Articles Posted in Expert Evidence

The sad reality is there are over a thousand people killed every year in Georgia accidents but not all of them should be lawsuits. This is the woeful tale of a dimwit attorney filing a lawsuit on behalf of a motorcyclist who was clearly hauling way to fast down the road, when he died in the crash. I have handled cases like this for guys on motorcycles and it is rarely the Harleys or cruising bikes, usually the sport bikes where speed is the killer. In the case we handled, we realized deep into the evidence that our guy was likely going 70 in a 45 when he underode a tractor trailer in broad daylight. It’s not a good case and we settled for the $90,000 they offered to ensure that the 13 year old daughter would have money for college. Unfortunately for the family of a Georgia motorcyclist who suffered fatal injuries in an accident his lawyers ignored reality. They filed a wrongful death and negligence lawsuit against two occupants of the vehicle that struck their loved one. After a jury found in favor of the defendants and said it was the motorcycle rider’s fault for speeding, the plaintiffs moved for a new trial. The trial court denied their motion, and the plaintiffs filed an appeal. On appeal, the biker’s estate argued that the trial court erred in permitting inadmissible witness testimony and denying their motion for a new trial.

At trial, the court permitted eyewitnesses to testify that the biker was driving around 80 to 100 miles per hour before the accident. Further, they allowed a police officer to testify that, based on the bike’s engine sound, the motorcyclist’s speed was between 60 and 90 miles per hour. The plaintiffs argued that the court erred in allowing this testimony because the witnesses did not see the bike at the time of the collision. The plaintiffs argued that the law only permits witnesses to estimate a vehicle’s speed if they saw the vehicle when the accident occurred. Everyone knows what a sport bike sounds like at speed. It is unmistakeable. It is no surprise the judge and jury found the way they did.

Georgia Code section 24-7-701 permits a non-expert witness to testify only in instances where their opinions are rationally based on their perception, helpful to understanding a witness’s testimony, and not based on technical, scientific, or specialized knowledge. In this case, the court found that the trial court did not err in permitting this testimony. It explained that the witnesses provided a basis for their opinions, including their personal experience riding and observing motorcycles and seeing the plaintiff’s bike on the day of the accident. The court reasoned that this factual foundation was sufficient to allow the witnesses to testify to the motorcycle’s speed before and at the time of a collision, even if they did not observe the impact.

In a recent medical malpractice decision, the Georgia Court of Appeals addressed an intriguing issue concerning whether jurors may use the sense of touch in weighing evidence.  The decision, Piedmont Newnan Hospital, Inc. v. RA-085 Barbour, arose from an alleged act of medical negligence that occurred during the course of medical testing at a Georgia hospital.  During the trial, counsel for the plaintiff requested that the jury be allowed to touch the plaintiff’s hands in order to determine whether there was a perceptible difference in temperature, a fact important for assessing the testimony provided by the parties’ competing expert witnesses.  The trial court granted the plaintiff’s request, permitting jurors who wished to touch the plaintiff’s hands to do so. Following the trial, which led to a favorable judgment for the plaintiff, the defendant appealed several issues, including the trial court’s ruling to let the jury utilize their sense of touch.

This events leading to this suit started on June 1, 2011, when the plaintiff visited the defendant hospital, complaining of chest pain and labored breathing. The plaintiff underwent a battery of diagnostic tests, in particular a nuclear stress test, which compares blood flow to the heart at periods of rest and stress. The test requires a small amount of nuclear material to be injected into the patient’s bloodstream, so that it may serve as a tracer and aid in taking images of the heart. In this case, the tracer was administered using an IV catheter, which was originally placed in the patient’s left arm. During the stress portion of the test, and shortly after a second dose was administered, the plaintiff began to experience pain. A nurse terminated the test, believing that the nuclear material may have infiltrated the plaintiff’s arm. The plaintiff was discharged with instructions for dealing with his arm.

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Although we expect all products to function as anticipated, that is especially true for those products on which we rely to provide safety during dangerous situations.  Indeed, when the risk of harm is high, an equipment failure can lead to truly tragic results. This type of product failure was at the heart of a recent decision from the Georgia Court of Appeals, Key Safety Sys., Inc. v. Bruner, which involved a product defect in the seatbelt restraint system of a Jeep Wrangler.

This suit centers around a rollover accident that occurred in September 2007. The suit was brought by the husband of the passenger of the jeep, acting as the personal representative of the estate of his wife, who died as a result of the accident. The decedent’s husband owned the vehicle, but it was being driven by his daughter at the time of the turnover. The reasons for the turnover remained unknown. Both the driver and the decedent were apparently wearing their seatbelts, but during the course of the accident the decedent was ejected from the vehicle and sustained various severe injuries, including a loss of body tissue around her upper legs and abdomen. The decedent eventually succumbed to her injuries. The vehicle seatbelt restraint system was designed, constructed, and integrated by Key Safety Systems, Inc. The husband brought suit against Key and various governmental entities, alleging failure to warn, strict product liability, negligence, and failure to recall and/or retrofit. The case proceeded to a trial, after which the jury returned a verdict awarding the plaintiff $4,600,000. The jury apportioned 20 percent of the fault to the decedent’s daughter and 80 percent of the fault to Key. In light of this unfavorable verdict, Key brought an appeal, arguing that the trial court erred by denying its motions for directed verdict and judgment notwithstanding the verdict with respect to the failure to warn claim, and by admitting expert testimony regarding certain seatbelt retractor mechanism testing performed by the expert witness and a video of such testing.

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Georgia law requires that a plaintiff in a medical malpractice action provide an expert affidavit that must generally set forth the defendant’s failure to comply with the applicable standard of care. See O.C.G.A. § 9-11-9.1(a). Failure to comply with this requirement renders one incapable of successfully advancing a medical negligence claim. However, there are cases when actual testimony from a medical expert is unnecessary to ultimately succeed on a malpractice claim. For instance, the “pronounced results” exceptions obviates the need for expert testimony when the injury is of such an obvious nature that a jury can appraise the failure to exercise care without the assistance of an expert on the subject. In a recent decision, Zarate-Martinez v. Echemendia, the Georgia Court of Appeals addressed the interesting question of whether the expert affidavit requirement is waived in cases when a pronounced results exception is viable.

The plaintiff in this case alleges that a physician negligently performed an out-patient open laporoscopic tubal ligation procedure on her. The plaintiff had gone home the same day of the surgery without incident but started to experience pain, nausea, and fever over the coming days. She eventually went to the emergency room, where it was discovered that a part of her lower intestine had been perforated. The perforation was repaired, and the plaintiff remained in the hospital for further treatment.

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Not all plaintiffs are the same, and there are many problems that can arise in injury litigation when a plaintiff with preexisting medical conditions is injured, since these preexisting conditions can make determining the exact source of symptoms exceedingly more complicated. Indeed, causation is a critical element for proving a negligence claim, and it follows that the existence of pre-existing conditions can pose trouble for establishing the necessary causal link between an act of negligence and the harm suffered. This dynamic is illustrated in a recent decision from the Northern District of Georgia, Bruce v. Classic Carrier, Inc., in which the court needed to determine whether a plaintiff needed to proffer expert testimony establishing causation for his neck injury, since he had pre-existing neck ailments from a prior motor vehicle accident.

The Bruce litigation involves not one but two auto accidents. The first of these accidents occurred on May 31, 2008, when the vehicle that the plaintiff in this action was driving was struck from behind by another motorist’s car. As a result of this accident, the plaintiff was sent to the hospital, where he was treated by physicians and injected with pain medication. The second accident occurred less than a month later, on June 11, 2008. On this day, a tractor-trailer being driven by an employee of one of the defendants in this action rear-ended another vehicle that, in turn, struck the back of the plaintiff’s vehicle. The plaintiff was again ushered to the hospital, where he was treated for neck, arm, and back pain, injected with more pain medication, and prescribed additional pain medication. To make matters worse, the plaintiff had a long history of spine-related medical ailments, which included psoriatic arthritis with spondylitis, radiculopathy of the cervical and lumbar vertebrae, post-cervical fusion syndrome, and post-lumbar laminectomy syndrome. He had been seeing a rheumatologist for these issues since 1999 and had undergone neck surgery in 2001. In addition, the plaintiff had been seeing a pain management specialist since 2005 to treat recurring pain and numbness in various regions of his body, including in his neck, back, hip, shoulder, and fingers. Following the aforementioned accidents, the plaintiff was referred to a spinal surgeon, who believed the plaintiff’s symptoms had been exacerbated by the two accidents, recommended physical therapy, and sometime thereafter, advised the plaintiff to undergo a second neck surgery.

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