Marietta Injury Lawyer Blog

Tesla Motor's Libel Suit Against Top Gear Hits A Roadblock

Thu, 07 Mar 2013 18:27:51 -0500

As a fan of the BBC series Top Gear and a civil litigation lawyer, it was with peaked interest I read the recent decision of Tesla Motors v. British Broadcasting Corporation, England and Wales Court of Appeals (Civil Division). The story of this case began with a 2008 Top Gear episode with a road test of the Telsa Roadster, conducted and narrated by the show's host Jeremy Clarkson. During the episode, Jeremy put the vehicle through it's paces and was rather critical of it's performance. Tesla Motors was not pleased and sued BBC for libel alleging Top Gear made false statements about the Roadster, specifically comments by Jeremy that the vehicle only made it 55 miles on the track instead of Tesla's promoted range of 200 miles.

As an American personal injury lawyer, I admittedly know very little about the merits of pursuing a libel suit in the United Kingdom's court system. However, it makes no sense for a car manufacturer to blame it's lackluster sales on a Top Gear episode. Anyone that watches the show knows its primary goal is to entertain car enthusiasts. Top Gear doesn't claim to be some sort of British Consumer Reports conducting objective scientific tests on the best cars to buy. A typical test is conducted on a track at breakneck speed or some sort of crazy race against a jet, train or dog sled. Rarely will the average motorist ever find himself driving a vehicle under the insane conditions a car finds itself on Top Gear, which is exactly what Lord Justice Martin Moore-Bick wrote in the published opinion.

Georgia Dangerous Product and Child Safety Update; Frosted Mini-Wheats and Trader Joe's Peanut Butter Recalled

Thu, 25 Oct 2012 10:32:50 -0500

As a father of three children who enjoy Kellogg's frosted mini-wheats, I was quite disturbed by the voluntary product recall for the frosted and unfrosted mini-wheats original and bite size this week. Apparently, flexible metal fragments from a faulty manufacturing machine were found to be in the cereal. The products subject to recall fall under the 'better used by dates' of April 1, 2013 - September 21, 2013. Kellogg is working with retail grocery stores to remove the tainted boxes and fortunately, no injuries have been reported to date. For more information about the recalled cereals, please go to Kellogg's website consumer alerts.

However, that is not the case with a recent peanut butter recall linked to Trader Joe's Creamy Salted Valencia Peanut Butter that contain the salmonella virus. It has been reported that 29 individuals in 18 states contracted the virus with ¾ of all the cases were children under the age of 18. Luckily, no deaths have been reported. Trader Joes Consumer Updates lists the specific products subject to recall or call (626) 599-3817 for further information.

What is a parent to do? Cereal and peanut butter are two staples in my household and part of a balanced diet. As a Georgia Trial Lawyer and informed parent, I can only hope that these recalls will reduce illness and eliminate catastrophic injuries as we try and protect the health and safety of our children.

Georgia Legend Larry Munson Dies at Age 89

Tue, 22 Nov 2011 17:06:15 -0500

As a University of Georgia graduate I thought it appropriate to post a tribute to the late great Larry Munson. As most already know, Larry passed away Sunday evening at the age of 89. Munson served more than forty years as the broadcaster for UGA football, and is remembered by many to be the best to ever to call the game. In 1994, Munson was inducted into the Georgia Association of Broadcasters Hall of Fame. In 2005, he claimed a spot in the Georgia Sports Hall of Fame. Two years ago, he was inducted into the National Sportscasters and Sportswriters Association Hall of Fame.

Prior to becoming a broadcaster he served in World War II as a medic, and during the war saved enough to enroll in a Minneapolis radio broadcasting school. Larry first began to handle the radio play-by-play for the Bulldogs in 1966 and did so through the 2008 season. Munson was a true bulldog, from 1966 to 2007 Munson amazingly missed only one game when he was recuperating from back surgery in 1990.

Even though Munson hasn't called a game since 2008, I still find myself turning on the
radio waiting to hear his one of a kind voice. There is simply no one who can call a game the way Munson did. Larry Munson will be greatly missed and the Bulldog Nation was lucky to have him for so many years. You were a damn good dawg Larry!

Everyone has the favorite Munson quote, but this has to be mine. This is Larry's famous
"Hobnail Boot" call after the 2001 victory over Tennessee.

FDA Issues a Class I Recall of More Than Five Million CooperVision Contact Lenses

Thu, 17 Nov 2011 08:59:15 -0500

CooperVision Inc. announced this week they are expanding a recall first issued in August and are recalling more than five million contact lenses. The contacts were sold under the brand name Avaira, and are being recalled because they may be tainted with silicone oil residue that could result in blurred vision, eye injuries, and severe pain. The recall comes after the FDA issued a Class I warning about the lenses last month. Class I warnings are the most serious warning issued and involve problems in which there is a reasonable chance of serious health consequences or death.

By the end of October the FDA had received more than forty reports of problems associated with the contact lenses. According to the FDA, at least fifteen of the lenses were sold under the Avaira Toric label, and at least two were sold under the brand name Avaira Sphere. Avaira Toric users have reported a wide range of problems with the lenses, from hazy vision to the much more serious condition of torn corneas that require emergency surgery.

Some Product Liability Attorneys have accused CooperVision of issuing a "stealth recall" that did not properly alert many consumers to the possible danger.The FDA apparently agrees and has said that the company should have put more effort into making customers of the recall.

Consumers with problems or questions related to the recalls should contact the company at 855-526-6737. CooperVision says it has reached out to affected consumers to ensure their safety. The company says they are cooperating fully with the FDA, and as of now they are unaware of any permanent damage caused by the lenses.

Workers Compensation Insurance Company Initially Denies Claim of Man Injured While Risking His Life for Others During Tornado

Wed, 16 Nov 2011 16:37:35 -0500

Joplin, Missouri was destroyed by an EF-5 tornado in late May of this year. The storm resulted in at least 160 deaths and more than 900 injuries in the small town. One of those injured was Mark Lindquist, a social worker who risked his life in an effort to save three developmentally disabled adults during the storm.

On the day of the storm, Lindquist had just driven the three men to a group home when the tornado warning sirens went off. Without any time to carry the men to safety, Lindquist put a mattress over the men and laid on top of it for their added protection.

Lindquist was found after the storm buried in rubble with large chunks of flesh torn off, and impaled by a piece of metal. Mark was in a coma for three days, and the injuries to his body were so severe that it had become swollen and unrecognizable. Lindquist hospital bills totaled more than $2.5 million, and he requires 11 daily prescriptions as a result of the injuries he sustained.

Though this is an amazingly heroic story, Lindquist's worker's compensation insurance company, Accident Fund Insurance Company of America was not impressed by Mr. Lindquist's actions, and initially decided to deny his claim commenting that he was at no greater risk than the general public at the time he was involved in the Joplin tornado.

Is it Illegal to Flash Your Headlights at Other Motorist to Warn of Speed Traps? Florida Man Wins Suit that Allows Motorists to Flash Lights

Fri, 11 Nov 2011 10:13:43 -0500

At some point you or someone you know has probably flashed their headlights into oncoming traffic to warn them of an upcoming speed trap, and probably never worried about the fact there may be a crime being committed. But is it really illegal? This situation is exactly what got Erich Campbell, a college student from Land O' Lakes, Florida, ticketed in December of 2009. Though Mr. Campbell felt he was just being helpful, the Florida Highway Patrol did not share his sentiment, and wrote him a citation for flashing his lights to warn oncoming of traffic of a speed trap. He told the Florida Highway Patrol at the time that he had no idea providing a warning to fellow motorist was a violation of any laws.

After researching the situation, Mr. Campbell decided he was not going to take the ticket lying down, and felt what he did was completely permissible under the law. In September he filed a lawsuit on his own behalf, as well as for every other in driver in Florida ticketed for the same violation over the previous six years. The lawsuit accused police of misinterpreting state law and violating motorists' free speech rights. He further claimed that there was no law on the books that would prevent him from warning other motorist of police up ahead. Campbell's attorney said he felt that police were misinterpreting a law that's meant to ban drivers from having strobe lights in their cars or official looking blue police lights. Campbell said that most of the tickets that were issued were, "Frustrated police officers who feel they were disrespected. When someone comes along and rats them out, they take offense to it."

Atlanta Driver Surprised by Unexpected Airbag Deployment

Tue, 08 Nov 2011 09:35:53 -0500

An Atlanta area man was stunned last week when the air bag in his 2008 Honda Accord deployed unexpectedly. Chris Androvic said he was driving his car under normal conditions when his airbags exploded in Forsyth County last Monday afternoon. Androvic was traveling in heavy afternoon traffic when the air bags above his head and his seat inexplicably deployed.

Surprisingly, a local Honda dealership said that the problem was his responsibility. Adrovic says they gave him a bill for over $5,000, as there were no recalls in place for this type of defect in Honda Accords making the damage his responsibility. But Adrovic, through his research on safecar.gov, found dozens of complaints specifically of other 2008 Honda Accord owners for similar incidents.

Honda responded to the situation with a letter stating that, "Neither NHTSA or Honda have initiated any recall action." Adding that, "Customarily, a recall would be initiated only when a defect has been observed in many cases . . ." Though Honda said they will continue to carefully monitor the situation.

After Dog is Run Over and Killed, Family Receives Bill for Bumper Damage From State Farm

Fri, 04 Nov 2011 10:24:00 -0500

State Farm Insurance made an interesting decision when they recently asked a family to pay for repairing a broken bumper after their dog was struck by a vehicle and killed. Kim Flemming's 12 year-old yellow Labrador Jake was struck by the vehicle in the family's quite neighborhood just outside of Aurora, Ontario. Ms. Flemming had just gotten home from work when a man came to the door to let her know he had run over the family pet. "I got to the road and he was dying," Fleming told local media. "He died in my arms."

Just as the Flemming's were beginning to get over the tragedy they received a bill from State Farm insurance in the amount $1,648.95 for the man's bumper who ran over Jake. The letter, that included five pages of documentation and three pages of photographs, said that through their investigation they determined Ms. Flemming to be "100-per-cent responsible" for the damage to the vehicle, and stated, "As such, we are looking to you for reimbursement." The bill included costs for parts and labor for replacing the bumper, as well as the cost of the rental car for the person who ran over Jake. State Farm spokesman John Bordigon responded to media questions over the bill with little compassion stating, "They could have made sure their dog wasn't free on the roadway."

Georgia Supreme Court to Decide Property Owner's Responsibility For Fatal Alligator Attack

Tue, 25 Oct 2011 16:47:22 -0500

The Georgia Supreme Court has agreed to hear a case that tests the extent to which property owners are responsible for others injured by animals on their property.

The Homeowners Association of The Landings, a subdivision on Skidaway Island, just outside of Savannah, GA, is being sued in relation to the death of Gwyneth Williams. Williams, 83, was house sitting at her daughter's home inside the Landings, and was attacked by an 8-foot alligator in October 2007. The alligator was later killed, and both Williams' hands as well as one of her legs was found inside the stomach of the animal

In Georgia, the law normally protects property owners from lawsuits stemming from accidents caused by wild animals, but lawyers representing Williams' family say this is a different situation. Attorney Michael Connor says that there nothing at all wild about the property in question, "It is a very contrived environment. There are 160 lagoons on the development. And all those lagoons are man made."

Connor further explains, "The landings stocked the lagoons with the fish, which fed the alligators, and connected the waterways to create an "alligator superhighway." He says the Landings, "Knew the alligators were dangerous," and they have had prior reports of problems. Connor feels that the alligator could, and should have, been easily discovered and removed by a responsible maintenance program by the HOA of the Landings.

Georgia Child Safety and Product Liability Update - Jogging Strollers Recalled for Choking Hazard

Fri, 14 Oct 2011 14:50:13 -0500

As a Georgia products liability lawyer and father of three I'm always interested in safety recalls with child safety implications. Hundreds of thousands of the popular B.O.B. jogging strollers are being recalled because of a choking concern. The U.S. Consumer Product Safety Commission made the announcement this week of the voluntary recall by the manufacturer, B.O.B. Trailers Inc. The recall involves all B.O.B. Strollers manufactured between November 1998 and November 2010. Strollers manufactured after October 2006 have a white label attached to the back of the strollers with the manufacturing date printed on, and strollers with no manufacturing date listed were produced before October 2006 and are also part of the recall.This is not the first recall of the year for B.O.B. as 357,000 of its strollers were recalled in February due to a drawstring on the stroller that posed a strangulation hazard.

The Consumer Product Safety Commission says the recall is due to the fact that the logo embroidered on the back of the stroller's canopy backing patch can detach, which poses a significant choking hazard to baby's and young children. The C.P.S.C. has received six reports of children mouthing the logo, with two of those incidents resulting in choking. In each of the reported incidents, the children were seated in a car seat attached to the stroller.

Over 400,000 of these strollers were sold in the United States between November 1998 and October 2011. REI, Babies R'Us and Amazon.com are among the retailers who sold the product. The strollers were sold in single seat and double-seat models and are embroidered with the BOB, Ironman, or Stroller Strides brand name on the canopy.

If you are the owner of one of these strollers the C.P.S.C. advises that you immediately contact B.O.B. Trailers for instructions for removing the canopy logo, and stop using the recalled strollers until the backing patch is removed from the interior of the canopy.For additional information, contact B.O.B. Trailers toll-free at (855) 242-2245 between 8:30 a.m. and 5 p.m. MT Monday through Friday, or visit the B.O.B. company website.

Jonas Jennings, Sues His Former Football Coach, Jim Donnan, Alleging Donnan Lured Him Into a Ponzi Scheme

Wed, 05 Oct 2011 10:33:20 -0500

In a case that may have particular interest to University of Georgia Football Fans, ex-UGA football coach Jim Donnan is being sued by one of his former players Jonas Jennings, who was a standout for the Dawgs between 1996 and 2000, and entered the NFL Draft in 2001. Jennings is suing his old coach for $950,000 in lost principal and earnings he says was promised to him for investing in the company GLC Limited, a company Donnan was working for on a commission basis. GLC was pitched by Donnan as retail liquidation company, with it's principal business being in the re-sale of consumer products.

In the lawsuit Jennings blames Donnan, who he describes as a father figure and mentor, for deceiving him into investing money to go to furniture and appliances that were to be sold at a profit. Jennings says Donnan portrayed himself as officer or someone with control over GLC to lure Jennings into investing.The lawsuit alleges that in reality Jennings money was used in a Ponzi Scheme for the benefit of Donnan (who was not an officer), with Jennings' capital going to prior participants in the same investment, rather than to purchase inventory for a viable business enterprise.

Jennings is only one small part of Donnan's troubles, as the FBI and IRS began investigating his activities with GLC back in April of this year, and the findings seem to paint a troubling picture. Donnan was the first major investor in GLC, investing more than $5 million of his own money, and was chiefly responsible for gaining additional capital for the company. Bankruptcy court documents for GLC, who filed for protection earlier this, show that investors sank nearly $82 million into GLC, but that less than $12 million was actually spent on inventory, with at least $13 million in missing investor money.

According to GLC, Donnan made more than $14.5 million through commissions of 15 to 20 percent for any investment he solicited. Oddly the investors he solicited, including former University of Oklahoma coach Barry Switzer, Virginia Tech football coach Frank Beamer, and Texas Tech football coach Tommy Tuberville all lost substantial sums of money.

In July of this year GLC also sued Donnan, who they say in the lawsuit, "Is substantially, if not principally, responsible for the initiation and operation of a far-reaching Ponzi scheme that defrauded GLC and it's investors of approximately $27,752,159."

The Supreme Court of Georgia Ruled a Jury Will Be Allowed to Hear Unusual Medical Malpractice Suit

Thu, 29 Sep 2011 09:25:22 -0500

The Georgia Supreme Court recently published an opinion in the case of O'Brien v Bruscato, allowing suit to go forward involving a mentally ill Georgia man that brutally killed mother. Vito Bruscato, the father and guardian of Victor Bruscato brought a medical malpractice suit against Victor's psychiatrist for discontinuing his medication shortly before the homicide of Victor's mother. Victor, who had a history of violence, crushed his mother's head with a battery charger and proceeded to stab her 72 times on August 15, 2002 at the family's Norcross Home. During his interview with police, Victor Bruscato, told them he knew killing his mother was wrong but that "the devil made him do it."

The suit alleges Dr. O'Brien's negligence in discontinuing his son's medication caused him to become psychotic and kill his mother. The two drugs, Zyprexa and Luvox, are powerful prescription that Bruscato was taken off of several weeks before killing his mother. The court records in the case indicate that Victor Bruscato was assigned to Dr. O'Brien in 2001in a community health center in Gwinnett County. Expert witnesses have testified that anti-psychotic drugs he was prescribed were helping him manage his violent tendencies. In May 2002, O'Brien discontinued the medications because he wanted to make sure that Bruscato wasn't developing a "dangerous syndrome." After the discontinuation of the medication, Bruscato claims he began having nightmares and the claimed the devil was ordering him to do bad deeds.

The Supreme Court noted in it's decision that an expert psychiatrist testified "the chemical changes that resulted from withholding medication caused Bruscato to decompensate and experience the return of the most severe symptoms of his medical disorder, including auditory command hallucinations, agitation, and hostility. The expert concluded that O'Brien's treatment manifested gross negligence and a disregard of the consequences of leaving a historically violent and potentially psychotic patient unmedicated."

Cobb County Jury Returns Record $40 Million Dollar Verdict for Husband's Wrongful Death and Widow's Personal Injuries

Wed, 28 Sep 2011 09:21:07 -0500

As a Marietta Trucking Lawyer, I'm always interested in significant Cobb County trials involving tractor trailer collisions. On Thursday I watched closing arguments in the case of Theresa Foster v. Landstar Ranger, Inc. et al. The case was filed by a Blakely, Georgia woman seeking to hold a Florida trucking company accountable for a 2007 collision that killed her husband, William Foster, killed a friend, Jay Demont, and caused her serious personal injuries. The evidence presented by the widow's lawyers was compelling. As I left the Courthouse that evening, I felt fairly confident the jury would return a large eight figure verdict, but then you never know. On Friday the jury reached a verdict, awarding $40 million to Mrs. Foster, thought to be a record in a Georgia wrongful death case.

The driver of the Landstar 18-wheeler, Stephen Collins, ran a stop sign and collided with the Foster's vehicle on February 11, 2007 while they were on a hunting trip in the southwest Georgia town of Blakely. Mrs. Foster's lawyers presented evidence that Mr. Collins ignored 10 indications that he was approaching a stop sign, including rumble strips, lights, and signs. At the time of the accident, Collins was transporting a cargo of rubber pellets that caused the weight of his 18-wheeler to be over 77,000 pounds when it crashed into Mr. Foster's 2002 Ford F-150. Both Foster and Demott were riding in the front seat of the truck, while Mrs. Foster who suffered broken ribs and a fractured vertebra was the lone back seat passenger.

In Georgia, if a trucking company kills someone, they are responsible for the value of that person's life as well as the lost earning capacity of that person. Mr. Foster was a large wage earner and a successful businessman. Mrs. Foster's lawyers presented a thorough economic analysis, supported by testimony of expert economists, accountants, and Mr. Foster's business partners, that Mr. Foster's lost earning capacity exceeded $43 million dollars. Landstar's lawyers argued that the number was too high, but failed to present any evidence supporting a different number. From my point of view, it appeared the defense strategy was to sit back and rely on the reputation of Cobb County juries to deliver low verdicts.

At Church on Sunday I was asked a good question. "If a Florida corporation killed a Blakely, Georgia man in Blakely, why did the case get tried in Cobb County?" The answer surprised them, in Georgia cases are tried where the Defendant lives. Corporations "live" wherever they choose to have a registered agent. Ironically, Landstar Ranger, Inc. choose to set up their registered agent in Cobb County, because of our County's reputation for very low verdicts. They figured if they ever killed anyone with a tractor-trailer they would get to pay less if the case was tried in Cobb County. However, from my experience as a Cobb County Personal Injury Lawyer, this perception is outdated. More often than not, Cobb County juries do the right thing and reach verdicts based on the evidence, whether that means a large or small verdict.

Georgia Child Safety and Product Liability Update - Drop-Side Cribs Outlawed For Causing Numerous Infant Deaths

Mon, 19 Sep 2011 10:31:22 -0500

The traditional drop side crib that millions of parents have trusted and relied on to cradle their babies for generations has now been outlawed by the government. After many recalls and the deaths of over 30 infants and young toddlers over the last 10 years, drop side cribs will no longer be a choice for parents when shopping for a crib. The Consumer Product Safety Commission came to a unanimous vote to ban all operations involving the drop side crib in which on side moves up and down, so that a mother or father can easily remove their child. The ban of all operations, involving this crib include: a ban of manufacturing, selling, or reselling in any way. The government has approved a new standard that ensures the safety of all children that need to be in a crib. Cribs will only have fixed sides so children can't climb out or fall out over the side. The government has also banned all child care institutions, as well as hotels, from using drop side cribs in their establishments.

Drop sides cribs have been criticized for decades for many reasons. These drop side cribs have been known to have malfunctioning hardware, cheaper plastics, and most commonly, assembly problems. Assembly problems have caused numerous instances in which the drop side rail detaches from the crib itself. When this detaching happens, it commonly creates a V-gap between the mattress and side rail. This can cause an infant or toddler to get stuck in this V gap and suffocate causing a needless death. A mother in New York lost her 10 month old son in 1997 when his side rail detached and his neck became trapped between the mattress and side rail. A mother wants to feel a sense of safety when she puts her infant or toddler down to sleep and not have to worry about them possibly suffocating or dying through the night. It is an awful feeling to wake up to your son or daughter trapped and not be able to help them.

Appeals Court Rejects Medical Monitoring for Toxins in 2007 Train Derailment

Thu, 15 Sep 2011 11:21:14 -0500

In an interesting decision out of the 6th Circuit, a three-judge panel of the U.S. Circuit Court of Appeals upheld a judgment for CSX Transportation Inc. last week in a case brought by a group of citizens seeking medical monitoring for the small Ohio town of Painesville, after a train derailment in 2007. When the train derailed it was carrying substances that included glycerin, alcohol, ethanol, and butane. All of theses substances are known to be dangerous when inhaled in large quantities, and butane is an extremely volatile substance, and inhaling it can cause, narcosis, asphyxia, and cardiac arrhythmia. After the accident more than 500 families were evacuated in the half-mile area surrounding the site. In addition, some of the 3000 gallons of Ethanol that was spilled leaked into a nearby creek. CSX admitted in court filings that improper track maintenance, including using the wrong size rail as part of a repair, caused the crash.

The residents who brought the suit against CSX were attempting to persuade the court to force CSX to pay for the expense of medically monitoring the area for an extended period of time to assess any risk the spill might be causing to the residents near the site of the derailment. The appeals court said the plaintiffs failed to produce evidence creating a genuine issue. Instead, the court says, that they relied on a conclusory statement by a doctor that, "a reasonable physician would prescribe for the Plaintiff and the putative class a monitoring regime."

Daniel Bechenel Jr., a lead lawyer in the case, called the derailment an example of railroads putting people in danger and imminent risk by cutting safety precautions and repair standards. Though this may be true, the Appeals Court felt that the overall risk was too small to force CSX to pay for the medical monitoring.

Interestingly, The National Association of Manufacturers and eight other well-known Tort Reform groups, including the American Tort Reform Association, the U.S. Chamber of Commerce and the American Insurance Association, had filed amicus briefs arguing that the risk was too speculative to justify imposing expensive medical monitoring on CSX. Looking at this case from the perspective of a Georgia Plaintiff's Attorney, it seems this may be another victory for big business.