December 2008

While I make my living as a trial attorney handling personal injury liability cases for people who have been seriously injured, I am also deeply interested in scientific advances that improve their prospects for productive lives of high quality.

Traumatic spinal cord injuries leading to quadriplegia and paraplegia are among the most devastating of all physical injuries.  The full scope of problems associated with those conditions  — pressure sores, spasticity, autonomic dysreflexia, lack of bowel and bladder control, etc. —  is unknown and virtually unimaginable to anyone who has not dealt directly with those conditions.

New advances in stem cell and nanotechnology research appear to offer hope in the long term. However, they are a long way from producing  treatments approved by the FDA, clinically available in the US and paid for by health insurance. Stem cell studies with lab animals have produced exciting reports, and every few weeks I see hopeful reports about the prospect of using stem cells from olfactory nerve, umbilical cord blood, spleen or bone marrow.

There is a lot of hype about the promise of stem cell therapies, and we read of patients traveling to Portugal, China, Thailand or Mexico for cutting edge treatments, the efficacy and safety of which have not yet been proven to the satisfaction of US authorities. 

A few web sites that offer insights into the current state of stem cell research are:

 I’m not a physician and cannot give medical advice. In representing victims of catastrophic injury, however, we try to look ahead to the possibilities for improving the quality and quantity of life if sufficient financial resources are made available.

As an Atlanta trial lawyer, I have often seen instances of severe neglect in nursing homes. Last week I wrote on this blog about the ratings of Georgia’s 358 nursing homes, 115 of which rated "much below average." 

A few days ago, a DeKalb County jury returned a $1.25 million verdict for the family of an amputee who died due to bedsores allegedly caused by substandard care at Kindred Healthcare’s Tucker Nursing Center in 2002, as reported by Andy Peters in the Fulton County Daily Report.

The plaintiffs’ claim was that the patient was left to lie in his own waste for hours because nursing home caregivers neglected to turn him, as required by law, leading to development of stage-four bedsores on his buttocks that penetrated to the bone.  As a result, he went into a catabolic state, a condition in which his tissues began breaking down, which led to malnutrition, additional bedsores, extreme inflammation of his entire body, and eventually death.

The defense claimed that all this was was expected due to the patient’s underlying medical issues and history of prior skin integrity issues, other medical problems, and neglect by other caregivers.  The defense that the patient was old and sick anyway apparently did not work with the jury.

This reminds me of a nursing home malpractice case I handled several years ago in which an elderly woman at a nursing home developed a pressure sore on her ankle due to attendants leaving her in one position in her wheelchair far too long. This led to gangrene and amputation. When she returned to the nursing home after amputation of that leg, an attendant dropped her and broke the other leg, causing immense additional suffering. Whatever quality of life she had before was pretty much lost.

At this firm we have lawyers who regularly handle nursing home malpractice, abuse and neglect cases.

Sometimes quality control and financial stability go hand in hand.

This week I saw two announcements from Cooper Tire.

First, they recalled Cooper CS4 Touring (VR tires) size 215/55 R17 produced between September 7 and October 11, 2008.  This is part of a long history.  According to the NHTSA recall campaign these tires may have been cured for an inadequate amount of time. This condition can lead to tire tread separation, possibly resulting in the loss of vehicle control and a vehicle crash. Cooper Tires has agreed to notify owners and replace, mount and balance any defective tires free of charge. Owners may contact Cooper Tire Consumer Relations toll free at 1-800-854-6288.

Second, Cooper Tire announced it was closing its manufacturing plant in Albany, GA, which employs about 1,400 people.  I really feel for those folks who are not responsible for their employer’s quality control and management decisions, or for the general collapse of the auto industry and the economy in general.  I have not heard of quality control issues at the Albany plant.

Tires are an important and complex area of defective products litigation.  Tread separation is an extraordinarily dangerous defect that often results in death and catastrophic injuries. Improper manufacturing and curing of tires can cause a tread belt separation, which often leads to a tire blowout. Tread separations ordinarily cause the driver to lose control of the vehicle even when the tire does not lose pressure.

I have worked on such cases in the past.  When you combine a delaminating tire with a 19 passenger van operated at high speed, the outcome is tragic.

Representing individuals and families in cases of personal injury and wrongful death in Georgia, we deal with complex rules that the legislature tried to make more difficult in tort reform legislation in 2005.  However, in that hastily assembled legislation, the "law of unintended consequences" was at work.

When the Georgia legislature passed that omnibus tort reform bill almost four years ago, one of the provisions was to require juries to apportion fault between all parties and non-parties — even if they cannot be held liable — at whom the defendant points an accusing finger.

In Indiana last week, a jury following instructions under an apparently similar law awarded $48 million to a man rendered paraplegic in a steel mill accident, and refused to assign any percentage of fault to several non-parties whom the defendant corporation had tried to blame.

Anthony Arciniega, 42, was rendered paraplegic on November 20, 2004, when the refractory suddenly broke loose from the ladder, causing him to lose his grip and fall 17 feet. The jury found Minteq International, Inc. negligent for overspraying its refractory onto a stationary ladder in a Burns Harbor steel mill. Despite the injury, however, Mr. Arciniega returned to work at the steel mill in a wheelchair within six months. The jury also decided that Mr. Arciniega was zero percent at fault for the accident.  In addition to blaming the injured worker, Minteq’s lawyers tried to lay blame on other contractors in the steel mill and on International Steel Group. The jury flatly rejected both claims.

The apportionment of fault statute that the General Assembly of Georgia  passed in 2005 is O.C.G.A. § 51-12-33, which reads as follows:

(b) Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

In other states that similarly require allocation of fault between defendants, courts have held that the jury may be required to allocate percentages of fault between an employee driver and his employer against whom separate claims similar to negligent training, entrustment, hiring and supervision are made. 

The Georgia Fair Business Practices Act was enacted in the 1970’s. In the early nineties I sifted through the original legislative committee files at the archives in researching legislative intent. It is clear that this Georgia law encompasses personal injury and wrongful death claims based upon unfair or deceptive acts or practices in commerce, and provides for treble damages, punitive damages and attorney fees for such claims.

At that time in the early nineties, I used that statute to recover from a product distributor that would not have responsibility for a fatally defective forklift under Georgia product liability law that shields sellers from liability. However, by classifying the forklift and attachment as an "office supply" we were able to get the job done. After surviving a barrage of motions and an interlocutory appeal, we settled for policy limits on the eve of trial.  The judge on that case still mentions it every time I see him.

Now my friends at Finch McCranie have blogged about Altria Group v. Good, in which the U. S. Supreme Court has held that federal law neither expressly or impliedly preempts a lawsuit filed under the Maine Unfair Trade Practices Act by Maine smokers.

It may be worth noting that while the Georgia Fair Business Practices Act does allow personal injury and wrongful death claims, it bars class actions based upon it.  The Georgia FBPA can be useful, however, in individual products liability claims where there was an unfair or deceptive act in the promotion or advertisement of the product.