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Georgia Court of Appeals Rejects Exclusion of Expert’s Testimony

In a significant case interpreting the 2005 tort reform laws, the Georgia Court of Appeals rejected the trial court’s limitation on the plaintiff’s expert testimony.  In Lavelle v. Laboratory Corp. of America, No. A13A1722, 2014 Ga. App. LEXIS 260 (3/28/14), a husband sued a physician, his medical practice, and a lab, seeking damages for negligence in failing to diagnose and treat his deceased wife’s cervical cancer in a timely fashion. The trial court granted the lab’s motion to exclude the husband’s expert’s testimony and granted partial summary judgment for the lab as to breach of the standard of care, and the husband appealed.  The Court of Appeals vacated the grant of the motion to exclude the expert testimony and the grant of partial summary judgment and remanded the case to the trial court for further proceedings.
The husband’s expert, a staff pathologist and professor of pathology oncology at Johns Hopkins with experience in the fields of cytotechnology and interpretive slides, had testified that the lab breached the applicable standard of care based on her focused reviews of the wife’s Papanicolaou (Pap) smear test slides, which showed abnormal cells. She also testified that two blinded reviews of the slides confirmed her opinion. The trial court excluded evidence of the two blinded reviews on the ground that they did not satisfy the reliability requirements of former O.C.G.A. § 24-9-67.1 and Daubert. The court held that the trial court erred in failing to consider the expert’s focused reviews of the slides apparently finding that the only acceptable methodology for reaching an opinion about whether a cytotechnologist breached the applicable standard of care was the blinded review methodology.  The Court of Appeals concluded that only methodology the trial court found acceptable was “promoted and promulgated” the cytotechs own professional association, and that was an abuse of discretion:

“In excluding Dr. Rosenthal’s opinion, the trial court abused her discretion . . . the trial court erred to the extent she held that the only acceptable methodology for reaching an opinion about whether a cytotech breached the applicable standard of care was the blinded review methodology promoted and promulgated by a professional association representing cytotechs. We are aware of no legal authority — legislative or judicial — that directs the specific methodology an expert must use to establish a breach of the standard of care in a professional malpractice case.”

The Court held that the trial court should have conducted a proper Daubert analysis of the methodology that the expert employed, the focused reviews.  This case could have broad application beyond medical malpractice cases.

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Patrick Cruise named Top 10 under 40

We are proud to announce that Patrick A. Cruise was selected as one of the top 10 lawyers in Tennessee under 40 by The National Academy of Personal Injury Attorneys.

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Georgia Court of Appeals Holds That Jury Should Have Been Permitted to Apportion Fault to Adjoining Property Owner in Negligent Security Case.

In Double View Ventures v. Polite, 2104 Ga. App. LEXIS 234 (3/26/14) the defendants, the owner of an apartment complex and a property management company, appealed a jury verdict in favor of plaintiff, a resident of the apartment complex. The resident filed a premises liability action against defendants following an attack by unknown assailants on the property of the apartment complex. The attack occurred while the resident was walking along a dirt path leading to a gas station located adjacent to the apartment complex. Bleach was thrown in the resident’s face and he was shot, which caused him severe permanent physical injuries.

On appeal, defendants contended that the trial court erred in refusing to allow the jury to consider the fault of the gas station and to apportion damages to it as well as among the defendants, pursuant to O.C.G.A. § 51-12-33. The Court of Appeals agreed and held that because there was some evidence supporting the defendants’ claims that the gas station may have been liable for the resident’s injuries and could be apportioned fault, the trial court erred in refusing to allow the jury to consider whether the gas station was partially at fault. The court noted that defendants presented evidence of numerous armed robberies and assaults on the gas station property, including inside the convenience store, as well as evidence that the area surrounding the gas station and the apartment complex was known as a high-crime area.  According to the Court, the fence near where the plaintiff was attacked was on property owned by the gas station, not by the apartment complex:

“Polite testified that he was attacked after he walked through the fence and took a few steps, and the evidence shows that the wooden fence is on Chevron’s property about 12 feet away from the Defendants’ property line. Given this evidence, along with the fact that it is unknown whether the attackers came from the Chevron station or the apartment complex, a jury question exists as to whether the Chevron station should have anticipated another criminal attack near the wooden fence and whether Chevron took reasonable precautions to protect Polite from the use of its premises.”

The court reversed the judgment, although the defendants never identified the specific entity in control of the Chevron station next door where the fence was located, and had in fact identified three other specific entities alleged to have been at fault in their pretrial notices of nonparty fault pursuant to O.C.G.A. § 51-12-33(d)(1).  The defendants pulled a classic bait and switch on the plaintiff.  They identified three specific entities in three separate notices, but presented no evidence that any one of them was actually responsible for the property where the fence was located.  According to plaintiff’s counsel, Darren Summerville, the trial court excluded the three specific entities named in the notices of nonparty fault from the verdict form, but the defendants argued that the jury should have been permitted to apportion fault to a vague, non-specific entity never named in the pretrial notices, such as “the convenience store” or “Chevron.”  The trial court refused, and got reversed by the Court of Appeals.

This is horrible decision, and the case is likely headed for the Georgia Supreme Court.  There was a strong dissent by Judge Anne Barnes, who correctly saw the issue as a failure of the defendants to introduce any evidence that would provide a rational basis for a jury to apportion fault against a nonparty.

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Tennessee Supreme Court confirms that a plaintiff can add a defendant under T.C.A. § 20-1-119 even when the plaintiff was aware of the added defendant’s fault before the statute of limitations expired.

In a unanimous opinion, Michael S. Becker et al v. Ford Motor Co., M2013-02546-SC-R23-CV, the Tennessee Supreme Court has held that T.C.A. § 20-1-119 allows a plaintiff to add a defendant whose involvement was raised by the original defendant, even when the plaintiff was aware of the new defendant before the statute of limitations expired.

The case involves Michael Becker, who was riding in a truck driven by his son when the truck hit a light pole. Mr. Becker was injured and filed a lawsuit in Hamilton County against Ford Motor Company, the manufacturer of the truck. Ford removed the case to federal court. Then, in its answer to Mr. Becker’s complaint, Ford named the son as the person who caused the accident.

Mr. Becker asked the federal court for permission to amend his complaint to add his son as an additional defendant. By this time, the legal deadline for filing the suit had passed. However, a state law allows plaintiffs to file suit against new defendants who are named by the original defendant, despite the expiration of the statute of limitations.

The federal court was unsure whether Mr. Becker could add his son as a defendant because Mr. Becker was previously aware of his son’s involvement in the accident. Accordingly, the federal court turned to the Tennessee Supreme Court, asking whether the state law only applied to defendants who were unknown to the plaintiff prior to the expiration of the statute of limitations.

Interpreting T.C.A. § 20-1-119, the Supreme Court held that the law’s plain language does not require that the new defendant be unknown to the plaintiff prior to the expiration of the statute of limitations. Mr. Becker was therefore permitted to file suit against the son.  While suing one’s son is unusual, this case is important as a plaintiff may choose, for many reasons, not to name another person who might be at fault as a defendant in his or her original lawsuit.

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Annual Report of the Judiciary Shows Decline in Jury Awards in Tennessee Damage/Tort Cases

The Annual Report of the Judiciary recently released data concerning the disposition of damage/tort cases in Tennessee for 2013.  Of the more than 10,000 damage/tort cases concluded in 2013, only 4% went to trial, with 2% tried by a jury.  The average monetary award decreased significantly last year, representing the second lowest average in over 20 years.  Of the 438 cases that were tried last year, 151 of those cases resulted in no recovery for the plaintiff.

These numbers illustrate the importance of having experienced, aggressive counsel in personal injury cases.  It is important to have the right attorney, one has the knowledge, expertise and resources to take the case to trial, if necessary, rather than having an attorney who is just is looking for a quick and easy settlement.  Plucking low hanging fruit is easy – that is what the attorneys who advertise on TV do. On the other hand, preparing a serious injury case for trial is a serious undertaking, and it requires the highest levels of commitment, creativity and competence on the part of the trial lawyer.  At The Hamilton Firm we strive to provide just such representation to our clients and their families.  We prepare for trial, not just for settlement.

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Hu Hamilton’s Comments in Opposition to the Proposed Changes to the Federal Rules of Civil Procedure

Hubert Hamilton recently posted (2/6/14) the following comment to Regulations.gov concerning the proposed changes to the Federal Rules of Civil Procedure, particularly as to the dramatic limitations on the scope of discovery as well as shortening the time to complete service of process:

“These changes seem designed to tilt the playing in favor of defendants in personal injury cases. The proposed changes appear to ignore the fact that the plaintiff bears the burden of proof, and often starts a case at a substantial disadvantage, with little or no access to critical documents and records.

I have been a trial lawyer for over 37 years. While most of my cases are filed in various state courts, sometimes they are removed to Federal Court, and from time to time I do file suits in Federal Court. Plaintiffs bear the burden of proof so we generally need to send more written discovery, to seek production of more documents from the defendants than the defendants seek from the plaintiff, and we have to take more depositions. Imposing an arbitrarily low limit on written discovery and on the number of depositions only helps defendants.

In a case we recently settled four men were injured. The defendants had virtually all of the documents and records relevant to the cause of the fire. There were dozens of persons having knowledge of the cause of the fire, failure to warn and so forth. To find out what those persons knew and whether that knowledge was important was going to require us to take at least 10 to 15 discovery depositions, which is a typical number in such cases. Fortunately, the case was settled at mediation before proceeding with the first round of depositions. To identify all those persons, we had served more than 15 interrogatories, which were essential in determining who to depose. Arbitrarily limiting interrogatories to 15, and depositions to 5, would have severely handicapped us in the prosecution of the case.

Keep in mind that depositions are expensive and time consuming, so plaintiffs’ personal injury lawyers typically self-limit both the number and length of depositions. We work on a contingency fee and advance all the expenses. There is no need to impose arbitrarily low limits. The proposed limit of 5 depositions also ignores the fact that in a personal injury case the plaintiff often has to take the depositions of treating physicians for evidence at trial. So at least one, and perhaps more, of those 5 depositions could be taken up by deposing treating physicians for proof.

On a trucking case we recently filed, we requested a waiver of service under Rule 4(d). But, we are not sure the addresses provided on the police report are accurate. The defendants have a minimum of 30 days to return the waivers (Rule 4(d)(1)(F)). If they don’t return the waivers, or if the addresses turn out to be inaccurate, we would have less than 30 days to get service perfected under the proposed change to Rule 4(m). That would discourage us from using Rule 4(d). 60 days is way too short a period for perfecting service. Dismissing the case if service was not perfected in 60 days would just force a do-over, and impose additional burdens and expense on the plaintiff.

The proposed changes to Rule 26(b)(1) represent a fundamental shift away from the current standards for discovery and that shift will overwhelmingly favor defendants over plaintiffs in personal injury cases. Plaintiffs start at a disadvantage in litigation with trucking companies and other corporate defendants. Often we don’t know what we don’t know. We have to engage in the discovery process to discover relevant evidence. A critical piece of evidence can exist in the defendants’ records, but the plaintiff won’t know it until all the relevant records and documents are produced.

How can a court determine “the importance of the discovery in resolving the issue” (Factor 4) without knowing what is in the records and documents? The plaintiff cannot effectively argue that unproduced records and documents are important without knowing what they are. And the proposed rule change could actually open up new areas for discovery. Are the plaintiff and the court just supposed to take the defendant’s word about its “resources” (Factor 3)? Shouldn’t the plaintiff be able to conduct further discovery to test the defendant’s assertion that its resources are limited and it can’t afford to comply with the proposed discovery?

Certainly there are very complex document intensive cases where proportionality needs to be given consideration, and appropriate limits placed on the scope of discovery, considering the factors listed in the proposed rule change. But it would be much better to retain the traditional relevancy standard for discovery, while providing defendants some mechanism upon good cause shown in appropriate cases, to invoke a review by the court based on a proportionality standard. The proposed changes to Rule 26 will invite abuse and encourage delay, and just give defendants more excuses to avoid producing important documents and records.

I strongly oppose the changes to the discovery rules, particularly to Rules 26, 30, 31 33 and 36, as well as shortening time to perfect service under Rule 4.”

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Tennessee Supreme Court Eases One Pre-suit Procedural Requirement for Bringing Medical Malpractice Claims.

Although the plaintiff ultimately lost the appeal, the Tennessee Supreme Court has granted some small relief from the onerous pre-suit procedural requirements of Tennessee’s 2011 healthcare liability law holding that only substantial compliance with the provision directing a plaintiff to furnish potential defendants with a medical authorization will be required, Stevens v. Hickman Community Health Care Services, Inc. No. M2012-00582-SC-S09-CV (11/25/13).  However the plaintiff, a widow in a wrongful death action, gave proper pre-suit notice, but failed to provide any authorization other than her own for release of the records, and therefore failed to even substantially comply.

 

“Tenn. Code Ann. § 29-26-121(a) establishes six separate requirements that serve related yet ultimately distinct goals. First, Tenn. Code Ann. § 29-26-122(a)(1) contains an express notice requirement that requires plaintiffs to give defendants written notice that a potential healthcare liability claim may be forthcoming. In contrast, Tenn. Code Ann. §§ 29-26-122(a)(2)(A)-(C) facilitate early resolution of healthcare liability claims by requiring plaintiffs to advise defendants who the plaintiff is, how to reach him or her, and how to contact his or her attorney. Lastly, the requirements of Tenn. Code Ann. § 29-26-121(a)(2)(D) and Tenn. Code Ann. § 29-26-121(a)(2)(E) serve an investigatory function, equipping defendants with the actual means to evaluate the substantive merits of a plaintiff’s claim by enabling early discovery of potential co-defendants and early access to a plaintiff’s medical records.”

 

“A plaintiff’s less-than-perfect compliance with Tenn. Code Ann. § 29-26-121(a)(2)(E), however, should not derail a healthcare liability claim. Non-substantive errors and omissions will not always prejudice defendants by preventing them from obtaining a plaintiff’s relevant medical records. Thus, we hold that a plaintiff must substantially comply, rather than strictly comply, with the requirements of Tenn. Code Ann. § 29-26-121(a)(2)(E).”

 

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ERISA Plan Ordered to Pay Penalties for Not Providing Documents to Plaintiff

In Hartman v. Dana Holding Corp., (N.D. IN, 10/21/13) 1:12-CV-445, the court assessed penalties of $4,470 against an ERISA plan for refusing to provide historical documents requested by the plaintiff. The applicable documents related to the deceased’s “survivor annuity” and were in effect 1979. The ERISA plan refused to comply with plaintiff’s request on the basis that part of the language of 29 U.S.C. 1024(b)(4) encompasses “latest updated summary, summary plan description, and the latest annual report.” But, the court rejected that argument stating,

But § 1024(b)(4) also requires that a plan administrator furnish “other instruments under which the plan was established or operated.”

And also stating,

Here, the 1979 Plan document and SPD are critical to Mrs. Hartman’s understanding of her rights and eligibility. These documents control not only whether the Plan required spousal consent to elect against a survivor annuity in 1979, but also what fiduciary duties the Plan owed to Mr. Hartman before he made his election.

ERISA plans are often difficult to deal with, so it is important to put them on the defensive by requesting plan documents when the plan asserts a subrogaton or reimbursement claim in a personal injury case by requesting all documents within the scope of 29 U.S.C. 1024(b)(4), which provides:

“The administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated. The administrator may make a reasonable charge to cover the cost of furnishing such complete copies.”

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In Trucking Cases, Can a Claim for Negligent Entrustment,Hiring or Retention Survive Summary Judgment if the Carrier Admits Responsibility for Its Driver’s Acts and Omissions?

In Kelley v. Blue Line Carriers, 300 Ga. App. 577, 580-581 (2009), the Georgia Court of Appeals held:

“”. . . when an employer admits the applicability of respondeat superior, it is entitled to summary judgment on claims for negligent entrustment, hiring, and retention. The rationale for this is that, since the employer would be liable for the employee’s negligence under respondeat superior, allowing claims for negligent entrustment, hiring, and retention would not entitle the plaintiff to a greater recovery, but would merely serve to prejudice the employer. An exception exists for this general rule, however, where a plaintiff has a valid claim for punitive damages against the employer based on its independent negligence in hiring and retaining the employee or entrusting a vehicle to such employee. In such case, it cannot be said that the negligence claims against the employer are merely duplicative of the respondeat superior claim. Underthese circumstances, the employer is not entitled to summary judgment on the negligent entrustment, hiring, and retention claims”.

In order to support a claim for punitive damages against an employer based on its independent negligence, however, the plaintiff must present “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.”"

So, in Georgia the answer appears to be No, unless punitive damages are alleged and can survive a motion for summary judgment.

 

 

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Removal of trucking case to Federal Court allowed more than one year after filing where Plaintiff was found to have acted in bad faith.

In an interesting trucking case, Cameron v. Teeberry Logistics, 920 F. Supp. 2d 1309 (2013 N.D. Ga.) the district court permitted removal of a case filed in Troup State Court over a year after it was filed alleging that the amount in controversy was less than $50,000.  Through discovery it was revealed that the plaintiff was claiming medical expenses of $62,432.45, and that her doctor was recommending back surgery.  Subsequently the medical total expense increased to $91,413.75.  The case was set for mediation, and prior to mediation plaintiff’s counsel demanded $575,000 to settle.  The demand for $575,000 was made one year and four days after the lawsuit was filed.  Mediation failed and the defendants removed the case to federal court, more than one year after it was commenced.  Plaintiff moved to remand, arguing that the removal came too late under 28 U.S.C. § 1446(b)(3).  Under that statute, the defendant must file notice of removal within 30 days of when he first ascertains that the action is removable.  To remove a case that was not initially removable but later becomes removal, the defendant has to file the notice no “more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.” 28 U.S.C. § 1446(c).

The District Court found that the plaintiff acted in bad faith and allowed the removal to stand:

“First, Cameron specifically pled that this case was not removable, knowing that her pleading is “entitled to deference” by a district court and has “important legal consequences” regarding federal removal jurisdiction. Burns, 31 F.3d at 1095. Second, she failed to amend her complaint, or otherwise notify Defendants that she considered the amount in controversy to be over $75,000, therefore allowing Defendants to continue to rely upon her representation that she was seeking no more than $50,000 in damages. Third, she sent the time-limited demand letter exactly one year and four days after commencement of this suit, thus ensuring that the one-year limitation of § 1446(c) would be a potential hurdle to Defendants’ removal. Taken together, these actions show bad faith in preventing Defendants from removing this case.  Cf. Bolton v. U.S. Nursing Corp., No. C 12-4466LB, 2012 U.S. Dist. LEXIS 152387, 2012 WL 5269738, at *5 (N.D. Cal. Oct. 23, 2012) (“[A] plaintiff’s refusal to stipulate to damages less than the amount in controversy is not evidence of bad faith and forum shopping.”). Thus, despite the one-year time limitation of § 1446(c), Defendants’ removal is proper.”

Nice try by plaintiff’s counsel, but it goest to show that you can’t have your cake and eat it too!

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