A fracture of a vertebra in the low back (lumbar) region causes back pain, often severe, that is aggravated by movement. When low back fracture injuries involve teh spinal cord or nerves, there may also be bowel/bladder dysfunction, numbness, tingling, or weakness in the limbs.

When low back fractrue injuries are caused by high-energy trauma, the patient may also have a brain injury and lose consciousness. There may also be other injuries—called distracting injuries—that cause pain that overwhelms the back pain. In these cases, a vertebral fracture is likely.

These can take many forms including vertebral fractures, ruptured or bulging discs, and damage to nerves, ligaments, tendons, and muscles. A single injury can have aspects of any or all of these components.

There are several varieties of low back vertebral fractures:

Compression fractures

Compression fractures are small breaks in the vertebrae that reduce the height of the vertebra. The people most vulnerable to compression fractures of spinal vertebra are post-menopausal women with reduced bone density associated with osteoporosis. With tiny cracks in soft bone, one is more vulnerable to trauma causing collapse of the vertebra. Smokers are somewhat more at risk than non-smokers. Although this can happen without a major incident, an accident such as being rear-ended by another vehicle can suddenly change the condition from merely vulnerable to acutely painful and debilitating. A common form of compression fracture involves the collapse of the front side of the vertebra. That is called a wedge fracture.   Such compression fractures can lead to chronic pain, height loss, disfigurement, impaired activities of daily living, increased risk of pressure sores, and the depression and psychological distress that commonly accompany chronic pain and loss of quality of life.

Burst low back fracture injuries

A more severe form of compression fracture is the burst fracture, which occurs when a vertebral body spread out in all directions. The increased severity is due to a couple of factors. First, bony fragments spread out in all directions bruising the spinal cord, potentially causing paralysis or other neurologic injuries. Second, when the entire margin of the vertebral body is crushed the spine is much less stable than in a wedge-type compression fracture. Burst fractures, especially in older people with brittle bones in whom it is difficult to attach plates and screws to bone, are often treated with vertebroplasty. That involves injection of bone cement into the damaged vertebra for stability and support of the spine. We have seen this most often in older women rear-ended by large trucks.

 Chance fractures / flexion-extension seat belt fractures

Named after the British radiologist who first defined it in 1948, a Chance fracture is an unstable spine fracture, usually at T10-L2, the thoracolumbar junction. About half of all spinal injuries outside of the cervical spine are this part of the spine. It is a type of flexion-extension fracture because the upper body is thrown forward, typically in a head-on collision,  while the pelvis is stabilized only  by a lap seat belt.  It is also called a  “seatbelt fracture” because it often occurs when, upon sudden deceleration, the spine forcefully bends over the lap seat belt which serves as a fulcrum, resulting in the separation of the middle and posterior elements of the spine. This was seen more often before shoulder harnesses became common.

CT and MRI scans are essential in the diagnosis and are called for when there is seatbelt bruising after a motor vehicle crash. This is a horizontal fracture extending from posterior to anterior through the spinous process, pedicles, and vertebral body. A Chance fracture is an unstable horizontal fracture extending from posterior to anterior through the spinous process, pedicles, and vertebral body. However, in about half of Chance fractures there are also concurrent intraabdominal injuries, especially spleen, bowel and bladder ruptures. Early recognition of this injury is critical as a delay in diagnosis significantly impacts clinical outcomes, but unfortunately, emergency physicians can easily overlook Chance fractures on clinical exam because patients may present without initial neurological deficits. Treatment often involves stabilization with a brace or cast, though more severe cases with neurological symptoms may are stabilized surgically.

Rotation low back fracture injuries

This less common fracture results from rotation of the low back  or extreme sideways (lateral) bending. With rotation fracture-dislocation, both bone and soft tissue around a vertebra are injured, often resulting in spinal cord compression. Treatment involves surgery to stabilize the spine, generally with places, screws, rods or cages.

Permanent Impairments after Low Back Fracture Injuries

Most lumbar spine fracture injuries involve an impairment rating under the American Medical Association Guides to Evaluation of Permanent Impairment.   Physical impairment as rated under this system is not the same thing as occupational disability. A person with a relatively low impairment rating may be completely disabled from a physically demanding occupation. But a person with the same physical impairment rating may be fully capable of doing an office job. We may also consider evaluation by a vocational rehabilitation expert to evaluate real-world disability.

If you or a loved one have suffer ed a low back fracture injury, call us at 404-253-7862.

Johnson & Ward has been a leading personal injury and wrongful death specialty law firm in Atlanta since 1949.

senior counsel at Johnson & Ward, is a former president of the State Bar of Georgia (2011-12). He was the first Georgia lawyer to earn three board certifications from the National Board of Trial Advocacy (Civil Trial Advocacy, Civil Pretrial Advocacy, and Truck Accident Law). In 2019, he received the Traditions of Excellence Award for lifetime achievement. Mr. Shigley was lead author of  eleven editions of Georgia Law of Torts: Trial Preparation and Practice (Thomson Reuters, 2010-21). He graduated from Furman University and Emory University Law School.

The femur (thigh bone), extending from the hip to the knee, is the strongest and longest
bone in the human body. Because it is so strong, in relatively young people it usually requires a great deal of kinetic force to break the femur shaft. That often happens in truck, car and motorcycle crashes. In older people with weaker bones, however, a fall may be sufficient to fracture of the femur, especially the neck of the femur where it joins the pelvis.

In our decades of representing badly injured Georgians, we have handled numerous femur fracture cases. In one such case arising from a truck wreck, the jury in a conservative rural county surprised everyone with a verdict of $2,345,940.17. This was three times the highest previous verdict in the history of the county up until then and nearly a million dollars more than the $1.3 million we had requested in closing argument.  It reminded people of the 1982 movie, “The Verdict.”  This verdict was broken down as follows: compensatory damages: $1,742,845.70, attorney fees due to the defendant trucking company’s bad faith in violating mandatory safety rules, $580,948.57, expenses of litigation due to bad faith, $22,145.90. Medical expenses were $112,228. The highest offers from defendant’s insurance company were $100,000 the week before trial and $400,000 on third day of trial. It came from meticulously presenting the details of the injury without appearing to overreach and giving the jury a method to reach their own conclusion.

Femur fractures vary greatly, depending on the force that causes the break. The pieces of bone may line up correctly (stable fracture) or be out of alignment (displaced fracture). The skin around the fracture may be intact (closed fracture) or the bone may puncture the skin (open fracture).

Femur fractures are classified depending on:

• The location of the fracture (the femoral shaft is divided into thirds: distal, middle, proximal
• The pattern of the fracture (for example, the bone can break in different directions, such as crosswise, lengthwise, or in the middle)
• Whether the skin and muscle over the bone is torn by the injury

The most common types of femoral shaft fractures include:

• Transverse. In this type of fracture, the break is a straight horizontal line going across the femoral shaft.
• Oblique. This type of fracture has an angled line across the shaft.
• Spiral fracture. The fracture line encircles the shaft like the stripes on a candy cane. A twisting force to the thigh causes this type of fracture.
• Comminuted. In this type of fracture, the bone has broken into three or more pieces. The number of bone fragments corresponds with the amount of force needed to break the bone.
• Open. If a bone breaks in such a way that bone fragments stick out through the skin or a wound penetrates down to the broken bone, the fracture is called an open or compound fracture. Open fractures often involve much more damage to the surrounding muscles, tendons, and ligaments. They have a higher risk for complications—especially infections—and take a longer time to heal.
• Any or all of these diagnostic criteria may be combined in a single injury.

Femur Fracture Diagnosis

Physical examination, combined with imaging by X-ray, CT and MRI, is used to diagnose a femur fracture and determine the exact location and pattern of fracture.

If feasible, tell the doctor should be informed how the injury occurred. The physician will look for:

• Bony pieces that may be pushing on or through the skin
• Deformity of the thigh/leg, such as an unusual angle, twisting, or shortening of the leg.
• Breaks in the skin
• Bruises

After inspecting the leg visually, the doctor will feel the thigh, leg, and searching for abnormalities and tightness of the muscles and skin of the thigh, and checking pulses. If the patient is awake, the physicians tests for sensation and movement in the leg and foot.

Treatment of a Femur Fracture

Treatment for femur fracture may vary based on the type and location of the break and may often include:

Setting the leg

A displaced fracture may require the broken bones to be realigned, prior to splinting of casting of the leg. Depending on the degree of displacement, surgical or nonsurgical methods may be used to manipulate the bones back into position.

Severe or multiple fractures may require external fixation, which uses an outer metal rod and pins to hold the bone or bones in place until they heal.

• Open Reduction and Internal Fixation (“ORIF”) involves surgery and use of fixation devices, including an intramedullary rod or “nail” through the center of the bone, secured with various types of metal plates and screws, is used often to stabilize the broken femur during healing. This hardware is usually left in the leg permanently though sometimes it may be removed or replaced. Advantages of intramedullary nailing include quicker return to weight bearing, enhanced rehabilitation, and a high bone union and fusion rate compared with external fixation. But there are also potential disadvantages including increased risk of fat embolism, increased rates of infection and blood loss, and potential impediment to obtaining correct alignment. We have handled injury cases in which intramedullary fixation failed. In one case involving a femur shattered into several pieces, a small town hospital did not have the exact length of intramedullary rod immediately available. It was necessary to repeat the surgery a year later, and the patient had a permanent limp and a degree of permanent impairment in his occupation.
• Immobilization through a splint or cast. Whether or not there is surgical fixation of the fracture, femur fracture treatment usually involves use of splints or casts. A college friend had a femur fracture in football. He spent his senior year in a full leg cast. While his dreams of going to the NFL were as shattered as his leg, but he chose graduate school and ultimately returned as president of the college.
• Pain medication. Femur fractures are extremely painful. Physicians and patients must be aware of the delicate balance between pain control and risk of narcotic dependency or addiction. We know one severely injured person who was sent home with a huge quantity of hydrocodone but within a few days weaned himself off potentially addictive drugs because he needed to resume brain work, switched to over-the-counter Tylenol, and “sucked it up” for several months of recovery.
• Physical therapy. Most patients recovering from femur fractures are prescribed months of physical therapy (“PT”) to restore normal muscle strength, range of motion, and flexibility. Patients often jokingly refer to physical therapists as “physical terrorists” because the process can be quite painful, but it’s a good pain that helps recover function.
• Maximum medical improvement after a femur fracture usually takes about 4 to 6 months but sometimes can take a year or two.

 Permanent Impairments after Femur Fracture

In preparing for settlement or trial of femur injury cases, we typically obtain from the physician an impairment rating under the American Medical Association Guides to Evaluation of Permanent Impairment.   Physical impairment as rated under this system is not the same thing as occupational disability. A person with a relatively low impairment rating may be completely disabled from a physically demanding occupation. But a person with the same physical impairment rating may be fully capable of doing an office job. In the context of femur injuries, the determination of physical impairment involves complex tables and formulas that rate factors such as limb length discrepancy, gait derangement, muscle strength and atrophy, range of motion, arthritis, nerve injury, complex regional pain syndrome, and reduction of blood circulation. When appropriate, we also consider evaluation by a vocational rehabilitation expert to evaluate real-world disability.

 Wilderness First Aid for Femur Fractures

Most of the femur fracture injuries we see are the result of motor vehicle collisions on streets and highways.  These initially addressed by emergency medical personnel who can quickly stabilize the fracture and transport the patient by ambulance to a hospital. But if a femur fracture occurs in a remote wilderness setting beyond the reach of immediate emergency medical services, it is important to have someone in the group trained in wilderness first aid. One of our lawyers was trained years ago on how to set a displaced femur fracture in the wilderness using sticks tied off with bandanas, jackets, or t-shirts. We pray that it never becomes necessary to utilize that training.

If you or a loved one has suffered a femur fracture in a truck, car or motorcycle crash, contact us online or call us at 404-253-7862.

Johnson & Ward has been a leading personal injury and wrongful death specialty law firm in Atlanta since 1949.

senior counsel at Johnson & Ward, is a former president of the State Bar of Georgia (2011-12). He was the first Georgia lawyer to earn three board certifications from the National Board of Trial Advocacy (Civil Trial Advocacy, Civil Pretrial Advocacy, and Truck Accident Law). In 2019, he received the Traditions of Excellence Award for lifetime achievement. Mr. Shigley was lead author of  eleven editions of Georgia Law of Torts: Trial Preparation and Practice (Thomson Reuters, 2010-21). He graduated from Furman University and Emory University Law School.

COVID-19 has thrust us into a global crisis unprecedented in the century since the Spanish Flu epidemic of 1918-19. It is not merely disruptive in our daily routines. It involves life, death and enormous hardship in massive scale, probably for a prolonged time.  In this new reality, some of the routines dealing with individual injury cases may be eclipsed by a near term future we did not anticipate just a few weeks ago.

The “new normal” after the end of this pandemic is impossible to discern. Some pundits have emphasized hope that after the entire population passes this crucible of shared hardship and existential threat, we might emerge a kinder, more empathetic, more cooperative and public spirited nation, less torn by toxic partisanship. This will be the central formative experience for the generation forced home from school. Despite some examples of irresponsible spring break conduct, some guess that this may lead to a “Greatest Generation 2.0” in response to shared crisis. Others fearfully predict a dystopian future reminiscent of a Mad Max movie. Reality may be somewhere between those two visions.

One thing is certain. As with every cataclysmic event, legal controversies will flow from this crisis.

Already there is a declaration from the Secretary of Health and Human Services providing immunity from liability for certain individuals and entities against covered claims of loss relating to the manufacture, distribution, administration, or use of medical countermeasures (“Covered Countermeasures”), except for claims involving “willful misconduct.” This was done under the authority of the Public Readiness and Emergency Preparedness Act of 2005 (“PREP Act”), codified at 42 U.S.C. §247d-6d, and is retroactively effective beginning February 4, 2020.  Tthere precedent supporting this immunity. See, e.g., Parker v. St. Lawrence County Pub. Health Dept., 102 A.D.3d 140 (3rd Dep’t 2012) (finding federal preemption over Plaintiff’s state law claim based on the unconsented vaccination of a minor during the H1N1 epidemic).

This immunity from liability applies to manufacturers, distributors, program managers, “qualified persons” (any person authorized to prescribe, administer, deliver, distribute or dispense the Covered Countermeasures), and their officials, agents, and employees authorized to prescribe, administer, deliver, distribute or dispense any antiviral, drug, biologic, or vaccine used to treat, diagnose, cure, prevent, or mitigate COVID-19, the transmission of SARS-CoV-2, or a virus mutating therefrom, or “any device used in the administration of any such product, and all components and constituent materials of any such product.”

Activities covered by this immunity from liability include manufacturing, testing, development, distribution, administration, and use of the Covered Countermeasures.

The COVID-19 Declaration is effective as of February 4, 2020 through October 2024, unless extended.

The purpose of the COVID-19 Declaration  is to permit the special use of drugs and other medical products during the COVID-19 pandemic that either have not yet been approved/cleared by the FDA or may be used off-label without the risk of liability in the event of a covered injury or loss. Under the PREP Act, if there are injuries as a result of Covered Countermeasures relating to a public health emergency, the relief available can be found via the Countermeasures Injury Compensation Program (“CICP”), which is charged with establishing a fund for such injuries.

“Covered Countermeasures” include anything used against the pandemic or against adverse events from these products, including antivirals, drugs, biologics, diagnostics, devices, vaccines used to treat, diagnose, cure, prevent, or mitigate COVID-19, or the transmission of SARS-CoV-2 or a virus mutating therefrom, or any device used in the administration of any such product, and all components and constituent materials. These must be a qualified pandemic or epidemic product authorized for investigation or emergency use as defined in the PREP Act, the Food and Drug Cosmetic Act (“FDCA”), and the Public Health Service Act (“PHSA”).

The scope of immunity is not all-encompassing or absolute. Key limitations/qualifications on immunity protection are:

1. Some form of premarket approval is required. The Covered Countermeasure must be approved or cleared by the FDA under the FDCA; licensed under the PHSA; or authorized for emergency use by the FDA under applicable provisions of the FDCA.
2. Must be qualified pandemic or epidemic products, security countermeasures, or drugs, biologics, or devices authorized for emergency or investigational use.
3. Only for “recommended activities” involving Covered Countermeasures related to present or future federal contracts or other federal transactions or agreements, or activities authorized by authorities with jurisdiction to prescribe, administer, deliver, distribute, or dispense Covered Countermeasures following an emergency declaration.
4. Does not apply to death or serious physical injury caused by willful misconduct.
5. Not available for foreign claims.
6. Claim must arise from conduct that is directly related to the development/distribution of a Covered Countermeasure.

We may reasonably anticipate that bad things will happen, and sneaky people will claim immunity to which they are not legitimately entitled.  Those issues will be fought out in court.

——————

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 2008-2020, 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.

Recently he moved his  law practice to the Atlanta law firm of Johnson & Ward. He may be contacted at 404-253-7862.

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. 

Sterigenics plants in Smyrna and Covington, Georgia, have long used ethylene oxide in sterilization of medical equipment. The Environmental Protection Agency air assessment from last year found several census tracts around those plants had significantly increased cancer risks due to ethylene oxide. The EPA recently concluded that the gas is dangerous at lower levels than previously believed.

Ethylene oxide is an organic compound with the formula C₂H₄O. A colorless and flammable gas with a faintly sweet odor, it has many uses in industry but is not safe for household use. At room temperature it is a flammable, carcinogenic, mutagenic, irritating, and anaesthetic gas.

There is evidence from both human and animal studies that inhalation exposure to ethylene oxide can result in a wide range of carcinogenic effects. The International Agency for Research on Cancer classifies ethylene oxide into group 1, meaning it is a proven carcinogen. Ethylene oxide is classified as a class 2 carcinogen by the German MAK commission and as a class A2 carcinogen by the ACGIH. A 2003 study of  women exposed to the chemical while working in commercial sterilization facilities suggests ethylene oxide is associated with breast cancer incidence.

In 2015, Sterigenics reported emissions ethylene oxide from its Smyrna plant of  3,574 pounds. After federal regulators definitively linked ethylene oxide to cancer in humans in 2016, the company’s self-reported emissions of the chemical dropped to 226 pounds.

Due to past emissions data submitted by Sterigenics, t the federal Environmental Protection Agency to project an elevated risk of cancer in surrounding neighborhoods. Similar cancer clusters were reported near a Sterigenics plant in the Chicago area.

All cases involving cancer allegedly caused by chemical exposures are highly complex and involved an enormous amount of scientific analysis and expert witness testimony. These are not intersection collision cases.

We have begun to sign up Sterigenics cancer cases as victims and their survivors from the neighborhoods surrounding these plants have contacted us. As with any case involving complex science, we work with an experienced team to properly analyze and develop the scientific and medical evidence.

 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.

Though common in litigation, confidential settlements can be controversial.

While confidentiality agreements had help expedite settlement, there are concerns that secret settlements can work against public safety by covering up health and safety hazards. As with much in life, the hardest choices are not between good and bad, but between good and good, and between bad and bad.

Under a confidential settlement agreement or order, some or all terms of a settlement are kept secret. Defense lawyers routinely include a confidentiality clause in a proposed release when there is a large settlement. Sometimes it is a throwaway item in a boilerplate document. In other cases they hang tough on confidentiality.

For defendants and their insurers, there are several obvious reasons to seek confidentiality of settlements. Especially in cases in which multiple future claims are likely, such as allegedly defective manufactured products or allegedly widespread conduct, they may seek confidentiality of settlements so as not to encourage additional claims or impair business reputation.

Public safety advocates criticize secret settlements that hinder the ability to identify threats to public health and safety and hold wrongdoers accountable. As Justice Brandeis noted, “[s]unlight is the best of disinfectants.” Where a case involves the potential for widespread public hazards due to product defects or systemic misconduct, there is good reason for plaintiffs to resist secrecy. In the discovery context, there are many factors to consider that are beyond the scope of this discussion of settlements.

Regarding settlement, plaintiffs’ lawyers should: (1) discuss secrecy concerns for public interest in advance with clients; (2) remember that a settlement agreement filed with the court is itself a public record; (3) insist that the settlement comply with states laws, court rules and ethics rules; (4) insist on plaintiff’s ability to disclose settlement to government agencies, accountants, bankers, and financial advisors. See Leslie A. Bailey & Amy Radon, “Confronting Court Secrecy Issues from Discovery through Settlement: Measures to Protect Both Your Client and the Public Interest.”

Defendants may also desire confidentiality of settlements when plaintiffs’ lawyers have figured out a legal strategy that, if widely known in the legal community, could disrupt a multi-billion dollar business model. We have been involved in that repeatedly over the past thirty years but can’t talk about it.

Public safety concerns about confidentiality tend to be less when the cases arises from a single highway collision that, if reported in the media, could impact a defendants’ business but would not leave members of the public exposed to greater danger.
Plaintiffs often just go along with a confidentiality clause in settlement just to get their money sooner. However, it is not always just a matter of convenience. Plaintiffs recovering large amounts of money may desire confidentiality as much as the defense.
If a large settlement is publicized, it can affect relationships with friends, relatives and neighbors who might resent what they see as a financial windfall. Relatives and friends may suddenly come out of the woodworks as soon as they smell money. Investment advisors and charities may besiege the plaintiffs who have come into big money. It is common to agree to confidentiality of a settlement where client quietly lived in a small town and did not want their sudden wealth to distort relationships with friends and neighbors.

We once had a simple, uneducated, unsophisticated client from a rural county who had enough folk wisdom to recognize his vulnerability to such entreaties. In addition to confidentiality of the settlement, he opened a bank account two counties away from home, with a bank that did not have a branch in his home county. Both his initial cash disbursement and monthly settlement annuity payments were automatically deposited in that account. Disconnected from the community where he and all his relatives lived, there was virtually no risk of anyone he knew learning about his vastly improved financial status. He remained in the 150-year-old log cabin that been his family’s home since pioneer days, though considerably upgrading it inside. He worked a while longer to qualify for a state pension, then with a nephew started a “you pick ‘em” berry farm on the family land. With his confidentiality protected, he was able to live unobtrusively and undisturbed by greedy people for the remaining 25 years of his life.

Another client whose son died due to an obscure brake design defect was an immigrant from a Third World country that was emerging from a brutal civil war when we settled his case. As he came from a politically prominent family in his home country, he had an opportunity to take a cabinet position in the new government of his nation. The brutality of the losing side of the civil war was legendary so there were serious concerns for personal safety if anyone back home knew that he was a millionaire. The defendant auto manufacturer also wanted confidentiality of our settlement for all the usual reasons. After determining that ours was the only known incident in the country arising from that brake defect, and that the defect was corrected in all subsequent model years, we determined that the risk to public safety was remote. Thus, we and the manufacturer’s attorneys made a joint motion for a confidentiality order and to seal the court file. The client then returned to his home country to explore his options for public service. However, he determined that due to endemic corruption he preferred to return to Georgia and buy a business.
The terms of a confidentiality clause are negotiable. For example, in one recent case that was settled for $8,000,000, in which both sides wanted confidentiality for different reasons, we included the following language:

In consideration of $100 of the total amount set forth in Paragraph 2.0 of this Agreement, the undersigned agree and acknowledge that the terms and provisions of this Agreement, with respect to the actual amount paid, shall be kept in strict confidence, from inception of the agreement, moving forward. The undersigned further acknowledge and agree that the settlement amount may be revealed only with the written permission of Defendants and Insurer. The only exceptions to this promise of confidentiality are that a party may, without securing the prior written permission of the opposing parties, provide information about this Agreement and the settlement it memorializes as follows:
a. to the Internal Revenue Service or the Georgia Department of Revenue upon request; b. to the court in any proceeding to approve or enforce the terms of this Settlement Agreement so long as the Settlement Agreement is filed under seal;
c. to a health insurance company, health care professional, or others asserting a claim for subrogation or reimbursement for medical expenses paid;
d. as required by any governmental agency or by process of law, so long as the party(s) provides opposing parties with written notice via certified or statutory overnight mail of such governmental agency requirement or process of law and grants the opposing parties an opportunity to contest such governmental agency requirement or process of law in advance of any disclosure by the party(s) and, further, so long as any entity receiving that information is informed of this confidentiality agreement prior to the disclosure of information protected by it; and
e. to a party(s)’s attorneys, professional accountants, and financial advisors, spouse or professional tax consultants with whom that party(s) have a confidential relationship.
f. Counsel for Plaintiff may report the fact and amount of this settlement to any verdict database and in firm marketing materials, though without revealing the names of the parties, defense counsel, Insurer, county of venue, or the date or location of the subject incident.
If the undersigned is asked about any claim described in the recitals or released in Section I of this agreement, the undersigned may respond that “The case has been resolved” or words to that effect.

Blatant violations of confidentiality agreements and orders are relatively rare, in part because the consequences of violation are a deterrent. Remedies available for breaching a confidentiality clause are generally the same as those awarded for other contractual breaches. Nominal or compensatory damages may be awarded in appropriate cases.

Because proof of damages for breach of confidentiality is difficult, such contracts often include a provision for liquidated damages in amount sufficient to deter violations. Most courts have refused to award punitive damages.

Lawyers drafting confidentiality agreements may specify remedies including monetary liquidated damages, injunctive relief, costs, or attorneys’ fees. Liquidated damages amounts should not be so high as to be deemed punitive and thus potentially void.

If it is a confidentiality clause of a contract, that is governed by the same legal rules that govern other types of contracts. That is why settlement agreement often include a consent confidentiality order. But if the confidential settlement becomes an order of the court, the order itself ordinarily becomes a public record. One method to assist in keeping the terms confidential is to have the official record sealed. We have agreed to that where the plaintiff had strong reasons to desire confidentiality. In such cases, the court should independently weigh the need for privacy against the public’s interest in having access to public records.

When parties to subsequent cases seek discovery of prior settlements, confidentiality of settlements is challenged. Some courts allow discovery of confidential settlement agreements only where there is a particularized showing of a likelihood that admissible evidence be generated by the discovery of the terms of the settlement agreement. Other courts have allowed discovery of confidential settlement agreements, provided the party seeking discovery demonstrates that the information is relevant.

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.

Death by decapitation due to trailer underride  can  result when tractor trailers park on the roadside.

The kneejerk response of most people seeing pictures of these incidents is to simply blame the dead person. But it’s not that simple. When an innocent passenger is killed or maimed, some portion of fault is normally apportioned to the driver who departed from the traffic lane for whatever reason. But it is necessary to also examine a trucking company’s decision to violate safety standards by parking a big rig on the side of the road.

A lot of people who see these collisions and are uninformed on the safety standards involved assume that it is always 100% the fault of the driver of the car that struck the parked tractor trailer. Thus, it is necessary to thoroughly investigate and, if possible, refute potential defenses. If the driver of the car had a cell phone, it is worth the cost to do a forensic download and rule out driver distraction from a cell phone at the time of the crash. A reliably conducted medical examination or autopsy is needed to rule out alcohol or drug use that may have contributed to cause of the crash.

In over 40 years of law practice, including 28 years representing individuals and families devastated by highway crashes with big commercial trucks, one of the least understood hazards is that of tractor trailers parked on the side of the road.

Just about every time I drive through Georgia late at night, I see unlit tractor trailers parked in the dark inches from the right traffic lane . Too many people even in the trucking industry do not understand how hazardous this can be.

It is foreseeable that cars will occasionally leave the traffic lane. That can happen for any of a number of innocuous reasons that should not be punished by decapitation. A driver may swerve to avoid another vehicle, a deer or a dog, or when distracted by a child or pet inside the vehicle. One may hydroplane and spin off the road when water pools in a low spot in pavement on a highway during heavy rain. (That happened to my wife at a spot on I-20 that was well known to state troopers for frequent hydroplaning.) Because innocuous departure from the traffic lane is common, highways include rumble strips at the end of the road.

The foreseeability of vehicles departing from the traffic lane is why highways built in the United States in recent decades have incorporated road design features to make roadsides forgiving for drivers who makes such mistakes.

The American Association of State Highway and Transportation Officials (AASHTO) recommends construction standards for shoulder and right of way design. This includes clearance of obstructions such as, trees, steep slopes, or abutments which may hinder a motorist from being able to recover from an unintended departure from the roadway. They also recommend guardrails whenever feasible to redirect drifting vehicles back onto the paved portion of the roadway.

The Roadside Design Guide defines a clear zone as the total roadside border area, starting at the edge of the traveled way, available for safe use by errant vehicles. This area may consist of a shoulder, a recoverable slope, a non-recoverable slope, and/or a clear run-out area. The desired minimum width is dependent upon traffic volumes and speeds and on the roadside geometry. Simply stated, it is an unobstructed, relatively flat area beyond the edge of the traveled way that allows a driver to stop safely or regain control of a vehicle that leaves the traveled way.

According to the Roadside Design Guide by the American Association of Highway Transportation Officials, highway shoulders, a clear zone is

The total roadside border area, starting at the edge of the traveled way, available for safe use by errant vehicles. This area may consist of a shoulder, a recoverable slope, a non-recoverable slope, and/or a clear run-out area. The desired minimum width is dependent upon traffic volumes and speeds and on the roadside geometry. Simply stated, it is an unobstructed, relatively flat area beyond the edge of the traveled way that allows a driver to stop safely or regain control of a vehicle that leaves the traveled way.

The Clear Zone, is further defined as

An unobstructed, traversable roadside area that allows a driver to stop safely, or regain control of a vehicle that has left the roadway. The width of the clear zone should be based on risk [of immediate danger]. Key factors in assessing risk include traffic volumes, speeds, and slopes. Clear roadsides consider both fixed objects and terrain that may cause vehicles to rollover.

The highway shoulder is not  designed for parking. It is a “clear zone” or “recovery zone,” not a parking area. But every day we see 18-wheelers parked in that “recovery zone” or shoulder, parked overnight and not illuminated.

Personal cars and trucks are doing the same thing, but the hazard they present is less severe. When a trucker parks a large Commercial Motor Vehicle (CMV) in on the shoulder of a highway in what is designed as a “Clear Zone,” that truck is a large, immovable, rigid barrier blocking the “clear zone.” That creates an eminent hazard to occupants of any vehicle which may depart, for whatever reason, from the travel portion of the roadway.

Tractor trailers parked in the “clear zone” or “recovery zone” create the equivalent of an unforgiving solid wall. This presents a vastly greater danger to people in approaching cars that would another car parked in the same position. When a car veers out of its lane and collides with a stopped car of the same size, there may or may not be injuries, either minor or serious. But when the same car collides with an 80,000 pound tractor trailer, the physics is vastly different.   Semi-trucks are not only larger and heavier than regular vehicles, but their trailers also stand high off the ground. If a car traveling at highway speeds comes into contact with the trailer of an 18-wheeler, the big rig is the perfect height to sheer off the top of the car and kill or perhaps decapitate anyone inside.

Conspicuity of big rigs parked on the roadside, especially in lighting and weather conditions affecting visibilty is a hazard well known in trucking. That is why the Federal Motor Carrier Safety Regulations have strict rules on this. At § 392.22 on Emergency Stops, the regulations require, “whenever a commercial motor vehicle is stopped upon the traveled portion of a highway or the shoulder of a highway for any cause other than necessary traffic stops, the driver of the stopped commercial motor vehicle shall immediately activate the vehicular hazard warning signal flashers and continue the flashing until the driver places the warning devices” As soon as possible, and in all cases within 10 minutes, the driver must places three reflective triangles or flares.

Trucking company corporate management can reduce this risk of a deadly crash through management practices that include good trip planning so that drivers can reach safe places for planned stops before they run out of safe driving hours. Companies should manage their fleets to make frequent vehicle inspections and perform appropriate equipment maintenance.

Trucking company management should require drivers not to stop along the roadside in non-emergency situations, and instruct drivers to exit the highway and find a safe place to park when necessary. Truckers multiply this risk when they park large trucks park on the roadside at night without using hazard flashers and warning devices.

If due to mechanical breakdown a truck driver has no choice but to stop on the side of the road, trucking companies should train drivers and dispatchers on things they can do to  reduce the risk of a loss in the event of a breakdown or other roadside emergency. Such actions include:

• Immediately turn on hazard flashers when slowing and leave them on while stopped.
• Immediately set out warning devices (reflective triangles or flares) in accordance with the Federal Motor Carrier Safety Regulations at 49 CFR § 392.22.
• Keep marker lights on after dark.
• Avoid parking on curves or on the downside of undulated roads that obscure the approach of oncoming traffic.
• Park as far off the traveled roadway as safely possible. Remember shoulders can be soft and have a steep drop-off or ditch.
• When stopped, set parking brakes.
• Notify employer as soon as possible to arrange roadside assistance.
• Avoid falling into traffic by using three points of contact exiting /entering the cab or climbing onto the catwalk or trailer.
• Walk along the side of the vehicle opposite traffic.
• Watch out for debris or uneven surfaces when outside the vehicle.
• Use a visible flashlight after dark.
• Wear reflective clothing (such as a high visibility safety vest) when exiting the vehicle.

Even if a parked semi-truck is illuminated at night, there is a recognized condition known as the “Moth Effect” which may contribute to an unwary driver running into a truck parked on the shoulder. The “Moth Effect” occurs when drivers are attracted to flashing lights or other things along the roadway, especially when fatigued.  The “Moth Effect” is most likely when visibility conditions are reduced at night or in fog or heavy rain which is common in Georgia. When required to stop due to extreme weather conditions, truckers should attempt to get to the next exit in order to avoid blocking the “clear area” on the roadside.

When presented with catastrophic crashes that involve a commercial motor vehicle parked by the side of the road, we investigate deeply and retain appropriate experts. We have to determine why the driver chose that particular spot to pull off and stop.  We normally download electronic control module data and other electronic records from both vehicles. How long had the truck been parked? Was there a dash cam video on either vehicle that could be evidence? Was it an actual emergency or mechanical failure? Was the driver failing to follow safety rules and simply stopped for a “break” on the roadside rather than in a safe place off the road? Did the truck driver have the ability to stop in a safer location?

If a family member is badly injured or killed in a collision with a tractor trailer parked on the roadside, call us at (404) 253-7962 for a consultation to see whether or not there is a viable case.

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.

When my father’s generation came home from World War II, many of them carried psychological scars about which they kept quiet. My parents married young, at 21 and 18, the week he returned from combat in 1945. My mother said that dad fought the air war over Europe every night in his sleep for at least a decade. The longer-term ramifications of that played out in many ways throughout his life. As he lay dying over six decades later, he began to tell me for the first time the war experiences that had haunted him most through his life.

Recently, I was with a nurse practitioner and a community mental health counselor during their impromptu discussion of the ramifications of PTSD that they see regularly in dealing with people on the front lines of medicine and mental health. They rattled off numerous examples of what they almost daily among veterans of Vietnam, Iraq and Afghanistan, and survivors of a variety non-combat traumas.

When dad came home from WW2, there was no widely accepted medical name for this condition. The terms “shell shock” and “battle fatigue” were used, but were generally limited to debilitating short term reactions to battle in wartime rather than the chronic reactions that can stretch out over decades.

The term PTSD was not given a standard psychiatric definition until 1980 when the American Psychiatric Association (APA) added PTSD to the third edition of its Diagnostic and Statistical Manual of Mental Disorders (DSM-III) classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice.

PTSD through history

From cave men attacked by saber tooth tigers to victims of twenty-first century terrorists, humans have always suffered similar psychological outcomes of violence. Over 400 years ago, Shakespeare in “Henry IV” presaged the modern diagnostic criteria for Posttraumatic Stress Disorder (PTSD), describing the post-battle condition of a character:

Tell me, sweet lord, what is ‘t that takes from thee
Thy stomach, pleasure, and thy golden sleep?
Why dost thou bend thine eyes upon the earth,
And start so often when thou sit’st alone?
Why hast thou lost the fresh blood in thy cheeks
And given my treasures and my rights of thee
To thick-eyed musing and curst melancholy?
In thy faint slumbers I by thee have watched,
And heard thee murmur tales of iron wars,
Speak terms of manage to thy bounding steed,
Cry “Courage! To the field!” And thou hast talk’d
Of sallies and retires, of trenches, tents,
Of palisadoes, frontiers, parapets,
Of basilisks, of cannon, culverin,
Of prisoners’ ransom and of soldiers slain,
And all the currents of a heady fight.
Thy spirit within thee hath been so at war
And thus hath so bestirred thee in thy sleep,
That beads of sweat have stood upon thy brow
Like bubbles in a late-disturbèd stream;
And in thy face strange motions have appeared,
Such as we see when men restrain their breath
On some great sudden hest. O, what portents are these?
Some heavy business hath my lord in hand,
And I must know it, else he loves me not.”
—Henry IV, Part 1 (2.3.39-67)

As a lawyer accustomed to dealing with clients who have been seriously injured or lost a loved one killed in a crash with a car or tractor trailer, the tendency is often to focus on the physical injuries – broken bones, back injuries, neck injuries, chronic pain, etc. It is easy to overlook the silent injury of Posttraumatic Stress Disorder (PTSD), or to confuse it with a traumatic brain injury.

What is PTSD?

PTSD is officially recognized as a mental health condition that some people develop after experiencing or witnessing a life-threatening event.  The diagnostic criteria are outlined in the Diagnostic and Statistical Manual of Mental Disorders, currently in the Fifth Edition, known as the DSM-5©.

In 2013, the American Psychiatric Association revised the PTSD diagnostic criteria and included PTSD in a new category Trauma- and Stressor-Related Conditions.  The diagnostic criterion for all of the conditions included in this new classification require exposure to a traumatic or stressful event.

The DSM-5 criteria for PTSD, ICD-9 309.81 or ICD-10 F43.10, for adults, adolescents and children over 6 years old are as follows (the DSM-5 has separate criteria for children 6 years and younger) 2:

Criterion A (one required) – the person was exposed to death or actual serious injury in the following way(s):

• Directly experiencing the traumatic event
• Witnessing the event as it occurred to others
• Learning the traumatic event occurred to a relative or close friend
• Indirect exposure to aversive details of the trauma

Criterion B (one required) – the traumatic event is persistently re-experienced in the following way(s):

• Unwanted upsetting memories
• Nightmares
• Flashbacks
• Emotional distress after exposure to traumatic reminders
• Physical reactivity after exposure to traumatic reminders

Criterion C (one required) – avoidance of trauma-related stimuli after the trauma in the following way(s):

• Trauma-related thoughts or feelings
• Trauma-related reminders

Criterion D (two required) – negative thoughts or feelings that began or worsened after the trauma in the following ways:

• Inability to recall key features of the trauma
• Overly negative thoughts and assumptions about oneself or the world
• Exaggerated blame of self or others for causing the trauma
• Negative affect
• Decreased interest in activities
• Feeling isolated
• Difficulty experiencing positive affect

Criterion E (two required) – trauma-related arousal and reactivity that began or worsened after the trauma in the following ways:

• Irritability or aggression
• Risky or destructive behavior
• Hypervigilance
• Heightened startled reaction
• Difficulty concentrating
• Difficulty sleeping

Criterion F (required) – symptoms last for more than 1 month

Criterion G (required) – symptoms create distress or functional impairment

Criterion H (required) – symptoms are not due to medication, substance abuse or other illness

When can PTSD appear after trauma?

Symptoms of PTSD usually begin within the first three months after the trauma, although there may be a delay of months, or even years, before criteria for the diagnosis are met. The DSM-5 refers to this as “delayed expression” with the recognition that while some symptoms typically appear immediately, others are often delayed.

Often a person’s reaction to trauma initially meets criteria for Acute Stress Disorder immediately after experiencing a traumatic event, but Acute Stress Disorder is distinguished from PTSD because the symptoms are restricted to a duration of three days to one month. The duration of PTSD symptoms varies with complete recovery within three months occurring in approximately 50% of adults. I had some of this after I was hurt in an explosion. For months, I looked away whenever there was an explosion on TV and was timid about lighting a gas grill. But that reaction passed.

However, some individuals remain symptomatic for more than 12 months and some for more than 50 years. There were times when an elderly neighbor stood in his driveway and openly wept about things he had experienced over sixty years earlier as a Marine on Peleliu and Iwo Jima.

Research indicates that PTSD is more prevalent in females and they experience PTSD for a longer duration on average than do males.   PTSD is associated with high levels of social, occupational and physical disability as well as considerable economic costs and high levels of medical utilization.

What are risk factors for PTSD in some people but not others?

Risk factors may increase a person’s chances of getting post-traumatic stress disorder (PTSD) compared to others who seem mentally unscarred by similar experiences Some of those risk factors include experiences of:

• Long-lasting, never-ending trauma
• Intense, severe trauma
• Situations that put one at greater risk for harm, such as first responders or those in the military
• History of substance, alcohol, or drug abuse
• A loss earlier in childhood, such as abuse or neglect.
• History of other mental health concerns or mental illness
• Few friends or close family members they can rely on for emotional support
• A history of mental illness within their family

How is PTSD involved after motor vehicle collisions?

Most people who are hurt in routine car and truck wrecks do not have PTSD. They may have some short term anxiety but nothing that rises to the level of PTSD. We have all had stressful conditions that we endured, sucked it up, and went on. When I was an insurance defense lawyer, I routinely sliced and diced psychologists who testified for exaggerated claims of PTSD that stretched beyond the diagnostic criteria.

However, there are vehicles crashes in which PTSD is a realistic issue. One study found that about 9% of motor vehicle crash survivors have symptoms of PTSD. Examples can include:

• A crash survivor who witnesses the death and sees the mangled corpse of a parent, spouse or child in the wreckage.
• A guy who was spun out of the line of impact when a tractor trailer ran over stopped traffic, so that he had minor physical injuries while everyone in the vehicle behind and in front of him was killed.
• A person trapped wide awake with the lifeless corpse of a family member until they are discovered, and as first responders labored to extract them.
• People who survived crashes in which they feared the immediate death of themselves or family members.

Any such experience in a car or truck crash is frightening, and it’s very common to experience a number of symptoms associated with PTSD, including:

• Feelings of anxiety and increased heart rate when you’re faced with reminders of the event.
• Hearing a horn honk or brakes screeching may automatically activate a fear response.
• Because of the anxiety that often follows an MVA, it’s natural that you may want to avoid some situations or experience hesitation at times, such as driving on the highway.
• Nervousness when driving or riding as a passenger, startling easily in traffic.
• Being more watchful. You’re more likely to scan your environment for potential sources of threats (for example, people driving too fast).

While we are careful to avoid exaggeration of on minor degrees of PTSD symptoms in auto and truck crash cases, we are alert to the need to have clients evaluated when appropriate for more serious and long-term PTSD symptoms. Whether mild or severe, credible PTSD symptoms can be presented as part of mental pain and suffering in car and truck crash cases.

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

 is a past president of the State Bar of Georgia, past chair of the State Bar’s Tort & Insurance Practice Section, past chair of the Georgia Insurance Law Institute, past chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a member of the board of governors of the Academy of Truck Accident Attorneys. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (Thomson Reuters West, 2010-2018). 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. He is licensed to practice law in Georgia. Representation of clients in others states, which possible, can be undertaken only in strict compliance with the multijurisdictional practice and pro hac vice rules of the other state.

The Georgia Supreme Court ruled on 11/7/2016 that outgoing text messages found in a cell phone are admissible in evidence as admissions of the person who sent them. However, incoming text messages are inadmissible hearsay, though their admission in evidence was “harmless” under the circumstances of the case. Glispie v. State, decided November 7, 2016.

This ruling arose in the context of the criminal prosecution of an alleged drug dealer. That would have been a great interest in my past life as a prosecutor, though of course cell phones had not been invented when I was sending criminals to prison.

Text messages can be obtained by law enforcement with a search warrant based upon probable cause to examine the contents of a cell phone. If I were still a prosecutor, I would probably seek search warrants for contents of cell phones in a lot of cases.

In the civil context, however, we do not have that option. We cannot get search warrants in civil cases. Cell phone service providers, e.g., AT&T, Verizon, etc., typically do not keep text messages in the system more than perhaps 72 hours.

The only way to obtain those in a civil case is to obtain a court order for a forensic download of the phone. In addition to records of voice calls placed and received (though not the content of the calls, and text messages, forensic examination of wireless devices such as cell phones can reveal patterns of conduct and communication, including the times that the driver was using an app, typing a text, or watching a video.  It has location history for the phone, showing where the driver was at various points in time.  It includes calls, texts and emails between the driver and the trucking company.  It may include records of communications with employer personnel inconsistent with prudent driver supervision by a motor carrier regarding fatigue management.

Parties opposing forensic download of a cell phone may assert claim of personal privacy. However, where the cell phone user killed someone, that fact may outweigh personal privacy. A trial court judge would be justified in ordering the download subject to a protective order limiting delicate personal information to use in the case after in camera review by the court.

Ken Shigley was an Assistant District Attorney in Paulding County in the last 1970’s. he is a past president of the State Bar of Georgia, past chair of the State Bar’s Tort & Insurance Practice Section, past chair of the Georgia Insurance Law Institute, past chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a member of the board of governors of the Academy of Truck Accident Attorneys. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (Thomson Reuters West, 2010-2018). His law practice is focused on catastrophic injury and wrongful death including those arising from auto accidents, commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries. 

This morning on her way to work, a paralegal in our office was injured when someone rear-ended her car on the way to work. When she was waiting for a CT scan in the hospital emergency department, she sent us a text reporting that she had already been called on her cell phone by two “runners” to solicit her for unidentified lawyers. Apparently someone in the police department, ambulance service or hospital had corruptly sold her personal information to someone who was willing to commit a crime and a disbarment offense to solicit her for a case. I asked if she would like to participate in a “sting” investigation to get those lawyers disbarred.

Here are the two things you may do after such a solicitation to help stamp out this predatory practice:

1. Contact Paula Frederick, General Counsel of the State Bar of Georgia
   [paulaf@gabar.org, (404) 527-8720]  This is a disbarment offense but no cases are made without someone filing a grievance, so offer to participate in an investigation and to file a grievance.
2. Contact the District Attorney or Solicitor General in the county where the solicitation occurred. Find Your Prosecutor.  Offer to participate in an investigation of the criminal offense and to testify.

Too many times during my career, I have been asked to take over cases that were already ruined  through mishandling by bottom feeding lawyers who solicited the cases in clear violation of Bar ethics rules, either directly or through a “runner” or a chiropractor. By the time those clients fired their original lawyers and came to me, great damage had been done to their cases. Sometimes I was able to salvage a respectable case, but often those cases were “FUBAR” (WWII era military acronym for “fouled(?) up beyond all recognition”).

And too many times, I have had calls from injured people who said they wanted to get a “real lawyer” rather than the idiots who were calling them on the phone to solicit them a day or two after a wreck.

After the Georgia Southern University nursing student tragedy in 2015, I published an op-ed in the Daily Report, “Victims’ Families Need Time to Grieve, Should Report Ambulance Chasers.”

All too often I hear of injury victims who were directly solicited by phone or in a hospital by “runners” working for unethical, bottom-feeding lawyers. If you or a loved on is solicited after suffering an injury, you should know that any lawyer who participates in that sort of solicitation is subject to disbarment if caught.

Georgia Rule of Professional Conduct 7.3 provides, in part, as follows:

(d) A lawyer shall not solicit professional employment as a private practitioner for the lawyer, a partner or associate through direct personal contact or through live telephone contact, with a non-lawyer who has not sought advice regarding employment of a lawyer.

Solicitations of accident victims by mail are improper within the first 30 days after the injury. Rule 7.3 also provides:

(a) A lawyer shall not send, or knowingly permit to be sent, on behalf of the lawyer, the lawyer’s firm, lawyer’s partner, associate, or any other lawyer affiliated with the lawyer or the lawyer’s firm, a written communication to a prospective client for the purpose of obtaining professional employment if: . . .

(3) the written communication concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the mailing of the communication;

The maximum penalty for a violation of  Rule 7.3 is disbarment.

This stain on the legal profession is not limited to Georgia. In some states there have been damage suits against lawyers who use “runners” on the basis of violation of Fair Business Practice statutes. In Florida, the Attorney General issued a statewide grand jury report on the fraudulent practices involved with solicitation of injury victims by “runners.” Texas recently passed a law attacking this practice as “barratry.” Another approach could be to make any fee contract obtained through use of runners voidable at any time in order to reduce the financial incentive, but that too could be subject to abuse by clients falsely claiming at the time of settlement that a runner was involved in order to extort an innocent lawyer in to giving up an honestly earned fee.

Respectable plaintiffs’ personal injury lawyers across the country have almost universally condemned this insidious practice of solicitation of cases through runners.

However, bottom feeding lawyers who were not concerned about their professional reputation have felt free to violate this rule. Because people who are solicited either hang up immediately, or are too unsophisticated and naïve to recognize a problem, there has been hardly any way to prosecute the cases. It is very difficult to do make these cases without a sting investigation, which the Bar’s general counsel has not felt equipped to do. The main “runner” case for which there has been bar discipline in recent years came about only when federal agents executed a search warrant at a law office, found the “runner book” and turned it over to the State Bar.

Therefore, as State Bar president, I pushed to provide training for State Court solicitors, law enforcement and hospital attorneys on how to carry out these investigation. I appointed a committee to address the problem, and included former FBI agents, State Court solicitors and hospital counsel. While we passed a tweak of lawyer advertising rules, which were approved by the Supreme Court two years later, we were unable to get overburdened law enforcement agencies or prosecutors interested in making these cases.

One of the things I tried to attack during my term as State Bar president was the use of “runners” to unethically solicit people who have been involved in car wrecks. I appointed a committee to explore options for attacking the problem. However, vigorous prosecution of these cases would require an effective sting investigation, which as a former prosecutor I was willing to attempt. However, that is something with which the Bar’s general counsel has never felt comfortable. Sting investigations could be undertaken by law enforcement, but they are reluctant to commit resources for such investigations when the criminal offense is only a misdemeanor. Thus, I eventually came to the conclusion that the only way to get meaningful enforcement is to make it a felony.

In 2014, the legislature took a stab at it, making the second offense a felony. HB 828 passed at the close of the session on March 20th. While I was not involved in drafting this bill, I did have conversations on the topic several months ago with one of the lead sponsors.  Its bipartisan sponsors include Rep. Wendell Williard (R-Sandy Springs, chair of House Judiciary Committee), Rep. Ronnie Mabra (D-Fayetteville), Rep. Dustin Hightower (R-Douglasville), Rep. Trey Kelley (R-Cedartown), Rep. Calvin Smyre (D-Columbus) and Rep. Pam Stephenson (R-Atlanta). The Senate sponsor was Sen. Hunter Hill (R- Atlanta).

This bill enacts a new Code Section 33-24-53 to read as follows:

(a) As used in this Code section, the term:

(1) ‘Capper,’ ‘runner,’ or ‘steerer’ means a person who receives a pecuniary benefit from  a practitioner or health care service provider, whether directly or indirectly, to solicit,  procure, or attempt to procure a client, patient, or customer at the direction or request of,  or in cooperation with, a practitioner or health care service provider whose purpose is to  obtain benefits under a contract of insurance or to assert a claim against an insured or an  insurer for providing services to the client, patient, or customer. Capper, runner, or steerer shall not include:

(A) Any insurance company or agent or employee thereof who provides referrals or recommendations to its insureds; or

(B) A practitioner or health care service provider who procures clients, patients, or  customers through the use of public media or by referrals or recommendations from  other practitioners or health care service providers.

(2) ‘Practitioner’ means an attorney, health care professional, owner or partial owner of a health care practice or facility, or any person employed or acting on behalf of any of the individuals in this paragraph.

(3) ‘Public media’ means telephone directories, professional directories, newspapers and other periodicals, radio and television, billboards, and mailed or electronically transmitted written communications that do not involve in-person contact with a specific prospective client, patient, or customer.

(b) Except as provided for in paragraph (5) of subsection (a) of Code Section 50-18-72, it is unlawful for any person in an individual capacity or in a capacity as a law enforcement officer, law enforcement records staff member, wrecker services staff member, emergency staff member, physician, hospital employee, or attorney to solicit, release, or sell any information relating to the parties of a motor vehicle collision for personal financial gain. This subsection shall not apply to mass public media advertisement and solicitation.

(c) It is unlawful for:

(1) Any person in an individual capacity or in a capacity as a public or private employee or any firm, corporation, partnership, or association to act as a capper, runner, or steerer  for any practitioner or health care service provider. This paragraph shall not prohibit an attorney or health care provider from making a referral and receiving compensation as is permitted under applicable professional rules of conduct; and

(2) Any practitioner or health care service provider to compensate or give anything of value to a person acting as a capper, runner, or steerer. It is also unlawful for any capper, runner, or steerer to recommend or secure a practitioner’s or health care service provider’s employment by a client, patient, or customer if such practitioner or health care service provider obtains or intends to obtain benefits under a contract of insurance or asserts a claim against an insured or an insurer for providing services to the client, patient, or customer.

(d) Any natural person convicted of a violation of this Code section shall, on the first offense, be guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment of not less than 30 days and a fine not to exceed $1,000.00. Any natural person convicted of a second or subsequent violation of this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment of not more than ten years and by a fine of not more than $100,000.00 per violation.”

SECTION 2.

Code Section 50-18-72 of the Official Code of Georgia Annotated, relating to when public disclosure of records is not required, is amended by revising paragraph (5) of subsection (a)  as follows:

“(5) Individual Georgia Uniform Motor Vehicle Accident Reports, except upon the  submission of a written statement of need by the requesting party to be provided to the  custodian of records and to set forth the need for the report pursuant to this Code section;  provided, however, that any person or entity whose name or identifying information is  contained in a Georgia Uniform Motor Vehicle Accident Report shall be entitled, either  personally or through a lawyer or other representative, to receive a copy of such report;  and provided, further, that Georgia Uniform Motor Vehicle Accident Reports shall not  be available in bulk for inspection or copying by any person absent a written statement  showing the need for each such report pursuant to the requirements of this Code section.

For the purposes of this subsection, the term ‘need’ means that the natural person or legal entity who is requesting in person or by representative to inspect or copy the Georgia Uniform Motor Vehicle Accident Report:

(A) Has a personal, professional, or business connection with a party to the accident;

(B) Owns or leases an interest in property allegedly or actually damaged in the accident;

(C) Was allegedly or actually injured by the accident;

(D) Was a witness to the accident;

(E) Is the actual or alleged insurer of a party to the accident or of property actually or allegedly damaged by the accident;

(F) Is a prosecutor or a publicly employed law enforcement officer;

(G) Is alleged to be liable to another party as a result of the accident;

(H) Is an attorney stating that he or she needs the requested reports as part of a criminal  case, or an investigation of a potential claim involving contentions that a roadway,  railroad crossing, or intersection is unsafe;

(I) Is gathering information as a representative of a news media organization; provided, however, that such representative submits a statement affirming that the use of such accident report is in compliance with Code Section 33-24-53. Any person who knowingly makes a false statement in requesting such accident report shall be guilty of a violation of Code Section 16-10-20;

(J) Is conducting research in the public interest for such purposes as accident prevention, prevention of injuries or damages in accidents, determination of fault in an accident or accidents, or other similar purposes; provided, however, that this subparagraph shall apply only to accident reports on accidents that occurred more than 60 days prior to the request and which shall have the name, street address, telephone number, and driver’s license number redacted; or

(K) Is a governmental official, entity, or agency, or an authorized agent thereof, requesting reports for the purpose of carrying out governmental functions or legitimate governmental duties.

What to do if you or a loved one is directly solicited for a personal injury or wrongful death case:

Would you really want your important case to be handled by a bottom feeding scumbag of a lawyer so unethical and desperate that he is willing to risk losing his license to practice law if he is caught in that solicitation?

If you receive such a solicitation, get the name and number of the caller and then immediately call the State Bar of Georgia Office of General Counsel  at (404) 527-8720, and offer to assist in investigation and file a grievance for violation of Rule 7.3.

Since this is also a criminal offense, report it to your local District Attorney.

The State Bar needs to enforce the ethical rules and uphold virtue in the legal profession, but it cannot make strong disciplinary cases against such unethical lawyers without evidence required to support a prosecution.

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Ken Shigley is a past president of the State Bar of Georgia, past chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section, a board-certified civil trial attorney of the National Board of Trial Advocacy, and lead author of Georgia Law of Torts: Trial Preparation and Practice. He may be reached at 404-253-7862 or ken@shigleylaw.com. Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018.

Lawyers and paralegals who had previously worked at personal injury firms that advertise heavily on television, billboards and bus placards have told me many tales about the business model of those firms.

They have told me how lawyers may be responsible for 600 cases at a time, with 100 or more in litigation.

They have told me how young lawyers in some of those firms are paid only for work on cases they settle before suit, so they have an extreme vested interest in taking whatever an insurance adjuster is willing to offer at that early stage, selling the client’s interest short. They have told me how in some firms non-attorneys employees actually negotiate with claims adjusters with no substantial attorney involvement. They have told me how those firms threaten clients that if they do not accept the insurance company’s pre-suit offer, they may be required to pay the other side’s attorney fees, long before suit is filed or the defense invokes the “offer of judgment” rule that would make that even theoretically possible.

That is a business model but not the practice of law as I know it. Every time I have accepted a case after a client left one the the big advertising firms, I have found that with moderate amount of real lawyer work, I have been able to increase the recovery 8 to 10 times beyond what a lawyer or paralegal at the prior firm had been pressuring the client to accept. It appeared that the case handling strategy at those firms was “sign ’em and flip ’em.”

“Run-of-the-Mill Justice” by Stanford Law professor Nora Freeman Engstrom, published in Georgetown Journal of Legal Ethics in 2009, analyzed the practices of “settlement mill” law firms — those that “advertise aggressively, sign a higher percentage of callers to contract, delegate more duties to non-lawyers, file fewer lawsuits, and take far fewer cases to trial” than legitimate law firms and attorneys.

Over the past three decades, no development in the legal services industry has been more widely observed and less carefully scrutinized than the emergence of firms I call “settlement mills”—high-volume personal injury law practices that aggressively advertise and mass produce the resolution of claims, typically with little client interaction and without initiating lawsuits, much less taking claims to trial. Settlement mills process  tens of thousands of claims each year. Their ads are fixtures on late-night television and big-city billboards.

These settlement mills differ from conventional law practices because they settle everything, and do so without the negotiator having the benefit of “(1) first-hand information about verdicts obtained in comparable cases, (2) detailed information about the intricacies of the particular claim, and (3) the proven willingness and ability to take the claim to court.”

Settling all cases  — including the catastrophic cases —  cheaply in relation to the value the cases would have at trial, the settlement mills lack the ability to credibly move cases to jury trial, but offer insurance companies quick, cheap settlements.

Attorneys at settlement mills handle an extraordinarily high number of cases, necessarily treating them in “cookie cutter” fashion. Consequently, they spend “little time engaged in legal research, investigating claims, and preparing pleadings.” The article reports that “one Georgia settlement mill attorney reports that she personally settled approximately 600 to 700 claims in a thirteen-month span.” That is absolutely consistent with what I have been told by a number of lawyers who had left such firms.

Client screening and even settlement negotiations are delegated to non-lawyers. Cases may go from intake to settlement without any attorney contact. That is consistent with what paralegals who once worked at such firms have told me.

Many of these settlement mills seldom file suit or investigate cases, and almost never take a case to trial or refer to a firm that is capable of doing so.

Negotiations with insurance adjusters may take no more than ten minutes, and then clients are pressured to take whatever it offered. (Thus the slogan “one call that’s all” may be literally true — one call to the insurance company is all you get.)

Such settlement mills prey upon uneducated and unsophisticated people who don’t know any better than to respond to heavy TV advertising. Since TV advertising lawyers are stigmatized among lawyers and judges, the attorneys in those firms no longer feel bound by a need to maintain good reputations in the profession. Thus, there is no need to do good work for clients in order to maintain a strong reputation among other attorneys. If a lawyer relies solely upon heavy advertising to produce clients, reputation and relationships do not matter. All they need is a heavy advertising budget and a steady flow of unsophisticated, unsuspecting clients to sell down the river.

They negotiate claims on the basis of formulas that have little to do with the value of cases if they were taken to trial.

The article concludes that insurance companies like settlement mills because they settle quickly and cheaply, even in catastrophic cases, without litigation.

Bar organizations can do little about law firms that operate in this manner because federal courts bar tough regulation of legal advertising. Their operations operate “under the radar” because most of them almost never file their cases in courts. They are the kudzu of the legal system, operating in a manner generally contrary to the interest of their clients and the public, and just as hard as kudzu to limit.

Ken Shigley is a past president of the State Bar of Georgia (2011-12) and past chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section (2015-16).  He is one of only 18 Georgia lawyers with double board certification in Civil Trial Advocacy and Civil Pretrial Advocacy, and lead author of Georgia Law of Torts: Trial Preparation and Practice (Thomson Reuters, 2010 – present).    Mr. Shigley has extensive experience representing parties in trucking and bus accidents,   products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases.  Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018.

Every summer there are far too many instances of children dying when left in a hot vehicle. One such tragedy involving a child care center without adequate insurance led to a claim against a city government for negligent licensing of the child care center.

Many child care centers in Georgia have no liability insurance because child care centers in Georgia are not required to carry any specific amount of liability insurance. The regulations governing Family Child Care Learning Homes require only “notification of the absence of a liability insurance policy sufficient to protect its clients,” though the amount of insurance that would be  sufficient is never defined. The Rules for Child Care Learning Centers require only that a program seeking an  exemption from licensure “shall comply with the requirements regarding notification to parents of enrolled children if the program does not carry liability insurance.” Parents are asked to sign an acknowledgment that the center “does not carry liability insurance sufficient to protect my children in the event of an injury, etc.”

When I was chairman of the board of directors of a non-profit, church-based child development center, we carried substantial liability insurance, adopted strict policies and procedures, and installed state of the art security technology. We were a rare exception.

If a child is badly injured or killed in many Georgia child care centers, the absence of liability insurance is likely to leave the family without any effective legal recourse.

In the recent case of Calloway v. City of Warner Robins, 336 Ga.App. 714, 783 S.E.2d 175 (2016), a three-year-old child died of heat stroke when left in a hot vehicle for several hours while in the care of workers a child care center. Lacking effective recourse against the child care center and its employees, the parents included as defendants the City of Warner Robins and the city clerk for negligence in issuance of a business license without following certain procedures.

The Court of Appeals (McFadden, J.), held that the city was protected by sovereign immunity because a “municipality’s act of granting or revoking a business license constitutes a governmental function,” even if the issuance of the license was negligent.  Likewise, the city clerk who was sued only in his official capacity was protected by sovereign immunity.

From time immemorial the doctrine of sovereign immunity has restricted citizens’ rights to seek legal redress against the government for its wrongdoing. Georgia has subscribed to the doctrine of sovereign immunity since 1784, when it was adopted by statute from the common law of England. The concept of sovereign immunity is a carryover from the quaint legal fiction that “the King can do no wrong,” which survived the transition from individual absolute sovereign to representative democracy. Limiting the governmental treasury’s exposure to tort liability is the more contemporary justification for the rule.

Whatever the rationale, through most of Georgia’s history, the state enjoyed almost complete immunity for the wrongs of its agents. Sovereign immunity is recognized to be “a harsh doctrine, not an equitable one.” Indeed, it is just the opposite of equity–it is the state declaring that it cannot be sued even where it would otherwise be liable.

The extent to which governmental entities receive the protections of sovereign immunity varies, depending on the type of entity involved and the type of negligence claimed. Generally speaking, the state is subject to a broader waiver of sovereign immunity than counties and municipalities, with the prevailing law being that the state waives immunity unless liability is specifically excluded by the Georgia Tort Claims Act.

The inverse is true of counties and municipalities, which require a specific statutory waiver before they can be liable. In addition to the government’s own immunity, government officials enjoy personal immunity for their allegedly wrongful acts, referred to as official, or qualified, immunity, which is not absolute, but protects them from the burdens of liability and litigation in many circumstances.

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Ken Shigley is a past president of the State Bar of Georgia, past chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy. His statewide law practice is based in Atlanta.

No matter how many years a lawyer has practiced, there is no end to the need for exposure to bright new ideas from the best lawyers around the United States.

Over the past year, I had the opportunity to serve as chair of the Motor Vehicle Collision, Highway and Premises Liability Section of the American Association for Justice (AAJ). The largest section of AAJ, it encompasses the work of most “meat and potatoes” personal injury and wrongful death lawyers in America.

The section includes over 2,500 trial lawyers in all 50 states and specialized litigation groups on trucking litigation, bus litigation, traumatic brain injury (TBI), spinal cord injury (SCI), motorcycle litigation, bicycle litigation, resorts torts litigation and inadequate security litigation. The section and its litigation groups have active listservs for exchange of bright ideas.

Having worked for decades in all of these areas of personal injury litigation, chairing the section for a year was like a year of graduate school in my practice area.

After I became chair last year in Montreal, we sponsored national continuing legal education programs in New Orleans and Los Angeles, and I was moderator of an advocacy seminar at Boca Raton.  Presentations in our programs in the past year in seminars at Montreal, Boca Raton, New Orleans and Los Angeles included:

• Accident Investigation and Reconstruction in Motor Vehicle Cases
• Bus Cases Are Different From Auto Cases: Investigation and Evidence
• Cross-Examination of A Defense Medical Examiner, With Rules Of The Road™
• Daubert Motions In Motor Vehicle And Premises Cases
• Industry Standards: Evidence of Negligence in Premises Liability Cases
• Investigation and Discovery in a Sexual Assault Case
• Liability and Causation Defenses in the Typical Auto Case
• Rules Of The Road for Security and Violent Crime Cases
• Trying Better, Faster, And Cheaper!
• Twenty-Minute Auto Wreck Case Voir Dire
• Why I Handle Negligent Security Cases
• Greyhound’s “Most Precious Cargo”
• Making Small Cases Big Cases
• Eliminating the Soft Tissue Myth: Spine Injuries Are Serious
• Deposition
• Practicing In Multiple States
• Using Social Network Sites in Trucking and Motor Carrier Cases
• Trying High-Profile Motor Vehicle and Premises Cases
• Self-Driving Cars and Crash Avoidance Systems: The Future of Car Crashes
• Truck Crash Litigation For The Car Crash Lawyer
• Safe Or Scary: Negligent Security In Schools, Colleges, And Day Care
• Effects And Ethics Of Social Media In A Personal Injury Case
• Taking Down The Defense Medical Examiner
• How To Zealously Represent Victims Of Sexual Assaults While Protecting Your Client
• Auto Defect Cases: The Future Of Your Auto Practice

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Ken Shigley is a past president of the State Bar of Georgia, past chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy. His statewide law practice is based in Atlanta.  Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018.

When I started practicing law in 1977, hardly anyone but TV stations had video cameras, which at the time were heavy, tripod-mounted and extremely expensive. The idea of being able to play a video recording of an event in court would have seemed like science fiction if anyone had been so fanciful as to suggest  it.

But today investigation of any serious injury or wrongful death case involves a hunt for video recordings from a variety of sources. We hardly could not have imagined this in my early days as a prosecutor.

In 1983, the first consumer camcorders began to appear. They were big, shoulder-held devices that recorded on large VHS cassettes. We had one of those to make video of our children when they were small. By the 1990s, compact digital tape technology became the dominant format. Formats continued to evolve until now cheap, compact, solid state video recording devices are incorporated into ubiquitous smart phones. While I seldom use the video recording feature on my iPhone, I discovered in a pinch that I could video record an hour-long doctor’s deposition on my phone.

Now the checklist for investigation of every significant case includes the search for video recordings as well as still photos from a wide variety of sources. Some include:

• 

  Police dashcam video. We routinely send an open records request for dashcam video from police vehicles. We recently concluded a case in which the Georgia State Patrol dashcam camera recorded a trooper’s questioning of a truck driver through an interpreter. On that video, he admitted that he had been on the phone and did not see the line of stopped vehicles before he ran over them, killing three people. Through phone records we determined that he was on the phone for 25 minutes with someone in South America. In another case, we have video of the defendant driver’s field sobriety test, resistance of arrest and refusal to submit to a blood alcohol test. That’s all golden.
• Police bodycam video. Good police officers love body cameras that

  

  corroborate what they report and save them from false accusations about their conduct. In one case, we obtained bodycam recordings of a truck driver who killed five people admitting before he “lawyered up” that, “I must have fell asleep.”
• Truck and bus cameras. A growing number of trucks and buses have Drivecam or similar video units recording what happens inside a truck cab or bus. Like a store security video camera, it can protect the company from allegations when the driver did nothing wrong. But the evidence can be impressive when it works for the victims of negligence. We have a case in the office now in which video inside a bus in another state clearly demonstrates a driver’s negligence.
• Inside security surveillance video. Video can make or break an injury claim. When a golf cart in an airport terminal mowed down a woman in the concourse, we immediately sent an open records request for surveillance video in the area where it happened.  Two cameras caught from different angles the golf cart speeding through the concourse and crashing into our client without warning. That eliminated all potential defenses on liability, which surely would have been hard fought. On the other hand, when a potential client came to me with a story of how his leg was broken at a “big box” home improvement store, I contacted the chain’s general counsel and suggested that we look at the video together. I went to their office, sat down in the law department office and watched the video of the incident. It was obvious that my potential client’s story was, to put it mildly, inaccurate. It saved me a lot of time and trouble.

• 

  Outside security cameras. Urban areas are increasingly blanketed with surveillance cameras. This was highlighted after the Boston Marathon bombing when the bombers were caught on numerous cameras. When we are hired early enough, we check out the surrounding area for cameras that might have inadvertently recorded anything of interest. Security cameras on stores, shopping centers, service stations, banks, ATM machines, etc. are of potential interest. In one of our cases, a security camera on a nearby store recorded not the crash itself but the last moments leading up to it.
• Public safety surveillance cameras. A higher level of video surveillance is operated by city governments and even the Department of Homeland Security. When a serious accident happens in a critical area of a city or in the national transportation infrastructure, we send an Open Records Act (state) or Freedom of Information Act (federal) for production of video recorded in the minutes surrounding the incident.People often ask if we can retrieve video from DOT traffic monitoring cameras, but they consistently deny that any recordings are retained. Usually we don’t get anything useful from any of the public surveillance systems, but when we do it can be really good stuff.
• Camera phones. Years ago, we would check with firemen who might have carried disposable cameras in their pockets when responding to major crashes. That led to discovery of some extremely dramatic scene photography. Now, in an era when virtually anyone at the scene is likely to have a cell phone that includes both still and video camera capabilities, investigation can include a broad search for individuals who may have recorded clips for themselves. That is a difficult search.

The downside of all this is that jurors may expect to see video in every case, much as TV shows like CSI lead some to expect DNA evidence in every case. Sometimes it is there, sometimes not. But jurors should understand the absence of particular forms of evidence does not preclude finding proof by a preponderance of evidence.

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Ken Shigley is an Atlanta trial attorney focused on serious personal injury and wrongful death cases. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of theInstitute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy.

Atlantans were shocked a couple of weeks ago by the story of a home invasion robbery attempt in which teenage males approached a young father on his front porch, forced their way into the house and shot the father twice. His wife fled out the back door with their six-month-old infant while the invaders fired shots at her, and called 911 while hiding from them.

The alleged shooter, 18-year-old Brandon Jerome Smith, was arrested several days ago. Now three younger teenagers — 15-year-old Trequan Sutton, 15-year-old Quindarius Slade, and 14-year-old Veshawn Smith — have turned themselves in. They are being charged as adults for  charges, including armed robbery, home invasion, aggravated battery, aggravated assault with a deadly weapon, cruelty to children and theft by taking.

Any prosecutor and judge addressing this case will make sure these thugs are locked away for a long time. As a young prosecutor years ago, I would have relished the opportunity to introduce them to the prison system. They have thrown their lives away in a senseless act for nothing. Perhaps it was a gang initiation. Perhaps something else. But it was surely a senseless waste of human potential. They are fortunate they did not succeed in killing anyone, as easily could have happened.

As a father, I wonder where their parents were and what kind of parental influence results in young men thinking this kind of conduct is even marginally acceptable. I know that good parents can have kids who get involved in drugs and go off track. But violent home invasion, shooting a father on his front porch and trying to shoot a mother with a baby in her arms? That’s not just off track. That is deeply evil.

These young men will pay a severe price for their horribly bad choices. They will be behind bars for the next 10 to 20 years, tragically wasting their lives. It is too late to take away what they did.

But what about the parents who abdicated any responsibility for guidance and discipline? Georgia law does provide a limited degree of parental accountability for parents of  young thugs who should reap some of the consequences along with the sons they failed to raise.

O.C.G.A  § 51-2-3 provides for liability of parent or guardian for willful torts by minor children as follows:

(a) Every parent or guardian having the custody and control over a minor child or children under the age of 18 shall be liable in an amount not to exceed $10,000.00 plus court costs for the willful or malicious acts of the minor child or children resulting in reasonable medical expenses to another, damage to the property of another, or both reasonable medical expenses and damage to property.

(b) This Code section shall be cumulative and shall not be restrictive of any remedies now available to any person, firm, or corporation for injuries or damages arising out of the acts, torts, or negligence of a minor child under the “family-purpose car doctrine,” any statute, or common law in force and effect in this state.

(c) The intent of the General Assembly in passing this Code section is to provide for the public welfare and aid in the control of juvenile delinquency, not to provide restorative compensation to victims of injurious or tortious conduct by children.

The three minors supposedly have six parents among them. Each of those six parents could be held liable for $10,000 plus court costs. Even if the victim has other resources to pay medical bills, each of the parents should be sued and then subjected to the most severe possible collection efforts to enforce the full amount out of whatever meager resources they may have.

I know from experience that parenting is hard. Poverty and race are not excuses; listen to Ben Carson on that topic. Single moms in poverty without education can raise good men who succeed. Even fathers in prison can try hard to influence their children not to follow their bad example.

Someone should hold their feet to the fire and squeeze out of them every dime of $10,000 per parent to help defray the medical expenses, even if it requires garnishing the prison cigarette accounts of absentee fathers.

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Ken Shigley is an Atlanta trial attorney focused on serious personal injury and wrongful death cases. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of theInstitute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy.

Almost all personal injury and wrongful death cases in the United States are handled on a contingent fee basis. That means that the lawyer is paid only in proportion to the amount recovered for the client. If there is no recovery, the lawyer is not paid. If money is recovered from the other side, the lawyer is paid an agreed percentage of that recovery plus reimbursement of the lawyer’s out of pocket expenses.

Years ago, when I was handling business-to-business commercial collection cases for small businesses in my hometown, I always gave those business clients the option of paying me by the hour or a percentage of the amount I collected. They always chose the percentage, even though I repeatedly made an effective hourly rate many times what they would have paid me if they had taken the other choice. But they still chose the percentage fee every time.

Many times I have offered new clients in personal injury and wrongful death cases the option of paying my hourly rate every month rather than a percentage of the recovery payable out of the check from the insurance company at the end of the case. Because nobody has ever taken me up on that, I quit mentioning the option.

There are at least four advantages of contingent fees.

1. The contingent fee is the one device in law that gives injured people of moderate financial means a fighting chance in the courtroom against giant corporations and insurance companies. Hardly anyone dealing with the effects of a major injury could afford to pay an experienced lawyer $200 to $400 per hour or more for a couple of years of challenging litigation.
2. Contingent fees help to weed out cases that lack substantial merit. Experienced lawyers will not waste their time on a lawsuit that does not have enough merit to justify investment of their time. We may take a calculated risk on hard cases where there is an intellectually honest but untested legal theory. However, any lawyer who repeatedly bets on cases that have no value may soon go broke.
3. Contingent fees perfectly align the lawyer’s incentive with results for the client, and the lawyer’s pay is directly proportional to results obtained for the client. A lawyer who knows she will not be paid unless successful is highly motivated to get the optimal result for the client. By contrast, an hourly fee arrangement can encourage delay, inefficiency, and unnecessary action unless there is an incentive to earn future business from the same client. When law firms set billable hour quotas, the incentives often do not align with client outcomes.
4. Expenses of litigation as well as fees can be prohibitively high for injury victims. Lawyers who work for contingent fees typically also advance the expenses of litigation (filing fees, accident reconstruction, expert witnesses, court reporters, videographers, medical illustrations, exhibit preparation, travel costs, etc.), knowing that most clients are unable to do so, and are reimbursed for the costs out of money recovered for the client. Experienced in the rough estimation of costs and benefits, and knowing they will get that money back only if they win for the client, sensible lawyers are motivated to be prudent and spend only as much as necessary.

Contingent fee percentages vary among lawyers and types of cases, but a range of 33 1/3% to 40% is typical. Occasionally, a lower percentage may be offered for cases subject to early resolution and higher percentages may be justified when cases are especially risky or involve appeals after trial.

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Ken Shigley is an Atlanta trial attorney focused on serious personal injury and wrongful death cases. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of theInstitute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy.

The “laying on of hands” can resonate powerfully. In my background, it has spiritual and theological implications as a ritual of blessing or of healing. Can this and other senses beyond sight and hearing also be part of legitimate trial advocacy in conveying truth to jurors?

The Georgia Court of Appeals recently said yes in the context of a case where two experts disagreed on whether there was a difference in temperature of the hands of a plaintiff who had a diagnosis of complex regional pain syndrome (also known as reflex sympathetic dystrophy), due to medical malpractice. (Kudos to Lloyd Bell who ably tried the case and called me to brainstorm about this while the appeal was pending.)

In Piedmont Newnan Hosp., Inc. v. Barbour, — S.E.2d —-, 2015 WL 4316873 (Ga.App.,2015), decided on July 16, 2015, the trial judge allowed jurors to feel the hands of the plaintiff to decide whether there was a difference in temperature. The plaintiff’s expert had testified that such a difference in temperature between the hands was a diagnostic criteria for CRPS. The defense expert said there was no such difference in temperature. The judge let jurors hold the hands and decide for themselves whether there was a temperature differential. The result was a substantial verdict for the plaintiff.

On appeal, the court rejected defense arguments that the trial judge abused his discretion by allowing jurors to make a medical diagnosis, that it made them witnesses who could not be cross-examined, that the exercise had no probative value, and that such a practice has been rejected by other courts around the country.

Federal Rule of Evidence 401 (O.C.G.A. § 24–4–401) states that relevant evidence is evidence that has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Temperature of the hands was indisputably relevant to deciding whether the plaintiff had CRPS.

The court discussed cases from other states in which jurors were allowed to use touch, taste and smell to determine facts. This included cases where they were allowed to feel a lump in a plaintiff’s arm, fractured skull, arms and legs to determine temperature differentials, and other body parts. The court also cited favorably two old Georgia moonshine cases, Union v. State, 7 Ga.App. 27, 27(4), 66 S.E. 24 (1909) (no error if jurors tasted liquid from jug admitted into evidence in illegal whiskey trial); Morse v. State, 10 Ga.App. 61, 63(3), 72 S.E. 534 (1911) (jurors may utilize all of their senses, including taste and smell, in determining whether liquid was an intoxicating liquor).

What are the implications of this ruling for trial advocacy? How else can lawyers find ways to allow jurors to use all their senses in the search for truth? And how much would be too much, overreaching to the point of turning off judges and jurors?

Consider all the senses and think outside the box. Traditionally, we think of “five senses” — sight, hearing, touch, smell, and taste – a short list credited to Aristotle. But researchers now have expanded the list to 21 senses:

• Sight:  This really includes is two types of seeing based on two distinct types of receptors present, one for color (cones) and one for brightness (rods).
• Taste:  Again, this may be broken down into five types of taste based on different taste receptors — sweet, salty, sour, bitter, and umami. The taste sense, unlike sight, is a sense based off of a chemical reaction. “Umani” is Japanese for pleasant savory taste, when receptors detect the amino acid glutamate, generally found in meat and some artificial flavoring.
• Smell:  Like taste, the sense of smell involves olfactory sensors that work off of a chemical reaction.  Smell combines with taste to produce flavors. Olfactory memory can be powerful and closely linked to deep emotional response. Think of how often your own memories are linked to smells – cookies baking in your grandmother’s kitchen, the smells of nature in a favorite place, etc.
• Touch:  This involves four distinct types of touch sensors perceiving pressure, temperature, pain, and itching.
• Thermoception:  Apart from sense of temperature on touch, this is the ability to sense heat and cold in the environment and internally in the body.  It involves hot and cold receptors and a distinct brain function.
• Sound:  People with normal hearing detect vibrations along some medium, such as air or water that is in contact with ear drums.
• Proprioception:  This sense gives you the ability to tell where your body parts are, relative to other body parts.
• Tension Sensors:  Receptors in muscles allow the brain the ability to monitor muscle tension.
• Nociception (pain):  In the past, pain was though to be just the result of overloading other senses, such as “touch.” But now it is considered its own unique sensory system.  There are three distinct types of pain receptors: cutaneous (skin), somatic (bones and joints), and visceral (body organs).
• Equilibrioception (balance):   The sense that allows you to keep your balance and sense body movement in terms of acceleration and directional changes.  This sense also allows for perceiving gravity.  The sensory system for this is found in your inner ears and is called the vestibular labyrinthine system.  But some people who have lost both vestibular nerves, and thus do not have this sense at all, are able to compensate admirably by use of visual cues. For example, my daughter lost both auditory and vestibular nerves in the removal of neurofibromatosis tumors but has been able to complete triathlons. How do you swim over a mile, bike over 50 miles and then run a half marathon, with no sense of balance? Doctors at Harvard included her in a study to figure it out.
• Stretch Receptors:  These are found in such places as the lungs, bladder, stomach, and the gastrointestinal tract.  A type of stretch receptor, that senses dilation of blood vessels, is also often involved in headaches.
• Chemoreceptors:  An area of the medulla in the brain detects blood born hormones and drugs and controls the vomiting reflex.
• Thirst:  This monitors hydration and tells us when we need something to drink.
• Hunger:  We are all quite familiar with this one.
• Magnetoception:  This is the ability to detect magnetic fields, which is principally useful in providing a sense of direction when detecting the Earth’s magnetic field.  Humans don’t have as much of this as birds that migrate following magnetic fields. But humans do have some sense of magnetoception, though it is poorly understood.
• Time:  Human perception of time varies widely, and may be more accurate when people are younger rather than older. People with brain damage often lose the ability to keep track of time. Others seem to have a biological alarm clock and habitually wake up ten minutes before the time they set on an electronic or mechanical alarm clock. Researchers have determined that the mechanism we use for sensing time involves the cerebral cortex, cerebellum, and basal ganglia.

I am not smart enough to immediately think of appropriate ways to employ all these senses of jurors in trial advocacy. However, here are a few examples both commonplace and slightly outside of customary usage. Any lawyer tempted to try techniques that are not customary should seek the judge’s permission in advance and have a trial memorandum to show the judge that it really is OK to allow a slightly unconventional demonstrative aid.

• Smell. Olfactory memory can be emotionally powerful and a tremendous tool in persuasion.
  • Alcohol. If alcohol is at issue, one could use containers of the type of alcohol involved as demonstrative aids during closing argument, open and pour them while talking, thus filling the courtroom with the smell of beer or whiskey. I tried this in a mock trial at the Ultimate Trial Advocacy Course at Harvard years ago, but have never had the right occasion to try it in court.
  • Drugs. I started out as a prosecutor. It was not unusual to have officers testify about the smell of drug contraband. One could also give jurors the opportunity to smell a bag of marijuana, for example, as jurors were allowed to taste moonshine in old Georgia cases.
  • Charred materials. We sometimes have cases in which vehicles burned and the contents have smoky, charred aroma. A customary response is to just get photos of those things and keep the nasty smells out of our files and offices. But introduction into evidence of smelly remains from fires could powerfully reinforce the reality of the fire.
  • Chemicals. Where appropriate and with suitable precautions, jurors could be allowed to smell brake fluid, gasoline and other chemical that are involved in a case.
• Touch. As in cases cited by the Court of Appeals in Barbour, jurors may be invited to lay hands on the injured person to confirm aspects of any injury tactilely as well as visually. A possible side effect may be in forming a connection between jurors and the person they actually touch.
  • Rough scars. Discoloration from a laceration or burn may fade, but the skin remains uneven, bumpy or of an unnatural texture.
  • Unevenly healed fractures. Even when bones knit together, there may be a palpable lumpiness at the fracture site. Jurors could feel that.
  • Medical implants. If an injured person has some sort of medical implant palpable from the outside – plates and screws in an arm or leg, screws securing a rod in a femur, feeding tube, port for chemo, etc. – jurors might be invited to feel from the outside what is visible only on radiology images.

Perhaps lawyers more creative than I will think of ways to use others of those many senses for communicating the truth to jurors at trial. In doing so, however, lawyers should take care not to just develop a “bag of tricks” but to employ all the senses as a means of communicating truth.

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Ken Shigley is an Atlanta trial attorney focused on serious personal injury and wrongful death cases. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of the Institute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy.

With over 2,500 members nationwide, the section includes specialized litigation practice groups on Trucking Litigation, Bus Litigation, Traumatic Brain Injury, Spinal Cord Injury, Motorcycle Litigation, Bicycle Litigation, Resort Torts Litigation and Inadequate Security Litigation.

A primary function of the section is to provide high quality national continuing legal education (CLE) programs. Shigley appointed lawyers to be in charge of developing programs for meetings in Boca Raton (February 2016), New Orleans (April 2016) and Los Angeles (July 2016). The section will also seek to increase its offerings of highly focused webinar programs. Shigley has been a frequent speakers at Georgia and national CLE programs for more than 20 years. He has served as chair of the board of trustees of the Institute for Continuing Legal Education in Georgia and as a trustee of the Institute for Continuing Judicial Education in Georgia.

Shigley also appointed people to be in charge of generating contributions to the existing document depository, the section’s email listserv, newsletter and participation in the AAJ Political Action Committee on a bipartisan basis. He is recruiting state liaisons for each of the 50 states and District of Columbia to assist with these functions as well as a study of inflation adjustments in minimum auto insurance requirements in the states.

Other officers of the section are:

Chair-Elect – Wade F. Suthard (Elizabeth, NJ) Responsible for planning and coordinating continuing legal education programs.  He will become section chair at the July 2016 convention in Los Angeles.

Vice Chair – Kenneth H. Levinson (Chicago, IL) Responsible for promoting and growing the Section’s Document Library and Listserv.

Secretary – Matthew A. Nace (Washington, DC) Responsible for long range planning, updating of bylaws as well as traditional Secretary duties.

Newsletter Editor – Jennifer Leonhardt Ojeda (Atlanta, GA) Responsible for soliciting articles and content for the Section’s quarterly newsletter.

Parliamentarian – Jason Studinski (Plover, WI) Membership Coordinator: Responsible for coordinating membership drives and recruitment efforts. Responsible, with the Section Chair and AAJ staff, for informing all Section members about Section meeting, education programs, and events as well as all other relevant event information. PAC Coordinate state liaisons

Immediate Past Chair – Robert L. Collins (Houston, TX) Liaison with AAJ and Other Sections. (in particular, with the Litigation Group and Section Oversight Committee and the New Lawyers Section).

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Ken Shigley is an Atlanta-based attorney whose practice focuses on serious personal injury and wrongful death cases. He is past president of the State Bar of Georgia, a certified civil trial attorney of the National Board of Trial Advocacy and lead author of Georgia Law of Torts: Trial Practice and Preparation.

We have all seen drivers distracted by their electronic devices behind the wheel. The Federal Motor Carrier Safety Regulations now forbid interstate truck drivers from texting or talking on a hand held cell phone while driving. But recently we were hired in a multiple fatality crash on a Georgia interstate highway in which the truck driver admitted to police that he did not see the vehicles he hit because he was distracted by talking on his cell phone.

In January 2014, the National Transportation Safety Board released its 2014 Most Wanted List, the top 10 advocacy and awareness priorities for the agency for 2014, which include improving operational safety on mass transit, impaired driving, and distracted driving.

Included in this “top 10” list is to treat distracted driving like drunk driving.  Accident investigations and safety studies conducted by the NTSB in all modes of transportation underscore the dangers of using portable electronic devices while operating a car, train, plane or marine vessel. It is the hope of the NTSB that all instances of distracted driving will be treated in the same manner as driving under the influence. In addition to banning the use of these devices while driving the NTSB will continue education and company policies to help reinforce laws and regulations by explaining the dangers of distraction and what companies expect from their employees.

Occupant protection is also new to the Most Wanted list for 2014. While preventing accidents is always the goal, the NTSB says saving lives and reducing injuries in the event of an accident is also critical. Increasing the use of available occupant protection systems and improving crashworthiness to preserve survivable space can mean the difference between life and death.

Also new to the list this year is passenger vessel safety. Between 2000 and 2010, the NTSB has investigated several accidents involving passenger vessels. For decades, NTSB accident investigations involving passenger vessels revealed in numerous cases that the cause of an accident was not the failure of the vessel but the lack of good safety practices that led to the loss of life and injuries. It is the hopes of the NTSB that when these new safety measures are put into action there will be far fewer fatalities in the nation.

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.

Due to this growing problem, the National Highway Traffic Safety Administration has opened a compliance investigation into 34 recent model-year vehicle that defy the letter and intent of Federal Motor Vehicle Safety Standard 114. Vehicle conditions that allow the vehicle to be turned off in a gear other than park, allow the key fob to be removed from a running vehicle with no warning to the driver, and allow vehicles to be restarted without the key fob present are all at issue and, incidentally, are all conditions that Safety Research & Strategies informed the agency about in a 2010 meeting.

On January 28, the agency’s Office of Vehicle Safety Compliance sent information requests to major car manufacturers including Toyota, Ford, General Motors, Nissan, Mazda, Hyundai, and Kia. The requests sought information on how 2012 and 2013 model-year vehicles’ keyless ignition systems operate under different scenarios to determine if the Theft Protection and Rollaway Prevention Standard had been violated.

According to the National Highway Traffic Safety Administration (NHTSA), the investigation was started after a Ford recall (13V-475), for 23,000 Ford Focus vehicles, equipped with keyless starting systems that did not have an audible warning when the driver exited the vehicle. In September, Ford made the decision to recall, even though, “it was not determined that a non-compliance to FMVSS 114 Section 5.1.3 existed in these vehicles,” Ford noted in its Part 573 Notice of Defect and Noncompliance. Ford also added:

“While the applicability of this section of FMVSS 114 to keyless ignition systems is ambiguous, in the interest of Ford’s consistent cooperation with the agency, Ford will conduct a notification and remedy campaign to add a ‘key in ignition’ door chime to address the agency’s question with respect to requirements of FMVSS 114 Section 5.1.3 (Theft Protection).”

In this compliance probe, the agency asked for a host of details related to manufacturers’ keyless ignition systems, ranging from the electronic architecture of the systems, when the electronic code that makes up the NHTSA’s two-part system is purged from the system and the audio and visuals cues used to alert the driver that he or she has exited the vehicle. The NHTSA also asked for data from consumer complaints and the safety information manufacturers provide to their customers about keyless entry.

In December 2011 NPRM, the agency cited only a handful of complaints about the keyless entry feature on vehicles. However, a more recent search found more than 70 complaints in NHTSA’s VOQ database related to rollaway or carbon monoxide poisoning.

The most recently reported fatalities occurred in Greenville, South Carolina. Bill and Woo Thomaston died of carbon monoxide poisoning after apparently leaving their 2006 Toyota Avalon running in a basement garage. On June 9, police found the couple unconscious in the bedroom of their home. The battery and the fuel tank empty. The key fob was apparently still inside the vehicle.

In many vehicles, key slots and metal keys with indents have been replaced with plastic key fobs, containing an electronic code unique to a particular vehicle, and push-button ignitions. As these systems evolved, automakers in concert with NHTSA changed the definition of the key from a physical object to an invisible code.  Consumers, meanwhile, continued to regard the plastic fob as the physical key to the car. One cannot start a vehicle without the key fob however it plays no role in turning the vehicle off, and shutting down the engine doesn’t automatically lock a vehicle’s transmission into “park” as required by FMVSS 114. Drivers must execute a certain sequence of events such as move the transmission into park, push the ignition button, open and shut the driver’s door. As simple as this might sound to drivers, there are those out there who have not completed the sequence correctly and suffered the sometimes fatal consequences.

Twenty consumers complained that they had actually left the car running-on multiple occasions; six mentioned carbon monoxide poisoning as a possible danger. In addition, two deaths and two injury accidents were reported to the agency. There are nine known fatalities and four serious injuries related to keyless ignition carbon monoxide poisonings. The chief complaint was rollaway: 43 drivers reported rollaway incidents, resulting in four injuries; five other owners mentioned that carbon monoxide poisoning was a danger.

More consumers complained about the possibility of rollaways. Consumers reported four injuries and 33 rollaway incidents. Another five consumers mentioned that it was possible to shut off the vehicle without the transmission automatically locking in park. These complaints covered a wide range of vehicle models including Toyota RAV4, Camry, Prius, and Lexus ES, Hyundai Sonata, Volkswagen Passat, Routan and Tiguan, Nissan Altima and Murano, Buick Verano, and Pontiac Sunfire.  Of the 34 vehicles that were tested, 73 percent did not automatically lock the transmission in Park. Four GM models behaved as thought the key was still inside the vehicle even though the engine was no longer running and the transmission was in drive.

In December 2011, the agency opened a Notice of Proposed Rulemaking to again amend FMVSS 114. The agency’s proposal recognizes that the current keyless ignition systems have led to driver confusion, resulting in vehicles left running and/or out of the “park” position and the consequent rollaways and carbon monoxide poisonings. The NPRM pointed out, as did SRS more than a year prior, that the lack of standardization in combination with the lack of visual and tactile cues about the status of the vehicle engine has set the stage for the real world incidents in which drivers mistake the fob for the key, inadvertently leave the vehicle running and/or exit the vehicle without placing it into “park.”

The Final Rule is anticipated in 2015, the agency said.

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.