You probably by now have heard the shocking news that Equifax has been hacked by cyber terrorists which has resulted in the exposure of the personal data and identity of approximately 143 Million people. Now, in an obvious attempt at emergency public relations, Equifax has set up a website where those affected by the security breach, allegedly offering free credit monitoring. But here is the catch (you KNEW there had to be one): If you sign up for the free credit monitoring on the site Equifax has set up to supposedly help customers identify whether their information was stolen as part of the hack, you will (most likely unknowingly) have also signed a forced arbitration clause aimed at keeping consumers out of court, and shielding Equifax from lawsuits.This comes after we learn that the higher-ups at Equifax, rather than trying to help you, the potential victims of this massive data breach, sold many of their shares of stock, to the tunes of millions of dollars, knowing that the stock would surely drop after news of the hack became public. A Federal class action has already been filed, alleging Equifax Chief Financial Officer John Gamble sold Equifax shares worth $946,3874; Joseph Loughran, president of Equifax’s U.S. information solutions, exercised options to sell stock worth $584,099; and Rodolfo Ploder, president of the company’s workforce solutions, sold $250,458 worth of stock.We have corporate misbehavior of the worst order, and a terrible data breach that may expose secret information of 143 million people. All on a day when Equifax’s Chamber allies and trade association had several House Republicans holding a hearing pushing Rep. Loudermilk’s bill to gut the FCRA. Then, to top it off, Equifax urges customers to sign up for a product that supposedly will help protect them, but that product has a fine print forced arbitration clause aimed at killing data breach cases.
In continuing the series of blogs on distracted driving, I saw a heartbreaking story on the news last week that unfortunately fits right in with the other blogs on Texting While Driving and Snapchatting While Driving. An 18 year old girl was driving her 14 year old sister while operating a Livestream video feature of the Instagram app. Her car drifted into the other lane, and when she overcorrected, the car flipped. Her 14 year old sister was ejected from the car and died. The older sister — while driving — captured the whole thing on video.
The older sister was arrested on-site for suspicion of DUI and gross vehicular manslaughter. Even if the family does not file a civil complaint — for the wrongful death of one daughter caused by another — the driver faces 13 years in prison if convicted on all 6 felony counts. (Keep in mind that there may be family immunity laws that would even prevent such a lawsuit).
In a recent case involving an accident while using the Snapchat app, the plaintiff sued Snapchat, Inc. for having the “speed overlay” filter, which has incentives for a driver to use the app while the car is in motion at high speeds. This differs from the Instagram Live function, which seemingly has no “incentives” or benefits for using the function except keeping friends up to date with your every move. Were this motor vehicle accident to be filed as a civil complaint, it would be interesting to see if Instagram could be held liable for the resulting death, as the “incentives” from the Snapchat app were the main argument behind the plaintiff’s claim.
What is the price of a life lost? Could you put a price tag on your own life or that of a family member, killed at the hands of a negligent defendant? How much would you want people to say your life would have been worth?
These are the questions that juries must face when evaluating “damages” to award in wrongful death cases. Plaintiffs’ attorneys must ask the jurors to award money to a family who has lost its loved one due to the negligence of someone else. It’s tough to ask and even tougher to answer, but when parents have lost their child because of someone’s negligence, there must be some sort of monetary justice for the family.
So how much is a life worth? The Georgia Code provides: “The amount of the recovery shall be the full value of the life of the decedent.” O.C.G.A. § 51-4-5. But what determines that full value of life? The judge may instruct the jury: “You should consider the gross sum that the deceased would have earned to the end of life had the deceased not been killed… in determining the amount of the full value of the life of the deceased. The full value of the life of the deceased is not limited to the amount of money that could have or would have been earned had the deceased not been killed.”
Parental concern, law enforcement warnings, and user disapproval of the recent updates to the Snapchat app are the least of the company’s worries. Though Snapchat, Inc. has made the headlines recently due to the updates, this isn’t the first time the company has been under scrutiny from the public. In April of 2016, a complaint for damages was filed in a Georgia state court against the company for injuries sustained from a motor vehicle accident, claiming that the main cause of the accident was the speed filter of the Snapchat app.
The speed filter allows a driver behind the wheel to document his or her speed by “snapping” a picture while the car is in motion. On this one particular night, a teenage driver allegedly opened her Snapchat app while driving as an attempt to snap a picture of her car reaching 100 mph. The driver allegedly, according to the Complaint, accelerated until reaching approximately 107 mph before she realized another driver had pulled onto the road. She crashed into him at full speed. Both cars were totaled, leaving multiple people with tremendous injuries – both physical and psychological – and thousands of dollars in expenses.
The plaintiffs have sued Snapchat for negligence, in part because this is, according to the Complaint, not the first instance in which a Snapchat user has used the speed filter of the app and caused a car crash. Petitions online even called for the app to remove the filter or for the app to restrict the usage of the filter while driving. Despite knowing that the speed filter presented many dangers to the public, as of the date of the incident above, Snapchat had not removed the speed filter, thus creating the perfect opportunity for another distracted driver to cause serious harm.
In Washington last month, Governor Jay Inslee took a step towards improving the safety of his streets by signing a law prohibiting the holding of any electronic device (cell phones, tablets, etc) while driving or waiting at a stop light. The law will go in effect in July due to the Governor’s veto of a section that would have postponed the law’s implementation until 2019. The matter is just too important to wait.
As technology’s prevalence in our everyday lives increases, its capability of distraction from our other daily activities increases as well. This includes our activity within our car. The human’s false sense of ability to multitask often leads to problems behind the wheel. The driver only looks away for one second or only needs to pick up that napkin or only needs to change the radio station or only needs to send that last text. But those single and quick moments that the driver’s attention is diverted are the single and quick moments that can take the driver’s or someone else’s life.
The problem doesn’t only occur with drivers looking away. A driver can be very much so distracted while his or her eyes are fixed on the road. There are many different types of distractions: internal (items inside the car), external (objects outside the car), visual (eyes taken off the road), manual (hands taken off the wheel), and cognitive (distracting thoughts). It just so happens that the use of the cell phone is a combination distraction; it combines the dangerous aspects of the various types of distractions into one grand distraction. In the entire time that you go through the process of picking the phone up, looking down at it to find the contact you want to call, thinking about if the other person can answer your call, and physically dialing the call, your focus has been taken off driving long enough to have an accident.
I had the privilege of being asked by the newly inducted State Bar President, Buck Rogers, to deliver the Invocation at the 269th Board of Governors Meeting held this past weekend on Saturday, June 10, 2017 at The Westin Jekyll Island. It was, of course, my honor to do so. I have had many requests for a copy of the invocation, including from President Rogers himself, so I thought I would share it hear with all of you along with my sincere best wishes to President Rogers for a wonderful Bar year.
INVOCATION at the State Bar Annual Meeting
JUNE 10, 2017
As I work at my desk in my office today, I have the voir dire (jury selection) in the retrial of Ray Tensing livestreaming on one of my monitors. Some folks have called jury selection the most boring part of any trial, but it may very well be the most important, because from jury selection comes the group of local citizens who will decide the fate of the parties in the case and really decide what the conscience of the community is regarding the issue being tried. The Ray Tensing case is an excessive force case being tried in Cincinnati, Ohio this week. Tensing is the former University of Cincinnati police officer charged with one count of murder and one count of voluntary manslaughter in connection with the 2015 shooting death of Sam DuBose. The deadly encounter happened during an off-campus traffic stop. Tensing has said he fired his service weapon in self defense. The incident was captured by Tensing’s police-issued body-worn camera. A am watching the criminal trial of Mr. Tensing, who is being tried for on one count of murder and one count of voluntary manslaughter. There has already been a civil case that settled for money damages against the University of Cincinnati, Mr. Tensing’s employer at the time of the killing. It is being tried for a second time because the first trial ended in a mistrial. Watching voir dire or jury selection is helpful to me as a trial lawyer, not only in ideas of potential bias to explore but in hearing how a certain cross-section of our nation feels about jury trials in general. It is interesting that in Ohio, if a lawyer asks the Court to strike a juror for cause, meaning the juror has expressed so much bias about the issues and has stated he doesn’t think he could be fair on the case, the lawyer moves to strike the juror out loud in front of all the other jurors. For example, one juror who the judge struck for cause said in jury selection that he thought Mr. Tensing “deserved a medal” for shooting Mr. Dubose. No wonder why he was struck for cause. In Georgia, we don’t do it that way because of the fear that once the judge strikes one juror for cause, in front of all the other jurors, the rest of the jurors will figure out what to say to get off the jury and then pretty soon all the jurors are gone. So in Georgia we approach the bench and make these sort of motions to the judge at her bench.
Many of the folks in the Tensing jury panel have mentioned the concern and anxiety they had simply upon receiving a juror summons requiring them to be present in court for the jury selection of this case. They have expressed their bewilderment about whey they of all people in Cincinnati received a juror summons, why they have to be there, why they have to take time out of their jobs and lives to be there…in short, why them? Why me?
Interesting question, and with a recent opinion issued by the Supreme Court of Georgia, Ricks v. State, infra, regarding how a jury panel is composed, I thought it merited looking into the issue of jury composition a bit deeper. Georgia has a fairly new Jury Composition Rule that controls the manner in which Georgia citizens will be summoned for jury duty. For use in compiling official lists of potential jurors, the Jury Composition Act directs the Clerks Council to obtain voter registration records from the Secretary of State and driver’s license and identification card records from the Department of Driver Services (“DDS”); the Act also directs the Clerks Council to obtain records on individuals who are ineligible for jury service, including certain records regarding mentally incompetent persons and convicted felons who have not had their civil rights restored. See id. § 1-16 (codified as amended as OCGA § 15-12-40.1 (b), (c)). Ricks v. State, S17A0465, 2017 WL 2061675, (Ga. May 15, 2017)
My office is in downtown Atlanta and I drive each day through Georgia State University, which now has an enrollment of 32,802. You can imagine how many of those 32,802 are walking on the sidewalks and crossing busy downtown streets at any given moment on a weekday. And just add these students to the normal, everyday Downtown Atlanta population of employees, deliverymen, and homeless people, bicyclists who weave in and out of traffic and the schizophrenic Streetcar, which can wait at a station for interminable minutes or pull away without notice at any given second. Suffice it to say there are a lot of pedestrians on our streets downtown. Nearly every day at least one of them attempts to dart out in front of my car, regardless of whether they are even close to a crosswalk. Apparently, crosswalks are for looks only in downtown Atlanta. A driver must be extremely vigilant while driving downtown not to have a mishap with a pedestrian. Add to the inherent danger of crossing a street the aggravating factor that many pedestrians are on their phones while walking out in the middle of the road. I have seen pedestrians talking on their phones, listening to their phones with earphones, texting on their phones, texting on their phones while talking on their phones on speakerphone and every other possible configuration of phone use while walking. Surely, if they are hit this would amount to a heck of a lot contributory negligence? The number of incidents of pedestrians being hit by cars is on the rise. For example, in 2013, 180 pedestrians were killed statewide, making it the deadliest year for pedestrians since 1997. The CDC reported that in 2015 5,376 pedestrians were killed in traffic crashes in the United States. This averages to one crash-related pedestrian death every 1.6 hours. Additionally, almost 129,000 pedestrians were treated in emergency departments for non-fatal crash-related injuries in 2015. Pedestrians are 1.5 times more likely than passenger vehicle occupants to be killed in a car crash on each trip. Atlanta is reportedly the 8th most dangerous city for pedestrians.
So who has the right of way?
The Governor’s Office on Highway Safety does a pretty fair job at trying to educate pedestrians regarding right of way and their duties to watch out for their own safety, in addition to vehicle driver’s duties to watch for pedestrians.
Many of you readers know I have often blogged, tweeted and spoken in public about suicide and what we as someone’s friends, family or colleagues can do to recognize a real suicidal threat and what we can do to get help to someone before he or she attempts to take his or her own life. We know so much more about suicide today than we did just 20 years ago. I would venture to say that what we thought about suicide and it’s causes 100 years ago would border on naivete, akin to treating leukemia with leeches. For example, today we know that means restrictions, preventing access of the means or instruments to kill oneself, dramatically lowers the suicide rate, where 100 years ago we simply concluded if someone is suicidal it could not possibly be prevented. In a recent Harvard School of Public Health study, it was shown that if someone who is suicidal is simply prevented from having access to the means to commit suicide one time, 90% of those who had wanted to kill themselves but did not have access to the means or instrument (guns, drugs, rope) to kill themselves did not attempt suicide again. Cyberbullying has become a leading cause of teen suicides. Social media has been at the root of numerous teenage suicides, especially where embarrassing photos or videos are posted online, which then go viral and are be seen by hundreds of classmates before the next day of school. This type of cyberbullying, using compromising or embarrassing images, has become so prevalent in our schools that many states are enacting legislation to criminalize it. This fact alone suggests suicide following cyberbullying is predictable.
Probably one of the most well-known and saddest cases of cyberbulling was the case of Tyler Clementi, an 18 year old freshman at Rutgers University, who jumped off the George Washington bridge into the Hudson River, killing himself. Tyler’s roommate had secretly filmed him having a private, sexual encounter with another male in Tyler’s dorm room. The roommate then live-streamed the intimate encounter on the internet. Would anyone doubt that Tyler would have been suicidal following a livestreaming of his most private, intimate moment in his own room? Studies have shown that cyberbullying, especially when it involves intimate photographs or videos, leads to an increased risk of depression and suicidal ideation. Thus, it has become foreseeable and even highly likely that a young person may want to commit suicide after experiencing sexual or intimate cyberbullying. Who could blame them?
Which brings me to City of Richmond Hill v. Maia, S16G1337, Supreme Court of Georgia, May 30, 2017. You may remember I have written about this tragic case before, in my June 9, 2016 blogpost “Who Is Legally Responsible for a Suicide?” I was writing about the decision by the Georgia Court of Appeals at that time. To remind of you of the horrible facts in Maia, this is what I wrote then:
You Supreme Court nerds out there (and you know who you are) are probably aware of the fact that the United States Supreme Court recently heard oral arguments in McWilliams v. Dunn. At issue in the case is whether James McWilliams, an indigent defendant whose mental health was a significant factor at his capital trial, was entitled to an independent psychological expert to testify on his behalf. The prosecution presented the expert testimony of one psychiatrist and argued the Defendant was not entitled to his “own” psychiatrist as the one offered by the prosecution was essentially neutral, even though he was retained and paid by the State. Stephen Bright, longtime president of the Southern Center for Human Rights, represented McWilliams. The issue presented to the Supreme Court in McWilliams was this: “Whether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution.” Amicus, the podcast by Slate that focuses on the Supreme Court, covered the McWilliams case in its latest episode, “The Myth of the Neutral Expert.”
This is a fascinating discussion, especially considering the very life of an inmate hinges on the opinion. Some states have even placed a temporary halt on executions for inmates on death row until the McWilliams opinion is delivered. As a personal injury trial lawyer, I mused how expert witnesses are treated differently in civil cases, you know, in cases where mere money is at issue and not someone’s life or liberty. Of course, having one so-called “neutral” expert witness, to testify for both sides of a case, would never happen in civil cases. I haven’t tried a case without the appearance of at least one expert witness at trial in well over 20 years now. My cases are complex and naturally either require or will benefit from expert testimony. At a minimum. I will present the testimony of a treating physician, who certainly is an expert in his or her medical specialty, even if not an expert “specially retained to testify at trial.” In civil cases, especially medical malpractice cases, we often hear such testimony described as “The Battle of the Experts.” Defense attorneys have gotten into the habit of hiring just one more expert than the plaintiff has so that they can argue they have “more” experts on their side and, therefore, naturally, you should side with the party who has more experts (regardless of how credible those experts are!). What jurors may not be aware of is that the defense experts are being paid by the defendant doctor’s malpractice insurance carrier, not the doctor himself, so the sky’s the limit. Not so for plaintiffs. Plaintiff’s must front those expenses out of their own pockets, and because no individual plaintiff can afford to do so, this means the plaintiff’s attorney must pay for the experts in a case on his or her own dime. That may not make sense to you but that’s how it works. As you can imagine, hiring numerous experts simply to have one more than the other side has can get expensive. Where does this end? But defendants have unlimited sources of money for this and plaintiffs don’t.
Here is the law of Georgia that the trial judge will read to the jury regarding expert witnesses: