The trial was brief. The DeKalb County State Court judge heard the evidence, took a 15 minute recess, and returned with a verdict of $2.5 million.

My clients will never get their child back (who, by the way, would be about two years old right now and delighting the family in everything he did), but at least the verdict might give them some small sense of justice.

The Georgia Supreme Court has issued an opinion affirming an Athens-Clarke County jury's verdict of $13 Million to the widower of a woman who burned to death in a rear end collision on Highway 129. This is an important decision because it was based on the fact that Ford Motor Company refused to turn over relevant crash data in the case that it was required by law to provide to plaintiffs. The Georgia Supreme Court, in essence, has said in Georgia, we are going to hold big corporations, including car manufacturers, to the letter of the law. Below is an article from the Athens paper, the Athens Banner-Herald, with more details.

Family closer to award in fiery crash
Ford loses appeal in gas-tank explosion, death
By Walter C. Jones | Morris News Service | Story updated at 11:24 PM on Saturday, March 29, 2008

ATLANTA - The family of a Clarke County woman who burned to death when her car's gas tank exploded during a 1999 rear-end collision is closer to getting a $13 million jury award after the Georgia Supreme Court ruled in their favor Friday.

Ford Motor Co. and the maker of a trailer hitch on the woman's car lost their appeal when the supreme court unanimously upheld the verdict of an Athens-Clarke State Court jury.

Anne Marie Gibson died at the scene when a pickup slammed into the back of her 1985 Mercury Grand Marquis as it was stopped on U.S. Highway 129 waiting to make a left turn. Her car was hit again when it was forced into oncoming traffic.

Bolts from the trailer hitch gouged into the car's gas tank, causing it to burst into flames as the passenger doors jammed and Gibson's seat collapsed, dropping her back into the flames.

Gibson's widower, Artumus Gibson, filed suit and won.

His attorney, George W. Fryhofer III of Atlanta, said as many as 50 other people have been killed or seriously burned in similar accidents involving Fords.

"The great tragedy in this case, however, is that Ford's exploding gas tanks continue on the road, and Ford has never warned a soul," Fryhofer said.

The family's long wait for a check should be about to end, according to Fryhofer - the only option for Ford and trailer-hitch maker Draw-Tite to delay the case would be to appeal in federal court, but Fryhofer says there are no federal or constitutional issues to base an appeal on.

"I think this is pretty close to the end of the line for Ford in this case, but that doesn't address the other possible victims," he said.

Ford would not release information about other suits filed about similar cases of exploding gas tanks. It only released a brief statement about the Gibson case.

"We are disappointed that Ford will not receive a fair trial in this case, in which the jury will decide the issues," wrote company spokeswoman Marcey Evans. "We have not decided at this time whether we will seek further review."

In the appeal, Ford was contesting a decision by state court Judge Kent Lawrence to punish the automaker for refusing to turn over records about crash tests it had conducted on that model. Ford contended the documents should remain confidential as attorney-client communications.

Lawrence ruled that if the company wouldn't supply the files, then the jury should consider that an admission that the seats and fuel tank were defectively designed.

The Supreme Court, in a unanimous decision written by Justice Harold Melton, concluded Lawrence was within his authority.

"Specifically, the requested evidence documented past car-to-car crash tests conducted by Ford on a line of vehicles that included the Mercury Marquis, and that had similar fuel tank locations and performance as the Mercury Marquis driven by Ms. Gibson at the time of the incident involving (the other) car," the decision read. "As evidence that could have shown Ford's prior, direct knowledge of fuel system, car door, and seat back design problems in car-to-car collisions such as the one that resulted in Ms. Gibson's death, we cannot say that the trial court clearly abused its discretion in concluding that Gibson had a substantial need for these documents."

Published in the Athens Banner-Herald on 032908

Buckle up your life belts. We’re in for a bumpy finish
Sunday, March 30, 2008, 04:00 PM

The Atlanta Journal-Constitution

We have entered the dangerous, final days of the Legislature’s winter session — a season of desperation in which innocent bills are forced into sudden, shotgun marriages with amendments they’ve never met.

Legislative dogs are wedded to feline decrees-to-be that streak through the Capitol. Often, the unions are conducted in such secrecy that even professional spectators remain ignorant — until, after several months’ gestation, the unpleasant results begin crawling around.

Lawmakers have until Friday, when the Legislature is to adjourn, for such last-minute mischief. Supervision is lax. Gov. Sonny Perdue is far away on a Chinese trade mission, struggling through the hell of chopsticks and endless toasts with sorghum-based paint-thinner.

But most of the funny stuff happens out of the schoolmaster’s line of vision anyway — unless the schoolmaster decides to join in.

An example of the shenanigans to come snuck up last week. The locale was a meeting of the House Motor Vehicles Committee, a small collection of part-time legislators whose life experiences have included real estate, law enforcement, personnel management, business and the pharmaceutical industry.

The topic at hand was S.B. 412, the epitome of do-good legislation.

Its sponsor, state Sen. Emanuel Jones (D-Decatur) wants every reference to “seat belts” in the Georgia code changed to “life belts.” He wants “air bags” to become “life bags.”

Jones hatched the five-paragraph idea with Adam Goldfein, the fellow at V103 radio who specializes in advice for car buyers. “Parents explaining to their children to buckle up their life belts really has meaning,” Jones, a car dealer, told the committee.

S.B. 412 has already passed the Senate, and now must run the House gauntlet. But several days ago, Jones was informed that his bill had grown a sixth, 113-word paragraph. “House leaders told me it had been added — they don’t ask permission,” the senator said later.

Jones was philosophical. If the addition could speed House passage of his bill, he was for it. If it proved a barnacle that would slow it down, he was against it.

Now, about that sixth paragraph. Printing it would only put you to sleep. But it contained phrases like “the proximate cause” and “industry-wide liability” and “public nuisance.” All terms were covered on that bar exam you took.

But even a layman could see this was another shot fired in one of the state Capitol’s never ending wars, over who should be permitted to sue whom. This one had to do with product liability.

State Rep. Tom Rice of Norcross, the committee chairman, embraced the addition. “I’d favor anything that would reduce the opportunity for what I call nuisance suits,” he said.

But Matt Dollar of Cobb County, the vice chairman, was more suspicious. He didn’t know what had been promised to whom, but nobody had told him. And he wondered why the paragraph had magically appeared in front of a motor vehicles committee, instead of a lawyer-laden House Judiciary Committee.

Who’s your client? Dollar asked the attorneys from Powell Goldstein, the firm that authored the paragraph.

The Public Nuisance Fairness Coalition.

Who’s that?

The attorneys couldn’t say. The members were Fortune 500 firms whose names — because of attorney-client privilege — couldn’t be disclosed right then and there. The lawmakers could be told eventually, but the lawyers would have to get permission first. One attorney let slip that a chemical company was involved.

“We’re not talking just about air bags, are we?” asked state Rep. Alan Powell of Hartwell.

The committee summoned Bill Clark, a representative of the Georgia Trial Lawyers Association, the group that does battle against business in the lawsuit war. He’d only learned of the sixth paragraph a few hours ago. He didn’t know what the language did — or didn’t do.

“I’ll concede it may be little or no change. It may be a very significant change in Georgia law,” he said. Clark advised removing the language first, and investigating the implications over the weekend.

But he was countered by Joel Williams of Powell Goldstein, who assured the part-time lawmakers that they were capable of understanding the implications of those 113 words. “You have the ability, you have the brain power,” Williams assured them.

Flattery didn’t work. On Dollar’s motion, the sixth paragraph was stripped out, and the bill was put on hold.

“There’s a rat in there somewhere,” muttered committee member and pharmacist Bobby Parham of Milledgeville as he exited the hearing. “There’s a rat in that one.”

Welcome to the final hours of the 2008 Georgia General Assembly, a period in which a law degree isn’t nearly as important as a sharp nose for vermin.

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And it has been proven in recent medical studies that teenagers simply don't have the brain development necessary to be able to make good judgment calls, such as always wearing seat belts. These new studies show teenagers are more likely to demonstrate impulsive behavior rather than sound judgments because the frontal lobes of their brains, that area where high thinking or executive functioning takes place, is not fully functional during teenage years. Teens simply don't have the appropriate level of brain functioning to make good judgmental decisions such as always wearing their seatbelts.

Perhaps tougher penalties for not wearing seatbelts would get through to them, such as points on your driver's license? Seems like that would get their attention. I am in favor of any legislation that toughens penalties for failure to wear seat belts. Simply put: seat belts save lives.

As a plaintiff's personal injury attorney here in Atlanta, Georgia, whose practice consists largely of helping people who have been severely injured in car wrecks or trucking wrecks, I have heard this from my clients consistently over the last twenty years. Yet, they often can't seem to get the right treatment from their doctors, or even appropriate referrals to other physicians who might be able to help with alternative treatments. I have always suspected the physicians, strapped for time due to health insurers' controlling their practices, just aren't listening to their patients' complaints. This study seems to confirm exactly what I have thought, and validates the complaints of many of my clients. Doctors simply need to do a better job listening to their patients.

The physician who led the study admitted as much. "I was surprised that the pain was as common and as severe as they reported it to be," said Dr. Frederick Rivara of the University of Washington in Seattle, who led the study. "The implications are that we need to do a much better job of identifying pain in these patients, treating it adequately and treating it early," Rivara added in a telephone interview.

I hope the nation's physicians, especially those right here in Georgia, take notice of this study and change their practices. Their patients, and my clients, really are telling the truth when they say they are in pain.

OUR OPINIONS: No immunity for agritourism

By Maureen Downey
The Atlanta Journal-Constitution
Published on: 03/10/08
Senate passage of a bill giving agritourism broad immunity from civil liability demonstrates the power of special interests in Georgia.
Senate Bill 449, the Landowners Protection Act of 2008, exempts agritourism businesses —- petting zoos, pick-your-own orchards, hunting preserves, farm/vacation sites —- from the standards of liability that govern all other businesses.

Under current law, business owners can be held liable for injuries on their property if they fail to exercise reasonable care. Promoted by Gov. Sonny Perdue, SB 449 erases current liability standards and says that agritourism owners can only be held liable if they are wanton and willful —- a boon to the insurance policy writers who cover farms.
"This is a solution looking for a problem," said state Sen. David Adelman (D-Atlanta). "There hasn't been a single case that I know of where agritourism has been threatened by lawsuits. The current Georgia law with regard to farms and agritourism requires them to exercise ordinary care and take care of their facilities the way any other business does."
Republicans also worry about the impact of the bill. "If I knock on a farmer's door and ask if I can fish off his dock, I don't expect the dock to be in good repair," said Sen. Dan Weber (R-Dunwoody).
"But if I come with friends to fish as a result of advertising by that farmer, and pay, I expect that dock to be in good repair. If I am hunting and fishing free of charge, the farmer has immunity. If he charges me money and I get hurt as a result of his negligence, he should be liable."
Sen. Seth Harp (R-Midland) gave the example of a farm tour in which the farmer left a tractor running and someone jumped in and ran down other tourgoers.
"Today, there would be recovery against Farmer Brown for that accident," he said. "If you raise the standard to gross negligence, then you would have to prove that Farmer Brown willfully and wantonly neglected to turn the tractor off, which is a far higher standard."
Proponents argue that the bill will encourage agritourism in economically depressed areas of rural Georgia. But rural Georgia could also benefit from a Wal-Mart or Target. Why can't those chains —- or every mom and pop antique store, cafe or gift shop —- argue that they, too, should be handed a reprieve from the reasonable-care standard of legal liability?
The Senate is on a dangerous path with this bill, which will end up hurting Georgians. What happens to the family of five when the dad is paralyzed after falling out of a poorly secured tree stand in a commercial hunting preserve?
The bill's sponsor, Sen. Bill Heath (R-Bremen), argued in favor of personal responsibility, but never mentioned the responsibilities of the landowners who open their land to the public for profit.
-- Maureen Downey, for the editorial board

This is a clear example of the callousness, and sometimes outright illegality, of the way in which insurance carriers attempt to avoid payment of legitimate insurace claims. Only this time, HealthNet got caught. This was an unusual situation because, apparently, there was an arbitration clause in the health insurance policy that allowed for pain and suffering damages. Most issues regarding payment of claims by a health insurance carrier are preempted by ERISA, and the injured policyholder is unable to sue in court to assert his or her rights under the policy.

Can we presume insurance carriers right here in Georgia are doing the same thing, i.e., cancelling a policy to avoid paying out on a legitimate claim? Yes, probably, they are. The little guy who is injured must continue fight the denial decision, and often at a time in that person's life when he or she needs to be focusing on another fight, like one against breast cancer, as Ms. Bates did. Fortunately, we have Georgia trial lawyers, like me, ready to take on that fight!

The Atlanta Journal and Constitution has reported that following the Savannah Sugar Refinery blast last week, a lawyer from Texas took out a full page advertisement in the Savannah paper soliciting victims of the blast. There have also been reports that lawyers from a silk stocking law firm here in Atlanta, with an office in Augusta, has been soliciting victims who are currently being treated in the burn clinic in Augusta. This silk stocking (meaning big and expensive) firm typically defends very big corporations rather than representing individuals who have been harmed by the negligence of big corporations.

To be absolutely clear, the leadership of Georgia Trial Lawyers Association (GTLA) condemns such solicitation. These victims and their families need to be focusing on healing, not on such high pressure tactics as direct solicitation of victims immediately after the tragedy. Below is a statement from the President of Georgia Trial Lawyers Association, Joe Watkins, on behalf of Georgia Trial Lawyers Association, condemning the practice and rightfully putting focus on the needs of the victims and their families. Our thoughts and prayers are with them during this difficult time.

Georgia Trial Lawyers Association
Protecting the Constitution’s Promise
For Justice for All

Media Release:

For Immediate Release For More Information Please Call:
February 14th, 2008 Rebecca Bukant (404) 376-3495

Georgia Trial Lawyers Condemn the
Practice of ‘Trolling for Victims’

Atlanta-The tragedy resulting from the Imperial Sugar Refinery has been made worse by the solicitation by unprincipled lawyers vying for the victims' cases. The news has reported that TV ads, print advertisements and even visits to the Augusta Burn Center by lawyers have occurred. Members and leadership of the Georgia Trial Lawyers Association are outraged by this reprehensible behavior.

"The Georgia Trial Lawyers Association unequivocally condemns these unconscionable acts by attorneys," said the President of the Georgia Trial Lawyers Association, Joe Watkins. "We are shocked that attorneys from Georgia and other states are attempting to solicit the families while they are mourning the loss of loved ones and praying at bedsides at the Augusta Burn Facility."

The State Bar of Georgia Rules prohibit attorneys from contacting victims immediately following a tragedy. “This is not the time for lawyers from Georgia or any other state to harass families and victims of a tragedy. To say that is in 'poor taste' is putting it mildly," said Watkins. "The families and survivors will decide if and when they will seek legal advice."

The Georgia Trial Lawyers Association, and its leadership, strongly believes that the Rules governing Georgia’s State Bar regarding such solicitation should be strengthened and the Association urges the State Bar to take appropriate action regarding this matter.

"Unfortunately, it is the unscrupulous behavior of a few attorneys, often from out of state, that reflects poorly on the image of all attorneys. That conduct is in no way a reflection of the principles, ethics and the integrity of the members of the Georgia Trial Lawyers Association,” said Watkins. “I speak for not only myself, but for our entire Association when I say that my thoughts and prayers are with the workers of the Imperial Sugar Refinery and their loved ones."

The Oregon Supreme Court said in Thursday's ruling that Philip Morris and the tobacco industry worked during the 1950s on a "program of disinformation" to create doubt about the dangers of smoking. Williams "learned from watching television that smoking did not cause lung cancer," but, once he came down with it, said the "cigarette people" had lied to him.

What's particularly satisfying about the Oregon Supreme Court's decision is that it reaffirms, for the third time, that the jury in the American Civil Justice System knows best. Despite the repeated attempts by the United States Supreme Court to take away the plaintiff's verdict in this case, the Oregon jury's decision has finally prevailed, proving again the jury knows best and the jury system works. It seems that only when Big Corporate America loses a trial does it rail against what they term "activist"judges. What is surprising is, if there is any "activist" judges in this case, it is the United States Supreme Court justices. They tried and tried to take away the jury's verdict and impose their own judgment on a trial that involved Oregon citizens and was decided by Oregon citizens. But, fortunately, the Justices' attempts have failed and, hopefully, the jury's verdict will now stand in this case.

By the way, when did it become wrong in America to be held accountable for your wrongdoing, including a corporations? The American Civil Justice System and trial by jury, is the only way to ensure justice is served, fairly, equally, impartially, without being a respector persons. There are those in our country who would tear down our revered jury trial system and eliminate accountability in our nation's courts for a myriad of wrongdoers. As a Georgia trial lawyer in the trenches, I will do everything in my power to fight the "dismantlers" of the American and Georgia Civil Justice System. The Oregon decision gives us renewed hope that justice will prevail for the little guy.

You may recall the tragic Comair airplane crash in Lexington, Kentucky in 2006. The plane crashed after taking off from the wrong runway, killing 49 of the 50 people aboard. A federal judge Tuesday unexpectedly moved up by four months a trial to determine fault in the crash of Comair Flight 5191. In a hearing in federal court, U.S. District Judge Karl Forester set an Aug. 4 trial date for 29 families who have sued Comair over the August 2006 fatal crash at Blue Grass Airport.

There is plenty of blame to go around. The plane took off on a runway that was far too short for the aircraft. There was a construction project going on at the airport at the time and the maps the pilots had were not up to date. The National Transportation Safety Board found that the probable cause of the crash was pilot error. Comair, meanwhile, has sued the Federal Aviation Administration and Blue Grass Airport. It is appealing a ruling that the airport is immune from lawsuits because it is a government entity.

Kentucky law has been harsh to the families of the victims. The judge has ruled that those who lost loved ones in the 2006 crash of a Comair plane aren't entitled under Kentucky law to sue the airline for loss of companionship. Kentucky is among four states that don't allow jury awards for loss of companionship by surviving spouses. There also is no state provision for companionship damages for adult children or their parents, although the state does allow children younger than 18 to sue for damages when a parent is wrongfully killed.

Comair requested a trial date in 2010. Delay is a typical tactic by defense lawyers. But, fortunately, with the judge's pushing the trial date up to August 2008, the families of the crash victims will see justice sooner.

It is a complicated analysis, but, fortunately, Georgia has the "made whole" doctrine, which says the plaintiff must first have been made whole before any third party, like the health insurance carrier, can just waltz in and take away the plaintiff's settlement money unfairly. Fortunately, for Minnesota victims of the bridge collapse, Minnesota Lawmakers are trying to make up for bridge collapse survivors' financial losses and out-of-pocket expenses and are brainstorming with attorneys about how they can keep health plans from recovering money meant for victims. I would urge the Georgia Lawmakers to do the same thing. Enough if enough.

Parents can learn more about child car seat safety from the National Highway Traffic Safety Admininstration (NHTSA) and its Child Passenger Safety Program. Specifically, for Georgia law on child car seats, parents can have their questions answered at The Governor's Office of Highway Safety.

Step 1: When to use a rear-facing child safety seat: From birth to at least 20 pounds and at least one year of age. For babies who are under one year and over 20 pounds, be sure to place them in safety seats approved for heavier babies and continue to transport them in rear-facing child safety seats until they are at least one year of age.

Step 2: When to use a forward-facing child safety seat: If a child is over 20 pounds and at least one (1) year old to about 40 pounds and about age four (4). The harness straps should be at or above shoulder level. Most convertible, forward-facing seats require use of the top slot for forward facing seats.

Step 3: When to use a booster seat. If the child is between 40 and 80 pounds and less than 4'9" tall. Belt positioning booster seats must be used with both lap and shoulder belts. Never use a booster seat with a lap belt only.

Step 4: When to use a seat belt: If children are over 80 pounds and at least 4'9" tall. If a child can sit with his back straight against the vehicle seat back cushion, with his knees bent over the vehicle's seat edge without slouching, he can be moved out of a booster seat into the regular back seat . Have your child safety seats inspected by a certified child passenger safety technician (CPST). For information on Child Passenger Safety Seat Fitting Stations in Georgia, visit http://www.gohs.state.ga.us/stations.html.

Just please remember to save a life and buckle up the ones you love.