Marietta Injury Lawyer Blog

How to Give a Deposition in a Civil Case; Don’t Act Like This Guy.

March 17, 2011 | Benjamin S. Persons, IV

As a Georgia Civil Lawyer I’ve taken hundreds of depositions, but it has been a long time since I’ve read a transcript as entertaining as what I recently read in the Cleveland Plain-Dealer. The deposition was taken in a case filed by title companies against Cuyahoga County in Northern Ohio. At issue in the case is whether deeds and other documents at the county recorder’s office should be made readily available at a reasonable cost.

Below is an excerpt from the deposition transcript of the head of information technology for a county office. The plaintiff’s lawyer wanted to know whether the county recorder’s office had a photocopier. According to the Plain-Dealer it took nearly 10 pages of court transcript to figure that out. I imagine the Plaintiff’s lawyer needed several aspirin after this line of questioning was completed.

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Plaintiff’s lawyer: During your tenure in the computer department at the Recorder’s office, has the Recorder’s office had photocopying machines?

Defense lawyer: Objection.

PL: Any photocopying machine?

Witness: When you say “photocopying machine,” what do you mean?

PL: Let me be — let me make sure I understand your question. You don’t have an understanding of what a photocopying machine is?

Witness: No. I want to make sure that I answer your question correctly.

DL: Dave, I’ll object to the tone of the question. You make it sound like it’s unbelievable to you that he wouldn’t know what the definition of a photocopy machine is.

PL: I didn’t ask him to define it. I asked him if he had any.

Witness: When you say “photocopying machine,” what do you mean?

PL: Let me be clear. The term “photocopying machine” is so ambiguous that you can’t picture in your mind what a photocopying machine is in an office setting?

Witness: I just want to make sure I answer your question correctly.

PL: Well, we’ll find out. If you can say yes or no, I can do follow-ups, but it seems — if you really don’t know in an office setting what a photocopying machine is, I’d like the Ohio Supreme Court to hear you say so.

Witness: I just want to make sure I answer your question correctly.

DePuy ASR Hip Implant Recalls Lead to Litigation in Georgia and Nationwide

March 11, 2011 | Benjamin S. Persons, IV

At the end of August, 2010, DePuy Orthopedics, a division of Johnson & Johnson, announced a DePuy Hip Replacement Recall expected to affect an estimated 93,000 patients. The DePuy ASR hip replacement system has been failing at unusually high rates in patients all over the country including Georgia. Implant loosening, fractures, dislocations, and potentially toxic metals entering the bloodstream have led to frequent repeat surgeries in patients that received DePuy ASR hip implants.

Particularly troubling is the fact that DePuy was able to bypass Food and Drug Administration testing by exploiting the implant loophole. A product such as a hip implant can be sold to the public without testing if it is a device that is similar to a product that has already been approved by the FDA for use on patients.

The DePuy implant is not the only hip implant system causing extensive post surgical complications, but it’s the implant currently causing the most problems. A large number of people have been affected by the DePuy ASR implant, because Johnson & Johnson waited over two years after it first became clear there was a serious issue with the product to announce the recall and pull the product from the market.

Fatal Cobb County Tractor Trailer Crash Kills Infant

February 15, 2011 | Benjamin S. Persons, IV

Interstate 75 was the scene of another fatal tractor-trailer crash this past Saturday night. WSBTV reported traffic was stopped on I-75 because of construction, when a tractor-trailer driven by Henry Lipps crashed into multiple cars. At least four adults were seriously injured and a 6 month old baby was killed. Mr. Lipps was charged with second degree vehicular homicide (a misdemeanor) and following too closely.

According to Cobb County Police, the 18-wheeler never hit his brakes before impact. At this point it is obviously too early to tell why Mr. Lipps did not brake. Even professional drivers can get distracted and make mistakes. However, often in collisions like this, driver fatigue is a factor. Experienced Georgia trucking lawyers will tell you the unfortunate truth is some trucking companies pressure their drivers into violating The Federal Motor Carriers Requirements limiting hours of service. Law enforcement in Cobb County takes all trucking fatalities very seriously and there will certainly be a thorough investigation. If it is determined that Federal Regulations were being violated by the driver and/or the trucking company, for the sake of the impacted families, I hope the driver and trucking company will be held accountable.

Controversy Continues Over Full Body Scans at Airports

November 18, 2010 | Benjamin S. Persons, IV

Public debate continues to rage over new security measures being used on passengers at our nation’s airports. At the center of the controversy are the body scan machines (“naked scanners“) that uses radiation to create naked images of us for security personnel to review. If the passenger refuses the naked body scan then they every part of the body is touched head to toe during a pat down procedure. Following the much publicized “underwear bomber”, the body scans and pat downs are designed to catch contraband even if it’s hidden near a persons genitals. The body scan program is being opposed by the American Pilots Association, Airline CEOs, the Libertarian Party, consumer rights groups, and religious groups. In response, TSA claims the body scan images are never retained, they claim the radiation is minimal and downplay the privacy and religious concerns with being viewed naked at the airport.

As to the first claim of never retaining naked body scan images, we now know that isn’t true. It was recently discovered 35,000 body scan images, stored by U.S. Marshals in Miami, were obtained by a technology blog. Of those 35,000 images,100 naked body scans were posted on the internet. I imaging the thought of seeing yourself naked online does not appeal to most people.

Even if your naked images never make it to the internet, many describe the process of being viewed naked in the airport as humiliating. It was this type of humiliation that led to violence at Miami International Airport in September of this year. A TSA worker in Miami was asked to submit to a body scan to illustrate the use of the machine to fellow coworkers. In the weeks following the body scan demonstration, he was taunted by coworkers about the size of his genitalia. According to the police report, after the taunting became too much to take, the TSA employee beat one of the taunting coworkers in the parking lot with a police baton.

Allstate Agrees to $10 Million Dollar Settlement Over Claims Handling Policies

October 28, 2010 | Benjamin S. Persons, IV

The National Association of Insurance Commissioners’ eighteen month investigation of Allstate’s claims handling practices ended this month with Allstate agreeing to pay a $10 million dollar settlement. The primary focus of the investigation and settlement relates to Allstate’s use of a claims handling software called Colossus. Allstate has agreed to make several changes to it’s claims handling policies. However as a injury claim lawyer, I still advise caution when dealing with giant insurance companies like Allstate.

Their are many types of insurance claims where hiring a lawyer is typically not necessary, such as clear liability property damage claims. When dealing with a company like Allstate, whether you hire a lawyer or not, it’s always a good idea to at least consult with a lawyer. Most personal injury lawyers provide free consultations and information gathered from a lawyer consultation can be an invaluable resource for determining whether you are being treated fairly by an insurance company.

Georgia Deputy Victim of Hit and Run Tractor Trailer Crash

October 23, 2010 | Benjamin S. Persons, IV

On Wednesday, October 13, 2010, Coweta County Deputy Jeff Bugg experienced an extremely close call when he was nearly run over during a routine traffic stop. Deputy Bugg pulled over a vehicle headed northbound on I 85 and was standing next to the vehicle when a tractor trailer crashed into both cars and kept going. Deputy Bugg was thrown to the ground by the impact, but miraculously escaped serious injury.

The hit and run tractor trailer was later found, parked behind a truck stop, and was charged with DUI drugs, possession of prescription drugs not in original container, leaving the scene of an accident involving injury or death, failure to maintain lane, and failure to pull over when approaching an emergency vehicle. That may seem like a lot, and it is, but this driver is lucky he didn’t end up with a vehicular homicide charge. Thankfully Deputy Bugg was not seriously hurt and perhaps this near tragic incident will raise awareness of Georgia’s move over law.

As a Georgia injury lawyer, I’m often surprised by the number of people that have never heard of Georgia’s move over law, O.C.G.A. 40-6-16. Georgia law requires that you move over one lane if possible when approaching stopped emergency vehicles. If you cannot move over you must slow down below the posted speed limit and be prepared to stop. Please protect our officers and move over.

U.S. Supreme Court to Decide Whether Church Can Protest Military Funerals

October 18, 2010 | Benjamin S. Persons, IV

By now many have heard of the perverse agenda of a group that identifies themselves as the Westboro Baptist church. This small group led by Fred Phelps, Sr. often shows up at military funerals and other high profile tragedies with protest signs designed to outrage and offend the victims. For example in West Virginia where a cave in killed 25 miners they held up signs “Thank God for Dead Miners.” At military funerals the signs read “You’re Going to Hell,” “Semper Fi Fags,” and “Thank God for IEDs.”

On March 3, 2006, Lance Cpl. Matthew Snyder, US Marine Corps, died in Iraq. When the family buried this young hero, Westboro Baptist church was there, at the funeral, with their hate filled signs. In addition, they distributed fliers with young Matthew’s picture and the words “Burial of an Ass.” Freedom of speech was alive and well and none of the protesters were arrested or prevented from sharing their hate of America and our troops with anyone that would listen. However, all actions have consequences. The Snyder family filed a civil suit against Fred Phelps and his church and on October 31, 2007 a jury returned a verdict of $2.9 million dollars in compensatory damages with an additional $8 million in punitive damages. In our system, the jury speaks for the community and punitive damages are designed to punish outrageous conduct and deter future conduct. The judge reduced the punitive portion of the verdict to $2.1 million for a total verdict of $5 million dollars.

In a surprising and controversial decision, the United States Court of Appeals for the Fourth Circuit reversed the trial court judgment, ruling Westboro’s protests were protected from civil liability by the First Amendment.

$8 Million Dollar Verdict Against Merck for Fosamax “Jaw Death” Injury Reduced by Federal Judge to $1.5 Million.

October 8, 2010 | Benjamin S. Persons, IV

Drug executives and product liability lawyers have been closely watching the trial of Shirley Boles, a 72 year old woman that developed jawbone necrosis (jaw death) while taking the drug Fosamax. An unusually large number of Fosamax patients have developed osteonecrosis of the jaw, a condition that causes the gums to fall away exposing jaw bone that appears moth eaten. The condition is often described as jaw death. The manufacture of Fosamax Merck is currently defending over 900 federal and state lawsuits filed by women that developed osteonecrosis of the jaw on Fosamax. It has been alleged Merck misrepresented the drug’s safety and failed to warn doctors and patients about the risks associated with taking Fosamax. Merck denies any responsibility for the hundreds of injuries suffered and claims Fosamax is a safe and effective medication.

Ms. Boles’ case sparked national interest because it is one of the first of the Fosamax cases tried to a verdict. In her case, the jury held Merck responsible and awarded $8 million dollars in damages. As often happens with large verdicts, U.S. District Judge John F. Keenan in Manhattan reduced the juries’ award from $8 Million to $1.5 Million. Judge Keenan is a veteran of the bench appointed by Ronald Reagan in 1983. In his decision, Judge Keenan wrote “a significant damage award is warranted, but the $8 million deviates substantially from what would be reasonable compensation,”

The law concerning verdicts that will apply in this case is virtually the same to state and federal court in Georgia. A judge may reduce a large verdict for any reason. The decision to reduce a verdict is completely in the judge’s discretion and not subject to appeal. When a verdict is reduced, the injured plaintiff must choose between the reduced award or another trial. If the plaintiff takes the second option then she must wait until the judge offers another opportunity for trial, which can take months.

Vote No on One! Constitutional Amendment 1 is Written on the Georgia Ballot to Deceive Voters

October 6, 2010 | Benjamin S. Persons, IV

The State of Georgia’s Constitution has for over a century contained a provision prohibiting the legislature from passing any law that would permit a contract that defeats or lessens competition. Ga. Const. Art. III, Sec. VI, Par. V(c). Based on the protection of our Constitution, Georgia law prohibits enforcement of “covenants not to compete” unless they have reasonable limits on time, territory, and scope of restricted activity. However, reasonable covenants are currently enforced. Some large established business interest are against this competition and are working to circumvent the protections of the Constitution with Amendment One. For some companies, avoiding competition sounds easier than providing good service. The Amendment is getting some media attention, AJC – Amendment One: Making Georgia Less Competitive, but many voters are still unaware.

You might be wondering who would vote for an amendment that will strip us of our Constitution’s protection to work and practice our trade? Why should we worry, this will never pass. The business interests behind Amendment One know the only chance they have to get people to vote for it is if they deceive voters with the language on the ballot. Here is the actual language: “Shall the Constitution of Georgia be amended so as to make Georgia more economically competitive by authorizing legislation to uphold reasonable competitive agreements?” The truth is, if voters vote yes, their existing rights to compete reasonably will be lost. Or to put it another way, 11 Alive – Amendment One: It’s a Damned Lie.

If you believe in the right to work and practice a trade, Vote No on One.

Kid Rock on Trial in Dekalb State Court for Waffle House Brawl – Security Footage Video

September 16, 2010 | Benjamin S. Persons, IV

On October 21, 2007, Waffle House security cameras captured a violent brawl staring Kid Rock. This security video (shown above) will likely be key evidence considered in the Dekalb County civil trial against Kid Rock this week. According to the defense lawyer, the victim started the fight and Kid Rock and his five body guards acted in self defense when they punched, kicked and threw a chair at Decatur resident, Harlan Atkins. However, the video tape clearly shows the violence begin when Kid Rock jumps over a table to punch a seated Mr. Atkins. With this video, it is going to hard for Kid Rock’s lawyers to sell self defense to a Dekalb County Jury. I’ve tried cases in Dekalb, and Dekalb jurors are smarter than that.

If the surveillance video wasn’t bad enough for Kid Rock, the AJC reports that the witnesses (a waitress and a customer) both testified this week that Kid Rock and his entourage started the fight and kicked Mr. Atkins’ prone body until he was covered in blood. Kid Rock and his co-defendants escaped criminal trials by pleading guilty to the criminal charges for this incident. As a Georgia Personal Injury Lawyer, I’m still surprised to see Defendants, like Kid Rock, refuse to accept responsibility and pay for the harms they cause.