Tennessee Legal Blog

Mass torts involving asbestos and baby powder gain a foothold

It turns out that Tennessee and the rest of the country face a new kind of asbestos-related threat to the public's physical health. In a recent case, a man sued Johnson & Johnson for allegedly causing his cancer due to his long-term use of baby powder. A jury recently awarded him $117 million in damages in an outcome that could give birth to another chapter of mass torts claims in the United States and perhaps worldwide.  

The claim is directly related to a form of cancer that is caused by asbestos. In the trial, the man proved that the baby powder had been contaminated with asbestos. That proof also may be used in thousands of cases where the baby powder and Shower to Shower products are alleged to have caused ovarian cancer. The proof came from the company's own documents showing that J & J knew ahead of time that the asbestos in their talcum powder had been tainted widely with asbestos during the mining process and that it has been occurring at least since the 1970s.

With mesothelioma, lifestyle changes may be in order

Since there is no cure for mesothelioma, it's easy for victims to lose hope and sink into a deep depression. However, it's important to remember that as long as there is life, there is hope that a cure will emerge.

It's important to keep in mind that mesothelioma patients can also be proactive in making lifestyle changes that can enhance their quality of life for the time they have left.

ERISA does not cover stock plans

The Employee Retirement Income Security Act requires employers to follow minimum guidelines when they establish pension or health plans for their workers. Employees are not obligated to offer such plans, but a plan that provides retirement funds for its workers is likely protected under ERISA. Tennessee employees may be interested in the recent appeals court ruling that further defined the types of plans that may or may not fall under the protection of the federal law.

The consulting company Booz Allen offered its officers a stock ownership plan that allowed them to purchase common stocks at book value and Class B stocks for a small sum each year. With careful manipulation and timely trading, employees can use their B stocks to gain more common stock, which they can resell to Booz Allen for a handy profit after retirement. When Booz Allen recently sold one of its divisions, some of the officers felt the company had violated their rights under ERISA.

Apple users join mass torts claims to express dissatisfaction

One Tennessee consumer may feel powerless in the face of a giant corporation with whom he or she may have a grievance. If a product or device causes harm or simply doesn't live up to expectations, a single customer may shrug it off as the way things are. However, the law provides for mass torts claims for customers with similar complaints to join together against a large company that may otherwise have enough money and power to quiet the voices of the ordinary consumer.

For years, users of Apple Inc.'s iPhones have suspected the manufacturer has been using unfair tactics to force them to purchase newer, more expensive models of their cell phones. When the new models are released, users of the older models claim to notice a definite slowdown in the efficiency of their phones. After years of denying the correlation, Apple recently admitted that its software does reduce speed on older phones, but only to prevent poor performance.

Can employers charge workers for their uniforms?

Wearing a uniform to work makes an employee easily identifiable to customers and others who may need to recognize them. For example, nurses, police officers and maintenance workers wear uniforms so that people can locate them quickly. Many Tennessee businesses require their workers to wear some kind of uniform that identifies them as part of the staff, whether it is a polo shirt with a company logo or an apron in the color of the business trademark. However, some employees may wonder if their bosses can charge them the cost of their uniforms.

New employees may be surprised when their first paycheck arrives and they see a deduction for the cost of their uniforms. In some cases, this deduction is allowed by law, but the Fair Labor Standards Act offers clear guidelines. Uniforms that the Occupational Safety and Health Administration requires for certain industries must be purchased at the employer's expense. This may include any personal protection equipment, such as helmets, vests, boots, gloves or protective clothing. An employer may not deduct these costs from a worker's pay.

Getting justice for a defective product

After they are released to the general public, many products perform as expected. However, some consumers may quickly find a product is defective, meaning it is no longer adequate or safe to use.

It's possible that it is only your product that's defective. In this case, the defect is likely a one-off manufacturing problem. If so, you have several options. One option is to return the product under warranty and have the money that you paid reimbursed. However, if you were injured by the defective product and would like to claim damages, you may need to file an individual product liability claim with the manufacturer.

Court rules DOL changes not authorized by ERISA

Often, people preparing to make crucial decisions about their retirement investments seek the advice of their insurance agents and stockbrokers before diving into an investment plan. Traditionally, agents and brokers are in business to sell products to their clients. This is in contrast to those working as investment advisors, who, under the Employee Retirement Income Security Act of 1974, are required to seek only the best interests of their clients. Tennessee brokers and insurance advisors may be rejoicing in a recent appeals court ruling that upheld the original ERISA concept of a fiduciary.

Changes in the rules regarding the designation of fiduciaries resulted in a lawsuit against the U.S. Department of Labor, which attempted to broaden the scope of a fiduciary. The new rules said that anyone who offered advice or counsel about retirement accounts must have the client's best interests as the primary concern. Previously, anyone receiving a commission for the sale of investment products and making no claims to the contrary was exempt from the fiduciary requirements.

Mass torts claims hold medical device industry accountable

It seems as if medical procedures are becoming a matter of routine in Tennessee and across the country. It is almost a given that the time will come for one to have a hip or knee replaced or to undergo the implantation of some other medical device. Often these devices improve the quality of life for patients and allow them to return to normal activities that an illness or injury previously prevented. Unfortunately, another result of the increasing use of medical devices is the number of mass torts claims based on defects.

One researcher recently released a book detailing the frightening secrets of the medical device industry. Nearly seven million Americans annually undergo surgical procedures to implant devices in their joints, hearts, spines and other regions of the body, but few realize how poorly regulated the medical device industry is. Only a small fraction of high-risk devices like nerve stimulators and defibrillators are tested, and there is currently no system in place for tracking the devices once they are implanted. This means there is no accurate way of knowing how many patients have suffered injuries or died because of defective devices.

CDL drivers claim misclassification cost them benefits

Some of the most egregious examples of wage theft occur when employers misclassify their workers. By calling workers contractors instead of employees, business owners in Tennessee and elsewhere profit in various ways, such as avoiding having to provide benefits for the workers. However, one group of cartage drivers in another state has gathered to file a class action lawsuit against their employer for misclassification that resulted in a violation of their rights.

XPO Logistics is one of the largest logistics companies in the world. However, about 160 employees of the massive corporation have filed a lawsuit alleging that the company classified them as independent contractors, denying them important benefits. Additionally, XPO apparently failed to pay the drivers for meal breaks and rest periods during which they were made to work. A spokesperson for XPO denies the company has done anything wrong and contends that the employees must prefer their status as contractors or they would seek work elsewhere.

Fiduciaries under ERISA do not know their duties

For many who have benefit plans through employers, the results of a recent study may bring shock and fear, especially for those who are nearing retirement. It seems that, in more than half of the cases, no one is minding the store. In other words, those whose duties are to oversee and protect retirement plans and investments covered by the Employee Retirement Income Security Act of 1974 (ERISA) do not know they are fiduciaries. Tennessee participants may want to examine their benefits to see who is monitoring their plans.

The survey asked 1,000 executives about their duties concerning company plans. Based on those descriptions, all who were surveyed were legally fiduciaries of the plans. However, 55 percent believed they were not fiduciaries or were not sure if they were. Some of these executives were supposedly overseeing plans worth hundreds of millions of dollars but had no idea of their responsibilities.

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