Articles Posted in Personal Injury

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There have been some stories on the news lately about a student who was burned during a chemistry experiment performed during class. Back in August of last year, a teacher in a DeKalb County School performed a demonstration of lighting a dollar bill on fire using ethanol and water. She apparently had performed the same demonstration using just alcohol with little success. When the teacher tried the demonstration using ethanol, the dollar bill, in a glass, caught on fire, broke the glass and traveled across a table onto the student, who had his head down on the table. It severely burned the student.  The student hired counsel who has sued the teacher and the school. They are now reports in the news that the school system won’t pay for his reconstructive surgery.

This really is neither surprising or shocking. The DeKalb School system enjoys the benefit of “sovereign immunity,” which means it is immune from suit. County school systems, county agencies, county departments, really anything to do with counties, cannot be sued successfully for most causes of action.  Sure, you can file suit against them, but 9.9 times out of 10 it will be dismissed on summary judgment based on sovereign immunity.

There are a few exceptions. One example would be a lawsuit for violation of the Americans with Disabilities Act (ADA).  Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subject to discrimination by an such entity.”  A disabled person who falls within the class of persons protected by the ADA may successfully sue a county for violation of the ADA, for things such as failure to maintain a sidewalk in the county that inhibits that person’s ability to move on the sidewalk.  For example, if a person is confined to a wheelchair, she must be able to use the sidewalk as any capable-bodied person, so the sidewalk must have proper curb cuts to allow the wheelchair to gain access to the sidewalk and there must not be any holes in the sidewalk that would prevent the wheelchair from easily moving over the sidewalk.  Sovereign immunity does not protect a county when it has violated the ADA and it grants the disabled citizen a private cause of action to enforce it.  It is important for private citizens to be able to hold Georgia counties accountable for ADA violations as the number of people in the United States who are disabled in some form continues to rise. For example, it is estimated that one in 4 U.S. adults – 61 million Americans – have a disability that impacts major life activities, according to a report in CDC’s Morbidity and Mortality Weekly Report.  Of those disabled citizens, 13.7% have a mobility disability and an estimated 4.6% have a vision impairment. So you can why it is important that even counties not be immune for failure to comply with the ADA.  Disability affects us all.

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Does anyone else out there hate scooters?  For those folks still in denial about the risk/cost benefit analysis in riding scooters, you should know that scooter injuries  continue to climb.  A new report by the University of California San Francisco revealed Electric scooter-related injuries resulting in hospitalization more than tripled over five years nationwide.  The results showed nearly 40,000 injuries in the past five years, increasing from 6 per 100,000 people in 2014 to 19 per 100,000 in 2018. The number of hospital admissions — meaning injuries severe enough to require further medical attention — soared by 365% to nearly 3,300, the study found.

I’m not surprised. Are you?

Scooter injuries and even deaths have been in the news here in Atlanta nearly daily.  Mayor Keisha Lance Bottoms even outlawed use of scooters at night in the city due to four scooter-related deaths.  On any given day on my way to my office, which is in Downtown Atlanta, I see 2 or 3 near-catastrophic collisions with scooter-riders and cars or immovable objects. Surely, you have, too. Add a little alcohol consumed by tourists who think “it will be fun” to ride a scooter for the first time after having a few drinks, it is downright mayhem on our city streets.  I have seen two or even three people riding one scooter at a time. I have seen a scooter rider texting while scooting. I have seen a scooter rider with a back-pack on, drink in one hand and cell phone in the other. Anything goes.  It’s totally lawless!  Part of the cause of many scooter-rider injuries must be due to lack of skill and practice riding a scooter. “E-scooters have a narrow platform, can travel up to 15 to 20 miles per hour and require a level of coordination and skill that is often not native to many users,” said Aiza Ashraf, M.D., diagnostic radiology resident at the Indiana University School of Medicine in Indianapolis. “Whereas physical effort is required to get a bicycle up to speed, e-scooters are self-powering.”

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I have been recovering from hip replacement surgery (my second) these last two weeks and have watched a lot of daytime television while keeping my leg elevated and ice on my hip.  Although I have enjoyed the short sabbatical, I hate that it came only through the necessity of having a new hip implanted. But I am doing very well and expect to be back in my office next week!

One thing that I won’t miss  is watching so many lawyer ads on TV. I do not believe they improve our image as plaintiff’s personal injury lawyers and for lawyers like me who actually try jury trials, it is perfectly clear that our jurors hate these ads. I just recently tried a medical malpractice trial in DeKalb County (which resulted in a $2.35 Million verdict for my client) and many of the perspective jurors during jury selection talked about how they didn’t trust lawyers because of the ads they see on TV and generally, because of these lawyer ads, they were suspicious of our bringing a personal injury case to trial. I had to do a lot of work in jury selection to make sure those potential jurors understood I didn’t advertise and that my case they were about to sit on was a legitimate case in which my client’s mother had died due to medical malpractice. I hate that right out of the gate I had to deal with some other lawyer’s advertisement on TV, like the person in an ad who claims her lawyer got her $900,000.00 and she doesn’t even look injured!

One of the things I have noticed while being forced to watch these TV lawyer ads, is that most of them proudly promote that they don’t get paid unless you get paid, as if they are the only lawyers in the State of Georgia who will boldly make that promise.  Although their statement is true, they are not the only personal injury lawyers who don’t charge a client for their time unless and until they win or settle a case for the client. In fact, as far as I know, ALL plaintiff’s personal injury attorneys, in Georgia and the entire United States for that matter, make the same deal as these TV advertising lawyers who act like they have the monopoly on this arrangement. It’s called a contingency fee agreement and all personal injury lawyers use one to be retained to work for a client on a personal injury case. Please understand that the statement made by TV advertisers about this says absolutely nothing about their skills, ability and experience as a trial lawyer.  We all work under this arrangement.

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As I write this, many of the headlines in the news are about the so-called “shocking” suicide of alleged child sex trafficker, Jeffrey Epstein, who, allegedly, hanged himself while incarcerated in a Federal New York prison.  What is so shocking? The only thing shocking to me about this event is how the news media and on-lookers, including United States Attorney Bill Barr, think it is shocking for someone, who was known to be suicidal, predictably, takes their life by suicide.  I suppose it is only Mr. Epstein’s wealth and his ties to well-known, rich, influential people, including many politicians, that makes U. S. Attorney Barr suddenly express surprise and concern that incarcerated people are attempting suicide, many successfully, when many of them should have been on suicide watch in a Crisis Stabilization Unit (CSU) or an Acute Care Unit (ACU). We can do without the mock concern on the part of the U.S. Attorney.  This is happening right under his nose in  prisons every day and he only expresses concern when it is a wealthy person who does it?

Jeffrey Epstein’s suicide was foreseeable and predictable. Now it is being reported that he was not on a suicide watch, even though he had previously attempted suicide less than two weeks earlier. The prior suicide attempt placed him in the high-risk category for attempting again. Coupled with the fact that he was in prison for the first time awaiting trial with an indictment list that, if proven, would keep him in prison for the rest of his life (another risk factor for attempting suicide), Mr. Epstein was high risk for suicide attempt and should have been on suicide watch.

Unfortunately, this blatant disregard for the lives of inmates who are either mentally ill or acutely psychotic ( or both) and the risk it creates for them to take their own life, is prevalent in our nation’s jails and prisons.  It is particularly alarming in Georgia prisons.  As recently as just last week, the Macon Telegraph issued the results of its study into prison suicides and announced that Georgia’s rate has reached crisis proportions. Between 2014 and 2016, state records show that 20 state prisoners had taken their own lives. In the nearly three years since, 46 prison deaths were deemed suicides. Georgia’s prison suicide rate — at 35 suicides per 100,000 — is nearly double the national average. Between 2013 and 2014 alone, U.S. state prison suicide rates rose by nearly a third. And Southern states including Georgia, Alabama and Texas saw even larger increases in their rates. Georgia correctional officials believe one in five people incarcerated in state prisons have a documented mental health need.

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I was just put on a jury in a case that seems pretty clear cut.  So why am I here? Why is there a trial?

Many jurors may find themselves thinking this in a case in which the defendant is clearly at fault and the plaintiff is clearly injured. Most reasonable people, as jurors tend to be, would assume a clear liability case with clear injuries should be settled out of court. My concern is that when a juror is forced to sit on a jury in a case like this, the juror may very likely assume it must be because the plaintiff wanted too much money. But it seems to be a trend in many cases in Georgia that what actually has happened is that the insurance carrier for the at-fault defendant has refused to offer much, if anything, before trial, to try to resolve the case. This has been borne out many times in recent trials.

For example, in a case tried in Whitfield County, Georgia (Dalton) a jury entered a verdict in the amount of $21.6 million last month for a man who lost a leg after being struck by a pick-up truck as he walked toward a Whitfield County highway to stop traffic for a tractor-trailer.  The plaintiff’s medical bills were more than $411,000 and the insurance carrier didn’t even offer that much before the trial, according to plaintiff’s attorney. He said the insurance carriers never offered any meaningful settlement despite their client’s permanent, life-altering injuries and despite a court-ordered mediation.

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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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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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