Personal Injury & Wrongful Death

This entry will be the beginning of a series of blogs on trial techniques used by successful trial attorneys in the representation of their clients. The art of cross-examination is just that, an art, not a science. To be a successful trial lawyer, one has to be successful at cross-examination. This requires some natural ability to think logically in the heat of battle a fundamental understanding of what makes for successful cross-examination and actual trial experience.

As successful trial lawyer does not become a successful cross-examiner imitating what is seen on television or other dramatic adaptations. Life is rarely as dramatic as Perry Mason or Matlock. Also, a trial lawyer does not become successful imitating the style and techniques of others. It is imperative that one be his or herself and develop their own style. If a trial lawyer is authentic and uses proper technique, cross-examination can be effective and the truth will emerge which is, of course, the objective of the exercise.

In this beginning article, we are going to explore, in a series of entries, how one should go about effective cross-examination. What are the objectives of cross-examination? We posit four of them. After discussing these four topics, we shall address Twelve (12) Rules which need to be followed if one is to become a successful cross-examiner. To become proficient in the art of cross-examination, certain rules should always be observed, otherwise the exercise will likely be a failure.

Yamaha Motor Corporation, the manufacturer of Rhino off road vehicles, has recalled the same because of safety issues associated with its Rhino 450, 660 and 700 models. Owners of these Utility Terrain Vehicles (UTVs) are being warned not to use them until certain repairs are made. The repairs that will be made to the vehicles include the installation of a spacebar on the rear wheels as well as the removal of an anti-sway bar which repairs are supposed to reduce the chances of rollovers.

According to a press release issued by the U.S. Consumer Product Safety Commission, there have been over 46 deaths involving Rhino 450 and 660 models. Of the rollover related deaths and injuries, which have been reported to the CPSC, many appear to involve turns at relatively low speeds on level terrain. The repair program being announced by the Yamaha Motor Corporation is designed to reduce the chance of rollover but unfortunately, the number of deaths and injuries associated with the use of this product indicates that it is dangerous because of its overall design.

Critics of the ATV charge that the Rhino is top heavy. It has tires that are narrow. The vehicle offers little or no protection for passenger legs in the event of a rollover. Most of the victims of Rhino rollover accidents that survive experience crushed or broken legs, ankles or feet. In some cases, people have been left permanently disabled or have undergone amputations. When children are involved, deaths appear in greater frequency.

One of the Georgia injury lawyers at Finch McCranie, LLP recently got a case involving a propane explosion which completely burned and destroyed the client’s home. The explosion could easily have resulted in the death or serious injury of the clients entire family, including their new baby. Fortunately the injuries were not life threatening; however, they lost everything they owned and have no insurance to replace the home.
Propane is a highly combustible hydro-carbon gas, similar to ethane and butane. Propane gas is compressed to a liquid form and placed into tanker trucks for transport to local usage tanks. Propane is most frequently used as fuel for gas grills and in home heating systems. According to the U.S. Department of Energy, nearly 7 million American homes use propane as their primary heating fuel. Propane sold as home heating fuel is termed liquified petroleum gas and is composed of several other fuels in addition to propane. Liquified petroleum gas (LPG) is commonly made up of propane, small amounts of propylene and butane. A foul sulfurous odorant termed Ethanethiol is added to odorless propane gas as a safety precaution in order to detect leaks easily in storage tanks. Many home explosions occur as a result of propane suppliers failing to follow proper procedure in filling tanks. For instance, if a delivery is made and the tank to be filled is empty or the gauge is reading empty, the delivery technician should not fill the tank until the system is pressure tested to make sure that there is no leak present. In the alternative, if the tank is filled with propane, the line to the house should be turned off and the owner notified that the system needs to be tested before turning the gas on again. If these procedures are not followed and there is a leak, a deadly explosion can occur, resulting in death, serious injury and substantial property damage.

As the lawyers who represented the most seriously injured survivor of the March 2007 Bluffton University bus accident on I-75 in Atlanta, we were greatly disturbed today to hear that two charter buses from Detroit reportedly have crashed at exactly the same location on I-75 in Atlanta.

WSB-TV reports that the two buses mistakenly took an “HOV-only” left exit ramp from I-75 southbound in Atlanta at Northside Drive, instead of staying on I-75’s regular HOV lane. The buses were carrying a high school band. The exit on the left side of the road has confused other drivers.

We and other attorneys for the Bluffton bus accident passengers settled the Bluffton claims with the State of Georgia recently for the maximum amount available under the law.

As Georgia injury lawyers, we often get calls about pharmacy mistakes and prescription errors being committed by medical providers, including drug stores. Many times, the mistakes are caught before any damage is done; however, sometimes serious injury or death occurs. Recently, we read about a case where a pharmacist at a Wal-Mart store allegedly mislabeled a pill bottle, resulting in a woman in her 70’s taking twice the recommended and prescribed dose of a blood pressure medication. As a result, she has suffered serious injury and almost died. Apparently the woman’s physician quickly discovered the pharmacy error but not before she suffered permanent heart damage and incurred substantial medical expenses.
In 2006, it was estimated that more than 1.5 million Americans were injured every year by drug errors in hospitals, nursing homes and doctor’s offices. Even as far back as 1999, it was estimated that at least 7,000 people die annually from drug errors. There are many reasons for the errors that occur. Most prescriptions are hand written and in some cases are difficult to read. In addition, many times there are bad interactions between different drugs a patient may be taking. Technology alone has the potential to eliminate some of these errors but industry and government has been slow to implement a comprehensive plan, including E-prescribing. For now, consumers must be aggressive in questioning doctors, nurses and pharmacists about their medications whether they are looking out for a friend or loved one in a nursing home or hospital or handling their own prescription medication at home.
If you or a loved one have been seriously injured as a result of drug store errors or prescription mis-labeling, contact an experienced Georgia injury lawyer at Finch McCranie, LLP.

Our attorneys have seen many cases in which patients are injured, sometimes severely, by healthcare professional in Georgia hospitals committing careless and preventable errors or by medical device defects.

The ECRI Institute recently released its annual list of top hospital medical device hazards for last year. The ECRI Institute, a nonprofit organization, dedicated to bringing the discipline of applied scientific research to discover which medical procedures, devices, drugs, and processes are best, in an effort to improve patient care. It is one of only a handful of organizations designated as both a Collaborating Center of the World Health Organization and an Evidence-Based Practice Center by the U.S. Agency for Healthcare Research and Quality.

Updated annually, the list is based on problems reported to and investigated by ECRI and includes detailed descriptions and information on how to avoid such hazards.

As a Georgia injury lawyer I read more and more about ATV accidents involving serious injuries and deaths, especially among children. Although there have been dozens of tragic deaths, I recall that in 2003 five Georgia children died after a car struck their ATV. The children, ranging in age from 11 to 14, had piled into the ATV and were going for a ride on a winding road during a birthday party when the collision occurred.

Two years ago, we represented the estate of a young girl who riding (as a passenger) on the back of an ATV being driven by another young girl at night. Our client was thrown from the ATV which resulted in her sustaining internal injuries which lead to her death.

Parents who purchase ATV’s and make them available to children may be exposing themselves to substantial personal liability when they fail to supervise the use of them. Many of the tragic cases I read about involve children riding other children on the back of the ATV. Other than with a few models manufactures most ATV’s clearly have labels which say that they are not to be used to ride passengers. Yet parents continue to allow their underage children to ride quests around on the back of the ATV. If it is not bad enough that they are allowed to ride passengers, many do so at night on public roads!

With the growing popularity of ATV’s or All-Terrain Vehicles, serious injury and death cases are on the increase in Georgia, especially among children. Believe it or not, the only legal requirements governing ATV operation in Georgia are that they have brakes and a muffler, and that the operators do not ride on private property without permission. Because of the ever increasing number of fatalities and serious injuries to ATV operators, especially children, the Georgia legislature decided it was necessary to study this problem to determine whether additional safety requirements should be added to the current law. To this end, the House ATV Safety Study Committee was created. The committee organized three public forums in three regions of the state for the purpose of hearing testimony from local law enforcement, medical professionals, ATV enthusiasts, industry representatives and concerned citizens about the issues surrounding safe ATV operation. In December 2005, the committee issued their report. One of the findings of the committee was that almost all ATV fatalities or serious injuries occur while violating one or more of the Consumer Product Safety Commission’s “Rules of ATV Operation”. Those rules are as follows:

1. Children under sixteen (16) should not ride adult-sized ATV (engines bigger than 90 cc’s).

2. Take a hands-on safety course.

In Georgia, worker’s compensation is essentially an insurance program regulated by the state and required of most employers. Worker’s compensation pays medical bills and lost wages for employees who have had work related accidents resulting in illness or injury.

Employees with work-related conditions or injuries are entitled, but not limited, to:

• Reimbursement of travel expenses, including mileage to and from medical appointments

This past month our firm handled two different cases which both illustrate how to get the best possible settlement for a client in a personal injury case. It is oftentimes said that many cases settle on the courthouse steps. This is true. The reason for this is because if the case is not settled, it will have to be presented to a jury at considerable expense and with great time and effort by all parties. The uncertainty of what a jury might do, either returning a greater award than the defense would like to pay or a lesser award that the plaintiff hopes to get is the basis for compromise. However, unless counsel for a plaintiff who has been injured through the negligence of another is ready for trial it is almost guaranteed that before will not receive the best possible settlement for his or her client.

The two cases we have handled here recently are like many others we have handled in the past. Settlement offers were not made until it was demonstrated to the insurance carrier that counsel was ready for trial and was ready in a professional manner to present the case in such a manner as to likely receive from a jury more than the defense was previously willing to pay. In both cases, no offer was made until the case reached the courthouse steps. If counsel had not prepared the case of trial diligently and professionally through taking videotaped depositions, preparing demonstrative exhibits for the jury, submitting Requests to Charge relative to the legal and factual issues involved, marking all exhibits, subpoenaing all witnesses, etc., the insurance company would likely have gambled and defended the case will full knowledge that plaintiff’s counsel was not prepared. However, once the defense attorney and the insurance company got to the courthouse steps and realized that their adversary (in this case our firm) was prepared to proceed professionally, they offered to settle the matters for the actual value of the cases. In short, they made an offer of what we all along had been willing to accept thus obviating the need for a jury trial.

The main point of this blog entry is to emphasize something that we have known for years but which the public may not fully appreciate. Cases do not settle for their maximum value unless they are properly prepared by experienced trial counsel. In neither of the cases we have referenced, would there ever have been an offer of settlement made at any time unless the case had been properly prepared. Once the insurance carrier realized that plaintiff’s counsel was prepared to proceed in front of the jury and could, in fact, proceed in a professional manner and would make an effective presentation, then and only then did they pay the fair settlement value of the case. Had our firm not been prepared to proceed as professional advocates on behalf of our clients we would not have achieved the best possible settlement for our clients. The two cases that we write about were both very tough cases on liability, which were hotly contested. The insurance carriers may have continued to make no offer if they believed that plaintiff’s counsel was not prepared to put up a strong case. Once plaintiff’s counsel showed up on the courthouse steps with subpoenas, witnesses, exhibits, videotaped presentations and all the other necessary ingredients for a successful trial, the insurance company folded and the clients received fair settlements.