On a warm October afternoon two years ago, wearing one of the yarmulkes that Jewish funeral directors provide for non-Jewish attendees, I helped shovel red Georgia dirt into the open grave of an old client and friend. As I did so, I pondered the unanswered question whether long-term side effects of her food poisoning a quarter century earlier had contributed to her death after years of internal organ illnesses.

A recent decision of the Georgia Supreme Court on what is required to get a food poisoning case to a jury brought that grim saga back to mind.

In Patterson v. Kevon, 2018 WL 3965745, the Georgia Supreme Court unanimously ruled on .August 20, 2018 that circumstantial evidence was sufficient to allow a jury trial on a suit against a caterer for alleged food poisoning of guests. In doing so, the Supreme Court overturned a line of Court of Appeals authority that classified food poisoning cases as “a unique species of negligence cases” imposing a heavier burden upon the plaintiff to show proximate cause than that generally required of nonmovants on summary judgment.

Briefly summarized, the Pattersons became ill after eating food at a wedding rehearsal dinner prepared, catered, and served by Big Kev’s Barbeque. They sued for negligence, violation of the Georgia Food Act (OCGA § 26-2-20 et seq.), and products liability, alleging that the food at the dinner was defective, pathogen-contaminated, undercooked, and negligently prepared.

The caterer moved for summary judgment, showing that the Pattersons also consumed items prepared by others at the rehearsal dinner, such as dessert or alcohol, as well as improperly stored leftovers from the rehearsal dinner and food at the wedding reception the following day. In addition, the caterer showed that the Pattersons ate other meals, including fast food, and drove to Florida before Mr. Patterson began to feel ill, three days after the rehearsal dinner, and that Mrs. Patterson did not begin to feel ill until several days later. In addition, the caterer asserted that the owners of the event venue, their employees, and other guests who consumed the food did not become ill.

On the other hand, the Pattersons presented evidence that several people became ill with similar symptoms after eating the caterer’s food at the rehearsal dinner. Both Mr. Patterson and a guest at the rehearsal dinner who thecaterer’s  meal but did not consume food at the wedding reception, both tested positive for salmonella. Three other guests testified that they became ill at around the same time after eating at the rehearsal dinner. Four other people who became ill, including Mrs. Patterson, did not eat at the wedding reception, and other guests who became ill testified that they did not consume dessert, drinks, or leftovers. As many as 16 to 20 people became ill after the dinner.

The trial court granted summary judgment and the Court of Appeals affirmed 5-4, holding:

suits alleging illness from food poisoning that are based entirely on circumstantial evidence are a unique species of negligence cases, and our prior decisions have required plaintiffs in this context to bring forth evidence demonstrating that the only reasonable hypothesis for why they became ill was due to acts or omissions of the defendant, to the exclusion of all other reasonable theories. This special element prevents a plaintiff from recovering solely on the basis of speculation and conjecture and requires plaintiffs to engage in a rigorous examination of all reasonable theories of contamination. This standard also shields defendants from what, in some cases, may amount to fallacious post hoc, ergo propter hoc arguments that advance the plaintiff’s theory of contamination. In so doing, this rule reserves to the jury only those cases in which evidence brought forth by the plaintiff establishes a clear and direct link between the defendant’s food and the plaintiff’s injuries.

Two vigorous dissents, by Judges Doyle and McFadden, detailed the Pattersons’ evidence and pointed out that the standard established by the majority was more appropriate for the burden of proof at trial rather than on motion for summary judgment.

The Supreme Court in an opinion authored by Justice Michael Boggs unanimously rejected any requirement to exclude every other reasonable hypothesis, noting that the Court of Appeals majority opinion conflated summary judgments cases with decisions on appeals after jury verdicts. These cases are highly fact specific. In most cases, either for plaintiffs or defendants, have turned upon the availability or unavailability of expert testimony evidence about presence or absence of pathogens. In this case, the caterer failed to counter the plaintiffs’ evidence of proximate cause.

This decision removes an anomaly the consideration of summary judgement motions on food poisoning cases in Georgia. However, the plaintiff still must prove causation. As a practical matter, “jury proof” still requires a preponderance of evidence that excludes other reasonable hypotheses of cause. In evaluating a claim of food poisoning, I want lab tests to prove what pathogen caused an illness, probability that it was related to the food consumed, evidence that people who ate the same food got sick and companions who did not eat the same food did not get sick, and some way to minimize other explanations of illness.

In that food poisoning case that I handled years ago, three coworkers at a bank went to dinner together. Two had fried chicken while the third ate something else. Two fell ill with similar symptoms. One of them was hospitalized and tests of stool samples showed the presence of Campylobacter which is common in uncooked poultry. Consumption of undercooked poultry can easily cause gastic infection within 2 to 5 days.

My client recovered from the acute gastric illness and we settled her case for what we felt was a good amount. But we stayed in touch over the subsequent years. Long-term complications of Campylobacter food poisoning infections are rare. But this lady developed complex long-term problems with internal organs which led to her death about 25 years after her food poisoning. No doctors could directly relate her lethal illness to the food poisoning, but as I took my turn tossing a shovel of dirt into her grave, I wondered if a supper of undercooked chicken contributed to her death a so many years  later.

If I handle food poisoning cases in the future, I will be sure to explore with physicians and experts the risks of long-term health consequences long after the initial acute illness has resolved.

.

.Ken Shigley 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.

When people call us about a potential lawsuit for wrongful death or catastrophic injury in Georgia, one of the topics they sometimes find confusing is the decision about where to file a suit.

The choice of court in which to file suit involves the interaction of subject matter jurisdiction, personal jurisdiction, and venue. In general, subject matter jurisdiction dictates which courts have the authority to hear cases regarding a generalized subject matter. Personal jurisdiction refers to the authority of a specific court to enforce its judgment as to a particular defendant. Venue rules determine the geographic location in which a particular cause of action may be tried. Individually, each of these concepts operates to limit the forum in which a case may be filed.

Georgia has 159 counties, each of which has a Superior Court. Any civil case may be filed in Superior Court, which also handles all felony criminal cases, divorces, administrative appeals, etc. Superior Courts are organized into 49 judicial circuits comprised of from one to eight counties, and ten judicial administrative districts.

Superior Court has jurisdiction over any civil damages case, plus felony criminal cases, divorces, equity, land titles, etc. In addition, 49 counties also have a State Court which has jurisdiction over civil damages cases and misdemeanor criminal cases.

Often there is only one court in which subject matter jurisdiction, personal jurisdiction, and venue can be combined. If so, the choice is simple. It may be bad, but it is simple. In other cases, there are a number of options to consider. Having identified all possible courts in which a suit may be filed, a lawyer should evaluate the advantages and disadvantages of each. The difficult choices are not between good and bad, but between good and good and between bad and bad.

The decision to file in Superior Court or State Court in a county that has both depends on local knowledge. In some counties, particularly in urban areas, most personal injury and wrongful death cases are filed in State Court. In many smaller counties, however, the conventional wisdom is that the State Courts may not have the capacity to handle large, complex civil cases.

Except as otherwise provided by the Georgia Constitution, in a civil action against a resident tortfeasor, venue is proper in the county where the defendant resides. For a person over eighteen and under no disability, that is the place where the family of the person permanently resides, if in Georgia. If a person has no family residing in Georgia, the place where that person generally lodges is considered to be that person’s domicile. That is simple in theory, but may become more complicated in sorting out the messy facts in a case.

In suits against joint tortfeasors residing in different counties, suit may be filed in the county of residence of either defendant. This provision has been held to apply only to actions in which the joint tortfeasors are residents of the State of Georgia. An insolvent estate of a deceased joint tortfeasor is not merely a nominal party, so venue may be based upon the county of the insolvent estate rather than the county of a solvent joint tortfeasor. In comparing potential counties in which to file a case, the lawyer must evaluate the reputation of the locality, its judges and jury pool.

“Vanishing venue” is a Georgia rule that a verdict or judgment against a nonresident of the forum county would become a nullity if resident defendant were dismissed prior to trial, at trial, or on appeal. One who wins a trial only to lose venue and come up empty may feel like Charlie Jones in “Peanuts” when Lucy yanks the football away before Charlie can kick it.  “Vanishing venue” was eliminated in 1999 in the interest of judicial economy and efficiency, but revived in the 2005 tort reform legislation, when O.C.G.A. §9-10-31 was amended to provide:

(d) If all defendants who reside in the county in which an action is pending are discharged from liability before or upon the return of a verdict by the jury or the court hearing the case without a jury, a nonresident defendant may require that the case be transferred to a county and court in which venue would otherwise be proper. If venue would be proper in more than one county, the plaintiff may elect from among the counties in which venue is proper the county and the court in which the action shall proceed.

Under this rule, venue as to a defendant who is a resident of another county in Georgia is dependent upon the ability of the court to enter judgment as to defendant who is a resident of the forum county. In a case involving alleged joint tortfeasors, the test of whether a verdict may be obtained against a nonresident defendant is whether the verdict against the resident defendant is authorized. If the resident defendant is discharged from the action, the court is without jurisdiction to enter judgment as to the nonresident defendant. The result is that the case must be retried against the remaining defendant.

Corporations. In a suit against a domestic corporation, a foreign corporation authorized
to transact business in the state, a nonprofit corporation, or a limited liability company, venue lies in the county where the defendant “resides.” As a general rule, each of these entities is deemed to reside “in the county where its registered office is maintained, or if [a] corporation [or limited liability company] fails to maintain a registered office, it shall be deemed to reside in the county in this state where its last named registered office or principal office, as shown by the records of the Secretary of State, was maintained.”

But if a person files a tort suit against a domestic corporation, or a foreign corporation authorized to transact business in this state, venue will be proper in the county where the cause of action originated, if the corporation has an office or transacts business in that county. O.C.G.A. §14-2-510(b)(4). If venue is based solely on this paragraph, the defendant shall have the right to remove the action to the county in Georgia where the defendant maintains its principal place of business. A notice of removal shall be filed within 45 days of service of the summons. Upon motion by the plaintiff filed within 45 days of the removal, the court to which the case is removed may remand the case to the original court if it finds that removal is improper under the provisions of this paragraph. Upon the defendant’s filing of a notice of removal, the 45 day time period for filing such notice shall be tolled until the remand, the entry of an order by the court determining that the removal is valid, or the expiration of the time period for the plaintiff to file a motion challenging the removal, whichever occurs first.

Under O.C.G.A. §14-2-510(b)(4), the “principal place of business” of a corporation is deemed to be the registered office listed with the Secretary of State. After a corporate defendant has removed a case to the county where its principal office is located, a plaintiff can amend the complaint to assert facts supporting venue in the original county and the case, and move to remand to the county where the suit was filed.

When a corporation has been dissolved, and suit is later filed against it, venue is in the county in which it had its registered office before dissolution.

A foreign corporation’s residence for venue purposes in a tort case is both the county in which it has its registered office and the county in which the tort occurred if the corporation has office and transacts business in that county.

When a defendant is added as a party to a lawsuit under the relation back provision of O.C.G.A. §9-11-15(c), venue over that defendant is determined based upon the facts existing at the time the suit was originally filed, as if it were a party to the original action from the beginning.

This venue provision may provide for interesting results with regard to actions filed against foreign corporations authorized to transact business in this state. If a plaintiff files a tort action against a foreign corporation in the county in which the cause of action originated, the foreign corporation may not be able to remove the case to the county in which it has its registered office. Rather, O.C.G.A. §14-2-512(b)(4) only allows for removal within 45 days to the county in which the corporation has its “principal place of business.”

Motor Carriers cases. A lawsuit against a resident or nonresident motor common carrier or motor contract carrier may be brought in the county where the cause of action or some part thereof arose. If the motor carrier or its agent is not capable of being served in that county, “a second original may issue and service be made in any other county where the service can be made upon the motor carrier or its agent.” Unlike the venue provision for actions against railroads and electric companies, the venue prescribed by O.C.G.A. §40-1-117 is not exclusive. That is, “venue [as to a motor carrier] can be predicated upon any statute which is otherwise applicable.”

O.C.G.A. §40-2-140 authorizes a direct action against the insurer for a motor carrier. The joinder provision in the direct action statute permits a plaintiff to join a motor carrier’s insurance company in the same action as a motor carrier. However, a motor carrier and its insurer are not considered joint tortfeasors or joint obligors, so proper venue as to one defendant is not necessarily proper venue as to the other, and the direct action against the insurer is an independent proceeding on the insurance contract with venue subject to an independent determination. The insurance code allows a plaintiff to sue an insurer in any county where the company has an agent or place of doing business or any county where such agent or place of doing business was located at the time the cause of action accrued or the contract was made, out of which the cause of action arose. The contract action against the insurer of a motor carrier on the policy itself “is cognizable as an independent suit without joinder of the motor carrier.” Therefore, the plaintiff may bring a direct action against the motor carrier’s insurer alone, in any county where venue is proper as to the insurer.

Insurance companies. Suits against insurers may be filed in any of the following counties: (1) where the principal office of the company is located; (2) where the company has an agent or place of doing business; (3) where an agent or place of doing business was located at the time the cause of action accrued or the contract was made out of which such cause of action arose; or (4) where the insured property is located or where the insured person maintains his legal residence. Personal property is deemed to be located in the county of the legal residence of the owner. The Office of Insurance and Safety Fire Commissioner’s web site includes an insurer search feature. Upon retrieving information about an insurance company, the web site allows a search for agents (including full agent contact information) by city and state.

Venue for nonresidents under the long-arm statute. When jurisdiction over a nonresident of the state is predicated upon the provisions of Georgia’s long-arm statute, “venue … shall lie in any county wherein a substantial part of the business was transacted, the tortious act, omission, or injury occurred, or the real property is located.” In addition, when a suit is brought against a resident of the State of Georgia, any nonresident of the state “who is involved in the same transaction or occurrence and who is suable under the provisions of [the Georgia long-arm statute] may be joined as a defendant in the county where a resident defendant is suable.” Under this provision, jurisdiction and venue over the nonresident defendant “shall not be affected or lost if at trial a verdict or judgment is returned in favor of such resident defendant.” If the resident defendant is dismissed from the action prior to the commencement of trial, the action shall be transferred to a county wherein venue is proper. One claiming lack of venue has the burden of proving it by competent evidence.

Venue under the Georgia Nonresident Motorist Act. In a suit brought by a resident plaintiff under Georgia’s Nonresident Motorist Act, the resident plaintiff may file suit either in the county where “the accident or injury occurred or the cause of action originated, or in the county of the residence of the plaintiff.” But if the plaintiff is a nonresident of the state, the action may be brought only in the county where “the accident or injury occurred or the cause of action originated.”

When suit is filed against a resident of the State of Georgia for damages resulting from a motor vehicle accident or collision occurring in Georgia, venue is proper only in the county where the resident defendant resides. If a nonresident of the state is also involved in that same collision and that nonresident is suable under Georgia’s Nonresident Motorist Act, the nonresident may be joined as a defendant in the county where the resident defendant resides. But unlike the venue provisions relating to resident joint tortfeasors, a jury verdict in favor of the resident defendant does not deprive the court of jurisdiction or venue as to the nonresident defendant.

However, the Nonresident Motorist Act does not apply when the defendant is a resident of Georgia at the time of the tort. Police officers may write on the accident report the address that appears on a driver’s license, which may not be a current residence address at that time. At the time suit is filed, particularly against a defendant who has moved out of state, it may be difficult to determine with certainty whether the defendant was a resident of Georgia at the time of the collision. That is particularly common among youthful or transient drivers who leave few if any footprints in residential leases, utility accounts, or other documented indicia of residency. Therefore, it is a prudent practice to serve such a defendant under both the Nonresident Motorist Act and the Long Arm Statute in a county that would be proper under the residency scenario that seems most probable, conduct prompt discovery, and be prepared to transfer the case to another county where venue would be proper if residency is other than it first appears.

Sojourners and transients. Sojourners are nonresidents who are passing through or sojourning temporarily in the state. Venue as to a nonresident of Georgia, passing through or sojourning temporarily in the state, may be in any county in which he may be found at the time when the action is brought.” Transients are persons who, for reasons of business or pleasure, frequently change residence. If a person resides indifferently at two or more places in Georgia, that person may elect which of such places shall be his domicile. If such an election is made known generally among those with whom he transacts business in this state, that place is his domicile. If no such election is made, or if an election is made but is not generally known among those with whom he transacts business in Georgia, third persons may treat any one of the places in which the person resides as his domicile. A person who habitually resides a portion of the year in one county and another portion of the year in another, such as a college student who moves back to the parental home during the summer, is a resident of both, and may be served in either county. A transient who has no family permanently residing at one place in this state may be sued wherever they are temporarily staying even if they have no intention of remaining there.

State government agencies and authorities. The Georgia Tort Claims Act requires that all tort suits against the state under that statute must be filed “in the state or superior court of the county wherein the loss occurred.” This has been construed to mean that if an injury occurs in one county, any of the hospitalization is in another county, and further hospitalization or death occurs in yet another county, venue may be proper in any of those counties. Thus, if a state agency is properly a defendant in a crash occurring in rural Talliaferro County, the injury victim is transported to a hospital in Augusta (Richmond County) and later transferred to specialized spinal cord or brain injury rehabilitation in at Shepherd Center (Fulton County), venue would be proper in Fulton County.

The statute also provides that “in any case in which an officer or employee of the state may be included as a defendant in his individual capacity, the action may be brought in the county of residence of such officer or employee.” Any tort action against the state for losses sustained in any other state must be filed “in the county of residence of any officer or employee residing in this state upon whose actions or omissions the claim against the state is based.” This limitation on venue is a constitutionally valid condition on the waiver of sovereign immunity. When a tortious injury occurs in one county, and the victim dies from the injury in a second county, venue for the wrongful death claim is in the county where the death occurred.

Many constitutional amendments and statutes concerning local government authorities, e.g., industrial authorities, development authorities, housing authorities, water and sewer authorities, airport commissions, etc., which are not published in the Code, may include special venue provisions. The Department of Community Affairs maintains a registry of such authorities. In preparing to file suit against any such authority, counsel must research the law that created it. For example, suits against the Metropolitan Atlanta Rapid Transit Authority alone must be filed in the Superior Court of Fulton County, but when MARTA is alleged to be a joint tortfeasor it may be sued in the county of the co-defendant’s residence.

Federal courts. Most plaintiffs lawyer most of the time prefer to avoid federal court for a number of reasons that are beyond the scope of this article. However, when there is federal diversity jurisdiction, a lawyer should weigh the options. If in such a case, the state venue would be in a small county with great potential for “home cooking,” or when a suit filed in a state court of an urban county would likely be removed to federal court by the defendant, filing in federal court may be the best option.

Georgia has three federal judicial districts – Northern, Middle and Southern. Despite the names, these districts slice the Georgia map diagonally. The Northern District is oriented diagonally across the north and west of the state, and includes divisions based in Atlanta, Rome, Gainesville and Newnan. The Middle District stretches from the southwest corner of the state to the South Carolina line, with seven divisions based in Macon, Columbus, Athens, Americus, Albany, Valdosta and Thomasville. The Southern District spreads inland from the Atlantic Ocean and Savannah River, and includes divisions based at Savannah, Augusta, Dublin, Waycross, Brunswick and Statesboro.

Local rules of federal district courts allow filing in the division in which a Georgia resident defendant resides or the division in which the cause of action arose. Thus, for example, if a fatal crash occurs in Burke County in the Augusta Division of the Southern District, and the defendant resided in Bulloch County in the Statesboro Division of the Southern District, the plaintiff could choose to file in federal court in either urban / suburban Augusta or the rural Statesboro Division. Similarly, if a defendant resides in rural Chattooga County in the Rome Division of the Northern District but the crash occurs in suburban Cobb County in the Atlanta Division, the plaintiff may file suit in federal court in Atlanta.

The ancient Chinese military strategist Sun Tzu in The Art of War wrote of the necessity of using local guides. That is a necessity.

—————-
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.   Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018. 

The leadership of the Georgia State Patrol deserves credit for openness in promptly taking disciplinary action and publicly disclosing that a State Trooper’s reckless conduct caused the deaths of two west Georgia  teenagers and injuries to two others last week.

State Trooper Anthony J. Scott, 26, was fired Friday after investigators determined he was driving 91 mph five seconds before a crash that killed Kylie Hope Lindsey, 17, and Isabella Alise Chinchilla, 16, both of whom were back seat passengers and students at South Paulding High School. Front seat occupants Dillon Lewis Wall, 18, and Benjamin Alan Finken, 17, both of Douglasville, were also injured.

Trooper Scott was northbound on U.S. 27 in Carroll County last Saturday night. He had slowed from 91 to 68 mph when he struck a 2005 Nissan Sentra attempting a left turn onto Holly Springs Road, investigators said. The posted speed limit in the area is 55 mph.

In the old days, it would have been much easier for government officials to cover up what really happened and place the blame on a teen driver. Now, with so much electronic data preserved in the patrol car, it would have been much harder to maintain a coverup.

Nothing can be worse for parents that the untimely death of a beloved child. For an innocent daughter to die due to senseless recklessness of a law enforcement officer who is sworn to protect rather than endanger the public is doubly tragic.

Criminal charges for homicide by vehicle are likely. As the crash happened in Carroll County in the Coweta Circuit, the Georgia State Patrol announced that it will turn over its findings to Coweta Judicial Circuit District Attorney Pete Skandalakis.

Civil cases for wrongful death and personal injury against state employees are controlled by the Georgia Torts Claims Act (GTCA), which became law in 1992.  Under this law, the State of Georgia waives its sovereign immunity “for the torts of state officers and employees while acting within the scope of their official duties or employment and shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances.”

There is a long list of exceptions to potential state liability under this statute, but none of them would appear to apply to speeding through an intersection when there is no law enforcement emergency and without lights or siren operating.

Sovereign immunity is waived only up to the amount of $1 million per person and $3 million per occurrence.  A wrongful death claim (for full value of the life of the person who was killed) and a survival action (for pain and suffering, medical expenses and funeral expenses), however, whether brought by the same or separate persons, are subject to separate $1 million caps.

To make a claim under the Georgia Tort Claims Act, one must present a claim before suit in a technically precise manner. It is common for cases against the state to be thrown out of court for failure to strictly comply with the technicalities of the notice requirement. Compliance with the ante litem notice requirements is a condition precedent to a plaintiff’s right to file suit against the state, and the courts lack jurisdiction to adjudicate any such claims against the state unless and until the written notice of claim has been timely presented to the state as provided in O.C.G.A. §50-21-26(a).

Within 12 months of the incident causing injury or death, a written notice of claim must be sent by certified mail or statutory overnight delivery such as Fedex or UPS to the Risk Management Division of the Department of Administrative Services, the designated officer of the governmental agency involved, and the Attorney General.  The notice of claim must include,

“to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances, the following: (A) The name of the state government entity, the acts or omissions of which are asserted as the basis of the claim; (B) The time of the transaction or occurrence out of which the loss arose; (C) The place of the transaction or occurrence; (D) The nature of the loss suffered; (E) The amount of the loss claimed; and (F) The acts or omissions which caused the loss.”

Failure to state an amount being claimed defeats the claim, so one must state a dollar amount up to the maximum allowed under the GTCA.

This is all familiar territory to me. Last year, the Supreme Court of Georgia quoted my book,  Georgia Law of Torts: Trial Preparation and Practice, in a case discussing the scope of the GTCA. My first job out of law school was as an Assistant District Attorney in my hometown of Douglasville, working in Douglas, Paulding, Haralson and Polk Counties, then all part of the old Tallapoosa Judicial Circuit. That of course involved working with State Troopers, though we also prosecuted a State Trooper in Paulding County for sexual exploitation of several young girls. Later, for most of a decade, I was in an Atlanta law firm that defended suits against state officials and employees including State Troopers all over Georgia.

—————-

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.

In Georgia wrongful death law, the measure of damages is the “full value of life,” which includes both economic and noneconomic value of the decedent’s life to him or her. Unlike some states, Georgia does not provide for recovery of losses suffered by those left behind, who are deprived of the companionship, advice, counsel, or consortium of the deceased. But unlike other states, in respecting the sanctity of all human life, Georgia does not impose any rigid formula or cap on the value of life.

The economic component of the full value of life include the present value of future earnings without any deduction for necessary or other personal expenses or taxes of the decedent had she lived. In determining the economic value of the life of the decedent, jurors may consider all the facts and circumstances of the case, including the decedent’s age, physical health and strength, the labor and work which he performed, income, value of any labor and work which performed, and every other fact and circumstance which would throw light upon the value of her life. That projection of economic value of life is reduced to present cash value such upon the basis of interest calculated at 5% per annum.

In projecting lifetime earnings, jurors may consider  age at the time of death, the likelihood of retirement from work, and the possibility that the capacity to earn money may or may not remain undiminished to old age. Jurors may also consider feebleness of health, actual sickness, loss of employment, voluntarily abstaining from work, dullness in business, reduction in wages, the increasing infirmities of age with the corresponding diminution of earning capacity, and other causes may contribute in greater or less degree to decrease the gross earnings of a lifetime.

Sometimes when a decedent was retired, or close to retirement, survivors may be counseled not to bother with seeking the economic component of the value of life which can set a low “anchor” number in jurors’ thinking.

The intangible aspect of the value of life does not depend upon any formula, though lawyers may suggest formulas based upon life expectancy and any other factors. There is no fixed rule in arriving at the full value of the life of the deceased. Jurors are told to determine the subjective, intangible value of life based upon what the decedent’s life was worth to her, using their enlightened conscience, experience and knowledge of human affairs. They may consider virtually all facts and circumstances affecting the quality and subjective value of a person’s life.  Factors considered may include the decedent’s relationships, living conditions and family circumstances, and anything that was important to the decedent, such as love of family, music, church, and leisure activities. I have used photos and videos of decedents’ activities, their own nature photograph, woodwork, artwork and writings.  However, some evidence of a decedent’s.

The intangible aspects of life may be demonstrated through testimony of family members and friends regarding their relationship with the decedent as well as evidence relevant to the decedent’s general enjoyment of life. While the survivors’ loss of relationship with the decedent is not compensable in Georgia law, such relationships may be considered as the mirror image of the relationship that the decedent lost.

Regarding both the economic and intangible aspects of the value of life, jurors may refer to life expectancy tables. Two such tables are included in the Georgia evidence code, and may be submitted without any further proof. Those are the Commissioners 1958 Standard Ordinary Mortality Table and the Annuity Mortality Table for 1949, Ultimate. In addition, other life expectancy tables may be used with a proper evidentiary foundation, such as United States Life Tables published in National Vital Statistics Reports, and various life expectancy tables in the Statistical Abstract of the United States. More extensive information about actuarial and mortality tables can be obtained from the website of the Society of Actuaries at http://www.soa.org  and at a general information website concerning actuarial science, http://www.actuary.com. In practice, after comparing the numbers there is often not enough difference between the 1949 mortality annuity table and the most current life expectancy table to justify using the newer ones which are broken down by race.

In addition to the wrongful death claim itself, the estate of a person who died may have a claim pain and suffering prior to the death, medical expenses and funeral expenses. Any claim for punitive damages must be based upon the estate’s claim, also known as a “survival action” because it survives the decedent’s death. Where the numbers in such a claim are relatively small, a decision must be made as to whether it is worth including that claim which could set a low “anchor” number in the minds of jurors.

——————

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.

—————-

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.

Our home state of Georgia has been ranked #1 in business climate, according to Site Selection magazine’s annual ranking of states’ attractiveness to corporate facility investors. The selection criteria included a survey of corporate site selectors, the states’ competitiveness, qualified projects so far in 2013 on a per capita basis and state tax burdens on new and mature firms.

Georgia  is now more economically competitive than states such as Texas that have enacted draconian measures to block access of injured people to their court systems.   Georgia has also become more attractive to businesses than North Carolina  and Tennessee , both of which have severely cut into the rights of injured people.

Nothing in Georgia’s legal environment holds back our business climate. Nothing about the availability of our court system to injury people and their survivors retards our economic competitiveness.

Georgia juries generally follow the state motto of “Wisdom, Justice, Moderation.”  And when the facts support a large verdict, Georgia juries are unafraid to adhere to the Latin inscription that hangs behind the Justices in the Supreme Court of Georgia: “Fiat justitia ruat caelum,” meaning “Let justice be done though the heavens fall.”

Before Site Selection magazine announced its state business climate analysis , site-selection teams at the dozens of manufacturers, biotech companies and aerospace concerns came to the same conclusion on their own, announcing Georgia locations for their next major capital investment projects.

Georgia is fortunate to political leaders today who recognize that it is infrastructure, education and tax systems that drive economic development, not “tort reform” measures that merely kick little people when they are down.

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

The ICJE is a resource consortium of the Georgia Judicial Branch, the State Bar of Georgia, and the ABA accredited law schools of the State (Emory, Georgia State, Mercer, Atlanta’s John Marshall Law School, and the University of Georgia). It bears primary responsibility for basic training and continuing education of elected officials, court support personnel and volunteer agents of the State’s judicial branch. Conferences and seminars signify the products traditionally identified with the ICJE by its constituents. During a typical program year, more than 50,000 attendee contact hours of training will be designed and delivered, involving more than 3000 program participants.

The Board of Trustees of the ICJE is comprised of judges from all classes of courts, the director of the Administrative Office of the Courts, law school deans, two practicing lawyers, one Superior Court Clerk, and the past chair of the Institute for Continuing Legal Education in Georgia. Ken Shigley served as president of the State Bar of Georgia in 2011-12 and is chair of the board of trustees of the Institute for Continuing Legal Education in Georgia for 2012-13.

——————

Ken Shigley is immediate past president of the State Bar of Georgia, and double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification. His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of castastrophic personal injury and wrongful death.

O.C.G.A. § 36-33-5 requires that notice be provided to a municipality within 6 months of the  claim. We lawyers still cling to old Latin phrases, even if only to make ourselves sound cool and justify having taken a dead language in high school, so we call this an “ante litem notice,” meaning it is a notice given before filing suit. The statute requires that

 Within six months of the happening of the event upon which a claim against a municipal corporation is predicated, the person, firm, or corporation having the claim shall present the claim in writing to the governing authority of the municipal corporation for adjustment, stating the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury. No action shall be entertained by the courts against the municipal corporation until the cause of action therein has first been presented to the governing authority for adjustment.

In a death claim, the time for the statute of limitation starts running on the date of death rather than the date of the injury that leads to death. That would apply to an ante litem notice as well because the death itself is the event upon which a claim for wrongful death is based so the time period does not begin until the time of death.

While some accurate specificity is required regarding the time, place and extent of injury, substantial compliance is generally good enough. This is in contrast to the technical strictness in ante litem notices to state government under the Georgia Tort Claims Act.

The time limit for giving a notice of claim to a city government may be “tolled” — stopping the clock — by mental incapacity and a few other limited circumstances, but it is very dangerous to assume such an extension of a time limit will work in a particular case.

Contact us if you have a serious personal injury or wrongful death claim against a city government in Georgia.

——————

Ken Shigley is a past president of the State Bar of Georgia (2011-12), with a statewide personal injury trial practice  based in Atlanta. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (West 2010-13) and is double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification. He defended state and local governmental officials and employees in civil damage cases from 1982 to 1993, and since then has often represented individuals and families in personal injury and wrongful death cases against state and local governments.

Hearsay as a legal rather than merely social concept is part of the law of evidence. The Georgia rule on hearsay will change on January 1^st, when the new Evidence Code becomes law.

The new Georgia Evidence Code, based more or less on the Federal Rules of Evidence, will go into effect on January 1, 2013. The new Evidence Code was a long-time project of the State Bar. Sponsored in the State Senate by then-Senator Nathan Deal in 1990, it hit a roadblock with then-House Speaker Tom Murphy who did not want to be required to learn and practice under a new set of evidence rules. The project was revived when Speaker Murphy lost re-election, and was passed by the legislature and signed into law by Governor Nathan Deal in 2010, when I was president-elect of the State Bar, and will take effect next month.

Under old Georgia evidence law which remains in effect until January 1, 2013, inadmissible hearsay is illegal evidence and has no probative value even when there is no objection,

Under the new law, O.C.G.A. § 24-8-802, which goes into effect on January 1, 2013, when inadmissible hearsay is not objected to, the objection will be waived and such evidence will legal and may support the result of trial.

A general definition of hearsay is evidence that does not derive its value solely from the credibility of the witness but rests mainly on the veracity and competency of another person. O.C.G.A. § 24-8-801(c) defines hearsay as any statement other than one made by the declarant while testifying in the trial or hearing offered to prove the truth of the matter asserted. A “statement” of a declarant is an oral or written expression in words or nonverbal conduct intended as an assertion, i.e., the declaration of a specific relevant fact.

In Georgia civil cases, the admissibility of silence or acquiescence by a party to a statement which, if untrue, the party would be expected to deny will be decided preliminarily by the trial judge under O.C.G.A. § 24-1-104(b). The trial judge should admit the evidence if a reasonable jury could find that a response was called for if the statement was untrue. If admitted, the judge will instruct the jury on this matter for their ultimate determination as to the weight, if any, this evidence will be given.

For a comprehensive summary of hearsay under the new Evidence Code, see Steve Harper’s article, “Changes affecting hearsay under the new Georgia Evidence Code,” in the Fulton County Daily Report.

Ken Shigley is immediate past president of the State Bar of Georgia and current chair of the board of the Institute for Continuing Legal Education in Georgia. Lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-12), he has an AV Preeminent rating in Martindale-Hubbell Law Directory and Bar Register of Preeminent Lawyers, and double board certification in Civil Trial Advocacy and Civil Pretrial Advocacy from the National Board of Legal Specialty Certification (formerly National Board of Trial Advocacy). In addition, he is listed in Super Lawyers (Atlanta Magazine), Legal Elite (Georgia Trend) and Who’s Who in Law (Atlanta Business Chronicle).  In the American Association Justice, he is secretary of the Motor Vehicle, Highway & Premises Liability Section and a board member of the Trucking Litigation Group.

The idea is to prevent the jury from mixing sympathy for the plaintiff with determination of fault.

Over the years I have had mixed results in dealing with that issue, with both sides arguing on the basis of court decisions in other jurisdictions, as there has been no definitive Georgia law on point.

Now the Supreme Court of Georgia, in an opinion written by Justice David Nahmias, has resolved the issue. The case involved a child with spastic quadriplegia due to cerebral palsy, allegedly due to obstetrical malpractice at her birth. Kesterson v. Jarrett, — S.E.2d —-, 2012 WL 2203450, Ga., June 18, 2012 (NO. S11G0590).

It is a long and scholarly opinion to which I cannot easily do justice in a brief blog post, but here are a couple of brief excerpts:

Under the longstanding law of Georgia, the parts to a lawsuit have a fundamental right to be present in court during the trial of their case. The issue presented in this appeal is whether a party may be denied that right and excluded from the courtroom because her physical and mental condition may evoke undue sympathy from the jury and thereby improperly prejudice the other party. This appears to be a question of first impression for Georgia’s appellate courts, likely because exclusion of a party from trial for this reason is such an exceptional event in this State. . .

We conclude . . . that a party may not be excluded from her own trial simply because her physical and mental condition may evoke sympathy, even under these circumstances. Instead, trial courts can and should address the risk of undue sympathy using jury instructions and other common and time-tested means of ensuring that both parties receive a fair trial, without infringing on the parties’ right to be present. Accordingly, we reverse. …

Now that the right is established to have the mentally incompetent plaintiff in the courtroom at all phases of trial in Georgia state courts, the next question is what impact that will have on trial tactics of both plaintiff and defense lawyers.

In medical malpractice trials, where juror sympathy often aligns with the defendant doctors who win about 80% of the time, it might not make much difference. In the Kesterson case, the child was present at the beginning of jury selection and once during medical testimony in the liability phase. I can only speculate on whether the exclusion of the child for most of the liability phase of the bifurcated trial really made a difference in the outcome.

While the child’s appearances were brief, some plaintiffs’ trial consultants counsel limiting exposure of such a plaintiff to brief times in order to maintain the shock value and prevent jurors from becoming hardened to the plaintiff’s condition.

The “rules of the road” strategy widely promoted by trial consultants today requires focus on the safety rules and their violation by the defendant prior to talking much about damages. This is the reverse of the practice a generation ago in which plaintiff lawyers would start out with talk about how badly the plaintiff was injured. Only after establishing the importance of all the safety rules the defendant violated, according to this theory, does the plaintiff’s lawyer have psychological permission from the jury to go into discussion of damages.

The defense lawyer who moves for bifurcation of trial under these circumstances may lead even the less sophisticated plaintiff’s lawyer into inadvertently adopting the “rules of the road” strategy rather than blatantly pandering to sympathy from the beginning.

Perhaps some defense lawyers, knowing that they cannot exclude the catastrophically brain damaged plaintiff from the courtroom during the liability phase, will reconsider the strategy of moving to bifurcate liability and damage phases. In so doing, they might lure plaintiff lawyers into  alienating jurors though overt appeals to sympathy by keeping the plaintiff in the courtroom for the entire trial. Jurors are pretty smart cookies who can easily resent such pandering.

And perhaps some plaintiffs’ lawyers will voluntarily choose to bring in the catastrophically injured plaintiff only briefly in the early stages of trial, preserving the shock value for perhaps the explanation of a life care plan in support of a large damages number near the end of the trial.

Even though we can keep in the courtroom for the entire trial a spastic quadriplegic with no mental capacity to assist the lawyer, that does not mean we should.

Now the Georgia Court of Appeals has clarified that a statute setting an 8 year time limit to sue after completion of construction to sue applies to road projects just as to construction of a house, deck or whatever.

In Feldman v. Arcadis US Inc., A12A0553, 12 FCDR 1822 (06/08/12), the Court of Appeals held that in a suit for negligent planning and design of a section of roadway, the 8 year statute of repose in OCGA 9-3-51 barred the suit because the project was an “improvement to property” under the plain meaning of the statute.

OCGA § 9-3-51 (a) states that

[n]o action to recover damages: (1) For any deficiency in the survey or plat,
planning, design, specifications, supervision or observation of construction, or construction of an improvement to real property; (2) For injury to property, real or personal, arising out of any such deficiency; or (3) For injury to the person or for wrongful death arising out of any such deficiency shall be brought against any person performing or furnishing the survey or plat, design, planning, supervision or observation of construction, or construction of such an improvement more than eight years after substantial completion of such an improvement.

Georgia courts apply  the following factors when analyzing what constitutes an “improvement to real property”:

(1) [whether] the improvement [is] permanent in nature; (2) [whether] it add[s] to the value of the realty[] for the purposes for which it was intended to be used; [and] (3) [whether] the contracting parties [intended] that the improvement in question be an improvement to real property[,] or [whether] they intend[ed] for it to remain personalty.

The statute of repose serves to limit the time for the discovery of a design or construction flaw to a reasonable number of years because such flaws would be discovered through the normal use of an improvement if it is indeed an improvement to real property rather than a fixture to the property. A roadway is just such an improvement.

Thus, the trial judge (Hon. Diane Bessen, State Court of Fulton County) granted summary judgment, and the Court of Appeals (Hon. Sara Doyle) affirmed.

However, a case decided by the Georgia Court of Appeals on May 26, 2012 reveals a trap door for the unwary in the exercise of this right. Cox v. Progressive Bayside Ins. Co., __ Ga. App. __, __ S.E.2d __, 2012 WL 1860704 (Ga.App., 2012).

In that case, Cox filed suit against Dobson within the two year limitation period for her injuries. Dobson was an uninsured motorist. Cox successfully had Dobson personally served with the suit papers.

After expiration of the limitation period, Cox dismissed without prejudice and refiled within six months pursuant to OCGA § 9–2–61.  However, because Dobson had diedm Cox did not get personal service on him.  Eight days after the renewal action was filed, the sheriff reported that Dobson was dead.

If Cox had promptly asked the probate court to appoint an adminstrator for the estate of Dobson, filed a motion to substitute the administrator as defendant, and served the administrator with the lawsuit, Cox would have been OK>

Progressive, as uninsured motorist (UM) insurance carrier filed a suggestion of death. Cox failed to file a motion to substitute an executor or adminstrator for Dobson. Eleven months later, the court granted a motion to dismiss.

The Court of Appeals, in a decision written by Presiding Judge Mikell, held:

Cox did not meet the procedural requirements of perfecting service against Dodson because he was deceased at the time she filed the renewal suit. In Georgia, a deceased person cannot be a party to legal proceedings and any suit brought against a deceased defendant is a nullity.^FN5 The fact that Cox may have perfected service against Dodson in the prior suit does not affect the fact that she has not perfected service against him in the renewal suit and accordingly, no action was ever commenced. . . . Because the renewed complaint was filed against a deceased person and Cox never attempted to substitute defendants prior to the trial court’s hearing on the motion to dismiss, we find that the trial court did not err in denying Cox’s request to substitute parties.

In a typical uninsured motorist case where the tortfeasor has died, estate administration is likely to be as absent as liability insurance. To enforce rights under uninsured motorist insurance coverage, it may be necessary to have a county administrator appointed as administrator of the decedent’s estate in probate court. The administrator can be served or acknowledge service in the injury suit. The plaintiff’s attorney must also separately serve the auto insurance company under the UM coverage.

If the deceased tortfeasor was from outside Georgia, questions might arise about jurisdiction of a Georgia probate court to appoint an administrator for this purpose. However, in Tweed v. Houghton, 103 Ga.App. 57, 118 S.E.2d 496 (1961), the court held that potential liability insurance coverage could be an asset of the estate warranting appointment of an administrator in a county where there would have been venue against the decedent nonresident motorist if he had lived. If, for example, there had been coverage on the decedent’s vehicle which was either inadequate or denied due to nonpayment, that can provide the basis to have an administrator of the estate appointed and served. Then, when the UM carrier is served, it cannot defend on the ground that the tortfeasor’s estate was not served.

In serving any lawsuit, it is important to read the return of service papers that come back from the sheriff. If there is a note that the defendant could not be served, it is vitally important to follow up. If the defendant has died, it is important to promptly investigate and if necessary get the county administrator appointed so that there is someone who can be served with process on behalf of the estate.

 —————————————————
Ken Shigley is Immediate Past President of the State Bar of Georgia and currently chair of the board of the Institute for Continuing Legal Education in Georgia, so he is well respected among judges, lawyers and court officials across Georgia. He has successfully handled cases in many of Georgia’s 159 counties from the mountains to the sea. Mr. Shigley has dual board certification in Civil Trial Advocacy and Civil Pretrial Advocacy from the National Board of Legal Specialty Certification. He has spoken on  continuing legal education programs from coast to coast and is now on the boards of the American Association for Justice Motor Vehicle & Premises Liability Section and Trucking Litigation Group.

I do not expect any favoritism from anyone as cases must be decided on their merits.  But if a friend or family member has a catastrophic injury or wrongful death case, would it be smarter to hire a lawyer based on a sleazy TV ad or to hire one who has recognized credentials and is known to decision makers?

Whether you choose me or someone else, by all means choose a serious lawyer for any serious case. Understand that the lawyers who spend millions on TV ads operate settlement mills, never take cases to trial, and insurance companies know they will generally settle for 10% of fair case value.

11. Propose a stipulation that attorneys issue deposition subpoenas.

While federal law authorizes attorneys as officers of the court to issue subpoenas on standard forms, current Georgia law only allows deposition subpoenas issued and signed by counsel if there has been a stipulation of counsel pursuant to OCGA 9-11-45. Otherwise, subpoenas must be obtained from the Clerk. Propose such a stipulation early in the case in order to avoid a mad scramble to get subpoenas from the clerk for depositions or for trial.

Note that the need for such a stipulation will be eliminated on January 1, 2013, the effective date of the new Evidence Code. The new OCGA 24-13-21(d) will provide that “An attorney who is counsel of record in a proceeding may issue and sign a subpoena obtained by electronic or other means from the clerk of court as an officer of a court for any deposition, hearing, or trial held in conjunction with such proceeding.”

It’s not Westlaw or Lexis, but there’s a new source of free legal research — the Public Library of Law. I wouldn’t rely on it for anything complicated, but it’s OK for a quick, free check of something relatively simple.

This decision is both good and bad for injury victims.  The statute was passed to make it less expensive to introduce medical evidence at trial.  When medical reports are written in clear prose, narrative reports help establish the plaintiff’s case.  We generally use only the ones that are reasonably understandable reports to fill in gaps between medical depositions.  Some lawyers like to use them as the entire medical proof in a smaller case.  On the other hand, defense lawyers like to dig up old medical reports and introduce office notes as medical narratives. So this decision cuts both ways.

Frankly, if I have to pay a doctor to write a narrative, I’d just as soon pay a few hundred dollars more and take the doctor’s deposition on video for use at trial, with the doctor explaining everything with some visual aids.

Lott v. Ridley
Court of Appeals of Georgia
A07A0488 (civil case)
May 23, 2007
Ruffin, Judge.
07 FCDR 1617 (06/08/07)

Ruffin, Judge. Barbara and Clarence Ridley brought a personal injury action against Jesse Lott to recover for damages allegedly resulting from an automobile collision. After trial, a Glynn County jury awarded the Ridleys $16,398.68 for medical expenses and $38,000 in compensatory damages. Lott appeals the denial of his motion for a new trial, arguing that the trial court erred in admitting narrative medical testimony and allowing the jury to consider future medical expenses. Because we agree that the trial court erred in admitting certain medical testimony, we reverse. 1. Lott contends that the trial court should not have admitted reports from two of Barbara Ridley’s doctors because they did not comply with the medical narrative requirements set forth in OCGA § 24-3-18. Subject to certain requirements, OCGA 24-3-18 (a) provides an exception to the hearsay rule and authorizes the admission of written medical reports without requiring the doctor’s testimony at trial.1 The statute “applies to reports which set forth, in story form, the author’s assessment of the patient’s history, examination, diagnosis, treatment, prognosis, or interpretation of tests or examinations, including the basis therefor.”2 However, records which would require an expert to explain them are still subject to a hearsay objection, as “the law authorizes the admission of only those reports which, rather than consisting of unexplicated medical terms and uninterpreted scientific test results, set forth the relevant information in prose language that is more readily understandable to laymen.”3 We review a trial court’s decision on the admissibility of evidence under an abuse of discretion standard.4 Lott asserts that two of the doctors whose reports were tendered at trial made no attempt to use lay language or to explain any of the medical terms they used. Counsel for the Ridleys read into the record reports by three doctors, including Dr. Halverson, a chiropractor, and Dr. Shenkman, a neurologist. Dr. Halverson’s report is in a narrative form and summarizes Barbara Ridley’s injuries and treatment. It presents the relevant aspects of her injury, diagnosis, treatment, and prognosis in a logical form. While it contains medical terms, it attempts to explain those terms in the context of the report. Thus, based on our review of the record, the trial court did not abuse its discretion in admitting Dr. Halverson’s medical narrative into evidence.5 Dr. Shenkman, however, apparently did not provide a narrative report summarizing Barbara Ridley’s condition and treatment; rather, counsel simply read into the record the contemporaneous notes made by Dr. Shenkman at each of Barbara Ridley’s visits to him. These notes detail all of the treatments given to Barbara Ridley, and are replete with unexplained medical terms and test results.6 While many of the medical terms used are identical to those used by Dr. Halverson, the notes do not attempt to explain the terms or put them in context. At one point during the reading of the notes, counsel stated that the notes gave “a long string of numbers here that [I am] just going to skip and get down to the summary.” This bare recitation of the doctor’s unedited records clearly is not a medical narrative “in story form,” as contemplated by the statute, as it does not “set forth the relevant information in prose language that is more readily understandable to laymen.”7 No attempt at all was made to organize the doctor’s notes or structure them to make them more readily understandable to the jury. Accordingly, we find that the trial court abused its discretion in admitting Dr. Shenkman’s notes under OCGA § 24-3-18.8 The Ridleys argue that any error in admitting the medical narrative was harmless. The improper admission of evidence is harmless “when the erroneously admitted evidence is simply cumulative of admissible and admitted evidence” and there is no reasonable possibility that it contributed to the verdict.9 In this instance, where Dr. Shenkman’s reports constitute the vast majority of the medical evidence introduced by the Ridleys at trial, and most of their contents were not cumulative of other testimony, we cannot hold that the error was harmless.10 We therefore reverse the trial court’s denial of Lott’s motion for a new trial.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

In a scene reminiscent of the 1982 Paul Newman movie, “The Verdict,” the jury after three hours of deliberation Thursday afternoon sent a note to the judge asking if they were limited by the amount the plaintiff asked for.   In closing argument I had asked for a verdict of approximately $1.2 million for our client’s permanently disabling leg injury.  When we got that question from the jury, my first thought was that I don’t drink anywhere near enough to fit the Paul Newman role in the movie.

Today we won a $2,345,940.17 jury verdict against a Pennsylvania trucking company in the Superior Court of Gordon County, Calhoun, Georgia.  The verdict was broken down as follows: compensatory damages:  $1,742,845.70, attorney fees due to bad faith in the transaction, $580,948.57, expenses  of litigation $ 22,145.90.  Medical expenses were $112,228.  The highest offer from defendant’s insurance company before trial was $125,000, going up to $400,000 on third day of trial. This was nearly three times the highest previous verdict in the history of Gordon County.

The specificity of the figures, down to the penny, helps to refute any allegation that it was a random verdict by a “runaway jury.”  These jurors were all deeply conservative northwest Georgia folks who were determined to follow the law and the facts wherever they led, and to do the right thing.

It was a very good week.

Johnson v. Clarendon National Insurance Company, American Trans-Freight, LLC, ATF Trucking, LLC, ATF Logistics, LLC, and Robert W. Carnley, CIVIL ACTION FILE NO. 04-CV-43532

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

However, the Fulton County Daily Report published an article on August 11th reporting an analysis to the effect that,  while Georgia’s ethics rules contain proscriptions against comparative advertisements and ads that create unwarranted expectations, the language in Georgia is more permissive than that found in New Jersey’s ethics rules. The New Jersey rule prohibits as false and misleading any advertisement that “compares the lawyer’s services with other lawyers’ services.” Under Rule 7.1(a)(3) of the Georgia Rules of Professional Conduct, the rule against comparisons does not apply if the comparison “can be factually substantiated.”

The “Super Lawyers,” “Legal Elite,” and “Preeminent Lawyers” lists are all based upon periodic surveys of our peers in the legal profession, and cannot be purchased.  While the methodology is certainly not perfect, neither is it meaningless or factually unsubstantiated.  Therefore, we will continue to include those designations on the web site.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks).

The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks).