Personal Injury & Wrongful Death

As is true of any other claim against the Federal Government, if a tort has been committed for which a government employee was negligent which caused injury or damages to an innocent third party, the procedures of the Federal Tort Claims Act govern the claim. A Standard Form 95 with all supporting documents needs to be filed with the appropriate government agency involved before the expiration of two years. Regardless of the agency involved, the form must to be received by the appropriate agency/department. We use a hypothetical claim against the Postal Service here to address this important point.

With regards to claims against the Postal Service, effective August 23, 2011, the rules and regulations changed concerning where written communications should be directed. Previously, Notice of Claims were sent to the Chief Counsel National Torts Center in St. Louis, Missouri. Effective August 23, 2011, all written communications should instead be directed to the General Law Service Center, USPS National Torts Center, 1720 Market Street, Room 2400, St. Louis, Missouri 63155-9948.

When sending out a Form 95, where practicable, the local Post Master should be served with the Standard Form 95 as well as the Chief Counsel for the Torts Division at the address indicated. Indeed, we usually send out redundant copies of the Form 95 and with respect to Postal Service claims, we send it to the local Post Master, to the Chief Counsel of the Torts Division at the General Law Service Center address specified and also just to the General Law Service Center without the Chief Counsel’s address on it as a back up. In short, practitioners want to make sure that the Form 95 is received by the Postal Service and acted upon by the appropriate personnel. By sending redundant copies to multiple addresses, a claim with the Postal Service is likely to be responded to in a more expeditious manner.

In urban America it is not uncommon to see speeding government vehicles heading toward a variety of locations. Whether the emergency vehicle be a fire truck, an ambulance or police vehicle this is a common day occurrence in places like Atlanta. Regrettably, during some of these responses, the emergency vehicles collide with innocent motorists. When this happens, obviously, the issue is whether there is legal liability for the operator of the emergency vehicle/government.

Under O.C.G.A. § 40-6-6, emergency vehicles are permitted to disregard traffic rules and regulations otherwise in place. For example, if the speed limit is 35 miles per hour in a particular location, an emergency vehicle may disregard that speed limit, however, in order to do so, the emergency vehicle should display its lights and sirens and even when doing so must exercise “due regard” for the safety of the motoring public. Regrettably, this is not always done with the foreseeable result that innocent third parties at the wrong place at the wrong time are injured.

If a police vehicle is responding to a radio call for assistance at a suspected scene of a crime and the police vehicle is traveling in excess of the posted speed limit, unless the police vehicle has on emergency lights and siren and is otherwise exercising due regard for the safety of the motoring public, the government entity responsible for its operation can be held liable if an innocent person is injured or killed during a collision caused by the failure to exercise such due regard. Under Georgia law, there is a waiver of sovereign immunity for the negligent operation of governmental vehicles up to a maximum of $750,000.00. While many injuries and deaths due to governmental negligence can result in damages in excess of this statutory limit, nonetheless, currently, this is the extent of the waiver of sovereign immunity when it comes to the negligent operation of government vehicles.

On March 28 of this year, the Georgia Court of Appeals held that innocent passengers unwittingly involved in a high speed pursuit case can sue the police for damages caused, in part, by a reckless disregard of proper police procedure. In so ruling, the Court of Appeals noted that the police pursuit statute found at O.C.G.A. § 40-6-6(d)(2) was enacted by the Georgia Legislature to protect the rights of the innocent. Whether an innocent person is either inside or outside of a vehicle is not relevant. The question is, whether the injured party filing a claim against the police was innocent of wrongdoing. If innocent, whether a passenger inside the vehicle or a pedestrian outside the vehicle or any other third party, the Georgia Court of Appeals held that such a person could bring a claim, again, provided they were innocent and were injured, in part, by a reckless disregard of proper police procedure.
Fleeing suspects who are injured or killed as a result of a high speed pursuit may not bring a claim for damages even if the police violate proper police procedure during the pursuit. The simple reason is that drivers who flee cannot be innocent. They are violating the law by fleeing which is in Georgia a felony. A passenger who has nothing to do with the flight and who does not control the vehicle and, in fact, asks that the vehicle be stopped so that they are not involved in a pursuit can pursue a remedy if they suffer damages as a result of a reckless disregard of proper police procedure. In the cases of McCobb and Powell v. Clayton County, the Georgia Court of Appeals held that innocent passengers who are injured during a high speed pursuit can sue not only the fleeing driver but also the police provided, of course, that not only are they innocent but that there is evidence of a reckless disregard of proper police procedure either during the decision to initiate the pursuit or continue the pursuit which contributed to or caused their damages.
Most high speed pursuits involve non-violent suspects who are either violating traffic laws or are wanted for some other non-violent offense. If during a pursuit third parties are unnecessarily and recklessly endangered thereby, proper police procedure requires that such a pursuit be terminated. It is not worth killing innocent persons to apprehend a suspect for a non-violent offense. However, if the suspect being pursued is a murderer, rapist or armed robber and is otherwise known to be dangerous and violent, then the dangers to the public can be justified even during a high speed pursuit because the need to apprehend is equal to or greater than the danger to the public caused by the pursuit.

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There is an old saying that a picture is worth a thousand words. In legal cases presented to a jury, this is particularly true. If you have photographs of an automobile collision’s aftermath and can graphically demonstrate the damage to the vehicles involved, this is much better and more persuasive evidence than is an oral description of the same damage. Likewise, if there are x-rays or photographs of a client’s injuries, this too is very persuasive. Where original photographic evidence or videotaped evidence is not available, oftentimes, demonstrative evidence can be created which depicts what occurred.
An effective use of demonstrative evidence is the use of medical illustrations. If someone has sustained a complex comminuted bone fracture, as an example, a medical illustrator can be retained to draw the fracture, which then can be authenticated by a doctor during his or her deposition in which the doctor describe the injury and the resulting treatment, which oftentimes may result in the implantation of screws, pins and other medical devices. This is very effective and truly “demonstrative” of the associated pain and suffering. The use of a demonstrative illustration can also be used to demonstrate how a particular automobile accident occurred, what the intersection looked like and what the drivers could see. Using such evidence is an effective tool for the advocate in presenting their case to a jury, assuming the case cannot otherwise be resolved by means of compromise and settlement.
Demonstrative evidence can take many forms. Again, we can prepare medical illustrations of a client’s injuries, or we can have computerized animation recreations of how accidents occurred authenticated by forensic engineers, as an example. We can also prepare summary charts of damages totaling the medical expenses and lost wages. Again, the purpose of such demonstrative evidence is to present evidence to a jury in the manner that is most likely to have an impact upon them, to convince them of what being asserted. Something that is heard and seen is more likely to be remembered than something that is merely heard, thus, the importance and value of liberally using demonstrative exhibits during the trial of any serious personal injury case. While a picture is worth a thousand words, the creative use of demonstrative exhibits can be just as valuable in serious injury litigation.

Oftentimes clients like to refer to news articles about some substantial jury verdict or settlement in favor of a plaintiff in a particular case. Our advice when these comments are made is that it is very dangerous to compare apples to oranges. Literally speaking, no two cases are alike and it is difficult to compare one person’s case to another. On the other hand, the paramount goal of our attorneys is to make sure that our clients receive the best possible result given the facts of their particular case. Here, we like to compare apples to apples insofar as possible.
In order to achieve justice for our clients, we have to conduct an investigation of the facts, analyze all available and pertinent materials, compare them with the database of hundreds, if not thousands, of jury verdict research services concerning verdicts and settlements of similar cases in the past and then try to advise our clients what fair compensation would mean for their particular case. Each case has its own settlement value. If a case has clear liability such as a drunk driver running a stop sign and clear damages such as broken bones, which can be demonstrated with x-rays and other diagnostic tests, such a case is fairly easy to evaluate, however, if the case involves disputed issues of liability such as who ran the stop sign or who failed to yield and disputed issues of damages, such as did the plaintiff have a pre-existing back injury, was the back injury aggravated or is the back injury either new or non-existing injury, the case is more difficult to evaluate. As can be seen, the facts largely dictate what would constitute reasonable compensation for a particular case.
Our advice to our clients is that if they can get a settlement offer during settlement negotiations which is equivalent to or better than what a jury is likely to return in a verdict, then they should strongly consider accepting such an offer. If the offer made is less, in our judgment, than what a jury would likely award, then we usually advise our clients that they could consider rejecting such an offer. Oftentimes clients wish to settle cases even though we may not advise that they accept the offer and in some instances, clients want more than we recommend is reasonable.

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Effective January 1, 2013, Georgia’s New Rules of Evidence go into effect. The new provisions are found generally at O.C.G.A. Title 24, Chapter 1 through 10. The new code applies to all cases filed on/or after 1/01/13 and to all trials commenced on/or after said date. What this means is that the new Rules of Evidence will apply to any case in Georgia beginning on January 1, 2013, and going forward.
By in large Georgia’s New Rules of Evidence are patterned after the Federal Rules of Evidence. This is a change in the right direction for trial lawyers because the Rules of Evidence are now codified. Previously, Georgia Rules of Evidence were a hodge-podge of various statutory and common law rulings which had to be located in different sections of the code. Now the Rules of Evidence are codified in a single title in ten (10) chapters. Because the new rules are patterned after the Federal Rules there is an abundance of case authority interpreting these rules for practitioners to rely upon when determining whether a particular piece of evidence is or is not admissible under the rules.
All the Rules of Evidence are designed to insure that only reliable evidence is presented for a jury’s consideration. The purpose of the rules is to make sure that in any dispute, whether it is civil or criminal, that a jury only be given reliable evidence which is trustworthy. Unreliable, prejudicial evidence is generally excluded under these rules. Because there are many different types of evidence offered during jury trials whether the evidence be from video recordings, medical records, financial records or otherwise the new rules are designed to make sure that evidence will only be admitted from trustworthy and reliable sources and that any verdict rendered based on such evidence is likewise more reliable than would otherwise be the case.

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Today we read newspaper accounts about a suspected shoplifter being killed by security personnel at a local Walmart here in Georgia. According to news accounts, the suspected shoplifter allegedly took some merchandise with him outside the store at which point he was tackled to the ground and then held in a “choke hold” for an undetermined period of time. When the police arrived the suspect was motionless and determined to be dead, apparently from trauma inflicted when he was subdued.

Under Georgia law, shopkeepers have a privilege to take reasonable steps to investigate suspected crimes for shoplifting. However, the “Shopkeeper’s Privilege” as it is known under Georgia law does not extend to unreasonable force disproportionate to the alleged crime. Shoplifting is a misdemeanor and even if a suspect is guilty of committing such an offense, it hardly merits deadly or excessive force as a measure to apprehend the suspected violator. Apparently, Walmart has a policy of not allowing such force to be used against its customers but for whatever reason, in this particular case, the policy seems to have been disregarded.

This case is reminiscent of a case our firm handled years ago involving a suspected shoplifter at Nieman Marcus in Atlanta. The “suspected” shoplifter in the case (who was proven to be innocent of all wrongdoing) was forcibly subdued at the scene and strip searched against her will. She was so traumatized she had to be sent to the hospital where she was diagnosed with various personal injuries from the altercation. That case resulted in a million dollar verdict in federal court here in Atlanta over ten years ago and is believed to be still one of the largest verdicts ever rendered in Georgia in a false arrest case. As was proven by the jury’s verdict in that case, while suspicion of shoplifting may be the basis for a reasonable investigation and temporary detention, it is not a sufficient basis to use excessive force against a customer of a store.

All experienced attorneys that practice in the personal injury field are familiar with insurance companies attempting to exploit prior injuries sustained by clients. The argument often used is that the injury caused in the car wreck, tractor-trailer accident, slip and fall incident, or other personal injury case was not caused by the negligence of the person being sued, but rather, that the victim of the negligence is simply malingering and/or claiming damages for a pre-existing injury. Insurance companies subpoena health records as far back as they can hoping to find some evidence of a prior similar complaint. For example, if someone is in a car accident and hurts their back or neck, if the insurance can find any evidence anywhere that the claimant previously complained of neck or back pain, the insurance company will always contend that the prior complaint has simply remanifested itself and that the car accident, truck accident or other tort simply had no bearing on the claimant’s health.
It is frustrating in the extreme to continually run against this common defense tactic. Experienced defense counsel are experts at obfuscation. They can make it sound as if the claimant, who was the innocent victim of the negligent acts of a third party, is simply trying to make someone else pay for a pre-existing condition. This is very rarely the case in my experience and the experience of the attorneys at this firm but, nonetheless, we encounter these arguments all the time. Thus, we have to overcome them by proving that the claimant had had no prior problems for many years, typically, had not needed to seek medical advice and that their acute injuries arose on the day of the incident and continued thereafter, caused by the acts of the defendant against whom the claim is being asserted.
The law is clear that even if someone has a pre-existing injury, they are entitled to compensation for any aggravation of their prior condition. Thus, even if the client did have a prior problem with their back, if their back was re-injured and/or if their pre-existing condition was aggravated, compensation is still allowed. Nonetheless, defense attorneys and insurance companies continue to contend that innocent victims of negligence actually are not injured at all but are simply seeking compensation they are not otherwise due. These arguments are extremely frustrating for innocent victims of the negligent acts of third parties which is why it is important in this context that experienced counsel be engaged to overcome this common defense tactic. If victims are not diligent in this regard, they can be denied justice simply due to an irrelevant modern day smoke screen.

According to the Food and Drug Administration (FDA), it has received reports of 13 deaths associated with the use of the popular “Five Hour Energy” drink. Because the FDA’s investigation is ongoing, currently it is not known what has caused these reported deaths. Is it because the product has too much caffeine that results in heart attacks? Or is it because of other ingredients in the drink which are not subject to FDA regulations (because it is considered a dietary supplement)? The Five Hour Energy drink does not specify to the consumer how much caffeine is contained within it. The mixture of the ingredients in the drink also are under suspicion as collectively possibly causing the reported deaths and other hospitalizations and illnesses. At present, the FDA has received approximately 92 complaints of adverse side effects, including the reported 13 deaths and numerous other illnesses and hospitalizations.
It is not known how long these types of adverse events have been known to the manufacturer. It is not known whether the manufacturer is aware of the etiology of the dangers, whether it be the unique combination of ingredients used in the drink, the excessive caffeine or otherwise. However, currently it is known that the drink is potentially dangerous. Is it worth a five hour “energy boost” to potentially kill or harm consumers of the product? Massive recalls of automobiles and other products have occurred with less reported deaths so we have a curious situation here. The FDA does not regulate “energy drinks” because they are so called “dietary supplements” when in reality such products may be a potential killer. As is often the case involving potentially dangerous products, one suspects that it may take litigation in the form of wrongful death actions to ferret out the truth and to determine just how dangerous these so called “dietary supplements” are. If the risks exceed the utility of the product, as may be the case, the product may need to be removed from the market as otherwise unsuspecting consumers could continue to be harmed by it. As the investigation is ongoing, currently there are many unanswered questions but also many possible dangers. Given FDA’s apparent lack of jurisdiction, private litigation may be necessary to fully explore these issues.

In many of our serious automobile collision cases we unfortunately find ourselves representing victims of a traumatically induced brain injury. During any serious car accident, unfortunately victims oftentimes strike their heads either on the seat or some other interior portion of the car. This can sometimes result in a loss of consciousness, confusion, dizziness or otherwise. When emergency personnel arrive at the scene of a serious wreck and diagnose those who appear to be confused or dazed, they typically use an assessment tool called the Glasgow Coma Scale (GCS). The scale comprises three different tests: eye opening, verbal responses and motor responses. The three values separately as well as their sum are considered. The lowest possible GCS sum is 3 which is a deep coma or near death while the highest is 15 (a fully awake person). A GCS score of 13 to 15 is usually considered as evidence of a mild traumatic brain injury whereas a score of 9 to 12 is considered evidence of a moderate brain injury. Any score of 8 or below is considered a severe brain injury.

Of course, any injury to the brain is a serious injury. Thus, the term “mild” traumatic brain injury is somewhat misleading. The term “mild” is used to describe the severity of the initial physical trauma that caused the injury. In no way does the term “mild” traumatic brain injury indicate the severity of the consequences of the injury.

While the Glasgow Coma Scale score is a useful tool in assessing whether the victim of a car accident has sustained a possible brain injury, nonetheless, it may or may not correlate with a person’s short or long term recovery or functional abilities following the injury.

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