I have tried serious injury cases for over forty years. Years ago, I saw terribly low verdicts for catastrophic harm. More recently, we have seen eight-figure verdicts that would have shocked judges when I was a puppy lawyer. What changed?

Insurance defense folks in their seminars have used phrases like “nuclear verdicts.” That makes it sound reckless or irrational. But in my experience, most juries take their job seriously. They discuss seriously the facts of the case and legal principles on which the judge instructs them.

They also bring into the jury room their experience in the world in which we live.

Here are ten reasons verdicts have grown.

1. Big Numbers Don’t Shock People Like They Used To

Inflation has reshaped expectations. The U.S. Bureau of Labor Statistics tracks the steady rise in consumer prices through the Consumer Price Index. Citizens who wind up on juries see that in real time every time they buy groceries, gas, or homes.

They hear news reports of tycoons and even some politicians reaping billions on wild-sounding deals in technology, crytocurrency, etc. The “b word” (billion) seems little more fanciful than the “m word” (million) did 50 years ago.

When an economist projects $6 or $8 million over a lifetime of care, it no longer sounds imaginary. It sounds expensive but credible.

2. Medicine Keeps People Alive But At a Cost

When I was growing up, the ambulance arriving at a wreck scene was often operated by the funeral home.  The after-school and weekend job of one of my high school classmates was to drive the “meat wagon.” There was no first responder training and no paramedic on the scene to stabilize a catastrophically injured person. Too often, they just went straight to the funeral home. 

Many catastrophic injuries were fatal. Today, emergency medicine and advanced trauma care and rehabilitation save lives. But survival comes at a price. Often, it requires decades of structured support. Life care planners build detailed projections based on medical research and standards published through sources like the National Institutes of Health.

Jurors understand that survival without resources can mean suffering. They award money to fund stability.

3. Corporate Trust Has Eroded

Public trust in major institutions has declined over the years since Watergate. Surveys from the Pew Research Center  egularly document this trend.

When  internal documents and emails show ignored safety complaints or cost-cutting decisions, jurors can easily connect it to a broader narrative about profit over people. That matters in the jury room with rules-oriented jurors who distrust institutions.

In planning mock jury focus groups, we have often deliberately limited the group to the most politically and socially conservative people. They have surprised us by coming up with numbers much higher than a mock jury that represented a broader cross-section of the population.

4. Safety Rules Are Clear and Public

In trucking, aviation, medicine, and manufacturing, safety standards are spelled out in black and white. For example, commercial motor carriers operate under federal rules issued by the Federal Motor Carrier Safety Administration, which are simply explained in the Commercial Drivers License Manual. Commercial truck drivers and safety managers have no credible way to deny those are the industry standards they are supposed to follow.

Clear rules make liability feel concrete. When a company violates a clear safety rule, jurors see it not as just an accident but a deliberate and unsafe choice.

5. Social Media Changed the Background Noise

Years ago, corporate misconduct stayed local. Today, bad news travels fast. Anything that makes news anywhere seems local and immediate. Jurors have watched stories about defective products, data breaches, and regulatory failures. That background shapes how they interpret evidence. Jurors do not enter the courtroom empty-headed.

6. Trial Lawyers Tell the Story Differently Now

Modern trial strategy focuses on safety and preventability. Lawyers talk not about sympathy but about common sense safety  rules and how small decisions cascade into harm.

7. Anchoring Influences Damage Awards

When a lawyer suggests a specific figure for pain and suffering, that number becomes a reference point. Jurors may reduce it, but they rarely ignore it. Anchoring is not just  manipulation. It is human cognition at work. Psychologists have long studied how framing affects judgment. The concept of cognitive “anchoring” is well established, including in research summarized by the American Psychological Association.

The Georgia legislature in its latest “tort reform” tried to stop anchoring by enacting OCGA § 9-10-184, which provides, “ In the trial of a civil action for personal injuries, counsel shall be allowed to argue the worth or monetary value of pain and suffering to the jury; provided, however, that any such argument shall conform to the evidence or reasonable deductions from the evidence in the case.”

In legislative debate, politicians talked about stopping lawyers from analogizing to the price of paintings and race horses. However, an experienced trial lawyer has no need to talk about such crudely irrelevant distractions. A good advocate can easily suggest to jurors a way to calculate value based on the evidence and reasonable deductions. Nearly two decades ago, I gave jurors a methodology tied to the evidence and linked to reality in their rural county through which they calculated a verdict a million dollars more than I asked for.

8. Younger Jurors View Institutions Differently

Now on the senior end of the generation gap, I have seen several times how generational shifts are real. Many younger jurors grew up during the financial crisis, corporate scandals, and rising inequality. They carry student debt. They have seen layoffs. They question concentrated power more readily.

This does not mean they are anti-business. It means they may weigh accountability differently than their parents or grandparents.

9. Transparency About Corporate Wealth

Public companies disclose executive compensation and financial performance through filings with the U.S. Securities and Exchange Commission. We all see news reports about individuals making billions on crypto or a tech tycoon closing in on a trillion dollars net worth, it registers. Even billboards for the lottery touting jackpots over a billion dollars feeds the idea that it could happen to them. At some level, all that registers. When jurors see astronomical CEO bonuses alongside safety violations, they calibrate verdicts accordingly.

A verdict that once seemed massive may now feel proportional.

10. Preventable Harm Sparks Moral Reaction

The most significant driver of large verdicts is not sympathy but preventability.

An impaired or fatigued trucker. A manufacturer that ignored a recall warning. A hospital that brushed aside red flags. When jurors conclude, “This did not have to happen,” damages climb. Moral judgment is powerful. It always has been but now it carries a bigger price tag.

Large verdicts do not come from thin air. They usually arise from clear liability and serious, permanent harm. Venue still matters. Facts matter more. I have seen conservative rural counties return modest verdicts in serious cases and urban juries surprise plaintiffs with restraint. But I have also seen the opposite, surprisingly adequate verdicts in the most conservative venues.

Money is the only remedy our civil system offers. Jurors know that. They cannot undo a spinal cord injury or restore a dead child. They can only assign responsibility in dollars.

After decades in the courtroom, I recognize that modern verdicts reflect modern expectations about safety, accountability, and dignity. When people on a jury believe a company or individual chose risk over safety, they are not afraid to respond firmly.

Ken Shigley, senior counsel at Johnson & Ward, Atlanta’s oldest personal injury specialty law firm, is a former president of the State Bar of Georgia. He was the first Georgia lawyer to earn three board certifications from the National Board of Trial Advocacy: Truck Accident Law, Civil Trial Practice, and Civil Pretrial Practice. He was the lead author of eleven editions of Georgia Law of Torts: Trial Preparation and Practice, and received the Traditions of Excellence Award from the State Bar of Georgia General Practice and Trial Section. B.A., Furman University; J.D., Emory University Law School; Certificates in mediation and negotiation, Harvard Law School. He began his career as an Assistant District Attorney, then worked a decade in an insurance defense law firm before entering plaintiffs’ practice.

Transformation of  lives of clients and their families is part of my calling in law practice. While money is the quantitative measure of success, whenever possible I also try to guide outcomes in a way that will redirect the trajectory of life for clients and their families. A recent case is a good example.

Recently we handled a case for a 30-year-old single mom from a less than privileged background. She had struggled to put herself through a Certified Nursing Assistant (CNA) program. When injured, she was working as a CNA and living paycheck-to-paycheck with her daughter in a modest apartment. Then,  in a catastrophic crash she lost a leg at the knee. After three years of litigation, our team recovered roughly $6.5 million for her.

Many lawyers would just cut a check for the net proceeds after deduction of fees, expenses and liens, and say, “good luck.”  Too often we hear stories of people who come into a large amount of money and in a couple of years are broke. That is not our approach.

When people come into an unaccustomed amount of money, friends, relatives and new lovers often appear on the scene with “great ideas” for use of the money. Without careful management, the funds that were intended to take care of a victim for life soon evaporate.

This young woman’s settlement is illustrative of what we try to do when possible. The bulk of her money was placed in a trust to protect her from  creditors and predators.

A portion of the funds were used to buy this “forever home” which will be held in her trust. It is a lovely house in a safe neighborhood, built in 1937 but completely updated. Renovations include an open floor plan, handicapped accessibility, and new plumbing, electric, HVAC, roof, siding, windows and floors. It is a good place to raise her child.

She will also use a portion of her recovery to return to school with a goal of becoming a Registered Nurse (R.N.). I expect that with a great heart and her life experience with catastrophic injury, she will be a blessing in the lives of many of her future patients.

Her increased financial capacity will also, I expect, improve the life prospects of her daughter.

I hope that she finds love again. If so, the trust will be a buffer against the temptation to let a future love to mismanage and erode her funds.

We have had many cases over the years in which lives were transformed for the better. Examples include:

• A  bright 13-year-old girl had a case for the death of her father. She was about to enter eighth grade at an inner city school. With her mother, she chose a structured settlement that would fund her education first at an elite prep school, and then through college and graduate school. After completing her education she would also get a lump sum sufficient for a down payment on her own home. That set a new trajectory at a critical point in her life.
• When the oldest child in a family with several children was killed in a tractor trailer crash, we recovered for the parents the funds to pay for college of the younger children.
• When another single mom who worked all day at a keyboard had an injury that made that impracticable, we got enough money to fund the business she had always dreamed of starting.

We don’t always get this satisfying an outcome. Some financially unsophisticated clients resist efforts to help in ways other than purely monetary. Some of them run through their money and are broke again within a few years. If that happens, at least we warned them in writing about that potential and tried to counsel them.

There are other clients who clearly have enough experience and sophistication that I don’t worry about their ability to handle money.  Examples include:

• A small business owner who has demonstrated ability to manage his business and finances. He used his injury settlement to expand his going business.
• A couple who were already working with a financial adviser. They used their confidential settlement to advance their retirement by a couple of years and become more active in charitable work in their community.
• An 18-year-old who took the initiative before settlement of his case to set up a meeting with a wealth management officer at a financial institution. He authorized the broker to send me copies of monthly statements until he finished college, then began his  own career in the financial services industry.

This is not just a job. It is a calling to transform lives.

Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident Law. He is a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2019, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). 

A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower,  father of two adult children, and an elder in his church.

Effective January 2, 2020, he moved his existing law practice to the Atlanta law firm of Johnson & Ward. He may be contacted at 404-253-7862. 

You are a great lawyer in your area of practice. You are also smart enough to know when a big case may require prompt action outside your comfort zone.

Just as a trial lawyer may not feel comfortable handling a complex real estate, divorce or estate planning matter, a great lawyer in those fields may not want to risk a client’s rights by trying to figure out how to handle a catastrophic truck crash case.

When you get a call from a friend or client that a family member has been killed or seriously injured in a crash with a tractor trailer in Georgia, one common reaction is be to defer the trouble and expense of serious investigation, assuming you can settle quickly for the known policy limits.  You may get the “low hanging fruit” that way but miss millions of dollars in potential recovery for your client that is not immediately obvious on the surface. If that happens, you may miss a reporting deadline with your E&O carrier before you recognize the mistake.

It is common for trucking insurance companies to tender a first layer of insurance coverage and make soothing conversation while concealing additional layers of coverage. We had a case in which an excess insurance company denied in writing that it insured the trucking company. But we kept digging. A year later that insurer paid out $3 million for the trucking company it had denied insuring.

While victims and their family attorneys wait for the insurance company to “do the right thing,” trucking companies and their insurers may busy burying incriminating evidence. Standard operating procedure for trucking companies and insurers is to send a rapid response team to the crash scene before the vehicles are removed, often before an ambulance can remove a victim. A rapid response team generally includes a defense lawyer, investigator and accident reconstruction expert. They work under the cloak of trial preparation under the supervision of legal counsel in an effort to keep at least part of their work secret.

When a victim’s traumatized family is in a hospital vigil or planning a funeral, the trucking company’s insurer has that rapid response team combing over the evidence. They may bring in investigators who are retired state troopers to coax less experienced law enforcement officers to the the defense point of view. At the same time, they may be quietly deleting electronic data that would be damning.

By the time the victim’s family decides to aggressively push the case and gets a lawyer experienced in litigation of serious truck accident cases, the most important evidence may have disappeared. We have had cases where critical evidence was “lost” at the scene while State Troopers were focused on directing traffic and removing debris from the highway and a rapid response team combed over the truck.

A recent case in our office illustrates the importance of striking hard and fast to preserve evidence. While a truck crash victim was in ICU at the local hospital lingering in a coma before death, a relative reached out to a lawyer in another practice area he happened to know. That lawyer, whom I have known all his life, then immediately called me.

While the undamaged truck  was still in police impound, we immediately filed a petition in the Superior Court of the county where the crash occurred for a detailed temporary restraining order to lock down evidence. With the help of our expert, we recovered telematic data that proved the truck was going 10 MPH over the speed limit, still accelerating until it crashed into a line of cars stopped at a red light.

We also recovered from the truck dashcam and driver view video. It dramatically showed in split screen the truck speeding into the line of stopped cars without slowing or braking while the truck driver idly gazed around with bleary eyes. That video concluded with our victim’s car exploding into the truck’s windshield. It was a powerful exhibit.

If we had not acted quickly to obtain a court order in order to preserve evidence, the truck would have been put back in service  and much of that critically important data may have been “lost.” We would never have seen the video or the telematic data.

There was a discovery fight about access to the truck driver’s cell phone for a forensic download. Coincidentally, the solicitor general in the county where the crash occurred issued a search warrant to obtain the cell phone for forensic evaluation. Cell phone data showed that the truck driver had been texting on his phone rather than sleeping all but three hours the night before.

Further investigation revealed that a medical examiner had signed a document stating the driver was disqualified due to non-compliant obstructive sleep apnea, though the trucking company denied that it had received that report.

We also found that the company was on notice of a prior incident in which the truck driver rear-ended another car stopped at a stop light. Despite knowing of the incident, the company failed to obtain a copy of that accident report which would have revealed the driver lied about what happened.

I really wanted to try that case before a jury. Our two focus groups valued the case in “eight figures.” But the clients chose to accept a confidential settlement in the “high seven figures” rather than go through the emotional ordeal of trial. I cannot dispute the family’s preference for quiet closure.

While a good lawyer in an unrelated area of practice, the family’s attorney readily recognized that he did not have expertise in trucking litigation. By associating a trucking lawyer, he made over one million dollars for helping with client relations and serving as “second chair” without investing his own funds in the substantial case expenses.  Choosing to annuitize that fee seven figure fee, he now has a financial plan substantially improving the quality of the rest of his life.

Georgia Rule of Professional Conduct 1.5(e) recognizes that clients are best served when lawyers can bring in other attorneys with needed areas of expertise, and still share in the responsibility and the fees. It provides:

(e) A division of a fee between lawyers who are not in the same firm may be made only if:

(1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation;

(2) the client is advised of the share that each lawyer is to receive and does not object to the participation of all the lawyers involved; and

(3) the total fee is reasonable.

Fully complying with this rule and documenting the client’s consent to an appropriate allocation of fees and responsibility between counsel, we generously share fees with c0-counsel who bring cases to us. Thus,  attorneys in Georgia and across North America who are preeminent in bankruptcy, real estate, securities, probate or corporate law readily acknowledge when they need to refer a client to a lawyer who specializes in tort law. Similarly, we refer matters outside the scope of practice to experts in those specialties.

We work closely with referring lawyers, who may have as much or as little involvement as they wish. A lawyer who practices in another state or another area of law may net a greater fee than if they had done all the work themselves. But the main thing is that a referring lawyer can know that the client is in good hands.

When associated by attorneys in neighboring states, we have been admitted pro hac vice for individual cases.

If a client has a claim for a catastrophic truck crash anywhere in the Southeast, call us at (404)253-7863.

Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident Law. He is a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2019, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). 

A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower,  father of two adult children, and an elder in his church.

In 2015, the Supreme Court of Georgia recognized that Georgia law of negligent entrustment follows the Restatement (Second) of Torts § 390, without reservation or exception. Restatement § 390 provides:

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

Zaldivar v. Prickett, 297 Ga. 589, 602-03, 774 S.E.2d 688, 697 (2015), et cit. (Majority opinion by Justice Blackwell, dissent by Justice Benham on apportionment issue only).

A 1997 Court of Appeals decision said that the Georgia rule on negligent entrustment is narrower than the Restatement rule, requiring actual rather constructive knowledge. Carolina Cable Contractors, Inc. v. Hattaway, 226 Ga.App. 413, 416 (4), 487 S.E.2d 53 (1997)(Smith, J.) (physical precedent only). However, because that decision is “physical precedent only” it is not binding on lower courts.

Moreover, circumstantial evidence can be used to prove actual knowledge. Carolina Cable, 226 Ga. App. at 416-17.  The direct evidence of degrees of actual knowledge is circumstantial evidence from which jurors may reasonably infer a greater degree of actual knowledge than that to which a trucking company admits.

The Federal Motor Carrier Safety Regulations, 49 CFR § 391.23, requires interstate motor carriers to investigate the driving background of driver applicants. “The investigation may consist of personal interviews, telephone interviews, letters, or any other method for investigating that the carrier deems appropriate.” 49 CFR § 391.23 (c)(2). The minimum required includes requests for information to prior employers and checking state motor vehicle records.

However, that is only the “minimum” required. 49 CFR § 391.23(d). “By the regulations’ own terms, employers may investigate driver employment histories and driving records beyond the minimum standards established by the regulations themselves. The trucking industry’s needs and concerns involving drivers extend to a range of past accidents, incidents, mishaps, occurrences and events well beyond those encompassed by § 390.5.” Cassara v. DAC Services, Inc., 276 F.3d 1210, 1225 (10^th Cir., 2002) It is a floor not a ceiling, for checking driver backgrounds. If a motor carrier has actual knowledge of a collision within the previous three years that is not revealed in those records, a duty arises to check the accuracy of the driver applicant’s self-serving description of the incident.

A Plaintiff may get to a jury “by showing that an employer had actual knowledge of numerous and serious violations on its driver’s record, or, at the very least, when the employer has flouted a legal duty to check a record showing such violations.” Mastec North America, Inc. v. Wilson, 325 Ga.App. 863, 755 S.E.2d 257, 259-60 (2014); Western Indus. v. Poole, 280 Ga.App. 378, 380(1), 634 S.E.2d 118 (2006); Smith v. Tommy Roberts Trucking Co., 209 Ga.App. 826, 829–830(3), 435 S.E.2d 54 (1993).

Circumstantial evidence of knowledge of such factors of incompetency is sufficient to create a question of fact for jury determination on the issue of negligent entrustment. It is sufficient to show knowledge on the part of the entruster by presenting facts from which it could reasonably be inferred that the entruster knew of the driver’s poor driving habits or skills. CGL Facility Management, LLC v. Wiley, 328 Ga. App. 727, 732-33 (2), 760 S.E.2d 251 (2014) (allowing the claim to go to the jury because there was a question of fact where the employer could have had knowledge of the driver’s incompetence based on prior incidents); Dougherty Equipment Co., 327 Ga.App. 434, 439(2), 757 S.E.2d 885 (2014); Ed Sherwood Chevrolet v. McAuley, 164 Ga.App. 798, 802(1), 298 S.E.2d 565 (1982). Cf., Gill Plumbing Co., Inc. v. Macon, 187 Ga.App. 481, 483 (2) 370 S.E.2d 657, 659 (1988)(sufficient to show facts from which knowledge of driver’s poor driving habits or skills could be inferred).

Even if any one of these factors standing alone might be enough to create a jury question on negligent entrustment, the overlapping combination of several pertinent factors may be sufficient to authorize jurors to rationally conclude that a trucking company was aware that it was unsafe to entrust an employee to operate a large truck, at least without further training or in some instances evaluation of sleep disorders.

Such claims are extremely fact-sensitive and must be evaluated in light of the specific combination of facts in each case.

If you have questions about a serious injury or wrongful death case in Georgia, contact us at 404-253-7862.

Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident Law. He is a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2019, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). 

A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower,  father of two adult children, and an elder in his church.

There have been countless advances in technology that benefit amputees in recent years. Some of these advances can be seen in the work of Dr. Hugh Herr who at 17 lost both legs as a result of hypothermia in a mountain climbing accident. Dr. Herr is working to improve prosthetic limbs and has won multiple patents for prosthetic innovations after finding problems in his own prosthetics. My job as an Atlanta trial attorney handling serious injury cases in Georgia is to always help clients with amputation injuries secure the funds to take advantage of these new advances. Luckily for many clients, there are new advances that could make having a great prosthetic as easy as click and print.

As technology continues to advance, so do the ways in which everyday people are using this technology to benefit their life. One of the newest advances in technology has been the 3D printer. 3D printing is the process of making a three-dimensional solid object of virtually any shape from a digital model. 3D printing is achieved using an additive process where successive layers of material are laid down in different shapes. This piece of technology has allowed for people like Ivan Owen to create objects that can change people’s lives in very substantial ways.

Paul McCarthy and his wife were ecstatic 12 years ago when they found out they were having their first boy. However, when their son Leon was born they found that he had a hand without fingers. The doctor’s said the fingers didn’t develop due to restricted blood flow to the hand.

“It was hard for me, it was hard for my wife,” said McCarthy.

It would be a scary time for any parent, however McCarthy’s fears wouldn’t stop him from looking for any solution for his son. The McCarthy family was well aware that Leon would need a prosthetic so that he could try and live just as any other boy. However, they also knew the prosthetic Leon would need could cost up to $30,000. It was when Paul McCarthy was looking for help that he stumbled upon a video made by Ivan Owen that depicted a prosthetic that could be printed out on a new 3D printer. The blueprints were even there for the McCarthy’s to do it themselves.

While the printer itself runs about $2,000 the cost for materials is very cheap versus the alternative. And the best part, it works. The new prosthetic allows Leon McCarthy to pick up objects, write, and draw with the fingers his father created.

“Making your kid happy is priceless” said McCarthy.

As for Leon, he is quite happy with his new addition, especially when his hand looks visually appealing enough to be part of a sci-fi novel. And the fact that his father built him this incredible tool means even more to Leon.

“It has been really nice being able to do things like pick water bottles up and play with my friends,” said Leon McCarthy.

Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice.  His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of castastrophic personal injury and wrongful death.

There are many reasons for that, some good and some not. Even if you have a regular physician treating a chronic illness, getting an appointment can take a long time. If you call after hours or on weekends you may be told to go to the ER for anything that requires immediate attention.

The Georgia legislature in 2005 passed a poorly drafted omnibus bill designed to make it more difficult for injured people to recover their damages from parties at fault.  The Georgia Supreme Court eventually held the arbitrary cap on non-economic damages in medical malpracticecases was unconstitutional. Other provisions were either limited in their application or turned out to have unintended results that occasionally help well-represented injury victims.

But one section has virtually closed the courthouse to victims of serious personal injury  or wrongful death due to malpractice in hospital emergency departments. 

O.C.G.A. § 51-1-29.5  provides, in part:

(c) In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.

(d) In an action involving a health liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, the court shall instruct the jury to consider, together with all other relevant matters:

(1) Whether the person providing care did or did not have the patient’s medical history or was able or unable to obtain a full medical history, including the knowledge of preexisting medical conditions, allergies, and medications;

(2) The presence or lack of a preexisting physician-patient relationship or health care provider-patient relationship;

(3) The circumstances constituting the emergency; and  

(4) The circumstances surrounding the delivery of the emergency medical care.

Focusing on paragraph (c), most lawyers concluded that the standard of “clear and convincing evidence” of “gross negligence” is virtually a guarantee of immunity from liability for a health care provider or hospital in an emergency medicine context. In talking with potential clients who call about potential ER malpractice claims, I have often told them that this law virtually means that unless a doctor was obviously drunk and expressed a willful disregard for causing harm to the patient, the case was virtually unwinnable. It has become virtually impossible to find an experienced lawyer to take an emergency room malpractice case.

But paragraph (d) is also part of the statute. Now, finally, there is an appellate decision that focuses on the jury question of whether or not a particular treatment fit the definition of emergency care.

This month, in Howland v. Wadsworth, — S.E.2d —-, 2013 WL 5543486 (Ga.App., decided October 9, 2013),   the Court of Appeals  affirmed a $5,000,000 Gwinnett County judgment for a double amputee, holding that  whether the patient at some point had stabilized and was capable of receiving medical treatment as a nonemergency patient within the meaning of OCGA § 51–1–29.5(a)(5) was a question for the jury.  The jury could find, as it did, that the facts did not fit the definition of “emergency” so it could find for the plaintiff under the standard of preponderance of evidence of ordinary negligence rather than “clear and convincing evidence of gross negligence.”

In this case, the patient began experiencing pain in her feet and after several days noticed that her feet were cold and that she was unable to warm them, her pain worsened to the point she could no longer walk. She then called 911. An ambulance took her to the local hospital’s emergency room.  In the ambulance en route to the hospital, a paramedic assessed her condition, noted that she had normal vital signs and normal blood circulation in her legs, and obtained a brief medical history of diabetes and hypertension.  Upon her arrival at the ER, she was classified as a “level 4” patient, meaning that her condition was “non-urgent.” She was assigned a bed in “C-pod,” which is an area designated for the examination and treatment of patients who are expected to be “in and out in 90 minutes or less.” The triage nurse  noted complaints of significant pain in both feet that had increased over the past couple of days and that it was hard for her to walk. The nurse noted that her feet were cold to the touch, but that she had “positive” or “palpable” pulses in her feet at the time. 

Eventually, she was seen by a physician assistant who worked in the ER. He noted that Wadsworth was  “moderate” pain, ordered morphine, and did a differential diagnosis and ordered a venous ultrasound exam which ruled out deep vein thrombosis.  He did not order tests to check for partial arterial blockage. He diagnosed cellulitis, which can be treated with antibiotics on a nonemergency basis. Though the patient wanted to be admitted to the hospital for observation, she was given a prescription for antibiotics and pain medication and discharged after three hours in the ER.

About 12 hours later, an ambulance responded to an emergency call to her home in the middle of the night. Upon arrival, the paramedics found her unresponsive, with no blood pressure or pulse. After a paramedic performed CPR, vital signs improved, and she was again transported by ambulance to the same ER. Upon her arrival, Wadsworth had low blood pressure, a diminished pulse, and slow respiration, which are indicators of a near cardiac arrest. Later that afternoon, doctors performed an arteriogram  and determined that the arteries behind both of her knees were completely blocked.

Doctors later determined that the patient’s lower legs had suffered damage to the extent that they were no longer salvageable, and Wadsworth had both legs amputated below the knees.

Testimony of the physician’s assistant and physician that the patient was stabilized and properly could be discharged was evidence upon which the jury could determine that she was not in an “emergency” situation at that point, so that the ordinary negligence rather than “gross negligence” standard should apply.

All medical malpractice cases are still extraordinarily challenging. Emergency room malpractice cases are still even more challenging than others. But with this decision from the Court of Appeals, it may be a little easier to get lawyers to consider taking cases arising out of emergency department negligence in diagnosis and discharge.

Ken Shigley is an Atlanta trial attorney who is a past president of the State Bar of Georgia and a board certified civil trial and pre-trial advocate of the National Board of Legal Specialty Certification .  His practice focuses on serious personal injury, wrongful death and commercial trucking litigation.

Much of the funding for research and development has come from the Department of Defense in reaction to the large number of amputee survivors of the wars in Iraq and Afghanistan. However, as so often occurs, the technology spurred by wartime developments has broad civilian application.

One of the leaders in the field is Dr. Hugh Herr who at 17 lost both legs due to hypothermia in a mountain climbing incident. Driven forward by his rage at the prosthetic legs available at the time, he earned degrees from Harvard and MIT, won multiple patents for prosthetic innovations and became director of the Biomechatronics Research Group at the Massachusetts Institute of Technology Media Lab.

Among Dr. Herr’s projects now being pursued to improve prosthetic limbs  are:

1. Robotic ankle-foot prosthesis, one of Time magazine’s Top 10 Inventions of 2004, which mimics the action of a biological ankle and, for the first time, provides transfemoral amputees with a natural gait.
2. Artificial gastrocnemius muscle, a large muscle in the calf  which enables natural walking motion through plantar flexing of the foot at the ankle joint and flexing the leg at the knee joint.
3. Biomimetic active prosthesis for above knee amputees. The goal is to design a new generation of robotic knee prostheses capable of generating significant energy during level-ground walking, that can be stored in a battery and used to power a robotic ankle prosthesis and such activities as stair climbing.
4. Control of muscle actuated systems by electrical stimulation. The MIT team is investigating a variety of adaptive and robust control techniques to enable trajectory tracking, as well as mechanical power-output control under sustained oscillatory conditions. Got that?
5. Integrate “smart” technology into lower-limb prostheses. To address the effect of powered ankles on shock absorption and pressure where the prosthesis is attached to the leg, the MIT team seeks to integrate sensors and actuators into prosthetic legs so as to alleviate the increased risk of further amputations, excessive stress on both limbs, and discomfort at the stump/socket interface.
6. FitSocket. The FitSocket project aims to identify the correlation between leg tissue properties and the design of a comfortable socket. New 3D printers — of the sort my nephew in New York sells to industries around the country — will be useful for this.
7. Human walking model to combine joint mechanics, electromyography and mechanical economy. The hypothesis is that series-elastic clutch units spanning the knee joint can capture the dominant mechanical behaviors of the knee in level-ground walking.
8. Load bearing exoskeleton to augment running. A wearable exoskeleton designed place a stiff fiberglass spring in parallel with the complete leg during stance phase, then removes it so that the knee may bend during leg swing. The result is a bouncing gait with reduced reliance on the musculature of the knee and ankle.
9. Neural control of advanced prosthetics.  Researchers are working to develop means to allow amputees to control their powered prostheses by activating the peripheral nerves remaining in their residual limbs. This would be more natural than currently used myoelectric controls.
10. Sensor-fusions for EMG controlled prosthestics.  Researchers are working on improving the types of terrain a robotic ankle can successfully navigate by using command signals taken from the intact and residual limbs of an amputee combined with signals from sensors attached to the robotic ankle.
11. Variable impedance prosthetic (VIPr) socket design. To relieve the universal pressure discomfort in prosthetic sockets, researchers are developing methods for 3D scanning of anatomical points of residual limbs in order to perfectly match them with prosthetic sockets.
12. Volitional control of powered ankle-foot prosthesis.  This projects seeks to give transtibial amputees volitional control over their prostheses by combining electromyographic (EMG) activity from the amputees’ residual limb muscles with intrinsic controllers on the prosthesis.

As a lawyer representing amputation injury survivors, when there is insurance coverage or assets sufficient to pay a judgment, I need to consider these advances in working with a life care planner to project economic aspects of damages.

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Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice.  His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of castastrophic personal injury and wrongful death.

But in my personal injury trial law practice in Atlanta, I am continually inspired and encouraged by people with amputation injuries who not merely survive but overcome and thrive.

• The Chief Justice of the Georgia Supreme Court, Carol Hunstein, lost a leg to cancer by the time she was 23. Already a parent, she went on to college and law school in Florida, moved to Georgia to practice law, was elected a Superior Court judge in a highly competitive environment, and rose to Chief Justice of the Supreme Court.  She might prefer the elevator instead of the stairs, but otherwise yields little to the fact that she has a prosthetic leg.
• Brad Johnson is a bright young lawyer in Florida who lost both legs in an auto accident on the way back from his Law School Admissions Test. When I met him a few months ago in a Trial Lawyers College program in Key Largo, he had just competed in London on the US Paralympic Sailing Team. He is one of the most cheerful and outgoing people I know. Except when he is wearing shorts with his two high-tech, high-performance prosthetic legs, you could completely miss the fact that he is an amputee.
• We have all seen the young war veterans who lost legs in Iraq or Afghanistan, and who strive to compete in marathons and other sports despite — or perhaps in part because of — their injuries.
• Scott Rigsby is a double amputee marathoner and IronMan triathlete in Atlanta. Sometimes when driving to work I see him running with a bevy of “boot camp” class members trailing behind.
• I was in an airport bar in Miami recently, waiting on a delayed flight home to Atlanta, when a woman seated herself two stools down from me. Both arms were amputated just below the elbows. She proceeded to use her stubs about as skillfully as most people use their hands in manipulating the menu, food, utensils, glass, etc. No complaints, no excuses, just a can-do attitude.
• A while back I represented a little boy who had lost a hand due to a medical error in the neonatal ICU. Of course he had never known life without a missing hand. When we made the “day in the life” video for his case he was six and in the first grade. For the video he demonstrated how he buttoned his jeans, did his chores, ate and rode his bike with one hand. The biggest surprise was the his right hand preference was so deeply ingrained that he ate with a spoon grasped in his right elbow rather than holding it in his good left hand.

In my Atlanta-based personal injury trial practice, I always try to focus as much on what people can do to overcome their injuries as on what they can no longer do. The glass that appears half empty is also half full. I believe that approach is best for the person who has to live with the effect of an injury, but by projecting hope for the future it is also best for motivating a jury to help.

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Ken Shigley is immediate past president of the State Bar of Georgia, and double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification.

The short answer is that in handling personal injury and wrongful death cases for individuals and families, I do not require any money up front from clients whose cases I accept. I evaluate the merits of a case much like I would try to evaluate a stock before investing in it. If I take the case, I charge a percentage of what I recover for the client and advance the expenses. Both fees and expenses come out of the recovery from the other side. If we lose, I eat the time and expense invested in the case.

Fees in most personal injury cases are generally one-third of the amount of the recovery, with the percentage escalating if the case is tried, if there is an appeal, etc.  While we prepare every case on the assumption that it will go to trial, about 95% of cases that are well screened and well prepared do settle before trial.  We can’t work for free, and this is how I provide my family and save for retirement, but when necessary to make the numbers work out for a client, I do sometimes make courtesy discounts.

Occasionally, particularly in trucking cases, there is an opportunity to force the other side to pay the attorney fees and expenses. If we can do it, that goes directly to the client’s bottom line because I don’t charge the same fee twice.

Expenses in personal injury and wrongful death lawsuits include filing fees, process servers, expert witnesses, court reporters, medical records, depositions with both stenographic and video recording, fees to treating physicians for their depositions, exhibit preparation, travel expense, etc. Knowing that if we lose, I will eat the expense, I am somewhat conservative about spending money. Case expenses on the types of cases injury and death cases I accept generally run from $2,000 to $5,000 for a routine car wreck case with limited insurance coverage up to ten times that amount, or more, for a complex commercial trucking or premises liability case.

Products liability and medical malpractice cases can easily run up expenses well into six figures. Once I was co-counsel in an automotive products liability case in which an associated firm spent $500,000 on expenses. That’s pretty bold. Frankly, I figured that if frugal Ken had been running that show my expenses might have been closer to $100,000.

If a law firm advances case expenses out of pocket, that is treated as a loan and cannot be deducted from income for tax purposes until such time as the case is lost and the “loan” is written off. That can severely constrain the capacity of a firm to aggressively prosecute cases as they come along.

The U.S. Tax Court recently reasserted that case expenses advanced by a contingent-fee law firm on behalf of its clients are “in the nature of loans” rather than tax-deductible expenses for the law firm. (Humphrey, Farrington & McClain, P.C., v. Commissioner of Internal Revenue).  Like many rulings before it, this case upholds Private Letter Ruling 8246013 (6/30/1982, IRC Sec(s). 162) which states that a law firm “…may not deduct as ordinary and necessary business expenses the various litigation costs advanced for a client on a contingent-fee case…”.

Therefore, in order to free up capital and increase capacity to do what needs to be done to develop serious personal injury and wrongful death cases, I maintain a litigation line of credit with Advocate Capital, which funds most of our case expenses. When cases are settled, the expenses are reimbursed to us out of the recovery. I then pay off the portion of the line of credit allocated to that case, and pass along as a case expense the nominal amount of interest incurred on those expenses. The transaction is a straight pass-through with full transparency and no markups.  Because we and Advocate track every expense by case number, that is a very simple bookkeeping exercise.

The impact on my capacity to aggressively develop major cases is huge. If I need to hire a top national expert witness for a wrongful death or catastrophic injury case, I can do it without worrying about the effect on operating capital in office operation or the need to pay for my daughter’s upcoming wedding. If I need to fly around the country to take depositions in a major case, I can just do it without hesitation. Of course, being inherently frugal, I still buy the cheapest web-saver plane tickets rather than flying first class, and stay at an economy motel when traveling for clients rather than a 5 star hotel.

For example, recently I was hired on an interstate tractor trailer wrongful death case at a time when cash flow was slow. Because I had ready access to adequate capital for case expenses without dipping into savings, there was no delay in hiring the best investigators and experts. The trucking company and its insurer had a “rapid response team” at the accident scene almost before the ambulance arrived. But I was able to have my own “rapid response team” on the way almost immediately after the first call from the client’s family attorney.

This makes a world of difference between weakness and strength, between failure and success.

Of course, I am frugal and don’t spend money on cases needlessly. Expenses are scaled to the potential recovery in the case. Having come up the hard way having to do things cheaply, I still resist spending a dime I don’t have to spend. I still know how to hold case expenses under $1,000 when that is what the case needs, using stock drawings out of medical books rather than custom made medical illustrations, snapshots blown up at the drug store and glued to cardboard rather than professional photos professionally mounted, etc. It’s all a matter of what fits the case.

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Ken Shigley is immediate past president of the State Bar of Georgia, chair of the board of the Institute for Continuing Legal Education in Georgia, lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-13), and double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board for Legal Specialty Certification. His Atlanta-based trial practice is focused on catastrophic injury and wrongful death cases arising from commercial truck and bus accidents and unsafe conditions on commercial premises.

Cruise ships are like floating cities with thousands of passengers on board. Usually a lot more fun than the typical workaday city, but probably no less likely to involve accidents and injuries.

Cruise ship lines cannot guarantee that no one will get hurt aboard, but they do have a responsibility to prevent dangerous conditions on board that can cause serious injury to its passengers. When a cruise ship accident occurs because of poor maintenance, incompetent or  improperly trained employees, inadequate safety equipment or emergency precautions, the cruise  line can be held accountable.

Cruise ship tickets typically have a provision that requires you to file your claim within one year in a specific state and in a particular county within that state. The ticket may also dictate that the case be filed in Federal Court.

People who are injured on cruise ships need a team of a hometown lawyer and a lawyer in the location where suit must be filed. The lawyer back home may handle the damages aspects of the case, such as video depositions of treating physicians and other damages witnesses.  The other half of the team is a maritime law specialist experienced in cruise ship litigation in the location where the ticket terms require a suit be filed.

If you are a Georgia resident seriously injured on a cruise ship, we can handle the “back home” part of of this and make a knowing selection of a maritime lawyer appropriate to handle the liability part of the case in the place where the terms of the ticket require that suit be filed.

That flying transmission part sliced off the arm of a young mother, Jemeka Malone, and killed her 8-year-old son, Cameron McIlwain. Ironically, the husband and father, Quantaine Malone, is himself a long-haul truck driver. This incident was featured in the Atlanta Journal-Constitution in an investigative article by Katie Leslie (who phoned me for comment Friday morning) and an article about the family by Craig Schneider.

Online records from the Federal Motor Carrier Safety Administration reveal that CW Transport had vehicle maintenance violations worse than 94.6% of trucking companies in its size category. Records also show the company worse than 67.5% of its peers in terms of unsafe driving violations. Most of the individual violations seem mundane, but cumulatively they paint a picture of a company blatantly indifferent safety concerns. Among the violations were citations for operating without periodic inspections and failure to correct defects noted earlier by inspectors. As I told the newspaper reporter, this company’s safety record is awful but not the worst I have seen.

Ironically, despite its terrible record of vehicle maintenance and unsafe driving violations, CW Transport makes apparently inconsistent claims on its website, including statements about safety compliance and training, age and quality of equipment, and safety performance awards. It would be interesting to see who gave a safety performance award to a company that has vehicle maintenance violations worse than 94.6% of its peers.

The Georgia State Patrol SCRT (Specialized Collision Reconstruction Team) unit is investigating and reconstructing this incident. I expect it will be a good while before their report is released. It is undetermined whether the CW Transport driver, David Washington, will face criminal charges.

My observation in cases over the years has been that companies that contract to transport garbage from collection sites to remote landfills often operate with worn out, poorly maintained equipment and some of the least qualified truck drivers. The smell of the loads alone can result in truck drivers who can possibly work anywhere else leaving these companies.

CW Transport is owned by Gregory Wynn, who is also listed as CEO of CTC Construction LLC (formerly Wynn Builder Group, LLC) and of JLW Management, Inc. (a real estate management company administratively dissolved in 2010), etc.

Investigative reports have noted that Wynn hosted a fundraiser for Mayor Kasim Reed, gave $1,000 to the mayor’s campaign,  and that CTC won numerous City of Atlanta construction and demolition contracts including contract for emergency services debris removal, while CW Transport got a piece of the action as a minority joint venture or subcontractor for City of Atlanta waste removal.

None of that proves anything related to this tragedy.What is apparent, however, is that Wynn’s companies have done fairly well in securing City of Atlanta contracts while promising a great deal more on safety concerns than has been delivered.

And now CW Transport’s poor truck maintenance has cost an 8-year-old child his life and cost his mom both her arm and her child.

Ken Shigley is immediate past president of the State Bar of Georgia, chair of the board of the Institute for Continuing Legal Education in Georgia and incoming secretary of the American Association for Justice Motor Vehicle, Highway and Premises Liability Section. He is a board member of the American Association for Justice Trucking Litigation Group and has been on the faculty of trucking litigation seminars from coast to coast. Mr. Shigley is double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the American Board of Legal Specialty Certification (formerly National Board of Trial Advocacy), has an AV Preeminent rating in Martindale-Hubbell Law Directory, is listed as a “Super Lawyer” by Atlanta Magazine and “Legal Elite” by Georgia Trend, and is the lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-12).

Last week, I saw Scott leading a “boot camp” type workout group on a run when I was driving to work. Immediately when I got to the office, I had to send a text message to my daughter in Rochester, NY, that I had seen her hero in action. Of course, she had to immediately contact Scott and ask his advice on where to continue the bike portion of her triathlon training when she comes home for a couple of weeks in July before starting grad school.

Today the AJC carried a story that Scott Rigsby has agreed to a resource and provide emotional support for Aimee Copeland, the young woman who lost her legs and hands due to the flesh-decaying bacteria necrotizing fasciitis after a homemade zip line over the Little Tallapoosa River snapped and she fell onto rocks, incurring a bad cut on her leg.

These are great illustration of the unconquerable spirit we have seen in the survivors of catastrophic injuries, whether involving amputation, spinal cord injury, brain injury, burns or other serious injuries.