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Gwinnett jury returns $2.3 million verdict in slip-and-fall lawsuit against Kroger

Friday, January 27, 2012 Spoliation mars Kroger's defense Jury awards $2.3M to slip-and-fall victim after judge finds company destroyed video of accident By Katheryn Hayes Tucker, Staff Reporter

(John Disney, Daily Report) Plaintiff's attorney Lloyd Bell: "We couldn't believe it. The camera had obviously caught everything."

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A Gwinnett County State Court jury last week awarded $2.3 million to a man who was hurt slipping in a Kroger grocery, which saw its defense struck after a judge concluded the company destroyed a video of the accident.
Gwinnett County State Court Judge Joseph C. Iannazzone ruled in December that Kroger "spoliated evidence" and "acted in bad faith in failing to preserve the evidence and manipulating evidence to excuse its actions."
As a result of the spoliation order, the three-day trial was for damages only. And the judge's bad faith ruling allowed the plaintiff to ask for litigation expenses, for which the jury awarded $675,782.40.
The jury also awarded $700,000 for future pain and suffering, $200,000 for past pain and suffering, $477,496 for future lost wages, $77,083 for past lost wages, $100,000 to the plaintiff's spouse for loss of consortium and $134,877 for past medical expenses, according to the final judgment, entered Jan 20.
"We are very pleased with the jury's verdict," said plaintiff's attorney Lloyd N. Bell of the Bell Law Firm, who tried the case along with Bruce Berger of the Berger Law Firm. "It is unfortunate that Kroger chose to drag my client and his family through three years of brutal and exhausting litigation, rather than owning up to its misconduct."
Defense attorney Douglas A. Wilde, a solo practitioner based in Tyrone, referred a call for comment to Glynn Jenkins, director of communications and public relations for the Atlanta division of The Kroger Co. Glynn responded with the following statement: "The safety of our customers is important to Kroger. We are sorry that Mr. Walters had an unfortunate experience in one of our stores. However, we disagree with some of the decisions made in the recent trial and are currently evaluating our future course of action."
Plaintiff Charles Craig Walters Jr. has been unable to work since the fall in May 2008, Bell said. At the time, Walters was a 49-year-old landscaper shopping with his teenage daughter.
The judge's spoliation order said Walters "alleges that he was looking for hot dogs near the rear of the store in the meat department when he began to slide and fell to the floor." When Walters got up, he observed a "little pile of goo" on which he had slipped, the order said. Kroger manager Peyton Kelley arrived, and then an unidentified customer wiped up the substance and determined it was a banana.
Half an hour later, the store manager said he observed a woman checking out who had a baby in a shopping cart eating a piece of banana, the order said: "It is Kelly's belief that the baby had dropped the piece of banana on which Walters had slipped."
The importance of the video was to show when the spill happened and how long it remained on the floor before Walters slipped on it, as well as whether any Kroger employees had reason to know about it. "Walters argues that the spoiled video could have shown that Kroger created the hazard," the judge's order stated. The judge noted that spoliation creates a "presumption against the spoliator that the evidence favored the spoliator's opponent. The video might have established either actual or constructive knowledge by Kroger of a foreign substance on the floor."
Also, Kroger maintained the video would not have mattered because the camera was not pointed to the exact spot where Walters fell. The defense later produced a "sample video" from the camera in the area showing that Walters' fall would not have been in the picture.
But during a deposition at the store, plaintiff's lawyers asked the manager to show them the live video feed from the same camera on his computer. "Although the manager had sworn just moments before that the video camera had never been moved since the store opened in 2004, when he pulled up the live video, we saw it was pointing to the exact location of the fall," Bell said. The plaintiffs alleged that the camera must have been moved to create the sample video and then moved back.
"We couldn't believe it. The camera had obviously caught everything that had happened—when the fruit fell to the floor, how long it was there, Walters' slipping and falling on it—and they deliberately erased it, lied to us and gave us a phony sample of video footage," said Bell. The plaintiffs filed a motion to strike the defendant's answer as a sanction, which the judge granted.
Kroger's attorney argued that Walters' back problem was not caused by the fall but by "pre-existing degenerative and or congenital conditions and not by any act or omission of the defendant," according to the defense outline in the consolidated pretrial order.
Another point for the defense was that Walters did not call an ambulance or seek immediate medical care. Bell said his client told his daughter when he got to their car that his legs didn't feel right and his toes were tingling. But he waited two weeks to call his orthopedist, who had a three-week wait for appointments.
However, it happened that the plaintiff had seen his orthopedist three days before the fall for work-related shoulder pain. The plaintiff's attorneys were able to introduce evidence from that appointment showing that Walters reported no neck or back pain. "He had a good baseline," Bell said.
Jurors were qualified to make sure they had no conflicts with three insurers for Kroger: Ace American Insurance Co.; Illinois Union Insurance Co.; and Factory Mutual Insurance Co.
The defense objected unsuccessfully to qualifying the jury on Illinois Union and Factory Mutual, which Bell said carry excess verdict coverage for the grocery store chain. Bell said he believes Kroger covers the first $1 million and that Ace covers the next $3 million. Mentioning all three insurers during voir dire could be perceived as a hint to the jury of how much coverage is available to the defendant, but Georgia law requires that they be named.
The case is Walters v. Kroger, No. 09-C-14740-S4.

Staff Reporter Katheryn Hayes Tucker can be reached at ktucker@alm.com

Learn more and visit us at www.BellLawFirm.com.

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.


Please visit us at our new website - www.BellLawFirm.com

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.  


Please visit us at www.BellLawFirm.com

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

Please visit us at BellLawFirm.com.

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.

Georgia Bar Settles Dram Shop Case for $1 Million

Ga. Bar Settles Dram Shop Case for $1 Million

Katheryn Hayes Tucker

08-31-2010

A Holt demand and a spoliation sanction from Cobb County State Court Chief Judge Toby B. Prodgers were the key ingredients in the $1 million settlement of a wrongful death case against The Sports Grill for serving alcohol to a customer who had a fatal crash on the way home.

The drama continued into the final hour before the settlement deadline set by plaintiffs attorneys James L. Creasy III of Gillis & Creasy and Lloyd N. Bell of Bell & Mulholland, who were fielding calls on their cell phones from their cars and offices until nearly noon on July 15, when Statewide Insurance Co., acting through RCA Insurance, wrote the check rather than risk exceeding the $1 million policy liability limit if the case had gone to trial.

"Frankly, I wish they hadn't settled," said Creasy, the lead plaintiffs attorney. "I'd like to have tried the case."

Creasy had made Holt demands, a demand for settlement of the full amount of available liability insurance, unsuccessfully twice before during nearly two years working on the case. The reason the tactic worked the third time was Prodgers' order granting their motion for spoliation sanctions and striking much of the defendant's evidence. Before Prodgers' order, the defense had served the plaintiff with a $50,000 order of judgment, according to Creasy.

"That was a remarkable ruling," said Brad C. Kaplan of Kaplan & Seifter, who represents the bar owner, Winston's Food & Spirits, but was not involved in the litigation. "It was very unusual." The defense attorney in the case, J. Robb Cruser of Cruser & Mitchell, declined comment and deferred to Kaplan.

Kaplan said the bar owner was "extremely disappointed" with Prodgers' order, which created a practical problem of not being able to present evidence. The company had never faced a dram shop case during 25 years in business, according to Kaplan, who said the owner brought him in near the conclusion of the litigation. "My role was to talk to the insurance company and ask them to do the right thing," Kaplan said.

The issue in the judge's order was four hours of videotape from the night in October 2008 when William Paul Davis IV, now 28, was drinking at The Sports Grill in Austell before he left and crashed into the car driven by Cuneyt Erturk, who was on his way home from work. Erturk was killed. His widow, Trivilla Ross Erturk, is the plaintiff in the case against Davis and The Sports Grill.

The bar recorded over most of the tape, producing only a few "seconds or minutes" according to the judge's order, showing Davis entering and leaving. The order also said the bar destroyed the tabs for two patrons drinking with Davis and that night's "spill sheets," lists showing free drinks given out by bartenders.

"The testimony given by the employees of the Sports Grill would indicate that defendant Davis consumed a certain amount of alcohol during the time he was on the premises, that he was not noticeably intoxicated, and that they had no reason to believe that he would soon be driving," Prodgers said in his May 10 order following a hearing in April. "However, the videos which existed at one time would have given an objective, impartial view of Davis during the entirety of the four hour period he was at the premises and not just the few minutes or seconds which the Sports Grill saved." He called the bar employees' testimony "self-serving."

Although the police did not initially demand the entire four hours of video, Prodgers said the spoliation was "not excusable."

"With respect to the sanctions to be imposed for such spoliation, it is particularly disturbing that the Sports Bar would permit the destruction of the subject evidence after it became aware that a patron to whom it had been serving alcohol was involved in a fatal crash after leaving its premises," Prodgers' order said. "The court hereby strikes those portions of its pleadings whereby it denied that it served alcohol to defendant Davis while he was in a state of noticeable intoxication knowing that he would soon be driving." Those allegations, the judge said, are "deemed admitted."

Bell and Creasy said they believe part of the reason the judge came down as hard as he did on The Sports Grill was the evidence in the part of the video that was played in court during the motion hearing. Over defense objections, they said, they played video showing what happened in the bar after Davis left.

The bartender had just testified that he never "free pours" drinks -- a flashy practice that may please patrons and earn tips as shown in the movie "Cocktail" but can lead to overserving alcohol, they said. In the video made just after Davis left, that same bartender could be seen free pouring drinks. In free pouring, a bartender holds a liquor bottle high and streams it into a glass, rather than measuring it. Creasy and Bell said it also helped their case that Davis admitted in his testimony exactly how much he had to drink in the bar that night: two Long Island iced teas -- which typically contain five kinds of liquor -- and six 16-ounce beers.

Davis refused alcohol tests the night of the accident, but witnesses smelled alcohol on his breath, according to Creasy. Davis faces charges of DUI and vehicular homicide.

The bar still contends it was not liable for Davis' actions, Kaplan said. "A high bar has been set for plaintiffs in dram shop cases," he said. He also said "free pouring is not necessarily an indication of overserving."

But once Prodgers ruled on the spoliation motion, Kaplan said, the defense had "a practical problem" of not being able to present evidence.

"They did not believe they were liable, but based on the legal circumstances, they did what was correct," Kaplan said of the defense. And, he added, "The plaintiff's lawyers did a good job. The case is Trivilla Ross Erturk v. William Paul Davis Jr., Suzanne G. Davis, the Sports Grill a/k/a Winston's Food and Spirits, No. 2009A-1617-6 in Cobb County State Court.

A Bad Day for Georgia Citizens - Georgia Supreme Court Strikes Down Informed Consent

Today, the Georgia Supreme Court dealt a blow to patient's rights. In their wisdom, the Court determined that Georgia citizens do not have the right to be informed of the material risks of medical procedures, except in very limited circumstances.  In the case of Doreika v. Blotner, the Court found that medical professionals do not have to inform their patients of the risks of dangerous procedures and do not have to obtain their patients' informed consent before proceeding with treatment.  So understand how this works:  a young woman goes to see a chiropractor with complaints of headache. The chiropractor recommends manipulating her neck, without advising her that such a procedure can cause STROKE.  The woman does indeed suffer stroke.  The Georgia Supreme Court decision means the chiropractor cannot be held responsible for crippling this woman because he had no duty to ever advise his patient of the risks. Hopefully, the Georgia Legislature will remedy this unfortunate decision and restore patients' rights. 

Is There a Connection Between Chiropractic Care and Stroke?

Tina Johnson (not her real name) looks over a flyer she received in the mail.  "Free Chiropractor Session - Unleash Your Body's Natural Healing Power."  She continued reading, "Neck pain? Back ache? Headache?  We Can Help..."  Tina had been experiencing a nagging headache, and decided to give the chiropractor a try.  What could it hurt?

A few days later, Tina goes to the chiropractor for her "free" session.  She completes a health history form and reports nagging headache.  The chiropractor recommends an adjustment of her upper neck, her cervical spine.  Tina is not advised of any risks with the procedure, and she readily agrees to proceed.  

The chiropractor manipulates Tina's neck, and Tina feels a "pop" followed by dizziness and pain.  "Those are just toxins that your body is giving off," the doctor explains.  Tina leaves the office and within 20 minutes, begins experiencing radiating pain down her leg, with weakness.  She goes to the emergency room and is referred to a neurologist.  The next morning, Tina goes to a neurologist, and reports increased numbness and difficulty walking or forming words.  The doctor immediately admits Tina to Emory where she undergoes a battery of tests.  Later in the day, a grim-faced doctor comes to her room, and informs the 24-year-old mother:  "You have suffered a stroke."  

Tina had never imagined a visit to a chiropractor could result in stroke.  Certainly, she was never informed of this nightmare scenario or she never would have consented to the procedure. When Tina's husband contacted my law firm from the waiting room of the Emory Stroke Clinic, he asked the question I have asked myself over and over, "How could this happen?"  How could a healthy, young woman suffer a stroke from having her neck manipulated by a chiropractor? 

A simple Google search on "stroke" and "chiropractor" will result in hundreds of articles and commentaries on this issue.  For example, E. Ernst has published a fascinating article in the Journal of The Royal Society of Medicine entitled, "Adverse effects of spinal manipulation; a systematic review."   Dr. Ernst surveyed 75 authoritative texts addressing this issue and concluded spinal manipulation can result in "serious complications such as vertebral artery dissection followed by stroke."  

Many chiropractors, however, strongly disagree with this view, and insist the incident of vertebral artery dissection, "VAD" is extremely rare, on the order of 1 in a million.  Others claim that a cervical manipulation performed by a well-qualified and experienced chiropractor can reduce the risk of stroke.  

Tina is not buying these arguments.  "I should have been warned," she says.  "I never would have allowed them to touch my neck if I knew I could wind up permanently disabled."