Civil Procedure

September 26, 2016

New Trial Ordered in Georgia Wrong Way Driving Case

by Christopher Simon

Jury neutrality is a cornerstone principle of American jurisprudence. Accordingly, prior to trial, litigants are entitled to question jurors about a variety of topics that may weigh on each prospective juror’s ability to render judgment in a fair manner. In auto accident cases, specifically, jurors are typically questioned about various issues, including their relationship with the parties and previous driving and litigation histories. Although such questioning does not often lead to disqualification, a failure to permit a sufficient inquiry can lead to the rejection of the jury’s ultimate verdict. For instance, in a recent decision, Mordecai v. Cain, the Georgia Court of Appeals vacated a jury’s ruling in an auto accident dispute because the trial court failed to allow particular questioning regarding the prospective jurors’ relationships to a non-party auto insurer.

Mordecai started with an auto accident caused by the defendant, who was driving in the wrong direction on a local roadway when his vehicle collided with the car being operated by the plaintiff. Prior to trial, the defendant and the plaintiff’s uninsured motorist provider moved to exclude all questions related to the prospective jurors’ relationships with the insurance provider unless a juror stated when asked about employment that he or she was currently employed by an insurance company. Alternatively, they argued that if jurors were to be questioned about their relationships with the insurance company, it should be done in the jury assembly area prior to trial. The trial court concurred with the defendant and auto insurer and allowed questions regarding connections to the auto insurer to only be performed by a jury assembly administrator. The administrator testified that she asked the prospective jurors if they were “an officer, employee, stockholder, agent, director or policyholder of State Farm Automobile Mutual Insurance Holding” and that all prospective jurors who answered “yes” were excluded from the panel ultimately sent to the court for voir dire. The case proceeded to trial, after which a verdict was rendered. Finding the judgment unsatisfactory, the plaintiff appealed, arguing, among other things, that the trial court’s preclusion of in-court questioning about the jurors’ connection to State Farm was reversible error.

June 21, 2016

Georgia Federal Court Compels Discovery and Imposes Sanctions in Wrongful Death Case

by Christopher Simon

Courts in America are generally known for their broad discovery rules. Indeed, litigants in American courts, both state and federal, have access to a far wider scope of information than their peers in foreign legal systems. Notwithstanding the expansive breadth of American discovery rules, courts play little role in the exchange of information, leading some litigants to engage in brinkmanship during the discovery process. For instance, in a recent case, Venator v. Interstate Resources, Inc., a Georgia federal magistrate judge was forced to resolve a discovery dispute involving a defendant refusing to disclose supervisor evaluations related to the alleged wrongful death of a tractor-trailer driver.

The death at the heart of Venator occurred in November 2013. The plaintiff in this case was the widow of a tractor-trailer driver who on the 27th of that month arrived at a warehouse owned by Interstate Paper, LLC. Following his arrival at the warehouse, the driver asked an employee at Interstate to assist him in removing a faulty mud flap from the tractor-trailer. The employee agreed and used a fork lift to aid in the removal of the flap. The facts about what occurred afterward remain in dispute, but somehow during the removal process, the driver became pinned between the fork lift and the tractor-trailer. As a result, the driver suffered injuries and died. Following this tragic event, the decedent’s widow then initiated the current suit against Interstate and the employee operating the fork lift, alleging various claims sounding in negligence.

May 23, 2016

Atlanta Federal Court Denies Plaintiff’s Clever Attempt to Have Case Returned to State Court

by Christopher Simon

Although state courts most often serve as the venue for negligence cases, there are certain occasions when a negligence claim may be heard in a federal court. Among these subclasses of state law negligence cases that may be heard in federal courts are those involving “diverse” parties. When all parties are diverse, and the amount in controversy in the case exceeds $75,000, the case may be heard in federal court. However, although these cases may be heard in federal court, they may still be heard in state courts, and plaintiffs will often elect to file suit in a state court for a variety of reasons. In certain instances, however, a defendant may find the plaintiff’s motive for filing in state court to be tactical or see a possible benefit to be derived from defending the claim in a federal forum and, accordingly, seek removal to a federal court. Following removal, dissatisfied plaintiffs will often try to devise a way to have a case remanded to the state court where they originally filed the action. These varied procedural games associated with removal and remand were raised in a recent decision by an Atlanta federal court, Threatt v. Jasenauskas.

Threatt started with a motor vehicle accident involving a MARTA bus and a tractor trailer. The plaintiff, who was operating the bus, was driving along Continental Way in DeKalb County when a tractor trailer collided with the bus. The tractor trailer was owned by Atlantic Transport, Inc. and insured by National Casualty Company. Following the accident, the plaintiff brought suit against the driver of the tractor trailer as well as Atlantic Transport and National Casualty Company. Atlantic Transport and National Casualty Company, however, filed a notice of removal, arguing that the case should be heard in federal court. Specifically, these defendants asserted that since the plaintiff alleged damages in excess of $75,000, and complete diversity existed between the plaintiff and the defendants, the case should be heard in federal court.

March 11, 2016

Georgia Court of Appeals Examines Where Venue is Proper in a Medical Negligence Case

by Christopher Simon

Although we consider gamesmanship in the selection of where a case should be filed to be a more prevalent issue in the federal court system, arguments regarding the venue of cases are not uncommon in Georgia courts. Plaintiffs may often find a material advantage to having a case heard in a particular setting and attempt to defend their choice of venue against challenges from defendants who, for obvious reasons, find the choice detrimental to their interests. Indeed, the propriety of a venue choice was at the heart of a recent case before the Georgia Court of Appeals, Bd. of Regents v. Jordan, in which the court examined whether venue of a medical negligence case was proper in DeKalb County.

Jordan arose from an alleged incident of medical negligence related to the care and treatment of two minors at Children’s Hospital of Georgia, which is located in Richmond County and is part of the state’s university health system. After undergoing surgical procedures at Children’s Hospital, both minors were subsequently transferred to Children’s Healthcare of Atlanta, located in DeKalb County, where they underwent several corrective surgeries requiring prolonged hospitalization. Their parents filed individual medical negligence lawsuits in DeKalb County. The defendants in these suits moved to have the cases transferred to Richmond County, but the motions were denied in each case because the trial court found that venue was proper in DeKalb County. The defendants filed interlocutory appeals of these denials, and the Court of Appeals consolidated the cases for the purposes of appeal.

December 13, 2015

Georgia Court of Appeals Affirms Dismissal of Railroad Employee’s Negligence Suit

by Christopher Simon

It is common knowledge that workers’ compensation schemes bar, in most circumstances, negligence claims brought by an employee against his or her employer. Given that recovery in the workers’ compensation setting can be more limited than desired, litigants will often try to fit their negligence claims against an employer within the confines of those claims that are not barred under workers’ compensation laws. The Georgia Court of Appeals recently dealt with this practice in Dixon v. CSX Intermodal Terminals, Inc., a case that arose from the injury of an employee who fell while on the job.

The plaintiff in Dixon is an employee of the defendant, CSX Intermodal Terminals (“CSXIT”), which is a business providing motor carrier and transloading services. While attempting to unlock an interbox-connector, which is used to hitch containers in a railcar, the plaintiff fell. Following this accident, the plaintiff received $162,000 in workers’ compensation insurance benefits, the receipt of which bars claims for common law negligence against the employer under Georgia law. However, the statutory scheme does not bar claims brought under the Federal Employee Liability Act (“FELA”), and the plaintiff ultimately brought suit against CSXIT, alleging a negligence claim under this statute. The trial court ultimately granted summary judgment in favor of the employer, which argued that it is not covered by the provisions of the FELA. The employee appealed.

January 1, 2015

Georgia Court of Appeals Renews Medical Malpractice Claim in Divided Decision

by Christopher Simon

Georgia law imposes a strict two-year statute of limitations on medical negligence claims. Indeed, many potentially viable malpractice claims have been lost because the plaintiff has failed to file a timely complaint. However, as a recent decision from the Georgia Court of Appeals shows, clever pleading can, at least in some instances, help preserve a plaintiff’s day in court.

The case, Smith v. Danson, arose from an alleged act of medical negligence that occurred in February 2011. At that time, the plaintiff in this action underwent a laparoscopic hysterectomy, which was performed by the defendant physician. Following the procedure, the defendant allegedly told the plaintiff that her stomach was firm because excess gas had been pumped into her stomach during the procedure. The plaintiff was discharged two days later and was scheduled for an initial post-operative checkup on March 16, 2011. The plaintiff alleges that she initially felt fine following the procedure but that she began to experience deleterious symptoms shortly thereafter. The plaintiff went back to the defendant for her checkup and after the examination asked what she should do about the gas in her stomach. The defendant suggested changes in diet, including an increased intake of probiotics. The plaintiff’s symptoms continued to worsen, and she soon sought medical treatment from other health care providers. The plaintiff ultimately discovered that she had a kidney obstruction that was likely caused when the kidney was clamped down during the surgery. The plaintiff also alleged she was told that her bladder had been nicked during the procedure. The injuries had caused urine to build up in her abdomen, and the plaintiff had to undergo several corrective surgical procedures.