Recent Tort Cases

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Today the Supreme Court of Georgia held, in a 4-3 decision, that notwithstanding a moral obligation to do so, a motel manager has no legal duty to investigate the health of a guest on the request of a family member.

In the case of RASNICK v. KRISHNA HOSPITALITY, INC., a 77 year old man from Texas was staying at a motel in Jesup while on a work assignment in Georgia, and spoke with his wife several times per day. When his wife was unable to contact him in several attempts one evening, she repeatedly asked the motel staff to…

The Georgia Supreme Court issued a landmark decision today, in FLORES et al. v. EXPREZIT! STORES, holding that a convenience store that sold a 12 pack of beer to a visibly intoxicated customer could be accountable for the injuries and deaths that resulted.

The Georgia dram shop statute, OCGA § 51-1-40, provides:

(a) The General Assembly finds and declares that the consumption of alcoholic beverages, rather than the sale or furnishing or serving of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person,

…

Douglas County, Georgia, where I graduated from high school and returned for a few years as a young lawyer, is known as a very conservative venue. However, Douglas Countians do not lack the ability to do the right thing when the facts call for it.

Today’s news includes a report that the State Court of Douglas County awarded $700,000 damages against the owner of a pit bull that mauled an 8 year old neighbor child. Before that incident, the owner had been cited at least 10 times over a four-month period and seriously attacked another neighbor in her driveway.

The…

In personal injury law practice in Atlanta, Georgia, we often deal with treating doctors who don’t want to bother with testifying for their seriously injured patients, and with a small number of doctors who make a good living by consistently testifying for the defense almost without regard to the facts.

Of course, most treating physicians are caring, compassionate and helpful to their patients, just as most lawyers are conscientious, ethical and hard working. It is a small minority within both professions that create many problems for the ethical majority.

An article in today’s Fulton County Daily Report highlights both categories of problems with medical testimony. It also underscores the deficiencies of the Georgia medical narrative statute and the need for effective cross examination of doctors who consistently testify for insurance companies to deny all injury claims.

Georgia law includes a provision for use in evidence of medical narrative reports in lieu of physicians’ testimony. The statute and case law require that narratives be written in plain English intelligible to the jury and not filled with technical jargon. It is extremely difficult to get doctors to dictate a medical narrative in plain English.

The article focuses on a narrative report signed by a plaintiff’s treating physician.  At trial it came to light that the plaintiff’s attorney had drafted the report which the doctor signed. That apparently impacted the jury’s view of the credibility of the report.

To get a treating physician to testify live in court is so difficult and expensive that it almost never happens in personal injury cases.  The cost of taking a doctor’s deposition on video to use at trial is often $2,000 or more.  And the prices charged by medical personnel keeps going up. Doctors have charged us $1,500 just to dictate a one or two page letter for use as a narrative report. We were recently informed that it would cost $1,500 per fifteen minutes just to interview a physician’s assistant.  We have encountered doctors who charge $500 or more just to add a signature to a report that was already in their medical charts.

Because of the cost of obtaining doctor’s testimony, attorneys are often forced to use the medical narrative statute. However, the same doctors who charge thousands of dollars per hour to testify about their treatment of their patients charge up to a thousand dollars to dictate a narrative report, and are either unable or unwilling to provide a report phrased in layman’s terminology rather than medical jargon.

Therefore, in order to use the medical narrative statute lawyers may be forced to interpret the doctor’s technical language into plain English, and provide the intelligible version to the doctor to sign. But if it comes to light that the lawyer drafted the version used in court, the effect can be devastating.

That’s why I have just about abandoned use of the medical narrative statute unless there is already an intelligible, signed report in the medical records. One might as well bite the bullet and pay the exorbitant cost to take a deposition on video to play for the jury in court.

The second point in the article was that a well known  semi-retired orthopedist had been effective in persuading the jury that the plaintiff’s condition was almost entirely preexisting and that there was no serious injury. He regularly reviews files and conducts adversarial medical exams for insurance companies, and has testified hundreds or thousands of times that

I have taken that same doctor’s deposition a few times. The last time he testified for the defense in one of my cases, I had a stack of his prior depositions and was able to thoroughly neutralize his testimony by revealing that he has made a good living for decades by consistently testifying on behalf of insurance companies that no one is injured in an accident.  Watching the jury’s response to his video testimony was pretty amusing. 

Representing an injury survivor in a personal injury case is hard work. Putting together the evidence to present at trial is expensive. Nothing is simple. Nothing is easy. Everything takes more time, effort and money than most people suspect.  Anyone who expects treating physicians to be uniformly cooperative in helping their patients is dangerously naive. And when the defense brings in one of the "usual suspects" among defense doctors to claim that the person was not really hurt, the plaintiff’s lawyer must be prepared to that the defense doctor head on.

As a trucking safety trial attorney in Atlanta, Georgia, I’ve worked with quite a number of spinal cord injury survivors, and have had some good results. But not as good as the verdict a Chicago jury awarded last week.

In the Cook County case of Chraca v. Miles, an Illinois DOT vehicle collided with another vehicle in an intersection. Both drivers claimed that the other ran the red light, and the local police reconstruction was inconclusive. The private citizen, who was rendered an  incomplete paraplegic unable to walk without leg braces and the use of canes or a walker, was represented by Chicago lawyer Martin Healy, Jr. Last week a jury returned a verdict of $25 million.

Paraplegia is a horrific injury. Most people have little idea of the complications that accompany it, including  muscle spasticity, pressure sores and  autonomic dysreflexia.

This paraplegic’s tragedy would have been compounded if the crash had been in Georgia. In a similar case based on the negligence of a Georgia DOT employee in the course of his employment, recovery would have been limited to one million dollars under our State Tort Claims Act, which limits payments to $1 million per person and $3 million per accident. We would have been forced to search for other sources of compensation as the recovery from GA DOT would have been grossly inadequate.

As a personal injury attorney in Atlanta, I was initially one of those who feared the worst when the Georgia legislature passed it omnibus tort reform legislation, Senate Bill 3, in 2005.   It was as if the political power structure had done everything it possibly could to kill victims of negligence — and the lawyers who represent them.  Some thought it was the death knell for personal injury tort litgation in our state.

However, as soon as the bill passed, a few of us began to gather for a series of weekly breakfast brainstroming sessions focused on how to survive and prosper in the new environment. Those sessions helped transform the law practices of several of the participants. Other lawyers around the state began to go through the same sort of process of evaluation and change.

Three years later, we have seen an increase in the frequency and geographical distribution of impressive jury verdicts in injury and death cases. Even counties that had been viewed as black holes for plaintiffs are producing seven and eight figure jury verdicts.

The most recent was a $5 million verdict this week in a hospital malpractice wrongful death case in Gwinnett County. That case involved the death of a new mother due to a fall, as the hospital personnel had not followed fall precautions which were indicated.

Until very recently many of us had simply declined to accept cases in Gwinnett because the juries there were so notoriously hostile to personal injury and wrongful death plaintiffs. I haven’t heard how the $350,000 cap on noneconomic damages in medical malpractice cases may affect that, if at all. It would not be surprising for an economist to reach a $5 million economic valuation on the life of a promising young adult.

A couple of weeks ago in Fulton County, which used to be a big-verdict venue but in recent years has become much more conservative, there was a $54 million verdict, which was reduced to a mere $10.25 million due to the statutory cap on punitive damages which was enacted in 1987.

Last year we had a $2.3 million verdict in a trucking case in conservative, rural Gordon County..  There have even been million dollar verdicts in some of the small, rural, deeply conservative counties.

The "loser pays" provision of S.B. 3 — an "offer of setlement" feature in OCGA 9-11-68 which can require a party to pay the other side’s attorney fees and litigation expenses if it fails to do 25% better at trial than in trial than in a rejected settlement offer — was designed to intimidate and oppress plaintiffs.  However, it has primarily hurt the defense side. In one medical malpratice case, the plaintiff got some $4 million in fees and expenses added to the compensatory damage award under this provision.

There are quite a few other examples that I have not taken the time to compileon a Saturday morning of a holiday weekend.

Why have we seen an increase in substantial verdicts in Georgia after the tort reformers got everything they asked for in the legislature?  Certainly a few minor details of S.B. 3 have been held unconstitutional, but none of those points are substantially involved in these cases.

Another hypothesis is that tort reform has forced plaintiffs’ lawyers to work harder and smarter in case preparation. With so many obstacles thrown in our path, we have to work hard in investigation, in selection and preparation of experts, and in all aspects of trial strategy and preparation.

When that enhanced preparation encounters the most democratic of all institutions in American society — a jury of ordinary people from all walks of life with no political fears or aspirations related to their service on one case — serious cases can get serious verdicts.

Three years ago, one might have predicted that by now we would be out of business and our clients would be out of luck.  Today, however, it’s a great time to be a lawyer representing good people with legitimate claims of serious injury or wrongful death of a loved one.

Yesterday the Georgia Court of Appeals held that a work-related cell phone call or distraction by such a call that a driver chose not to answer may be enough to support liability of the employer, even though the employee was driving to work from home and was not on a special mission for the employer.  See full text below.


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.

Ante litem (before suit) notice is a trapdoor through which many tort claims against government fall to their doom. In Shelnutt v. DOT, decided 3/10/05, it happened again. The plaintiffs, represented by out of state counsel, sent ante litem notice under the State Tort Claims Act to the Commissioner of the Department of Administrative Services (DOAS) instead of the Risk Management Division of DOAS. The court held that wasn’t good enough.
As we used to say on the playground when I was growing up, “close only counts in horse shoes and hand grenades.” When pursuing a claim under the State Tort Claims Act, a lawyer just has to sit down and diagram the sentences in the statute every single time. For about a decade, I did defense work for state officials and employees as outside counsel when my former firm was hired by DOAS. Since then, I have had several cases against state agencies under the Tort Claims Act that was passed about the time I stopped doing the defense work. Even with that background, I read the entire statute again every time I start working on one of those cases. There is no such thing as being too technical in dealing with that statute.
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