All posts by Injury & Disability Lawyers

Georgia Court of Appeals Reverses Defense Verdict For Exclusion of Nurse’s Testimony

By | Trial Practice | No Comments

The Court of Appeals has reversed a defense verdict in a Georgia medical malpractice case, Elliott v. Resurgens, P.C., 2016 3/4/16)LEXIS 119, A15A2275 (3/4/16), where the trial court excluded the testimony of a material witness, a nurse, who had not been specifically identified by name during discovery and not listed in the pre-trial order (PTO).  Elliott sued over allegedly negligent treatment that he received after undergoing spinal surgery (during which he became paralyzed from the waist down).

A critical issue in the case was when the doctor learned of Elliott’s decreased ability to move his legs.  Although the medical records indicated the doctor was at the patient’s bedside at 9:00 a.m., he denied that when called to testify for the purposes of cross-examination at the trial.  Plaintiff’s counsel asked the doctor only one question: Whether he was at Elliott’s bedside at 9:00 a.m. on December 21, 2009? When he responded that he was not, they attempted to call Nurse Sullivan as the next witness. Counsel stated that she was a nurse at the hospital, and that she would testify that she was indeed with the doctor at the patient’s bedside at 9:00 a.m. But, the trial court excluded her testimony, because her name was never disclosed during the lengthy discovery period.

The Court found that the judge had erred holding that exclusion of probative trial evidence is not an appropriate remedy for curing an alleged discovery omission. In fact, that is true even when there is no excuse for a party’s failure to faithfully engage in discovery in compliance with an extended discovery deadline. Instead, if a trial court believes that a party has failed to properly comply with discovery, the only appropriate remedy is postponement of trial or a mistrial. When objection is made to the testimony of certain previously undisclosed witnesses, the proper procedure when they were called to testify was not to object to their testifying or to the admission of their testimony, but to move for a postponement of the trial for a sufficient length of time to enable the defendant to interview them, check the facts to which they would testify, and, if indicated, arrange to secure rebuttal evidence or to impeach them.

This case illustrates strong bias against exclusion of material evidence at trial, no matter what the circumstances.

Volkswagen may have to buy back its vehicles?

By | General | No Comments

The California Air Resources Board has recently rejected Volkswagen’s plan to fix the cars involved in the emissions scandal stating that the proposal contains “gaps,” lacks “sufficient detail,” and does “not adequately address overall impacts on vehicle performance, emissions and safety.” Volkswagen, whose North American assembly plant is located here in Chattanooga, has 45 days to propose a different solution.  Fortune reports that California’s rejection of Volkswagen’s proposal to fix the defective vehicles “increases the likelihood that VW will have to buy back hundreds of thousands of vehicles that breach U.S. limits on emissions, substantially raising the cost of rescuing its reputation in the U.S.”

The California Air Resources Board is scheduled on Feb. 2nd to decide on additional plans for repairing another 85,000 VW, Audi and Porsche cars.


Peterbilt is Recalling 2000 Trucks Due Tire Safety Defect That Can Cause a Crash

By | Trucking | No Comments

Peterbilt is recalling more than 2,000 trucks because they reach speeds greater than their tires are built to handle. The move by Peterbilt in the U.S. and Canada raises questions about the safety of thousands of other big trucks on U.S. roads. Peterbilt is recalling certain tractors from 2009 to 2016 because they can exceed 75 miles per hour, even though the maximum speed their Michelin tires can handle is 65 mph. Such trucks mainly haul automobiles.  The tires on the front or steer axle can fail and cause a crash.

Media outlets are reporting that dealers will reprogram computers so the trucks can’t go over 65.

The National Highway Traffic Safety Administration is encouraging other truck makers with similar risks to fix the problem. But at this time, the agency is not seeking more recalls. NHTSA began investigating Michelin’s 22.5” diameter XZA tires in 2014, and one of the findings was travelling at speeds higher that the tire can handle can lead to tire failure.

In any crash involving a Peterbilt truck manufactured since 2009, such tire failure should be considered as a possible cause, keeping in mind that the recommended maximum speed for certain Michelin tires is only 65 mph.  If the driver was exceeding 65, he was violating that safety recommendation, even if 65 was within the posted speed limit.

Georgia Supreme Court Confirms that Fault Can Be Allocated to Employer Immune from Liability due to Exclusive Remedy

By | Apportionment of Damages | No Comments

Before the Georgia Supreme Court issued its apportionment decision in Zaldivar v. Prickett, 297 Ga. 589 (2015), the United States District Court for the Northern District of Georgia had certified the following question to the Supreme Court, and it has now answered:

Does OCGA § 51-12-33 (c) allow the jury to assess a percentage of fault to the non-party employer of a plaintiff who sues a product manufacturer and seller for negligence in failing to warn about a product danger, even though the non-party employer has immunity under OCGA § 34-9-11?

“Unless there is a compelling reason to treat nonparty employers with immunity under the Workers’ Compensation Act differently than nonparties with other defenses or immunities against liability, Zaldivar requires an affirmative answer to the certified question. We see no such compelling reason, and so, we adhere to Zaldivar and respond to the District Court in the affirmative.”

Walker v. Tensor Machinery, LTD, S15Q1222 (11/16/15).

It is not uncommon for an employee to be severely injured by a dangerous or defective machine, giving rise to a products liability action against the manufacturer of the machine.  Unfortunately, in Georgia, that manufacturer may be able to reduce its liability by offering evidence that the employer was at fault, even though the employee cannot sue his or her employer for damages, as the employee’s remedy against the employer is limited to workers compensation benefits.

As with the Supreme Court’s opinion in Zaldivar, this most recent decision was not unexpected, but it is certainly disappointing.

Only Misconduct of a Quasi Criminal Nature will Bar Georgia Employees from Recovering Workers Compensation Benefits

By | Uncategorized | No Comments

Burdette was a cell tower technician.  It was his first day back at work, and he was assigned to work on the top of a cell tower with the lead tower hand. Prior to the shift, the supervisor had instructed the crew to climb down the towers and not to use controlled descent, which is similar to rappelling, and sometimes used in the industry. The employer required its employees to be trained such descents.  Burdette and the lead man worked together on the same cell tower all day, and when they were done, the lead man instructed Burdette to climb down the tower, but Burdette responded that he wanted to use controlled descent instead:

“I told him no, man, just climb down. Might as well just climb down … . [W]e don’t have a safety rope up here for you to grab. He told me he had done this so many times. I was like, dude, they’re going to be mad if you do it. [Our supervisor] will be mad if you do it and, … you might not have a job or you might, you know, have to deal with the consequences if you don’t listen.”

However, Burdette prepared his equipment and began a controlled descent, but fell, causing severe injuries to his ankle, leg, and hip.  Should he be barred from receiving workers compensation benefits?

The Georgia Court of Appeals determined he would not be barred, even though he had violated instructions from his lead man and the supervisor.  In Burdette v. Chandler Telecom, LLC, 2015 Ga. App. LEXIS 619 (10/30/15), the Court found that the administrative law judge and the State Board of Workers’ Compensation had erred in finding that the claim was barred because the injury resulted from his own willful misconduct, and they reversed the Board’s decision.

“Our Supreme Court has . . . explained that willful misconduct “involves conduct of a quasi criminal nature, the intentional doing of something, either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its probable consequences.” Indeed, the general rule is that “mere violations of instructions, orders, rules, ordinances, and statutes, and the doing of hazardous acts where the danger is obvious, do not, without more, as a matter of law, constitute [willful] misconduct.””

This is an important decision, given the trend in some states, including Tennessee, to find that mere violation of work safety instructions constitutes willful misconduct sufficient to relieve the employer of responsibility for the resulting medical bills and disability benefits. In Burdette the Court of Appeals followed Georgia precedent and reached the correct decision.  Burdette was not drunk or high on drugs, and he did not deliberately try to injure himself.  Allowing an employer to escape responsibility for workers compensation benefits in such a circumstance has repercussions far beyond the immediate parties involved. For instance, if the workers compensation insurer was not required to pay in such circumstances, the hospital would not get paid for the treatment it provided and the burden would ultimately fall on the public.

Tennessee Supreme Court Modifies Summary Judgment Standard

By | Uncategorized | No Comments

Yesterday, in Michelle Rye v. Women’s Care Center of Memphis, the Tennessee Supreme Court overruled Hannan v. Alltel Publishing Co., issued in 2008, and returned Tennessee to a summary judgment standard consistent with the Federal Rules of Civil Procedure.  The Court reasoned that the Hannan decision “has functioned in practice to frustrate the purposes for which summary judgment was intended.”  As a practical matter, it remains to be seen what the impact will be of yesterday’s ruling.  The Legislature had already promulgated legislation in 2011 “with the stated purpose ‘to overrule . . . Hannan.'”   The Rye decision could very well be a simple judicial affirmation of the legislation passed in 2011, and if so, the decision does not necessarily change the law.  That being said, the Rye decision is a clear signal to the trial courts that Hannan is no longer the law.

To read a complete copy of the decision, please click here.

Remedies Available to Georgia VW and Audi Diesel Owners

By | General | No Comments

As covered in our previous post, Tennessee’s Consumer Protection Act may provide a good remedy for owners of Volkswagen and Audi diesel automobiles purchased in Tennessee, as it provides for treble damages and attorneys fees.

Cars subject to the recall, which include the following, will have reduced resale and trade-in value, even after the defective emission control systems are corrected:


2009 – 2105 VW Jetta TDI;

2010 – 2015 VW Golf TDI;

2010 – 2015 Audi A3 TDI;

2012 – 2015 VW Passat TDI;

2012 – 2015 VW Beetle TDI.

If the car was purchased new in Georgia, the Uniform Deceptive Trade Practices Act, O.C.G.A. Sec. 10-1-370 could provide a good remedy as well.  Private actions are permitted, and if an intentional violation is found, the court can award three times the actual damages under O.C.G.A. Sec. 10-1-399, as well as reasonable attorneys’ fees.  This is very important, as the damages to each individual owner may be relatively modest, depending on the diminution in value of each car, but tripling the damage award and adding attorneys’ fees can make it economically feasible to bring individual lawsuits on behalf of diesel owners as an alternative to participating in one of the hundreds of class action lawsuits already filed around the county.


Is Volkswagen Liable for Treble Damages Under Tennessee’s Consumer Protection Act?

By | General | No Comments

Chattanooga is home to Volkswagen’s only North American manufacturing plant. The recent revelations of manipulation of the emission control software on their diesel automobiles are shocking.

According to the EPA, many Volkswagen and Audi vehicles equipped with 4-cylinder diesel engines were programmed to detect when they were undergoing emissions tests. However, during normal operation the software deactivated some of the onboard pollution control equipment. This process apparently helped improve performance but resulted in the vehicles emitting up to 40 times the allowable levels of additional particulates and smog-causing oxides of nitrogen.

“In a statement published by the car maker . . . Chief Executive Officer Martin Winterkorn said, “I personally am deeply sorry that we have broken the trust of our customers.” (from a CNBC report, 9/21/15)

“Volkswagen has ordered an external investigation of this matter,” he said.  German authorities are set to probe Volkswagen for similar emissions manipulation in Germany, according to Dow Jones.

Volkswagen must now work closely with U.S. authorities, the German Transport Ministry spokesperson told newswires, adding that they expect the company to deliver reliable information.

Meanwhile, Vice Chancellor and Economy Minister Sigmar Gabriel told Reuters he was concerned about the “excellent” reputation of German carmakers, saying Volkswagen’s emissions manipulation was a “bad incident,” according to Reuters. Gabriel also called on the company to fully clear up the egregious claims.

VW could face civil penalties of $37,500 for each vehicle not in compliance with federal clean air rules. Some 482,000 four-cylinder VW and Audi diesel cars sold since 2008 are involved in the allegations.  The U.S. Environmental Protection Agency (EPA) said on Friday the software deceived regulators measuring toxic emissions, adding that Volkswagen could face fines of up to $18 billion as a result.”

Volkswagen Could Face Lawsuits by its Customers:

Is Volkswagen guilty of deliberately misleading its customers?  Would they have bought diesel automobiles knowing they would be spewing out “40 times the allowable levels of additional particulates and smog-causing oxides of nitrogen”?

Although Volkswagen will have to recall all those cars, and fix the problem, the vehicles may not perform as well with the emissions controls working correctly.  How will that affect the resale value of the vehicles?

Is Volkswagen guilty of “unfair or deceptive acts”?

The Tennessee Consumer Protection Act is found at T.C.A. § 47-18-101 et seq.  

T.C.A. § 47-18-102 provides that:

“This part shall be liberally construed to promote the following policies, which includes:

(2)  To protect consumers and legitimate business enterprises from those who engage in unfair or deceptive acts or practices in the conduct of any trade or commerce in part or wholly within this state.”

T.C.A. § 47-18-104 makes the following acts, among others, unlawful and in violation of the law:

(2)  Causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services.

(3)  Causing likelihood of confusion or misunderstanding as to affiliation, connection or association with, or certification by, another. . . .

(5)  Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have . .

(7)  Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another . . .

(21)  Using statements or illustrations in any advertisement which create a false impression of the grade, quality, quantity, make, value, age, size, color, usability or origin of the goods or services offered, or which may otherwise misrepresent the goods or services in such a manner that later, on disclosure of the true facts, there is a likelihood that the buyer may be switched from the advertised goods or services to other goods or services;

Lawsuits can be brought against the offending company by persons harmed by such practices, T.C.A. § 47-18-109:

“(a) (1)  Any person who suffers an ascertainable loss of money or property, real, personal, or mixed, or any other article, commodity, or thing of value wherever situated, as a result of the use or employment by another person of an unfair or deceptive act or practice described in § 47-18-104(b) and declared to be unlawful by this part, may bring an action individually to recover actual damages.”

Treble damages can be awarded under subsection (a)(3):

“If the court finds that the use or employment of the unfair or deceptive act or practice was a willful or knowing violation of this part, the court may award three (3) times the actual damages sustained and may provide such other relief as it considers necessary and proper, except that the court may not award exemplary or punitive damages for the same unfair or deceptive practice.”

The damages may be substantial, if the resale value of a Volkswagen or Audi vehicle is diminished, even after the recall repair work is performed.

Attorneys’ fees may be awarded under subsection (e)(1): 

“Upon a finding by the court that a provision of this part has been violated, the court may award to the person bringing such action reasonable attorney’s fees and costs.”


Apportionment of Damages in Georgia, Zaldiver v. Prickett

By | General | No Comments

Georgia’s modified comparative negligence system was radically altered by the tort reform legislation enacted in 2005.  The legislation was rammed through the General Assembly so fast there was none of the usual vetting by the judiciary committees and the resulting laws, effective February 16, 2005, were poorly drafted and procedurally confusing.  Until 2005, apportionment of damages was permitted in Georgia only in those cases against “more than one person” where “the plaintiff is himself to some degree responsible for the injury or damages,” O.C.G.A. § 51-12-33.

O.C.G.A. § 51-12-33 now provides:

“(a) Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.

(b) Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

(c) In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.

(d) (1) Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault.

(2) The notice shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty’s name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.

(e) Nothing in this Code section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly stated in this Code section.

(f) (1) Assessments of percentages of fault of nonparties shall be used only in the determination of the percentage of fault of named parties.

(2) Where fault is assessed against nonparties pursuant to this Code section, findings of fault shall not subject any nonparty to liability in any action or be introduced as evidence of liability in any action.

(g) Notwithstanding the provisions of this Code section or any other provisions of law which might be construed to the contrary, the plaintiff shall not be entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages claimed.”

Recently, in Zaldiver v. Prickett, 2015 Ga. LEXIS 547 (7/6/15), the Georgia Supreme Court held that fault could be allocated to the plaintiff’s employer on a negligent entrustment theory.   It was an odd case, as the defendant contended the plaintiff’s employer was negligent in entrusting the vehicle to the plaintiff.  The Supreme Court held that negligent entrustment of an instrumentality can be a proximate cause of an injury to the person to whom the instrumentality was entrusted, and in the process created a new tort in Georgia, “first party negligent entrustment.”

Under O.C.G.A. § 51-12-33 fault can now be apportioned to entities the plaintiff cannot recover from, such as his or her employer, in spite of the clear language in subsection (b) that the trier of fact can “apportion its award of damages among the persons who are liable.”  An employer simply cannot be held “liable” for damages sustained by its employee in Georgia under O.C.G.A. § 34-9-11.  See dissent by Justice Benham.  However, the majority found otherwise, but to reach that conclusion, they had to overrule Ridgeway v. Whisman, 210 Ga. App. 169 (1993), and hold that negligent entrustment of a vehicle or some other instrumentality to a minor or inexperienced person could result in liability if that person is injured by is use.

Most intriguing, however, are hints by Justice Blackwell that the statute might not apply in all tort cases.  What did he mean by the comment “in the cases to which the statute applies” (f.n.3)?  Does that mean that damages cannot be apportioned unless “an action is brought against more than one person for injury to person or property” and “the plaintiff is to some degree responsible for the injury or damages claimed”?  In other words, if a lawsuit was brought against a single defendant allocation of fault to non-parties would not be permitted?


Tennessee’s One Year Statute of Limitations Can Be Extended to Two Years When Criminal Charges Are Pending Against the Defendant

By | General | No Comments

Tennessee’s one year statute of limitations for personal injury claims often forces plaintiffs to file suit before they even know the full extent of their injuries.  On the other hand, there are probably many meritorious cases that cannot be filed because the statute of limitations expires before the injury victims even think about filing a lawsuit.  Occasionally, plaintiffs cannot access critical evidence due a pending criminal investigation.  The Tennessee legislature has finally granted some relief in the latter situation by extending the statute of limitations from one to two years if:

“(A) Criminal charges are brought against any person alleged to have caused or contributed to the injury; (B) The conduct, transaction, or occurrence that gives rise to the cause of action for civil damages is the subject of a criminal prosecution commenced within one (1) year by: (i) A law enforcement officer; (ii) A district attorney general; or (iii) A grand jury; and (C) The cause of action is brought by the person injured by the criminal conduct against the party prosecuted for such conduct.”  T.C.A. § 28-3-104(a)(2).

So if criminal charges are brought against a defendant within one year after the wreck or other event causing injury, the one year SOL can be extended for another year, if all of the foregoing conditions are met.  This amendment to T.C.A. § 28-3-104 was effective July 1, 2015.  Unfortunately, not many lawyers will be willing to take the risk of waiting more than a year to file suit in a personal injury case where criminal charges are pending, so this provision will not be used often.  However, situations can be envisioned where a meritorious claim might be saved by the operation of this new law.

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