Trial Attorney Blog

Every year our lawyers handle many cases involving unsafe products which are subject to recalls issued by the The Consumer Product Safety Commission (CPSC). Tragically, many of these cases involve the deaths of young children and infants.

The CPSC is the federal agency which is charged with protecting the public from unreasonable risks of serious injury or death from more than 15,000 types of consumer products under the agency’s jurisdiction. Deaths, injuries and property damage due to consumer product incidents cost the nation more than $700 billion annually.

According to disturbing reports, the CPSC isn’t doing the job with which it has been charged in part due to the actions of the Chairwoman, Nancy Nord. By law, the CPSC is prohibited from issuing reports concerning unsafe items until after it conducts a multi-year investigation. Of course, during the time of the multi-year investigation many children and/or consumers can be injured or killed by the product under investigation.

Our lawyers have previously written about procedural “Traps for the Unwary” which occur in the context of serious injury or wrongful death claims. We write again about this problem because we continue to see this issue in our practice.

To be victimized by a negligent act such as being seriously injured by a drunk truck driver is bad enough but to be further victimized by a statute of limitations would only compound the tragedy. Unfortunately, Georgia serious injury lawyers like ourselves often see cases where innocent members of the public simply do not understand the legal rules concerning statute of limitations. In fact, we saw such an example just this week.

We were contacted two days ago by a very nice lady who had been seriously injured while shopping at a retail establishment outside of Atlanta. In fact, she had to have two back surgeries because of her injuries. She had been promised repeatedly by the store’s insurance adjuster that they were working on her claims and would offer her a settlement. Unbeknownst to her, the statute of limitations in Georgia for a personal injury claim is two years. Because the claim kept dragging out she contacted our firm one day before the statute of limitations expired to discuss her options. She had no knowledge that her claims could forever be barred by operation of law if she did not file a lawsuit before the two year anniversary of her incident. Needless to say, the insurance adjuster had taken advantage of this lady and was hoping that the statute of limitations would run and would bar her claims. We filed a lawsuit just in time to stop the running of the statute of limitations so that this very nice lady who is well deserving of compensation is not further victimized by the store that injured her. The insurance company was hoping that they could use our client’s ignorance of the law to their advantage. It almost worked.

On this Georgia Injury Lawyer blog, our attorneys have previously written about motorcycle accidents involving serious injury or wrongful death. Based on the rise in the number of serious injury and death claims our firm is handling at present, our firm’s experience mirrors what the statistical evidence indicates: These tragic cases are on the rise.

The National Center for Statistics and Analysis, a division of the National Highway Traffic Safety Administration (NHTSA), keeps statistics for motorcycle accidents each year. NHTSA also uses a Fatality Analysis Reporting System (FARS) to track data on fatalities on a nationwide basis. What this information shows is that for the last several years there have been approximately 75,000 motorcyclists annually injured in collisions throughout the United States. Included in this number, of course, are fatalities. Regrettably, the number of fatalities is now upwards of 4,000 motorcyclists killed each year. What is disturbing about these numbers, however, is the national trend upwards. As an example, ten years ago, in 1997 there were only 53,000 motorcyclists injured in collisions and only 2,116 killed. In 2007, by years end, the number of fatalities may be close to double this number. While this may reflect the popularity of motorcycles in general and the increasing number of riders, it also continues to show that riding on a motorcycle can be dangerous, particularly for drivers 50 years of age and older. Indeed, the older the driver the more likely it is that the rider will die if involved in a motorcycle accident. This seems to be common sense because the health of an older rider might not be as robust as it would be for a younger person, therefore, the older rider is not as likely to survive serious injuries as a younger person would be.

Our attorneys currently are handling three death cases involving motorcyclists. In these cases what we see is that the accident was not caused by the motorcycle rider at all but instead by a third-party who simply pulled out in front of the rider and failed to yield such that the motorcycle rider could do nothing to avoid the accident. Thus, what we see is that even in cases where the motorcycle rider is exercising due care for his safety, nonetheless, a serious injury or fatality can occur.

Our lawyers are constantly amazed at the number of Chinese made toys which enter the United States only to be recalled later as health hazards to children.

Last Thursday, Mattel Inc., the nation’s largest toy maker, recalled an additional 38,000 “Go Diego Go!” toys Thursday as part of a larger recall of 665,000 lead-contaminated children’s products.

The latest recall involves orange and yellow Go Diego Go! Animal Rescue Boats, manufactured in China and imported by Fisher-Price. Surface paint on the boats contains excessive levels of lead. According to Mattel there were 38,000 affected toys in the U.S., 12,000 in Great Britain and 5,500 in Canada, for a worldwide total of 55,500.

Our attorneys have investigated wrongful death cases involving automatic external defibrillators (AEDS). An AED is a computerized medical device that checks a person’s heart rhythm, can recognize a rhythm that requires a shock, advises when the shock is needed, then prompts a rescuer to take the proper steps. An AED is a portable device, usually eight to ten inches square and weighs only one to two pounds.

Many businesses, churches, shopping malls, and other areas where large numbers of people congregate have begun to place AEDS at various locations on the premises. Usually, the AEDS are a bright color, such as yellow and red and the location is often marked with a sign that looks like a red lightning bolt.

People with very little training can operate an AED. It usually requires three steps that are pictured on the device. Additionally, a voice prompts or instructs the user as soon as the device is turned on. Once electrode pads are placed on the patient, the AED will analyze the heart rhythm and make the decision if a shock is required. If a shock is required, the voice prompt will tell the user when to administer the shock.

As a Georgia injury lawyer, I am always reading about dangerous drugs. One such drug is Zelnorm ® , a drug used in the treatment of Irritable Bowel Syndrom (“IBS”) and chronic constipation in individuals under 65 years of age.

On March 30, 2007, the FDA requested that Novartis Pharmaceuticals Corporation (“Novartis”), the manufacturer of Zelnorm, voluntarily remove the drug from the market. The recall is based on findings of an increased risk of heart attacks and strokes associated with the drug from clinical trials recently reported by Novartis.

Novartis reported to the FDA the results of a new analysis of 29 short term randomized, controlled clinical trials of Zelnorm. The analysis included more than 11, 000 patients treated with Zelnorm and over 700 patients treated with Placebo. The data showed the serious risk of cardiovascular adverse events associated with Zelnorm to be higher than the Placebo treatment. Thirteen patients treated with Zelnorm had confirmed cardiovascular ischemic events and only 1 Placebo treated patient experienced a cardiovascular event.

Finch McCranie, LLP currently represents three individuals who have been tragically added to the ever growing and long list of innocent victims either killed or seriously injured in a police chase case. In two of the cases we filed on behalf of these victims, the police department involved is seeking to have the claims dismissed based on an argument that the Georgia Legislature has allegedly abolished the legal doctrine joint and several liability. While the law does not support the government’s argument, nonetheless, this argument is likely to be seen in every police chase case filed in Georgia until such time as the Georgia Supreme Court has officially rejected it.
Georgia law has long followed the doctrine of joint and several liability. If two or more people acting in concert with one another (even though not associated with one another) nonetheless contribute to damages to an innocent third party through their actions either, or both, may be sued and either, or both, are 100% individually liable for the damage caused by their acts. In short, if the acts of one person combine with the acts of another to produce an injury to an innocent third party, Georgia law has long been that either or both parties may be sued and either or both parties held 100% liable for the full extent of the damages inflicted. This is in essence what the doctrine of joint and several liability doctrine has stated in Georgia for 200 years. Thus, in a police chase case, if the fleeing suspect causes the damage to the innocent third party, he may be sued. Also, if a police officer recklessly disregards proper police procedure (and thereby contributes to plaintiff’s damages) he may also be sued and held jointly liable. This is how the joint and several liability doctrine applies in a police chase case. Recently, however, jurisdictions sued in high speed police chase are contending that the Georgia Legislature allegedly changed this law in 2005 when the infamous “SB3″ tort reform package was enacted into law.
One of the provisions of the tort reform package was an amendment to O.C.G.A. § 51-12-33 which does say that in those cases where the plaintiff is himself to some degree responsible for his own injuries that in such a limited context a jury may individually apportion damages against named defendants, and even non-parties, rather than holding all the responsible parties each 100% liable each for all of the plaintiff’s damages. What is noteworthy about this modification to the law, however, is that it only applies in those cases where the plaintiff himself was to some degree responsible for this own damages.
In virtually every police chase case we have seen, our clients are totally innocent third parties caught up in the chase. In most cases, the injured third party is simply at the wrong place at the wrong time and is crashed into either by the fleeing suspect or the police vehicle. In such circumstances, it is absurd for a police department to contend that the innocent third party somehow was responsible for creating his own damages. And yet, even though the innocent third party cannot be legitimately claimed to have in any way contributed to their own damages, police departments in Georgia and their attorneys are now asserting that such innocent victims should not recover damages under the longstanding joint and several liability doctrine but should instead be limited in their damages as if they somehow contributed to their own damages. In short, they seek to have juries apportion damages against the most responsible party (the fleeing suspect) thereby abrogating completely the joint and several liability doctrine for the police officer.

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One of the most tragic circumstances we as lawyers face in our daily practice is representing clients who have suffered serious personal injury or the wrongful death of a loved one due to the negligence of an uninsured (or underinsured) driver. Regrettably, we have seen this far too many times. The results of being involved in a collision with an uninsured driver are particularly tragic because in such cases there simply are no available funds to compensate the innocent victims. This, of course, reminds us once again of the importance of uninsured/underinsured insurance coverage for those who can afford it as part of their budget. Without such coverage, if a serious injury or wrongful death occurs, the likelihood of recovery when dealing an uninsured driver is remote.
We were retained just two weeks ago to represent a man who lost his wife in an accident involving a drunk driver. In this particular case, the driver was not completely uninsured, but rather underinsured. He had the absolute minimum statutory limits of $25,000 in available coverage per person, $50,000 per accident. The medical bills alone for this man and his wife both exceeded these minimum limits. Regrettably, our client had no uninsured/underinsured coverage under his own policy. What this means of course is that the $50,000 which is available will have to be used to satisfy Hospital Liens and literally there will be no money to pay even for funeral bills, much less compensate the family for the losses sustained. The “at fault” driver, while responsible for all of these expenses, is very likely judgment proof working at a job with a minimal salary with no ability to pay any judgment that might be obtained in the case. Thus, we have the situation we have seen far too many times where innocent people are seriously injured or suffer the death of a loved one due to the negligence of an uninsured/underinsured driver.
Of course, the statutory scheme is set up such that drivers in Georgia are no longer allowed to get their tags without having proof of insurance coverage. Nonetheless, as stated, the statutory minimum in Georgia is $25,000 per person, $50,000 per accident. In any case involving a serious injury or wrongful death, such limits are woefully inadequate to address medical expenses or lost wages, much less compensation for pain and suffering or a death. Thus, we reiterate that all Georgia citizens should consider purchasing uninsured/underinsured insurance coverage to protect themselves from either the completely uninsured driver or the underinsured driver. With respect to underinsured drivers, obviously, the minimum limits of $25,000 per person coverage, $50,000 per accident are grossly inadequate to address the kinds of damages we see here in our practice all the time in serious injury cases. We have blogged about this topic before (See Uninsured Motorist Blog dated June 8, 2007) and would once again recommend to the motoring public that they protect themselves with their own uninsured/underinsured insurance coverage because many, many drivers have the absolute minimum limits of coverage and are themselves judgment proof, thus leaving the innocent victim to his own resources in the event they are involved in a collision with an uninsured/underinsured driver.

Yesterday, Medtronic, the world’s largest maker of implanted heart defibrillators, announced that it was urging doctors to stop using an electrical wire known as Sprint Fidelis, which connects the heart to a defibrillator. A defibrillator is a device which shocks the heart back into normal rhythm should it falter. The wire is prone to a defect that has resulted in malfunctions in hundreds of patients and may have contributed to five deaths.

There are an estimated 235,000 patients with the Fidelis. Such a malfunction can cause the device to either deliver an unnecessary electrical jolt or fail to provide a life saving jolt to a patient in need. According to Medtronic, in most cases, the devices can be reprogrammed without surgery to minimize the problem.

Medtronic estimated that approximately 2.3% of patients with the Fidelis wire, or four to five thousand people, will experience a fracture within 30 months of the implantation. These patients will require a delicate surgical procedure to replace the wire according to physicians. Replacing the wire is considered to be far more dangerous than replacing the device itself. As a result, physicians advise that patients are better off leaving the wire in place except in those instances where it has stopped functioning properly.

Dog bite injury cases are very prevalent in Atlanta and across the State of Georgia. Our Georgia Injury Lawyer Blog attorneys in Atlanta have handled many serious injury and wrongful death cases over the firms 40 plus years.

In our experience most serious dog bite injuries are inflicted by the following breeds: German Shepard, Rottweiler, Pit Bull, Chow-Husky and Doberman Pincher; however, other breeds have also been know to attack leaving the victim seriously injured. The injuries can leave serious physical and emotional scars on children and adults alike.

Georgia law provides two ways that an animal owner or handler may be found liable for injuries inflicted by the animal. The first requires that the victim prove: (1) that the animal is dangerous or vicious; (2) that the owner or handler had knowledge of the dog’s viciousness or tendency to attack humans; and, (3) that the owner or handler either carelessly managed the animal or allowed it to go at liberty. The second basis upon which an owner or handler may be found liable for injuries inflicted by an animal requires that the victim prove that the animal; (1) was not at heel or on a leash as required by a local ordinance; and, (2) that the owner or handler either carelessly managed the animal or allowed it to go at liberty. The second ground does not require knowledge of dangerousness or viciousness of the animal. To successfully prove liability under the Georgia statute, the claim can be based on either a violation of a leash law or the owner’s or handler’s knowledge that the dog had the temperament or propensity to bite people.