When the government investigates or prosecutes alleged corporate crime, a key question commonly emerges: Will the accused client waive attorney-client privilege and disclose relevant communications to the government?

This issue often arises because lawyers are routinely involved in corporate actions and decisions later subject to government scrutiny.  “The extensiveness and complexity of the laws governing” corporate affairs “have made legal advice a crucial element of [not only] major business decisions,” but also of “more mundane kinds of corporate activity.”  Douglas W. Hawes & Thomas J. Sherrard, Reliance on Advice of Counsel as a Defense in Corporate and Securities Cases, 62 Va. L. Rev. 1, 5 (1976).  As the Supreme Court emphasized in Upjohn Co. v. United States, 449 U.S. 383, 389 (1981), relying on attorneys is especially important “[i]n light of the vast and complicated array of regulatory legislation confronting the modern corporation.”

Ordinarily, the client—and only the client—has the authority to decide whether to waive attorney-client privilege on communications with counsel.  Where an accused-client is cooperating with a government investigation or asserting an advice of counsel defense in response to formal charges, the waiver analysis is generally straightforward: the accused-client waives privilege and discloses relevant communications to the government.  The resulting disclosure often reveals critical information to the government because of the substantial involvement of lawyers in much corporate conduct and decision-making.

You know the Supreme Court of the United States feels strongly about an issue when, in the Court’s parlance, it adds “extra icing on a cake already frosted.”

That is, in effect, what the Court did in Van Buren v. United States (No.19-783), an opinion issued last Thursday in which the Court reversed the Eleventh Circuit Court of Appeals in a prosecution arising under the Computer Fraud and Abuse Act (CFAA).  After considering “the text, context, and structure” of the CFAA, the Court resolved the issue in dispute—i.e., the cake was “frosted.”  But the Court then added “extra icing” and emphasized—again—its profound concerns with federal prosecutors using broad federal criminal laws to target ordinary, seemingly innocent conduct.[1]

Van Buren concerned a “Georgia police sergeant [Van Buren] using his patrol-car computer to access a law enforcement database to retrieve information about a particular license plate number in exchange for money.”  While he “used his own, valid credentials to perform the search, his conduct violated a department policy against obtaining database information for non-law-enforcement purposes.”  The issue was whether Van Buren had “exceed[ed] authorized access” in violation of the CFAA by accessing the database for an improper purpose.

This post will deal with the tolling of claims due to death and up until the appointment of an administrator. Remember, a wrongful death action consists of two categories of claims: those that belong to the decedent’s survivors and consists of the “full value of the life of the decedent,” and those that belong to the estate and include medical expenses incurred prior to death, funeral and burial expenses, conscious pain and suffering prior to death, and punitive damages. For calculating the limitations period for the estate’s claims, Georgia law allows for up to five years to pass between the decedent’s death and the appointment of an administrator. This potential five-year tolling period applies only to the estate’s claims; the claim for the “full value of the life of the decedent” is subject to Georgia’s two-year personal injury statute of limitations (even if the death arose out contract claim). O.C.G.A. §§ 9-3-33; 9-3-92. Consequently, while the law allows for a delay in prosecuting the estate’s claims to appoint an administrator, that time is not unlimited and is, of course, still subject to any statute of repose.

Goodman v. Satilla Health Servs., Inc., 290 Ga. App. 6 (2008) offers an example of how Georgia’s tolling statute due to death works in practice and in conjunction with other applicable statutes of limitations. Goodman involved a medical malpractice action that arose out of a misdiagnosis. In most misdiagnosis cases, the injury begins immediately upon the misdiagnosis; the misdiagnosis itself is the injury, and not the subsequent discovery of the proper diagnosis. Therefore, the fact that the patient did not know the medical cause of her suffering does not affect the applicability of O.C.G.A. § 9-3-71(a). While there was a dispute about when the misdiagnosis occurred, the date most favorable to the estate, and ultimately used given the procedural posture of the case, was June 22, 2001. The decedent then died six months later on December 23rd. Upon death, the law automatically tolled the two-year limitations on the estate’s claims until an administrator was appointed, roughly a year later, on November 8, 2002, at which point, the two-year limitations period began to run again. The estate then waited another 20 months before filing suit, i.e., 26 months after the date of the injury minus the tolling period. But by then, the two-year statute of limitations had run, and the estate’s claims were barred by the statute of limitations. Goodman, 290 Ga. App. at 6-9 (citations omitted).

Under Georgia law, only the appointment of a permanent administrator capable of asserting claims on behalf of the estate will end the legal tolling period. Thus, obtaining counsel or seeking expert advice or taking other actions that might be consistent with the role of an administrator will not act to implicitly wave any statute of limitations. It is the date that a permanent administrator is appointed that controls and not some amorphous timeframe based on when a defendant could theoretically allege a person was effectively acting as the administrator. Hayes v. Hines, 347 Ga. App. 802, 807-08 (2018); Goodman v. Satilla Health Servs., Inc., 290 Ga. App. 6, 9 (2008); Walden v. John D. Archbold Mem’l Hosp., Inc., 197 Ga. App. 275, 279–80 (1990) (disapproved of by First Christ Holiness Church, Inc. v. Owens Temple First Christ Holiness Church, Inc., 282 Ga. 883 (2008)).

As mentioned in Part I, punitive damages are not available as part of the wrongful death claim. They are, however, available in connection with the estate’s claims for the decedent’s predeath injuries and pain and suffering. Donson Nursing Facilities v. Dixon, 176 Ga. App. 700, 701 (1985). Like with the wrongful death claim itself, punitive damages were not allowed under common law.  They are statutory in nature, and consequently, they are strictly construed.

The relevant statute for punitive damages under Georgia law is O.C.G.A. § 51-12-5.1. A party must specifically plead punitive damages in their complaint in order to receive them. As stated in the statue, the purpose of punitive damages is not to compensate the plaintiff, but to “punish, penalize, or deter the defendant.”  Georgia law raises the standard of proof for an award of punitive damages from the preponderance of the evidence to the higher “clear and convincing” evidentiary standard.  A plaintiff is required to prove by “clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” O.C.G.A. § 51-12-5.1(b)-(d).

There are significant differences between a Georgia punitive damages award in product liability cases and non-product liability cases. One distinction worth noting here is that while there is no limit to an award of punitive damages in a product liability case, in a non-product liability case, absent a finding that the “defendant acted, or failed to act, with the specific intent to cause harm,” or that the defendant was “under the influence of alcohol, drugs other than lawfully prescribed drugs administered in accordance with prescription,” or toxic vapor when the defendant acted, or failed to act, Georgia law places a $250,000.00 limit on any punitive damages award. O.C.G.A. § 51-12-5.1(e)-(g). When reviewing the amount awarded, although a court will “not mechanically look to the ratio between general and punitive damages to resolve the question of excessiveness,” the ratio is still a valid tool to determine “whether the jury’s award was infected by undue prejudice or bias.” Georgia Clinic, P.C. v. Stout, 323 Ga. App. 487, 494 (2013).

This is Part I of a discussion concerning what damages are available in Georgia wrongful death cases.  Part II will be published next week.

Wrongful death claims in Georgia are typically divided into two separate claims: (1) the wrongful death per se as measured by the “full value of the life of the decedent” without deducting for any of the necessary or personal expenses of the decedent had he or she lived; and (2) the estate claims, or the claims that would have accrued to the decedent had they lived and include medical expenses incurred prior to death, funeral and burial expenses, conscious pain and suffering prior to death, and punitive damages.

The “full value of the life of the decedent” is measured from the decedent’s perspective.  This is different from many other states which focus on the impact the decedent’s death has on the surviving family members/party plaintiffs. The “full value of the life” concept has two distinct components, one is economic and the other is non-economic. The economic component consists of the “items having a proven monetary value, such as lost potential lifetime earnings, income, or services, reduced to present cash value.” The non-economic portion comprises those “intangible items whose value cannot be precisely quantified, such as a parent’s “society, advice, example and counsel . . . .” Consol. Freightways Corp. of Delaware v. Futrell, 201 Ga. App. 233, 233 (1991).

Finch McCranie LLP has handled dozens of wrongful death lawsuits in Atlanta and throughout the State of Georgia for over 50 years.   When a person’s death is caused by the negligence of another person or company, the surviving family members have a legal right to file a wrongful death lawsuit.  In Georgia wrongful death cases, knowing who is entitled to sue on behalf of the deceased person (and their estate) is an important, and sometimes complicated, decision to make.

Wrongful death claims in Georgia are typically divided into two separate claims: (1) the wrongful death per se as measured by the “full value of the life of the decedent” without deducting for any of the necessary or personal expenses of the decedent had he or she lived; and (2) the estate claims, or the claims that would have accrued to the decedent had they lived and include medical expenses incurred prior to death, funeral and burial expenses, conscious pain and suffering prior to death, and punitive damages. The estate claims are filed by the estate’s Administrator or Administratix. The proper plaintiff in the Georgia wrongful death claim, however, depends on the decedent’s surviving relatives. See generally O.C.G.A. § 51-4-1 et seq.

If the decedent was married when they died, Georgia law makes the surviving spouse the proper plaintiff. Representing the spouse will be the most straightforward and advantageous scenario. The surviving spouse then brings the suit on behalf of themselves and any of the decedent’s children.  This is not limited to children born to the decedent and the surviving spouse; the Georgia code specifically includes out-of-wedlock children.  While the spouse must act prudently, absent exceptional circumstances, the spouse controls any potential action and need not consult or get permission from the decedent’s children in settling the matter, nor – again, absent exceptional circumstances – can the children pursue the claim on their own behalf. Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1311 (11th Cir. 2009) (collecting Georgia cases illustrating when Georgia courts exercised their equitable powers to allow children to file, such as when “the surviving spouse is absent, disabled, has declined to pursue the claim, or has no relation by blood or law to the surviving children.”)

[Law360 published the below article by Finch McCranie partner, David Bouchard, on January 25, 2021.  The article concerns PPP fraud and enforcement.  Our white collar criminal defense team is deeply experienced in helping individuals and businesses navigate government investigations, enforcement actions, and prosecutions.  If you are contacted by a law enforcement or regulatory authority regarding a PPP loan or other business transaction, do not hesitate to contact our capable team.]

By last August, just four months after the first Paycheck Protection Program loans were disbursed, federal prosecutors had filed 41 criminal complaints charging nearly 60 people with PPP fraud in cases involving alleged losses totaling approximately $62 million.[1]

Without skipping a beat, Hannibal Ware, inspector general of the Small Business Administration, cautioned that such prosecutions amounted to “the smallest, tiniest piece of the tip of the iceberg.”[2]

Nobody accused of a federal crime should be penalized for exercising their Sixth Amendment right to trial.  And yet, because of the trial penalty, that happens all too often.[1]

The trial penalty refers to “the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial.”[2]  At least in part because of the trial penalty, federal criminal trials are on a steep decline.  Thirty years ago, 20% of federal criminal cases went to trial.[3]  Today, fewer than 3% of federal criminal cases result in a trial, and more than 97% of criminal cases are resolved by plea.[4]  As the National Association for Criminal Defense Lawyers (“NACDL”) has accurately observed: “[t]he Sixth Amendment right to trial [is] on the verge of extinction.”[5]

The trial penalty can be traced back to the sentencing reform push of the 1980s, which led to the creation of mandatory minimum sentencing provisions and the sentencing guidelines, and in turn, more powerful prosecutors and less powerful judges with more limited discretion.  Charge and fact bargaining, excessive guidelines ranges, departure provisions conditioned on pleading guilty, and statutory mandatory minimums, are all key reasons for the emergence of the trial penalty.  For example, rather than reserving mandatory minimum sentencing provisions for the most culpable defendants, prosecutors have at times used them “to strong-arm guilty pleas, and to punish those who have the temerity to exercise their right to trial.”[6]

A dog bite or an attack can be devastating.  Ranging from children to adults, dog bites/attacks can result in serious injury, permanent scarring, disfigurement, or even death.  Consequently, a dog bite can raise multiple theories of liability.

For a dog owner to be held liable for a dog bite or attack, the injured party must prove the dog owner knew the dog had a vicious propensity or was not properly restrained in violation of a local leash law.  O.C.G.A. § 51-2-7.

Vicious propensity is proven by demonstrating the dog’s history of aggressiveness and that the owner was on notice of such aggressiveness.  Steagald v. Eason, 300 Ga. 717, 797 S.E.2d 838 (2017).  Evidence that the dog has engaged in aggressive behavior in the past, such as snapping at people, can demonstrate a dog’s viciousness.  Steagald v. Eason, 300 Ga. 717, 797 S.E.2d 838 (2017).

Subrogation is a complicated concept and likely one that you had not heard of until getting involved in a lawsuit. Narrowing the scope of this blog to personal injury cases, subrogation allows an insurance provider to stand in the shoes of the injured party.  In the context of personal injury claims, the question is who should pay for an injured party’s medical expenses and how much should be paid.

Let me illustrate.  Say you are injured in a car accident at no fault of your own and you are rushed to the emergency room.  After being discharged, you begin treating with an orthopedist.  Subsequently, you need surgery and are required to undergo weeks of physical therapy.  The whole time, your health insurance is paying for all or a portion of your treatment costs.  You decide to sue the at-fault driver.  Now the question is whether the at-fault driver’s insurance should reimburse your health insurance for the treatment it paid for.  The thought being that you, the injured party, would never have needed this treatment but for the actions of the at-fault driver and thus the at-fault driver’s insurance should be paying for your treatment.  Subrogation would allow your health insurance company to stand in the shoes of you, the injured party, to recover those costs of treatment that had been paid.

Subrogation, however, is not an automatic right.  Just because a health insurance or benefit provider paid for your treatment resulting from an accident does not mean the health insurance company is automatically entitled to reimbursement from the at-fault party’s insurance.

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