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I read with interest the news today that Governor Andrew Cuomo announced the State of New York will no longer send 16 and 17 year olds to prison for criminal offenses. Instead, they will be sent to special newly created youth courts for felonies and to family court for misdemeanors. This new law is called “Raise the Age” initiative.   Kudos to New York. And kudos to the other states that have raised the age for incarceration in state prisons.  Since 2009, seven states have raised the age of adult proscecution to 18 and five more have tried during their 2015-16 legislative sessions.  Here in Georgia, Representative Mary Margaret Oliver, Representative from the 82nd District, filed proposed legislation that would raise the age of adult criminal prosecution to 18 and enlarge the jurisdiction of Georgia Juvenile Courts to include 17 year olds.  House Bill 53 was attempt by Oliver to treat juveniles under age 18 as just that…juveniles. “There are only six states that allow minors to be treated as adults for the criminal prosecution of all crimes,” said Rep. Oliver. “HB 53 is intended to bring Georgia into the mainstream so that 17-year-old minors will no longer be prosecuted as adults, but will be adjudicated in the juvenile court. Expanded juvenile court jurisdiction to include 17-years-old children is a needed reform.”  If passed, HB 53 would adjust the juvenile court’s jurisdiction to include children under the age of 18. This jurisdiction includes the investigation and examination of delinquent acts committed by minors. Under current law, only children under the age of 17 are included in the jurisdiction of the juvenile court.  HB 53 was read on the House Floor, but unfortunately, never received a vote. In fact, there was other legislation filed in the Georgia General Assembly that would lower the age for criminal prosecution for certain offenses rather than raise it.

Many advocate groups are joining in the fight to raise the age for criminal prosecution. For example, the Campaign for Youth Justice, based in Washington, D.C.,  is focused entirely on ending the practice of prosecuting, sentencing, and incarcerating youth under the age of 18 in the adult criminal justice system.  Statistics show that every year in the U.S., as many as 200,000 youth are put into the adult criminal justice system, most of them for non-violent offenses. In 22 states and the District of Columbia, children as young as seven can be prosecuted as adults. Each year 95,000 youth are held in adult jails and prisons.  Research shows that youth in adult jails and prisons are at a higher risk of physical, sexual, and emotional abuse than their peers in the juvenile justice system.   Advances in behavioral and brain science show that adolescent brains are different from adult brains.  Consequently, the judgment “exercised” by youths is different than that exercised by adults.  The American Bar Association recently reported on this in its February 2017 Journal.  The article interviews Dr. Judith Edersheim, co-director of the Center for Law, Brain and Behavior at the Massachusetts General Hospital. As Dr. Edersheim  explains it, “there are three widely agreed-upon differences between adult brains and adolescent brains. One is that during adolescence, kids actually lose “gray matter,” the brain cells that do all of the brain’s computation. This “pruning” of gray matter is especially concentrated in the frontal lobes, which are responsible for self-control, planning, decision-making and other executive functions.At the same time, Edersheim says, teenagers get more “white matter,” the cells that pass messages between parts of the brain, which increases processing speed. Scientists think these two changes make the brain more efficient, even though it also loses some computational ability. This process of brain maturation continues after the body matures; some scientists think it ends as late as age 25.  But perhaps the most conspicuous difference, Edersheim says, is that adolescent brains have more circulating dopamine—a neutrotransmitter that scientists believe governs rewards and learning—and more receptors in their brains to pick it up. Dopamine is released when a person receives many kinds of rewards, including new experiences, as well as things such as food and sex. This predisposes teenagers to seek out rewards and novelty. The thinking, Edersheim says, is that this helps push adolescents out of the nest and into the world. And what kids learn during this process, she says, helps determine what parts of the gray matter get pruned. That means a kid’s environment matters a lot, and adult prison isn’t the best environment.  “If you don’t provide an adolescent with an opportunity to develop a social competency or self-esteem, if you don’t put them in contact with pro-social peers, then you’re setting trajectories which actually might persist through adulthood,” Edersheim says. “Adolescents are really these neurologic sponges for their environment.””

One of the reasons I am interested in this legislation to raise the age is because I represent the mother of a young man who was incarcerated in adult state prison here in Georgia at the age of 16.  At the age of 17, he attempted to kill himself by hanging from his bedsheet. He now remains in  a constant minimally conscious state in a nursing home in South Georgia due to the brain damage he suffered during the suicide attempt. He is 19 years old.  I firmly believe that had he not been sent to an adult prison at age 16 he would be a healthy 19 year old now, looking forward to rehabilitation for the offense he committed. That will never happen now.  Solitary-Confinement-Canada-Prisons-SAN-300x210

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We are about to reach the 100 day milestone of the current POTUS, and with that come many criticisms and many “attaboys.”  It’s all in the eye of the beholder. This POTUS is the first in a string NOT to be a lawyer.  When you think about that, the fact that he is not a lawyer, nor has he ever served in any public service role, means he has had no formal training in the Constitution nor in either drafting, interpreting or applying legislation. These are things that lawyers do every day, day in and day out. That is pretty obvious. What may not be at the forefront of your mind when thinking about lawyers is the professionalism displayed by lawyers every day.  Not only must lawyers as professionals in the practice of law abide by certain formal ethical rules and rules of professionalism, they must also insure they practice with a certain courtesy and respect for their opponents and for the judicial system that other people, say, real estate tycoons, for example, do not.  So as we approach that 100 day marker for the POTUS, I have been thinking of a few things that POTUS, a non-lawyer, so far has failed to demonstrate consistently in the last 100 days and what he could learn from lawyers…things I think would naturally serve him, his administration and most importantly, the people of the United States, well.

  1.  Be Impeccable With Your Word.  A lawyer’s ability to advocate successfully for his or her client is only as good as his or her credibility, and credibility directly flows from being able to count on what a lawyer says as being true.  No half-truths, no hedging the truth, no embellishment to make your facts seem just a little bit better than they really are.  A lawyer must always tell the truth in all dealings or risk  complete  ineffectiveness, or worse, a client’s, or an opposing counsel’s, or a judge’s (gasp!) not being able to believe what the lawyer is telling them. Once that happens, all is lost. You may have heard this referred to as “your word is your bond.” The Cambridge Dictionary defines this as “If someone’s word is their bond, they always keep a promise.”  Nothing is truer for a lawyer.  Lawyers even have a duty of candor to the court to inform the court of case law or precedent that goes against their client’s position in court.  Can you imagine a salesperson having to tell a customer that he could actually sell a car to you for less than what you, the customer, is willing to pay for it? Of course not, but lawyers are required to act with that much candor and honestly at all times before the Court.  The ideals of professionalism in the practice of law are aimed at ensuring our profession remains a “high calling” and not “just a business like any other,” enlisted in the service not only of the clients, but of the public good as well.  “A Lawyer’s Creed,” developed by the Chief Justice’s Commission on Professionalism (the Commission),  states it as thus:  “To the courts, and other tribunals, and to those who assist them, I offer respect, candor, and courtesy. I will strive to do honor to the search for justice. ” 
  2. Never Take Anything Personally.  I think this is good advice for everyone, but especially lawyers must behave like this and are expected to do so.  Trial lawyers must always do their jobs in an adversarial situation. By definition, there will also be another lawyer representing the opposing party in a lawsuit trying his or her level best to prevent you from succeeding. Think how hard this is!  If we were talking about the profession of medicine and using surgery as our analogy, no other surgeon comes into an operating room to try to prevent the operating surgeon from performing the surgery successfully! No other doctor comes in and tries to kill your patient! But that is precisely what occurs in the practice of law. Every time I represent a client there is an opposing counsel trying to prevent me from succeeding. It’s pretty stressful, but would be even worse if the lawyer takes his opposing counsel’s efforts personally.  The opposing counsel is just trying to do his job well, too. That’s all. And The Lawyer’s Creed requires lawyers to promise this to opposing counsel:  “To my colleagues in the practice of law, I offer concern for your welfare. I will strive to make our association a professional friendship.”  We also are required to make this promise: “To the opposing parties and their counsel, I offer fairness, integrity and civility. I will seek reconciliation and, if we fail, I will strive to make our dispute a dignified one.”  Temper tantrums and other demonstrations of pettiness and “unsportsmanlike conduct” have no place in the legal profession.   Following a trial, adversaries shake hands, regardless of the outcome. I have never had a problem shaking the hand of my able adversary when he or she has conducted himself or herself with integrity and professionalism throughout the litigation. It honors our justice system and your opponent. As Shakespeare wrote in “The Taming of the Shrew,” “do as adversaries do in law, strive mightily but eat and drink as friends.”

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It’s only a matter of time before you or a loved one is injured by one of these nuisances that are so prevalent on Atlanta city and county streets these days.  Or it’s just a matter of time before you damage your car from driving over one of them.  The ubiquitous metal plate. Who thought these were a good idea in the first place?  The metal plates in the photographs above are currently on my street, Oakdale Road in unincorporated DeKalb County. These two metal plates have been there for months.  And notice there is really nothing hold them in place other than the mere weight of the things and gravity.  But a truck that ways 60,000 pounds loaded, or an SUV that weighs 10,000 pounds or even a small car that weighs 6,000 pounds going 35 m.p.h. can easily move these plates when they are not pinned down.  Once moved, they become a potentially fatal hazard to the motoring public. Imagine coming upon this monster (see photograph below) as you mind your own business driving down the road. Once your car ran over it, you and your car wouldn’t stand a chance.  The weight of your car would cause the metal plate to flip and your car would fall into the sinkhole below. It is doubtful you could escape without serious bodily injury.  The photographs below show several metal plates that are clearly not pinned down or held down in any way whatsoever.  Car and truck traffic have obviously shifted them, so that the next unknowing driver, potentially YOU, could be swallowed by the hole they are supposed to be covering.  I am confident this is not an isolated situation;  my guess is that you have seen the frightening scenario below multiple times.

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There are actually requirements for the way these metal road plates are required to be placed on the roadway.  For example, steel plates must be fixed in place to avoid movement.  In addition to being firmly in contact with the pavement, they should be either pinned, recessed into the pavement, or secured with asphalt wedges around the perimeter. Pinning into the pavement involves driving pins into the pavements along the edges of the steel plates to prevent movement. Recessing involves cutting out the area where the steel plate will be placed.  If these are the mandatory requirements for use of these monsters, why are they so seldom pinned down or recessed?  As a member of the motoring public, you are entitled to assume these plates have been put down and affixed to the street properly so that they are safe for you to drive over. The law does not require you to drive around them in an effort to avoid them.

Remember the “Pothole Posse” formed by then City of Atlanta Mayor Shirley Franklin?  It seemed to make progress for awhile, but after the initial excitement about bringing back safe streets, we are right back where we were with our streets littered and cluttered with these metal plates. Recently, in New York, such metal road plates may have played a role in a fatal crash that killed six people.

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The Georgia Supreme Court today issued an opinion that makes it clear the age-old rule of “one free bite” for a dog before an owner can be held responsible is no longer Georgia law.  The Court’s opinion in Steagald v. Eason, S16G0293 (Ga. Sup. Ct. March 6, 2017) overturned prior case law that held the opposite. (“To the extent that the Court of Appeals held otherwise in Hamilton v. Walker, 235 Ga. App. 635 (510 SE2d 120) (1998) (a 4-3 decision), when it said that “the dog must have, on a prior occasion, done the same act which resulted in the injury comprising the tort action,” id. at 635 (citations omitted), the Court of Appeals misconstrued its own precedent, and that decision is disapproved.”). In Steagald, the dog at issue, “Rocks,”  had twice before “snapped” at neighbors, without actually biting them. Then, in a third incident, when the neighbor  approached the dog and extended her arm, Rocks jumped at her, bit her arm, and latched onto it. The neighbor attempted to run away, and when she did, she slipped and fell. At that point, Rocks bit and latched onto her right leg. The woman sustained serious injuries as a result of the attack.

The time-worn “one bite rule” refers to this:  A rule that says that the owner of a domesticated animal (e.g., a dog) will be held strictly liable for injuries caused by the animal only if the owner knew or should have known about the animal’s dangerous or vicious propensities, which have been manifested in the past. The burden of proof is on the injured party to show that the animal owner possessed this knowledge. The “one-bite” rule originated in common law and has been rejected or modified by most states, either by statute or by case law, with regard to dogs.  Many states, including Georgia, have long followed this rule, holding that a dog owner has no liability as a matter of law to a person who his dog bites and injures unless the owner was aware of a previous bite by his dog. But today the Georgia Supreme Court acknowledged that the two prior “snaps” by Rocks at the neighbors were really just “unsuccessful bites.”  The two prior “unsuccessful bites” were enough to put the owner on notice that his dog may have a vicious propensity, which is part of what a plaintiff must prove to prevail in a dog bit case. Justice Keith Blackwell authored the opinion of the Court. Known for his sense of humor, Justice Blackwell apparently found the serious injuries of the Plaintiff no laughing matter and wrote:  “An attempt to bite in the absence of provocation most certainly may be proof of a propensity to bite without provocation. And as the Court of Appeals correctly recognized in earlier decisions, when the evidence shows that an owner or keeper knows of such an attempted bite — that a dog has snapped at someone, nicked someone with its teeth, or otherwise used its mouth to attack someone without injuring her — it may well be sufficient to establish knowledge of a propensity to bite.”  The opinion was unanimous by the Court.

I think the Georgia Supreme Court has fashioned a fair and common sense rule here. The “one free bite” rule let the owners of vicious dogs off the hook, or off the “leash” so to speak, too easily.  We all know a pit bull who barks at someone and snaps and jumps at someone but doesn’t actually bite, is just one leash-break away from a horrific mauling. Dogsbite.org reports in the 12-year period of 2005 through 2016, canines killed 392 Americans. Pit bulls contributed to 65% (254) of these deaths. Combined, pit bulls and rottweilers contributed to 76% of the total recorded deaths. Family dogs inflicted 45% (14) of all deaths in 2016; family pit bulls accounted for 86% (12) of these deaths, up from an 11-year average of 63%. Of the 22 fatal pit bull attacks, 55% (12) involved a family or household member vs. 45% (10) non-family. Many Georgia counties and cities have in place specific ordinances about dogs with vicious propensities, especially pit bulls.  And who can  forget the tragedy of the death of a little boy and mauling of a little girl this January as they walked to their bus stop in Southwest Atlanta by pit bull?  These ordinances are created with the policy in mind of encouraging owners to have better control over their dogs.  And the Georgia Supreme Court’s opinion in Steagald will help hold negligent dog owners responsible for the havoc created by their vicious dogs.  Dog owners should take notice and act accordingly.

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“They treated him worse than a dog.”  That is how Kevin Williams, brother of Elliott Williams, described what correctional officers did to his brother at the Tulsa (Oklahoma) jail where Elliott was held for a week after being picked up by Tulsa police for behaving erratically at a hotel. Apparently, Elliott Williams was in the throws of a mental breakdown after his wife informed him she was leaving him.  Tulsa police picked him but never charged him with any crime, never finger-printed him, never set bond and never allowed him to call his family, despite repeated requests.  Mr. Williams told the guards he could not walked and felt he may have injured himself in his cell by hitting his head.  The guards thought Mr. Williams was joking, despite Mr. Williams’ lying naked on a blanket on the floor of his cell. He obviously could not move his lower extremities.  The hard-to-watch video shows the six days of agonizing torture Mr. Williams suffered at the hands of the jail guards.  I am warning you: before you watch the video, which is linked in The Frontier’s article about the case. It is nothing short of humiliating, degrading human torture by these guards. The video clearly shows the guards barely walking into Mr. Williams’ cell.  One places a cup of water on the floor by him.  Several times they slide boxes of food near him, which, of course, he can’t reach, open or eat because he is paralyzed. He does not drink anything or eat anything for six days while these jail guards watch him die. The only water he has for those horrific six days are a couple of drops that he is able to put in his mouth after he somehow was able to dip his fingers into a cup of water on the floor.  The video shows no attempt to give Mr. Williams any assistance at all, much less medical assistance to determine whether he was actually paralyzed, during those six long days. On the sixth day and the day of his death, the medical staff finally arrives, tests for reflexes and of course there are none because he is paralyzed and dead or dying. Only on the sixth day, after no medical help, no food, no water, does the jail’s medical staff attempt CPR on Mr. Williams, which of course does not work as he is dead.  Mr. Williams was allowed to die a most inhumane death conceivable, and his brother very aptly described it:  “He was treated worse than a dog.”

I have recently filed a lawsuit against Georgia State Prison for the attempted suicide of an inmate after he was found to be experiencing a psychotic break and in need of emergency psychiatric attention.  The prison’s idea of “emergency” psychiatric referral was an appointment with a psychiatrist five days later. Of course, my client, Nicholas, who was only 19 years old at the time, never made it to that appointment scheduled  five days later because less than 24 hours after being diagnosed with experiencing a psychotic break he attempted suicide by hanging himself with his bed sheet in his cell. His cellmate yelled and yelled for help. After a prison guard finally arrived at the cell, the guard saw him hanging but refused to get him down from the bed sheet noose. Instead, that guard radioed for assistance and the other guards, rather than helping Nicholas down from hanging, retrieved a camera to film him hanging. That video, as you can imagine, is graphic. Then the camera runs out of battery charge. So the guards leave Nicholas hanging and retrieve a second camera (I am NOT making this up) to continue filming him. Finally, the guards go into the cell to remove Nicholas and find that he is still alive. They begin CPR.  They are able to revive him, but due to the lack of oxygen for such a long time, he is left in a persistent minimally conscious state and suffered irreversible brain damage. He now requires 24 hour care in a nursing home. He cannot eat, he cannot speak and he cannot move by himself.  To say this case is tragic would be a massive understatement.

So, I have been immersing myself in jail and prison suicide cases and the applicable law.  Essentially, the only way to sue a jail or prison successfully on this type of constitutional rights violation is under a Federal statute, 42 U.S.C. § 1983.  Under this statute, the plaintiff must prove that the state actor (individual state or government employee) acted with “deliberate indifference” to the constitutional rights of the inmate. The determination as to whether a state actor acted with deliberate indifference in violation of either the Eighth or Fourteenth Amendment consists of an objective and subjective inquiry.  Hopper v. Montgomery Cty. Sheriff, 3:14-CV-158, 2017 WL 495511, at *12 (S.D. Ohio Feb. 6, 2017).  “Deliberate indifference requires the following: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than gross negligence.” Shuford v. Conway, 16-12128, 2016 WL 6820764, at 6 (11th Cir. Nov. 18, 2016). The plaintiff must show the constitutional right allegedly violated was “clearly established” at the time of the incident, so that an officer cannot claim as a defense that he “didn’t know” his treatment of an inmate violated the inmate’s constitutional rights.  “In this circuit, the law can be ‘clearly established’ for qualified immunity purposes only by decisions of the U.S. Supreme Court, Eleventh Circuit Court of Appeals, or the highest court of the state where the case arose.” Jenkins by Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 826 n.4 (11th Cir. 1997). This inquiry is limited to the law at the time of the incident, as “an official could not be reasonably expected to anticipate subsequent legal developments.”  A plaintiff can show the constitutional right violated was clearly established in three different ways: (1) case law with indistinguishable facts clearly establishing the constitutional right; (2) a broad statement of principle within the Constitution, statute, or case law that clearly establishes a constitutional right; or (3) conduct so egregious that a constitutional right was clearly violated, even in the total absence of case law. Lewis v. City of W. Palm Beach, 561 F.3d 1288, 1291–92 (11th Cir. 2009); see also Hope v. Pelzer, 536 U.S. 730, 743, 122 S.Ct. 2508, 2517, 153 L.Ed.2d 666 (2002) (noting that the reasoning of this Circuit’s holdings, even if a case did not involve the same precise facts, sends a sufficient message to reasonable officers in this Circuit for the purposes of the “clearly established analysis”).

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I’ve got jury duty and I can’t wait!  Said no one ever (except maybe lawyers who almost never get to serve on a jury).  You have just received your jury summons, making an already bad day worse. Now what do you do?

  1.  Show up at court.  When you receive a juror’s summons, it is an actual summons for you to appear in court. Failure to appear in court at the correct time can place you in contempt of court. Don’t make matters worse by failing to appear.  I have seen different courts handle this in different ways, ranging from a mere scolding by the trial court judge to payment of a fine. The trial judge can even hold you in contempt and threaten you with jail (although I have never seen this happen, and state court judges are elected so I doubt it ever will happen).  A trial judge in 

    Virginia recently gave 200 people who had been summoned for jury duty but who had failed to appear a lecture on the importance of the role of the jury in our judicial systems. “Jurors perform a vital role in the American system of justice,” Circuit Judge Jerrauld Jones told him at Friday’s court hearing, noting that the Founding Fathers thought they were so important, they put jury trials in the Bill of Rights.  “Jury trials prevent tyranny,” Jones said.  Judge Jones was, apparently, in a generous mood as he forgave their $100 fine and several people exclaimed “Thank you!” and “Bless the Lord!” when Jones told them he was dismissing the cases against them.

 

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As I work in my office, I often have livestreaming a trial or appellate arguments occurring in the Georgia Court of Appeals or the Georgia Supreme Court.  I have previously blogged about the meaning of open courts and the value in being able to watch our judicial branch at work. It is your government in action and every citizen has the right to watch it and should be able to watch it.  I firmly believe in it. Today I am glad to see others get on my bandwagon.  CNN published an article today online that essentially agrees with my position. Given the current state of affairs with the attempted ban on Muslims by Executive Order and given the President’s attempt to “blame” the Courts for simply upholding the United States Constitution, there has never been a more important time in our Country’s history than for the people to have total access to the courts through livestreaming or video.   Interestingly, oral arguments Washington v. Trump were broadcast on youtube.com although there was no video portion to watch, just audio.  When our own President is attacking the independence of the judiciary, livestreaming oral arguments would be the very proof needed to show he simply does not know what he is talking about.  Livestreaming oral arguments dealing with unconstitutional executive orders would dispel any absurd suggestion that courts or judges are political and are making decisions based on political pressures. It is ridiculous that our President would even suggest such a thing, when it is absolutely not true, but for any American who might for a minute believe it, they could simply watch for themselves and realize that our judges are making their decisions based on the facts, the law and the Constitution. Increased transparency promotes public participation, open government, access to information, efficiency, higher quality decision- making, and accountability. Further, transparency  reduces the opportunity for corruption.

 

Robin Frazer Clark 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 and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years.  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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As many of you know, I often watch oral arguments in the Georgia Supreme Court via its livestreaming capability on its website.   I encourage you to watch, as well. If you are reading my blog it means you must be interested in Georgia law, and what better way to gain some insight than to watch arguments before the State’s highest court? Having available online the live streaming of oral arguments really is a public service to Georgia citizens and a nod to open and transparent government from the Judicial Branch of Georgia government.

I wanted to let you know that tomorrow, February 7, 2016, an interesting and very sad case will be argued before the Georgia Supreme Court, City of Richmond, GA v. Maia.  I blogged about the Maia case when it was before the Georgia Court of Appeals.  My blog then asked “Who is legally responsible for suicide?”  Suicide and suicide prevention has been an interest of mine since one of my dear friends committed suicide in 2012, when I was President of the State Bar of Georgia. His suicide led me to form the State Bar’s Suicide Prevention Campaign “How To Save a Life.”  The issue of who is to blame for suicide is squarely before the Georgia Supreme Court now.  The City of Richmond argues you can never blame a third party for someone’s suicide because suicide is also an independent, intervening act.  This is based on years of rather old Georgia case law.  But we know now, after suicide prevention has become more of the public conversation and as open discussion about suicide is helping to remove the stigma associated with suicide, that sometimes it seems suicide can often be traced directly back to bullying of the victim by third parties.  It will be an interesting case to watch. My good friend Carl Varnedoe will be arguing for the Plaintiff and my good friend Pat O’Connor will be arguing for the City of Richmond.  Below is the Supreme Court’s case summary. I’ll keep you posted, as promised.

Tuesday, February 7, 2017 10:00 A.M. Session

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Today, a DeKalb County jury returned a verdict against two nurses who are employees of DeKalb Medical Center in the amount of $3.012 Million.  The case is  Edwards v. Nicome, et al., 11A36121. filed in the DeKalb County State Court.  The case  centered around the May 2009 death of Shari Edwards, age 31, who died of heart failure three days after being admitted to DeKalb Medical for preeclampsia and ultimately giving birth to her daughter.  A third defendant, a physician, was not held liable by the jury.  Congratulations go out to Plaintiff’s attorneys Bill Atkins, Rod Edmund and Keith Lindsay for what was obviously a valiant fight for justice in a three week trial.  The case was defended by a trial attorney who I have tried a case against before, Tim Bendin.  Bendin and his law firm often represents DeKalb Medical Center in personal injury cases.  Because the nurses who were found to be at fault are employees of DeKalb Medical Center, DeKalb Medical Center is responsible for the verdict.

The plaintiffs, the parents of the deceased Ms. Edwards, argued their daughter died because of peripartum cardiomyopathy, or heart failure, and the failure of her healthcare team, including Defendant physician Nicome and nurses Cox and Huber-Smith, to detect or treat her deteriorating condition.  The evidence showed Edwards’ blood pressure problems had initially been treated, but in the hours before her death her condition became more precarious with low oxygen levels and blood-gas levels joining her complaints that she was short of breath. Despite this, Edmond said medical records showed staff did not take Edwards’ vital signs for three hours before she went into the cardiac arrest that proved fatal.  The defense, however, argued Edwards’ condition was stable in the hours before her cardiac arrest, and her healthcare team treated her appropriately throughout her stay, including ordering tests and intervention where necessary.  Bendin, the nurses’s attorney, seemingly attempted to cast blame on the attending physician, arguing they were just trying to follow doctor’s orders. This simply didn’t work. No word on whether DeKalb Medical Center will appeal the verdict. They have 30 days from the entry of judgment to do so.

I have often had defense attorneys tell me that doctors and hospitals win 95% of their trials in Georgia. If that is true, to say the odds were against this family and this team of trial lawyers would be an understatement. And $3 Million for the value of the life of a 31 year old  could never be characterized of being a “runaway” verdict by any of those who think the Georgia Civil Justice System is out of whack and needs reform.  In my opinion, $3 Million for the full value of the life of this mother is probably even slightly conservative.  This verdict was a unanimous verdict by 12 DeKalb County citizens who all saw the evidence of negligence the same way, demanding justice in favor of the deceased patient’s family. There is nothing about it that could be labeled “runaway.”

iphone   This week in Georgia a Georgia State trial court ruled in favor of the social media application Snapchat in a personal injury case and granted Snapchat judgment as a matter of law based on immunity.  The case is Maynard v. Snapchat and is pending in the Spalding County State Court. The plaintiff, who suffered severe brain damage in a wreck when he was hit by a teen who was using Snapchat at the time of the wreck is ably represented by several of my friends, including Mike Terry and Michael Neff, both wonderful lawyers. The suit asserted that Snapchat’s speed filter—a feature which allows a user to photograph how fast a user is going—”motivated” McGee to “drive at an excessive speed to obtain recognition and to share her experiences through Snapchat.”  Apparently, young drivers who use Snapchat are now often driving recklessly fast so they can snap a photo of the speed of the car they are driving to share it with all of their Snapchat followers, and then I guess the reckless driver gets to brag to all of her friends, “Hey! Look at me!!  Me! Me! Me!  Look how fast I am driving!!  Whoopeeee!”  But the Snapchat app encourages the driver to break the law, drive way too fast, illegally fast, and then requires an action by the speeding driver to capture the not-to-be-missed moment.  Those few seconds of distraction force the young driver to take her eyes off the road and they often lose control of their car or fail to stay in their lane, resulting in a horrible car wreck and causing untold devastation to an innocent person minding his own business driving on the road that night.  In the Spalding County case the evidence showed the teen driver reached speeds of 113 m.p.h. AWFUL!

The defense attorneys argued successfully that Snapchat was entitled to complete immunity under the Communications Decency Act, passed in 1996, and whose Section 230 states, “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  This provision seems to grant immunity for written communications published on the social media application, not for creating an app that encourages someone to break the law in the first place.  Simply reading the literal words of the immunity provision, they would seem to be inapplicable to the facts of this case.  But I’m not a judge and the only opinion that counts is the trial judge’s and he disagreed with me.  Plaintiff’s counsel, I would assume, are considering an appeal.

This case shows a horrifying trend with the Snapchat “speed filter.”  In November of last year in Tampa, Florida, a teen driver who reached speeds of 115 m.p.h. lost control of her car, crossed a median and hit a minivan carrying a family. The wreck killed five people. Snapchat says it actively discourages “their community” to use the speed filter while driving.  If that is true, what is the point of it?  Can Snapchat claim, with a straight face, argue that the speed filter is not designed to be used while driving when it’s entire purpose is to measure a vehicle’s speed?  There is also currently pending in Texas another lawsuit against Apple with essentially the same facts and allegations as the Maynard case here in Georgia but involving Apple’s application Facetime. In that case, a   “driver rear-ended the Modisettes with his Toyota 4Runner at 65 miles per hour — killing five-year-old Moriah Modisette. The driver, Garret Wilhem, told police he was on FaceTime at the time of the crash, and officers found his phone in the car with FaceTime still engaged.”