HGD Blog: Elder Abuse is a Reality for Many in the Country

Date:  July 9, 2018

Author:  HGD Staff

According to the Alabama Department of Human Resources, the fastest growing segment of the state’s population are the elderly. These are NaNas and Pop-Pops, mothers and fathers, WWII vets, grocers, bankers, and former boardroom wonders. Despite myriad backgrounds and life stories, one thing all elderly individuals have in common is a susceptibility to abuse.

While we often think of neglect, exploitation, and physical and sexual abuse as grievances enacted upon the very young, a recent expose from the Minnesota StarTribune shows that elder abuse is on the rise—particularly within state care facilities. And while state regulations and treatments standards are in place, state regulators lack the staff and expertise to effectively and appropriately investigate, leading to investigations that drag on for years with penalties never enforced. Many state prosecutors allege that they are not notified of these investigations until months after the abuse has occurred, creating overall difficulty in bringing about criminal charges at all.

Closer still to our state, in Georgia charges have been brought against elderly care facilities with scathing incidents like one in Atlanta where nurses laughed at a WWII veteran as he lay dying, gasping for air and crying out for help. In this instance, it took the nursing staff responsible for caring for him an hour to contact 911. Despite video evidence of the nurses’ cruelty, it took three years to bring the family of that veteran justice—with the damage, of course, already done.

Whether physical, mental, sexual, or neglectful in nature, abuse against the elderly robs them of their dignity, comfort, and basic human rights. The elderly individuals living in care facilities in our state and others exist there under the expectation that they will not only be cared for, but that they will be treated with respect and kindness. The Alabama Department of Human Resources describes elder abuse as a grievous mistreatment not limited to any one race, ethnic group, or socioeconomic status. Even within their own homes, the elderly can be vulnerable to manipulation, exploitation, and abuse by family members and friends—those claiming to love them.

We must be vigilant about the safekeeping and care of our treasured older friends and family members. Not all abuse is physical, so not all abuse is obvious. Here are red flags of which to be aware:

• Bruises, wounds, cigarette burns, signs of physical restraint like lacerations and scraping around near the wrists and ankles (from rope or handcuffs)
• Torn or blood undergarments
• Lack of physical grooming; dirty, uncombed hair; unwashed clothing; body odor
• Lack of medical aid necessities like eyeglasses, dentures, hearing aids, walkers, etc.
• Bedsores, malnutrition, dehydration
• Unexplained, uncharacteristic changes in behavior such as acting withdrawn or tense, anxious, edgy, and/or fearful
• Unexplained financial changes (such as changing over Power of Attorney or paying excessive fees for care) that the elderly individual cannot explain or comprehend

The dedicated attorneys at Heninger Garrison Davis, LLC understand the unique changes that accompany the aging process and believe that our elderly population deserves the utmost respect and regard. Heninger Garrison Davis attorneys can and will serve as skillful advocates in the event that abuse has occurred to an elderly individual in your life. Contact our compassionate injury attorneys today if you suspect something is wrong with a senior you love.

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Celebrate our nation’s freedoms while supporting our city’s youth with Red, White, and Brew!

The Fourth of July is a beloved holiday for many reasons. We celebrate our nation’s birthday and the vast freedoms we are privileged to enjoy as citizens of the United States of America. Fireworks burst in the summer night sky. We adorn ourselves in our boldest red, white, and blue outfits. And many of us even revel in a day off of work! For the second year running, you’re invited to raise a glass to America with Red, White, & Brew on Tuesday, July 3rd—Birmingham’s star-spangled food truck rally at Avondale Brewing. And beyond those proud-to-be-an-American reasons to celebrate, all of the proceeds from this special event benefit the Birmingham Education Foundation.

 

Hosted by Heninger Garrison Davis, LLC, a national trial law firm representing personal injury cases, mass torts, and intellectual property, this year’s Red, White, & Brew will not only celebrate life, liberty, and the pursuit of happiness, it will also fund improved educational opportunities for area youth. All proceeds from admission to the event will go directly to the Birmingham Education Foundation, a local nonprofit organization dedicated to putting Birmingham City Schools students on successful pathways for their journey into college and their careers beyond high school.

“One of the greatest freedoms we enjoy as Americans is the right to an education. At Heninger Garrison Davis, we firmly believe that a strong educational foundation is crucial to success. Just last year, we were able to raise $10,000 for the students in our area through this unique event, and aspire for this year’s celebration to be even bigger,” says Tim Davis, managing partner at Heninger Garrison Davis, LLC. “The Birmingham Education Foundation is dedicated to helping students develop individual skills for future accomplishments. The Foundation’s resources help ensure our local students achieve academic, professional, and personal successes that build confidence and create a better future for us all right here in Birmingham.”

One of the resources the Birmingham Education Foundation offers is their collegiate preparedness initiative—an enterprise that creates college-going pathways for Birmingham City Schools students. The Foundation not only educates area youth on financial assistance programs to assist with attending higher learning institutions, they also facilitate college tours and even provide college-prep coursework for high school students. In addition, the Birmingham Education Foundation partners with various area businesses, like Heninger Garrison Davis, to create a network of skills-development opportunities and professional connections designed to help students realize their unique talents and interests.

Red, White, & Brew will begin at 4pm and last until 9pm at Avondale Brewing. With the change in venue, the all-ages event will be able to accommodate even more people than last year’s breakout success! Live performances from Birmingham musicians Remy Garrison, Legal Limit, and Heath Green & the Makeshifters will serve as the lively soundtrack to this USA-centric event. Children’s activities like inflatables and face painting are certain to keep the little Americans enthralled, and everyone in attendance will have their pick of Birmingham’s very best mobile culinary offerings courtesy of the Birmingham Food Trucks. From fresh-baked donuts glistening with frosting to expertly spiced tacos, gooey gourmet grilled cheese sandwiches to Nashville-style hot chicken and nearly every dish in between—you’ll have a chance to savor your favorites or try something completely new! Throughout the evening, Avondale will serve up their award-winning brews in refreshing summer flavors like the Peach Saison and the Train Hopper Pale Ale to keep your thirst quenched all night long. And be sure to stick around for the custom fireworks show just for Red White and Brew guests!

Tickets for Red, White, & Brew are $5 in advance for adults, $2 for children ages 5 to 12, and FREE for all children under 5. Tickets will also be available the day of the event for $10 at the gate. For more information about the Red, White, & Brew celebration this Fourth of July or to purchase your tickets today, visit the event website here! For more information about Heninger Garrison Davis’ commitment to the future of Birmingham, check out hgdlawfirm.com.

 

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Erik Heninger elected Alabama Bar Commissioner for 10th Judicial Circuit, Place 9

HGD partner, Erik Heninger, has been elected to serve as a Bar Commissioner for the 10th Judicial Circuit, Place 9 for the Alabama State Bar. The Board of Bar Commissioners (BBC) is the governing and policy-making body of the Alabama State Bar. The board is composed of 75 members. Of those 75, there are 65 members who are elected from the 41 judicial circuits and nine at-large members who are selected by the board. Commission terms run for three years beginning at the annual meeting in July following the member’s election or selection. As part of his Commissioner responsibilities, Erik will continue to sit on the Alabama State Bar Character & Fitness Committee and the Disciplinary Rules & Enforcement Committee. He has been a member of the Birmingham Bar Executive Committee since 2016.

The Board of Bar Commissioners has the authority to promulgate and enforce rules relating to admissions, rules of ethics and discipline of its membership. Other responsibilities of the board include determining the qualifications and requirements for admission to the practice of law; investigating and acting on complaints concerning conduct of members and applicants for admission; overseeing the bar examination; assisting local bar associations and more.

Erik is a member of the State Bars of Alabama, Georgia and Mississippi and maintains a consistent presence in each state. The majority of his practice is devoted to representing individuals and businesses in civil litigation. While civil litigation is the vehicle through which he works, Erik’s passion is helping people who suffer from catastrophic injuries such as severe brain and spine damage.

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Syngenta Update: Litigation Results in National Settlement of $1.5 Billion

May 15, 2018:  By now you have probably heard that a settlement has been reached with Syngenta over the losses it caused corn farmers, and others, by commercializing the Viptera and Duracade traits prior to receiving approval from China, which caused a massive trade disruption, ultimately resulting in China’s decision to reject all US shipments of corn into that country.

We have diligently pursued the claims against Syngenta on behalf of our clients through the taking of almost 100 depositions, the review of millions of pages of documents, the hiring of experts in the field, and arguing numerous motions before the court in the Southern District of Illinois, which is where most of our cases were filed.  Other litigation was going on in the District Court of Kansas, as well as state court cases in Minnesota.  Collectively, all this litigation against Syngenta over the course of a few years resulted in a national settlement of $1.5 Billion.

This entire litigation has been settled as a national class action.  If you are a corn producer who has reported his or her corn production to the USDA using the FSA-578 form, you should receive what is called a Notice of Class Action Settlement around mid-May 2018.  It is IMPORTANT that you read this information carefully. This notice will come to you from the Court overseeing the class action settlement, the United States District Court in Kansas. This notice should go out to all eligible corn farmers.  This notice will explain everything about the settlement, how you might be able to file a claim for settlement benefits, the deadline for filing claims, how you can exclude yourself from the settlement, and other important information.  We urge you to read this carefully, even though it will be a long and complicated document.

When you receive the notice, you will also find a claim form attached.

YOU WILL NOT GET ANY MONEY FROM THIS SETTLEMENT UNLESS YOU COMPLETE A CLAIM FORM

We cannot say it any more clearly than that.  If you want to recover anything in this deal, you must fill out the claim form, and it must be filled out completely.  If you wish to file a claim in this settlement, you must do so by October 12, 2018.  Again, the notice will explain the claim form in detail, and should answer any questions you have about it, for example that the FSA 578 form(s) you have filed will govern the number of acres during the marketing years 2013-2018 that you can claim in the settlement, what you can do if you believe the FSA 578 form was incorrect at any point for the 2013-2017 marketing years, etc.

It is also important to know that, at this point, we have no idea how much any corn producers will receive in this class action settlement.  In fact, we have no role whatsoever in how much any corn producers will receive in the settlement.  All of that is governed by the master class action settlement agreement that will be overseen by the attorneys involved in the class action settlement and claims administrators appointed by the District Court of Kansas. The final number will not be known until every claim has been submitted.  We do know that none of the money in the settlement (the $1.5 Billion) will be returned to Syngenta, so all money that will be available to corn farmers, and others covered under the settlement, will divided up among all the eligible farmers, and others covered by the settlement, who have filed claims.

This settlement is voluntary.  You do not have to take it.  If you choose to do so, you can exclude, or “opt out” of the settlement.  If you wish to opt out of the settlement, you must do so by August 10, 2018.  You can then pursue your own lawsuit against Syngenta or any other responsible party.  We currently have no plans to represent producers who wish to opt out of the settlement in any future litigation against Syngenta arising out of this matter.  If you do not exclude yourself from the settlement, it will be binding on you, and whether you file a claim for settlement benefits or not, you will be releasing any claims against Syngenta you may have that arose out of its decision to commercialize Viptera and Duracade.

One last thing:  Please pay attention to the deadlines in the notice you will be receiving.  There will be a deadline to file your claim for settlement benefits.  If you miss the deadline, you will most likely be unable to receive any money at all.

If you have any additional questions concerning the settlement, you may contact the settlement administrator via telephone at 1-833-567-CORN (1-833-567-2676), or write to them at:

Corn Seed Settlement Claims Administrator

P.O. Box 26226

Richmond, VA 23260.

 

You may also go to www.CornSeedSettlment.com for additional information.

 

 

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Three factors to consider when selecting a nursing home facility

Did you know that about 70% of Americans will need some type of long-term care at some point after the age of 65? In fact, by the year 2030, 2.3 million Americans ages 65 and older are projected to require some type of nursing home care. Even if medical care is not required for a loved one, long-term care also refers to a range of services and support with everyday tasks such as bathing, dressing, eating, moving around and other self care. With a high chance that you or a loved one will need to spend time in a nursing home, it is important to know what critical factors to consider when selecting a caring and qualified facility. A good place to start is to review the 3 categories Medicare uses to create their nursing home ratings:

1. Number of staff: Although nursing homes are required to provide enough staff to adequately care for residents, no federal standard exists to determine the staff to patient ratio. Although Medicare’s rating takes into account that some residents require more time and care, a good practice is to find out the numbers for yourself. Ask the facility for the number of full and part-time staff and how many hours they work per week, as well as the number of residents they have when they are at full capacity. Once you have these numbers, you can determine about how many hours per week or per day are available to be dedicated to caring for you or your loved one.
2. Health inspection details: Standard onsite health inspections of all nursing facilities are conducted by state health agencies for compliance on an annual basis unless an additional inspection and investigation is triggered by a complaint. The inspection reviews all compliance and quality requirements for a range of criteria including how medications are managed, how staff interact with residents, and how residents interact with each other. Medicare’s score in this category is based on the last three years of onsite inspections. Although this score is a valuable resource, it should be considered supplementary to a personal onsite visit, tour and discussion with the facility when making a decision.
3. Quality measures: Nine different clinical and physical measures for nursing home residents create the quality measure score. The data for this measure is collected from residents at specified intervals during their stay and includes items such as mobility changes, flu shots administered, and incidence of pressure sores. The Medicare rating for the quality measures represents how well the facility is taking care of its residents.

Be sure to always schedule an onsite visit and be prepared with questions as well a list of services you or your loved one requires. Visit more than one facility and compare the benefits and services offered to each other. To compare how each facility is rated for quality by Medicare, visit www.medicare.gov/nursinghomecompare. When looking for a facility that will be responsible for providing round the clock care for you or a loved one, doing research is vital to find out how prepared they are to be the best fit for what you need.

If you or your loved one need help regarding nursing facility abuse, please contact one of our attorneys. In any situation where a patient or resident of a nursing home is seriously injured as a result of the nursing home’s inadequate care, the patient should seek the advice of an attorney. It is difficult to have a nursing home compensate you fairly for your injuries without the help of an attorney.

Even if you feel you are not ready to file a suit, consult one of our qualified lawyers as soon as possible so that you will know your options. We do not charge any fees upfront. In fact, we will only charge attorney’s fees if we obtain a financial settlement for you. If you don’t win, we won’t get paid a legal fee. Call us today for your free case evaluation 1.800.241.9779.

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HGD Hits US Gov’t With $100M Class Action Over AIA Reviews

By Matthew Bultman

Law360 (May 11, 2018, 8:53 PM EDT) — The U.S. government has been hit with a $100 million lawsuit alleging the cancellation of patents in America Invents Act reviews represents an unconstitutional taking of property rights.

The proposed class action was filed in the Court of Federal Claims on Wednesday by Christy Inc., an Oklahoma company that had claims in its vacuum cleaner patent found inv

alid by the Patent Trial and Appeal Board following a challenge from Black & Decker (U.S.) Inc.
Christy argues this violates the takings clause of the Fifth Amendment, which states that private property cannot be taken for public use without fair compensation. It is also bringing a claim for breach of contract. The proposed class would include anyone who has had claims in a patent invalidated in an AIA review.

“Somebody must be held responsible for decimating these duly issued patent rights through [inter partes reviews] and these other post-grant AIA proceedings,” said James McDonough III​ of Heninger Garrison Davis LLC, an attorney for Christy. “Since the government is the one that claims to have created this whole mess in the first place, then it should be the one that has to pay.”

The lawsuit, which seeks compensation for expected royalties related to the patents, as well as various fees paid to the USPTO, states the amount owed to the potential class is “greater than $100 million.” The U.S. Patent and Trademark Office, of which the PTAB is a part, does not comment on litigation.

The 2011 AIA created IPRs and other reviews proceedings, which were designed to be a more efficient, lower-cost alternative to district court litigation for determining a patent’s validity. The lawsuit comes less than a month after the U.S. Supreme Court in Oil States v. Greene’s ruledIPRs do not violate the Seventh Amendment’s right to a jury trial.

Matthew Rizzolo of Ropes & Gray LLP, who is not involved with Christy’s case, said patent owners filing lawsuits against the U.S. government wasn’t a surprising next step following Oil States. He predicted there would be such cases earlier this month.

“For me, this is one of the places I thought they would turn,” he said.

In its complaint, Christy said AIA reviews have decimated the value of patents, and the cost to inventors and the overall economy has been “staggering.” Meanwhile the PTAB was a “money printing machine” for the USPTO, it said, estimating tens of millions of dollars have been paid in AIA review filing fees.

“Also at the center of this lawsuit is the public (and shocking) admission by the USPTO that [AIA reviews] are designed to invalidate patents that were erroneously granted in the first instance,” Christy wrote, citing comments made during the Oil States case.

Christy argues a contract exists in which the USPTO will issue a patent in exchange for fees paid by the owner. It contends the USPTO shouldn’t be allowed to keep those fees if it fixes its mistakes and the patents are found invalid.

Similarly, Christy contends patent owners shouldn’t be forced to defend these patents in AIA reviews — and spend hundreds of thousands of dollars in attorneys fees in the process.

“But for the fact that the patents were issued (and a property right granted in the first place), the patent owners would not have invested the time, resources and money into the subject inventions and the monetization of those inventions, whether through product development or otherwise.

Christy is represented by James McDonough III​, Jonathan R. Miller, Travis E. Lynch, Timothy C. Davis, W. Lewis Garrison Jr., Christopher B. Hood and Anna M. Carroll of Heninger Garrison Davis LLC.

Counsel information for the government wasn’t yet available.

The case is Christy Inc. v. United States of America, case number 18-657, in the U.S. Court of Federal Claims.

–Editing by Bruce Goldman.

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Heninger Garrison Davis, LLC Files Class Action Against the United States Patent and Trademark Office For “Taking”

ATLANTA, GA: (May 10, 2018) – Attorneys from Heninger Garrison Davis, LLC’s class action and intellectual property group filed a class action complaint this week against the United States and the United States Patent and Trademark Office (USPTO) for damages to Christy, Inc. and a class of other patent holders whose property was taken by the USPTO without compensation in violation of the Fifth Amendment of the Constitution.

This unlawful “taking” occurred, according to the lawsuit, when the USPTO implemented post-grant proceedings from the America Invents Act (“AIA”), including Inter Partes Review (“IPR”) and Post-Grant Review (“PGR”) proceedings (together, “PGPs”). These PGPs have been used by the USPTO to invalidate patents at an alarming rate, and Christy, Inc. and other patent holders seek just compensation for the taking of patent owners’ recognized patent property rights by the United States. More specifically, the lawsuit seeks money damages for the value of the patent claims, including any expected royalty and other payments for use of the patented technologies, the issuance and maintenance fees paid, and any investments made in the patented technologies.

The case also seeks damages for the United States’ breach of contract for its failure to maintain in force the subject patent claims, including the recovery of attorney fees expended defending those same patents in PGPs. And because the United States contends these patents were issued “erroneously” by the USPTO in the first place, Christy, Inc. contends all issue and maintenance fees paid were exacted by the government and should be returned.

Any individual or entity that owns a patent for which one or more claims were invalidated in an IPR or PGR proceeding is eligible for the class action. If you would like to join this class action, please contact us to discuss your options.

Case Name:  CHRISTY, INC. V. USA

Case Number:  1:18-cv-00657-MMS

Heninger Garrison Davis, LLC, is a national law firm, and our attorneys defend valuable intellectual property rights for our clients. To determine if you should file suit, consult one of our qualified lawyers as soon as possible to understand your options.  We do not charge any fees upfront. In fact, we will only charge attorney’s fees if we obtain a financial settlement for you. If you do not win, we get nothing.  Call us today for your free case evaluation 1.855.228.1929 or visit www.hgdlawfirm.com/USPTO-Class-Action or www.usptoclassaction.com

 

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