Marietta Injury Lawyer Blog

Why do Personal Injury Defendants Transfer Cases to Federal Court?

September 29, 2017 | Benjamin S. Persons, IV

Personal injury cases are generally a matter of state law. Many non-Georgia defendants will seek to transfer a personal injury claim to federal court. There are a number of reasons why they do this.

First, while a federal court must still decide the merits of a personal injury claim under the substantive law of the forum state, the trial itself is conducted under federal rules of evidence and procedure. This often benefits defense attorneys, who have more practical experience trying cases in federal court. Federal rules also make it easier for defendants to seek dismissal of a plaintiff’s complaint during the summary judgment stage, i.e. before the case gets to a jury.

Second, the jury pools in federal court are much broader than in state court. Let’s say you are in a car accident in Marietta. The negligent driver lives in Florida. If you file a personal injury claim in state court, the jury will be drawn from residents of Cobb County. But if the case is removed to federal court–the Northern District of Georgia–the jury pool suddenly expands to 46 counties. This can produce a final jury that is less sympathetic to a “local” plaintiff.

Is “Joint and Several” Liability Dead in Georgia?

September 22, 2017 | Benjamin S. Persons, IV

Many personal injury claims involve more than one defendant or negligent party. Historically, if a Georgia court found multiple defendants liable for an accident, all of the defendants could be held collectively responsible for any monetary judgment. This is known as “joint and several liability.” But in 2005, the Georgia legislature amended the state’s tort laws to require a jury (or judge) “apportion its award of damages among the persons who are liable according to the percentage of fault of each person.”

Renaissance Recovery Solutions, LLC. v. Monroe Guaranty Insurance Company

This amendment has largely–but not completely–eliminated joint and several liability in Georgia. In fact, a federal judge in Augusta recently addressed a case in which a state court previously, and apparently erroneously, issued a joint and several liability verdict.

Georgia Court Rejects Lawsuit Against TV Manufacturer Over Deadly Fire

September 15, 2017 | Benjamin S. Persons, IV

Expert testimony is often crucial to product liability cases in Georgia. After all, most people, notably those who serve on a civil jury, lack the technical knowledge of how a given product or manufacturing process works. That is why experts are employed by plaintiffs to establish causation.

Under Georgia law, a trial judge has the discretion to allow expert testimony if three conditions are met:

There are “sufficient facts or data” in the record to support the expert’s opinions;

Can I Recover My Child’s Medical Expenses From a Negligent Third Party?

September 8, 2017 | Benjamin S. Persons, IV

All parents have certain legal obligations towards their children. Under Georgia law, a parent must provide for a child’s “maintenance, protection and education” until he or she reaches 18 years of age. Obviously, this includes paying for a child’s medical care, including care for injuries caused by a third party’s negligence.

Mujkic v. Lam

Of course, the parents do have the right to seek compensation from the negligent party for their out-of-pocket costs. But parents need to be aware of Georgia’s strict deadlines for pursuing such claims in courts. The law in this area is sometimes confusing, but judges do not excuse ignorance or honest mistakes when it comes to filing deadlines.

Is it Malpractice if a Hospital Makes You Wait Too Long to Receive Treatment?

September 4, 2017 | Benjamin S. Persons, IV

We often think of medical malpractice in terms of direct negligence by a physician or other health care provider, such as a surgeon making a critical mistake while performing a procedure and permanently injuring the patient as a result. Not all malpractice is about what a provider does. In many cases it is about what the provider has not done, or more precisely, what it fails to do in a timely manner.

Consider the well-documented issue of waiting times just to receive critical medical care. This is a problem that plagues both public and private healthcare providers. According to a 2016 MSNBC report, the average wait time for care at Department of Veterans Affairs (VA) facilities is about 21 days. Meanwhile, a 2014 review of hospitals in the Atlanta area are found an average wait time of 24 days for family practice doctors and 14 days for all medical specialties.

McKinley v. United States

How Uninsured Motorist Coverage Protects You Following an Accident Caused by a Drunk Driver

August 31, 2017 | Benjamin S. Persons, IV

Each year more than 300 people die on Georgia roadways in drunk driving accidents. While prosecutors can file criminal charges against the drunk driver, that does not compensate victims and their families for their losses. Unfortunately, in many cases the drunk driver either has no insurance or lacks sufficient coverage to fully compensate the victims.

This is where uninsured and underinsured motorist (UM/UIM) coverage can come into play. Under Georgia law, all auto insurance providers must offer UM/UIM coverage as part of their standard policies. The customer has the option to decline such coverage, but must do so in writing. While you are free to purchase any amount of UM/UIM insurance that an insurer offers, state law sets minimum coverage at $25,000 for bodily injury per person (or $50,000 per accident). In many cases, it is a good idea to purchase significantly more coverage, as the damages from an accident can easily exceed $50,000, especially if there is serious injury or death.

Allstate Property and Casualty Insurance Company v. Musgrove

Savannah Homeowners Association Not Liable in Swimming Pool Death of Child

August 25, 2017 | Benjamin S. Persons, IV

According to the Centers for Disease Control and Prevention, 10 people die every day in the United States due to “unintentional drowning.” Children between the ages of 1 and 4 are especially at risk. Among this age group, drowning is the leading cause of death aside from congenital birth defects.

Frazier v. Godley Park Homeowners Association, Inc.

Most child drowning deaths occur in residential swimming pools. In some cases, the pool owner’s negligence may be the proximate cause of the child’s death. You should not assume that just because a child suffers a fatal or non-fatal drowning, the owner is automatically liable. To the contrary, under Georgia law, a swimming pool owner “is not an insurer of its safety.”

Federal Court Rejects Lawsuit Over Metal Shavings Left in Surgical Patients’ Brains

August 18, 2017 | Benjamin S. Persons, IV

One of the medical horror stories you often hear about is a surgeon negligently leaving an object inside of a patient. In fact, this is quite a common problem. According to a 2012 report from Johns Hopkins University, surgeons in the United States “leave an object in a patient at least 39 times a week.” And it may be months or even years before the patient learns about it.

In fact, Georgia’s medical malpractice laws expressly contemplate such scenarios. Normally, a patient has two years from the date of a medical procedure to bring a malpractice case. When a “foreign object has been left in a patient’s body,” the patient has one year from that date of discovery to bring a claim, even if it falls outside the normal two-year statute of limitations.

Nassar Cure v. Intuitive Surgical, Inc.

Can You Sue Someone in Georgia for an Injury That Occurred in a Foreign Country?

August 11, 2017 | Benjamin S. Persons, IV

Georgia courts enforce strict jurisdictional requirements when it comes to personal injury lawsuits. This means you cannot proceed with a case unless the court has both the appropriate subject-matter and geographic authority over the parties. Even when a case does satisfy all jurisdictional requirements, a court may still refuse to hear if there is another, more “convenient” forum available to resolve the dispute.

La Fontaine v. Signature Research, Inc.

This is known as the doctrine of “forum non conveniens.” Under Georgia law, a court may “decline to adjudicate” a lawsuit whenever it “finds that in the interest of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard in a forum outside this state.” This rule, formalized by legislation in 2005, superseded earlier rulings by the Georgia Supreme Court on this subject.

Failure to Recall Exact Location of Accident Dooms Atlanta Victim’s Lawsuit

August 6, 2017 | Benjamin S. Persons, IV

After you have been in an accident, it is critical to gather as much information as you can about what happened. Every little detail may prove crucial if and when you file a personal injury claim against the responsible parties. If possible, you should use your smartphone to take photos of the accident scene and take down the names and contact information of any witnesses. Most importantly, write down every detail that you can remember. Memory becomes more unreliable as time passes, especially if you have been seriously injured, so never assume that you will accurately recall key facts later.

All of these admonitions are even more important if your accident involved negligence on the part of a state or municipal agency. Under Georgia law, before pursuing any personal injury claim against the government, you must first provide an advance (or ante-litem) notice to the relevant agency “stating the time, place, and extent of the injury, as nearly as practicable.” If a victim does not make this notice within six months of the accident, he or she cannot pursue their claim in court.

Williams v. City of Atlanta