Bringing the Right Experience and Legal Insight to Georgia

u-s-supreme-court-washington-dc-1224318-300x226In 2018, the Supreme Court of Georgia in Cooper Tire & Rubber Company v. Koch, 339 Ga. App. 357 (793 SE2d 564), advised that the plaintiff has a duty to preserve relevant evidence when plaintiff actually anticipates or reasonably should anticipate litigation.   The above cited case involved a tire tread (manufactured by Cooper Tire) that separated from the left rear tire in 2012 which caused a Ford Explorer to strike a guardrail.  The driver suffered serious and permanent injuries and subsequently died from those injuries.

The left rear tire was the only part of the car that was saved from the Ford Explorer.  In 2014, the estate of the deceased filed a product liability claim against Cooper Tire & Rubber Co. which alleged catastrophic tread separation and resultant collision due to negligent design and manufacture, strict liability, and failure to warn. Cooper Tire filed a motion to dismiss the complaint due to spoliation of evidence.  The trail court denied that motion inasmuch as litigation was not reasonably foreseeable or reasonably contemplated by the plaintiff.

The Georgia Court of Appeals affirmed the order of the trial court and rejected Cooper Tire’s argument that the trial court focused exclusively on whether plaintiff subjectively knew that a lawsuit over the incident and tire tread allegation was likely. The Appellate Court held that there was a distinct difference between whether defendant “actually or reasonably should have foreseen litigation” versus the plaintiff.  The Court of Appeals held that the trial court did not abuse any discretion in relying upon Phillips v. Harmon, 297 Ga. 386 (774 SE2d 596)(2015), which applied an objective standard for spoliation.  Yet, the Court of Appeals did note that reasonable foreseeability of litigation involved both objective and subjective criteria.

Last week, two pit bulls combined to go in for the kill on a horse in Gwinnett County.  Somehow, the pit bull dogs were able to enter into the corral on the premises of a Buford area home.  The owner, Barbara Horrobin, advised that her horse underwent over four hours of suturing the wound from injuries to the neck, throat and armpit.  Horrobin stated that “[i]t was gruesome.”

I am not surprised at seeing yet another pit bull attack in Georgia.  The pit bull breed is still a popular choice among Georgia residents.  The more pit bulls in an area, the higher likelihood of an attack.

In this case, the pit bulls were prowling for a victim off their owner’s land and attacked without being provoked, teased or physically touched in any way.  Can you imagine if the two pit bulls went after a young child or baby?  It would most likely have led to the death of a human.

I field a good number of calls every year from concerned parents regarding injuries to their children at school.  The injuries usually occur on the playground or from other students (bullies) in the classroom.  The parents are upset as they claim that the injuries could have been prevented by proper supervision by the teachers and/or administrators. Typically, I tell the parent that it is quite difficult to pin liability on the teacher and the school for these harms.  A recent court case on this very issue was published today by the Georgia Supreme Court and is instructive for future student injuries at school.

In Barnett v. Caldwell, S17G0641, a high school student, Antoine Williams, was engaging in horseplay with another student at Benjamin E. Mays High School, a school in Southwest Atlanta.  The attending teacher, Phyllis Caldwell, left her classroom unattended around 2:45 p.m., and asked another teacher to “listen out” for her class.  Ms. Caldwell did not instruct the hall monitor to watch her class.

Antoine and another student were horsing around and Antoine fell to the ground with the other student on top of him.  The incident caused Antoine to lacerate a major blood vessel by a dislocated collarbone.  EMT took Antoine to the hospital where he was pronounced dead.

The “Textalyzer” is a device that allows law enforcement officials to review an individual’s cell phone usage using a machine that was developed by forensic technology maker Cellebrite. When the Textalyzer is connected to a target’s cell phone, it reveals if and when a phone was active and lists the apps that were being viewed or used and the times at which the phone was active. The Textalyzer has not yet been deployed for use by law enforcement personnel, but proponents and opponents have raised justifiable concerns regarding how the technology will be used to reduce texting and driving while balancing Fourth Amendment privacy concerns.

The name Textalyzer is so-named because of the device’s similarity to the breathalyzer device as both are a means of subsequently collecting data following an accident or traffic stop. Thus, defense attorneys have raised concerns about the implications on regulating the effects of refusing to consent to a Textalyzer analysis. If an individual is pulled over on suspicion of drunk driving, he may refuse consent to a breathalyzer, but withholding consent will result in an automatic one-year suspension of the driver’s driving privileges. So, if a similar requirement is imposed upon individuals stopped on a suspicion of texting and driving, individuals may be forced to choose between relinquishing control of their cell phone over to law enforcement officials or lose driving privileges for a year. However, proponents of the Textalyzer argue that the design of the technology itself prevents the infringement of citizens’ Fourth Amendment protections against unreasonable searches and seizures. The device only reveals if the phone was being used and how it was being used. It does not display the content of a text message or email. But, while the device in its current state does not appear to have the capability or option of displaying the content of texts or emails, it is only a matter of time until prosecutors begin to ask for an expansion of the technology to afford them the opportunity to view the content of those messages as a means of solving more serious crimes.

Right now, because the Textalyzer is not in use, drivers can only be charged with texting and driving if they are caught “red-handed” in the act of texting while operating a motor vehicle. Thus, the deterrent effect of the statute in its current form is minimal, as the burden on law enforcement officials is great and the risk of enforcement as to each individual driver is low. The opponents of the Textalyzer technology admit that texting while driving is indeed a problem necessitating some action as an attempt to minimize the frequency of texting and driving. To be sure, texting and driving includes not only sending a text message while operating a motor vehicle, but also prohibits the use of a cell phone generally while operating a motor vehicle. Before enacting a statute authorizing the widespread implementation of the Textalyzer as a means of combatting texting and driving, legislators must weigh the importance of combatting the use of cell phones while individuals operate motor vehicles with privacy concerns and individuals’ Fourth Amendment rights.

(photo attributed to Wikipedia)

The Boston Scientific Corporation manufactured a transvaginal mesh prescription medical device that was designed to prevent the pelvic organs from falling through the vagina. The mesh sheet is made from a type of plastic and is implanted surgically into the patient. The plaintiff, Amal Eghnayem, had the sheet implanted in February of 2008 to treat her pelvic organ prolapse, but began to experience severe negative reactions in the following months. Amal experienced bleeding and pain during intercourse, incontinence and pelvic pain and pressure, and during an examination it was revealed that she had exposed mesh that was causing her severe symptoms. After an unsuccessful attempt to alleviate her pain, Amal visited a second doctor who found another mesh exposure and performed a second mesh-removal surgery. Following the second surgery, Amal’s pain subsided but by that time she had lost vaginal sensitivity. Amal subsequently filed suit seeking compensatory and punitive damages based on claims for negligent design defect, negligent failure to warn, strict-liability design defect and strict-liability failure to warn. Additionally, three other plaintiffs filed lawsuits and the United States District Court for the Southern District of West Virginia consolidated the suits.

At trial, the jury found for each of the plaintiffs on all four claims and awarded more than six million dollars to each plaintiff. The Boston Scientific Corporation appealed from the judgment on two separate grounds. First, the Boston Scientific Corporation argued that the district court abused its discretion by consolidating the plaintiff’s four suits and trying them together.  Second, the Corporation argued that the district court abused its discretion by excluding all evidence relating to the Food and Drug administration’s clearance of the mesh for sale through the FDA’s “substantial equivalence” process. The trial court excluded the evidence under two different Federal Rules of Evidence. The first, Rule 402, provides that irrelevant evidence is not admissible, and the second, Rule 403, provides that relevant evidence may be excluded, “if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, or wasting time.”

In wrongful death actions, as well as in civil tort cases in general, an injured plaintiff must prove that his injury was “caused by” the defendant in order to recover for his or her injuries. This doctrine, known as the “chain of causation,” stands for the preposition that a plaintiff should only be able to recover for harms which are a proximate result of the defendant’s acts. Thus a defendant will not be liable if the causal chain is broken by some intervening or superseding factor. To that point, the Supreme Court of Georgia recently reversed a lower court ruling regarding superseding acts in Jordan v. Everson.

Ben Everson was attended by Brian Jordan, an emergency room physician, two days before his death because Everson was hearing voices and hallucinating. Dr. Jordan diagnosed Everson with obsessive-compulsive disorder, ordered that he be discharged, and gave instructions that Everson should make an appointment to be evaluated at a mental health facility. Emergency room staff made an appointment for Everson at a local facility, but due to family contacts at Duke University, the Eversons decided to take Ben to Durham rather than a nearby facility. However, on the way to the facility, Ben took off his seat belt, jumped out of the moving car and was subsequently struck by a vehicle and killed as he ran down the highway.

Dr. Jordan moved for summary judgment as to a lack of causation for Everson’s death, but the trial court denied the his motion, ruling that a jury would have to determine that the action of driving Ben to Durham was wrongful or negligent before it could determine that such action broke any causal chain between Jordan’s conduct and Ben’s death. But, the Supreme Court of Georgia found this to be in error, as there is no requirement in Georgia that an intervening act be “wrongful or negligent” to break the causal chain. Rather than wrongful or negligent, an intervening act need only be foreseeable by Dr. Jordan, or if it was triggered by his conduct. In other words, it must have been foreseeable that Dr. Jordan’s actions would cause Ben Everson to exit the vehicle on the highway and perish in that manner for the chain of causation to remain unbroken. Additionally, the chain of causation would remain unbroken if Everson’s death were somehow triggered by Dr. Jordan’s conduct.

Generally, a court must have proper jurisdiction over a case or controversy before that case may be heard in a given county or state. Proper jurisdiction requires that a court have both personal and subject matter jurisdiction over a case or controversy. As to personal jurisdiction, courts have recognized two categories: general and specific. Proper general jurisdiction depends on the nature of the party to the suit and that party’s geographic location, as general jurisdiction over an individual rests only in a defendant’s domiciled state or county, and general jurisdiction over a corporation rests in a place “in which the corporation is fairly regarded as home.” Conversely, specific jurisdiction requires the suit to “arise out of or relate to the defendant’s contacts with the forum.” The primary concern of an appellate court in assessing a grant of jurisdiction over a nonresident defendant is the burden on the defendant and the accompanying Due Process Clause concerns where a defendant is forced to submit to the “coercive power of a State that may have little legitimate interest in the claims in question.”

This case, which arose from allegations that Plavix had damaged the plaintiffs’ health, was heard by the California Court of Appeals where the Court found that California courts lacked general jurisdiction, but had specific jurisdiction over the claims brought by the nonresident plaintiffs. The California Supreme Court affirmed the Court of Appeals’ ruling based on a “sliding scale approach” to specific jurisdiction. The California Supreme Court’s “sliding scale approach” conclusion was based on Bristol Myers Squibb’s “wide ranging contacts” with the State because the nonresident’s claims were similar enough with California resident’s claims and because Bristol Myers was engaged in other activities in the State. However, the U.S. Supreme Court rejected California’s “sliding scale approach” as it was unable to square the “loose and spurious form of general jurisdiction” with the U.S. Supreme Court’s existing precedents.

On June 19, 2017, Justice Alito, with whom seven other justices joined, delivered the opinion of the Court, requiring a narrow interpretation of specific jurisdiction. According to the holding in Bristol-Myers Squibb Co. v. Superior Court of California, Et al., specific jurisdiction requires the existence of an “affiliation between the forum and the underlying controversy, principally, an activity or an occurrence that takes place in the forum state.” So, when no connection exists, specific jurisdiction is lacking regardless of the extent of a defendant’s activities within the State unconnected to the nonresident plaintiffs. The holding further asserted that the mere fact that other plaintiffs were prescribed Plavix in California was insufficient to assert specific jurisdiction over the nonresidents’ claims.  Moreover, even the fact that Bristol Myers conducted research in California unrelated to Plavix was insufficient to support a grant of specific jurisdiction. Thus, a grant of specific jurisdiction must rest on a connection between the forum and the specific claim at issue. Attenuated links or connections, without more, are insufficient to satisfy the jurisdictional requirements.

In Olevik v. State, the Supreme Court of Georgia (on October 16, 2017) held that the Georgia Constitution prohibits law enforcement officials from compelling a person suspected of DUI to “blow their deep lung air into a breathalyzer.” The protection against self-incrimination enshrined in the Georgia Constitution, and in Georgia case law dating back to 1879, differs from the United States Constitution, as the latter only provides protection for individuals against incriminating themselves through testimonial evidence.  Tangible evidence, such as the results of a breathalyzer test is not protected by the self-incrimination provision of the 5th Amendment.

Georgia law has a two tier DUI statute under which an individual who operates a motor vehicle under the influence of drugs or alcohol can be charged. First, a person is guilty of “DUI per se” when he or she operates a motor vehicle with a blood alcohol content (“BAC”) of 0.08 grams or more. Moreover, regardless of BAC, it is unlawful for a person to drive under the influence of alcohol or drugs to the extent it is less safe to do so. The latter is commonly known as “DUI less safe.” This two tier statutory framework reflects the Georgia legislature’s belief in the importance of combatting drivers who get behind the wheel while under the influence of drugs or alcohol. However, the enforcement of this important policy requires cooperation from the suspect, as determining whether a driver is under the influence requires field sobriety and chemical tests of the driver’s breath, blood, or urine. So, to elicit cooperation from potentially impaired drivers, Georgia enacted an implied consent statute which provides that drivers have agreed to submit to chemical testing as a condition of receiving a driver’s license, and that a person’s driving privilege will be suspended if he or she refused to take a chemical test after being arrested for a DUI offense, or having been involved in a traffic accident resulting in serious injuries or fatalities.

Mr. Olevik was arrested and charged for DUI, and after the trial court rejected his motion to suppress the breath tests on the basis that the he was coerced into taking the test in violation of his right against compelled self-incrimination, Olevik was found guilty of the charges following a bench trial. Olevik appealed the denial of his motion to suppress the breathalyzer results, but the Supreme Court of Georgia ruled that his claims were precluded by earlier case law. However, at oral argument Olevik’s attorney requested that the court reexamine whether the precedent remained good law. Specifically, the Supreme Court held that Klink v. State was wrongly decided to the extent that it “concluded that a breath test did not implicate the state constitutional right against compelled self-incrimination.”

The California Department of Motor Vehicles indicated this week that an updated set of proposed rules for self-driving cars would only require companies that test self-driving cars to notify local authorities about when the testing would occur, but need not ask for permission. Peter Sweatman, predicted that fully autonomous cars will probably be in use for ride-sharing and parcel delivery within 18 months, and according to the California Department of Motor Vehicles, forty-two companies are already testing 285 autonomous vehicles with backup drivers on California roads. Current California rules require a human driver as backup on public roads; however, the updated set of proposed rules may not include a human driver requirement. This disclosure should concern interested parties from several different viewpoints.

(photo attributed to

First, safety concerns of pedestrians and other drivers on the road should be the primary focus of inquiry where autonomous vehicles are operated without human oversight. Not only does all technology inevitably malfunction, but the hacking of new technologies has become increasingly prevalent in today’s society. The hacking of consumer data and personal information has been the primary focus recently, but that could change if hackers are given a new target with no human fail-safe in place. For example, the malfunction of a navigation system of an eighteen-wheeler could result in numerous fatalities, particularly in California where the roads are consistently congested. The consequences are largely speculative at this point, but if commercial vehicles full of consumer goods are entirely autonomous, it is plausible to suggest that hackers could enter the vehicles navigation system and alter destinations, or cause the vehicle to crash and destroy the vehicles payload. Such an accident would be widely publicized and would likely have significant impacts on a company’s stock.

One of the leading international manufacturers of motorcycles has been sued by an injured motorcyclist following a crash allegedly resulting from Harley Davidson’s failure to warn Kenneth LaMountain about a defect in the cooling line system. More specifically, Mr. LaMountain, the plaintiff, crashed while operating his Harley Davidson motorcycle after the engine oil cool line line system malfunctioned, causing oil to leak onto the rear tire resulting in the motorcycle crashing and injuring the plaintiff.

There are several different legal doctrines upon which a products liability claim can be based. The first, a manufacturing defect, alleges that the motorcycle part in question was faulty or failed to conform with the specifications of how the part was normally designed and manufactured. Thus, when alleging a manufacturing defect, the plaintiff must prove that the product is more dangerous than a consumer would reasonably expect when using the product in its intended manner, or that the product is in a condition not intended by the manufacturer and the defect existed at the time it left the defendant’s hands. Moreover, the law imposes strict liability upon manufacturers where a product is in an unreasonably dangerous defective condition, meaning that any plaintiff who is a user, consumer or bystander injured while using a defective product may recover damages. Strict liability differs from a negligence action where a plaintiff must prove that the defendant owed plaintiff a duty, the defendant breached that duty, and the plaintiff suffered injuries as a proximate result of the defendant’s breach. Here, the complaint alleges that Harley Davidson should be held strictly liable for a manufacturing defect, as the oil clamps were in a flawed condition when it left the manufacturer’s control.

The second legal doctrine is failure to warn, where the plaintiff must show that the defendant breached its duty to warn about risks of which it knew or should have known. Typically, a plaintiff will show that the injury is attributable to the defendant by showing that the defect that injured the plaintiff was in existence at the time it left the defendant’s control. The general requirement that the plaintiff show that the defect was in existence at the time it left the defendant’s control is likely why the plaintiff brought the duty to warn claim in the suit against Cowboy Motorsports, the distributor, rather than the manufacturer. In this case, absent clear evidence, the plaintiff will likely be unable to prove that the manufacturer, Harley Davidson, knew or should have known about the risk. Thus, the plaintiff’s attorney brought this duty to warn against the party against whom he was more likely to prevail.

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