On March 15, 2022, the United States Court of Appeals for the Fourth Circuit affirmed the approval of an approximate $40 million class action settlement. Wally Walker, co-lead counsel, orally argued the case before the Fourth Circuit. The Fourth Circuit found that the lower court in Maryland did not abuse its discretion in approving the agreement reached between the policyholders and Banner Life Insurance and William Penn Insurance Companies. In affirming the district court’s approval of the settlement as fair to the class, it said: “[the] settlement was reached after an extensive motions practice, extensive discovery and investigation of Banner and William Penn policies by Plaintiffs’ counsel and multiple settlement discussions and negotiations.”

The Fourth Circuit stated that this case should be considered a poster child for deferential treatment afforded the District Court as it was “chock-full of the most esoteric principles of life insurance accounting imaginable.”  The Court’s twenty-five page opinion clarified the standard in the Fourth Circuit for objections to class settlements as follows: Objectors of the settlement must state and support their objection, and proponents must demonstrate that it is fair, reasonable, and adequate despite the objection. 

The named plaintiffs, represented by Walker and co-lead counsel Dee Miles, alleged the companies unfairly increased the cost of insurance charges on certain universal life insurance policies in 2015. In May 2019, Maryland Federal District Court Judge Richard D. Bennett approved the $38.2 million class-wide settlement between plaintiffs and Defendants Banner Life Insurance Co. and William Penn Life Insurance Co, which consisted of more than 10,750 universal life policyholders.

However, before the Maryland court could give final approval, one policyholder objected to the settlement – the 1988 Trust for Allen Children (Allen Trust). The Allen Trust argued that the settlement provides no compensation for damages it called “Deficit Account Harm.” The district court permitted the Allen Trust discovery to assist in determining whether the objection was meritorious, which the Fourth Circuit acknowledged was “an extremely unusual occurrence” but was within the district court’s discretion.

Walker and Miles, as Court-appointed co-lead counsel, represented the named plaintiffs and succeeded in arguing before the district court that the settlement was fair, reasonable, and adequate to all class members notwithstanding the lone objector’s arguments. 

The case is 1988 Trust for Allen Children v. Banner Life Insurance Company, case number 20-1630, in the U.S. Court of Appeals for the Fourth Circuit.

A federal spotlight has been placed on the Wiregrass area due to farmer’s filing an unusually high number of claims for a little known federal assistance program.  The program in question is called the “Noninsured Crop Disaster Assistance Program”, or the “NAP program” for short.

This is a federal program administered by the Farm Service Agency (FSA) which provides protection from natural disasters for farmer’s growing crops for which crop insurance is unavailable.

A local Wiregrass employee of the FSA has been indicted in federal court for filing fraudulent NAP claims, and speculation is that other farmers in the area may also be under investigation.

In the Houston County area, private crop insurance is generally available for commodities such as peanuts and cotton, while farmers cannot obtain insurance on produce crops such as watermelons and squash.  As a result, many farmers cannot obtain the financing they need to purchase supplies necessary to plant the high risk crops.  This is where NAP protection becomes available for commercial farmer’s.

“Eligible Producers” can apply for this NAP insurance from the federal government, which provides protection up to approximately $125,000 in the event of total crop loss due to a natural disaster, such as flooding or drought.

The question many have been asking is exactly what is an “eligible producer”?  The program specifies that to be considered an “eligible producer” for NAP protection you must be an owner, landlord, tenant, or sharecropper who shares in the risk of producing the crop and is eligible to share in the crop available for marketing from the farm or would have shared had the crop been produced.  Exactly who this definition covers is arguably open to interpretation and will likely be the focus of some high stakes litigation in Alabama’s federal courts.

Because of the unusual weather conditions that took place during 2016 and 2017, which included extended periods of draught and extreme rain, many produce crops failed and were eligible for NAP coverage. This led to an increase in NAP claims in and around the Dothan area, leading to FSA having the prospect of huge federal payouts.  While some farmers may have committed fraud by filing NAP claims under ineligible circumstances, the fear is that innocent farmers and lenders may be swept up into the investigation due to the government’s desire to avoid paying the large number of NAP claims.

If you are involved in a NAP claim in any way, whether you are a farmer, land owner, sharecropper, or lender, and have any questions, feel free to call our offices to discuss your situation.  If you are approached by an investigator, we recommend you seek our assistance or the assistance of another qualified federal criminal attorney with a working knowledge of the NAP program.

Someone who does not feel well books an appointment with a doctor. During the exam, a doctor diagnoses the patient and prescribes him some medication. The patient takes a doctor’s prescription to the pharmacy, where the pharmacist verifies the patient’s condition and medical history and fills the correct prescription. The patient returns home and takes the medicine for the prescribed time period, and the medication helps the patient recover.

That is how it is supposed to go, but what if, instead, the pharmacy commits a serious mistake and injures the patient? When this happens, multiple parties may be liable for the injury.

Duties of the Pharmacy

Doctors are tasked with understanding medications and prescribing the proper type and dose. A pharmacy is tasked with dispensing medicine according to the prescription. Medicine in correct quantities can be healing, but that same medicine in larger quantities can be harmful. If the pharmacy provides the patient with an incorrect dosage that harms a patient, the pharmacy can be liable for negligence. Alabama tort law imposes a duty of care on the pharmacy that it must act under a reasonable standard of care. Dispensing incorrect dosages to patients is a breach of that duty of care. Similarly, the pharmacy had a duty of care to only purchase and obtain drugs that are safe. If the pharmacy’s supplier is not following regulatory standards and the pharmacy knowingly or negligently disregards this issue, then the pharmacy breached its duty of care. In such a situation, the pharmacy can be liable for negligently dispensing deficient drugs.

Doctor’s Orders

Liability may be relevant even if the pharmacy follows doctor’s orders. A pharmacist’s duty is to analyze a patient’s reactions to medication even though the doctor prescribed the medication. The pharmacy has a duty not to dispense medication if it believes the patient will have a bad reaction, regardless of the doctor’s prescription. A pharmacist is responsible for evaluating the prescription as well as all other medications the patient is prescribed and determining whether it is safe. If the medications interact negatively, the pharmacist is obligated not to dispense the prescribed medicine. Thus, if the pharmacist negligently disregards patient risk by dispensing medicine and, as a result, the patient suffers injury, the patient is a victim of pharmacy malpractice.

The Law of Agency

If you suffered a pharmacy-related injury, the law of agency may allow you to collect from different parties. The pharmacy can be liable for the pharmacist’s negligence because the pharmacist acts as an agent for the pharmacy. The same is applicable for the pharmacy technician or anyone else involved in dispensing the medicine. The law of agency imputes liability from an individual to an entity, which can be from the pharmacist to the pharmacy. By the same token, if the pharmacy’s delivery man is negligent by leaving the medicine in the hot sun, for example, and that results in tainted medicine, then the pharmacy would be responsible for negligence, as well.

If you are the victim of pharmacy malpractice, contact the law firm of Boles Holmes White, Alabama plaintiff attorneys.

The stepfather of a teenager killed in a fatal car crash last year has filed a wrongful death lawsuit against Brandon Scott Smith, the driver of the 2004 Nissan Altima that overturned and struck a parked vehicle on Jackson Trace Toad at 1:00 a.m. on September 30, 2012.

Patricia Gayle Todd, 19, was thrown from the car and later died at the scene.  An investigation by Alabama State troopers into skid marks at the scene revealed that Smith was traveling at least 70 miles per hour on the road, which has a posted speed limit of 45 miles per hour.  Smith, 25, later admitted to driving under the influence of alcohol and smoking marijuana according to the accident report. He was arrested and later released from Tuscaloosa County Jail.

Brandon Scott Smith, of Northport, is facing criminal charges that are still pending, including: manslaughter, two charges of second degree assault, one charge of third degree assault, leaving the scene of an accident with injuries, striking an unoccupied vehicle, second degree possession of marijuana and driving with a suspended license.  A court hearing on those charges has been scheduled and will take place next month.

The civil suit that was filed by stepfather Jerry Plowman, seeks unspecified damages and a jury trial.

Personal injury suits against doctors are generally referred to as medical malpractice lawsuits. Such lawsuits are governed by the Alabama Medical Liability Act (AMLA), which generally requires the filer of the lawsuit to retain a medical expert to testify that the doctor against whom they wish to bring the lawsuit has violated the appropriate standard of care. Without providing this expert testimony, a lawsuit against a doctor is generally dismissed.

The AMLA provides an exception to this requirement if the wrong done by the doctor or medical institution is so obvious that one does not have to be a doctor to recognize that it is inappropriate. In other words, the “common layman” could understand, based on common experience, that the doctor or medical institution made an error. It is important to remember that this exception is a narrow one; however, in two recent cases, the Alabama Supreme Court identified situations where errors are such that expert testimony is not required.

In Morgan v. Publix, a customer of Publix brought a lawsuit against the chain’s pharmacy department. She alleged that she received the wrong medication from a Publix pharmacist when she went to have a prescription filled. Upon consuming the incorrect medicine, she suffered several negative medical reactions similar to an allergic reaction, such as swelling and hives. The lawsuit stated that she would not have suffered these personal injuries if she had been issued the proper medication.

In McGathey v. Brookwood Health Services, a patient brought a lawsuit against the hospital where she underwent surgery. During the operation, which involved surgery on her shoulder, the rest of her arm was attached to a metal bar in order to hold the arm still. As a result of a sterilization procedure, the bar was very hot. When the patient woke up after surgery she had sustained second and third-degree burns on her arm. The lawsuit stated these burns would not have happened if the bar had been properly cooled prior to surgery.

In both of these cases, the Alabama Supreme Court said that expert testimony was not necessary for the lawsuit to proceed. The Court said that one did not have to be a medical expert to understand that it was dangerous to either consume improper medication or to have one’s arm directly touching a bar that was very hot. As a result, the lawsuits were not dismissed and the plaintiffs were able to recover monetary damages.

During its discussion of the AMLA, the Supreme Court emphasized that the common layman exception to the AMLA’s requirement of expert testimony was a narrow one. Despite this, by providing specific examples of cases where expert testimony is not required, the Court has made similar lawsuits easier to bring in the future. The attorneys at Boles Holmes White, LLC are very familiar with the AMLA specifically and personal injury lawsuits more broadly. If you are interested in bringing a lawsuit against a doctor or medical institution please contact the firm at 205-502-2000.