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No Such Thing as an Unbiased Expert

May 4, 2017 | Robin Frazer Clark

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:

Have You Been Injured by a Metal Plate on the Street Yet?

March 16, 2017 | Robin Frazer Clark

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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.

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.

No Such Thing as a Free Bite: Georgia Supreme Court Eliminates Enshrined “One Free Bite Rule”

March 6, 2017 | Robin Frazer Clark

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.

Snapchat: “Don’t Blame Us”

January 27, 2017 | Robin Frazer Clark

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.”

You Think We Have a Litigious Society? Blame the Insurance Companies Who Say “So Sue Me.”

January 5, 2017 | Robin Frazer Clark

I constantly hear, even from jurors, that we are a “litigious society,” that everyone sues over everything these days. Assuming this is true, who is to blame? Critics immediately place the blame at the feet of the injured plaintiffs who must bring the lawsuit for compensation for the injuries they have suffered that were caused by someone’s carelessness. If those darn hurt people who can’t work any longer because of their injuries would just not file a lawsuit we wouldn’t be a litigious society!! The nerve of these people! Getting injured through no fault of their own and then expecting compensation for the medical bills, lost wages, pain, inconvenience, inability to work, permanent scarring, loss of their normal quality of life, etc., from the person who caused it all. The gall! Can you believe these people?

Yes. Yes, I can. I believe these people because these are the people I represent every single day. These are the people who began their day with their normal routine like every other person but who, unfortunately, came into the path of someone who was careless, someone who wasn’t paying attention to the road, someone who was texting while driving, someone who was reckless and causes an upheaval in the life of someone else due to their negligence and carelessness.

But don’t blame these injured folks. Blame the insurance companies of the careless individuals, because it is the car insurance companies who take the stance “so sue me” and invite litigation that easily could have been avoided had they simply been reasonable in negotiating an insurance claim for personal injury.

My Falling Out With Mediation

November 3, 2016 | Robin Frazer Clark

Friends: I have to confess, I back slid recently and agreed to mediation of a client’s case. I had not agreed to a mediation of my clients’s cases in several years, primarily because of a sense that mediation generally was not successful and perhaps was even counterproductive, pushing the opposing parties even further into their corners as positions became entrenched due to ridiculous positions taken during mediation, all through the implicit stamp of approval of a rather expensive mediator (who, by the way, gets paid regardless of whether he or she is successful in resolving the case). I regret allowing my client to agree to mediate his case. And again, I have made my pact with myself not to make that mistake again. Here is a short list (certainly not exhaustive) of reasons why I have fallen out with mediation of personal injury cases.

Defense counsel get away with childish, immature positions and remarks. I had a case once in which the insurance carrier wanted to try to settle prior to my filing a lawsuit. I gave them a dollar amount to do just that. They refused. They took the “so sue me” attitude. So I accommodated them and sued their insured. After two years of litigation, when the insurance carrier is in the corner because of the egregious facts that I have now exposed during discovery, I make a new demand reflecting the increase in value of the case in the last two years. Defense lawyers and the insurance adjuster say they “are hurt” by the increase and take away their initial offer in bad faith at medication. Did I not tell them that their best opportunity to settle the case was before I filed suit and litigated the case for years, and that in so doing, their case would only get worse?
Defense counsel approach me to mediate, saying “they really want to get the case resolved.” So I agree to mediation. My clients take a day off from their jobs. We are paying a mediator. Insurance adjuster offers at mediation only what was already on the table BEFORE mediation and says that’s it, take it or leave it. That’s one of the most UNprofessional things I can even imagine, yet it happens. A simple phone call to me would have sufficed. Yet they put my client through the stress and expectation that maybe finally, after two years of duking it out, they have come to their senses and want to resolve the case for what is only fair. Nope.

Is My 911 Call Public Information?

October 19, 2015 | Robin Frazer Clark

There has been a lot of press this past week about the near death of NBA basketball player Lamar Odom at the Love Ranch in Las Vegas. Fortunately, Mr. Odom’s condition has improved dramatically. As part of the media frenzy about the incident, parts of the 911 calls when Mr. Odom was found unconscious have been played over and over on the radio and on the internet. I have heard several “journalists” comment that they can’t believe the 911 calls were made public and they should be private.

So, is your 911 call public information? Yes! Any 911 call is public information subject to the State’s open records act. Here in Georgia, our Georgia Open Records Act (“ORA”), O.C.G.A. Section 50-18-70 et. seq., defines “public record” as “all documents, papers, letters, maps, books, tapes, photographs, computer based or generated information, data, data fields, or similar material prepared and maintained or received by an agency or by a private person or entity in the performance of a service or function for or on behalf of an agency or when such documents have been transferred to a private person or entity by an agency for storage or future governmental use.” A taped 911 call certainly fits within this definition. And citizens shouldn’t want it any other way. The Open Records Act is sometimes referred to as “The Sunshine Law” because it throws light on what your government is doing. As our Attorney General Sam Olens has said “Government operates best when it operates openly.” –Attorney General Olens. Give credit to AG Olens who has made strengthening the Georgia Open Records Act one of his primary goals.

When I represent a client in which there was a 911 call made, such as a car wreck, or an injury on a business premises, or anything of that nature, I routinely immediately request the 911 calls through the Georgia Open Records Act. I do this to obtain them before they might be lost or erased. 911 calls can be a treasure trove of information. Quite often I obtain the names of eyewitnesses to car wrecks who are often never even listed on the police report. Plus they often contain a short statement from the eyewitness about how the wreck happened, stated immediately after they saw it! That’s pretty hard to beat!! So, yes, any 911 call is available to the public with a simple request and I will continue to request them in every case of mine.

New Georgia Sexual Predator Law Reopens Statute of Limitations and Revives Lawsuits

September 29, 2015 | Robin Frazer Clark

The Georgia General Assembly enacted a law during the 2015 Legislative Session, known as “The Hidden Predator Act” that reopens the statute of limitations for bringing suit against a sexual molester. This new law went into effect on July 1, 2015. This unusual law essentially creates a new statute of limitations to sue sexual molesters if the abuse occurred when the victim was under 18 years of age and the lawsuit is filed within two years “from the date that the plaintiff knew or had reason to know of such abuse and that such abuse resulted in injury to the plaintiff.” O.C.G.A. Section 9-3-33.1 (b)(2)(A)(ii). This is known as the “discovery” provision of the new law and allows a victim to sue the institutional for which the sexual predator worked or with which he was affiliated. Interestingly, even if the “discovery” of the abuse occurred over two years ago, this new law reopens the statute of limitations for another two years solely against the individual sexual predator. it states: “For a period of two years following July 1, 2015, plaintiffs of any age who were time barred from filing a civil action for injuries resulting from childhood sexual abuse due to the expiration of the statute of limitations in effect on June 30, 2015, shall be permitted to file such actions against the individual alleged to have committed such abuse before July 1, 2017, thereby reviving those civil actions which had lapsed or technically expired under the law in effect on June 30, 2015.” O.C.G.A. Section 9-3-33.1(d)(1).

To date there has apparently been one lawsuit filed using this new statute, in Camden County, against a karate instructor. Six men are plaintiffs in that lawsuit who all allege they were sexually abused by their karate instructor when they were teenagers. We will be watching that lawsuit closely.

I call the new law unusual because it is the first time that I can remember that the Georgia General Assembly lengthened a statute of limitations to allow more time to sue and the first time I can remember that the Georgia General Assembly simply revived what were otherwise lost lawsuits. This is quite a milestone for the Georgia Legislature.

How Safe Was Your Labor Day? 5 Things to Know About This Holiday Weekend

September 8, 2015 | Robin Frazer Clark

The Georgia State Patrol and and various National Databanks, including the National Safety Council, have for years kept the morbid statistics of how many people die during any given Holiday weekend. I have blogged about this in the past and try to keep tabs on whether Georgia highways are getting safer. Here are 5 things to know about traffic safety from the 2015 Labor Day:

In Georgia this past weekend 14 people lost their lives in traffic incidents as reported by the Georgia State Patrol. Just for comparison’s sake, there were only two traffic fatalities in Connecticut. In Kentucky there were nine.
The National Safety Council estimated there would be 395 traffic fatalities in the United States this Labor Day. Final National numbers are not yet in as some polls include any fatalities up to Tuesday morning.

Greek Life: Helpful or Harmful?

August 13, 2015 | Robin Frazer Clark

With college students going back to school this week and next, many new freshman or transfer students are probably considering joining Greek Life on campus. Most schools have some sort of sorority/fraternity groups, with objectives being to provide an outlet for new students to get to know each other, form group bonds, and to give back to the community, to name a few. Over the last few years, some dangerous and sometimes fatal “hazing” practices by fraternities and sororities have come to light, and many have begun to pose the question: are these organizations as beneficial as they seem?

Some groups suggest that affiliation with a Greek organization leads to higher rates of success later in life. An article by USA Today stated that “85% of Fortune 500 executives were part of Greek life… And college graduation rates are 20% higher among Greeks than non-Greeks.” Psychologically speaking, this can be true. Feeling supported by like-minded individuals definitely contributes to better mental health and in turn, higher likelihood to succeed in life. Being a part of a Greek organization also connects you to generations of alumni with the same affiliation, which is certainly a plus when searching for jobs and making career connections. Sororities and fraternities also have a rich history in our country, the first being founded in 1831. Having a connection to such a renowned historical tradition is very important for some, especially “legacy” families, students who’s mother, grandmother, and so on were members of the same sorority. These organizations also undoubtedly benefit many charities. Each year most groups organize a fundraising event to benefit the charity affiliated with their organization. For example, Phi Mu at the University of Georgia raised $143,942 this year for the UGA Miracle program supporting Children’s Healthcare of Atlanta.

Unfortunately, there have been a number of events giving sororities and fraternities a bad and scary reputation. There is always the stigma that Greek groups are associated with partying, drinking and hazing. In some cases, the hazing of potential members has gone way too far. Over the last few years there have been some highly publicized cases of deaths by hazing from groups around the country. The Washington Times reported that since 2005, more than 60 people have died due to fraternity incidents. Recently in California, a family sued after their 19-year old from California State University Northridge died after being forced to hike 18 miles with his fellow Pi Kappa Phi pledges. The Clemson University community was shocked by the death of Tucker Hipps, a pledge of the Sigma Phi Epsilon fraternity, after reportedly being killed in a fight with his fraternity brothers over breakfast food. Hipps’ parents are filing a $25 million wrongful death lawsuit against the Sig Ep brothers. Reports of alcohol abuse, sexual assault, and flagrant racism also have been widely publicized over the last few years.