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Recently, I was in a courtroom in Fulton County, Georgia watching a medical malpractice trial.  I was not involved in the trial; I was just a trialwatcher. When I have time, I still enjoy watching trials, both civil and criminal, for the real life drama on display. No movie or play can capture the sheer, raw emotion of a trial.  A jury’s decision can be life-altering. In a civil trial for money damages,  a verdict for the plaintiff can give the family of the injured person or decedent a sense of Justice and much needed closure. A verdict for the defendant can give a defendant a sense of vindication. The whole trial process is designed to find the truth. In fact, the word “verdict,” in Latin, means “to speak the truth.”

I have often seen normal laypeople who are testifying realize, on the stand, they have underestimated the emotional pressure that the formality of the courtroom imposes on them. There is something about the utter dignity and formality of the Courtroom, with the judge sitting high on the bench, with a court reporter taking down every word uttered, with 12 citizens sitting in judgment, with a Deputy Sheriff at the door, that brings the enormity of it all into crystallized focus. In this medical malpractice trial I was watching, there was a moment with one of the defendants on the witness stand when he simply broke down during his testimony. He began to tear up on the stand and the began to cry, and the plaintiff’s attorney quickly asked the judge for a break. But it was too late. The defendant began crying uncontrollably, and literally fell down on the floor from the weight of it all. His attorney had to go help get him off the floor and then out of the courtroom as the bailiff quickly took the jury back to the jury room. It was clear that the defendant had suffered something so strong emotionally that he could not go on. We were all worried about his mental well-being. I knew his attorney and knew he would make sure his client was supported emotionally and not left alone.  I believe his attorney was sincerely concerned about his client’s ability now to go on with the trial and meaningfully participate in the trial and assist his attorney. In speaking with several of the attorneys in the case, both plaintiff and defense, not one of us had ever seen something like that happen in a trial before.  Most of us had practiced for over 30 years. Meanwhile, the plaintiff’s attorney felt just as strongly that the defendant’s outburst of emotion directly in front of the jury was so overly prejudicial that the jury could not help but sympathize with the defendant, regardless of any instruction the judge might give to the contrary. Telling a jury they may have no sympathy for either side is easier said than done when a witness has just broken down in front of their eyes.  Discussion was had by all counsel with the judge in the judge’s chambers, and I was not privy to what they discussed and argued. Eventually, the defendant who had broken down on the stand reappeared in the courtroom. He looked shaken and seemed to be trembling. He was visibly trembling as he took sips out of a water bottle. There was no question in my mind that this was sincere and beyond his control. I felt empathy for him. After about an hour, though, the judge and all counsel came back into the courtroom and the jury was brought back into the courtroom. The judge declared a mistrial and thanked the jury for their work and instructed the jury they were no longer needed and that their jury duty had been fulfilled.

Wow.

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There have been two  recent appellate decisions in Georgia that address the morass that is apportionment:  FDIC v. Loudermilk, No. S18Q1233 (Ga. S. Ct. March 13, 2019) and Trabue v. Atlanta  Women’s Specialists, LLC, No. A18A1508 (Ga. Ct. App. March 7, 2019).   Since the Georgia Legislature passed a new scheme of how a plaintiff receives justice in our Civil Justice System some 14 years ago, called “apportionment,” there have been 1,328 Georgia appellate opinions that mention apportionment. This suggests that the law as passed was anything but a model of clarity.
The Georgia Supreme Court’s opinion in FDIC v. Loudermilk reminds me of Mark Twain’s quotation:  “The rumors of my death have been greatly exaggerated.” I believe the rumors of the death of joint and several liability have been greatly exaggerated, ever since its passage in 2005.  Loudermilk makes it clear that joint and several liability is alive and kicking and coexists peacefully right next to apportionment.  Loudermilk, authored by Justice Sarah Warren,  involved a claim against a group of bank directors alleging that the former directors and officers were negligent and grossly negligent under Georgia law for their approval of ten commercial real-estate loans.  This case was tried to a jury in the Northern District of Georgia and the jury rendered a $5 Million verdict against the individual former bank officers. The bank officers appealed the verdict to the 11th Circuit Court of Appeals, which certified the question of whether the Georgia law of apportionment applied to this scenario to the Georgia Supreme Court. The Georgia Supreme Court answered no, that the statute did not end joint and several liability for co-defendants determined to have acted “in concert.”  The Court held “Georgia historically has recognized this principle: “[i]t has always been true that where concert of action appears, a joint tortfeasor relation is presented and all joint tortfeasors are jointly and severally liable for the full amount of plaintiff’s damage.” Gilson v. Mitchell, 131 Ga. App. 321, 324, 205 S.E.2d 421 (1974), aff’d, 233 Ga. 453, 454, 211 S.E.2d 744 (1975) (“We conclude that the opinion of the Court of Appeals correctly states the law of Georgia on this subject and we adopt [its] opinion.”). Cf. City of Atlanta v. Cherry, 84 Ga. App. 728, 731-733, (67 S.E.2d 317) (1951) (rejecting joint-tortfeasor status although plaintiff alleged that defendants acted in concert because plaintiff failed to allege adequately that there was “concerted action in operating [an airport runway] in such a way as to injure plaintiff”).”  Fed. Deposit Ins. Corp. v. Loudermilk, S18Q1233, 2019 WL 1303652, at *8 (Ga. Mar. 13, 2019).
This rule supports what many plaintiff’s lawyers have been saying since 2005, i.e., that there is no apportionment until a jury says there is apportionment. Thus, not only apportionment but also joint and several liability charges must be given to a jury and counsel must be allowed to argue joint and several liability.

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You may have missed it, but last week a Fulton County, Georgia jury sent a message to the City of Atlanta to inspect their streets for dangers to the motoring public. The message came in the form of a $1.4 Million verdict against the City of Atlanta, for severe personal injuries to a woman who was injured when she drove over a manhole whose cover had become dislodged.  The plaintiff, Ms. Pamela Dale, suffered a compression fracture to her spine, multiple lacerations on her arm and permanent nerve damage to her arm and hand.  She accrued about $89,000 in medical bills and was unable to perform her job for several weeks, and she had to work part-time for several more weeks. Her car was a total loss.  She was represented by Attorney Michael Baskin.

For its defense, the City of Atlanta argued first that this was a state road so the Georgia Department of Transportation had responsibility for maintaining it. So the City of Atlanta attempted to blame someone else for its own negligence. Then the City argued it did not have to inspect its own streets to find problems that could injure someone driving on them. The City of Atlanta Department of Watershed Management manager testified that the city did  not routinely inspect manholes and there was no evidence that it had advance notice of any defect in the manhole prior to the accident.  Apparently, the jurors didn’t like that. They told plaintiff’s counsel after the verdict that they were very concerned with the City of Atlanta not inspecting its own streets on a routine basis and, therefore, essentially waiting until a citizen was injured from a defect in the street to inform the City about the problem. The City of Atlanta literally argued they only received notice of a problem with a street once someone had been hurt by it. Does this strike you as crazy? Or at least surprising? That’s the way it struck the jurors. According to Attorney Baskin, the jurors were “absolutely appalled at the city’s lack of inspections.”

And it’s not just the City of Atlanta that takes this position. Many other governmental entities do the exact same thing, i.e., only inspect streets or sidewalks after they receive a complaint about it from someone. They do not routinely inspect their own roads. I recently took the deposition of the Director of Public Works for DeKalb County, Georgia, and, interestingly, he said the same thing about DeKalb County, i.e., that DeKalb County relies on reports from citizens of any problem with a street, road or sidewalk before they get involved. DeKalb County Public Works does not inspect its roads and sidewalks proactively so as to avoid injury to a citizen. Nor does it have anyone inspecting their sidewalks to make sure they are in compliance with the Americans With Disabilities Act.  This means a disabled person has to get hurt first on a DeKalb County road or sidewalk before DeKalb County will do anything to fix the problem. DeKalb asserts that citizens can get in touch with them by phone, email, Facebook or Twitter, and that is, in their minds, sufficient.

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You may have read recently about a little problem with the school bus stopping laws that the Georgia General Assembly is now trying to fix. Last year the Georgia Legislature amended the school bus stopping laws with a dozen words that are, apparently, having bad, unintended consequences, one of which is car drivers no longer believing they have to stop every time for every school bus.  Those words were:    ““including, but not limited to, a highway divided by a turn lane.””  School transportation officials from at least 102 counties caught the problem before it was passed, and even wrote a letter to then Governor Nathan Deal in April of 2018 before it passed on July 1, 2018, to try to put a quash on it.  But to no avail.  It passed.  And with it came new concerns about children’s safety as they exit school buses.

Before this amendment, Georgia law required traffic in both directions to stop for a stopped school bus with it’s “STOP” sign out on any laned highway unless the directions were divided by a raised median. Here is the law on overtaking a stopped school bus:

(a) Except as provided in subsection (b) of this Code section, the driver of a vehicle meeting or overtaking from either direction any school bus stopped on the highway shall stop before reaching such school bus when there are in operation on the school bus the visual signals as specified in Code Sections 40-8-111 and 40-8-115, and such driver shall not proceed until the school bus resumes motion or the visual signals are no longer actuated.(b) The driver of a vehicle upon a highway with separate roadways or a divided highway, including, but not limited to, a highway divided by a turn lane, need not stop upon meeting or passing a school bus which is on a different roadway or on another half of a divided highway, or upon a controlled access highway when the school bus is stopped in a loading zone which is a part of or adjacent to such highway and where pedestrians are not permitted to cross the roadway.

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MY FIRST AND LAST MURDER TRIAL

It’s January 4, 2019 and I am in Division 5 of the DeKalb County Superior Court, otherwise known as Judge Gregory Adam’s courtroom. I let the Deputies know I am a lawyer representing an accused person in a case and am here for the motions calendar. They instruct me to sit in the jury box. I do. As soon as I step in the jury box, a friend of mine, Jan Hankins, a Georgia Public Defender, says “I know you. What are you doing here?”  She has that look on her face of seeing someone she knows but in the wrong setting. Things are out of context. She knows I am a plaintiff’s personal injury trial lawyer. She instantly computes that I have no Earthly business in a criminal motions hearing.  I explain that I will be trying a murder trial with Mike Maloof, Jr. because I have always wanted to try a criminal case and in my 30 years of practicing law, I have never handled a criminal case. A mutual friend put Mike and me together and Mike welcomed my help. Jan’s response: “If trying a murder case is on your bucket list, you need a new list.”

It is true that in 30 years of practicing law I have never handled a criminal matter. I watch a lot of criminal trial shows on TV, though. Shouldn’t that qualify me a little bit?  After all, I certainly know never to talk to the police or answer a single question they ask unless my lawyer is present. I know never to give the police consent to search my car. I know never to agree to take a sobriety test. I am armed with a lot of knowledge about the criminal justice system from this. So wouldn’t it be a neat chance to add to my plethora of TV criminal justice knowledge by trying a real murder case?

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We have survived the Holidays and so it is appropriate we review car crash records to see how we Georgians did in 2018. Were we any safer?  Have car collisions declined in any aspect?

Each year, the Georgia Governor’s Office of Highway Safety publishes a report that lists all collision statistics for our state for that year.  This includes any bicyclists and pedestrians who are involved in collisions. You may find a wealth of traffic statistics in that report. In 2017, Georgia traffic fatalities for the year were 1468, a 4% decrease compared to 1527 on the

same date in 2016. This change, however, was not statistically significant.  We do not yet have the official tally of Georgia highway fatalities for 2018 yet. As of Sept. 30, 2018, fatalities from traffic crashes in Georgia were down 11 percent year to date, which represents the largest decrease of Georgia’s traffic fatalities in 10 years.  As of September 2018, there had been 128 fewer fatalities in 2018 over 2017.  Although this sounds like progress, the decrease is still probably not statistically significant.

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Jury duty is often the last thing people want to do. It interferes with their jobs, their family schedules and essentially everything people do on a daily basis. No one has jury duty scheduled on their calendar.  So, it is often the case once citizens report for jury duty and are actually sitting in a courtroom going through jury selection, particularly in civil cases for money damages, that jurors want to know “Why is this case being tried?  Why am I here?” Some people might, wrongly, assume it is because the plaintiff is greedy. But that is almost never the case. Rather, so often, the answer is because the insurance company for the defendant, the party at fault, refuses to be reasonable and refuses to resolve the case before trial.  For some unknown reason, that seems to be more and more the answer to the jurors’ questions of “Why are we here?”

Several recent trials in Georgia demonstrate that completely. In a trial in Gwinnett County last month, a jury awarded $17.8 million to the widow of a man who plummeted three stories to his death after trying to close an improperly installed dormer window.  No offer of settlement by the insurance company who represented the company at fault was even made until six days before trial. Understand, the trial occurred only after years of depositions, hearings, document exchange…known as discovery. Yet the insurer didn’t even attempt to broach resolution until six days before trial. The plaintiff’s settlement demand had only been $1 Million. Now the insurer is looking at a judgment for $17.8 Million. The insurer could have saved $16.8 Million had it even attempted resolution.

In another case recently tried in Cobb County, the jury returned verdicts for two plaintiffs of $77,000.00 to one plaintiff and $80,000.00 to the other. They also awarded an additional $35,000.00 for property damage. Highest offers prior to trial were $4,000 and $5,000 respectively.  Yet the plaintiffs’ medical expenses alone, without even considering pain and suffering, were $12,000 and $9,000 respectively.  When an insurer offers half of a plaintiff’s medical expenses it is not really trying to reach a good faith resolution of the case.

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Last night I had the honor of introducing the recipient of the 2018 Stonewall Bar Association Conspicuous Service Award Winner, Judge Alex Manning. We had a wonderful evening with several hundred of my closest friends in the Fabulous Fox Egyptian Ballroom.  Judge Manning gave an incredible, inspirational acceptance speech. I did not have all the time I wanted to introduce her.  She has an awe-inspiring personal story and she is an example of service to her community. To further honor Judge Manning, I want to share my full introduction of her here.  I am proud to know Judge Manning and proud to call her my friend.  What a great night!

 

 

ALEX MANNING INTRO  STONEWALL BAR ASSOC. DINNER                                                                NOVEMBER 1, 2018                                      BY ROBIN FRAZER CLARK 11/01/2018

Good Evening.

It is my distinct pleasure and proud honor to introduce to you tonight, the recipient of the Stonewall Bar Association Conspicuous Service Award, the Honorable Alexandra Manning.

Judge Alex Manning is a Judicial Officer in the Family Division of the Superior Court of Fulton County. She presides over some of the most contentious and sensitive calendars in Fulton County, including Child Support Contempt, TRO’s and Name Changes. She consistently and with the utmost respect for the rule of law and for the dignity of all those who appear before her, Judge Manning presides with both a firm hand and compassion. Judge Manning often handles name change petitions for transgender persons. Those who are seeking gender affirming name changes are often the most marginalized in our society and so come to court, understandably, vulnerable, with fear and intimidation of the formal court procedures. Many expect a judge who has little interest in helping them achieve their goal and even less understanding of why they desire to do so in the first place. You can imagine most of their reactions when they meet Judge Manning, who treats them with the dignity and respect they deserve but which they have rarely experienced by the government. Even though in 2018 we are still seeing some Superior Court judges refusing to grant a name change to a transgendered person out of some misguided personal beliefs, Judge Manning is not only a breath of fresh air in a sometimes-stagnant environment but is also the standard bearer for how judges should treat all citizens who come before them.

Judge Manning constantly demonstrated her support of the LGBTQ community before taking the bench. As a practicing lawyer she participated on a pro bono basis as co-counsel in a same gender marriage case in Dooly County, prior to the passage of Obergefell v. Hodges, in which she was able to protect the rights of a surviving spouse married in Washington, D.C., at a time when Georgia did not recognize same gender marriages. She also represented one of the first transgender individuals in the process of playing as a competitive NCAA athlete on the team that matched with gender identity. In her practice as a family lawyer she made handling second parent adoptions for LGBTQ parents a priority, even when not all Georgia court were even permitting second parent adoptions by a person of the same gender as the original adoptive parent.

Long before her legal career, Judge Manning established herself in law enforcement.  She was a pioneer as one of the first waves of female certified firefighters in DeKalb County.  She then went onto become a lead narcotic agent in the Georgia Bureau of Investigations and was appointed to the Governor’s Strike Force. She then became a Detective and K-9 handler and received both a Medal of Valor and Police Officer of the Year. While obtaining her undergraduate degree from Mercer University, Judge Manning worked as Senior Investigator with the Fulton County District Attorney’s Office in the Crimes Against Women and Children Unit and also at the Douglas County Public Defender’s Office. She then went to Vermont Law School and graduated in May 2006.

I first met Judge Manning when I was introduced to her at Lawyers Club by her loving partner, Lisa Liang. Lisa had wanted us to meet after learning I had successfully represented an Army Veteran in obtaining a Presidential Pardon for his military conviction of Conduct Unbecoming an Officer. His so-called unbecoming conduct was having a homosexual relationship with another man in the Army.  My client was convicted and served two years in Ft. Leavenworth Prison and then was dishonorably discharged.  After six years of representing him, we were overjoyed when we received word from the Pardon Counsel in the Department of Justice that President Obama was pardoning my client.  As it turns out, Judge Manning endured a very similar episode in her life.  Years before she distinguished herself as a GBI narcotics agent and before she was a Medal of Valor recipient and before she was named Police Officer of the Year, and before she became a respected judge on the Fulton County Family Court bench, she was discharged from the United States Army while a private.  The reason for her discharge?  Failure to adapt to military standards, which is Army speak for she was gay. Judge Manning disclosed this for the first time to attendees at a Vermont Law School conference on what was then the Federal policy on gays in the military, “Don’t Ask Don’t Tell (DADT). After revealing her long-kept secret, Alex began advocating for the repeal of DADT, including nationwide petitioning institutions of higher learning to ban military recruiting on campuses until DADT was repealed. Vermont Law School was one of the first to do so.  Alex continued this important advocacy in Georgia until DADT was finally repealed in 2011.

Can you imagine an American citizen wanting to serve her Country and being told the only reason she won’t be allowed to do so is who she loves?  Sounds crazy, doesn’t it?  But, although DADT has been abolished, and although same gender citizens may now be married in any state in the United States, it would be wrong to say we are out of the woods of discrimination and we don’t ever have to worry about that again. We need look no further than to our current Administration’s constant threat to reinstitute a ban on gays and transgendered people in the military.  Or the current Justice Department’s intervening in a private employment lawsuit arguing that the ban on sex discrimination in the Civil Rights Act of 1964 does not protect workers on the basis of their sexual orientation. Or the recent sentencing of a gay man to death by a South Dakota jury because sending him to prison for life would be sending him “where he wants to go and he shouldn’t be able to spend his life with men in prison.”  The United States Supreme Court refused to grant the defendant’s certiorari petition on the basis of what was clearly anti-gay bias of the jury. Thus, you see why we must continue fighting the good fight.

In last year’s Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 868, 197 L. Ed. 2d 107 (2017), Justice Kennedy wrote that “racial bias [is] a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice. This Court’s decisions demonstrate that racial bias implicates unique historical, constitutional, and institutional concerns. An effort to address the most grave and serious statements of racial bias is not an effort to perfect the jury but to ensure that our legal system remains capable of coming ever closer to the promise of equal treatment under the law that is so central to a functioning democracy.”  Until we can easily substitute “sexual orientation bias” with “racial bias” in this sentence, we have not realized the Constitution’s promise of justice for all.

So, it is not hyperbole to say Judge Manning is a true American hero, for her example, for her sacrifice, for her honesty and openness, for her dedication to equality and to justice for all.  She is exactly who we want on the bench, who can bring to bear her toughness forged by personal struggle but tempered with deep compassion. And it is with that courage in mind that tonight we fittingly honor Judge Alex Manning.

Please join me in congratulating Judge Manning.

 

Robin Frazer Clark is a trial lawyer who pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others.  Ms. Clark is the 50th President of the State Bar of Georgia, a Past President of Georgia Trial Lawyers Association, a Past President of the Lawyers Club of Atlanta and has practiced law in Georgia for 30 years. She is a member of the International Society of Barristers and of the American Board of Trial Advocates. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer.

Robin Frazer Clark ~ Dedicated to the Constitution’s Promise of Justice for All.

 

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I have been following the talc trials against Johnson & Johnson regarding the claims that their powder product gives women ovarian cancer and lung cancer. I hope you have been, too.  They are, obviously, very interesting.  I can’t look at the Johnson & Johnson powder of bottle sitting on the vanity of the locker room where I work out without thinking about the cases and the many women who have died of these cancers allegedly from years and years of use of Johnson & Johnson powder.  The most recent trial in California was just recently declared a mistrial by the trial judge, Judge Margaret Oldendorf.  The case is Weirick v. Brenntag North America, BC656425, California Superior Court for Los Angeles County (Pasadena).  It involved a claim that use of Johnson & Johnson powder had caused the plaintiff’s mesothelioma, a specific type of lung cancer. The Plaintiff, Weirick, 59, is a school counselor who said she’s been using J&J’s talc products, such as baby powder and the company’s former Shower-to-Shower line, for more than 40 years. She was diagnosed with mesothelioma in 2017 and said her only exposure to asbestos came from use of talc products. Previous juries had come out with verdicts of $25.75 million and $117 million for the plaintiffs, a defense verdict and two mistrials.

This latest trial in California was particularly interesting due to the alleged misconduct of one juror, now scandalously known as “Juror No. 7.”  (By the way, if you are ever on a jury and in the course of the trial become known by your Number, it is never a good thing).  Juror No. 7, apparently, refused to deliberate with the other 11 jurors, to the point that the foreman asked the judge to replace the juror with an alternate.  The defense objected and asked for a mistrial.  The plaintiff’s counsel agreed to the substitution.  This is interesting because it was never disclosed what side Juror No. 7 was holding out for;  Juror No. 7 could have been a juror favorable for the defense and yet defense counsel objected and moved for a mistrial. In fact, it was never disclosed which side the entire jury was leaning in favor of, only that at the time a mistrial was called by the trial judge, the vote was 8-4. At that time, neither side knew which side had the 8 jurors. Since then, it has come to light that the 8 jurors favored the Plaintiff.  George Chen, a 30-year old computer analyst and one of the eight who favored a plaintiff verdict, said he was “a little frustrated” and “really wanted to push this through.” He said the four members who voted for the defense seemed to have ”the mindset of … business people” concerning what a responsible company should do.

Even if there were mere traces of asbestos, J&J should have provided warnings, Chen said, because “people have a right to know.” Moreover, he noted, J&J for decades has offered a baby powder made with corn starch, and could have retired the talc version to eliminate any risk.

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