Blood Alcohol Scores After Death Can Be “False Positive” Up To 0.20

In handling wrongful death and life insurance claims for clients, I learned years ago that blood alcohol tests after a person dies may not be reliable. Due to postmortem fermentation when a body is not kept cool after death, there can be “false positive” blood alcohol reports up to 0.20 grams/% — 2 ½ times the legal limit of 0.08 for drivers and boaters in Georgia.

Years ago, I was hired by the widow of a retired Army officer who drowned on a fishing trip. A life insurance policy excluded coverage if the insured was intoxicated at the time of death. An autopsy by the state medical examiner reported blood alcohol of 0.20 gr/%. But both the widow and her late husband’s fishing partner swore he had had nothing to drink. At first we thought the county coroner, on whose property the drowning occurred, might have messed with blood samples.

When I contacted an independent pathologist, I learned that fermentation could have produced the blood alcohol score. The body had been retrieved from a lake in south Georgia on a hot August day, laid out in the sun for a while, and then was transported by hearse in uncertain temperature conditions on an hours-long drive to the state medical examiner’s office in Atlanta.

That was enough for fermentation to occur. With that knowledge, we won.

Why is that?

As discussed in a recent article by forensic scientist Jim Wigmore, over half of postmortem blood is not sterile, and contains bacteria, yeast or fungi. In addition, postmortem blood sugar (glucose) concentration can be 7 to 10 times greater than blood before death.

Fermentation is the formation of alcohol from sugar.  Yeasts can convert 100 milligrams of glucose into approximately 40 to 50 milligrams of alcohol.  Bacteria and fungi generally can convert 100 milligrams of sugar into 10 – 20 milligrams of alcohol.

During fermentation other volatile compounds such as acetaldehyde and n-propanol are produced and may assist in the determination of elevated blood alcohol scores due to fermentation or putrefaction.

It has been well established for many years that:

  1. Blood alcohol levels at autopsy are valid up to 48 hours after death when solid protocols are observed in the collection and storage of samples.
  2. Alcohol levels in samples of blood taken from the intact heart are as significant as levels of blood from the femoral veins.
  3.  False blood alcohol levels greater than 0.200% can be generated in autopsy blood samples which are not correctly stored.
  4.  High blood alcohol levels may develop during putrefaction and levels up to 0.200% do not necessarily indicate that alcohol was imbibed before death.
  5. Significant false high blood alcohol levels do not develop during incineration in absence of putrefaction.

We have to be alert to this scientific knowledge in handling cases where any person after death is accused of having been drunk at the time of death.

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Ken Shigley is a board certified trial lawyer based in Atlanta. He is a past president of the State Bar of Georgia, chair-elect of the American Association for Justice Motor Vehicle, Highway & Premises Liability Section, and a Certified Civil Trial Advocate of the National Board of Trial Advocacy.

 

 

The challenges of a long haul trucker: another 4 AM Spaghetti Junction truck crash

Most long haul truck drivers are decent, hardworking folks who chose truck driving as a way to support their families even though it keeps them on the road away from home most of the time.

At my childhood home in rural Alabama, a lot of my friends’ dads were over the road truck drivers because it was one of the few ways a guy living there, without a college education, could make enough to keep the family in the rural community they loved.

Paid by the mile and under pressure from employers and shippers to make “just in time deliveries,” truck drivers look for ways to cut the time from pickup to delivery points. Over the years, truck drivers have told me – both confidentially over coffee at truck stops and Waffle Houses and reluctantly in depositions around the country — of how they are pushed to get the load there despite speed limits and fatigue.

Truck drivers have told me of arriving to pick up a load at, for example, 5 PM, the shipper not having it ready to go until 8 PM, and insisting that it must be delivered a thousand miles away by the next morning. The truck driver knows that while legally he can’t be fired for refusing, he may not get future work if he doesn’t comply.

Time pressure on truck drivers often results in driving through the night when traffic is less than during the day. You may have seen 18 wheelers barreling through the night at or above the 70 MPH speed limit. Dissecting their timelines after bad stuff happened, I’ve often found they were beyond the limits of human stamina while pushing to make an early morning delivery.

In one case, a trucker had driven from Ohio to Atlanta, back to Ohio, and was almost back to Atlanta when he struck a family returning from vacation. He had had only a couple of brief naps on a roadside in West Virginia and in a shipper’s parking lot in Ohio.

Often we see incidents where a trucker had driven through the night, then hit the Atlanta freeway system in early morning when dead tired and reaction times are diminished due to fatigue. Then, when bad things happen, their employers’ insurance companies try to keep the jury from hearing about how it was the company’s policies and practices that put the driver in the position of being dead tired behind the wheel.

This morning at 4 AM, a tractor trailer jackknifed in Spaghetti Junction at I-85 and I-285 on the north side of Atlanta. It punched through a concrete barrier and blocked all traffic in the area for hours. Blessedly, there are no reports of injuries. I don’t know what happened, but it appears to fit the common pattern of a trucker driving through the night and hitting metro area before dawn.

In interstate trucking, there are national standards governing driving time and fatigue. There has been a lot of work on fatigue management, confirming the common sense conclusion that working long daily and weekly hours on a continuing basis is associated with chronic fatigue, a high risk of crashes, and a number of serious chronic health conditions in drivers.

I have certainly experienced severe fatigue in working long hours as a lawyer – especially the year I was also State Bar president – but I was not piloting an 80,000 pound truck through traffic.

The Federal Motor Carrier Safety Regulations include:

-          “No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver’s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.” (Federal Motor Carrier Safety Regulations Section 392.3)

-          The hours of service rule in interstate trucking sets specific limits to limit fatigue:

  • 11-hour daily driving limit and 14-hour work day limit.
  • 70 hours maximum work week
  • After reaching 70 hour weekly limit, must rest for 34 consecutive hours, including at least two nights when their body clock demands sleep the most – from 1-5 a.m.
  • Truck drivers must get a 30-minute break during the first eight hours of a shift. (Federal Motor Carrier Safety Regulations Section 395.3)

-          Truck drivers must maintain logs recording their work and driving hours.  Traditionally those have been on paper and easily finagled to look legal despite driving way over legal hours. I have spent a lot of time deconstructing those with the mass of electronic time-stamped records that are generated in the course of travel. There is a lot of effort now to move to electronic logs which would require a lot more sophistication to falsify

-          Legally, no one can fire, discipline or discriminate against a trucker for refusing to operate a truck in violation of these rules. But it happens anyway. (49 U.S.C. 31105)

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Ken Shigley is a board certified trial lawyer based in Atlanta who has been trying cases before Georgia juries since 1977. He is past president of the 45,000 member State Bar of Georgia and chair-elect of the American Association for Justice Motor Vehicle, Highway and Premises Liability Section.

 

Summer Break: Shigley’s Swimming Hole in Alabama

Folks, this post has nothing to do with law.  Appreciating the simple joys of a Southern summer, I just want to share a video someone posted of the “Shigley Hole,” an old swimming hole on land my great-grandparents homesteaded in the late 1800s near Little River Canyon in northeast Alabama.

I can just imagine my late grandfather and his siblings jumping off those rocks and plunging into that pool as children well over a century ago.

Enjoy some down time with you family this summer. If you want to find the trail to the “Shigley Hole” see http://www.secretfalls.com/hiking/desoto-scout-trail.

9 Tips to Prevent Child Heat Stroke

Recent news stories of tragedies when young children were left in hot cars have generated passionate debate in metro Atlanta and across the country.child asleep in car seat

Certainly any parent who intentionally leaves a child in a hot car to suffer and die should be prosecuted and harshly punished. As a former prosecutor, I find myself wondering whether, if I were the District Attorney in Cobb County,  I would seek a sentence harsher than life without parole. Certainly I envy any prosecutor who tries such a case with strong forensic science to back up the charge.

Some people cannot understand how any parent could possibly forget that a child is sleeping in a rear facing infant seat in the back seat of a vehicle. Others reflect on their own incidents of distraction and forgetfulness and think, “There but for the grace of God go I.” As a parent for the past 27 years, I am aware of my own fallibility as I recall my moments of horror over lapses of attention when busy or distracted.

Whatever may be determined to be the truth of the recent tragic incident in Cobb County – and it looks increasingly bad —  there is a nationwide problem of distracted parents forgetting that children are in a vehicle and unintentionally leaving them subject to extreme summer heat. Parents are especially vulnerable to this when on “automatic pilot” going about a routine that usually does not include the child. If a normal workaday routine is altered, such a change in who drops off or picks up a child at day care, and the child is sleeping in a rear facing carrier in the back seat, it is too easy for even the most loving parent to forget the child is in the vehicle.

When my kids were little, we did not have passenger side air bags forcing child safety seats to the back seat. Our infant seats faced forward rather than backward a quarter century ago. Even when we got that first permanently mounted car phone it was rarely used, so we did not have cell phones buzzing demanding attention as we pulled into a parking space. While life seemed incredibly hectic, in some ways it was a simpler, less distracted time.

Growing up before the days before universal air conditioning, seat belts or child safety seats, I normally stood in the middle of the front seat between my parents while going down the road and endured unabated heat throughout the summer. I was left waiting in a hot car many times with the windows open under a shade tree. It was a different time with a different set of risks.

So when my kids were little, like many people I did not recognize the danger of leaving a child in a car while running even a brief errand.

Back then, I did not realize that the interior of a car can heat up 20 degrees in 10 minutes. Or that even with an outside temperature in the 60s, the interior of a car can reach 110 degrees. I did not know that a child’s body can heat up 7 times faster than an adult, that heat stroke can occur in a car even when the outside temperature is as low as 57 degrees, or that a child will likely die of heat stroke at 107 degrees.

I was lucky. Not everyone’s luck can hold.

Here are 7 tips – from the National Safety Council and other sources – on how parents can safeguard against lapses that could lead to tragedy.

  1. Never leave a child alone in a car, even with the windows partially open. It is certainly tempting to think you can just quickly dash into a store, complete a transaction in a couple of minutes and come right back without the hassle of dealing with kids in a store. But Murphy’s Law is in full force and effect. Anything that can go wrong, sooner or later will go wrong. Even if you are as quick as you expect to be and your child is perfectly safe, a concerned bystander may call 911, setting off a nightmare of dealings with police and Child Protective Services. Just don’t do it. Ever.
  2. Keep a large stuffed animal in the child seat, and move it to the front passenger seat when you place the child in the seat. This simple visual cue can remind you that the child is in the car when you park.
  3. Always put the child’s diaper bag in the front passenger seat. Another failsafe visual reminder can help.
  4. Always put your cell phone, briefcase, purse – or one or both of your shoes — in the back seat. That will force you to always look in the back seat – and see the child if one is there – before leaving the vehicle.
  5. If you have a change of routine about dropping off a child at day care, establish a pattern of having the other parent — or a grandparent or friend — call to check in after drop-off time. It doesn’t have to be nagging, but a sweet, simple call or text message to ask how the child handled the change of routine can be a valuable backup for fallible parental memory.
  6. Ask day care to call both parents if the child is not dropped off at the usual time. That backup can save a life. Having been chairman of the board of a church-based child development center, I am confident most would want to help in that way, but they get busy too so that should not be your sole backup.
  7. Always glance in each seat before leaving the vehicle. If you are retrieving your cell phone, briefcase or purse from the back seat, the visual check will become automatic. Just a quick scan is all it takes.
  8. Never let children play in and around cars. Heat stroke is only one of the ways kids can get hurt. When I was five, my very caring grandfather left me in his car while he checked on a crew at a construction site. I moved to the driver’s seat to play like I was driving, released the parking brake and rolled downhill into a ditch. Granddaddy was more scared than I was.
  9. Consider new devices to remind drivers of children in car seats. An 11-year-old in Tennessee invented a simple device for this purpose, made of rubber bands and duct tape.  With rising awareness of the problem, I expect entrepreneurs will get other devices to market.

 

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Ken Shigley is a board certified civil trial attorney and past president of the State Bar of Georgia. His Atlanta-based law practice focuses on cases of wrongful death and catastrophic injury, including those involving young children.

Olympic Swimming Champ Paralyzed After Suffering Spinal Cord Injury in ATV Accident

Former Olympic swimming champion Amy Van Dyken-Rouen is recovering following surgery to stabilize her spine after her spinal cord was severed at the T-11 vertebra during an all-terrain vehicle accident in Scottsdale, Arizona last week.

The latest report is that she is out of ICU and looking forward to rehab in Denver. Demonstrating a resilient spirit like most of the spinal cord injury survivors we have represented.

Following the accident, the 41 year-old six-time Olympic gold medalist told emergency personnel she had no feeling in her legs or toes, according to The Associated Press, which reported that she severed her spine. She is said to be in good condition despite the seriousness of her injury.

Her husband, Tom Rouen, a punter for the Denver Broncos pro football team, said they are unsure whether she will be able to walk again, and are taking it “day by day.”

Undoubtedly her athleticism will aid her recovery, both physically and mentally. The grit and discipline developed in becoming an Olympic champion will serve her well in the rigors of rehab. Even if she does not walk again, I look forward to seeing her compete in a future Paralympics.

Coincidentally, this week a paraplegic equipped with a brain-controlled exoskeleton kicked off the World Cup soccer competition in Brazil.

The injury occurred when Van Dyken-Rouen struck a curb while riding the ATV in a parking lot outside of a restaurant. The impact sent her over a five- to seven-foot drop-off according to a police report, and she was not wearing a helmet at the time. She was found unresponsive and had to be airlifted to Scottsdale Healthcare Osborn Medical Center.

According to a letter from her family, Van Dyken-Rouen severed her spine at the T11 vertebrae, which came just a few millimeters from potentially rupturing her aorta.

Perhaps the worst physical injury one can suffer is damage to the spinal cord. The most prominent example is Christopher Reeve, who one day was “Superman” and the next was a quadriplegic.  We see some of our clients who have spinal cord injuries as super men and women too.

With our convenient to both the Shepherd Center and Emory, two of the top rehabilitation hospitals in the nation, we are often called by family members of spinal cord injury victims.   In working with people who have such injuries, we have been inspired by the resilience of the human spirit. Both physical and emotional aspects of spinal cord injury are devastating. However, one may work through the depression accompanying spinal cord injury to see that even under such adverse circumstances sometimes still the “glass is half full.”

Although most people know this type of injury can be a devastating diagnosis, not everyone knows there are many different types of spinal cord injuries. The location of the injury along the spinal cord determines what parts of the body are affected. Different types of spinal cord injuries include:

  • Cervical Spinal Cord Injury: Affects vertebrae C1-C8 and causes paralysis or weakness in both arms and legs. This is also known as quadriplegia or tetraplegia.
  • Thoracic Spinal Cord Injury: Affects vertebrae T1-T12. These injuries can cause paralysis or weakness of the legs along with loss of physical sensation, bowel, bladder and sexual function.
  • Lumbar Spinal Cord Injury: Affects vertebrae L1-L5 and result in weakness or paralysis of the legs. This is also known as paraplegia.
  • Sacral Spinal Cord Injury: Affects vertebrae S1-S5. Sacral level injuries mainly cause loss of bowel and bladder function as well as sexual dysfunction. They can also cause weakness of paralysis of the hips and legs.

Injuries can also be complete or incomplete. Complete injuries are indicated by a total lack of sensory and motor function below the level of injury, whereas incomplete injuries are marked by some remaining sensation and movement.

While much is taken, often much remains. Many people with spinal cord injuries surmount extreme adversity to lead productive lives. Jim Langevin became a quadriplegic at 16, and is now a Congressman from Rhode Island. Brooke Ellison has been a vent-dependent quad since age 11, but graduated from Harvard with honors. One of our spinal cord injury clients became Ms. Wheelchair California, did adaptive surfing with a movie star, and works with Free Wheelchair Mission providing wheelchairs for people in third world countries. While these are exceptional people, they illustrate the fact that a useful life is still possible after spinal cord injury.

Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice.  His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of castastrophic personal injury and wrongful death.

“Move or get hit” reported on Wal-Mart truck driver’s Twitter profile after fatal crash

The Atlanta Journal-Constitution has reported that the Twitter profile of Kevin Roper, the Wal-Mart truck driver who had been awake 24 straight hours before a fatal crash in New Jersey, had included the phrase, “move or get hit.”

This illustrates what my friend Andy Young in Ohio pointed out to me last year about the practical values of Twitter in trucking accident litigation.

A Wal-Mart public relations spokesperson was quoted saying, “It is our belief that Mr. Roper was operating within the federal hours of service regulations.” I don’t know what the evidence will show regarding driver logs or electronic monitoring, both of which can manipulated.

But the Federal Motor Carrier Safety Regulations go beyond the hours of service rules.

49 C.F.R. § 392.3 provides that, “No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver’s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.”

49 C.F.R. § 390.3 requires that “every employer shall be knowledgeable of and comply with all regulations . . .  applicable to that motor carrier’s operations” and just as importantly, “every driver and employee shall be instructed regarding, and shall comply with, all applicable regulations….”

49 CFR 390.13 mandates that companies not “aid, abet or encourage drivers’ violations of regulations.”

There are many ways that a company can make a show of conforming to safety rules while quietly turning a blind eye to safety. The reality of the company’s safety management and culture is always subject to scrutiny. While Wal-Mart has cultivated an image of a relatively safe trucking operation, investigation of this case will undoubtedly put that to the test.

Walmart U.S. President and CEO Bill Simon released a statement about the crash, promising the company will take “full responsibility” if investigators determine the truck caused the crash. “We can’t change what happened, but we will do what’s right for the family of the victim and the survivors in the days and weeks ahead.”

That’s good PR, but my observation of Wal-Mart’s conduct in other litigation, including but not limited to cases I have handled, leads me to suspect that Wal-Mart will “do what’s right” only when all other avenues are exhausted, when the families have been dragged through years of scorched earth litigation, when Wal-Mart’s defense lawyers have deposed every survivor for seven nasty and insulting hours each, and when a court forces them to “do what’s right.”   It is naïve to think that any case with Wal-Mart will ever be fairly resolved without vigorous, protracted advocacy.

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Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice.  His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of catastrophic personal injury and wrongful death.

Georgia Supreme Court holds that plaintiffs’ attorney fees under O.C.G.A. § 9-11-68 can’t be based solely on contingent fee agreement

The Georgia Supreme Court on June 16, 2014,  in the case of Department of Corrections v. Couch, held that attorney fees awards for plaintiffs under the Officer of Judgment / Offer of Settlement statute (O.C.G.A. § 9-11-68) cannot be based solely upon the plaintiff’s contingent fee agreement. Just what would be sufficient remains somewhat unclear.

The Supreme Court reversed in part a Court of Appeals decision holding that the contingent fee was a sufficient basis for the fee award as no fee was actually incurred until the contingency occurred, that is when the tort recovery is obtained.

However, the Supreme Court held that the trial court and the Court of Appeals erred in calculating the amount of attorney fees award, stating:

“[W]hile the trial court was entitled to consider Couch’s contingency fee agreement with his attorneys and the amount it would have generated as evidence of their usual and customary fees, the court erred in calculating what amount of attorney fees was reasonable based solely, as far as the record reflects, on that agreement rather than on evidence of hours, rates, or other indications regarding the value of the attorneys’ professional services actually rendered.”

Furthermore, the court found that under the statute, “plaintiffs are not entitled to recover all of their attorney fees in the case, only the ‘reasonable attorney fees and expenses of litigation incurred by the plaintiff or on the plaintiff’s behalf from the date of the rejection of the offer of settlement through the entry of judgment.”

The Supreme Court remanded the fee award portion of the judgment so the trial court can recalculate the “reasonable value of the professional services that Couch’s attorneys actually provided during the period” following the Department’s rejection of the settlement offer.

Justice Nahmias did not say that a contingent fee contract could not be considered in the fee award, only that the opposing party is not bound by the contract so the award cannot be based solely upon the contingent fee agreement. The decision explains,

“Entering such a contract is a gamble for both the lawyer and the client, because the value of the professional services actually rendered by the lawyer may be considerably higher or lower than the agreed-upon amount, depending on how the litigation proceeds. While certainly a guidepost to the reasonable value of the services the lawyer performed, the contingency fee agreement is not conclusive, and it cannot bind the court in determining that reasonable value, nor should it bind the opposing party required to pay the attorney fees, who had no role in negotiating the agreement.”

But while attorney and client agree to an allocation of risk in a contingent fee contract, “but they are not required to predict that the opposing party will be unnecessarily litigious or otherwise will fail to follow the law governing civil litigation in a sanctionable way, requiring the lawyer to provide additional services to protect the client from that improper conduct.”

The Court discussed at length the question of whether the fee award can be based upon the entire judgment, which may have involved years of work before the offer of settlement, or only upon work done between the rejection of the offer of settlement and the entry of judgment. The ruling is that O.C.G.A. §  9-11-68 fee award is based on litigation conduct for services after rejection of the offer of settlement.

However, it appears that fee awards under O.C.G.A. § 9-11-68 based upon the defendant’s bad faith in the underlying transaction may still be based upon the entire contingent fee percentage.

The decision concludes with this holding:

“For these reasons, we reverse the portion of the Court of Appeals’ judgment affirming the trial court’s calculation of the attorney fee award to Couch, and remand with direction that the case be remanded to the trial court for recalculation, in accordance with the principles discussed above, of the reasonable value of the professional services that Couch’s attorneys actually provided during the period “from the date of the rejection of the offer of settlement through the entry of judgment.” OCGA § 9-11-68 (b).”

 

The practical impacts of this decision may include some, all or none of the following:

  • Plaintiffs’ attorneys who contemplate using O.C.G.A. § 9-11-68 offers of settlement may start keeping time records. I was liberated from time slips in 95% of my work when I switched from insurance defense to plaintiffs’ practice in the early 1990s. Management consultants tell us we should track time for managerial purposes, but many find it is an unnecessary annoyance. It would be a pain but I will start shopping for a time and billing software package to track this.
  • In some cases, plaintiffs’ attorneys may be more inclined to make an early offer of settlement.  Some lawyers have done that quite profitably in cases where they knew the defense would reject any settlement, e.g., medical malpractice cases. Others have avoided “initiating the nonsense” because that the statute was designed primarily to intimidate and bully middle class injury victims. I have often resisted the temptation to send an offer of settlement out of apprehension that the other side would reciprocate, and that my clients would have more reason that the insured defendant to feel intimidated. That must be carefully evaluated on a case by case basis.
  • There may be more use of attorneys as expert witnesses to testify about the usual and customary valuation of fees in plaintiffs’ cases, in order to explain the risks, uncertainty of getting paid, undesirability of certain categories of cases, and other factors in addition to mere hours.
  • Insurers might offer specialized coverage to protect plaintiffs from “offer of judgment” awards. There was talk of this when the code section first passed nine years ago, but I haven’t seen it yet. I doubt it will happen now, but I will keep my eyes and ears open.
  • Expert testimony of value of service may include consideration of factors included in some federal fee award cases, sometimes referred to as “lodestar” factors. These have included: (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and the length of the professional relationship with the client; and (12) awards in similar cases. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974)
  • Plaintiffs’ lawyers may revise fee contracts – even though the contracts are not binding on the other side – to document a clear understanding with the client about such fee petitions. For example, a fee agreement might include something like this:
    • If  court-awarded attorney fees are sought from the opposing party in addition to the client’s damages for the entire case pursuant to O.C.G.A. § 13-6-11, client agrees to submission to the court of a claim for calculated at the contingent fee percentage stated above.
    •  If  court-awarded attorney fees are sought from the opposing party in addition to the client’s damages under O.C.G.A. § 9-11-68 or other fee shifting rules, client agrees to a base hourly rate of $400 per hour for attorney time and $125 per hour for paralegal time, and when appropriate to petition the court for an enhanced fee award taking into account such additional factors as courts by then approve, including but not limited to what is customary and reasonable in similar cases, contingency, risk, novelty, difficulty, uncertainty of recovery, skill required, time limitations, experience and reputation of attorneys, etc.

There is also the question of whether the fee award should be lumped into the total recovery out of which a contingent fee is calculated, or should be extra compensation to the lawyer, or some hybrid of the two approaches. I will leave that issue for another day.

The other significant part of the Couch decision (taking up the first 24 pages of the very thorough, scholarly opinion by Justice Nahmias) is that the State of Georgia is not immune from fee awards under O.C.G.A. § 9-11-68. I commend the scholarly opinion for study by attorneys struggling with sovereign immunity issues in any context.

 Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author ofGeorgia Law of Torts: Trial Preparation and Practice.  His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of castastrophic personal injury and wrongful death. In 2012, he was included in the “short list” of nominees for the Court of Appeals by the Georgia Judicial Nominating Commission.

The Supreme Court of Georgia quoted Ken Shigley in a unanimous decision released this week.

In the case of Hartley v. Agnes Scott College, the Supreme Court addressed the question “whether a campus police officer employed by a private college qualifies as a “state officer or employee” who may assert immunity from tort suits under the Georgia Tort Claims Act.” Last year, a plurality decision of the Court of Appeals concluded that the defendant Agnes Scott College police officers were entitled to immunity. Agnes Scott College v. Hartley, 321 Ga. App. 74 (741 SE2d 199) (2013).

In reversing the Court of Appeals, Associate Justice David Nahmias, a Harvard Law graduate who clerked for U. S. Supreme Court Justice Antonin Scalia, wrote, “After considering the GTCA as a whole, rather than only its definitions section, we disagree, because it is clear that the Agnes Scott officers were not acting for any state government entity when they committed the alleged torts.”

The plaintiff in this case contended contends that the private college police officers could not be immune because they do not qualify as state officers or employees as defined in OCGA § 50-21-22 (7), which says in full:

“State officer or employee” means an officer or employee of the state, elected or appointed officials, law enforcement officers, and persons acting on behalf or in service of the state in any official capacity, whether with or without compensation, but the term does not include an independent contractor doing business with the state. The term state officer or employee also includes any natural person who is a member of a board, commission, committee, task force, or similar body established to perform specific tasks or advisory functions, with or without compensation, for the state or a state government entity, and any natural person who is a volunteer participating as a volunteer, with or without compensation, in a structured volunteer program organized, controlled, and directed by a state government entity for the purposes of carrying out the functions of the state entity. This shall include any health care provider and any volunteer when providing services pursuant to Article 8 of Chapter 8 of Title 31. An employee shall also include foster parents and foster children. Except as otherwise provided for in this paragraph, the term shall not include a corporation whether for profit or not for profit, or any private firm, business proprietorship, company, trust, partnership, association, or other such private entity. “

The Court of Appeals had relied on the Campus Policemen Act, OCGA §§ 20-8-1 to 20-8-7, which gives campus police who are POST certified the same law enforcement powers as other police. The dissent in the Court of Appeals pointed out language in the statute excluding private college police from the definition of “state officer or employee.”

Justice Nahmias, in writing for the Supreme Court, saw it differently, viewing the Campus Policemen Act in the context of the Georgia Tort Claims Act which provides the exclusive remedy for tort claims against state government. In reviewing the legislative history of the GTCA, Justice Nahmias cited  Kenneth L. Shigley & John D. Hadden, Georgia Law of Torts – Trial Preparation and Practice § 15:3 (2013 ed.), as follows:

“Prior to enactment of the GTCA, tort claims were brought against individual state employees and officials rather than the state agencies, and funds were allocated by the state to pay settlements or judgments against employees and officials within the course and scope of their duties. The GTCA reversed this scheme, so that claims are brought against agencies rather than individual employees and officials.”

After detailed analysis of the Georgia Tort Claims Act, the Supreme Court concluded that the campus police officers employed a private college clearly were not acting on behalf of any “state government entity,” and therefore did not benefit from the immunity provided to officers acting in such capacity.

The book chapter quoted by the Supreme Court was a collaboration with co-author John Hadden, a brilliant young man who did most of the heavy lifting of research and drafting on that portion of the book. The quoted account of history of practice prior to enactment of the GTCA grew out of Ken Shigley’s experience. From about 1982 to 1992, much of his practice at an insurance defense law firm involved defense of state officials and employees of nearly all departments and agencies of state government as outside counsel retained by the Georgia Department of Administrative Services Risk Management Division.

Since the mid-1990s, that experience has proven useful in representing injury victims and their families in significant liability cases against state agencies under the Georgia Tort Claims Act which was enacted in 1992. These have included cases based upon operation of state vehicles, highway design, etc. Two of the most notable cases against the State of Georgia have included catastrophic crashes of vans or buses carrying large groups of college students.

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Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice.  His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of castastrophic personal injury and wrongful death. In 2012, he was included in the “short list” of nominees for the Court of Appeals by the Georgia Judicial Nominating Commission.

 

 

 

GM Recalls 3.16 Million Vehicles, Including Every Camaro Built Since 2010

On Monday, General Motors recalled another 3.16 million vehicles built between 2000 and 2014. This was because those vehicles have ignition switches that “may inadvertently move out of the ‘run’ position if the key is carrying extra weight and experiences some jarring event.”

That comes on top of last weeks’ defective products recall in which every Chevrolet Camaro built since General Motors re-launched the car in 2010- about 511,508 cars globally because drivers could accidentally turn the car off with their knees.

This was the same problem at the recall of the deadly Chevy Cobalt last month.

As in most automotive product recalls over the years, GM claims they are aware of only three crashes with four minor injuries linked to the problem. According to the company, the ignition switches in the Camaro aren’t to blame and that the recall demonstrates how it is now trying to jump on safety problems as soon as they emerge. GM tells reporters that the switch itself meets all engineering standards, but made no comment on when it was made aware of the injuries resulting from the recalled Camaros.

According to General Motors, after the recall of 2.6 million Chevy Cobalts and other older GM models for bad ignition switches, the company began testing other models to see if the drivers of other models could also bump the key into the accessory or off position while driving. They found that if Camaro drivers were sitting close enough to the steering wheel, they could bump the combined key/fob.

In addition, GM disclosed another five recalls covering 165,770 vehicles. Those recalls include 57,192 Chevrolet Sierra and GMC Sierra large pickups, which comprise one of the main sources of company profits.

General Motors CEO Mary Barra is likely to have a return visit to Congress to answer questions about the company’s internal investigation of how it let the ignition switch problem fester for years.

As a temporary fix, GM has devised a solution in which the key will be separated from the large fob that opens the doors and trunks, until it can provide new keys.  Meanwhile, Chevrolet dealers have been told to stop selling Camaros.

Of the 511,508 Camaros affected, 464,712 are in the United States. The three other recalls announced by GM today affect a total of 65,121 cars in the United States, none of which have been linked to crashes or injuries:

  • 28,789 Saab 9-3 convertibles from the 2004-2011 model years for a cable in the driver’s side seat belt tensioner that could break.
  • 21,567 Chevrolet Sonic compacts from 2012 with a six-speed automatic transmission and the 1.8-liter four-cylinder engine. A transmission shaft can fail, causing various transmission problems, some of which could be sudden.
  • 14,765 model year 2014 Buick LaCrosse sedans for a wiring splice in the driver’s door may corrode and break, allowing someone to operate the power windows and sunroof when no key is in the vehicle.

Also included in GM recalls are:

  • Buick Lacrosse, 2005-2009
  • Chevrolet Impala, 2006-2014
  • Cadillac Deville, 2000-2005
  • Cadillac DTS, 2004-2011
  • Buick Lucerne, 2006-2011
  • Buick Regal LS & GS, 2004-2005
  • Chevy Monte Carlo, 2006-2008

It is unclear how much GM will be protected by Bankruptcy Court.  Since the first disclosure of the Cobalt ignition switch defect, GM’s lawyers have argued that the 2009 bankruptcy filing, in which the debt-laden “Old GM” sold its best assets to a new, government-backed company and left the rest behind, shields it from much of the potential liability stemming from its ignition-switch problems.

In the depths of the recession, GM entered Chapter 11 bankruptcy reorganization on June 1, 2009. On July 10, 2009, the “new GM” emerged as a new entity completed the purchase of continuing operations, assets and trademarks of GM as a part of the “pre-packaged” Chapter 11 reorganization. The “new GM”  is named General Motors Company LLC, which is separate and independent from the old corporation. The new company retained four of its major brands: Chevrolet, Cadillac, GMC, and Buick. It also kept keep about 3600 out of 6000 of its US dealerships. It closed 14 of its US plants, eliminating 20,000 of 80,000 employees.

I am not a bankruptcy expert but those who are see two ways this could go.

On the one hand, the concept of bankruptcy is get all the creditors in one place, clear the decks and give debtors a fresh start.

On the other hand, a company should not be allowed to hide possible liabilities, then claim they are wiped away with its bankruptcy filing of which potential claimants were never notified. Lawyers for people with claims related to these GM defects argue that senior personnel at GM knew about the ignition-switch problems before GM’s bankruptcy filing but the company knowingly failed to disclose them at the time of the bankruptcy.

My “SWAG” as an interested observer who admittedly stays as far away from bankruptcy courts as possible – until a defendant in one of my cases files bankruptcy — is that the “new GM” will escape liability for vehicles manufactured prior to July 10, 2009.

The litigation over all this has just begun.

I would like to see GM survive and prosper as one of the great companies of the endangered American auto industry. On the other hand, any company should be held accountable for the harm it causes.

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Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice.  His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of castastrophic personal injury and wrongful death.  He spent his childhood living at Mentone, Alabama, and attending school at Menlo, Georgia, in Chattooga County.

Georgia Wal-Mart truck driver awake 24 hours, kills comedian in NJ

A Georgia tractor trailer driver for Wal-Mart who had been continuously awake for 24 years caused a deadly pile-up early Saturday morning in New Jersey.  Although details are still emerging about the crash, we do know a Georgia truck driver is charged in the New Jersey crash that killed comic James McNair, 62, of Peekskill, New York.

Kevin Roper, 35, of Jonesboro, Georgia, was operating a truck “on the New Jersey Turnpike without having slept in excess of 24 hours,” according to the complained filed in Middlesex County Court. Roper failed to see traffic slowing in front of him on the turnpike near Cranbury Township, slamming the limo bus carrying comedian Tracy Morgan and several other comics and friends after a performance in Delaware, police said.

The impact flipped the Mercedes limo on its roof and caused a chain reaction crash involving four other vehicles. Morgan and three passengers, Ardie Fuqua, Harris Stanton, and Jeff Miliea were also injured in the accident according to New Jersey State Police spokesman Gregory Williams.

Roper, a Wal-Mart employee, has been charged with death by auto and four counts of assault by an auto in connection with the accident.  He was driving a company truck at the time of the crash and has obtained a lawyer. Bill Simon, chief executive of Wal-Mart U.S. said they were cooperating with the investigation and “will take full responsibility” if their truck is found to have caused the pile-up involving an SUV, two cars and an additional tractor-trailer.

“There were multiple vehicles involved, so we would like to see what issues are at play in this accident,” a spokesman for the NTSB said. “As in all investigations, we will look at the work/rest schedule of the drivers.

Although it is not yet clear what factors caused the crash, the accident highlights a move by the Senate Appropriations Committee last week to undermine a federal regulation mandating truck driver rest.

Last week, the committee passed an amendment that would suspend a requirement that truck drivers rest for at least 34 consecutive house-including two nights from 1 a.m. to 5 a.m. before beginning their next work week. The so-called “restart” regulation was among a number of changes that took effect last summer with the aim of reducing driver fatigue.

The new rules also limit the maximum average work week for truck drivers to 70, a decreased from the maximum of 82 hours. The new rules also requires the driver to take a 30-minute break during the first eight hours of a shift.

In a blog post, FMCSA Administrator Anne Ferro admonished Congress for attempting to roll back some of the new requirements.

“We carefully considered the public safety and health risks of long work hours, and solicited input from everyone who has a stake in this important issue, including victims’ advocates, truck drivers and companies,” she wrote in the post. “Suspending the current Hours-of-Service safety rules will expose families and drivers to greater risk every time they’re on the road.”

In testimony to Congress last year, Ferro said the FMCSA estimates the new regulations will save 19 lives and prevent 1,400 crashes and 560 injuries every year.

Keith Holloway, a public affairs officer for the National Transportation Safety Board, told reporters the agency is investigating the crash in more detail and will explore the possibility that Roper or Walmart were in violation of the FMCSA regulations. The FMCSA has a long list of rules truck drivers must comply with in order to ensure they have had proper rest.

“We’ll be looking at driver fatigue and medical qualifications and more the broad strokes of the accident,” Holloway said. “[If it was a violation] we would document it and use it as part of fact gathering to prevent accident like this from reoccurring.”

Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice.  His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of castastrophic personal injury and wrongful death.