Trial Attorney Blog

Pleading standards in Federal Courts have been dramatically impacted by two recent United States Supreme Court decisions. These decisions, Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, raised the standard that parties bringing a lawsuit must meet to avoid having their cases dismissed.

At issue is how specific a pleading must be under the Federal Rules of Civil Procedure. Rule 8 requires that a complaint include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 12 allows for the dismissal of complaints that are vague or that fail to state a claim. Under Iqbal, a 5-4 decision written by Justice Anthony Kennedy, many courts are now requiring an almost impossible to meet standard demanding specific facts that aren’t often available until the discovery phase.

Congress is now preparing to become involved in this controversy over the pleading standard for civil lawsuits. Sen. Arlen Specter, D-Pa., filed legislation Wednesday designed to return the standard to what it was prior to 2007.

As Georgia injury lawyers, we have seen a number of electrocution cases over the years. Some of the electrocutions result in serious injury and many result in death. Electrocution injury can cause many problems which include, tingling, pain, tetany, palpitations, chest pain, respiratory arrest, amnesia, seizures, altered mental state, coma, blistering and wounds. This week we had occasion to investigate the electrocution of a client who is a lineman for an electric utility company. He was seriously injured when he came into contact with a “hot” wire while climbing a pole. Fortunately, he survived; however, he has been seriously and permanently injured. In his case he not only sustained serious burns, but the incident resulted in the amputation of a leg. When electricity passes from any source and into the body it can result in damage including burns. The amount of damage is determined by the strength of the current and the length of exposure. Death from electric currents passing through the body can result from fatal effects on the heart, severe external and/or internal burns or from other organ damage.
Many electrocution cases result from work-related accidents in which case the victim would have a workers compensation claim. Unfortunately, the benefits available under most workers compensation laws are woefully inadequate to compensate an injured person for all of his or her damages. Accordingly, it is important to investigate the circumstances of the incident thoroughly to determine whether the electrocution was caused by the negligence of a third-party.
The Georgia injury lawyers at Finch McCranie, LLP have, over our 45 years, represented victims of electrocution or their families when the accident result in wrongful death. We have a proven track record of success. If you or a loved one are injured or suffer a wrongful death as a result of an electrocution, you may have a legal claim against the manufacturer of a product or a negligent third-party. Call us for a free consultation at 800 228-9159.

The product liability injury lawyers at Finch McCranie,LLP have handled many wrongful death cases stemming from dangerous products. These products take many different forms. The Associated Press reported this week that full-lenght women’s chenille robes made in Pakistan are being recalled because they are highly flammable and are now linked to nine deaths of women, most of whom were in their 70’s and 80’s. Most of the incidents occurred while the victims were cooking.
Our firm has seen many wrongful death cases resulting from a variety of defective products. Sometimes seatbelts do not function, airbags do not deploy and products which normally are safe become deadly. We have seen product liability cases in a variety of contexts, including not only motor vehicle accidents, but also defective space heaters, defective liftgates on trucks, dangerous drugs, defective humidifiers and the like. If you or a loved one are injured or suffer a wrongful death as a result of a defective product, you may have a legal claim against the manufacturer of the product. Georgia law has long held that where a defective product results in serious injury or wrongful death, the manufacturer of the product may be liable for damages caused by a defect in the product.

Doctors who have committed crimes are still being paid by taxpayers for doing work for the Food and Drug Administration according to a report in the Wall Street Journal. This work ranges from conducting research for the agency or overseeing the safety of patients in clinical trials. The report takes the FDA to task for slowness in debarring ,( disqualifying ), health professionals who have been convicted of crimes.

The FDA has the authority to debar doctors from overseeing the safety of patients in clinical trials if those health professional flout federal regulations. It is required to disqualify doctors who are convicted of fraud or other crimes. However, it takes the agency an average of four years to disqualify a doctor according to a report issued by the independent Government Accountability Office.

In one instance, according to the article, it took the FDA 11 years to debar a doctor who had been convicted of 53 counts of criminal offenses including bribing an employee to conceal information about the attempted suicide of a clinical-trial patient and prescribing a drug without a license.

Recently our firm posted a blog about a tragic accident in Georgia where an 11-year old girl lost her life due to an apparent malfunctioning cruise control switch on a Ford Econoline Van. Last week, we noted with great interest that shortly after this tragic event occurred, the Ford Motor Company recalled 4.5 million vehicles over “faulty cruise control switches.” According to the recall, the faulty cruise control switches being recalled could cause a fire in the vehicle which was the stated reason for the recall. Apparently, the cruise control switch is made by Texas Instruments, Inc. and can allegedly cause hydraulic fluid to overheat, smoke and then burn. The National Highway Traffic Safety Administration has advised Ford drivers to look for possible warning signs of fires including “malfunctioning cruise control systems.” In the tragic case we blogged about, it appears that a cruise control switch may have been malfunctioning prior to catching fire which may have resulted in the wrongful death of a child.
In addition to 1992 through 2003 Econoline Vans, the recall includes Explorers, Ranger Pickups, Winstar Mini-Vans, Mercury Mountaineers and Excursion Sport Utility Vehicles. Any person owning such a vehicle should check with the Ford Motor Company or NITSA’s Vehicle Safety Hot Line at 1-888-327-4236. The public may also visit http://www.safercar.gov for further information concerning the recall.

We read today about a tragic case in which an 11-year old girl was killed in an accident that may have resulted from a defective product. According to news accounts, a 1997 Ford Econoline Van lost control near the intersection of U.S. 441 and Interstate 16 while the van was being operated by the child’s grandfather. The grandfather reported to the Georgia State Patrol that the cruise control had gotten stuck and that he could not cut it off. As the driver took the exit off of 441, he struck the curb, a tire blew out and the result was that the van went across both lanes of traffic on Highway 441 causing it to veer off the roadway and crash down a steep embankment where it hit a tree and caught fire. The Georgia State Patrol is still attempting to corroborate the statements of the grandfather, but given that the fact occurred during midday and the grandfather had no prior medical conditions, it appears that this tragic incident may have occurred as a result of a defective product.
Our firm has seen many wrongful death cases resulting from a variety of defective products. Sometimes seatbelts do not function, airbags do not deploy and products which normally are safe become deadly. We have seen product liability cases in a variety of contexts, including not only motor vehicle accidents, but also defective space heaters, defective liftgates on trucks, dangerous drugs, defective humidifiers and the like. If you or a loved one are injured or suffer a wrongful death as a result of a defective product, you may have a legal claim against the manufacturer of the product. Georgia law has long held that where a defective product results in serious injury or wrongful death, the manufacturer of the product may be liable for damages caused by a defect in the product.

Our Atlanta attorneys frequently review cases involving recreational off-road vehicles which involve death and serious injury. The Consumer Product Safety Commission staff has recommended that the agency set mandatory rules to regulate recreational off-road vehicles.

The CPSC’s five commissioners received the written recommendation this week, and must propose a rulemaking before any rules could be implemented. An agency spokesman said the commissioners could vote on whether to proceed with the rulemaking as early as Wednesday of this week.

The off-road vehicles, also known as ROVs, generally have four or more low-pressure tires, seat one or more persons, and are intended mainly for recreational use. ROVs have surged in popularity with more than 416,000 in use at the end of 2008 compared with less than 45,000 in 2003. According to the CPSC 181 accidents occurred between 2003 and August of this year, resulting in 152 injuries and 116 deaths.

Consumers have been battered by the fall of the economy, and a great deal of the blame for the collapse can be laid squarely on banks and other large financial institutions. Having been saved by the federal government bailout, many are now opposing reforms which would protect consumers and help prevent these disasters from happening again.

Tomorrow, the House Financial Services Committee will take up a number of reforms proposed by the Obama administration. Among the proposals the committee will tackle is the establishment of a new consumer financial protection agency.

As proposed the new agency would regulate mortgages, credit cards, debit cards, installment loans and any other product issued by a financial institution. However, leading the opposition to this new agency which would protect consumers is the U.S. Chamber of Commerce. Make no mistake about it, this is not your local Chamber which fosters new business and donates to charitable causes.

Today I attended the funeral of Thomas E. Magill, a well respected insurance defense attorney in Atlanta. Tom was a absolute pleasure to work with as a defense attorney. Even though his clients were always large insurance companies, Tom dedicated himself to the administration of justice. He was always fair minded, hard working, competent and professional in every sense of the word. I told his wife at his funeral today that working with Tom made me proud to be a lawyer. There were many lawyers in attendance at his funeral who echoed similar sentiments.
The legal profession often is derided by the public for being greedy, insensitive, focused on money and things of that nature. When you reflect on the life of a man like Tom Magill, you see that some of the lawyer jokes and stereotypes are completely misplaced. Tom Magill is the type of man that makes us here at our firm proud to be lawyers. Tom was an active member of his church and community, he was a selfless worker for making sure that justice was served in the cases that he handled for his clients and he always did so with grace, competence and the highest sense of ethics and professionalism. He was a role model for all attorneys.
It is appropriate that we pay tribute to Tom Magill here in our blog. We can only hope and aspire to achieve the many things that Tom did throughout his life. He was truly a very wonderful man and stalwart member of the Georgia Bar. His grace and sense of humor, ever present optimism and kind nature will be missed. May he rest in peace.

Medical malpractice has long been condoned if perpetrated against a service member. Now, in an effort to rectify this grossly unfair situation involving those serving their country, members of the House Judiciary Committee forwarded a bill to the full House of Representatives which would permit servicemembers to sue the military in certain cases of medical malpractice.

While this is a step in the right direction, it appears doubtful the full House and Senate (a companion bill, sponsored by Sen. Charles Schumer, is working through the Senate) will take action to pass this bill. The bill would allow civil lawsuits against military doctors in cases of clear medical negligence, something that’s currently prohibited under federal law.

The current prohibition on servicemembers is based upon the Feres Doctrine, a legal precedent from the 1947 death of active-duty soldier Lt. Rudolph Feres who was killed in a barracks fire. His widow sued the Army for negligence, claiming the facility had a defective heating plant and substandard fire safety controls. But the Supreme Court ruled that servicemembers performing military duties do not fall under federal rules allowing lawsuits against the government.