Trial Attorney Blog

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.

As the Georgia Injury Lawyer Blog’s Atlanta attorneys have writtten about before, prescription drug manufacturers can cause serious personal injuries and death by failure to warn of a prescription drug’s hazardous side effects. A new law requires prescription drug companies to take steps to ensure drug safety and eliminate the risks of needless serious personal injury or death.
In late September, 2007, President Bush signed into law the Prescription Drug User Fee Reauthorization Act, “PDUFA.” This Act creates new federal safety requirements for drug companies, and Congress made it clear that the bill does not change the burden on drug companies to warn of a drug’s hazards. That duty remains where it belongs, on the pharmaceutical company, which is in the best position to warn about problems associated with the drug.

As the Georgia Injury Lawyer Blog attorneys have writtten about before, prescription drug manufacturers can cause serious personal injuries and death by failure to warn of a prescription drug’s hazardous side effects. A new law requires prescription drug companies to take steps to ensure drug safety and eliminate the risks of needless serious personal injury or death.

In late September, President Bush signed into law the Prescription Drug User Fee Reauthorization Act, PDUFA. This Act creates new federal safety requirements for drug companies, and Congress made it very clear that the bill does not change the burden on drug companies to warn of a drug’s hazards. That duty remains squarely where it belongs, on the drug company, which is in the best position to warn about problems associated with the drug.

The rule of construction, which is included in Section 901 of the Bill, makes it clear that Congress is not altering the responsibility of a drug manufacturer to promptly update its drug label when the manufacturer becomes aware of safety information that should be added to the label. But, it still gives the FDA, Food and Drug Administration, the authority to require label changes and even if the FDA does not act, the burden to warn the public still remains on the drug company.

Spoliation is defined as the destruction or a significant or meaningful alteration of evidence. For many years, in Georgia, spoliation of evidence has given rise to a presumption against the spoliator which has resulted in discovery sanctions in appropriate cases. Many states actually recognize a separate tort of spoliation. However, Georgia courts have not yet embraced that concept.

Spoliation of evidence is actually a type of fraud which interferes with the plaintiff’s opportunity to win a lawsuit. In some cases, it can logically be expanded to include conduct which constitutes negligent spoliation of evidence as well as concealment and destruction of evidence.

The remedy for spoliation is sanctions against the spoliator which may range from exclusion of evidence up to dismissal of a case. In determining the appropriate sanction, the trial court is required to consider:

It seems that all the time we read articles about the need for reform in the medical malpractice area because of so-called frivolous litigation. The argument always seems to be that claims are being brought which are frivolous and that medical malpractice rarely occurs. The truth is that, like any other human undertaking, malpractice does occur in the field of medicine. Sometimes, the malpractice can be egregious and the mistakes life altering.
Just today we read a story about a lady who had a double mastectomy because of a lab mistake. She was told she needed to have both her breasts removed because she allegedly had cancer. Four months after she had had her breasts removed she received a telephone call that the lab had made a mistake and she never had cancer at all. The lawyers who have taken this case will not be filing a claim for medical malpractice against the doctors but obviously will be filing a claim against the lab. Certainly, this is not frivolous litigation in any sense of the word. And yet, if this lady were to file a lawsuit in the State of Georgia, and she was not working, her pain and suffering claims would be capped at $350,000.00. This is so that the insurance companies’ profits can continue to skyrocket at the expense of patient rights. The fact remains that physicians continue to pay high premiums in Georgia while insurance profits have soared and patients have suffered.
This article shows once again that it is unfair to innocent victims of human mistakes to cap their damage awards simply so insurance companies can increase their profits and dividends to shareholders. The purpose of insurance is to protect against catastrophic claims. This lady’s unfortunate case is just one example of many where insurance should be available to compensate the innocent victim. Again, here in Georgia, if this lady suffered this result in our state, she would not receive justice. Despite the life altering event, she could only receive $350,000.00 for a lifetime of suffering. Why? Because of so-called frivolous litigation and the alleged need for “tort reform.” As we have said before, we do not need tort reform, we need insurance reform. This case proves the point.

Stephen E. Boswell, former Chief Judge of Clayton County Superior Court, has joined one of the Atlanta area’s longest established law firms, Finch McCranie, LLP., according to Richard W. Hendrix, partner in the firm.

Judge Boswell recently retired from the Superior Court bench after serving 13 years as a Superior Court Judge, over two periods of service since 1982. Previously, he was in private practice in the Atlanta area for 16 years, with a variety of experience in civil and criminal jury trials.

As of Oct. 1, 2007, he has become “counsel” to Finch McCranie and will assist the firm’s attorneys and clients in cases involving serious personal injuries, wrongful death, and “whistleblower” cases of fraud against the government.

We read in yesterday’s paper where one motorcyclist was killed and another seriously injured after their bikes were involved in a multi-vehicle wreck just outside of Atlanta in Cherokee County. According to the news accounts, the bikers were among a group of 40 to 50 taking part in a charity bike ride when the crash occurred. The news report indicates that a teenage driver struck a lady who was sitting stopped at a stop sign waiting for the motorcyclists to pass her when, after being hit from the rear by the teen, she was forced into the path of the motorcyclists. This tragic negligence by the teenager resulted in the death of a 42 years old man and serious injury to another.

This tragedy unfortunately is not one unfamiliar to this firm. Our lawyers have handled many other cases involving either deaths or injuries involving motorcyclists, including a wrongful death case filed last week on behalf of a pregnant widow. As is well known, motorcyclists have no protection from a motor vehicle accident other than a helmet. As demonstrated by this collision, even a helmet cannot prevent death or serious injury when a vehicle strikes a motorcycle in such fashion as to cause the driver to be thrown from it. In this particular case, the death and serious injury were caused by the negligence of a teenage driver who struck a stopped vehicle pushing it into the path of the oncoming motorcyclists.

What is particularly tragic about this accident is that the deceased individual and his biker companion were on an annual fund raising ride by Bikers Against Cruelty To Children. Thus, we have a situation where two individuals were literally doing a good deed at the time of the death of one of them and a serious, life altering injury to another. We are, of course, saddened by this news but reminded of the fact that motorcycle accidents, when they do occur, typically involve very serious injuries and/or death. Once again, the watchword remains “vigilance and safety first and foremost.”