State Procedure

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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.