Atlanta Injury Law Blog

It's not Westlaw or Lexis, but there's a new source of free legal research -- the Public Library of Law. I wouldn't rely on it for anything complicated, but it's OK for a quick, free check of something relatively simple.

The Court of Appeals last week restricted the use of medical narrative reports in injury cases, holding it was reversible error to admit a neurologist’s unedited notes from the patient's medical visits. The notes did not comply with O.C.G.A. § 24-3-18’s requirements for medical narratives, because they contained unexplained medical terms and test results and were not organized or structured to make them more readily understandable to the jury.

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.

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

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.

One advantage of serving on the State Bar Board of Governors is early access to proposed rules changes. The latest is the proposed new Georgia Rules of Evidence, prepared over the past few years by the State Bar's Evidence Study Committee. It is generally based on the Federal Rules of Evidence. Numerous other sections are are carried forward from current Georgia law. Some the more poorly conceived details regarding the Daubert standards for admission of expert testmony contained in the 2005 tort reform legislation are omitted. I have not yet completed a detailed review of the entire document, but on first impression it looks like an improvement on both Georgia and Federal evidence law. It appears to be on track for passage in the 2006 session of the General Assembly. More later.

Under state and federal RICO (Racketeer Influenced & Criminal Organizations), civil liability is based upon proof of criminal predicate acts, and provides for an award of treble damages for a person injured thereby. Georgia's RICO statute defines the predicate as an "interrelated pattern of criminal activity motivated by or the effect of which is pecuniary gain or economic or physical threat or injury." I won't go into the complexities of what criminal offenses qualify as predicate acts. However, the criminal predicate acts need not have been prosecuted as crimes. Of course, the burden of proof in a criminal case is "beyond a reasonable doubt."

Now -- in a notable win for my good friend Bill Stone of Baxley -- the Georgia Supreme Court has clarified that in a civil RICO case, the burden of proof is "preponderance of evidence" (greater weight of the evidence) rather than the higher standard of "clear and convincing evidence," the standard for award of punitive damages in Georgia, which the Court of Appeals had applied. See the court's opinion below.

New Zealand citizens brought suit in Fulton County (Atlanta) for wrongful death of a family member in a plane crash in Australia. The defendants are a US manufacturer based in Kansas and a used aircraft dealer based in Georgia. The trial court dismissed the suit on the ground of forum non conveniens prior to enactment of Georgia's forum non conveniens statute in 2004. While the appeal was pending, the new statute (OCGA § 9-10-31.1) was enacted. The Court of Appeals held that the new statute applies to this pending case, vacated the order, and remanded it to the trial court to make findings of fact and conclusions of law regarding the factors enumerated in the statute. See full text of decision 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.

A bill offered by a Macon legislator would strip the Georgia Supreme Court of the authority to set educational qualifications for Bar applicants who are already admitted in another state. Paul Kilpatrick, speaking for the Board of Bar Examiners, said that under the bill, "Georgia's standard would be reduced to the lowest standard in the United States."

State Rep. Bobby Franklin, a Macon businessman sponsored HB 150 at the request of Sara Larios, a rather attractive Rules Committee aide who Franklin said prodded him to introduce the bill. Larios said she passed the California bar exam but could not take the exam in Georgia because she graduated from a non-accredited online law school. She later applied for a waiver to take the Georgia test but was turned down. See Fulton County Daily Report article (subscription required).

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.

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.

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.

In recent years there have been movements to make jurors more actively engaged in the trial prior to deliberations at the end. A State Court judge in DeKalb County experimented with allowing jurors to discuss the case during the trial and to propose questions for witnesses. The Court of Appeals disapproved of those innovations and reversed.