Many states are trying to carve out malpractice caps and different standards of care for emergency room doctors in medical malpractice cases. The thinking starts out okay. Emergency department doctors should be given the benefit of the doubt because things are happening so quickly. But ER doctor are always getting the benefit of the doubt from jurors. There is statistical evidence of this. More importantly, the standard of care already bakes in the fact that things are sometimes happening at the speed of light in the ER. That is why reasonableness is always based on all of the facts and circumstances.
I’m amazed at how many smart, well informed people are under the impression that if an accident occurs on a business’ property, the business is automatically liable for any and all damage. In the real world, slip and fall cases present much bigger hurdles to climb.
Last week, the Georgia Court of Appeals upheld a trial court’s summary judgment order denying a plaintiff relief in the case of Warner v. Hobby Lobby, a case illustrative of these challenges, even in a comparative negligence state like Georgia.
The 11th Circuit affirmed a $1.5 million product liability judgment to a Georgia woman whose vaginal and anal cavities were tragically gutted by water shooting from the back of a jet ski.
How could this have happened? A 21 year-old woman is doing what many of us have done, riding a jet ski on vacation in the Bahamas. She is a passenger. Her friend hits the gas, this young woman was not holding on or expecting it, and she falls off the back. This happens all the time on jet skis. But water thrusts from the nozzle in the back of the jet ski and tears through her vaginal and anal cavities. Just awful. She gets 19 medical procedures and surgeries, and likely will have to wear a colostomy bag and self-catheterize for the rest of her life, absent some new medical breakthrough that we all hope comes.
Her lawyers file a lawsuit against Kawasaki in federal court in Florida but the case gets transferred to Georgia where the woman was going to college. Her attorneys find a good expert who holds a patent for a rotatable seat that could have been used. Kawasaki files a motion in limine to exclude the expert on the ground that his opinion was unreliable because he had not done enough testing on his proposed seat back design. The Georgia judge disagrees, and lets the jury hear the expert’s testimony. The court does, however, grant Kawasaki’s motions relating to the expert’s other reasonable alternative designs, such as an engine cut-off switch and fixed handles.
A federal judge in Georgia dismissed a slip-and-fall case against Walmart finding that the company owed the woman no duty to keep its store safe from water hazards.
In Chapman v. Wal-Mart, Wal-Mart’s Customer Service Manager began instituting rainy day procedures. Employees were instructed to place carpeted mats in the inside vestibule, inspect the vestibule and front store area throughout the morning for dampness, dry off shopping carts, hand out umbrella bags, and use brightly colored cones to warn customers of possible water on the floor. When plaintiff entered the store the rain had ceased, but the weather remained damp.
She entered the vestibule to grab a shopping cart, not looking down at the ground while doing so. On her way to the carts, she slipped and fell. Upon falling, she noticed a puddle on the ground. Plaintiff brought a slip-and-fall case in federal district court, alleging Wal-Mart acted negligently by failing to keep the store free of puddles and for failing to adequately warn her of puddles. Wal-Mart filed a motion for summary judgment.
A federal judge in Georgia granted the United States’ motion for summary judgment on the grounds that the 10-year North Carolina statute of repose barred claims for plaintiffs’ alleged exposure to solvents and benzene in public water at Camp LeJeune Marine Corps Base in North Carolina. Plaintiffs were exposed to these volatile organic compounds (VOCs) from 1957 up until 1987.
Then, along comes this draconian statue of repose. Unlike the statute of limitations, the statute of repose starts running whether or not you are aware of any defect and may toll even before you are injured.
Plaintiffs had hoped that reasonableness demanded an exception for latent diseases, but the court disagreed. Ultimately, and unfairly, I think this may be the correct ruling. The cardinal canon before all others in statutory construction is “that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” There is no latent exposure exception in the statute.
The Court of Appeals of Georgia reversed the trial court and granted summary judgment in a wrongful death car accident claim. The court found that as a matter of law, plaintiff had no negligent entrustment claim against the driver’s father.
The at-fault driver was the son of the plaintiffs. Defendant was driving the car but switched with the at-fault driver because he was tired. I guess the at-fault driver was, too. He crossed the center median on I-95 into oncoming traffic, and struck a tractor-trailer in the rear wheel, killing himself and seriously injuring the defendant.
The Court of Appeals of Georgia, Georgia’s intermediate appellate court, wrote about a topic I touched on two years ago. In an extremely short opinion, this Georgia court was faced with the question of how far lawyers can go in referencing biblical passages in the Bible or other religious texts. The Defendant in Powell v. State appealed his conviction for aggravated assault. Defendant only had two issue on appeal. The first was an evidentiary issue the court did not have to address because the defense attorney did not actually object to the question at trial.
The second issue on appeal was more interesting: to what extent can lawyers use the Bible and other religious texts or quotes from religious leaders at trial? Given what I guess was inconsistent statements made by the witness, the prosecutor said in closing:
[L]et me call your attention to Matthew, Mark, Luke and John, four books of Bible, first four books in the New Testament. They all have a little minor inconsistency between each of them, here and there, and that’s because of perspective. But what do we call those four books of the Bible, ladies and gentlemen? We call them the gospel truth, ladies and gentlemen, the gospel truth.
Four NFL players have filed a lawsuit claims they have brain injuries from concussions suffered while playing in the NFL. Clearly, the most prolific player is Jamal Lewis, who is one of the best players the Baltimore Ravens have ever had. Dorsey Levins, another extremely accomplished running is in lawsuit along with Fulton Kuykendall and Ryan Stewart. The common thread between the players? They all live in Atlanta so they found the same lawyer to bring their claim.
Earlier this month, 12 former NFL football players filed a concussion related lawsuit against the NFL about its concussion policies. If these concussion lawsuits are successful, you have to wonder how the NFL will survive. One win by one player would lead to thousands of claims.
I feel for the players. I really do. But I don’t like the lawsuits. The NFL does not manufacturer a product about which it has unique knowledge of the risks. Opinions vary on the degree of the risk and those opinions are continuing to evolve with modern science. But everyone has equal access to the literature and people have a right to choose the course they want to take.
The First Division Georgia Court of Appeals overturned directed verdict in a carbon monoxide brain injury lawsuit after the trial court made multiple errors on what are frankly, some pretty basic issues.
First, the trial court erred in jury selection. Two possible jurors said they could be biased yet no effort was made to follow up with those prospective jurors to inquire about the bias. This is a no-brainer. Jurors at risk for bias have to be examined and bias concerns must be resolved. This is made pretty clear in Being a Judge 101. Apparently, this case was in a Mayberry-like town and both jurors were biased in favor of the defense lawyer, who they knew, and said they would be biased in favor of deciding the case. Check this out:
JUROR: I’m a CPA in Cordele.
[LAWYER]: You know—
JUROR: I mean, he’s my client and my attorney, so you know I’ve worked on many occasions with him.
[LAWYER]: I’m not sure this is-I don’t want to be inappropriate with the question, but is he your current client?
[LAWYER]: Is it on a personal basis?
JUROR : Yes.
[LAWYER]: Well, I’ve asked a few times, but I’m going to have to ask again if that would—he’s your client, would you be inclined to try to find in his favor?
JUROR : What do you think? Of course. (I love this. What do you think?)
On November 17, 2011, a Georgia jury awarded $9.85 million to the parents of a child who drowned in a pool at an unlicensed daycare in 2009 ($9.8 million in damages and another $50,000 in pain and suffering).
The facts are tragic. While under the daycare provider’s care, the toddler was left unattended and fell into an unsecured pool on the property and drowned. The suit claimed that the daycare employees lied to the parents about their operation being approved by the state of Georgia when, in fact, it was an unlicensed facility.
Before enrolling children in any program, especially home-based facilities, parents should check with state agencies for licensing information. If a daycare owner has a pool, it is like having a loaded gun lying around. At a minimum, the facility needs to make sure there is a lock and key on that gun and all county codes for safety and security are being met. Parents should never blindly assume that the daycare provider is following all the rules and regulations required.