, influence government agencies responsible for setting acceptable limits of asbestos in consumer products and reassure consumers of the safety of its talc products.

The end came suddenly on December 14, 2018 when both Reuters and The New York Times published the results of their investigations.

The consequences are still playing out in lawsuits brought by plaintiffs who link their cancers to Baby Powder and other J&J talc-based products. The ERISA connection is a newer twist and it comes as fresh potential seems to be emerging for so-called “stock drop” lawsuits.

Was it an employee benefit? Or was it for the company?

The primary responsibility of ERISA plan fiduciaries is to run the plan solely in the interest of participants and beneficiaries and for the exclusive purpose of providing benefits and paying plan expenses. Fiduciaries must act prudently and diversify the plan’s investments in order to minimize the risk of large losses.

With 401k plans, like the J&J 401k Plan, that generally means that plan administrators must provide a menu of reasonably good investment options among which participants may choose. ERISA does not protect plan participants from investments that simply don’t work out for reasons that no one could have foreseen. It is designed to protect them from being from being offered a poisonous choice.

That distinction can be particularly fraught when a plan offers employer stock or proprietary investment products as investment options. In those situations, an employee’s choice to invest his or her retirement savings in stock or other alternatives linked to the employer’s bottom line may obviously benefit the employer, too.

The question quickly devolves into whether the participant made the choice knowingly, with adequate information and the opportunity to make other reasonable choices. When the value of the stock then plunges, it becomes even more complicated.

New life for stock-drop lawsuits

Stock-drop lawsuits have been difficult to bring precisely because a decline in stock value, by itself, is not sufficient to show a breach of fiduciary duty. In addition, because correcting false representations about the strength of a company may harm plan participants as much if not more than the misrepresentation, itself, the plan sponsor may have no good option for correcting the problem.

Under the Supreme Court’s recent decision in Fifth Third v. Dudenhoeffer, however, plan participants may succeed when they can also demonstrate that there are plausible alternative actions that plan fiduciaries could have taken which would not have violated securities laws and which would not have potentially resulted in more harm than good to the plan and participants. This was the argument made recently in Varga v. General Electric Company, a similar lawsuit concerning serious company misstatements and a company stock option within a retirement plan.

In Tarantino, plan participants claim that the company could have mitigated the harm to them by taking steps to cure the fraud consistent with the requirements of the federal securities laws, thereby making J&J stock an accurately priced, prudent investment again.

It is a difficult argument to make, but may be helped by the company’s long history and the modest rebound in stock value that has occurred since the initial disclosures. Undoing the damage caused by a long-buried lie will be difficult and complicated on many fronts.

Video: The FDA’s hidden database of medical device injuries

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The Food and Drug Administration has a special “exemption” for medical device manufacturers that lets them file reports of malfunctions in a database that can’t be accessed by doctors or the public, reports HuffPost. Since 2016, there have been 1.1 million incidents that have been filed in an “alternative summary reporting” database, according to Kaiser Health News. While deaths caused by medical devices have to be reported to a public database known as MAUDE, the hidden database has serious injury and malfunction reports for about 100 medical devices. In this video interview  from Kaiser Health News, Phil Levering talks about his father, Mark, undergoing surgery for a liver abscess that was initially thought to be cancer.

That relief turned to dread the day of surgery. The procedure was supposed to last two hours, she said. But the surgery hit a snag when the stapler “misfired,” according to the surgeon, causing so much bleeding that the minimally invasive procedure was converted to an open procedure so the doctor could suture the vein.

 

Levering underwent CPR for 22 minutes. A code blue was called, a nurse testified. Levering lost 3 quarts of blood — about half the blood in his body. He was put on life support and would remain in a coma for weeks.

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Nursing homes will be in crosshairs of Senate hearing on abuse next week

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The Senate Finance Committee is planning to hold a hearing on nursing home abuse next week, aiming to increase pressure on the industry to address safety issues.

Sen. Charles Grassley (R-IA) — chairman of the committee and a longtime nursing home watchdog — announced the planned hearing Wednesday. Witnesses at the March 6 meeting will include Antoinette Bacon, national elder justice coordinator with the Department of Justice, and Kate Goodrich, M.D., chief medical officer of the Centers for Medicare & Medicaid Services.

Patricia Blank — the daughter of an Iowa nursing home resident who allegedly died from dehydration and neglect in 2017 — also will testify. Nursing home advocates will be closely watching testimony Wednesday, March 6, which is scheduled to start at 10:15 a.m. Eastern Time. A broadcast of the event can be live-streamed here.

Politico reported Thursday that the Grassley was “horrified” by recent reports that a mentally incapacitated woman was raped and impregnated by a worker at a Phoenix nursing facility. The senior senator has expressed concerns previously that nursing homes are being allowed to remain in CMS programs, even after allegedly putting patients at risk, and wants the agency to more aggressively monitor the field, Politico noted. In outlining his Finance Committee agenda to Congress in January, Grassley said nursing home oversight will be a key focus.

“These outcomes are unacceptable,” Grassley wrote in a letter to CMS last fall, referencing the death of 87-year-old Timely Mission resident Virginia Olthoff, which earned the facility a $77,000 fine from the feds. “I remain concerned about CMS’ efforts to ensure quality nursing home care to our most vulnerable citizens.”

 

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Imerys Talc Claims Bankruptcy, J&J Ovarian Cancer Claims Continue

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Imerys Talc America, supplier to J&J, filed Chapter 11 bankruptcy after spending tens of millions of dollars to defend itself and to settle J&J talc Ovarian Cancer Claims

Three Forks, INFacing about 14,000 asbestos-talc cases claiming that talc causes ovarian cancer and mesothelioma, Imerys Talc America has filed for Chapter 11 bankruptcy protection. Court records indicate that defending a single case can cost Imerys $4 million and some juries have awarded damages up to $2.75 million against the company. Imerys is the sole supplier of cosmetic talc to Johnson & Johnson.

Reuters reported that a rising settlement threat and defense costs have instigated Imerys to file the bankruptcy protection claim. As well, insurers are growing reluctant to provide coverage for the talc cases, said a company representative. Imerys Talc has already settled a number of cases for undisclosed amounts. One lawsuit (and the first case that associated asbestos in talc to ovarian cancer) resulted in a jury ordering J&J to pay a record $4.69 billion to 22 women who said J&J’s baby powder caused ovarian cancer –of which Imerys settled prior to that verdict. And $117 million was awarded to a man who blamed Imerys and Johnson & Johnson for his mesothelioma.

ImerysTalc America produces in its mines about half of the country’s talc supply. Imerys talc is also used in many other products, from foods to adhesives to automotive parts. Lawsuits claim that Imerys and J&J knew for decades that talc contained asbestos but failed to warn consumers of its risks or replace it with less-toxic cornstarch.

Court documents reveal that Imerys made efforts through litigation to keep its talc from being listed as potentially carcinogenic. By 2006 the company lost interest in proving the safety of its product: an email by an Imerys executive shown to jurors by plaintiffs’ lawyers said that “the horse has already left the barn.” But the company has not acknowledged in court that its talc was tainted or dangerous.

Chapter 11 Bankruptcy

Chapter 11 bankruptcy allows companies to ward off creditors, while they can reorganize, continue operating and potentially resolve liabilities. While a California judge on February 14 asked jurors not to speculate on why the talc supplier is no longer in the case, Giorgio La Motta, President, Imerys Talc America, Imerys Talc Vermont, and Imerys Talc Canada said that “it is simply not in the best interests of our stakeholders to litigate these claims in perpetuity and incur millions of dollars in projected legal costs to defend these cases.” Imerys intends to operate its three locations as usual.

How Imerys Bankruptcy Affects J&J Talc Lawsuits

Under Chapter 11 of the U.S. Bankruptcy Code, Imerys officials will be able to negotiate payouts with those who have sued them.

When a company files bankruptcy under Chapter 11, it can set up a trust that would handle and defend it against any future claims. According to CNBC, Imerys said it plans to use bankruptcy to establish a trust to pay personal injury claims, a strategy typically used by companies facing asbestos claims. The trust can deal with current talc cases and any future claims.

However, this filing is typically used as a way to protect against billion-dollar lawsuits: it allows cases to be tried under a single judge and plaintiffs are pressured to reach a lower settlement. For instance, Johns Mansville Corp. in 1982 faced unprecedented liability for asbestos injury claims and was the first company facing asbestos litigation to file for bankruptcy under Chapter 11. By 1988 the company emerged from bankruptcy and founded the Manville Personal Injury Settlement Trust, according to asbestos.com.

Independent trustees may decide how the money is split among talc plaintiffs and a trust could continue to operate for several years to oversee negotiation and payments of settlements. When the company leaves bankruptcy, current and future litigation claims will be channeled to the trust rather than Imerys, which will then be free from future talc lawsuits.

Imerys Talc America and Imerys Talc Vermont has listed its combined assets as $500 million and liabilities of as much as $100 million, according to the bankruptcy filing, and the Chapter 11 process is expected to end by 2020. Bloomberg Intelligence litigation analyst Holly Froum said the bankruptcy will probably have a negative impact on Johnson & Johnson in thousands of talc lawsuits as Imerys won’t be able to contribute much capital to potential settlements.

NTL member LaBarron Boone helps secure $151M in Ford Explorer rollover trial

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A Dallas County, Alabama, jury found defendant Ford Motor Company at fault for a rollover crash of a 1998 Ford Explorer that left Travaris “Tre” Smith paralyzed and awarded Smith $151,791,000. The verdict includes $51,791,000 in compensatory damages and $100 million in punitive damages. The jury agreed with Smith in finding that Ford failed to meet its own safety guidelines for the Explorer’s rollover resistance requirement and attempted to cover up the vehicle’s defective design. Beasley Allen lawyers and National Trial Lawyers member LaBarron Boone, Greg Allen and Kendall Dunson along with Bill Gamble of Gamble, Gamble, Calame and Jones, LLC represented Smith.

“We represent a 24-year-old young man who cannot be left alone to care for himself in any way,” said Dunson. “This verdict represents justice for Tre and his family. Thanks to a courageous jury he will now be able to access basic necessities within his home and have access to the care he needs.”

“Tre had the misfortune of riding in a vehicle Ford knew could and did hurt him, but the jury’s verdict will allow him to reclaim some level of hope for a better future, with less dependence on others,” said Boone. “Ford failed Tre and so many other consumers. The jurors in Dallas County held Ford accountable for yet another tragedy in a decades-long saga of the company’s efforts to cover up the shoddy design and its refusal to adequately address the problems.”

In August 2015, Smith was a passenger in the 1998 Ford Explorer traveling in Dallas County. The driver swerved to miss an animal that appeared to be crossing in the vehicle’s path, causing the driver to lose control of the vehicle. The action is called an accident avoidance maneuver and because the Explorer’s design is prone to rolling over, especially during these types of emergencies rather than sliding out like other similar vehicles, the Explorer carrying Smith rolled over two times before landing on the shoulder of the road, right side up. As the vehicle was rolling over, Smith was knocked unconscious and his spine was snapped, leaving him paralyzed and forever changing his life.

Boone believes jurors also intended to send a message to Ford that destroying safety documents in an effort to hide critical and unfavorable evidence will not be tolerated.

“Ford should have spent money redesigning this dangerous SUV model rather than paying huge amounts to defend the cases,” said Allen.  “One expert has been paid over $75 million over the last 16 years to defend Ford in accidents like Mr. Smith’s.”

The 1998 Ford Explorer has been at the center of two historic safety recalls in the U.S. due to its defective design. The model consistently failed the Consumer Union testing because of its propensity to roll over, and company engineers advised Ford it needed to change the design, but Ford refused. Instead, it opted to change the way the product was tested, moving it from a real-world setting to a computer-based simulation called ADAMS. Yet, Ford destroyed the original input and output data obtained through the ADAMS testing, claiming it had no scientific value and was too expensive to maintain.

“We have seen bad conduct before but the egregiousness of Ford’s scheme to mislead the jury was stunning. Ford claimed the ADAMS data that would have proved the safety of this vehicle was destroyed because it had no scientific value and was too expensive to maintain. We provided proof that something as basic as a $100 thumb drive could have easily preserved the data,” Boone said.

At trial, Plaintiffs also explained that in its efforts to resist redesigning the Explorer, Ford altered less expensive components such as air pressure and tire sizes but to no avail. The defective design remains in the stream of commerce decades later and continues to seriously injure and kill consumers.

The case is Travaris D. Smith v. Ford Motor Company, et al, 27-CV-2016-900273.00 in the Circuit Court of Dallas County, Alabama.

 

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Victim wanted husband to get help, sisters testify

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BEVERLY — Edith Black-Scherer “had twinkling, beautiful blue eyes,” her oldest sister, Lynne Black, said.

Along with her good looks, there was intelligence. “She was the smartest of us all,” recalled her other sister, Heidi Smyth.

Smyth told jurors how the baby of the family, “Edie,” attended Marblehead schools, graduated from Northeastern University, got a master’s degree from Boston College, had a successful career in educational and health care administration, and even wrote a book.

Black-Scherer was also kind.

So even as Axel Scherer, always a bit arrogant and a bit of a “know-it-all,” according to her sisters, began growing more abrasive and unpredictable, his wife tried, unsuccessfully, to get him to accept help.

Now, more than three years after Black-Scherer, 45, was found wedged under a bed, with a pillow jammed between her face and the bedframe, inside the couple’s Beverly home, Scherer, 48, is standing trial on a first-degree murder charge in Salem Superior Court. Jurors heard opening statements Wednesday.

Smyth recalled pleading with her brother-in-law, whose anger only grew after Black-Scherer had him committed to Bayridge Hospital, a psychiatric facility in Lynn, for three days in 2014.

“Edie wants to help you,” Smyth told Scherer. “No, she doesn’t,” Scherer responded.

He had already moved out of the couple’s Beverly home, blaming his wife for “micromanaging” him and for setbacks in his career as an electrical engineer, after she had encouraged him to seek a promotion that did not work out well. He would then file for divorce.

A year later, after another effort to get him some help for what had been diagnosed as bipolar disorder, Black-Scherer was so concerned for her husband that she insisted he stay at the home they had once shared, in a guest bedroom, while he attended a day program at Lahey Hospital.

Within days, she would be on life support, pronounced dead five days after Scherer strangled her with a drawstring from her sweatshirt and put a pillow over her face, Gubitose said.

He admitted to police that he killed her, but blames bipolar disorder.

Prosecutor James Gubitose told jurors, however, that Scherer, despite being diagnosed with mental illness, fully understood what he was doing — and why.

“The defendant killed his wife, Edie Black-Scherer, because of rage and resentment,” Gubitose said in his opening statement. “That’s the reason he did it, not because he was mentally ill.”

There was no indication, contrary to what defense experts are expected to say on the stand, that Scherer was in the throes of a psychotic episode, Gubitose said. The prosecutor noted that, in an interview with police shortly afterward, Scherer was “lucid,” able to understand their questions and provide answers.

Days before the killing, Gubitose told jurors, Black-Scherer had discovered that her estranged husband had lied to her about going to the doctor’s office that day. She drove to his Broughton Drive apartment and saw his car in the driveway, but got no response.

She called Beverly police to conduct a “well-being” check, Patrolman Hal Geary testified.

“He wasn’t happy,” Gubitose told the jury.

At Lahey, he was evaluated. Gubitose said records will show there was no evidence of psychosis or mania.

The following Monday, while their two young sons were at an afterschool program, Scherer killed his wife, Gubitose said, calling the crime premeditated.

Scherer’s lawyer, Michael Phelan, painted a different picture, of a man whose decline began a couple of years before Black-Scherer’s death.

“In 2013, life is good,” Phelan told jurors. Scherer, originally from Germany, was a highly-paid electrical engineer for Cadence, a multinational software development firm. He had a beautiful home on Penny Lane, a beautiful wife, nice cars, and two children.

But toward the end of that year, people around him could tell Scherer was having problems. He suffered from insomnia, and began speaking in a monotone voice. He went on the antidepressant Zoloft, as his primary care doctor explored possible diagnoses.

Over the next few months, Phelan said, Scherer also began acting erratically at work, walking in on meetings he wasn’t invited to join, and insisting on changing light bulbs, a task far beneath his job title.

Then, in September 2014, Scherer got into a verbal altercation with an employee at a cellphone store in the Northshore Mall, Phelan told jurors, and was banned from returning there.

Phelan said it was shortly after that incident that Scherer’s wife had him committed to Bayridge Hospital, where, the lawyer said, he was diagnosed with bipolar disorder with psychotic and manic behavior. He was prescribed Risperdal, an anti-psychotic medication.

Over the course of the next year, Scherer would be placed on different medications — always reluctantly.

And after being taken to Lahey the week prior to his wife’s death, Phelan said his client still did not want help, rejecting an in-patient stay in favor of a day program.

Phelan said his expert, Salem psychologist Mark Schaefer, will testify that Scherer suffers from bipolar disorder with psychotic traits.

Because Scherer is relying on what is colloquially known as an insanity defense, it is up to prosecutors Gubitose and Susan Dolhun to prove to jurors that Scherer was, in fact, capable of knowing right from wrong and able to control his behavior.

Smyth and Black told jurors that Scherer was highly intelligent, but also stubborn, a trait they had seen early in their sister’s relationship with him. Still, they got along with him.

Smyth said she and her brother-in-law shared a love of fine wine and gourmet food. But one day, not long after Scherer’s 2014 hospitalization, she brought up the subject of getting help. As a registered nurse for more than three decades, Smyth had contacts in the medical field, she told him.

“I don’t need any help,” she said Scherer told her. “I’m fine.”

As he spoke, he raised his hands.

“I got nervous and backed away,” Smyth said.

Besides Black-Scherer’s sisters and Geary, the jury of nine women and seven men heard from Sgt. Dan Brown, who was on his way to get his utility belt for a paid detail on the afternoon of Nov. 16, 2015, when Scherer came up behind him in a rear doorway of the Beverly police station.

“He said he wanted to report a crime,” Brown testified. Scherer seemed agitated, and was disheveled and sweating profusely, Brown testified.

Brown, who did not yet have his radio or anything with which he could protect himself, led Scherer back outside to the parking lot.

“I asked him what it was he wanted to report. He said it was something serious. He said he had just killed his wife.”

Stunned, Brown at first thought perhaps there had been an accident.

“No, no accident,” Scherer told the officer.

Then Scherer put his hands out in front of himself and “made a motion like he was strangling somebody,” said Brown, pantomiming the gesture.

Courts reporter Julie Manganis can be reached at 978-338-2521, by email at [email protected] or on Twitter at @SNJulieManganis.

 

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