Articles Posted in Injury Law

by
Plaintiff Stanley Cottrell, Jr. appealed the grant of judgment notwithstanding the verdict (“JNOV”) and earlier grants of directed verdicts in this action alleging defamation and related torts, and potentially implicating the constitutionality of portions of the Georgia Computer Systems Protection Act (“GCSPA”) in favor of five defendants: Glenn and Marian Crocker (“Crockers”), Hugh Johnson (“Johnson”), Peggy Smith (“Peggy”), and Karen Smith (“Karen”). This matter arose out of some online postings and other communications by Defendants about Cottrell. For a number of years, Cottrell participated in a number of solo running exhibitions with a Christian evangelical emphasis, some of which have been portrayed in the media, and was subsequently involved in various multi-level marketing endeavors, executive leadership positions, and motivational speaking. Cottrell’s notoriety grew along with media controversy relating to his character, which questioned the authenticity and integrity of his claims and achievements. The Crockers worked for Cottrell planning two running exhibitions; Johnson was a long-time friend of Cottrell’s who came to know some women with whom Cottrell was involved outside of his marriage; Peggy is one of the women with whom Cottrell had an extra-marital affair; and Karen is Peggy’s daughter-in-law. Karen located and contacted several people she believed had information about Cottrell, including the Crockers and Johnson. Karen and her husband created a “WordPress” blog and posted stories based on this information, which portrayed Cottrell as having a long history of misrepresentation and deception for personal gain. Karen sent emails to a “list serve” group criticizing Cottrell and sharing links to the Blog posts, and Peggy sent messages to multiple Cottrell Facebook “friends” along the same lines. Cottrell sued, primarily alleging defamation and several associated claims (invasion of privacy, intentional infliction of emotional distress, and violation of the GCSPA). After review of Cottrell's arguments on appeal of the JNOV, the Supreme Court concluded JNOV was indeed warranted in this case, and affirmed the trial court's judgments. View "Cottrell v. Smith" on Justia Law

by
In March 2012, 91-year-old Bucilla Stephenson died at the end of a two-week stay at Doctors Hospital of Augusta, LLC (“Hospital”). In May 2013, Jacqueline Alicea, Bucilla's granddaughter, acting as the administratix of her grandmother’s estate, sued defendants the Hospital and Dr. Phillip Catalano. Alicea alleged among other things that they intubated her grandmother and put her on a mechanical ventilator, which prolonged her life when she was in a terminal condition and caused her unnecessary pain and suffering, contrary to her advance directive for health care and the specific directions of Alicea, her designated health care agent. The Defendants filed a motion for summary judgment, arguing among other things that OCGA 31-32-10 (a) (2) and (3), a part of the Georgia Advance Directive for Health Care Act, gave them immunity from liability. The trial court rejected the immunity argument and denied summary judgment. On interlocutory appeal, the Court of Appeals affirmed the portion of the order denying immunity. The Supreme Court then granted Defendants’ petition for certiorari to review that aspect of the Court of Appeals’ decision. After review, the Court concluded the appellate court skipped over one important point: "[t]he correct analysis makes it even clearer, however, that the Defendants were not entitled to summary judgment based on their claim of immunity under OCGA 31-32-10 (a) (2) and (3), and we therefore affirm the Court of Appeals’ judgment as to that issue." View "Doctors Hospital of Augusta v. Alicea" on Justia Law

by
Scapa Dryer Fabrics, Inc. was a textile manufacturer, and in the late 1960s and early 1970s, it produced dryer felts at a manufacturing facility in Waycross. Some of the pipes and boilers in that facility were insulated with material containing asbestos, and Scapa used yarn containing asbestos in some of its manufacturing processes. Between 1967 and 1973, Roy Knight worked on multiple occasions at the Waycross facility as an independent contractor. Almost forty years later, Knight was diagnosed with mesothelioma. After his mesothelioma was diagnosed, Knight and his wife sued Scapa, claiming that Scapa negligently exposed him to asbestos at the Waycross facility and caused his mesothelioma. The case was tried in front of a jury, which returned a verdict against Scapa and awarded more than $4 million in damages to the Knights. The trial court entered a judgment upon that verdict, and Scapa appealed. At trial, the Knights bore the burden to establish not only that one of their experts, Dr. Abraham, was qualified and that his testimony was reliable, but also that his testimony would be helpful to the jury. His ultimate opinion as to causation, however, was not limited to any meaningful estimate of exposure to asbestos at the Waycross facility (whether qualitative or quantitative), and it instead invited the jury to find that causation was established by any exposure at all. In that respect, the Supreme Court concluded the testimony did not “fit” the pertinent causation inquiry under Georgia law, and it should have been excluded by the trial court, acting as gatekeeper, because it could only serve to confuse the jury on the issue of causation. "And given that Dr. Abraham’s opinion 'went to the heart' of the dispute about the extent of exposure and causation, 'the erroneous admission of the opinion requires that we reverse the Court of Appeals’ affirmance of the trial court’s judgment.'" View "Scapa Dryer Fabrics, Inc. v. Knight" on Justia Law

by
In 2008, Olga Zarate-Martinez filed a medical malpractice complaint against Dr. Michael D. Echemendia, Atlanta Women’s Health Group, P.C., Atlanta Women’s Health Group, II, LLC, and North Crescent Surgery Center, LLC (collectively “Echemendia”), for damages for injuries she sustained during an open laparoscopic tubal ligation that was allegedly negligently performed and which resulted in a perforated bowel. Zarate-Martinez attached to her complaint an affidavit from Dr. Errol G. Jacobi. She later identified Dr. Charles J. Ward as an expert for summary judgment purposes, but she never submitted an affidavit from Dr. Ward in support of her complaint. Echemendia deposed Dr. Ward and Dr. Jacobi, moved to strike the testimony from both doctors on the grounds that they did not qualify as experts, and also moved for summary judgment. Without any reference to some constitutional issues raised, on February 21, 2013, the trial court issued an order striking both experts’ testimony, but granted Zarate-Martinez 45 days in which to file an affidavit from a competent expert witness. Zarate-Martinez timely submitted another affidavit, this time from Dr. Nancy Hendrix, and Echemendia again moved to strike. Zarate-Martinez then filed a supplemental affidavit from Hendrix outside of the 45-day time frame, and, in her reply to the motion to strike, reasserted her constitutional challenges to OCGA 24-7-702 (c). Zarate-Martinez also asserted a new constitutional claim, specifically, that the provisions of OCGA 24-7-702 (c) (2) (A) and (B) were unconstitutionally vague. The trial court struck Hendrix's affidavits, and, without any affidavits from qualified medical experts to support her claim, the trial court dismissed Zarate-Martinez's complaint. The Court of Appeals affirmed and did not reach the constitutional issues since the trial court never addressed them. The Supreme Court vacated the Court of Appeals decision and that of the trial court with respect to the application of OCGA 24-7-702 (c) and remanded for the trial court to reconsider the admissibility of Hendrix's testimony. View "Zarate-Martinez v. Echemendia" on Justia Law

by
This matter arose from wrongful death suit filed by appellant Tammy Pearce individually and as administrator of the estate of her husband, Christopher Pearce, against Glynn County Police Officer Henry Tucker after Christopher committed suicide while in custody. On the day of his suicide, Christopher (who suffered from major depressive disorder) arrived unexpectedly at his pastor’s house carrying a pistol in his hand; the pastor and his wife summoned help while Christopher remained outside. Officers Henry Tucker and William Tomlinson, Jr., arrived at the residence and observed Christopher with a gun tucked in his waistband. Christopher, a convicted felon, was subsequently handcuffed, relieved of the firearm, and placed in a patrol car. Officer Tucker transported Christopher to the Glynn County Police Department headquarters. Once at the headquarters, Christopher was placed in a holding cell with a monitored video feed. Pursuant to police department policy, Officer Tucker had Christopher remove his shoes, belt, tie, and the contents of his pockets. Approximately 15-20 minutes after being placed in the holding cell, Christopher ended his life by hanging himself with his socks. The trial court denied Officer Tucker’s motion for summary judgment; the Court of Appeals reversed the judgment of the trial court, concluding that there was insufficient evidence that any negligent act by Officer Tucker proximately caused Christopher's death, and the Supreme Court subsequently granted certiorari to review that decision. The Supreme Court held that as a threshold matter that Officer Tucker was entitled to qualified immunity, and it therefore did not address the merits of Appellant’s negligence claim. Accordingly, the Court affirmed the judgment of the Court of Appeals under the "right-for-any-reason" rule. View "Pearce v. Tucker" on Justia Law

by
The damages at issue in this case arose from the death of a mixed-breed dachshund owned by Robert and Elizabeth Monyak. In 2012, the Monyaks boarded Lola, their 8 ½ -year old dachshund mix, for ten days at a kennel owned by Barking Hound Village, LLC (“BHV”) and managed by William Furman. Three days after picking up their dogs from BHV, Lola was diagnosed with acute renal failure. Despite receiving extensive veterinary care over a nine-month period, including kidney dialysis treatment, Lola died in March 2013. The Monyaks asserted various claims of negligence against BHV and Furman, and sought compensatory damages, including over $67,000 in veterinary and other expenses incurred in treating Lola. In addition, alleging fraud and deceit on the part of the defendants, the Monyaks sought litigation expenses and punitive damages. Observing that pet dogs were considered personal property under Georgia law, but finding that not all dogs have an actual commercial or market value, the Court of Appeals held that where the actual market value of the animal was non-existent or nominal, the appropriate measure of damages would be the actual value of the dog to its owners. The Georgia Supreme Court granted certiorari to consider whether the Court of Appeals erred in holding that the proper measure of damages for the loss of a pet dog was the actual value of the dog to its owners rather than the dog’s fair market value. Because the Supreme Court found that long-standing Georgia precedent provided that the damages recoverable by the owners of an animal negligently killed by another included both the animal’s fair market value at the time of the loss plus interest, and, in addition, any medical and other expenses reasonably incurred in treating the animal, the Court affirmed in part and reversed in part the Court of Appeals’ decision. View "Barking Hound Village, LLC v. Monyak" on Justia Law

by
Toyo Tire North America Manufacturing Inc. operated a large tire manufacturing and distribution facility about 625 feet from the home of Lynn and Duron Davis. The Davises sued Toyo Tire, alleging that its facility was a nuisance and has resulted in a trespass, causing them discomfort and annoyance and diminished their property’s value. The trial court denied Toyo Tire’s motion for summary judgment; the Court of Appeals affirmed that order. The Georgia Supreme Court granted certiorari to address two issues: (1) Toyo Tire’s argument that the Davises presented insufficient evidence, at the summary judgment stage of the case, to show that the decrease in their property value was proximately caused by the alleged nuisance and trespass; and (2) Toyo Tire’s argument that even if the Davises could establish causation, they could not recover damages both for their discomfort and annoyance and for the diminution in their property value, because that would constitute an impermissible double recovery. The Supreme Court rejected Toyo's first argument, and concluded that the past discomfort and annoyance caused by a continuing nuisance and the diminution in the property’s market value resulting from the expectation of continuing discomfort and annoyance constituted two separate injuries, and the Davises, who both occupied and owned the property, could potentially recover damages for both injuries. Accordingly, the Court affirmed. View "Toyo Tire North America Manuf. v. Davis" on Justia Law

by
In 1993, Willie Barnes suffered an amputation of his left leg below the knee in an industrial accident at the Georgia-Pacific (GP) wood processing plant where he worked. GP, its insurer Georgia Conversion Primary Ins. Co. and its workers’ compensation servicing agent CCMSI, accepted the claim as catastrophic and began paying temporary total disability (TTD) benefits. Barnes was fitted with a prosthetic leg and returned to lighter duty work in January 1994. On January 30, 1994, GP stopped paying TTD benefits to Barnes, and the TTD benefits were replaced with permanent partial disability (PPD) benefits. The PPD benefits continued until May 1998. In 2006, the GP plant was sold to Roseburg Forest Products Company (Roseburg). Barnes continued working for Roseburg, but was laid off on September 11, 2009. On November 13, 2009, Barnes consulted a doctor regarding chronic knee pain. Two years later, he was fitted for a new prosthetic leg, which was paid for by CCMSI, the company that continued as the workers’ compensation servicing agent for Roseburg and Roseburg’s insurer, ACE American Insurance Co. (ACE American). On August 30, 2012, Barnes filed a claim to resume TTD benefits, asserting the date of his original workplace accident August 13, 1993 as the date of injury. On November 30, 2012, Barnes filed a separate notice of claim, alleging a fictional new injury based on the date that he was terminated from his employment, September 11, 2009. The Administrative Law Judge denied the claims as barred by the applicable statutes of limitation set out in OCGA 34-9-104 (b) and 34-9-82. The State Board of Workers’ Compensation (Board) affirmed, as did the trial court. However, the Court of Appeals reversed, finding that both of Barnes’ claims were not barred by the applicable statutes of limitation. The Supreme Court concluded the appellate court erred in its interpretation of the applicable statutes of limitations in these cases, and reversed. View "Roseburg Forest Products Co. v. Barnes" on Justia Law

by
Appellee Merita Thomas was employed as a school bus driver with the Fulton County Board of Education (“County”) since 2008. Thomas’ employment with the County required her to drive County school buses during the nine-month school year but not during the school district’s summer vacation; Thomas’ salary, however, was paid out over a twelve-month period. During the district’s summer vacation in 2011, Thomas supplemented her income by working for Quality Drive Away (“QDA”), driving newly manufactured school buses from the Atlanta area to other parts of the country. Thomas’ summer employment with QDA ended on July 30, 2011, and she returned to her duties with the County when school resumed. On October 19, 2011, Thomas was injured while on the job with the County. She thereafter filed a claim for workers’ compensation benefits. The County has never disputed the compensability of Thomas’ injury; the contested issue was the correct calculation of Thomas’ “average weekly wage,” the basis upon which her benefits are to be computed. The Court of Appeals held that the wages earned from the second employer during the 13-week period should, under the “concurrent similar employment” doctrine, be included in calculating the claimant’s average weekly wage. Finding no error in the appellate court's judgment, the Supreme Court affirmed. View "Fulton Cty Bd. of Edu. v. Thomas" on Justia Law

by
Amy Smith, individually and as next friend of her daughter Tyasia Brown, sued her landlord, Bobby Chupp for injuries Brown allegedly sustained as the result of ingesting lead from deteriorating lead-based paint at the house Smith rented from Chupp. The house was insured by Chupp under a commercial general liability (CGL) policy issued by Georgia Farm Bureau Mutual Insurance Company (GFB). After Chupp tendered Smith’s claims to GFB under the provisions of the policy, GFB filed a declaratory judgment action against Smith and Chupp seeking a determination that Brown’s injuries were not covered under the policy and that it had no duty to defend Chupp against Smith’s claims. The Georgia Supreme Court granted a petition for certiorari to the Court of Appeals to determine whether the Court of Appeals erred in holding, as a matter of first impression, that personal injury claims arising from lead poisoning due to lead-based paint ingestion were not excluded from coverage pursuant to an absolute pollution exclusion in CGL insurance policy covering residential rental property. Because the Supreme Court disagreed with the Court of Appeals’ conclusion that lead-based paint was not clearly a “pollutant” as defined by the policy, it reversed the Court of Appeals' decision in this case. View "Georgia Farm Bureau Mut. Ins. Co. v. Smith" on Justia Law