Atlanta Injury Law Blog

As an Atlanta lawyer handling both defective product and motor carrier cases, I have been troubled over the past several years by a trend of federal agencies seeking to block juries from ever getting a chance to consider the evidence  against manufacturers through the doctrine of federal preemption, often beyond anything expressly intended by Congress. Unfortunately, the U.S. Supreme Court has been lending support to that doctrine. Now, however, U. S. District Judge William R. Wilson, Jr., in the Eastern District of Arkansas, has forthrightly "called a spade a spade."  In the case of In re: PREMPRO PRODUCTS LIABILITY LITIGATION, DONNA SCROGGIN  v. WYETH, et. al., MDL Docket No. 4:03CV1507-WRW, 4:04CV01169, Judge Wilson entered the following Order.

SUPPLEMENT TO APRIL 10, 2008 ORDER

As Defendants note, I did state that I was “as confident as a Christian with four aces” with respect to my FDA preemption ruling. In view of the United States Supreme Court’s decision in Riegel v. Medtronic, Inc., 1128 S. Ct. 999 (2008). and other recent appellate decisions, my confidence, while still in place, is at a lower level.

It appears to me that an expansive reading of preemption is a part of the overall “assault upon the citadel of the right to trial by jury” (to paraphrase Cardozo). The finer points of the vice of too much preemption are well presented in Justice Ginsberg’s dissent in Riegel, and by Judge Thomas Ambro in his dissent in Colacicco v. Apotex, 22008 WL 927848, at *18-26 (3d Cir. April 8, 2008).  The thought underlying expansive preemption (“backdoor federalization”, Id. at 25.) is that bureaucratic experts are better at determining what is reasonable, what is too dangerous, etc., than are juries.
Over the past several years I believe all three branches of government have become more and more distrustful of juries. They seem to forget that a jury is a cross section of the citizens who elected them to office (or elected those who appointed them). In political campaigns these citizens are paragons of virtue; but when they are called for jury service, they somehow become
incapable of making important decisions. The language in the decisions favoring preemption is high flown; but, at bottom, it reflects distrust of the randomly selected citizens who sit on juries.

Perhaps our public officials, including judges, have read too much Plato and too little Alexis de Tocqueville. Trial by jury is the essence of government reposed in the people. We should trust this institution in fact, not just in word.

IT IS SO ORDERED this 16th day of April, 2008.
/s/ Wm. R. Wilson, Jr.
UNITED STATES DISTRICT JUDGE

Last month there was a news story about the New Jersey Committee on Attorney Advertising, a panel appointed by the Supreme Court of New Jersey ruling that attorney advertisements that tout listings such as the "Super Lawyers" listings violate professional responsibility rules against ads that compare lawyers’ services or create an "unjustified expectation about results."  That gave me pause, as it did the marketing folks at every big law firm in Atlanta, since the profile on my web site includes listings in the "Super Lawyers" issue of Atlanta Magazine, "Legal Elite" issue of Georgia Trend magazine, and the Bar Register of Preeminent Lawyers.

However, the Fulton County Daily Report published an article on August 11th reporting an analysis to the effect that,  while Georgia’s ethics rules contain proscriptions against comparative advertisements and ads that create unwarranted expectations, the language in Georgia is more permissive than that found in New Jersey’s ethics rules. The New Jersey rule prohibits as false and misleading any advertisement that "compares the lawyer’s services with other lawyers’ services." Under Rule 7.1(a)(3) of the Georgia Rules of Professional Conduct, the rule against comparisons does not apply if the comparison "can be factually substantiated."

The "Super Lawyers," "Legal Elite," and "Preeminent Lawyers" lists are all based upon periodic surveys of our peers in the legal profession, and cannot be purchased.  While the methodology is certainly not perfect, neither is it meaningless or factually unsubstantiated.  Therefore, we will continue to include those designations on the web site.

We continue to see Daubert motions in which insurance defense lawyers attempt to exclude testimony of treating physicians on routine matters of diagnosis, causation and prognosis. We haven't lost one of those motions yet, but they constitute a tremendous waste of time and resources for all involved. I would never accuse my brother lawyers of filing frivolous motions just to pad their billings, but some of these are just ludicrous.

In considering any Daubert motion, it is important to keep the whole Daubert question in perspective. In an extraordinarily complex multidistrict product liability litigation, In re Ephedra Products Liability Litigation, 393 F.Supp.2d 181 (S.D.N.Y., 2005), Judge Rakoff of the Southern District of New York observed:

Daubert was designed to exclude "junk science." It was never intended to keep from the jury the kind of evidence scientists regularly rely on in forming opinions of causality simply because such evidence is not definitive. The legal standard, after all, is preponderance of the evidence, i.e., more-probable-than-not, and that applies to causality as to any other element of a tort cause of action. Rule 702, a rule of threshold admissibility, should not be transformed into a rule for imposing a more exacting standard of causality than more-probable-than-not simply because scientific issues are involved.

It is widely accepted that a "physician may be asked to testify about the physical condition of a plaintiff, diagnosis, treatment, causes of the plaintiff's condition, or prognosis." Fed. Jud. Ctr., Reference Manual on Scientific Evidence 439 (2d Ed.). In clinical medicine, courts generally agree that under Daubert the methodology and data that diagnosing and treating physicians reasonably consider good grounds for opinions or inferences in medical practice are sufficiently reliable to form the basis of a qualified medical expert's testimony in court. See 3 WEINSTEIN & BERGER, WEINSTEIN'S EVIDENCE ¶ 703[03], p. 703-24 et seq.(Rel.47-7/93 Pub.803); 2 Graham, Handbook of Federal Evidence § 702.5 at 79 (4th ed.1996); Fenner at 1009.

In Westbury v. Gislaved Gummi AB, 178 F.3d 257 (4th Cir 1999), the appellate court affirmed a trial court's decision to admit the opinion testimony of a treating physician, finding that the physicians' differential diagnosis based on temporal relationship between exposure and onset of symptoms - without the benefit of epidemiological studies, peer-reviewed published studies, animal studies, or laboratory data - that workplace exposure to a talcum powder caused a sinus problem. In allowing the physician's testimony, the court noted:

[T]he court should be mindful that Rule 702 was intended to liberalize the introduction of relevant expert evidence. . . . And, the court need not determine that the expert testimony a litigant seeks to offer into evidence is irrefutable or certainly correct. . . . As with all other admissible evidence, expert testimony is subject to being tested by "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof. . . . [W]hile precise information concerning the exposure necessary to cause specific harm to humans and exact details pertaining to the plaintiff's exposure are beneficial, such evidence is not always available, or necessary, to demonstrate that a substance is toxic to humans given substantial exposure and need not invariably provide the basis for an expert's opinion on causation.

Last fall, in Flowers v. Wal-Mart, 2005 WL 2787101, decided 10/27/05, Judge Royal in the Middle District of Georgia held:

It is significant in this case that Dr. Dicks is Mr. Flowers's treating physician, not simply an expert who makes a living providing opinion testimony or one retained for purposes of litigation to provide an opinion based on facts presumed to be in evidence. His examination and diagnosis were part of his routine activities as a doctor, which should not be subject to an extensive analysis under Daubert and Kumho Tire. Though Daubertand Rule 702 require district courts to exercise a "gatekeeper" role as to expert testimony, it is generally appropriate "to avoid unnecessary 'reliability' proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted." Kumho Tire, 526 U.S. at 152. This is just such an ordinary case in which a treating physician offers a medical opinion that a fall from a ladder onto a concrete floor aggravated a back injury.

Lawyers should not be intimidated by frivolous Daubert motions, and should not let opponents trick judges into excluding perfectly legitimate, routine medical evidence with junk motions fraudulently using the rhetoric of "junk science."

We have observed that a lot of Georgia lawyers are having trouble getting up to speed on electronic filing. See article. Fortunately, I have a good paralegal who keeps me straight on these things.

Here are links to court rules and attorney registration web sites regarding electronic filing:

Northern District (Atlanta, Rome, Gainesville, Newnan) -- rule -- registration

Middle District (Macon, Columbus, Albany, Valdosta, Athens, Thomasville) -- CM/ECF access

Southern District -- not applicable

A federal court win for the home team was just published at Giddens v.The Equitable Life Assurance Society of the United States, 356 F.Supp.2d 1313(N.D.Ga.,2004) [Westlaw $$$].

We represented a dentist / real estate developer on a disability insurance claim after he had liver failure requiring a liver transplant at the Mayo Clinic. The insurance company took the position that during a long period of inability to work due to undiagnosed illness prior to diagnosis of liver failure, he abandoned both of his occupations, and therefore no longer had an occupation from which to become disabled. We won summary judgment before the Honorable Richard Story, U.S. District Judge in Atlanta.

The case is significant because it established Georgia precedent on (1) admissibility of disability opinions of treating physicians under Daubert despite lack of definitive tests and specialization in disability evaluation, with any deficiency going to weight rather than admissibility; and (2) rejection of insurer's "occupation defense" that insured who was unable to work for extended time due to illness had abandoned occupation and therefore had no occupation from which to become disabled.

The insurer has filed an appeal pending in 11th Circuit Court of Appeals. We hope the appeal produces a published decision affirming Judge Story's order, which other policyholders may use as precedent against The Equitable throughout the United States.

See the published order below:

Abuse of injured immigrants is an old story. I once knew an insurance claims manager who was very proud of his tactics in dealing with Hispanic immigrants who had injury claims. First, he told them, "No English, no dinero." Second, he would schedule meetings with claimants and get someone from INS to show up, check their papers, and if possible deport them so that he could get by without paying for their injury. (Yes, he worked for AIG, the company whose recently deposed CEO sent out a memo as Hurricane Andrew approached Miami several years ago, talking about what a great opportunity the hurricane would give the company to raise premiums.)

That claims manager and his soulmates would be disappointed that the U.S. Supreme Court has recently let stand a lower court decision that a plaintiff's immigration status is not discoverable because the "chilling effect of such discovery . . . unacceptably burdens the public interest." Rivera v. NIBCO, Inc., 364 F.3d 1057 (9th Cir. 2004). Rivera provides precedent for attorneys bringing claims on behalf of immigrants whose immigration status might be in question. New immigrants are disproportionately employed in highly hazardous occupations and suffer injury and death at rates markedly higher than other workers. Too often, immigrant workers forgoe legitimate claims when their rights are violated. Immigrant workers frequently fear that seeking legal advice may adversely effect their immigration status or that their undocumented status might be exposed. By forgoing legitimate claims, injured immigrants are marginalized further when they are unable to obtain and pay for proper medical care and unable to obtain and pay for vocational training which would allow them to reenter the workforce. As a result, the party responsible for their injuries escapes accountability and the cycle of illegal conduct repeats itself. See article at Safety Lex.

Rivera is a labor case rather than a tort case, it is not binding authority in Georgia or in the 11th Circuit, and Georgia courts tend to give little weight to the "commie" Ninth Circuit Court of Appeals. But courts here may consider the reasoning as some persuasive authority in preventing some forms of abuse of injured immigrants in injury litigation.

Critics of Daubert see science as a contentious process, rather than a a set of universal facts deduced by logic, and argue that courts are now demanding more of individual scientists and engineers than is expected of them in their own research and practice. A synthesis of the two views of science can be achieved by recognizing that subjective assumptions and inferences can never be completely eliminated from expert testimony. As a result, expert testimony always amounts, in effect, to conditional statements. An expert's statements can be considered "reasonable" -- or likely, or beyond a reasonable doubt -- if, and only if, the assumptions and inferences made by the expert are considered reasonable, or likely.

In Scientific Misconceptions Among Daubert Gatekeepers: The Need for Reform of Expert Review Procedures, published in the Journal of Law & Contemporary Problems, Jan Beyea and Daniel Berger contend that narrow-minded interpretations of Daubert are based on a fundamental misunderstanding of science as seamless objective logic based ondefining "scientific method" as a logical pursuit exhibits the common misconception that scientists "prove" something. Absolute proof is the province of mathematicians, not scientists, and even mathematicians start from unprovable assumptions. . . .

As Georgia lawyers and judges wander into the quagmire of the Daubert Trilogy, we must look behind the curtain of the Wizard of Oz and begin to learn something of the epistomology of science. Insofar as the Daubert decision is based largely upon the Justice Brennan's summary of the Karl Popper's premise of theory-testing through falsification, we would do well to consider ideas of those philosophers of science who disagree with Popper.

In The Structure of Scientific Revolutions, Thomas Kuhn took issue with Popper's premise of theory-testing through falsification. According to Kuhn, it is the incompleteness and imperfection of the existing data-theory fit that define the puzzles that characterize normal science. If, as Popper suggested, failure to fit were grounds for theory rejection, all theories would be rejected at all times.

The United States District Court for the Northern District of Georgia is moving to mandatory electronic filing. Lawyers practicing in that court had to apply for logins and passwords by 1/1/05, and electronic filing will be require as of 7/15/05. Lawyers practicing in federal court -- and their key support personnel -- must become familiar with the rules governing electronic filing. A Standing Order provides for protection of confidential information in documents filed online and available online.

While federal courts can be a tremendous bureaucratic nightmare for lawyers, particularly those of us in small firm settings accustomed to state court practice, we love electronic filing.

We have been doing electronic filing in our federal cases for several months, and after some period of adjustment have been delighted with it. Electronic filing spares us the stress and expense of sending couriers dashing to the federal courthouse in afternoon traffic, desperately trying to beat a deadline. When we file a brief electronically, opposing counsel is automatically served via email through the court's system. We have taken every opportunity to tell state trial and appellate judges of the advantages of electronic filing, hoping that they will follow the federal court's example in this one regard.