CLOSE X
RSS Feed LinkedIn Instagram Twitter Facebook
Search:
FMG Law Blog Line

Archive for the ‘Tort and Catastrophic Loss – GA’ Category

Seeking Sanctions Against a Dishonest Plaintiff

Posted on: October 19th, 2020

By: Jennifer Adair

Sanctions for discovery abuses are not a weapon reserved for the plaintiff, and defense attorneys should not shy away from pulling this arrow from their quiver when misrepresentations by the plaintiff are so egregious that a vigorous cross-examination at trial simply will not suffice. Rather, defendants should consider whether to petition the court for the relief necessary to obtain a just result.

In two recent automobile accident cases in Georgia, our firm encountered plaintiffs who claimed both in written discovery and in depositions that they never experienced prior similar injuries. Through the diligent pursuit of medical and claim records, we uncovered that both had extensive relevant medical histories – even to the extent of surgery! – which they concealed from the defense.  Not only did the plaintiffs misrepresent their medical histories, but they failed to disclose those providers whose records would expose their dishonesty.  Those deceptions went to the very heart of the case – whether the motor vehicle accident at issue was the cause of the injury alleged.

Time after time, courts have authorized sanctions for false and misleading discovery responses, up to and including striking the pleading of the offending party. The courts have recognized that a false discovery response is graver than a total failure to respond because the other party may never learn that the response it received is false.  Counsel should carefully consider the issues faced in each case, and the laws of each jurisdiction, to craft proposed sanctions that address the specific harm caused by the plaintiff. In the examples above, we requested, in the alternative:

  • Striking of plaintiff’s complaint
  • Precluding plaintiff from offering any evidence or testimony as to the condition about which she was dishonest
  • Striking plaintiff’s causation experts, who were not accurately informed of her medical history
  • Precluding plaintiff from cross-examining defense causation experts
  • A limited reopening of discovery as to the subject matter of the false response
  • A jury charge on spoliation
  • Attorney’s fees and expenses
  • Finding plaintiff in contempt of court

In both matters, we were successful in persuading the trial court to preclude the plaintiffs from giving any testimony or other evidence of any condition for which they lied about prior treatment. In effect this prevented each from offering evidence of or obtaining any recovery whatsoever for multiple surgeries. The remedies available in other jurisdictions vary, but the policy reasons for awarding such sanctions hold consistent. Similarly, while a personal injury case more frequently lends itself to similar dishonesty, the obligation to provide truthful discovery responses is universal and sanctions should be considered as a strategy any time the opposing party lies.

Faced with a dishonest plaintiff, defendants and their attorneys should carefully consider which cases are appropriate for requesting sanctions. Cases involving a legitimate misunderstanding or a highly nuanced discrepancy are unlikely to evoke a harsh response. Further, if the plaintiff is not aware that the defendants have learned he was dishonest, there may be a strategic advantage to saving the information for use at trial as impeachment so that the plaintiff will not have an opportunity to get his story straight. Seeking sanctions is a strategic decision for attorneys and their clients, but can be an important tool in combatting the unscrupulous plaintiff.

For more information, please contact Jennifer Adair at [email protected].

Changes in the Landscape of Civil Litigation in the COVID-19 Era

Posted on: September 17th, 2020

By: Christopher Lee

As economic and social norms have been drastically altered over the course of these last several months in the COVID-19 era, so too has the effect been on civil litigants on both sides and the considerations being made by the parties engaged in litigation. As discussed more fully below,  many disputes will see an increased opportunity for early settlement and compromise, while others will simply encounter delays. Nonetheless, it is essential for all litigants to understand the consequences of the altered landscape to effectively navigate this environment in these difficult times. 

Considerations are now being made on both sides of the table that simply did not exist prior to the pandemic. Plaintiffs now are acutely aware of the potential for insolvency of their litigation adversaries and are now carefully considering whether to settle their disputes earlier rather than later, taking into account the financial position of their adversary as the pandemic continues to affect the economy. Thus, plaintiffs may consider early settlement terms that would have been less than ideal prior to the pandemic given the uncertainty of the defendant’s financial position later down the road. Further hampering the plaintiff’s bar more so than the defense are the social distancing guidelines and state of judicial emergency orders that have reduced courthouse function and access, tolled filing deadlines, and postponed trials and hearings. In a recent study, case activity in the federal district courts is down approximately 41% from 2019. This environment is considered by many as defense-friendly given the difficulty plaintiffs now have in pushing forward matters in the majority of cases and the inability to leverage inherent pressures created by impending deadlines.

As to the defense, the thought of engaging in multi-year, costly litigation without a certain outcome is changing the litigation approach for some of even the mostly financially healthy corporations who are now placing an emphasis on reducing costs and/or eliminating contingent liabilities as quickly as possible.  In these cases, the pressures created by the pandemic may also drive them to settle on terms that simply would not have been acceptable prior to the outset of the pandemic. Also in the purview of defendants settlement considerations is a plaintiff’s liquidity and solvency concerns that may promote early settlement on terms more favorable to the defendants. However, some corporations have decided to take a different approach and are now also looking increasingly to third-party funders to finance litigation costs. “Frankly, we’re drinking from a fire hose,” said Allison Chock, U.S. chief investment officer for litigation funder Omni Bridgeway. “One of the things we’ve been talking about for some time now is the trend in corporations that historically paid for the legal expenses beginning to explore using litigation financing instead. … That is now becoming a more urgent trend.”

Ultimately, the pandemic poses many new challenges and considerations for litigants on both sides of the table. Understanding the changes in litigation leverage, litigation risk, and other trends as they continue to develop will be vital to allow counsel to create strategies and tactics to effectively advocate and represent their clients’ interests in alternative dispute resolution and in the courtroom.

If you have questions or would like more information, please contact Christopher Lee at [email protected].

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Efficacy of Covid-19 Liability Waivers

Posted on: September 2nd, 2020

By: Caleb Saggus

Liability waivers are not new, but Covid-19 is. As we try to venture back to some form of normalcy, the effects of Covid-19 remains a topic of legal uncertainty. The private sector is playing a part in shaping the legal parameters of responses to Covid-19 by in some instances requiring their respective patrons to sign liability waivers before obtaining offered services. 

As a contract, and because it relates to the relinquishment of the right to recover for tort-based claims, waivers are governed by state law. And, while most states adhere to similar general principles regarding waivers, outliers exist, and there are variations specific to particular states. The typical variations could be more pronounced in the context of Covid-specific waivers, and new variations could develop.  Thus, the extent to which a waiver will ultimately withstand scrutiny by a court will likely vary from state to state to some extent.

As a general proposition, however, waivers have limits, and this will likely remain true for Covid-19 liability waivers. Generally, waiver provisions for acts constituting gross negligence or intentional conduct are unenforceable, as are provisions that are overly broad. Therefore, businesses that use Covid-19 liability waivers should consider expressly identifying that the waiver covers claims related to injuries related to Covid-19 and are based on the business’ negligence.

Another nuance to consider is the effect if a patron refuses to sign a waiver. A court might be more inclined to find a waiver unenforceable as a violation of public policy if the service being denied based on a refusal to sign the waiver is for a more “essential” business rather than one of pure leisure or choice.

Perhaps more global in its effect on Covid-19 liability waivers is state legislation giving entities immunity for Covid-19 liability.  Such legislation may render waivers unnecessary—but that could depend on whether there is any gap in the legislation leaving a potential for liability that a waiver could fill. Indeed, many states have already enacted Covid-19 immunity legislation. For these states, waivers are likely hollow as far as protecting against liability but might nonetheless still be used by businesses to prevent frivolous lawsuits.

Ultimately, waivers may prove to have little practical significance in the litigation world given the likely difficulty in proving a Covid-19 liability lawsuit. This stems from the inherent difficulty in contact tracing and thus establishing causation.  Depending on the scope of evolution surrounding these issues, and whether a state has enacted Covid-19 liability immunity legislation, the extent to which Covid-19 liability waivers will be an effective protection from liability moving forward remains unclear.  What is clear is that for now it will depend on the various states and their respective legal regimes.

If you have questions or would like more information, please contact Caleb Saggus at [email protected].

Update: Immunity for COVID-19 Claims in Georgia

Posted on: July 2nd, 2020

By: Jake Daly

After being interrupted by three months because of COVID-19, the Georgia General Assembly finally completed its 2020 session on June 26.  The final ten days saw a flurry of activity as legislators raced to pass a budget, a hate-crimes bill, and many other bills.  One of the legislators’ new priorities was to provide immunity from civil damages for businesses and healthcare providers that are sued by employees, customers, visitors, and patients who are infected with COVID-19.

Ultimately, the legislature considered three bills on this issue.  All were committee substitutes because Crossover Day (the last day for a bill to pass the chamber in which it was introduced and “cross over” to the other chamber for its consideration) had passed before the session was suspended on March 13, which meant that new bills could not be introduced.  My previous post discussed HB 216, the first bill that was amended to provide COVID-19 immunity, but it never received a vote by the full Senate after being amended by substitute in the Senate Committee on Public Safety.  Next up was HB 167, which originated as a bill dealing with licensing of certain employees of property and casualty insurers.  It passed the House in 2019 and was referred to the Senate Committee on Insurance and Labor, which amended it by substitute to address COVID-19 immunity.  HB 167 passed the full Senate but did not receive a vote in the House.

What emerged from the chaos was SB 359.  Originally, this bill would have created the Surprise Billing Consumer Protection Act, and the full Senate passed an amended version of it unanimously before the March 13 suspension.  After the legislature reconvened in June, SB 359 was referred to the House Special Committee on Access to the Civil Justice System, which amended the bill by substitute to address COVID-19 immunity.  On the last day of the session, the full House passed the substituted version of SB 359 and sent it to the Senate.  At about 10:15 p.m. that night, the full Senate passed SB 359 in one of its last official acts before adjourning.

Assuming that Governor Kemp signs it, SB 359 will create the Georgia COVID-19 Pandemic Business Safety Act, which will be codified at O.C.G.A. §§ 51-16-1 to -5.  Under this Act, healthcare facilities and providers, entities,[1] and individuals are immune from a “COVID-19 liability claim” unless their actions showed gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.  O.C.G.A. § 51-16-2(a).  A “COVID-19 liability claim” is a claim for:

  1. transmission of, infection by, exposure to, or potential exposure to COVID-19 (a) at a healthcare facility or on the premises of any entity, individual, or healthcare provider that results in injury or death, or (b) caused by the actions of a healthcare provider or an individual;
  2. injuries or death caused by acts or omissions by a healthcare facility or a healthcare provider in arranging for or providing healthcare services for COVID-19 or where the response to COVID-19 reasonably interfered with the arrangements for or the provision of healthcare services to the claimant; or
  3. manufacturing, labeling, donating, or distributing personal protective equipment or sanitizer that is directly related to providing the personal protective equipment or sanitizer to the claimant by any entity during a public health state of emergency for COVID-19 if the manner in which the personal protective equipment or sanitizer is manufactured, labeled, donated, or distributed departs from the normal manner of manufacturing, labeling, donating, or distributing the personal protective equipment or sanitizer and such departure causes injury or death.

O.C.G.A. § 51-16-1(3).

For COVID-19 liability claims against an entity or an individual for transmission of, infection by, exposure to, or potential exposure to COVID-19 when the claimant is on the entity’s or the individual’s premises,[2] there is a rebuttable presumption of assumption of the risk by the claimant when:

  1. a receipt or proof of purchase for entry issued by the entity or the individual for entry or attendance includes the following warning in at least ten-point Arial font placed apart from other text:

Any person entering the premises waives all civil liability against this premises owner and operator for any injuries caused by the inherent risk associated with contracting COVID-19 at public gatherings, except for gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, by the individual or entity of the premises.

or

  1. there is a sign posted at the point of entry that states the following in at least one-inch Arial font placed apart from other text:

Warning

Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19.  You are assuming this risk by entering these premises.

O.C.G.A. § 51-16-3(a).  This rebuttable presumption does not apply if the actions of the entity or the individual showed gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.  Id.  An entity or an individual is entitled to the immunity under O.C.G.A. § 51-16-2(a) even if these warnings are not used.  O.C.G.A. § 51-16-3(b).

For COVID-19 liability claims against a healthcare facility or a healthcare provider for transmission of, infection by, exposure to, or potential exposure to COVID-19 when the claimant is injured or dies at a healthcare facility or on the premises of a healthcare provider, there is a rebuttable presumption of assumption of the risk by the claimant when there is a sign posted at the point of entry that states the following in at least one-inch Arial font placed apart from other text:

Warning

Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19.  You are assuming this risk by entering these premises.

O.C.G.A. § 51-16-4(a).  This rebuttable presumption does not apply if the actions of the healthcare facility or the healthcare provider showed gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.  Id.  An entity or an individual is entitled to the immunity under O.C.G.A. § 51-16-2(a) even if this warning is not used.  O.C.G.A. § 51-16-4(b).

The Act includes a sunset provision.  It applies only to COVID-19 liability claims that accrue on and before July 14, 2021.  It does not indicate whether it applies to COVID-19 liability claims that accrue prior to the effective date, so that could be a source of future litigation.

Two points should be made in conclusion.  First, the Act does not impair the rights of employees under the worker’s compensation act.  O.C.G.A. § 51-16-5(3).  Second, although the Act defines “entity” as including political subdivisions, counties, municipalities, and other governmental offices and bodies, it should not be construed as waiving sovereign or official immunity.  O.C.G.A. § 51-16-2(b) (“The immunity set forth in subsection (a) of this Code section shall be provided in addition to, and shall in no way limit, any other immunity protections that may apply in state or federal law.”).


[1] The Act defines “entity” to include “any association, institution, corporation, company, trust, limited liability company, partnership, religious or educational organization, political subdivision, county, municipality, other governmental office or governmental body, department, division, bureau, volunteer organization; including trustees, partners, limited partners, managers, officers, directors, employees, contractors, independent contractors, vendors, officials, and agents thereof, as well as any other organization other than a healthcare facility.”  O.C.G.A. § 51-16-1(4).

[2] The Act defines “premises” to exclude healthcare facilities.  It means “any property owned, occupied, leased, operated, maintained, or managed by an individual or entity, whether residential, agricultural, commercial, industrial, or other real property located within the State of Georgia,” other than a healthcare facility.”  O.C.G.A. § 51-16-1(9).

Immunity for COVID-19 Claims in Georgia

Posted on: June 16th, 2020

By: Jake Daly

Following a three-month layoff due to COVID-19, the Georgia General Assembly reconvened on June 15 to complete its business for the 2020 session. With only ten legislative days remaining as of June 15, 2020, there is limited time to deal with new and old priorities. One of the new priorities is a bill providing immunity for businesses and healthcare providers that are sued by employees, customers, visitors, and patients who contract COVID-19.

HB 216 was introduced in the House in 2019 to create a specialty license plate honoring the Georgia Tennis Foundation. The House passed it on March 10, 2020, and it was referred to the Senate Committee on Public Safety where it was amended to become the Georgia Pandemic Business Immunity Act. This committee passed the amended version of HB 216 on June 15, 2020. The bill still needs approval by the full Senate and the House before it can be signed into law by Governor Brian Kemp.

HB 216 is designed to (1) ensure that society’s constitutional freedoms are adequately protected while allowing citizens and businesses to return to some sense of normality without fear of civil liability that may arise from risks that nobody can fully control, (2) allow the citizens of Georgia to focus on rebuilding the state’s damaged economy without being burdened by the costs of crippling litigation, (3) allow businesses to continue to obtain access to affordable insurance coverage for their operations, and (4) allow the state and local governments to raise the revenue needed to provide critical services to their citizens.

If enacted, HB 216 would create a new code section, O.C.G.A. § 51-1-56, which would apply only to claims that arise after its effective date and on or before June 30, 2022. (The end date is two years after Governor Kemp’s last executive order declaring a state of emergency due to COVID-19 expires. Governor Kemp’s current executive order expires on June 30, 2020.) The key provisions of HB 216 are:

  • All persons would be immune from any civil liability for damages arising from exposure to or contraction of COVID-19 by another while on their premises. Note that the term “person” is defined broadly to include natural people, businesses, property owners’ associations, charitable organizations, and state and local governments and their departments and officials. Also, the term “premises” is defined broadly to include residential, commercial, agricultural, and industrial property that is owned, occupied, leased, operated, maintained, or managed by a “person.”
  • All healthcare providers and facilities would be immune from any civil liability for injury or death allegedly caused by the provider’s or the facility’s good-faith acts or omissions while providing healthcare services related to COVID-19.
  • There would be no immunity for conduct that constitutes gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.
  • Punitive damages could not be recovered in any case involving exposure to or contraction of COVID-19.

Stay tuned for further updates as HB 216 winds its way through the General Assembly.

If you have questions or would like more information, please contact Jake Daly at [email protected].

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you. We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**