Trial Attorney Blog

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.”

In 1996 the United States Congress enacted the Mandatory Victims Restitution Act of 1996, which makes restitution mandatory upon a defendant’s conviction for a federal violent or property crime in which there is an identifiable victim who has directly and proximately suffered physical injury or monetary loss. Upon conviction for other federal crimes, including drug offenses, the imposition of restitution is in the discretion of the sentencing court. In instances in which restitution is imposed, the court “shall order restitution to each victim in the full amount of each victim’s losses as determined by the court and without consideration of the economic circumstances of the defendant.” In determining the manner in which restitution is to be paid, the court considers the defendant’s resources, assets, earning potential, and obligations.

A defendant’s liability to pay restitution lasts twenty years from the entry of judgment or release from imprisonment, whichever is later. The Attorney General of the United States is responsible for the collection of unpaid restitution and is authorized to use the general collection means available to enforce civil judgments, such as liens and garnishment. The court can utilize a variety of sanctions upon a defendant’s default of his restitution obligations, including modification or revocation of probation or supervised release, resentencing, contempt, injunctive relief, and forced sale of property.

Federal reviewing courts have actively interpreted the scope of federal restitution and supervised its implementation. Reviewing courts rejected Fifth Amendment due process challenges to the restitution statute, At the outset, appeals courts noted that the degree of due process required at sentencing is not the same as that required at trial. Because the sole interest being protected at sentencing is the right not to be sentenced on the basis of invalid or inaccurate information, only that degree of protection necessary to ensure that sentencing judges are sufficiently informed to appropriately exercise their sentencing authority is required. The considerations required by the restitution statutes, as well as the protections given to a defendant by Federal Rule of Criminal Procedure 32 to challenge presentence information, to make a statement in his own behalf, and to present any information in mitigation of punishment, provide a sufficient basis to ensure a defendant’s due process rights regarding restitution ordered at sentencing.

The Associated Press is reporting that yet another massive recall of Chinese-made toys has been issued. Toys and child necklaces made in China were recalled Wednesday because they contain dangerous levels of lead. The recalled toys contained high levels of lead on their surface paint and the necklaces and jewelry sets contain excessive lead in some of their metal parts.

Under current regulations, children’s products which contain more than .06% of lead accessible to users are subject to a recall. The Consumer Product Safety Commission has urged parents to make sure that children are not playing with or using any of the recalled toys.

This is the second recall from Thomas and Friends product line. The parent corporation announced a recall of $1.5 million wooden railway toys in June of this year. The company is recalling five items totaling about 200,000 toys in all.

Our firm was recently retained to represent a gentleman who almost died after he consumed a meal at a restaurant in south Georgia. It seems like our food supply is not as safe as it used to be. Time and time again we hear and read about horrific food poisoning injury cases, some resulting in death.
The U.S. Department of Agriculture reported this week that a New Jersey-based meat processor has voluntarily recalled 331,582 pounds of frozen ground beef products that may be contaminated with the potentially deadly E. coli bacteria. A product sample reportedly tested positive for E. coli during an investigation into a number of illnesses in the northeast region of the United States. The recalled ground beef products were shipped to food service institutions in the New York City area and to retailers across the country. The labels on the products subject to recall bear the establishment number “Est 9748” inside the USDA mark of inspection. All of the products involved have 2008 sell-by dates of June 22th, July 12th or July 23rd.
Escherichia coli (E. coli), is one of many species of bacteria living in the lower intestines of mammals, known as gut flora. When located in the large intestine, it assists with waste processing, vitamin K production, and food absorption. When food is contaminated with this bacteria and consumed by the public it can result in serious illness and even death. Children, the elderly and people with compromised immune systems are the most susceptible.

In an analysis made public this week, Consumers Union, the publisher of Consumer Reports Magazine, compared data compiled by the Federal Centers for Medicare and Medicaid Services showing compliance with infection control measures for hospitals in Maryland and Virginia.

Consumers Union is advocating a bill before Congress that will require hospitals to publish their infection rates. The analysis determined that the hospitals in both states generally performed about as well as hospitals nationwide. But, according to the study, the hospitals in each state varied greatly in their adherence to three measures of practice quality. The three infection control measures are:

1. How often preventative antibiotics are given in the hour before surgery;

Many of us who have handled serious personal injury cases, including those involving brain injury have seen MRI’s performed using various contrast agents for years. One of those agents does not appear to be as safe as once thought. Gadolinium, or gadodiamide, is a contrast agent which allows an MRI to define normal tissue from abnormal tissue in the brain and body. The FDA declared Gadolinium safe for use in contrast MRI’s in 1988.

In June 2006, the FDA first notified health care professionals and the general public about the risks of a potentially fatal disease known as nephrogenic systemic fibrosis (NSF) associated with the use of gadolinium. Patients with NSF develop thickening of the skin and connective tissues that inhibits their ability to move and may result in broken bones. Other organs are at risk of thickening as well. The cause of NSF is not known and there is no consistently effective treatment of this condition.

More recently, on May 23, 2007, the U.S. Food and Drug Administration (FDA) asked manufacturers to include a new boxed warning on the product labeling of all gadolinium-based contrast agents which are used to enhance the quality of magnetic resonance imaging (MRI).

Avandia was approved by the FDA in May 1999 for use in improving control of blood sugar levels in Type 2 diabetics. Since its approval, Avandia, which is manufactured by GlaxoSmithKline, has been used by more than seven million people worldwide and is, today, being used by over one million Americans.

According to a study on Avandia conducted by the Cleveland Clinic which was published on May 21, 2007, by the New England Journal of Medicine, the popular drug is linked to a greater risk of heart attack and, in some cases, death. The study, which compiled data from 42 studies involving 15,560 patients who took the drug and 12,283 patients given other medications or a placebo, showed a 43 percent higher risk of heart attack and other heart-related adverse events while taking Avandia.

The FDA is continuing to analyze the data and to investigate the increased risk of heart attack linked to Avandia. Although the FDA has not reached any conclusions and its analysis of the drug is ongoing, on May 21, 2007, the FDA advised patients using Avandia, especially those who have underlying heart disease or who are at high risk of heart attack, to consult with their physicians about this new information.

The Composix® Kugel Mesh Patch is used to repair inguinal, ventral and laparoscopic hernias. The purpose of the patch is to keep the intestines in the abdominal cavity. The patch is typically placed behind the hernia defect by means of an incision. The patch is then held open by a memory recoil ring.

The Composix® Kugel Mesh Patch was recently recalled by its manufacturer, Davol, Inc., a subsidiary of C.R. Bard, Inc., after it was discovered that the memory recoil ring can break under stress and perforate internal organs. Patients who have had a hernia repair using the patch have been urged by the FDA to contact their hernia surgeons to determine if the recalled Composix® Kugel Mesh Patch was used in their hernia repair.

The defect involving the Composix® Kugel Mesh Patch can lead to serious, life threatening injuries including, bowel perforation, bowel obstruction, chronic intestinal fistulae, serious infection, or death.

Many people we have represented in serious personal injury cases whether they workplace accidents, trucking accidents, automobile accidents or dangerous products have asked whether settlement proceeds or payments made to an injured party as aresult of a jury verdict are taxable. The general rule is that those payments are not taxable.

The Internal Revenue Code provides, “Except as otherwise provided”, gross income for the purpose of calculating Federal income tax includes “all income from whatever source derived”. Sec. 61(a). This definition is sweeping in scope, and exclusions from income are to be narrowly construed. However, Section 104 provides for an exclusion from gross income for certain payments received as compensation for injuries or sickness. Specifically, section 104(a)2 provides in part:

SEC. 104. COMPENSATION FOR INJURIES OR SICKNESS.