The Georgia Court of Appeals Re-Affirms the Right to a Fair and Impartial Jury

[W]e remain steadfast in our commitment as a Court to safeguarding the sacrosanct and cherished right to a fair and impartial jury trial...

- Judge Stephen Dillard, Georgia Court of Appeals

On December 16, 2011, in the case of Harper v. Barge Air Conditioning, Inc., the Georgia Court of Appeals re-affirmed its commitment to safeguarding the right to a fair and impartial jury. The Court determined that my client, Jocelyn Harper, who suffered severe brain injury after exposure to carbon monoxide at her place of employment, was denied a fair trial when the trial court allowed two prospective jurors to remain on the panel after they expressed clear bias in favor of the defense.  For example, one of the jurors was the personal accountant of the defense lawyer and a client of the defense lawyer.  During jury selection ("voir dire") I asked the accountant whether he would "be inclined to try to find in [defendant's] favor." The prospective juror responded, "What do you think?  Of course."  Despite a motion to strike the juror for cause, the trial court allowed him to stay on the panel along with another juror who expressed similar bias. In a strongly worded opinion, The Court of Appeals reversed the trial court, and made it abundantly clear that it will safeguard the right of Georgia citizens to a fair and impartial jury trial.  As Justice Dillard wrote:  

Accordingly, we reverse the judgment in favor of Barge and remand the case for a new trial. In doing so, we “deplore the significant burden a [second] retrial will impose, not only on the parties, but on the community as well,” and “[w]e are particularly troubled by the trial court's willingness to infect a trial with this kind of error when a solution (excusing the juror[s] for partiality) was so readily available.”  Nevertheless, we remain steadfast in our commitment as a Court to safeguarding the sacrosanct and cherished right to a fair and impartial jury trial, and we will continue to remand this case back to the trial court until Harper is provided with same.


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Georgia Lawyers Disbarred for Unethical Conduct

The Georgia Supreme Court recently disbarred two personal injury lawyers who were caught using "runners" to seek out and solicit clients.  In the Matters of Thomas C. Sinowski and Steven F. Freedman, the Court concluded Attorneys Sinwoski and Freedman violated multiple Bar Standards and are now forbidden from further practicing law - a professional "death penalty." 

The use of "runners" is an unethical practice where a lawyer will pay non-lawyers to approach potential clients and refer them to the lawyer. Oftentimes, the runners will stake out hospitals or trauma care centers hunting for people involved in serious car wrecks.  The runners will "innocently" approach a grieving family member, maybe at a vending machine or in the lobby, and "suggest" they contact a certain lawyer. The practice undermines public confidence in the legal profession further contributing to the false perception that all personal injury attorneys are unethical "ambulance chasers."  Even worse for the clients, the attorneys who use runners quickly develop a reputation for poor legal work and selling out their clients for a quick settlement.

The use of runners continues throughout Georgia, and the public should be alert to the practice.  For example, just a few days ago, I was contacted by a young woman who had been in the hospital for 6 weeks.  She was involved in a terrible car accident which resulted in multiple fractures of her vertebrae.  When I met her in the hospital, she told me a lawyer from one of the large "billboard advertising firms" had come by her hospital room about 3 days after the wreck pushing her to sign a attorney contract.  Fortunately, the client had the good sense to keep all the paperwork, the name of the attorney and the pertinent details to support a Complaint to the State Bar - which is forthcoming.

It is unfortunate that every profession has its share of "bottom dwellers" who will engage in unethical and illegal conduct to try and gain advantage.  The legal profession is no different.  With its recent decision disbarring Sinowski and Freedman, the Georgia Supreme Court has demonstrated that such conduct will not be tolerated in Georgia.  


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Is "Stolen Valor Act" Constitutional?

The U.S. Supreme Court recently granted certiorari in the case of U.S. v. Alvarez, which presents the question of the constitutionality of the "Stolen Valor Act." The Stolen Valor Act prohibits people from falsely claiming they have been awarded military decorations and medals, and states that:

"Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both."

The lower courts that have considered challenges to the act have reached different conclusions.  In July 2010 a federal district court in Denver ruled that the act violates free speech, and rejected the argument that lying about having military medals dilutes their meaning and significance. A month later, the 9th U.S. Circuit Court of Appeals also considered the issue in a separate case (the Alvarez case), and held that the "speech" involved in the case -- lying about being awarded military medals -- was within the scope of the First Amendment. The 9th Circuit therefore applied "strict scrutiny review to the Act, and [held] it unconstitutional because it is not narrowly tailored to achieving a compelling governmental interest." The court observed that if the Stolen Valor Act was constitutional, as argued by a dissenting judge,

then there would be no constitutional bar to criminalizing lying about one’s height, weight, age, or financial status on Match.com or Facebook, or falsely representing to one’s mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway. The sad fact is, most people lie about some aspects of their lives from time to time. Perhaps, in context, many of these lies are within the government’s legitimate reach. But the government cannot decide that some lies may not be told without a reviewing court’s undertaking a thoughtful analysis of the constitutional concerns raised by such government interference with speech.  

I suspect the Supreme Court will strike down the act as unconstitutional, while rightly condemning those who would peddle lies about imagined battlefield glory. It is hard to imagine that a court which regards a stripper's activities as protected "free speech" would uphold an act criminalizing true speech, however malignant.  

Please visit us at www.BellLawFirm.com.

New Documentary Debunks Urban Legend of McDonald's Coffee Case

This past weekend, I had the pleasure of listening to Susan Saladoff discuss her new documentary, "Hot Coffee", which recently aired on HBO. Of course, the provocative title - "Hot Coffee" - refers to the much-maligned civil lawsuit involving an elderly lady, Stella Liebeck, who suffered burns after she spilled McDonald's coffee in her lap. The case became corporate America's rallying cry for so called "tort reform" - an organized effort to restrict civil lawsuits and limit the compensation injured people could receive from a jury. After watching the documentary, however, a much different picture emerges.

First of all the idea this was a minor burn case is totally false. The documentary shows the actual photographs used at trial depicting Ms. Liebeck's injuries. Imagine blackened, charred skin throughout her groin and inner thighs - unforgettable and deeply troubling images. She required multiple skin grafts and lengthy physical therapy. She never fully recovered from her injuries.

Also, the popular media image of the diminutive grand-mother from New Mexico is that of a greedy, money-hungry woman looking for "jackpot justice" from a wealthy corporation. The truth is that Ms. Liebeck asked McDonald's to pay only her out-of-pocket medical bills that were not covered by Medicare. McDonald's offered her $800 to go away. Only then did Ms. Liebeck retain an attorney to pursue a claim.

Below is a link to the official trailer of "Hot Coffee". I urge you to watch it and share your comments. The movie is also available on Netflix.

Hot Coffee Trailer

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Summer Safety

Water-related accidents happen fast, without warning and are often visually hard to detect in a busy pool, or at the beach. Children in particular, don't necessarily yell or scream or make a lot of noise when they are in danger in the water. Above all, stay alert when watching your kids in the water, and realize that even if someone is a strong swimmer, their activity needs to be supervised.

And as you head to the nearest watering hole to cool off, keep these safety tips in mind, and have a great summer!

• Residential pools must be secured by a fence at least four feet tall or an automatic pool cover.

• Keep the area around your pool free of furniture or items that someone could trip over.

• Keep children away from pool drains, pipes and other openings to avoid entrapments.


• Make sure your children are not wearing any loose jewelry, hair accessories or clothing that could get caught in pool drains or other pool equipment.


• If you have a home spa, install and use a child-proof, locked safety cover to keep children out.


• Before allowing kids to dive, make sure the water is at least 10 feet deep.


• Always watch your children when they are in the water, even if they know how to swim.

• Do not drink alcohol if you are supervising young swimmers.


• Adults watching a group of children swim should assign at least one adult to the exclusive task of watching the children.


• Adults supervising young children should practice “touch supervision” and be close enough to reach the child at all times.


• Take a class in CPR. Children 13 and older should also learn CPR.


• If you are using a public pool or beach, only swim where lifeguards are on duty and in their lifeguard’s stand. Stay and watch your children even if there is a lifeguard on duty.


• Avoid swimming at the beach on windy days. Wind can create undertows and dangerous swimming conditions.


• Do not body surf or allow your child to body surf. Body surfing is one of the leading causes of catastrophic spinal cord injuries.


Learn more and visit us at www.Belllawfirm.com or call us at (404) 249-6767

Tips for Choosing a Reputable Chiropractor (and Reducing the Risk of Stroke)

Guidelines for Selecting a Chiropractor

The single biggest risk of chiropractic care is the risk of stroke resulting from aggressive neck manipulation. Should you decide to visit a chiropractor, the following guidelines will hopefully assist you in selecting a competent, responsible healthcare provider.

Avoid

1. Chiropractors who advertise excessively or who offer “free” or discounted exams or treatments.

2. Chiropractors who claim chiropractic is a “miracle” or can offer “miraculous results”.

3. Chiropractors who want you to sign a contract for long term care.

4. Chiropractors who insist that they are primary care doctors or suggest that MD’s are simply

against chiropractors because chiropractic treatment is somehow better than medicine.

5. Chiropractors who advise you not to have your children immunized.

6. Chiropractors who want you to return even if no progress has occurred after two weeks and/or a half dozen visits.

7. Chiropractors who use scare tactics to solicit for business, such as preaching that “vertebral subluxations are silent killers” and that your whole family needs to be checked for subluxations.

8. Chiropractors who take full spine or repeated x-rays.

9. Chiropractors who promise to prevent disease through regular check-ups and manipulations.

10. Chiropractors who claim their treatment will cure some disease, improve immune functions or benefit organ systems.

11. Chiropractors who do not obtain your informed consent and warn you about the possibility of having a stroke after manipulation or claim that the risk is so rare it doesn’t matter. (Complete informed consent includes not only written consent but also a discussion regarding all risks & benefits to any and all chiropractic procedures.)
Unfortunately, in some states such as Georgia, chiropractors are not legally required to obtain the informed consent of their patients or explain the risks inherent with neck manipulation. Regardless of the legal requirements, ethical and honest chiropractors should always explain the risks to their patients before undertaking any procedure.

12. Chiropractors who offer to sell you expensive nutritional supplements or other remedies, which they profit from.

13. Chiropractors who believe spinal manipulation is treatment for disease, infection or as a method of preventing ill health. (Or if a chiropractor refers to himself as a “straight” chiropractor.)

Seek

1. Chiropractors who take a full medical history before starting treatment.

2. Chiropractors who recommend that a medical facility take x-rays and orders them to rule out fractures or gross pathology as indicated by their case history. In some cases an MRI might be warranted to eliminate the possibility that the head or neck pain you are experiencing might be the result of something very serious, like a torn artery.

3. Chiropractors who discuss at length all risks of chiropractic manipulation as well as any benefits. (Risk vs. Benefit)

4. Chiropractors who clearly establish the type of treatment he is going to perform, its expected outcome, how long it will last and how much it will cost.

5. Chiropractors who will refer you to a medical doctor if you or close family members have medical histories that indicate a thorough medical exam is necessary before any chiropractic treatment.

6. Chiropractors who emphasize the importance of wellness by means of a balanced diet, regular exercise, better posture, minimizing stress etc.

7. Chiropractors who are willing to explain their training and treatment philosophy, bearing in mind that chiropractic is generally considered effective only for temporary back and joint pain. (Since chiropractors adhere to many different philosophies, if you find that their treatment philosophy is something that sounds odd or is something that you instinctively don’t feel right about, leave immediately.)

8. Chiropractors who limit their practice to conservative treatment of musculoskeletal problems.

Important:

Patients should never be afraid to ask their family medical doctor for the names of chiropractors who fit the above descriptions and appear to be competent and trustworthy.

Many states offer online verification of chiropractor’s current license status, malpractice history, education and disciplinary actions. Obtaining this information is strongly recommended before seeing any and all new healthcare providers.

Lloyd N. Bell is a Georgia personal injury lawyer who represents people who have suffered catastrophic personal injury, including victims of chiropractic malpractice. This blog is meant for informational purposes and to raise community awareness of avoidable safety risks. To learn more about my practice, please visit www.BellandMulholland.com.

Conservative Scholar Opposes Federal Tort "Reform" Efforts

Earthquake: GOP's Favorite Constitutional Scholar Opposes Federal Tort Reform Bills

By Andrew Cochran on May 22, 2011 5:46 PM| 0 Comments

Prof. Randy Barnett of Georgetown University Law Center is arguably the GOP's favorite Constitutional scholar. He co-authored an amicus brief for the National Federation of Independent Business in the 11th Circuit review of the State of Florida's anti-ObamaCare case; he has written often about and testified to the unconstitutionality of ObamaCare before the House Judiciary Committee and the Senate Judiciary Committee; and he's among the leading experts on the original intent of the Founding Fathers' writings, including the Constitution and Bill of Rights. Just last week, he appeared with Congressional Republicans to announce the introduction of the Repeal Amendment, which would allow states to repeal federal laws under certain conditions.

So it's stunning that Prof. Barnett has written two pieces today on the unconstitutionality of any federally enacted tort reform, beginning withH.R. 5, the Republican-sponsored "HEALTH Act," which would severely limit all health care-related lawsuits. In an op-ed appearing in the Sunday edition of the Washington Examiner, Prof. Barnett wrote:

Congress is now considering the "Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011." This bill alters state medical malpractice rules by, for example, placing caps on noneconomic damages. But tort law -- the body of rules by which persons seek damages for injuries to their person and property -- has always been regulated by states, not the federal government. Tort law is at the heart of what is called the "police power" of states... Indeed, if Congress now can regulate tort law, which has always been at the core of state powers, then Congress, and not the states, has a general police power. This issue concerns constitutional principle, not policy: the fundamental principle that Congress has only limited and enumerated powers, and that Congress should stay within these limits. Constitutional law professors have long cynically ridiculed a "fair-weather federalism" that is abandoned whenever it is inconvenient to someone's policy preferences. If House Republicans ignore their Pledge to America to assess the Constitution themselves, and invade the powers "reserved to the states" as affirmed by the Tenth Amendment, they will prove my colleagues right.

And in a piece on his blog hosted on the pages of the "Volokh Conspiracy," he added to his objections as follows:

When I first heard that the House was planning on pursuing tort reform, I was skeptical that there was a constitutional basis for this effort at the federal level, but thought maybe there is some legitimate federal power that, if cleverly deployed, could influence tort law at the state level. So I was disappointed when I read the law firm report on which the sponsors of the bill relied for 'constitutional authority.' The report justified the bill under the 'substantial effects doctrine.' Not only does this post-New Deal doctrine extend Congress's power well beyond the regulation of interstate commerce, it does so, not by independently determining whether the activity being regulated actually has a substantial affect on interstate commerce, but instead on whether Congress had a 'rational basis' for believing that it did. Thus does the Court defer to Congress, while the House Republicans -- just like Congressional Democrats -- defer to the Court's assessment of constitutionality. This 'double deference' is one of the secret (to the general public) tricks by which the branches of the federal government can claim to be adhering to the Constitution while actually ignoring it. It is one of the ways important passages of the Constitution's text became 'lost.'

But the 'findings' of the bill are even worse:

"EFFECT ON INTERSTATE COMMERCE"

"Congress finds that the health care and insurance industries are industries affecting interstate commerce and the health care liability litigation systems existing throughout the United States are activities that affect interstate commerce by contributing to the high costs of health care and premiums for health care liability insurance purchased by health care system providers."

These 'findings' are based on the effects on interstate commerce, not only of the 'health care and insurance industries,' but also of 'health care liability litigation systems throughout the United States' -- that is, on the affects on interstate commerce of state courts themselves! So Congress has the power to regulate tort law because state courts affect interstate commerce. By this principle, Congress has a general police power over any matter not adjudicated by state common law courts.

Prof. Barnett's logic is irrefutable, if you believe in restoring the original intent of the Constitution and Bill of Rights. If, instead, you adhere to the position that the post-Wickard line of Supreme Court decisions justifies H.R. 5, then... get ready for ObamaCare.

This is an intellectual earthquake. Prof. Barnett's two pieces and the posts and letter by Constitutional conservative Rob Natelson of the Independence Institute trump the theories behind business community's long war to pre-empt all state laws and courts and deprive us of our Constitutional rights. Now the battle in Congress is fully joined. It's the Founding Fathers vs. theU.S. Chamber. It's the original intent of the Constitution and Bill of Rights to limit Uncle Sam's power vs. new judge-made doctrines expanding Uncle Sam's power. It's the moral authority of principle and conscience vs. the naked power of business-side PAC dollars and scores of lobbyists. If GOPCongressmen and Senators vote their conscience, it'll be no contest. Call your Congressman and tell him to save the Constitution and Bill of Rights by opposing H.R. 5.

Bell & Mulholland, LLC is a personal injury trial firm representing people who have suffered serious injury or wrongful death due to negligence. Please visit us at www.bellandmulholland.com.