August 2006

One of my long-term habits may be at least partially vindicated.  An article in today’s New York Times suggests that coffee may be beneficial for health.  Researchers have found strong evidence that coffee substantially reduces the risk of diabetes, heart disease and cirrhosis of the liver.

Larger quantities of coffee seem to be especially helpful in diabetes prevention. In a report that combined statistical data from many studies, researchers found that people who drank four to six cups of coffee a day had a 28 percent reduced risk compared with people who drank two or fewer. Those who drank

The latest published study on truck driver fatigue hazards, conducted by researchers at the University of Pennsylvania School of Medicine, was published in todays’ issue (8/15/06) of the American Journal of Respiratory and Critical Care MedicineDr. Allan Pack who headed the study said the tired truck drivers had impaired performance similar to that of drivers who are legally drunk.

Penn researchers examined 406 truck drivers and found that those who routinely slept less than five hours a night were likely to fare poorly on tests designed to measure sleepiness, attention and reaction time and steering ability.  Drivers with severe sleep apnea, a medical condition that causes a poor quality of sleep, also were sleepy and had performance impairment.

Occasionally we encounter situations where a corporate defendant claims that the employee who was driving the business’s truck was on some personal mission, and therefore not in the course and scope of employment.  It is always important to develop the evidence of business related purposes that are somehow related to the trip, as well as any evidence that the employer knew of the employee’s unsafe driving in the past.  In Remediation Resources Inc. v. Balding, decided August 9, 2006, the employee stated that his real purpose in traveling to Statesboro was to eat and that his intent to pick up work supplies was secondary, he also testified that he definitely planned to pick up some work supplies. The Court of Appeals held that there was therefore a jury question whether he was within the scope and purpose of employment at the time of the wreck.  The Court also held that a jury issue remained on Balding’s claim for negligent training and supervision, since Findley received two speeding tickets and was involved in two minor car accidents during the 22 years in which he drove for companies owned by the same people, Remediation had no policy manuals to govern employee conduct while driving a company vehicle and Remediation did not keep driver history or qualification files for any employees.

See the full text below.

It’s old news to personal injury litigation specialists but often a surprise to others that, under Georgia law, filing a bankruptcy petition without disclosing the existence of a personal injury claim may bar the injury claim.  It’s called the rule of judicial estoppel, and the consequences can be extremely harsh. The courts have softened the harsh application of the rule in recent years by allowing folks to reopen and amend their bankruptcy cases in order to add the injury claims as assets of the bankrupt estates. When that is done the bankruptcy trustee then retains the personal injury attorney to represent the interests of the creditors as well as the injury victim.

Zahabiuon v. Automotive Finance Corp, decided August 10, 2006, involved a tort claim not for personal injury but for conversion of a vehicle that was in a shop for repairs and wrongfully included in repossession of a large number of vehicles at the dealership.  The car owner subsequently filed a bankruptcy petition on which this claim was not listed as an asset, and did not amend the bankruptcy petition to cure the omission.  Consequently, his tort claim was lost due to judicial estoppel.  See the text of the decision below.

Once again the Georgia Court of Appeals has given the bar an object lesson about the importance of a complete record on appeal.  In Hattaway v. Conner, decided August 8, 2006, the cental issue of the appeal was whether the the trial court was correct in its determination that language in the insurance policy’s application made it readily apparent that Question 56 related to partial losses.  However, the insurance application was not included in the record on appeal, so the Court of Appeals had to presume that the trial court was correct.

Folks, it’s tedious to review the record before the trial court clerk transmits it to the Court of Appeals or Supreme Court. But we can’t necessarily count on clerks to get it right.  Review of the record is a necessity.

See the text of the decision below.

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.

On July 31, President Bush announced his intention to nominate Susan Dudley as Administrator of the Office of Information and Regulatory Affairs at the Office of Management and Budget. Through an obscure executive order which has never been authorized by Congress, all federal regulations deemed economically or otherwise significant, as determined by OIRA, require the approval of the agency’s administrator. Ms. Dudley has for several years directed the Regulatory Studies Program of the Mercatus Center at George Mason University, where she has been a leading critic of most government regulations.  As political theory, that position is fairly winsome to those of us who are temperamentally conservative.  Where the rubber meets the road, however, public safety may be adversely affected.  In the context of trucking safety, Ms. Dudley wrote in a report to Congress criticizing the revision of hours of service rules as follows: "The focus of this rule on reducing driver fatigue is not based on reliable evidence that fatigue is a significant contributor to fatal accidents."  She went on to make some other, more reasonable observations about the fallibility of the proposed rule.  However, the thrust of her opinion appeared to be that fatigue doesn’t cause fatal wrecks, so truck drivers’ hours of service should not be regulated.

For those of us who deal with the carnage caused by truckers who illegally try to drive 20 hours per day, that seems patently absurd.  As a practical matter you have to have some rules to protect public safety, protect all truckers from unreasonable demands of employers to drive unsafe hours, and to protect responsible truckers from unfair competition from those who would push on hours beyond the point of impairment due to fatigue.

Last September in Texas, a bus carrying nursing home residents escaping from Hurricane Rita caught fire and burned, killing 23 passengers.  On August 8 -9 in Washington, sparked into action by this tragedy, the National Transportation Safety Board will hold a public hearing on bus safety.  During the hearing, accident investigators will reveal the first details of their nearly yearlong investigation into how flames from the bus’s right rear wheel spread to the passenger cabin, causing medical oxygen bottles to burst and killing more than half the patients onboard, many of them unable to walk. In addition to focusing on the fire’s cause, board members will discuss transporting people with special needs, bus evacuations, fire detection and suppression, and government oversight of bus companies and tour brokers. Investigators have said that poorly maintained wheel bearings led to a heat buildup that started the fire. Photographs from the scene showed that the bearings were so worn that some had fused together and others had broken off. The photos also appeared to show that some oxygen bottles used by patients were stored haphazardly.

Much as the Winecoff Hotel fire in Atlanta in 1946 led to nationwide improvement in fire safety regulations in hotels, perhaps this bus fire will lead to improved bus safety standards.

When the Georgia General Assembly passed Senate Bill 3 — the "tort reform" conglomeration — in February 2005, most of the legislators hadn’t even read the entire bill, most of its provisions were not discussed in any detail, and hardly anyone understood it. To say it had a lot of poor draftsmanship is an understatement.  I heard one prominent Republican legislator privately describe it has having been "written with a crayon."  Since then bits and peices of the legislation have been been held unconstitutional by trial or appellate courts, and more likely meet the same fate.  Increasingly, I hear legislators who voted for it in the rush of the moment saying things like, "we went too far," "we didn’t understand what was in the bill," etc. 

It will take a few years, but I predict that the problems with the bill will be largely repaired.  A cap on noneconomic damages in medical malpractice cases will likely remain, as the political support for it in the medical community is mighty strong.  However, as in California after it adopted such a cap in the 1970’s, we may see a requirement for financial disclosure by insurance companies to support premium rate increases.

Likewise, the replacement of "joint and several liability" with "proportional liability" will be politically difficult to change.  However, if the problems with the new rule are explained to legislators, perhaps there could be some modification.

The Daubert rule on expert testimony is here to stay, but the version of it in the State Bar’s proposed new Georgia Evidence Code makes more sense, both procedurally and substantively, than the self-contradictory scissors and paste job in S.B. 3.

The offer of judgment rule in S.B. 3 is such a miscarriage that I hardly ever hear of anyone actually using it.  I know that most of the insurance companies are afraid to use it in significant cases out of concern that it will be they rather than the plaintiffs who it will hurt.  It may take a couple of years, but I expect that a more sensible and workable version of the offer of judgment rule will be passed.

A lot of the other stuff that was included in S.B. 3 will bite the dust over the next couple of years.

The current issue of Forbes carries an interesting article on driver rehabilitation after a serious injury or illness. Many people with newfound disabilities, including neurological conditions, heart disease and stroke, are overcoming great obstacles to find ways to get back to driving on the highway.  For the impaired person, the ability to drive symbolizes independence and freedom.  I saw that in my daughter after she lost her hearing due to an illness.  The weeks between discharge from the hospital and clearance to drive again were absolutely maddening for her, and for everyone around her.

Here in the Atlanta area, DeKalb Medical Center Rehabilitation Services has a Driving Solutions Program which provides driver assessment, training and adaptive equipment recommendations for vehicle operation. The assessment process includes tests of vision, visual perception and reaction time, as well as assessment of cognitive and physician functioning. Driver training is available to new and experienced drivers to promote safety and competency behind the wheel. Training in the use of adaptive equipment is available. I took my daughter over there for an assessment that cleared her to drive again, restoring freedom and a modicum of normalcy after a traumatic, life changing loss.