Trial Attorney Blog

Effective January 1, 2013, Georgia’s New Rules of Evidence go into effect. The new provisions are found generally at O.C.G.A. Title 24, Chapter 1 through 10. The new code applies to all cases filed on/or after 1/01/13 and to all trials commenced on/or after said date. What this means is that the new Rules of Evidence will apply to any case in Georgia beginning on January 1, 2013, and going forward.
By in large Georgia’s New Rules of Evidence are patterned after the Federal Rules of Evidence. This is a change in the right direction for trial lawyers because the Rules of Evidence are now codified. Previously, Georgia Rules of Evidence were a hodge-podge of various statutory and common law rulings which had to be located in different sections of the code. Now the Rules of Evidence are codified in a single title in ten (10) chapters. Because the new rules are patterned after the Federal Rules there is an abundance of case authority interpreting these rules for practitioners to rely upon when determining whether a particular piece of evidence is or is not admissible under the rules.
All the Rules of Evidence are designed to insure that only reliable evidence is presented for a jury’s consideration. The purpose of the rules is to make sure that in any dispute, whether it is civil or criminal, that a jury only be given reliable evidence which is trustworthy. Unreliable, prejudicial evidence is generally excluded under these rules. Because there are many different types of evidence offered during jury trials whether the evidence be from video recordings, medical records, financial records or otherwise the new rules are designed to make sure that evidence will only be admitted from trustworthy and reliable sources and that any verdict rendered based on such evidence is likewise more reliable than would otherwise be the case.

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Today we read newspaper accounts about a suspected shoplifter being killed by security personnel at a local Walmart here in Georgia. According to news accounts, the suspected shoplifter allegedly took some merchandise with him outside the store at which point he was tackled to the ground and then held in a “choke hold” for an undetermined period of time. When the police arrived the suspect was motionless and determined to be dead, apparently from trauma inflicted when he was subdued.

Under Georgia law, shopkeepers have a privilege to take reasonable steps to investigate suspected crimes for shoplifting. However, the “Shopkeeper’s Privilege” as it is known under Georgia law does not extend to unreasonable force disproportionate to the alleged crime. Shoplifting is a misdemeanor and even if a suspect is guilty of committing such an offense, it hardly merits deadly or excessive force as a measure to apprehend the suspected violator. Apparently, Walmart has a policy of not allowing such force to be used against its customers but for whatever reason, in this particular case, the policy seems to have been disregarded.

This case is reminiscent of a case our firm handled years ago involving a suspected shoplifter at Nieman Marcus in Atlanta. The “suspected” shoplifter in the case (who was proven to be innocent of all wrongdoing) was forcibly subdued at the scene and strip searched against her will. She was so traumatized she had to be sent to the hospital where she was diagnosed with various personal injuries from the altercation. That case resulted in a million dollar verdict in federal court here in Atlanta over ten years ago and is believed to be still one of the largest verdicts ever rendered in Georgia in a false arrest case. As was proven by the jury’s verdict in that case, while suspicion of shoplifting may be the basis for a reasonable investigation and temporary detention, it is not a sufficient basis to use excessive force against a customer of a store.

All experienced attorneys that practice in the personal injury field are familiar with insurance companies attempting to exploit prior injuries sustained by clients. The argument often used is that the injury caused in the car wreck, tractor-trailer accident, slip and fall incident, or other personal injury case was not caused by the negligence of the person being sued, but rather, that the victim of the negligence is simply malingering and/or claiming damages for a pre-existing injury. Insurance companies subpoena health records as far back as they can hoping to find some evidence of a prior similar complaint. For example, if someone is in a car accident and hurts their back or neck, if the insurance can find any evidence anywhere that the claimant previously complained of neck or back pain, the insurance company will always contend that the prior complaint has simply remanifested itself and that the car accident, truck accident or other tort simply had no bearing on the claimant’s health.
It is frustrating in the extreme to continually run against this common defense tactic. Experienced defense counsel are experts at obfuscation. They can make it sound as if the claimant, who was the innocent victim of the negligent acts of a third party, is simply trying to make someone else pay for a pre-existing condition. This is very rarely the case in my experience and the experience of the attorneys at this firm but, nonetheless, we encounter these arguments all the time. Thus, we have to overcome them by proving that the claimant had had no prior problems for many years, typically, had not needed to seek medical advice and that their acute injuries arose on the day of the incident and continued thereafter, caused by the acts of the defendant against whom the claim is being asserted.
The law is clear that even if someone has a pre-existing injury, they are entitled to compensation for any aggravation of their prior condition. Thus, even if the client did have a prior problem with their back, if their back was re-injured and/or if their pre-existing condition was aggravated, compensation is still allowed. Nonetheless, defense attorneys and insurance companies continue to contend that innocent victims of negligence actually are not injured at all but are simply seeking compensation they are not otherwise due. These arguments are extremely frustrating for innocent victims of the negligent acts of third parties which is why it is important in this context that experienced counsel be engaged to overcome this common defense tactic. If victims are not diligent in this regard, they can be denied justice simply due to an irrelevant modern day smoke screen.

According to the Food and Drug Administration (FDA), it has received reports of 13 deaths associated with the use of the popular “Five Hour Energy” drink. Because the FDA’s investigation is ongoing, currently it is not known what has caused these reported deaths. Is it because the product has too much caffeine that results in heart attacks? Or is it because of other ingredients in the drink which are not subject to FDA regulations (because it is considered a dietary supplement)? The Five Hour Energy drink does not specify to the consumer how much caffeine is contained within it. The mixture of the ingredients in the drink also are under suspicion as collectively possibly causing the reported deaths and other hospitalizations and illnesses. At present, the FDA has received approximately 92 complaints of adverse side effects, including the reported 13 deaths and numerous other illnesses and hospitalizations.
It is not known how long these types of adverse events have been known to the manufacturer. It is not known whether the manufacturer is aware of the etiology of the dangers, whether it be the unique combination of ingredients used in the drink, the excessive caffeine or otherwise. However, currently it is known that the drink is potentially dangerous. Is it worth a five hour “energy boost” to potentially kill or harm consumers of the product? Massive recalls of automobiles and other products have occurred with less reported deaths so we have a curious situation here. The FDA does not regulate “energy drinks” because they are so called “dietary supplements” when in reality such products may be a potential killer. As is often the case involving potentially dangerous products, one suspects that it may take litigation in the form of wrongful death actions to ferret out the truth and to determine just how dangerous these so called “dietary supplements” are. If the risks exceed the utility of the product, as may be the case, the product may need to be removed from the market as otherwise unsuspecting consumers could continue to be harmed by it. As the investigation is ongoing, currently there are many unanswered questions but also many possible dangers. Given FDA’s apparent lack of jurisdiction, private litigation may be necessary to fully explore these issues.

In many of our serious automobile collision cases we unfortunately find ourselves representing victims of a traumatically induced brain injury. During any serious car accident, unfortunately victims oftentimes strike their heads either on the seat or some other interior portion of the car. This can sometimes result in a loss of consciousness, confusion, dizziness or otherwise. When emergency personnel arrive at the scene of a serious wreck and diagnose those who appear to be confused or dazed, they typically use an assessment tool called the Glasgow Coma Scale (GCS). The scale comprises three different tests: eye opening, verbal responses and motor responses. The three values separately as well as their sum are considered. The lowest possible GCS sum is 3 which is a deep coma or near death while the highest is 15 (a fully awake person). A GCS score of 13 to 15 is usually considered as evidence of a mild traumatic brain injury whereas a score of 9 to 12 is considered evidence of a moderate brain injury. Any score of 8 or below is considered a severe brain injury.

Of course, any injury to the brain is a serious injury. Thus, the term “mild” traumatic brain injury is somewhat misleading. The term “mild” is used to describe the severity of the initial physical trauma that caused the injury. In no way does the term “mild” traumatic brain injury indicate the severity of the consequences of the injury.

While the Glasgow Coma Scale score is a useful tool in assessing whether the victim of a car accident has sustained a possible brain injury, nonetheless, it may or may not correlate with a person’s short or long term recovery or functional abilities following the injury.

The term “mild” traumatic brain injury is very misleading. While the descriptor “mild” typically refers to the severity of the trauma that resulted in the injury, oftentimes in a personal injury context it does not come close to describing the severity of the consequences of the injury. Even though the trauma may be mild, the long term consequences of the injury may be anything other than mild and oftentimes are quite serious.

The vast majority of people who experience a mild traumatic brain injury recover. This is the good news. The bad news is that there is a percentage of persons who suffer trauma who never recover. The Centers For Disease Control has indicated that up to fifteen percent (15%) of patients diagnosed with a mild traumatic brain injury may have persistent and sometimes disabling long term problems.

Each year in the United States approximately 1.5 million Americans sustain traumatic brain injuries. 50,000 people die and over 230,000 people are hospitalized. More than 1 million are treated in emergency departments for traumatic brain injuries. It is estimated that over $56 billion is spent in direct and indirect costs as a result of TBIs. 80 – 90,000 Americans experience such significant problems that they have to go on disability.

Traumatic brain injuries typically involve transient periods of some type of neurological dysfunction which can range from brief periods of confusion or dizziness to headaches and/or seizures, sometimes involving nausea. The term concussion is oftentimes used interchangeably with the term “mild traumatic brain injury” or MTBI. The Quality Standards Subcommittee of The American Academy of Neurology has recognized that concussions may occur without the loss of consciousness. There are three grades of concussions according The Academy of Neurology. A Grade 1 concussion involves transient confusion with no loss of consciousness where the symptoms resolve within 15 minutes. A Grade 2 concussion occurs where there is transient confusion and no loss of consciousness with other mental status abnormalities that last more than 15 minutes. A Grade 3 concussion is where there is a loss of consciousness either for a matter of seconds or minutes. As stated above, the term concussion sometimes is used interchangeably with the term “mild” traumatic brain injury (MTBI).
Experts from The Centers For Disease Control define a case of MTBI as “the occurrence of an injury to the head arising from blunt trauma or acceleration or deceleration forces with one or more of the following conditions attributable to the head injury: any period of observed or self-reported transient confusion, disorientation or impaired consciousness; dysfunction of memory around the time of injury; or loss of consciousness lasting less than 30 minutes.” MTBI may also include observed signs of other neurological or neuropsychological dysfunction such as seizures acutely following injury to the head; irritability, lethargy or vomiting following a head injury, headaches, dizziness, irritability, fatigue or poor concentration.
The leading cause of traumatic brain injuries in the United States is motor vehicle crashes. As we have written in prior entries, most cases of traumatic brain injuries resolve within a matter of weeks or months but a certain percentage of people (10-15%) suffer lifetime consequences. For those who suffer chronic and persistent problems, a traumatic brain injury can be a life altering event affecting all aspects of their daily living. The symptoms do not go away and disrupt the ability to work, sleep and concentrate. Debilitating headaches and fatigue can also be an problem. Victims of traumatic brain injury following a car accident – if lucky – will recover. If not, they will need an attorney as the long term consequences can be extremely significant for the victim and their families.

In our trial practice we are often presented with cases where the client had a pre-existing medical condition which was aggravated by an accident. As an example, someone can have asymptomatic degenerative disk disease, be involved in an automobile collision and thereafter begin to experience symptoms of pain because of the injury to their neck or back. Someone can have any asymptomatic pre-existing condition, which is aggravated by the trauma from an accident, which causes the pre-existing condition to become asymptomatic. Obviously, the issue in the all such cases is whether the trauma caused the underlying condition to become symptomatic or whether the condition became symptomatic at or about the time of the accident for reasons unrelated to the trauma.

The debate between defense counsel and plaintiff’s counsel in these cases is all to familiar. Defense counsel always contend that the pre-existing condition was there before the accident, that their client had nothing to do with it and that the client is embellishing or malingering and trying to blame the admittedly at fault client for injuries they did not cause. In reality, many underlying pre-existing medical conditions are entirely asymptomatic and do not cause the victims any pain and suffering or the need for substantial medical treatment until the trauma occurs. This debate can be won and should be won in cases in Georgia because the law of our state is that any injured individual is entitled to compensation for the aggravation of a pre-existing injury.

In Georgia the law is that if you cause injury to another, you take that person as you find them. If they have an underlying condition or prior medical problem and you aggravate that problem due to your negligence, then the victim is entitled to compensation to the extent their pre-existing condition was aggravated by the tort. Thus, in Georgia there is compensation for pre-existing conditions to the extent they were aggravated by the defendant’s conduct.

There is one duty that a lawyer owes to his client and that is to be truthful with them. In many cases clients need counseling and need it badly. Sometimes clients do not want to hear the truth and take pains to avoid it. Oftentimes clients will turn on their attorneys when the attorney tries to tell them the truth of their situation. In such circumstances the client will accuse the lawyer of not being zealous in his or her representation or not believing in the client’s case completely or otherwise failing to fulfill the expectations of the client. In such circumstances, nonetheless, counsel must be firm with their client because that is why they are being paid for: to provide the best professional advice under the circumstances presented.
Experience teaches that clients must be told the truth regarding their case whether the client wishes to hear it or not. This is the fundamental obligation of all attorneys: to provide the best possible professional advice as objectively as can be stated. The client is paying for legal advice and if they do not want to hear it then perhaps they need to get another attorney. Even though sometimes the truth is difficult for clients to hear they, nonetheless, need to be told the truth at all times. If there are weaknesses in their case, they need to be told. If there are strengths in their case, they need to be told. If the law favors their claim so be it, but if the law does not favor their claim, it must be explained to them so that they understand that their case has legal deficiencies. Either way, the fundamental duty of all attorneys and a professional requirement is to be honest with the client, to explain to the client what their options are and to be faithful to the requirements of the profession which is to render the best possible legal advice under the circumstances with an adherence to ethics and professionalism at all times.
Zealous representation of a client does not mean abandoning objectivity nor does it mean “sugar coating” certain facts in order not to offend or discourage the client. Clients are adults and they need to be treated as adults. Unless the lawyer is prepared to speak the truth, the lawyer needs to withdraw from the case. Unless the client is prepared to hear the truth, the client needs to seek counsel elsewhere. When dealing with clients, being truthful at all times is a requirement of the profession and clients deserve no less.

When the police encounter a stolen vehicle and attempt to stop it with their blue lights and the driver takes off, the question is whether the public is well served when the police engage in a high speed pursuit thereafter. Clearly the suspect wishes to escape apprehension and is willing to travel at high speeds endangering the lives of the public. The only way they will be apprehended is if the police are successful during their pursuit in running them off the road, using stop sticks or otherwise blockading them. During the pursuit, however, the entire public is endangered and it is quite likely that as the speeds get higher and higher and the offender becomes more and more desperate at escaping apprehension the dangers will increase and tragedy to innocent third parties may result.
We see in these cases often where third parties are killed or injured during these pursuits. Is it worth a human life to capture a suspected car thief? Most car thieves are not caught through high speed pursuits but rather as a result of traditional law enforcement investigations. The few who are engaged in high speed pursuits, if they are allowed to escape, will hardly add to the number of those who are not immediately apprehended for their crimes. However, in order to immediately apprehend the suspected car thief during a high speed pursuit, the public has to be exposed to the possibility of death or serious injury. We raise the question again, is it worth it? Is the death of one or more worth it to apprehend a suspected car thief?
A case which happened on September 4, 2012, in California is illustrative of the dangers in these areas. The police were chasing a teenager for suspected car theft. The police asked for backup. While one of the patrol cars was attempting to join the pursuit, that second patrol car ran over and killed an innocent pedestrian. Thus, in order to immediately apprehend a 17-year old car thief, a pedestrian was killed during the pursuit. Was it worth it? Ask the family of the innocent pedestrian their opinion on this subject and the answer will be obvious.

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