Dave Root and Claire Sumner obtained a defense verdict in a nuisance case filed against a municipal water authority.  Plaintiffs, a nationally-known appliance retailer and distributor, alleged that the water authority designed, operated, and maintained a nuisance in the county water system, which system was known to have high and fluctuating pressures.  Plaintiffs alleged these pressures led to the generation of a water hammer that ultimately caused the failure of a sprinkler head in their distribution warehouse, leading to over $1.4 million in damages.  The defense argued that Plaintiffs had failed to prove the failure was caused by water hammer and/or demonstrate any action by the Authority supposedly leading to the generation of a water hammer.  The case was tried before a Jackson County, Georgia jury, who returned a verdict in favor of the Defendant.

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

Doug Smith and Claire Sumner obtained summary judgment on behalf of their client, an early learning and daycare center, in a negligent supervision case pending in the State Court of Gwinnett County.  Plaintiffs, the parents of an injured minor, alleged that their daughter was seriously and permanently injured while at recess at daycare.  However, Plaintiffs, purportedly relying on the doctrine of res ipsa loquitor, pointed to no evidence of any negligent act or omission on the part of the defendant.  The defense moved for summary judgment on these grounds, and the Court agreed.

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

The Court of Appeals affirmed a Gwinnett County trial court’s grant of summary judgment to a dialysis provider.  Doug Smith and Claire Sumner represented the provider, who rendered home hemodialysis to a patient 2008.  The 2010 lawsuit culminated in a 2016 summary judgment filing.  The trial court determined that Plaintiff, the patient’s daughter, failed to establish both causation and damages in her malpractice case and dismissed the same in its entirety against the provider and other defendants.  On appeal, Plaintiff/Appellant argued that her nephrologist expert had testified, via affidavit, that the provider’s care left the patient in a “further weakened state,” which testimony was sufficient evidence of causation to warrant denial of summary judgment.  In response, Doug and Claire argued that this opinion, pursuant merely to the pleading standards of O.C.G.A. section 9-11-9.1, was contrary to the expert’s deposition testimony, which took precedence pursuant to O.C.G.A. section 9-11-56.  In a succinct opinion, the Court of Appeals agreed, affirming the trial court’s decision and finding that the issues were controlled “adversely to the appellant for the reasons and authority given in the appellees’ brief.”

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

Doug Smith and Claire Sumner obtained a defense verdict in a chiropractic malpractice case in Cobb County, Georgia.  Plaintiff alleged she suffered a cervical spine injury following multiple chiropractic adjustments in 2012 and sought to hold multiple chiropractors liable for professional negligence and via respondeat superior.  She sought pain and suffering damages in the amount of $1 million.  The defense argued that Plaintiff failed to prove causation, and after less than an hour of deliberation, the jury agreed and returned a defense verdict.

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

Doug Smith and Claire Sumner obtained dismissal for a chiropractor and his practice in a malpractice case filed in the State Court of Muscogee County where Plaintiff alleged she suffered a spinal cord injury requiring hospitalization with lasting paralysis following two instances of negligent care and treatment by the chiropractor.  After years of litigation, Doug and Claire filed a motion for summary judgment arguing that Plaintiff had failed to provide sufficient causation testimony linking the alleged negligence to Plaintiff's injury.  

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

Carlock, Copeland & Stair hosted their annual Insurance Coverage & Bad Faith Seminar on August 24 at the Atlanta Botanical Garden. Presentations and Presenters: Have Traditional Rules Gone Up in Smoke?  Impact of Growing Legalization of Medical Marijuana - Dave Root and Abby Grozine. Best Practices for Maintaining Your Claims File - Ryan Wilhelm, Jennifer Guerra, and Claire Sumner. Defending the Institutional Bad Faith Claim - Charlie McDaniel and Kathy Carlsten. New Technology, Old Policies:  Are Aging Policies Equipped to Handle the Consumer Technology Boom? - Fred Valz and Melissa Bailey. Apportionment:  Has It Gotten Insurers Where They Want To Go?  - Charlie McDaniel, Graham Thompson, and Kristen Thompson. Additional Insured Jeopardy - Alex Davis, Laura Paton, Sarah Wetmore, Sally Bright and Nick Stewart. Why the Involvement of a Tractor Trailer Escalates a Case - Gary Lovell. Risk-Averse Insurers and the New Juror:  Exploring Possible Links Between Fewer Trials, Millennial Jurors, and Seemingly Bigger Verdicts - Doug Smith and Lee Weatherly. Please contact Michelle Mattox at mmattox@carlockcopeland.com if you would like our attorneys to present in-house lunch & learn sessions or webinars.  

The Rising Opioid Crisis:  Liability, Coverage, and the Ethics In, the interesting cross-over closing session of Carlock Copeland's Annual Insurance Coverage Seminar examines the origins of and the potential expanse of litigation arising out of the opioid crises; but, this session  also addresses the multitude of coverage issues beginning to arise and the ethical dilemmas created by potential conflicts created by the crisis – including issues related to privacy concerns. Presenters/Co-Authors: David Root, Claire Sumner, Mike DiOrio, and Bradley Wood. For more information on this presentation, please contact Michelle Mattox at mmattox@carlockcopeland.com.

Recent Health Law and Regulation Blog Post by Claire Sumner. In a much anticipated decision, the 11th Circuit, in Houston v. Publix Super Markets, Inc., 2018 U.S. App. LEXIS 2935 (11th Cir. Feb. 7, 2018), held that a district court did not err in admitting evidence at trial concerning payments made by a litigation funding company to the plaintiff’s treating doctors because the evidence was relevant to show bias on the part of the doctors who testified in the case. Plaintiff Robin Houston sued Publix Super Markets after she slipped and fell in one of its stores.  She subsequently underwent treatment for her injuries from a number of providers, which treatment was largely funded my ML Healthcare, a “’litigation investment’ company that contracts with doctors to provide medical care for injured people with viable tort claims who lack medical insurance.”  Houston, 2018 U.S. App. LEXIS 2935, at *2.  During the litigation, Publix conducted discovery regarding the relationship between Plaintiff, her treating doctors, and third-party ML Healthcare.  Publix learned that, pursuant to its contracts, ML Healthcare purchases at a discounted rate from these physicians the medical debt that the putative plaintiffs incur during their treatment.  The contracts also grant ML Healthcare the right to later recover the full cost of the medical care provided out of any subsequent tort settlement or judgment the treated individuals receive. Publix sought to introduce at trial evidence of these contractual relationships to show that Plaintiff's treatment providers were biased in their testimony and that Plaintiff's claimed medical expenses were unreasonable.  Plaintiff sought to exclude this evidence, arguing, primarily, that it was barred by Georgia’s collateral source rule.  That rule generally gives a plaintiff the right to recover damages undiminished by collateral benefits, the rationale being that a defendant should not benefit from a plaintiff’s mitigation of her losses.  Polito v. Holland, 258 Ga. 54, 55 (1988).  The collateral source rule usually serves to render evidence of litigation funding, for instance, inadmissible when it’s offered in an effort to reduce damages.  Id. at 56.  In Houston, however, Publix argued that the arrangement between Plaintiff, ML Healthcare, and non-party providers created a risk of bias on the part of the doctors, who receive referrals from ML Healthcare and who subsequently testify on behalf of the plaintiffs they have treated pursuant to those referrals.  If a doctor did not provide a favorable causation opinion – necessary to win the case – ML Healthcare likely would find other doctors who would.  Houston, 2018 U.S. App. LEXIS 2935, at *15.  Finding that such proffer, i.e. establishing bias, was distinctly non-substantive in nature, the Court held that, procedurally, an evidentiary purpose was served by the admission of the evidence, such that the collateral source rule would not prohibit the jury from hearing of ML Healthcare’s role in the litigation. Much like the recent state court decision in WellStar Kennestone Hospital v. Roman, 2018 Ga. App. LEXIS 34 (Ga. App. Jan. 30, 2018), the 11th Circuit has now limited plaintiffs’ use of the collateral source rule to hide the interplay of non-parties’ financial gambling in litigation.  However, the Houston Court has taken it a step further than the Roman decision did.  Not only is evidence of litigation funding discoverable, it may also be admissible if an evidentiary purpose is served by its introduction.  The significance of this ruling cannot be overstated.  The Houston Court did decline to consider whether evidence of ML Healthcare’s contract rates could be used to attack the reasonableness of Plaintiff’s claimed damages, but the path has certainly been paved for the defense bar to make this argument in the future.  The Houston case discusses Alabama’s comparable collateral source rule and, in a footnote, mentions that recent legislative changes in Alabama now permit the introduction of evidence that a plaintiff’s medical bills have or will be paid.  Perhaps Georgia will one day follow suit.  I attended a seminar recently where we were encouraged to keep attacking these issues at the trial court level with the hope that eventually the Georgia legislature will come around.  If nothing else, perhaps decisions like Houston and Roman will discourage the ever rampant medico-legal loop driving personal injury litigation. For more information on our Health Law and Regulation Update, please click here.