Georgia Injury Lawyer 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.

Disturbingly, Commission Chairwoman Nord, has been lobbying Congress to not grant additional authority which would allow the CPSC to deliver reports in a quicker manner and thereby protect the public. Amazingly, the Chairwoman has also fought a move in Congress to fine manufacturers who make unsafe products.

If these reports concerning the Chairwoman of the CPSC are true, it is extremely disturbing. Almost no agency in the federal government has a more important function than the CPSC in terms of protecting the public, especially children, from dangerous products. If the CPSC is not doing the job for which it was created in an effective and efficient manner all consumers are at risk. Unfortunately, many times the financial interests of big business take precedent over the safety of the public.

Our lawyers frequently encounter heavy truck collision cases involving death and serious injury where the truck driver is in violation of federal regulations concerning the hours that can be driven in a given period. As we have written before, driver fatigue is a serious and potentially deadly problem.
Federal regulations permit a truck driver to drive a maximum of 11 hours after 10 consecutive hours off duty. They can drive a maximum of 60 hours in a seven-day period or 70 hours during an eight-day period. Before starting a shift that will run for seven or eight days straight, they must take off 34 or more consecutive hours.Last year authorities investigating a Florida crash that killed seven children discovered that, except for a brief nap, the truck driver involved had been awake but not necessarily driving for more than 34 hours before the accident. The tractor-trailer he was driving struck the rear of a car carrying the children. The car had been stopped behind a school bus dropping off students.

Estimates on the role driver fatigue plays in truck accidents differ. As many as 30 percent to 40 percent of heavy truck accidents may be related to truck driver fatigue, according to data from the National Transportation Safety Board.

Florida ranked 21st, tying with Delaware, for the number of truck crash deaths per 100,000 people in 2004, with 2.17 deaths, according to data from the 2004 Fatality Analysis Reporting System and the National Center for Statistics Analysis. Wyoming was first with 8.08 deaths per 100,000 people. Hawaii was last with 0.32.

Many in the trucking industry blame shippers, not trucking companies, for the pressure some drivers are under to deliver. We have seen many cases in which truck drivers falsify logbooks so they can make up time and mileage. In many of these instances, when confronted with the falsified data, the drivers have responded that if they did not drive in excess of the mandated hours they would lose their jobs.

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.

As we have written previously, if an injured individual has a claim against a municipality, there is also required ante-litem notice. The injured claimant must file a claim with a municipality within six months of the incident notifying them of the injury, the nature of the claim, and the damages sustained. If injured by a county in Georgia, you must file a claim within 12 months. If injured by a state agent or an employee, you must also file a claim within 12 months. There are also enumerated statutory procedures for these notices that must be meticulously followed otherwise the ante-litem notice will be found to be defective. In short, the law has various provisions including statutes of limitations and required ante-litem notices which can result in a grave miscarriage of justice for those who have been victimized by the negligent acts of others should they be ignorant of their existence and not follow them.

We would urge all those individuals who have been seriously injured or have sustained any damages as a result of the negligence of a third party to confer with counsel immediately. Sooner is better than later. In some cases, if the injured party waits too long there is nothing any lawyer can do because the claim will be time barred by the statute of limitations. If an injured claimant waits too long to deal with state or local officials and fails to file a proper ante-litem notice, this also can be fatal to their claims. Do not be victimized by what you do not know. Act to protect your interests by conferring with a qualified attorney.

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.

According to the government’s statistical data, about half of all motorcycles involved in a fatal crash collided with another vehicle. A little over a third of the cyclists died while speeding which is approximately twice the rate for drivers of passenger vehicles or light trucks. A fair percentage of the accidents also involved some alcohol involvement. (Obviously, it makes no sense to drink and drive in any vehicle much less a motorcycle.) Those killed where they may have been drinking or speeding or in some sense negligent themselves are statistically less in number than those who were not negligent at all.

Because there is so little protection afforded to the rider of a motorcycle other than a helmet, obviously, safety must ever be foremost in the rider’s mind. Regrettably, the cases that we are currently handling have occurred in situations where notwithstanding excellent safety precautions by the motorcycle rider, nonetheless, a death occurred. In short, like any other activity, motorcycle riding involves risk, some of which can be avoided and some which cannot.

It is always sad to confer with clients who have experienced the tragic loss of a loved one due to the negligence of a third-party particularly where the decedent or the seriously injured individual was completely innocent in the premises. Nonetheless, our civil justice system still remains the best avenue of relief and some measure of justice for the victims of these tragic occurrences. While we continue to hope that cases of this nature will decline in numbers, statistically, it appears that they are on the rise. It goes without saying, therefore, that all riders, regardless of age, should be extremely careful.

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.

Lead is toxic if ingested by young children. Under current regulations, children's products found to have more than 0.06 percent lead accessible to users are subject to a recall.

The Consumer Products Safety Commission also announced recalls of 627,000 other Chinese-made toys from various manufacturers that are contaminated with lead. The other toys include football bobble head cake decorations, Halloween pails, "Shrek the Third" and "Spider-Man 3" flashing rings, children's jewelry and toy gardening tools.

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.

Each year, more than 250,000 Americans die from sudden cardiac arrest. According to medical experts, many of these persons can be saved, with timely intervention.

Since the introduction of AEDS, state legislatures, including Georgia, have become actively involved in the issue. Most commonly, state laws encourage broader availability of AEDS. Most states establish a legislative intent that an AED may be used by any person for the purpose of saving the life of another person in sudden cardiac arrest. They encourage or require training of the use of AED devices by potential users, require AED devices to be maintained and tested to manufacturers standards, create a registry of the location of all such AEDS, and allow a Good Samaritan exemption from liability for any individual who renders emergency treatment with a defibrillator.

With the wide availability of defibrillators, their relatively low cost, and the ease of use, there has been an increase in legal actions against entities which fail to have defribrillators on the premises. The theory behind these legal actions is that there it is foreseeable that in a large gathering of people, a person could suffer from a sudden cardiac arrest event. As such, the theory holds that there is a duty of the owner or the operator of the premises to have AED devices available.

As Georgia injury lawyers, it is not uncommon for us to review potential wrongful death claims involving truck driver fatigue. We often see this in the context of tractor-trailer accidents where the truck driver has fabricated his driver’s log and/or driven far in excess of his allowable hours. Many times there is demonstrated sleep loss involving the use of amphetamines, methamphetamines or other stimulants used by the driver to overcome the fatigue.

According to a newsletter we recently ran across published by a well respected truck safety organization, there is an interesting correlation between sleep loss, fatigue and the serious impairment caused by being legally drunk. Studies have shown that the impairment from sleep loss and long working hours are almost the same caused by alcohol consumption. The longer one is awake, the slower the reaction time. If one gets too little sleep (4 or less hours) this is equivalent to the effects of .05% blood alcohol for the long working hours. In one study, where people were kept awake for 24 straight hours, the slowed perception reaction time had approximately the same effect as .10% blood alcohol level which is above the level (.08%) now nationally recognized as being legally drunk. Thus, it can be clinically demonstrated that if one loses sleep for a long period of time one’s perception and reaction time is dangerously slowed.

In our personal injury practice we often see the evidence of serious impairment caused by fatigue and lack of sleep. The end result of such fatigue we see in our practice is a serious collision. Increasingly, we see this particularly in the context of truck drivers who are trying to increase their wages by driving longer and longer hours and greater and greater distances. Even though large trucks make up just 4% of all registered vehicles, and 7% of all vehicle miles traveled, the same trucks are involved in 11% of all crash fatalities. This year, as in years past, approximately 5,000 people will be killed in truck crashes and collisions throughout the country. We know from our experience that many of these crashes are preventable and would not occur if drivers kept shorter hours and were not seriously impaired by fatigue. While commercial airline pilots typically fly only about 30 hours a month, most truck drivers drive around 300 hours a month. For some reason, this has become acceptable in the workplace even though the number of people killed in truck crashes annually exceed the number of people that are killed in major airline crashes. Query why this is so?

With improvements in technology, before long, employers and trucking companies will be able to monitor precisely the hours being kept by their truck drivers. We can only hope that legislation will follow which mandates that employers not only monitor the number of hours driven but also the number of hours taken by the driver to rest. Too many hours driving means too much fatigue which also means possible impairment of perception and reaction times. Because we see the end result of this, which is serious injury, death and tragedy for our client’s families, and we can only hope that the speed of technology will continue to develop to the point where trucking companies will have no choice but to monitor and address the significance safety issues caused by driver fatigue.

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.

The FDA has advised patients using Zelnorm to seek immediate medical care if they experienced severe chest pain, shortness of breath, dizziness or other symptoms of heart attack or stroke. Zelnorm has also been linked to serious cases of diarrhea, ischemic colitis and death. This prompted Novartis to amend its label in March 2004 to warn against these serious risks.

As a Georgia personal injury lawyer, it never ceases to amaze me how the trucking industry lobbies to limit the rights of victims who either suffer wrongful death or serious injuries in truck accidents caused by negligent, careless, or drunk drivers.

In researching an issue last week, I ran across a website of the American Trucking Association who proudly listed, on a state-by-state basis, some of their legislative efforts to deny accident victims fair compensation. They published their "Tort Reform Scorecard 2006". Rather than concentrating their efforts on driver safety and other ways of preventing human tragedy caused by the negligent, if not criminal, operation of their trucks, they invest in trying to change the laws to limit what they have to pay to fairly compensate people with serious injuries. They seek to eliminate joint and several liability, limit or eliminate punitive damages and attorney fee awards. In some states, like Georgia and Alabama they have backed legislation limiting damages for non-economic damages.

Our firm recently settled a wrongful death case involving a truck driver using drugs who was found to have been hiding vials of urine under his belt in case he got caught and was subjected to drug testing!

In another recent case involving serious spinal injuries to our client, the truck driver switched driving positions with his friend who happened to be riding along for company. This friend who had no commercial drivers license had recently been scheduled for back surgery because he had a spinal cord injury as a result of being struck by lightening. The friend was taking prescription narcotic pain medication to ease his back pain and he had numbness in one of his legs. To top it all off they switched seats going south on I-75 at 70+ mph with a load of steel on the trailer!!

It is maddening to hear the trucking industry and other groups tout their alleged accomplishments which they refer to as tort reform. Trucking companies as well as all other businesses should be able to be held accountable for the actions of their employees who injure or kill innocent people and they should be required to make such victims completely whole for all of the damages those victims or their families sustain. "Reform" which limits an innocent victim's rights in favor of a corporations bottom line is wrong.

We recently read a blog posted by Ronald Miller in his excellent Maryland Injury Lawyer Blog about an interesting correlation which exists between truck driver compensation and safety outcomes. According to a study by Cornell University (about which the Miller wrote), the more a truck driver is paid the less likely he is to engage in risky behavior. This actually seems to be common sense. Those drivers who have to drive too many hours or drive while fatigued are obviously doing so in order to increase their wages. If they were paid a fair wage based on reasonable work hours and driving conditions there would be no reason for them to engage in such risky behavior. Regrettably, the anecdotal experience we have as lawyers here in Georgia tends to indicate that the study conducted by Cornell University is absolutely “spot on”.

A case we are currently handling is a good example of this interesting correlation. In this case, the truck driver was paid by the mile. The more miles he drove, the more money he made. Unfortunately, his mileage rate was lower than is customary and thus he had to work long hours and drive while fatigued to make a decent wage. Of course, this was a deadly mixture because this driver, in order to keep driving such long hours and distances began taking methamphetamine and amphetamine and finally cocaine. The term “speed ball” is almost an industry term by now base on this phenomenon and refers to drivers who are hyped up all the time on stimulants in order to allow them to drive longer and longer hours and greater and greater distances. Why? To increase their compensation.

The attorneys here at our office certainly can attest based on our experience in handling many such cases that truck drivers will speed and drive without proper rest in order to make more money. Thus, if trucking companies paid good wages on the front side and provided good working conditions, the risk to the public would go down. Thus, the implication of the study conducted by Cornell University is that the trucking industry needs to engage in some self-evaluation. If there is reform in wages, there will be an impact on safety. This is nothing more than common sense. Regrettably, in our judgment, because of the desire to maximize profits at the expense of the public, accidents will continue to occur until the reform is mandated either by a government body, the insurance industry, or the employer/trucking companies themselves.

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.

Continue reading "Denying Justice to Innocent Victims of Police Chases: New Defense Strategies By The Government " »

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.

The Fidelis wire has been used with Medtronic defibrillators since 2004 and most patients who received Medtronic defibrillators since then have received the Fidelis wire.

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.

A lawyer should always look for any other party who may be responsible for his client's injuries in dog bite cases. For instance our firm successfully represented a realtor who was attacked and seriously injured by a dog who had been tied up but who broke free. After having had the collar examined by a metallurgist we determined that there was a casting flaw in the metal buckle which broke allowing the dog to run free.

In previous blogs our lawyers discussed the dangers of drivers operating large trucks while under the influence of alcohol and/or drugs. This is a continuing problem in the United States which often leads to serious injuries and fatalities.

Interstate motor carriers and certain intrastate motor carriers are subject to the Federal Motor Carrier Safety Regulations as prescribed by the United States Department of Transportation. These regulations control a wide range of activities involving large trucks and tractor-trailers. One section, part 382, addresses controlled substances and alcohol use. The regulations prohibit a driver from reporting to duty or remaining on duty while having a breath alcohol concentration of 0.04% or greater. It also makes it illegal for an employer having knowledge that a driver has an alcohol concentration above that level to permit a driver to drive. The regulations also prohibit a driver from reporting for duty or remaining on duty while using any controlled substance or testing positive for any controlled substance.

Specific testing is mandatory under the regulations. Prior to the first time a driver operates a vehicle, the driver must be tested for alcohol and controlled substances. In addition, post-accident testing is required as soon as practicable following an incident involving a commercial motor vehicle operating on a public road. Random testing is required in accordance with directives described in the regulations. Finally, it is required that an employer shall test for alcohol or controlled substance test when the employer has reasonable suspicion to believe that the driver has violated any prohibitions of the regulations concerning alcohol and/or controlled substances.

While the federal government has issued these alcohol and controlled substance regulations, our lawyers are unfortunately continuing to review cases in which drivers of heavy trucks and tractor-trailers are under the influence of alcohol and/or controlled substances at the time of the incident giving rise to the serious injuries or fatalities.

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.

Under the FDA’s current regulations, a drug company is required to revise its label to include warnings about risks that may be associated with the drug as soon as there is reasonable evidence of that risk. Although the company must notify the FDA of the change, it is not required to wait for the FDA’s approval before making such a labeling change. The theory is that consumers should be made aware of a drug’s risk at the earliest possible moment.

The provision also makes clear that the burden of updating the warning label falls squarely on drug companies. This is the first time that Congress has directly passed legislation concerning labeling. Previously, all labeling requirements were governed by the FDA’s regulations only. These prior regulations, placed many people in the public at danger due to delays or inaction on the part of the FDA.

The drug manufacturers fought and lobbied very hard to include language that Congress specifically left out of the final bill. That language would have shifted the burden of making labeling changes from the drug manufacturers to the FDA.

This bill is a major victory for the public.

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:

1. Whether the opposing party suffers prejudice as a result of the destruction of evidence;

2. Whether the prejudice can be cured;

3. The practical importance of the evidence;

4. Whether the spoliator acted in good or bad faith; and

5. The potential for abuse if the evidence was not excluded.

Another remedy for spoliation is to charge the jury under O.C.G.A. § 24-4-22, which creates a rebuttable presumption against a party failing to come forward with evidence in its power or within its reach. In essence, the Court can charge the jury that had the evidence been produced it would have been detrimental to the cause of the spoliator.

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.

“I am excited to be joining a group of excellent lawyers who have earned an outstanding reputation over decades for representing their clients with integrity to great success,” Judge Boswell said. “Finch McCranie is one of the most well-respected firms in our community, and I have known its lawyers both for the quality of their work and for their character in representing clients in my court. I am pleased to be able to help represent those clients now.”

“Our firm is proud to have Judge Boswell join our practice,” said Hendrix. “He brings a wealth of knowledge and experience from having been in involved in literally hundreds of trials over his career. “He’ll be an invaluable resource especially for our clients in our serious personal injury and wrongful death practice. No one knows how to try a case any better than Judge Boswell, and that experience also will benefit all of our clients, including our ‘whistleblower’ clients.”

Judge Boswell, a native of Hogansville, Georgia, is a 1974 graduate of the University of Georgia Law School. Before completing his legal education, he served as a U.S. Army officer and was awarded a Bronze Star in Vietnam. In addition to his years on the trial court bench, Judge Boswell has been appointed to sit specially on the Georgia Supreme Court, has taught courses at the American Bar Association's National Judicial College, and is a former President of the Clayton County Bar Association.
Judge Boswell also has served on the Boards of Heritage Bank and of many community organizations, including as Chairman of the board of the Salvation Army. He has also successfully acted as a mediator in bringing many cases to resolution. He has elected not to accept cases as a Senior Superior Court Judge at this time.

Finch McCranie, LLP is an “all-litigation” law firm with more than 40 years of continuous practice. The firm has offices in Atlanta and Locust Grove, Georgia. It holds numerous records, including the first million dollar jury verdict in the state. The firm’s practice includes representing injured persons and their families in cases of serious injury and wrongful death, white collar criminal defense, as well as representation of citizens who report fraud against the government, including IRS tax whistleblowers. Members of the firm were instrumental in the passage of Georgia’s newest “whistleblower” statute, the State False Medicaid Claims Act in 2007.

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.”

We offer our condolences to the families of these fine men who were serving their community in a most laudable way.

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.

Reviewing courts also rejected Fifth Amendment equal protection and Eighth Amendment cruel and unusual punishment claims that restitution may not be imposed on defendants who are indigent at sentencing. These courts noted that because the restitution statutes allow an extended period of time within which to satisfy a restitution order, indigence at sentencing is not a bar to restitution.

Claims that the restitution procedures transformed the judicial sentencing proceeding into a "juryless" civil proceeding in violation of the Seventh Amendment were also rejected. Appellate courts characterized restitution as a form of punishment that serves recognized punishment goals of deterrence, rehabilitation, and retribution. These courts noted that the Constitution does not require a jury to determine any aspect of a defendant's sentence. Although the restitution sanction has certain civil aspects and consequences it was found to be fundamentally different from a civil adjudication in that it can only be imposed after a determination of criminal guilt, the victim is not party to the sentencing proceeding, and factors such as the defendant's financial condition are required to be considered concerning its imposition or implementation. Reviewing courts concluded that the civil aspects of restitution do not transform a criminal sentence into a civil proceeding-requiring act finding by a jury.

The federal courts have matched Congress' increase in the number of victims eligible for restitution with a generally expansive interpretation of the types of eligible victims and victim losses. In addition to the human, direct victims eligible for restitution, reviewing courts have found restitution warranted for some indirect human crime victims, such as family members or incidental persons suffering losses as a result of an offender's commission of crimes against direct victims. Courts have also upheld restitution awards to entities directly and sometimes indirectly victimized by defendants, as illustrated by restitution awards to a computer company for an offender's fraudulent acquisition of software as well as to the Federal Deposit Insurance Corporation, as insurer and receiver of a failed bank victimized by an offender.

Appellate courts have also upheld a wide range of amounts and types of restitution. For example, restitution orders in the millions of dollars have been upheld when supported by evidence of victim loss. In addition to direct losses resulting from a criminal act, restitution for various ancillary costs associated with the crime has also been upheld, including pre-judgment and post-judgment interest. Thus, as authorized by Congress and interpreted by the federal courts, the scope of the federal restitution provisions can be significant.