Shigley quoted in LawyersUSA article on defense medical exams
Today's issue of LawyersUSA includes an article by Corey Stephenson quotes me on defense medical exams (which are otherwise jokingly referred to as "independent" medical exams). Here are a few excepts from the longer article.
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One major issue is that "there are only so many doctors [who do IMEs] out there and we tend to see the same folks over and over again," said Ronald V. Miller, a partner at the Law Offices of Miller & Zois in Baltimore, Md. who focuses his plaintiffs' work on serious motor vehicle accidents, products liability and medical malpractice cases.
Kenneth L. Shigley, a partner at Chambers, Aholt & Rickard in Atlanta, agreed. He refers to the exams as DMEs, or "defense medical exams," on his blog, the Atlanta Injury Law and Civil Litigation blog. "In my experience, insurance companies and defense lawyers always want to use a doctor whose view of things is pretty reliable and predictable as pro-defense," he said. "There are some doctors who make it their main source of income to do these exams and who are notorious in the area."
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Plaintiffs' attorneys should also do their homework on the doctor's prior case experience.Shigley said he has sometimes found an IME doctor listed as a member of a defense organization or as having a connection to a defense firm, but "most of them are a little more subtle than that." However, if "you are networked within the community, you can get prior depositions of a doctor [from other plaintiffs' attorneys] and examine the doctor with a stack of 20 to 30 prior depos," said Shigley, who works primarily on truck, bus and other motor vehicle cases.
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Most recently, the Oklahoma Supreme Court ruled in Boswell v. Schultz [case I gave the reporter, 2007 WL 4246290 (Okla. 2007)] that a party to a lawsuit who is required to submit to a medical examination has the right to videotape the exam. The decision also details state statutes and case law from around the country. Miller said there are pros and cons to videotaping exams. Even though a doctor might typically perform a cursory exam, if a camera is on, he or she often becomes more avuncular and spends more time with the patient – something that will resonate with juries, Miller said. Shigley said he's had mixed success with videotaped exams, but where a doctor has refused to be taped, he has introduced that fact at trial.
One point I made in the interview is that most defense medical exam doctors refuse to do the exam if there is an observer or if it to be taped.
The Boswell v. Schultz case in Oklahoma is a virtually encyclopedic analysis of the issue of recording of these adversarial medical exams, concluding that the person being examined has a right to have it recorded. A key quote from the case:
The obvious counterpoint of allowing a "full investigation" would be to make certain that the injured party has an accurate and complete record of the proceeding, and to allow the party undergoing an examination to have reliable proof that the examiner is unbiased and not merely a shill for the opposing party. Allowing an electronic recording would expose the true facts and strike a balance to prevent eitehr a false claim or a cursory exam.
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Sometimes a blog post really should be written like a legal brief
The blogging gurus have told me not to write blog posts like legal briefs.
- Make posts short, with short sentences and bullet points, they say.
- But tonight, leaving a bar association dinner, a judge's law clerk read my name tag and had a flash of recognition.
- In researching a question on which there was no case authority in Georgia, she searched Westlaw for hours without success, and then Googled the question.
- That led to a post on my blog that was, yes, written like a legal brief, complete with citations.
- Of course it was, since I had copied and pasted from a brief I had filed in a case.
- She read the turgid prose in my post, looked up the cases I cited, decided my analysis was correct, and gave that work product to the judge in an order to sign.
So much for short, bullet pointed blog posts. If I want to write a law review article and put in on my blog, complete with exhaustive legal citations, in order to share some creative legal thinking with lawyers, judges and judicial clerks out there, by golly I'll do it.
Continue Reading Questions & comments 2What to do when legal vultures descend on you after a tragic accident
This morning I met with a family who suffered a tragic loss when a tractor trailer ran over the parents late in 2008. The mother was killed and the father seriously injured.
They got me involved a couple of weeks after the crash when one of the sons found me on the Internet and invited me to meet with the family. We put our rapid response strategy to work and are now on the brink of settling the case for all available insurance policy limits.
Because I agreed to reduce my contingent fee to 20% if we settled within the first 60 days after delivery of the demand package to the defendant and insurance company, it turns out to be a win-win situation for everyone, with quick closure on the most favorable possible terms for the family.
In our conversation today, they told me about being deluged with calls from "grief counselors" and "patient counselors" asking if they had a lawyer yet -- while dad was in still in the hospital trauma unit. These “counselors” were obviously sleazy "runners" seeking to solicit the case for legal vultures.
When they got home a few days later, even before mom's funeral, they had a package in the mail from a law firm out of state, soliciting the case.
Georgia Rule of Professional Conduct 7.3, regarding Direct Contact with Prospective Clients, provides in part:
(a) A lawyer shall not send, or knowingly permit to be sent, on behalf of the lawyer, the lawyer's firm, lawyer's partner, associate, or any other lawyer affiliated with the lawyer or the lawyer's firm, a written communication to a prospective client for the purpose of obtaining professional employment if: . . .
(3) the written communication concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the mailing of the communication; or
(4) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer.
(b) Written communications to a prospective client, other than a close friend, relative, former client or one whom the lawyer reasonably believes is a former client, for the purpose of obtaining professional employment shall be plainly marked "Advertisement" on the face of the envelope and on the top of each page of the written communication in type size no smaller than the largest type size used in the body of the letter.
(c) A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure the lawyer's employment by a client, or as a reward for having made a recommendation resulting in the lawyer's employment by a client; except that the lawyer may pay for public communications permitted by Rule 7.1 and except . . . [the exceptions do not include use of "runners" to solicit injury and death cases.]
(d) A lawyer shall not solicit professional employment as a private practitioner for the lawyer, a partner or associate through direct personal contact or through live telephone contact, with a non-lawyer who has not sought advice regarding employment of a lawyer.
(e) A lawyer shall not accept employment when the lawyer knows or it is obvious that the person who seeks to employ the lawyer does so as a result of conduct by any person or organization prohibited under Rules 7.3(c)(1), 7.3(c)(2) or 7.3(d): Direct Contact with Prospective Clients.
The maximum penalty for a violation of this Rule is disbarment.
One of the weaknesses of the organized bar has been the lack of effective means of enforcing these rules against improper solicitation. If no one files a grievance against the offenders, nothing can be done. A lot of this behavior is simply never reported and therefore never addressed.
I will take the information from these clients and prepare grievances against any attorneys we can identify who participated in improper solicitation. If they are in other states and made such solicitations in Georgia, we will urge reciprocal discipline in their home states.
If you are solicited for a personal injury or wrongful death case by a phone call or other direct contact from an "investigator," "grief counselor" or "patient counselor," there is a very high probability that it is an unethical and illegal solicitation on behalf of a lawyer or law firm who does not mind breaking the ethical rules.
Do you really want to entrust your case to someone like that?
If you are solicited about your injury or death case, you may consider doing the following:
- Immediately call the General Counsel of the State Bar and report the improper solicitation. The phone number of the General Counsel of the State Bar of Georgia is 404-527-8720.
- Offer to assist in investigation of this misconduct and to file a formal grievance against any lawyer who can be proven to be participating in improper solicitation.
- If you ask, and if the provable facts support it, I will assist without charge in drafting a formal grievance against any lawyer who solicits you in violation of the Rules, even if you do not hire me for your injury case. (I cannot intrude on the confidential Bar disciplinary process, but I can assist in drafting your grievance.)
- If you need a lawyer for a personal injury or wrongful death case, make your selection on the basis of your own research about professional experience and qualifications, and recommendations by knowledgeable people whom you know and trust, rather than slick advertising or someone soliciting you directly.
$25 million settlement for NJ girl paralyzed by drunk football fan
As a personal injury trial lawyer in Georgia, I have often told clients that they do not want what goes with the kind of case that makes headlines. It is better to have good health than a multi-million dollar injury case.
A recent New Jersey case is a good illustration of that.
In 1999, an Aramark concession employee at Giants Stadium broke stadium rules by continuing to sell beer to a fan who had been drinking much of the day and was slurring his words. The drunk fan drove away and crashed into a family vehicle, rendering a two year old girl a quadriplegic. The girl, now 11, is still paralyzed and dependent on a ventilator to breathe.
Three years ago, a jury awarded damages of $105 million. An appeals court reversed that judgment and ordered a new trial, saying the lower court improperly allowed testimony about the "culture of intoxication" at the stadium. Now the case has been settled, with $23.5 million for the girl and $1.5 million for her mother, who was also injured. There is no further appeal from a settlement.
Having been represented young quadriplegics with well-designed life care plans, I know what is involved and how expensive proper lifetime care for a quadriplegic is.
Since receiving payment on the settlement, the family began building a handicapped-accessible home equipped with technology to provide the girl as good a life as she can have as a quadriplegic. The house should be ready by the holidays.
This young girl can only move her head, but with state of the art technology she will be able to control her wheelchair, elevator, TV and computer with her voice. She will also be able to have round-the-clock nursing care, which is necessary in case her ventilator becomes clogged creating a life-or-death situation.
No amount of money can fully compensate a young girl for the loss of the ability to run and play, to hold hands, to enjoy all the blessing of life that the rest of us take for granted. But the money can allow her dignity, humanity, and the best life that is accessible to her.
And maybe, just maybe, this case will make an impression on businesses that serve alcohol around the country, and in that way prevent other tragedies over the years.
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Cell phone and text messaging distractions in accident litigation
When cell phones and then text messaging came along, a lot of folks just figured they could drive as safely talking on a cell phone as talking to a passenger. I was one of them. A couple of years ago we began to see reports of studies showing that driving while talking on a cell phone was as dangerous as driving drunk and that text messaging while driving is an even bigger distraction.
The recent train wreck in the LA area that killed 25 and injured 130 occurred when the train engineer missed a signal light while text messaging with teenage train enthusiasts. This may be the consciousness raising event that leads to changes in laws and enforcement practices comparable to what we saw a quarter century ago about driving while intoxicated.
Current state laws on this emerging topic include:
* Cell phones: California, Connecticut, New Jersey, New York and Washington, the District of Columbia and the Virgin Islands have banned driving while talking on handheld cell phones.
* Text Messaging: Alaska, Louisiana, Minnesota, New Jersey and Washington have a text messaging ban for all drivers.
* New Drivers: 17 states and the District of Columbia restrict all cell phone use by novice drivers.
* School Bus Drivers: In 16 states and DC, school bus drivers are barred from all cell phone use when passengers are present, except for in emergencies.
* Other rules: Some cities, such as Phoenix and Detroit, have cell phone laws, but nine states have preemption laws that prohibit local jurisdictions from enacting restrictions. Utah and New Hampshire treat cell phone use as a larger distracted driving issue.
My guess is that legislators around the country will soon pass more laws requiring use of hands free devices when talking on cell phones while driving and banning text messaging while driving.
In auto and truck accident litigation, we have become diligent about discovery of cell phone and text messaging records. With increased sophistication about electronic discovery, this will be an an even more important factor in accident litigation.
There are at least three potential uses of cell and text evidence:
1. The defendant's cell phone and text usage while driving may be considered "conscious indifference to consequences" sufficient to support an award of punitive damages, similar to drunk driving.
2. The plaintiff's cell phone usage at the time of the incident may be used as comparative negligence evidence to reduce or eliminate a damages award.
3. If the evidence reveals that a defendant driver was communicating with an employer, or to a customer on the employer's business, then the employer and its insurance policy may be drawn into the case.
Auto accidents due to cell phone distraction countered by new California law
One young driver when asked by the San Jose Mercury News if she would comply with the new law, responded, "Of course not. I'll just drop my phone into my lap when a cop drives by."
The fine is $20 for the first offense and $50 for subsequent convictions. With additional fees, the total fines will cost $75 for a first-time violation and $175 each for subsequent offenses.
A recent study by the Public Policy Institute of California that estimated the hands-free provision could save up to 900 lives per year in California.
A California Highway Patrol spokesman said that said drivers who don't have hands-free devices should not pull over on the freeway shoulder to place or receive calls or text messages. Rather, he said motorists should exit the freeway and park where appropriate. The CHP also discourages citizens from calling 911 to report other motorists holding their cell phones while driving because it will tie up phone lines for emergencies.
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Mississippi Supreme Court hostile to injured citizens
According to an article by Alex Alston of the Jackson Clarion-Ledger, over the past four and one-half years the Mississippi Supreme Court affirmed 100% of defense verdicts in favor of corporations, hospitals, and insurance companies, but overturned 88% of jury verdicts that had been won in trial courts by negligence or fraud.
The U.S. Chamber of Commerce and insurance companies should be ecstatic over this state of affairs. Think of the money it saves the insurance companies not to pay a claim, knowing they are safe with the state Supreme Court.
But the U.S. Chamber of Commerce, a lobbying arm of Big Business which pours millions into judicial campaigns, is still not satisfied. In a recent 37-page report, entitled Lawsuit Climate 2008, the Chamber ranks Mississippi as the 48th worst legal climate in the nation.
Therefore, one can expect the Chamber and its powerful allies to pour millions more into the judicial campaigns of our Supreme Court justices coming up for election in November to close any chance of victory for a poor maimed victim who has successfully worked his way through the judicial system to the Supreme Court. It is only then that these powerful entities will have a complete victory over anyone bold enough to think he has a claim for negligence or fraud.
How can it be that during the last 4 1/2 years powerful corporations, hospitals, and insurance companies have prevailed in the state Supreme Court in nearly every case? Can an injured plaintiff ever be right?
Why is it that in Mississippi and some other states, appellate courts have become so heavily politicized, and now hostile to injured citizens, while Georgia has avoided that fate? One explanation is that trial lawyers in Georgia years ago resisted the temptation to politicize the courts. The judges for the most part remained even-handed, not overly aligned with either side in tort litigation. Then, when those who have funded political assaults on state Supreme Court justices around the country tried to pick off a couple of our Georgia jurists, those very well-funded efforts failed decisively. This year, while there are numerous competitive candidates for an open Court of Appeals seat, there are no challengers to our moderately conservative Supreme Court justices who are up for re-election.
To preserve an independent, impartial judiciary, it is essential that both sides of the "tort wars" avoid excessively politicizing the courts, and maintain open communication between the trial bar and the business community. We must preserve the American ideal that no faction should control the courts in order to assure that everyone has access to a fair hearing.
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Why do some lawyers worry so much about how to enforce their fee liens?
One thing, however, that puzzles me is the frequency with which personal injury lawyers in listervs discuss how to enforce liens for fees and expenses when clients fire them. I certainly can relate to the desire to get paid for one's labor. That's not the issue. Rather, I wonder why they run into this problem so often.
This summer I will mark 31 years in the legal profession. Roughly half of that time I have been primarily involved in representing plaintiffs in tort cases on a contingent fee basis. There have been a couple of clients over the years who left me, a few times when I have "fired" a client when facts came to light that seriously impaired the merits of the case or made me unable to continue with ethical representation of the client. Of several hundred plaintiffs' cases I have handled, I have never had occasion to worry about enforcing a lien.
I can't say why other lawyers have that concern so often. But I can make a few points about why I think I don't.
- Take time on the initial client interview to build the foundation of a mutually trusting relationship. Really listen to the potential client. Show interest in the human being, not just the case. Get the person's life story, not just the story of an accident and an injury. My primary reason for doing that is to gather information that might be useful in telling the client's story to a jury. However, after years of three and four hour initial interviews, I have come to believe that a collateral benefit is laying the foundation for earning trust. I don't waste a client's time with monthly appointments during the life of a case, though I suppose that wouldn't hurt. However, it seems that when we take that time on the front end, we have a lot less problems on the back end of a case.
- Use due diligence in screening cases - thorough initial interview, checking facts, using gut instincts about credibility. Is this person and this case a good investment? If it doesn't feel right, trust instincts and experience, and send the potential client elsewhere.
- When possible, visit with clients in their homes. The primary reason, again, is to gather high quality information to portray the client's good qualities to a jury. However, a collateral benefit is the development of a friendship with the client. Friends don't cheat friends by firing them after they have done the work.
- Structure the fee contract to set a formula for determining a fee if the client fires the lawyer within sight of the promised land, but before an offer is on the table from the defense. If a client is tempted to try to cut out the lawyer who has done all the work to develop a case, such a written formula provides a deterrent against playing such games.
- At appropriate points in the progress of the case, take the time for a face to face meeting to discuss first how things are going for the client, and then the status of the case and decisions that may be required.
- Remember the maxim that pigs get fat but hogs get slaughtered.
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Significant Georgia court decision on municipal and state liability
The wrongful death case arose when a taxicab in which the decednt was riding spun out of control on a wet overpass and collided with a tree. The Court held that the trial court erred in granting summary judgment to Greg Shepard, a Vehicle for Hire Inspector employed by the city of Atlanta, who inspected the taxicab on the day before the deadly accident. Shepard was not immune from liability, because his position as an inspector required him to enforce all state codes; O.C.G.A. § 40-8-74 (e) (1) mandates a minimum tread depth of 2/32 inch for tires on passenger vehicles; the evidence showed that the taxicab had no tread on its rear tires; Shepard was required to check the minimum tread depth on the taxicab’s tires and he was required to complete an inspection checklist before he could pass the taxicab as safe, which he did not do, since he merely wrote pass on the front of the form without checking any of the boxes indicating whether the taxicab’s exterior and interior parts, including the tires, were functioning properly. Since Shepard’s required tasks were simple, absolute and definite, they were ministerial, not discretionary.
The Court also held that the trial court erred in granting the Georgia DOT’s motion to dismiss, based on sovereign immunity, since the plaintiff alleged claims against the DOT for negligent maintenance or design of the roadway where the collision occurred. The plaintiff asserted that the DOT was repeatedly notified that the slope of the road’s shoulder was too great, trees were too close to the road and water accumulated on the road due to inadequate drainage; expert evidence showed that the DOT failed to follow generally accepted design, construction and maintenance practices, with regard to the roadway and adjacent areas. DOT moved for dismissal under OCGA § 50-21-24 (8) and (9), which involve inspection and permitting exceptions, not subsection (10), which involves construction plans or design. However, the Court affirmed the grant of summary judgment to the city of Atlanta on Heller’s nuisance claim, since the city had no notice of a dangerous condition within the meaning of a nuisance; i.e., no evidence showed that taxicabs with insufficient tire tread routinely passed city inspections and were involved in injury causing collisions.
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Don't blame God when people break the rules
Saturday morning, at the request of a patient's family who urgently want to provide for his care needs, I visited an intensive care unit at Grady Memorial Hospital to attempt to interview a man who became a quadriplegic in a recent traffic collision. Laying paralyzed in a bed, breathing through a tube, he was too sedated to respond to a sibling's attempts to wake him. We may have to have a family member appointed by the probate court to handle his affairs. The previous afternoon, I had met with a father whose beautiful 16-year-old daughter went out on a date, the boy who was driving wrapped his car around a telephone pole, she had a bad head injury, and died a few weeks later in the hospital. I don't know if the evidence will ultimately be sufficient for me to do any good for these folks, but I will explore all reasonable options.
The seemingly random cruelty of fate is tangible at such times. When I was in my teens, a popular TV show included each week the "flying fickle finger of fate award." It was presented as comedy then, but too often it is part of tragedy. It seems that nearly everyone I represent has been presented this unwelcome "award."
Sometimes well-meaning people try to say that it was "the Lord's will" or "the Lord took her" when a person was killed or catastrophically injured. As a long-time adult Sunday School teacher, I think that is warped theology. It's wrong to blame God when people break rules and cause tragedies. Hurricanes and tsunamis are acts of God. Truck wrecks are acts of men and of corporations, and they should be held accountable for the harm they cause.
Sometimes we can obtain justice for victims and their families. Other times all we can do is provide the comfort that someone who is knowledgeable cared enough to try. A trial lawyer is called to be more that just a gladiator. We need to remember that highest source of law and of professionalism is a rule of unselfish love, of sincere concern for the highest good for the other person. While we are not grief counselors or psychologists, we need to be able to help folks get through the ordeal of their loss.
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Employer's cell phone call to driver employee may support employer's liability
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Conservative values and tort law
[W]e want to examine some of the principles that have historically undergirded the tort system.The tort system affirms basic human dignity and the sanctity of human life. By requiring a wrongdoer to compensate an injured person for the damage caused by a wrongful act, we affirm the worth, value, and dignity of every member of society. We demonstrate that we take human dignity seriously when, as a society, we guard against encroachments (deliberate or unintentional) by anyone on the dignity or humanity of another. No wrongdoer should be permitted to injure or kill another person with impunity. To hold otherwise undermines society's view of the importance of human dignity and the sanctity of human life.
The tort system promotes responsibility by holding wrongdoers accountable for their actions. Personal accountability is the key to responsible human behavior. We cannot expect people to act in a responsible manner unless we hold them accountable for the consequences of their actions. If we remove accountability for wrongdoing, we encourage people to engage in irresponsible and antisocial behavior. The people who will suffer the most from such behavior will be the weakest and most vulnerable members of our society (i.e., the elderly, the handicapped, and the infirm).
The tort system promotes local control. Through the jury system, people at the local level decide what is reasonable behavior within their own communities. Ordinary citizens, applying a common sense standard of reasonable care, making decisions about acceptable and unacceptable conduct within their community—that is the essence of local government. And, as a result of those decisions, suppliers of goods and services within the marketplace will often modify their own behaviors (i.e., improve health care standards, place guards on dangerous products, protect against discharge of toxic pollutants) without the necessity of yet another costly and intrusive governmental bureaucracy.
The tort system provides for just compensation from wrongdoers and relieves the rest of society of unfair burdens. Fundamental fairness dictates that one who suffers a loss at the hands of a wrongdoer be compensated for the wrong he has suffered. If our system of justice fails to provide just compensation, the victim, or his family, will be inclined to seek personal revenge or retribution. This promotes a spirit of vigilantism and contributes further to the breakdown of social order. Additionally, if the wrongdoer is not required to bear the loss occasioned by his wrongdoing (i.e. medical bills, lost wages, etc.) those losses will have to be borne by the rest of society. When society has to pick up the tab for the losses caused by a wrongdoer, the result is the involuntary redistribution of wealth among persons who are innocent of any wrongdoing. This is just another form of “welfare” which rewards irresponsible behavior and punishes innocent parties.
It should be apparent from the foregoing that the tort system has played an important and historic role in the ordering of civil society by providing all citizens, both weak and strong, the ability to seek justice. That does not mean that the system can't be improved. But to the extent that reforms of the system occur, we should take care to ensure that they are, in fact, improvements. Not all change equates with progress. To quote the Hippocratic oath, we must ensure that we first do no harm.
Regarding attacks on the jury system, CJS says:
I couldn't have said it better myself. For too long the corporate elitists have succeeded in hijacking conservatism and using it to defeat accountability for harm they do to ordinary people. Enough is enough.Our Founding Fathers recognized that the collective judgment of ordinary people, while not perfect, is the most reliable means devised by man of resolving conflicts in America's courtrooms. Here are some of the advantages of the jury system:
• A jury is made up of local citizens, men and women from the community who are in the best position to evaluate how the conduct at issue compares with the standards of the community in which they live.
• The composition of the jury is not known in advance of the trial, thus reducing the likelihood of undue influence being exerted on the jurors from either side.
• Jurors cannot be paid by either side. They can only consider evidence that meets a certain threshold of reliability and can only consider testimony given under oath. They cannot be approached by one party outside the presence of the other party. (Compare this with the legislative process, where access to the decision maker often depends on contributions having been made by an interested party; testimony is frequently not given under oath; no reliability threshold for evidence is required; and interested parties usually lobby the decision maker outside the presence of the other interested parties).
• Jurors commonly complete their service in just a few days or weeks and then return to their private lives. Judges are often on the bench for many years, and in some cases for life, leaving them vulnerable to ongoing efforts to influence their decisions.
• It may be easy to find one errant adjudicator who is out of touch with their community (such as a judge). It's much harder to find 12 ordinary citizens who will come to an outrageous result, and even if they do, there are mechanisms in place to correct such a result.
In spite of all of these advantages, there is a widespread effort underway to take away our right to a trial by jury. Those pushing this wrong-headed agenda claim that it will reduce the costs of healthcare and eliminate “frivolous lawsuits.” But what they are really saying is, “We don't trust our fellow citizens to resolve disputes. Lobbyists and politicians know better.” And truth be told, the agenda behind the agenda has less to do with lowering the cost of healthcare and eliminating frivolous suits and more to do with immunizing wrongdoers from the consequences of their behavior. The question is, will we trust our fellow citizens along with the Founders and a thousand of years of history, or will we trust professional politicians and the lobbying corps to look out for our best interests?
Scrapping the jury system will not bring about the lofty goals the tort “reformers” claim to be seeking. The only sure-fire result of such action is that the outcome of disputes will be decided in advance by politicians and the lobbyists of special interest groups that influence them. Is that justice?
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Court of Appeals restricts use of medical narratives at trial
This decision is both good and bad for injury victims. The statute was passed to make it less expensive to introduce medical evidence at trial. When medical reports are written in clear prose, narrative reports help establish the plaintiff's case. We generally use only the ones that are reasonably understandable reports to fill in gaps between medical depositions. Some lawyers like to use them as the entire medical proof in a smaller case. On the other hand, defense lawyers like to dig up old medical reports and introduce office notes as medical narratives. So this decision cuts both ways.
Frankly, if I have to pay a doctor to write a narrative, I'd just as soon pay a few hundred dollars more and take the doctor's deposition on video for use at trial, with the doctor explaining everything with some visual aids.
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$2,345,940.17 verdict sets new high in Gordon County, GA
Fri., 3/9/07, Calhoun, GA.
In a scene reminiscent of the 1982 Paul Newman movie, "The Verdict," the jury after three hours of deliberation Thursday afternoon sent a note to the judge asking if they were limited by the amount the plaintiff asked for. In closing argument I had asked for a verdict of approximately $1.2 million for our client's permanently disabling leg injury. When we got that question from the jury, my first thought was that I don't drink anywhere near enough to fit the Paul Newman role in the movie.
Today we won a $2,345,940.17 jury verdict against a Pennsylvania trucking company in the Superior Court of Gordon County, Calhoun, Georgia. The verdict was broken down as follows: compensatory damages: $1,742,845.70, attorney fees due to bad faith in the transaction, $580,948.57, expenses of litigation $ 22,145.90. Medical expenses were $112,228. The highest offer from defendant's insurance company before trial was $125,000, going up to $400,000 on third day of trial. This was nearly three times the highest previous verdict in the history of Gordon County.
The specificity of the figures, down to the penny, helps to refute any allegation that it was a random verdict by a "runaway jury." These jurors were all deeply conservative northwest Georgia folks who were determined to follow the law and the facts wherever they led, and to do the right thing.
It was a very good week.
Johnson v. Clarendon National Insurance Company, American Trans-Freight, LLC, ATF Trucking, LLC, ATF Logistics, LLC, and Robert W. Carnley, CIVIL ACTION FILE NO. 04-CV-43532
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Proposed legislation on wireless communication use while driving
(a) For purposes of this Code section, the term:
(1) 'Device' means a cellular, hands-free, or mobile telephone, wireless communication device, personal digital assistant, radio, or citizens band radio; andAll you folks who check and send email while you drive down the expressway at 80 mph, take note. However, this bill looks overly broad. It creates a rebuttable presumption of distraction if a person just has the radio on listening to NPR (some folks in the legislature would probably support a rule of negligence per se for anyone who listens to NPR), there is no such presumption created when a driver is putting on makeup, eating a sloppy burrito, reading the newspaper, changing clothes, etc. I respect Rep. Oliver, but this proposal needs more work.
(2) 'Engaged in a call' means talking or listening via a device and shall include holding such device to activate, deactivate, or initiate a function of such device.
(b) A driver shall exercise due care in operating a motor vehicle on the highways, roadways, and streets of this state and shall not engage in any actions which shall distract such driver from the safe operation of such vehicle
(c)(1) Except as provided in subsection (d) of this Code section, any driver who shall knowingly:
(A) Operate a motor vehicle which is involved in an accident resulting in death or bodily injury of any person or in property damage; and
(B) Be engaged in a call at the time of the accident shall be guilty of driving while distracted.
(2) The inference that the driver of such motor vehicle was driving while distracted may be rebutted by evidence tending to show that engaging in a call at the time of the accident did not contribute to the accident.
(d) Subsection (c) of this Code section shall not apply to:
(1) Engaging in a call for the sole purpose of communicating with any of the following regarding an emergency situation: an emergency response operator; a hospital, physician?s office, or health clinic; an ambulance company or corps; a fire department; or a police department; and
(2) Any of the following persons while in the performance of their official duties: a law enforcement officer; a member of a fire department; or the operator of an emergency vehicle designated as such under Code Section 40-8-92.
(e)(1) Any person convicted of a violation of subsection (b) of this Code section shall be guilty of a misdemeanor punishable as provided in Code Section 40-6-1.
(2) Any person convicted of a violation of subsection (c) of this Code section shall be guilty of a misdemeanor punishable by a fine not to exceed $500.00 and assessment of points pursuant to Code Section 40-5-57.
Continue Reading Questions & comments 1
Parental right to sue for wrongful death of child may be forfeited
We have a case in which we represent the estate and siblings of a young man who was killed by a drunk driver. Their father had more DUI's than anyone in the history of Georgia on spent most of the deceased son's life in prison including a conviction for DUI/vehicular homicide. On one of his times out of prison he physically abused the son. A juvenile court made a judicial finding of physical abuse and gave custody of the kid to an adult brother. Of course, when the young man was killed several years later by a drunk driver, the father who was a DUI recidivist promptly filed suit for wrongful death. Representing the siblings of the decedent -- the other adult offspring of the abusive drunk -- I filed a petition to determine heirship. A Superior Court judge agreed with our position that the father forfeited parental rights by cruel treatment when he was adjudicated to be guilty of physical abuse, did not appeal, and did not take advantage of the opportunity for family reunification. We also had arguments about abandonment, but there was some small shred of evidence of de minimis support that made that a jury issue. Well, we won summary judgment in the Superior Court and the father appealed to the Georgia Court of Appeals.
Now in another case, the Court of Appeals has adopted virtually the same arguments we used in our appellate brief in another case, finding that another deadbeat dad forfeited his parental rights, including the right to recover for wrongful death of the child, through abandonment. In Baker v. Sweat, A06A0892 (decided October 13, 2006), the administrator and siblings of a deceased adult were ready to settle with the insurance company for the wrongful death with deadbeat dad showed up claiming all the money. Much as in our case, there was a long, sad litany of the sperm donor's failure to support the child or engage in the child's life. The Court held:
If it is established that a parent has lost his or her parental power under OCGA § 19-7-1 (b), the parent’s right to share in the proceeds of a claim for the wrongful death of his or her child is also forfeited.OCGA 19-7-1 (b) provides for loss of parental rights through either abandonment or cruel treatment. Since anything can go wrong at any time, we are keeping our fingers crossed that we will get the same result in our case.
Continue Reading Questions & comments 1
"Super Lawyer" listing still OK in Georgia
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.
Continue Reading Questions & comments 1
Medicaid liens limited to medical expense portion of recovery
On May 1, in the case of Arkansas Dept. of Human Services v. Ahlborn, the U.S. Supreme Court held a State's Medicaid department will be limited to reimbursement from only that portion of a judgment or settlement that represents payment for medical expenses. States are now prohibited from being reimbursed for Medicaid costs from settlement proceeds that were intended to cover items other medical expenses such as pain and suffering and wage loss. The US Supreme Court held that the federal anti-lien statute prevents States from attaching or encumbering the non-medical portion of the settlement or judgment.
In the slip opinion released May 1st, the Court stated,
"[t]here is no question that the State can require an assignment of the right, or chose in action, to receive payments for medical care. So much is expressly provided for by §§1396a(a)(25) and 1396k(a). And we assume, as do the parties, that the State can also demand as a condition of Medicaid eligibility that the recipient "assign" in advance any payments that may constitute reimbursement for medical costs. To the extent that the forced assignment is expressly authorized by the terms of §§1396a(a)(25) and 1396k(a), it is an exception to the anti-lien provision. See Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U. S. 371, 383-385, and n. 7 (2003). But that does not mean that the State can force an assignment of, or place a lien on, any other portion of Ahlborn's property. As explained above, the exception carved out by §§1396a(a)(25) and 1396k(a) is limited to payments for medical care. Beyond that, the anti-lien provision applies."
So what does this mean? In the U.S. Supreme Court's own words, States may not demand reimbursement from portions of the settlement allocated or allocable to non-medical damages; instead, States are given only a priority disbursement from the medical expenses portion alone.
One obvious question is the potential for the settling parties to allocate the recovery in a way that cuts out the Medicaid interest. The Court discussed this, stating that "the risk that parties to a tort suit will allocate away the State's interest can be avoided by either obtaining the State's advance agreement to an allocation or, if necessary, by submitting the matter to a court for decision." We have had experience hammering out settlements in which the settling parties submitted orders for the trial court to enter on stipulated facts approving an allocation that severely cut the Medicaid recovery basically along the lines approved by the Supreme Court on Monday.
Some folks are pushing the use of Qualified Settlement Funds (QSF) to create a breathing space between execution of a settlement with the defendant and possible purchase of a structured settlement annuity and/or creation of a special needs trust.
I also wonder whether this ruling might in any way foreshadow a future ruling on ERISA reimbursment claims. Stay tuned.
Continue Reading Questions & comments 1"Fireman's Rule" applies to EMT's in Georgia
The Fireman's Rule in Georgia provides that a public safety officer may not recover for the negligence that caused the situation to which he responded. It is based on a public policy of the State of Georgia that a public safety employee cannot recover for injuries caused by the very negligence that initially required his presence in an official capacity and subjected the public safety employee to harm. That public policy precludes recovery against an individual whose negligence created a need for the presence of the public safety employee at the scene in his professional capacity. The first policy reasons behind this rule is the assumption of risk doctrine.
[I]t is the nature of the job undertaken for the employee to be subjected to risks of injury created by people he or she is called upon to serve. By accepting that job the employee assumes a general or primary risk of injury. . . . The justification for imposing this general or primary risk is that the employee is paid to encounter it and trained to cope with it.
Second, the courts have held that it would be too burdensome to charge all who negligently cause a need for emergency services with the injuries suffered by the first responders trained to come and deal with the effects of those inevitable, although negligently created, occurrences. Citizens should be encouraged and not in any way discouraged from relying on those public employees who have been specially trained and paid to deal with these hazards.
In Kapherr v. MFG Chemical Inc., Case # A06A0184, decided December 29, 2005, the Georgia Court of Appeals held that this "Fireman's Rule" applies to emergency medical technicians.
Continue Reading Questions & comments 0Punitive damages against drunk drivers
Since my days as a young prosecutor, I have observed the mayhem wrought by drunk drivers. Therefore, I am pleased to sponsor the updated web site for Mothers Against Drunk Driving (MADD) Georgia chapter.
When drunk drivers cause wrecks, Georgia jurors are often ready to send a message that such conduct is unacceptable, even if the actual injury is relatively small. Such verdicts are routinely affirmed by our appellate courts. In Craig v. Holsey, 264 Ga. App. 344 (2004), the jury returned a verdict of $8,801.40 in actual damages and $200,000.00 in punitive damages. On appeal, the large punitive damages award was upheld as being not grossly excessive. Id. at 350. In another case, based upon medical bills of only $643.00, the jury returned a verdict for actual damages of $3,000.00 and for punitive damages in the amount of $300,000.00. Langlois v. Wolford, 246 Ga. App. 209 (2000).
Generally, if a drunk driver who causes a wreck has a record of other DUI incidents, there is a high potential for a punitive verdict. If a thorough examination of his life reveals no other incidents, a jury is somewhat less likely to return a high punitive verdict. Whenever there is sufficient insurance coverage or recoverable assets to make a large verdict collectable, it is worthwhile to thoroughly investigate the drunk driver's prior and subsequent record. At times we have checked records in every locality where a drunk driver has lived, attended college, worked or vacationed to determine whether there were DUI charges even if they were dismissed or plead down to a lesser charge.
Continue Reading Questions & comments 0State Tort Claims Act -- Supreme Court allows some procedural grace
The Georgia State Tort Claims Act includes a minefield of procedural requirements for presuit notice of claim and service of claims and suits upon various officials. However, a recent decision written by Supreme Court Chief Justice Leah Sears avoids draconian literalism in at least one of those procedural requirements. It is so technical, and the Department of Administrative Services is so painstaking in flyspecking cases for technical defects, we never handle a tort claim against a state agency without not just rereading the statute but practically diagraming the sentences in the applicable sections of the statute.
OCGA § 50-21-35 states:
In all civil actions brought against the state under this article, to perfect service of process the plaintiff must both: (1) cause process to be served upon the chief executive officer of the state government entity involved at his or her usual office address; and (2) cause process to be served upon the director of the Risk Management Division of the Department of Administrative Services at his or her usual address. The time for the state to file an answer shall not begin until process has been served upon all required persons. A copy of the complaint, showing the date of filing, shall also be mailed to the Attorney General at his or her usual office address, by certified mail or statutory overnight delivery, return receipt requested and there shall be attached to the complaint a certificate that this requirement has been met.
In Camp v. Coweta County, S05G0892, decided January 17, 2006, the Supreme Court held:
Because the statute clearly differentiates between the mailing requirement and the requirements for service of process, we hold that mailing a copy of the complaint to the Attorney General is not necessary to perfect service. Also, because no statutory authority prohibits a late mailing or the filing of an amended complaint, we hold that a plaintiff should be allowed to cure a defect in his compliance with the mailing requirement so long as the delay in providing a copy of the complaint to the Attorney General has not caused prejudice to the State.
This is a sensible decision allowing the injury victims a modicum of procedural grace. However, we will still diagram the sentences in the statute every time we handle one of these cases.
Continue Reading Questions & comments 0Sexual harrassment ruling illustrates difficulty of such cases
Yesterday the Georgia Court of Appeals ruled for the defense in a sexual harrassment tort suit, rejecting the theories that the employer had ratified the fellow employee's inappropriate advances, as well as claims against the employer based on theories of negligence and intentional infliction of emotional distress. See the full text below.
DOT may be liable for death caused by drop-off at edge of pavement
On 11/8/05, the Georgia Court of Appeals reversed an order of summary judgment in favor of the Georgia Department of Transportation in a case where there was circumstantial evidence that a young driver's wheels had dropped off the edge of the pavement, causing the driver to lose control and fatally strike a tree. The court held there was a genuine issue of material fact regarding whether drop-off on shoulder of road caused driver to lose control of her car, precluding summary judgment in parents' suit against DOT for wrongful death of passenger killed in car-tree collision.
Gas station owner had superior knowledge of tripping hazard of non-retractable gas hoses
The Georgia Court of Appeals recently upheld a trial court decision to deny summary judgment in a premises liability case where a customer tripped over gasoline hoses at a convenience store gas station. The defendant had superior knowledge that the length of the non-retractable hoses attached to its gasoline pumps could create a tripping hazard to its customers.
Rozy Investments Inc. v. Bristow, below.
Continue Reading Questions & comments 0Premises liability - Tennessee adopts "mode of operation" doctrine in premises cases
Last year, the Tenneessee Supreme Court, in Blair v. West Town Mall, adopted the "mode of operation" doctrine in premises liability cases, holding that "that a premises owner had constructive notice of the presence of a dangerous condition by showing a pattern of conduct, a recurring incident, or a general or continuing condition indicating the dangerous condition's existence." (Thanks to John Day for pointing this out.)
The "mode of operation" doctrine is particularly applicable in cases involving retail chains with virtually identical operations and hazards occurring in thousands of locations.
Although the Tennessee court cited only Tennessee precedents, a 1967 Georgia case has been cited by courts in several other states as precedent for the evolving principle that a store's "mode of operation" can fulfill the superior knowledge or constructive notice requirement in a premises liability case. The seminal case on this point is Colonial Stores, Inc. v. Donovan, 115 Ga. App. 330, 154 S.E.2d 659 (1967), which addressed hazards created by the manner of displaying merchandise in a retail store.
A person who maintains a place of business to sell goods or services owes a duty to a customer of using ordinary care to keep the premises in a safe condition [cit.] and in the exercise of this duty the merchandise must be so placed as not to cause injury to a customer exercising ordinary care. [cit.] A storekeeper who balances merchandise on display in a precarious manner (or allows another to so arrange a display) should anticipate that slight force, not sufficient ordinarily to suggest to the actor who does not know of the peril that injury will result, may be sufficient to cause injury, and the storekeeper is not relieved of the consequences of this negligence by an intervening act which he should have anticipated. [cit.] Constructive knowledge of a defect, i.e., that the defendant ought to have known of the defect in the exercise of ordinary care, is sufficient to charge the defendant with liability for injuries caused by the defect. [cit.] Ordinarily, whether the owner or occupant of land exercises ordinary care in keeping premises in a safe condition, upon which an invitee goes and is injured, whether the invitee could have avoided injury in the exercise of ordinary care, or whether both were negligent in some degree, as the proximate cause of an injury, or the absence of any negligence, are questions for jury determination, which the court will not decide as a matter of law on demurrer except as to acts declared by law to be negligence, or palpable and indisputable cases where reasonable minds cannot differ as to the conclusion to be reached." 115 Ga. App. at 331-32 (emphasis supplied)
Citing Donovan, in Keaton v. A.B.C. Drug Co., 266 Ga. 385, 387, 467 S.E.2d 558, 561 (1996), the Georgia Supreme Court affirmed a reversal of summary judgment for the defendant. The Court shifted the emphasis from an immediate spill to the merchant's manner of displaying merchandise so as to create the likelihood that a spill would occur, holding that the merchant had constructive knowledge of a hazard, superior to the knowledge of the plaintiff, under the following circumstances.
The jury was authorized to find that by placing a caustic substance contained in a package without some sort of leakage preventor, such as a protective wrap, at a level above the eyes of an average adult, ABC should have anticipated that in the event of a leakage, injury would result. [cit.] Further, by placing the bleach at such a level, ABC created a high risk of injury from spilling bleach by virtue of a loose cap, and created an impediment to a person's ability to exercise caution by checking to see if the cap was loose. Clearly, had ABC placed the bleach at a level significantly below the eyes of an average adult, the risk of injury is different in type and scope from the risks presented when the bleach is placed at a higher level. Also, the ability of a plaintiff to avoid injury by exercising caution for his or her own safety is substantially heightened if the bleach is placed at a lower level." 266 Ga. at 387.
In Rhodes v. K-Mart Corp., 240 Ga. App. 57, 522 S.E.2d 563 (1999), the court reversed summary judgment for the defendant, holding that "a jury issue was created as to whether K-Mart should have anticipated that placing a previously opened box containing a fan on a high shelf would cause injury. A jury issue also exists as to whether K-Mart should have been aware of the hazardous condition." 240 Ga. App. at 59.
In Wallace v. Sears, Roebuck & Co., 196 Ga. App. 221, 396 S.E.2d 41, (1990), the Court of Appeals reversed summary judgment, holding that "the premises were not 'otherwise safe' because appellee itself had created the possibility of misuse of its skateboards by displaying them in such a manner as to give children ready access to them." 196 Ga. App. at 222 (emphasis supplied). Similarly, in Cox v. K-Mart Enterprises of Georgia, Inc., 136 Ga. App. 453, 221 S.E.2d 661 (1975), the Court reversed summary judgment, citing Donovan as authority for the principle that a "person who maintains a place of business to sell goods or services owes a duty to a customer of using ordinary care to keep the premises in a safe condition . . . and in the exercise of this duty the merchandise must be so placed as not to cause injury to a customer exercising ordinary care." 136 Ga. App. at 454.
In 2002, the Georgia Court of Appeals reversed summary judgment in a static defect fall case, in which merchandise was displayed by an unprotected ramp and ledge. In Myers v. Harris, 257 Ga. App. 286, 570 S.E.2d 600 (2002), the Court held, with regard to the store operator, that "there is a question of fact as to whether the configuration of the merchandise display by Son-Rise was such that the injury sustained was proximately caused by its negligence and whether Myers exercised reasonable care for her own safety." 257 Ga. App. at 288. (emphasis supplied)
Also in 2002, in Wal-Mart falling merchandise case, the Connecticut Appellate Court cited Georgia's Donovan case as authority for proposition that "[w]hether a storekeeper has displayed merchandise in an unsafe manner such that injury to customers is foreseeable is for the fact finder to determine and is to be answered by considering all of the surrounding circumstances." Meek v. Wal-Mart Stores, Inc., 72 Conn. App. 467, 476, 806 A.2d 546, 555 (2002). The Court in Meek further articulated the "mode of operation" theory, holding that "[i]njuries also may result indirectly from a proprietor's defective or negligent display of merchandise that nonetheless are wholly to be expected from the store's mode of operation and may be taken into account by the fact finder when it considers whether the method of display was unsafe." 806 A.2d at 556. (emphasis supplied)
The Michigan Court of Appeals cited Donovan in Osiecki v. Wal-mart Stores, 1997 Mich. App. LEXIS 2131 (Mich. App. 1997), as authority for the proposition that
[A] rational trier of fact could conclude that defendant breached its duty of due care for business invitees by displaying merchandise in such a precariously balanced manner that slight force, not sufficient ordinarily to suggest the existence of a hazard to a customer unaware of the peril, may be sufficient to cause injury, particularly where the storekeeper must anticipate that, in a self-serve retail operation, application of such force by customers is not only foreseeable but intended by the retailer.
The Donovan doctrine has been further developed in "negligent activity" or "mode of operation" cases arising in courts throughout the United States. The Florida Supreme Court concisely summarized the rule as follows:
[T]he negligent mode of operation theory merely recognizes the common-sense proposition of negligence law that the duty of care required under the circumstances may consist of taking reasonable precautions so as to minimize or eliminate the likelihood of a dangerous condition arising in the first instance. Markowitz v. Helen Homes, 826 So. 2d 256, 260 (Fla. 2002)
In Chiara v. Fry's Food Stores of Arizona, Inc., 152 Ariz. 398, 733 P.2d 283 (1987), the Arizona Supreme Court held, the "'mode-of-operation' rule looks to a business's choice of a particular mode of operation and not events surrounding the plaintiff's accident . . . [P]roof of a particular mode-of-operation simply substitutes for the traditional elements of a prima facie case -- the existence of a dangerous condition and notice of a dangerous condition."
In another Wal-Mart case, the Hawaii Supreme Court approved the "mode of operation" doctrine as a "logical extension of the traditional rule of premises liability, " holding
where a plaintiff is able to demonstrate that the business proprietor adopted a marketing method or mode of operation in which a dangerous condition is reasonably foreseeable and the proprietor fails to take reasonable action to discover and remove the dangerous condition, the injured party may recover without showing actual notice or constructive knowledge of the specific instrumentality of the accident. Gump v. Wal-Mart Stores, Inc., 93 Haw. 417, 420-21, 5 P.3d 407, 410-11 (2000).Continue Reading Questions & comments 0
Verdict of "zero damages" inadequate as matter of law
Plaintiff was entitled to a new trial on damages in his wrongful death action against the defendant doctor after his child was delivered stillborn, since the jury's award of zero damages after returning a verdict in favor of the plaintiff and his wife was contrary to the law and inconsistent with the evidence. See Court of Appeals opinion below.
Economic efficiency of the common law of torts
Richard S. Markovits, a professor at the University of Texas Law School, has recently published an interesting but academically dense article, "Liberalism and Tort Law: On the Content and Economic Efficiency of a Liberal Common Law of Torts." While I wish he hadn't used the political perjorative "L word" ("liberal"), I'll assume he intended the first dictionary definition: "Not limited to or by established, traditional, orthodox, or authoritarian attitudes, views, or dogmas; free from bigotry." (I don't normally spend time perusing such theoretical articles, but noticed this one in abstract on the Legal Theory Blog.)
Continue Reading Questions & comments 0Settlement planning aids
Patrick Hindert over at his blog Beyond Structured Settlements has an interesting post that lists some recommended articles and resources relating to personal injury settlement planning. Among these are:
- Getting To Yes: Helping Reluctant Clients See The Benefits Of Settlement, Elaine McArdle, Lawyers Weekly USA (11/2004) offers up tips on bringing clients around to settlement. As the article discusses, some clients simply need time to accept that settlement might be optimal; for others, an explanation of financial benefits or talk with an impartial third party like a mediator or another lawyer may work.
-- Database of judicial decisions on expert testimony, available at reasonable prices, via the "Daubert Tracker" at mdexonline.com .
-- CrossExam.com database to review an expert's deposition transcripts from prior litigation.
Clarifying "proximate cause" in Georgia tort jury instructions
Two cases decided in November 2004 help to clarify the often befuddling concept legal doctrine of "proximate cause" in Georgia jury instructions. In John Crane Inc. v. Jones, 278 Ga. 747, 604 S.E.2d 822 (2004), the Supreme Court of Georgia held that it is error to charge that each of multiple defendants must have been a "substantial contributing factor" in causation, as any contributing factor is sufficient. Similarly, in Thompson v. Thompson, 278 Ga. 752, 605 S.E.2d 30 (2004), the court held that it was reversible error to use the "dominant cause" phrase to explain proximate cause.
These decisions are significant both in simplifying the often confusing issue of proximate cause for jurors, and perhaps in leading to clarification of jury instructions generally.
Continue Reading Questions & comments 0What is the net impact of caps on noneconomic damages?
According to an article in the New York Times on 3/6/05, lawyers in states with caps on noneconomic damages have been largely successful in recasting damages to fit the available categories. The article is titled "Go Ahead. Test a Lawyer's Ingenuity. Try to Limit Damages." It cites a new study by Catherine M. Sharkey, a law professor at Columbia, to be published in the New York University Law Review in May. Prof. Sharkey analyzed jury verdicts in 22 states in 1992, 1996 and 2001. It did not consider cases settled out of court. It found that the median compensatory award in states with caps on damages was $324,000, compared with $387,000 elsewhere - figures that Professor Sharkey found were roughly equivalent after the data was adjusted for variables like the kind and number of plaintiffs and defendants, the percentages of local doctors and lawyers, and jurors' wealth and ages.
Continue Reading Questions & comments 0Yost Deja Vu; wisdom of "no first use" policy on offers of judgment
Nineteen years ago, the Georgia Supreme Court decided the case of Yost v. Torok, 256 Ga. 92, 344 S.E.2d 414 (1986), holding that any party who brings or defends an action, or any part thereof, that lacks substantial justification or is imposed for delay or harassment, could be liable for a common law tort of abusive litigation to the opposing party who suffers damage thereby, as a counterlaim in the same civil action.
Continue Reading Questions & comments 0What is tort law?
Injury law is primarily tort law. So what is a tort? (No, it's not a French pastry.)
A Georgia statute defines a "tort" as "the unlawful violation of a private legal right other than a mere breach of contract, express or implied," and states that "a tort may also be the violation of a public duty if, as a result of the violation, some special damage accrues to the individual."
Every tort claim must include four basic elements:
Continue Reading Questions & comments 0
