Atlanta Injury Lawyer Blog

“State of Emergency” Means Immunity

January 30, 2014 | Robin Frazer Clark

We here in Atlanta, Georgia are digging out from the unbelievable experience of Snow Gridlock 2014. On Tuesday, January 28, 2014, many Atlantans, who normally had a commute of 30 minutes or so, found themselves stuck in a nightmarish gridlock that super-sized their commute to 12 hours or even more, as they attempted to leave the city at the same time that the other 1.2 Million citizens did. The result: an utter disaster. The Governor of Georgia, Governor Nathan Deal, issued an official “state of emergency” for the State of Georgia. And not a minute too soon.

Many people were forced to abandon their vehicles on the side of the road, because they ran out of gasoline or simply because their drivers at some point faced up to the harsh reality that it was better to abandon ship and attempt to find warm shelter on foot. Now, while some much-needed sunshine melts the ice from our streets, the aftermath of nearly 2,000 abandoned cars is setting in. The owners of these cars are in the process today of trying to remember where they left their cars and driving them home. That is, of course, if they haven’t already been towed away. First, the communications director of the Georgia Department of Transportation simply announced the State would begin towing abandoned cars so the GDOT equipment trucks could deice and plow the roads, particularly the Interstate Highways. In this first notice she unceremoniously announced it was unclear whether owners (who had smartly abandonded their cars) would be responsible for paying to retrieve their cars from tow lots. Brilliant!

Then yesterday, the GDOT softens a bit and announces they will just tow abandoned cars to the side of the road and leave them there. This would allow the plowing and deicing trucks to pass. Finally, today, the GDOT says it will actually drive car owners to their cars so they may drive them home. Again, I say Brilliant!

Seatbelts Not Always the Answer

January 27, 2014 | Robin Frazer Clark

So often in personal injury lawsuits I have filed in Georgia involving injuries sustained during a car wreck, the defense attorney boasts that the plaintiff wasn’t wearing her seat belt, the jury will know it and, voila! Defense verdict! Not so fast!! Many times, even a seat belt won’t prevent a serious or even fatal injury in a car wreck. I was reading some Georgia news about car wrecks recently and came across a tragic incident in which a pregnant mother was killed in a car wreck even though she was wearing her seat belt at the time of the wreck. This happened in Cherokee County, Georgia, just north of Atlanta. The young woman was alive and alert at the scene, but died at the hospital as the doctors there tried to deliver her baby by C-section. She also had a three year old in the car at the time of the wreck who was in a proper car seat, had visible injuries at the scene, and, thankfully, survived.

Many times in my car wreck cases I will hear the defense attorney say that my client must not have had his or her seat belt on or otherwise she or he never would have been thrown from the car, or never would have ended up with any part of her or his body on the outside of the car. But, again, not so fast! The empirical evidence keeps coming in that regardless of wearing a seat belt, sometimes your body ends up being thrown outside of your car during a wreck. For example, recently, in Effingham County, Georgia, a driver was seriously injured . This car wreck involved an overturned SUV in which the driver ended up under his SUV, pinned by it, even though he was wearing his seat belt. We know he was wearing his seat belt because the police officer who came to his rescue had to unlatch his seat belt to get him out. “[Officer] Gideon said the only way to reach the young man was through the back window. Gideon crawled through and released the driver’s seat belt. “He told me his hand was stuck up underneath the roof of the car and said that he was in a great deal of pain,” Gideon said of the driver.”

The fact that Officer Gideon (great name, by the way) had to crawl through the back window of the SUV to get to this driver reminds me of the time 19 years ago now in which I was driving a mini-van and was t-boned by a drunk driver. I was wearing my seat belt and when the van finally came to a stop on Juniper Street in Midtown Atlanta, the van was on it’s side and I was hanging from the seat belt. Several wonderful eyewitnesses walked through the back window of the van and unlatched my seat belt and helped me out of the van. I suffered a pretty severe injury from this wreck.

Remembering a Great Lawyer and Friend: Cliff Brashier

January 9, 2014 | Robin Frazer Clark

On December 20, 2013, we lost an icon of the State Bar of Georgia, our Executive Director of 23 years, Cliff Brashier. Yesterday, I had the distinct honor of delivering remarks at his Memorial Service held at the State Bar of Georgia Bar Center. Cliff was one of my dearest friends and represented the best that lawyers can be. I miss him dearly. Below are my remarks.

REMARKS AT THE MEMORIAL SERVICE OF CLIFF BRASHIER, STATE BAR OF GEORGIA BAR CENTER, JANUARY 8, 2014

Today I consider myself one of the luckiest persons on the face of the Earth. I do this because I was lucky enough to have formed a friendship with Cliff Brashier. Whatever sacrifices I had to make, both professional and personal, to serve as President of the State Bar of Georgia were more than worth it given that my service as President gave me the opportunity of a lifetime to work alongside Cliff Brashier.

Retrial of an Obstetrical Medical Malpractice Case: Better Than Reality TV

January 6, 2014 | Robin Frazer Clark

I have tried numerous medical malpractice cases in Georgia over the last several years. I represent only plaintiffs, the victims of someone else’s carelessness or negligence. Even after trying cases in Georgia for 25 years I still enjoy watching great trial lawyers try cases. It’s better than anything reality TV can show. So I hope I can carve out some time this week to watch part of the retrial in Sutton v. Bauer, in which jury selection started today in Cobb County State Court. This is the retrial of a medical malpractice (remember: malpractice simply means carelessness by a doctor) case that ended in a hung jury at the close of the first trial because the jury could reach a verdict on one defendant but not all defendants. The Court’s decision to enter a mistrial was appealed by the hospital to the Georgia Court of Appeals in Wellstar v. Sutton, 318 Ga.App. 802 (2012) and the appellate court affirmed the trial judge’s decision. Since that appellate opinion, the hospital, Wellstar, is no longer a defendant in this retrial, which, presumably, means there was a settlement between Wellstar and Plaintiff, but that would be probably be confidential. So this retrial is against the obstetrician who delivered the baby. The plaintiff is represented by well-known and well-respected consummate trial lawyer, Tommy Malone, and his son, Adam Malone, is assisting in the trial. I had the distinct pleasure of trying a medical malpractice (also a retrial after a hung jury in the first trial) with Adam Malone as my co-counsel in October of last year in Fulton County State Court. I hope to be able to watch a little bit of the Sutton trial and will give you my thoughts on how the jury and the evidence. Stay tuned….

Second Trial to Start in Cobb for $50M Med-Mal Case

By Katheryn Hayes Tucker Contact All Articles

Deference to the Trial Court? Complete Submission or Polite Respect?

December 9, 2013 | Robin Frazer Clark

As many of you know, I have tried a lot of cases over the last 25 years as a plaintiff’s personal injury trial lawyer here in Atlanta, Georgia. I also have appeared numerous times (37 at last count) in Georgia’s appellate courts and as a trial lawyer I handle my cases through completion, including the appellate process. I have had two appellate arguments this year, one in the Georgia Court of Appeals and one in the Supreme Court of Georgia, our state’s highest court, and so it is natural, I suppose, to have the issue of deference to a trial court by appellate courts on my mind and heart.

Appellate courts are courts that correct errors of law made in the trial court, sometimes called “the court below” in an apparent nod to hierarchy among our courts. As a trial lawyer, I believe I must win my case for my client in the trial court. I do not subscribe to the opinion, as some lawyers do, that, worse comes to worse, I can always win it in the appellate court. I want to win a verdict in the trial court and then hold on to that verdict, thus, I go out of my way to ensure there is no error from which the defendant could appeal in the trial. This strategy takes both extreme foresight and planning but also lightening speed decision-making in the trial.

Appellate courts must use certain “standards of review,” i.e., a specific framework in which to judge what happened in the trial court, according to the posture the case is in when it lands in the appellate court’s lap. These standards of review are well known and almost taken for granted, as if every lawyer and every judge in Georgia agrees to their meaning. The Georgia Court of Appeals even lists them on its website for easy, quick reference. But even though we can state the standards of review very plainly, it is not true that all lawyers and all judges readily agree on their meaning and application. That is when it gets fun.

$35 Million Dollar Verdict Returned in Cobb County

November 21, 2013 | Robin Frazer Clark

Following up on my blog from a few days ago regarding the Joshua Martin v. Six Flags trial, the jury returned a verdict last night in favor of Joshua for $35 Million. The jury apportioned 2% fault to each of the four gang members who plead guilty to some criminal charge in relation to the beating of Joshua, which means Six Flags Over Georgia is responsible for roughly $32 Million of the verdict.

Joshua Martin v. Six Flags: A Landowner’s Nondelegable Duty to Keep Its Property Safe

November 19, 2013 | Robin Frazer Clark

The case of Joshua Martin v. Six Flags Over Georgia is being tried this week in Cobb County State Court before the Honorable Kathryn Tanksley. You may recall the sad incident in which a gang beat Joshua severely to the point of putting him into a coma at Six Flags of Georgia. Joshua suffered a traumatic brain injury from the beating but survived. Unfortunately, he will never be the same as he was before the beating. Joshua is very ably being represented by trial attorneys Mike Neff, Gil Deitch and Andy Rogers.

The case is being tried because Six Flags Over Georgia has refused to accept any responsibility for the beating. In a written statement, Six Flags officials say the attack did not happen on their property but they are helping authorities in the matter and they strive to keep visitors safe. So Six Flags is denying any responsibility. This is true even though one of the gang members who ultimately pled guilty to aggravated assault, Brad Johnson, was an employee of Six Flags at the time. I was in court yesterday when Mr. Johnson testified after I had ridden up to the third floor of the Courthouse with him in the elevator. He testified under oath yesterday that he had stored a pair of brass knuckles in a flower bed at Six Flags as he came to work that day and retrieved them when he left with several other gang members. He gave the brass knuckles to another individual who used them in the beating of Joshua Martin. One of Mr. Johnson’s jobs at Six Flags was to maintain that particular flower bed so he knew, apparently, that his brass knuckles would be safe until he wanted to use them. So for his role he plead guilty to aggravated assault, received a sentence of 10 years to serve two, which means he spent less than two years in prison and now is on probation for 8 years.

Other startling testimony from the trial yesterday was that this gang intended to beat a man who was in the parking lot with his family, and then, as a whim, just decided to beat Joshua instead. The former President of Six Flags Over Georgia also testified yesterday and said the beating of Joshua occurred on a corner of an a dirt walkway that both patrons and employees used to walk from the CCT and MARTA bus stops to the Six Flags entrance way. Yet Six Flags still maintains it’s defense that it’s not responsible because it didn’t happen on Six Flags property. The Six Flags President also remarkably testified that Six Flags didn’t try to warn or alert the public that this had occurred right at the mouth of Six Flags because “she didn’t see the need for that.” I was watching jurors’ reactions to her testimony and several jurors showed outright disbelief at this testimony.

Waiting on a Jury

October 3, 2013 | Robin Frazer Clark

Well, I am writing from the witness room next to Courtroom 2F of the Fulton County State Court, Atlanta, Georgia. This has been my home-away-from-home for the last two weeks. I am waiting on a jury. This may be the most gut-wrenching time of a trial, although there are many. Trying personal injury cases in front of a jury is not for the feint-of-heart. This case is a medical malpractice case against an Atlanta hospital for the negligence of their nurses in inadequate monitoring of a 31 year old, post-surgical patient who had severe obstructive sleep apnea (OSA). The nurses failed to put a CPAP on him while he slept, even though there was an doctor’s order for a CPAP, then gave him a 3 mg. shot of Dilaudid, the strongest narcotic a nurse can deliver to a patient bedside, then the nurse went to lunch, leaving their patient completely unprotected without any monitoring. No pulse oximetry, no telemetry, no dedicated trained observer. You guessed what happened next, didn’t you? He obstructed, meaning his airway became completely blocked, due to the lack of the CPAP. He died. A 31 year old father of two boys and husband to my client.

The jury has deliberated now for a solid day. We are back for day #2 of deliberations after 7 days of trial. I have always said I trust the jury. And I do. But I can’t help but be nervous that justice is done for my client. The defense attorney is nice and good at his job. He never makes unforced errors so there are no gifts handed to you from a legal standpoint in such a trial. The judge, although a rookie, is great. She has done a fantastic job and if the jury doesn’t go our way it is not the judge’s fault. As trials go, this has been certainly a pleasant experience, right down to an extremely nice court reporter and Deputy who has made sure the judge and all of us, including our jurors, have been safe at all times. Thank you, Deputy! I appreciate you!

Medical malpractice cases are hard anywhere, but particularly hard here in Georgia. The deck is stacked against the plaintiff, legally, culturally and politically. Several things work against a medical malpractice plaintiff under Georgia law. The first that comes to mind is a presumption that doctors and hospitals acted with due care. No other profession and no other person gets the benefit of this type of presumption. It is special treatment for Georgia medical providers. It is unfair. The judge actually reads this presumption to the jury as Georgia law, even though the plaintiff has already rebutted the presumption by an affidavit of a qualified physician at the time the lawsuit is initiated with the Complaint. Presumption rebutted. The plaintiff further rebuts it with testimony from competent, qualified expert witnesses during trial. This is an evidentiary requirement in medical malpractice cases. Presumption rebutted. And yet the doctor still gets to have this law read to the jury as if there still may be some doubt that Plaintiff hasn’t yet rebutted the presumption. It is wrong and it is unfair.

Jurors Should Walk a Mile in Your Client’s Shoes

September 20, 2013 | Robin Frazer Clark

As a plaintiff’s personal injury trial lawyer in Atlanta, Georgia, I have tried many personal injury cases on behalf of very deserving clients. My job is to persuade the jurors my client is deserving of money damages to compensate them for the injuries they have received that may be permanent, something they’ll have to deal with the rest of their lives. The best way to convey this message, quite simply, is to ask the jurors to put themselves in your client’s shoes and see how they would feel, right? But did you know in Georgia, in personal injury cases, I am forbidden from even making that argument to the jury? Doesn’t make alot of sense, does it? But Georgia Law limits what I can say and it would be error for me to use what is often referred to as The Golden Rule, i.e., asking the jurors “how they would feel” if this horrible injury had happened to them.

Now that’s in a personal injury case in which your client survived whatever tragedy befell them. In a wrongful death case in Georgia, it’s different, because the law in Georgia regarding the measure of damages in a wrongful death case is “the full value of the life of the decedent, from the decedent’s perspective.” So this necessarily means I must ask the jurors to see things from the perspective of the person who died to be able to place a value on his or her life.

Defense attorneys often attempt to limit my argument in a wrongful death trial citing The Golden Rule. They often cite a Georgia case for authority for their position, Myrick v. Stephanos, 220 Ga. App. 520 (1996), which is not a wrongful death case. It was a tractor-trailer wreck case involving severe personal injury to the plaintiff. But the plaintiff lived. The measure of damages in a personal injury case are different than in a wrongful death case. Damages in a personal injury case in which the injured plaintiff is living is not measured from the perspective of the plaintiff. This is why the Myrick court reversed the trial court on the basis of the “Golden Rule” argument made by Plaintiff’s counsel. The Myrick court note that such an argument in a personal injury case “is improper because it asks the jurors to consider the case, not objectively as fair and impartial jurors, but rather from the biased, subjective standpoint of a litigant. 75A AmJur2d, Trial, § 650 (1991).” Myrick v. Stephanos, 220 Ga. App. 520, 522, 472 S.E.2d 431, 435 (1996).

Swimming Pool Pumps Need Emergency Cutoff Switches

August 16, 2013 | Robin Frazer Clark

Recently, in Atlanta, Georgia, there has been a lot of media coverage of the near-drowning incident of Usher’s son in a private swimming pool. Apparently, the child’s arm became stuck in a drain at the bottom of the pool and he could not free himself. Audio contractors who were working in the house came to his aid after hearing the screams by his Aunt for help and were able to jump in the pool, pull the child off the drain, administer CPR and save the child’s life. The last report I heard on the child’s recovery is he was doing well, which is wonderful news.

Still of great concern, however, is that pool drain and why the child could not get free from it. There should have been an anti-entrapment drain cover on this pool (photo of a drain cover is above) and an emergency pump cutoff switch, which would have broken the suction power of the drain. The suction power of a swimming pool drain is enormous and can be deadly. There have been numerous cases of children being stuck on a drain in a swimming pool, hot tub or spa and being unable to get off the drain by themselves due to the enormous suction power. In many horrific cases, sometimes the children caught by these drains are eviscerated, i.e., the suction from the drain literally rips their intestines out of them and they are killed or disabled. The Consumer Product Safety Commission has been investigating these incidents since the 1970’s. In 2007, for all age categories, there were 74 reports of circulation entrapments. Individuals in the 5- to 9-year-old category had the highest frequency of entrapment reports. You may never have thought of that possibility until just now. I am writing to make sure you are aware of this deadly potential and, if you are a pool owner, to take action now to install an emergency cutoff switch to the pump that supplies this unbelievable suction power, and if you are merely swimming in someone else’s pool or hot tub, to inquire about the existence of such a emergency cutoff switch and to warn your children to stay away from drains.

There is now in place a Federal Law that requires all public pools and hot tubs to have an anti-entrapment drain cover or other life-saving measures. Passed in 2007, the Virginia Graeme Baker Pool and Spa Safety Act (PSSA), named after the granddaughter of James Baker, III, who died after being caught by a drain in a hot tub. As of December 18, 2008, all public pools and spa were supposed to be in compliance with this act. Although this law applies technically only to public pools, private pools in 2013 really should also be in compliance. Older pools can easily be retrofitted by any pool management or maintenance company. Please check any pool you own or any pool your child swims in for these life-saving devices. Unless you are a personal injury trial lawyer, you may never have even thought of this potentially deadly incident, but the incident involving Usher’s son is a wake-up call to be vigilant so that your loved one is not injured or killed.