Confidential Settlement for Premises Liability Accident
Confidential Settlement for Motorcycle Wreck
$705,000 Verdict in Commission Dispute Case
Confidential Settlement in Golf Cart Injury
$1.9 Million Recovered in Pay Dispute
Confidential Settlement For Atlanta Chiropractic Malpractice
Confidential Settlement in Commission Pay Dispute
Confidential Settlement In Dental Malpractice Case
$3.25 Million For Alleged Fraud in Sale of Business
$5.5 Million Medical Malpractice Verdict
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Daubert motions are becoming more prominent in personal injury litigation as more and more judges entertain pre-trial motions to strike the other side’s expert. Historically, the defendants took the lead in this tactic, but lately, Plaintiff litigants have been filing their share of Daubert motions in an attempt to strike a defendant’s expert or to strike portions of that expert’s testimony at trial. Motions being filed ares similar to the following motion used in state court:

PLAINTIFFS’ MOTION TO EXCLUDE EXPERT TESTIMONY

Plaintiffs, files this motion to strike the testimony of A.B., M.D., and Mr. T.G., P.E., and would respectfully show as follows:

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During the discovery phase of litigation, it is inevitable that discovery disputes arise between the plaintiff and defendants in Georgia personal injury, premises liability and malpractice litigation. One area of dispute that comes up often is when the plaintiff seeks the file that the insurance adjuster has compiled on the case. While the insurance companies try to avoid turning the file over, it is often discoverable unless the defendants can show a compelling reason to the court that it not be discoverable.

WORK PRODUCT IS NOT A BLANKET PROTECTION

The Defendants often claim that the adjuster’s investigative file is protected from disclosure by the so called “work product” privilege under O.C.G.A. §9-11-26(B)(3). This code section of the Georgia Civil Code deals with trial preparation materials and states in relevant part “a party may obtain discovery of documents … otherwise discoverable … and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative … only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.”

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As an Atlanta dental malpractice attorney, I receive calls every day from dental patients who have been injured due to dental procedures. Almost all of the dental nerve injuries that are actionable dental malpractice claims involved the trigeminal nerves of the face, mouth, neck and jaw.

The trigeminal nerve is the largest of the cranial nerves and has three major divisions: the opthalmic nerve (V1), the maxillary nerve (V2), and the mandibular nerve or inferior alveolar nerve (hereafter referred to as the “mandibular nerve” for simplicity and consistency) (V3). A nerve outside of the central nervous system is called a peripheral nerve. The mandibular nerve is a peripheral nerve which is the largest of the trigeminal nerves and is the most common branch injured following dental implant surgery. While the mandibular nerve is technically outside of the central nervous system, most of my clients report debilitating pain in parts of their face and head served by the mandibular nerve. This nerve carries sensory information from the lower lip, chin, lower teeth, gums, the lower jaw, and, at times, can extend up and into the ear on the side of the face affected by a dental implant injury, for example.

The mandibular nerve also contains motor fibers for supply of the muscles for eating (mastication), muscles of the ear and muscles of the soft palate. However, these motor branches and many of the sensory fibers to the external ear are rarely injured during implant surgery because these motor fibers are separated from the V3 branch of the trigeminal nerve prior to its exit from the foramen ovale of the skull and many of the sensory fibers enter the nerve above the lingula of the ramus. A V3 injury in dental implant surgery usually occurs after the nerve enters the lingula of the mandibular ramus and anywhere along its pathway in the jaw and/or its exit from the mental foramen in the chin area of the jaw.

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As a Georgia personal injury attorney who has handled many VA medical malpractice claims, I have seen a rise in the number of potential claims against the VA as the amount of resources devoted to veterans has not kept up with the amount of medical care needed by our veterans. The sample pleading below is a form complaint to sue the VA for medical malpractice in Georgia, but prior to initiating such action there are a number of unique procedurals hurdles that must be complied with, such as filing a timely administrative claim under the FTCA for damages with the Veterans Administration prior to filing suit or your right to sue may be lost forever:

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA — ATLANTA DIVISION

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In the news recently was the story of a woman who pretended to be a lawyer at the Towns County, Georgia Detention Center in April. She was arrested earlier this month by the Towns County Sheriff’s office and has been charged with practicing law without a license.

While your current lawyer may or may not be well suited to represent you, I doubt that you are in the position of being represented by someone who doesn’t even have a law license. Well, I certainly hope not. So, with that in mind, let’s look at what might be important to you if you ask: Is the lawyer I have the best choice for me and my case in Georgia?

There are many factors to take into account when trying to answer this question. First, you must ask whether the lawyer has the skill and training in the particular area of law in which your case falls. This is a pre-requisite for any attorney that you hire in Georgia. However, based on the news story at the top of this post, maybe the first questions should be whether person you hired is actually a lawyer (a thinly veiled attempt at humor). In any case, your lawyer should have adequate training and experience in the specific area of law that the case involves. Some common areas of law are car accidents, slip and falls, premises liability, medical malpractice, etc. All of these areas involve unique issues and laws that require a good amount of familiarity that usually can only be obtained by handling these cases over the course of many years.

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When a married person is severely injured due to the negligence of someone else (such as one of the entities at Atlanta Hartsfield Airport), the spouse owns a legal claim known as loss of consortium. Loss of consortium is legal cause of action in Georgia that is in place to compensate a spouse for the loss of services of the injured spouse. These services can include, but are certainly not limited to whatever the spouse did to contribute to the home before the injury and the loss and/or decrease in sexual relations. Many written discovery requests focus on this claim to the uninjured spouse (as they are also a Plaintiff in a case that includes claims for loss of consortium). Responses to these types of inquiries usually run along the lines of the following:

As a result of my husband’s injuries, we could not go out together to visit friends or other entertainment; we could not participate together in other activities outside the home as had been our practice; we could not perform any of our other usual activities together at home; his injuries resulted in irritability and helplessness leading to friction and, occasionally, arguments; and he was completely unable to participate in physical intimacy with me for an extended periods following the crash.  I was required to expend effort and time to care for my husband while he was completely disabled as well as to assist him to a greater degree than before during his continuing partial disability.  In addition, my husband was used to being a supportive, handy, helpful spouse and was unable to perform his household chores and assist me in other matters during that same time period.  I do not claim that my husband’s accident has caused us to lose the prospect of becoming a parent or of having additional children.  See my answers to the specific questions that follow for additional information.

Loss of consortium is a form of non-economic damages and is not subject to definite computation.  The extent of my damages are described fully in my other answers, which set forth the time period during which my husband was disabled from various activities.  Without waiving that objection, the aftereffects of my husband’s injuries still persist.  We cannot do all the things together that we used to do frequently because my husband is simply not up to it.  This continues to put a strain on our marital relationship.

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Molar tooth anatomy sometimes includes auxiliary root canals, loops, curved roots and fins which are difficult to detect, clean and obturate (fill). Many times, general dentists try to perform root canals on multi-rooted molars with these conditions and it could be below the standard of care for dentists under like or similar circumstances for them to do so. Other situations that may require referral by a general dentist to an endodontist to perform the root canal are narrow canals, abnormally large canals, internal resorption, broken files in a canal, canals requiring a post, and canals that are in the inferior alveolar nerve canal or in the sinus for maxillary molars and pre-molars.

Improper technique by a general dentist performing a complex root canal can lead to apical and coronal leakage of the root canal, root canal failure and, in the worst case scenario, injury to the nerves and other anatomic structures around the tooth. Improper technique can be in the form of over instrumentation of the root, not getting accurate working lengths, using excessive force while condensing with instruments to compact the gutta-percha, not properly sealing the core prior to obturation, not creating an apical stop, or over filling the canal by applying too much gutta-percha too quickly or placing too much volume in the canal to the fill with canal without exuding out of the end of the canal.

In addition to improper technique, a general dentist can commit dental malpractice while performing a complex root canal therapy treatment by: failing to perform an adequate and sufficient implant placement work-up and evaluation, including measurements to determine the depth of the available bone into which the implant can be safely placed without injury to the nerve; failing to sufficiently determine the location within the bone of the nerve bundle (the bundle that carries the nerve, the artery and the related anatomy through the jaw) to allow for the safe placement of the implant without injury to the nerve; placing the implant into the nerve canal and injuring the inferior alveolar nerve; failing to timely treat and/or remove the implant after becoming aware of complaints of numbness or pain or pain and numbness together; failing to adequately monitor and mitigate the consequences of paresthesia after negligent placement of the implants into the nerve canal; failing to timely refer the injured patient to a nerve specialist after the implant was placed in the nerve canal and the patient sustained a nerve injury, as indicated by the signs and symptoms of number, pain and/or pain accompanied by numbness relayed by the injured patient; and failing to gain informed consent for the implant procedure. All of these are actions or inactions on the part of the general dentist that can result in a dental malpractice claim, if the malpractice has resulted in injury sufficient in nature to warrant the filing of a malpractice claim.

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Medical malpractice cases often turn on medical expert testimony. Both sides in the lawsuit must hire experts to render opinions about liability (i.e., was there malpractice) and damages (i.e, did the malpractice result in the injuries and damages that the plaintiff is complaining of in the lawsuit). Many times, a client is allergic to an antibiotic or other drug, and despite the client listing this in the medical intake sheet when treatment begins at the doctor or dentist’s office, they are prescribed the anti-biotic which they are allergic to. Often the results can be catastrophic enough to support a dental malpractice or medical malpractice case because the signs and symptoms caused by the negligently prescribed drug, coupled with the illness or injury the patient was being treated for join forces to wreak havoc on the patient in very short order. Defense experts in Infectious Diseases, General Medicine and Pharmacology are often retained to testify in medical malpractice trials  in an attempt to insulate the negligent prescribers from liability. For instance, the signs and symptoms when a patient is prescribed a strong antibiotic that he or she is allergic to that specific drug are: severe allergic reactions which can last for weeks or even months, including red man’s syndrome, DRESS syndrome (Drug rash with eosinophilia and systemic symptoms (DRESS) syndrome is a distinct, severe, idiosyncratic reaction to a drug characterized by a prolonged latency period. It is followed by a variety of clinical manifestations, usually fever, rash, lymphadenopathy, eosinophilia, and a wide range of mild-to-severe systemic presentations), skin exfoliation, rashes on many parts of the body, whole body edema, including the trunk, torso, arms, hands, legs, face, and head., difficulty breathing and anxiety caused by the medication reactions.

Since these cases really do deal with clear liability, i.e.,  doctor who prescribes a drug to someone who is allergic to the drug and the patient has listed the allergy in his or her chart is negligent and not even a hired defense expert will risk opining otherwise, the role of the defense expert in these cases is to obfuscate the link between the malpractice (i.e., prescribing and administering a drug that someone is allergic to) and the signs and symptoms that are related above. Obviously the plaintiff’s expert, if it is true, will link the malpractice with the injuries that the plaintiff is complaining of in the lawsuit.

Attorney Robert J. Fleming has been handling wrongful death cases, automobile accident cases, personal injury cases, dental malpractice and medical malpractice lawsuits for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 20 years in and around Atlanta, Georgia and its surrounding areas, including Alpharetta, Austell, Avondale Estates, Chamblee, College Park, Conyers, Duluth, Decatur, Doraville, Hapeville, Johns Creek, Jonesboro, Lawrenceville, Norcross, Peachtree City, Riverdale, Roswell, Sandy Springs, Stone Mountain, and Smyrna. If you have been seriously injured and would like quality legal representation, contact Robert J. Fleming directly on (404) 525-5150 or contact us online.

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The number of bicycle miles traveled every year by riders who are older than 450  has increased from 1.9 trillion miles in 2001 to 3.6 trillion miles in 2009. In 1997, 26 percent of medical costs were due to riders 45 and older; by 2013, that had grown to 54 percent. Men continued to comprise the bulk of the injured, with 77 percent of costs in 2013 due to male riders.

What’s behind this increase and what does it tell us about how the circumstances surrounding bicycle rider injuries are changing. Well, as bicycle commuting to work rises in Georgia, so do the number of riders who are hit and injured on the roads of Atlanta and the surrounding areas. Year ago, it was not unusual to watch a movie and see scenes from urban areas in China and other parts of Asia and be struck by the number of people who were riding bikes, not for recreation and enjoyment, but rather to commute to and from work or to get around while working. Now, bikes have certainly become mainstream in Atlanta and it is not unusual to see someone commuting to and from work or making deliveries on their bike instead of their car. Many roads in Atlanta have been repainted or re-paved to add bike lanes and commuters have taken advantage of this increased access to the roads and have decided to ride their bikes instead of drive their cars. This results in better health, increased community awareness and cost savings in the form of less gas usage, decreased car maintenance and repair costs, and in some cases when an automobile is completely replaced by a bicycle, elimination of car insurance payments.

However, as is the case with most things in life, with the good comes the bad. And the bad in this case is that Atlanta bicycle riders are being hit and injured by Georgia drivers at an alarming rate. The medical costs associated with adult car on bike crashes was almost $25 billion in 2013 and, with increased bicycle usage by adult commuters, continuing to rise.

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An Alpharetta man who had stopped to aid another driver on I-75 was killed early Monday when a car struck his own vehicle.  The good Samaritan had pulled his Ford Explorer off behind a disabled Chevrolet Impala just south of Delk Road in Marietta about 4:35 a.m., Cobb police Sgt. Dana Pierce said. After turning on a set of white strobe lights on his vehicle, the victim got out and put on a reflective traffic vest, police said. Moments later, a 2006 Chevrolet Cobalt hit the rear of the Ford, causing it to hit the victim, who died on the scene.

Time and again, this is the end result of people (both who are broken down on the side of the road and those trying to aid someone who is on the side of the road) who are working on cars in the shoulder of the road. As an Atlanta Personal Injury Attorney who handles car accident cases, this is something that I see too often, and the results are almost always catastrophic. Anyone who finds themselves in this position should move as far to the right of the roadway as possible and not attempt to fix their car in the shoulder.

Due to the unique nature of a pedestrian being struck by a vehicle, there are unique legal issues which must be addressed as quickly as possible. Injuries in these types of accidents are usually extensive. The injured pedestrian is often taken from the scene by ambulance and not able to give their account of the accident to the investigating police officer. Because of this, legal representation should be sought quickly in order to protect the victims legal rights, even when the victim is in the hospital and cannot advocate for themselves. Many times, an immediate investigation can uncover witnesses and other evidence which can directly controvert what the at-fault driver (the drive who hit the pedestrian on the side of the road) tells the police of accident team. This can be crucial, not only for the trial or ultimate resolution of the case, but it can also affect insurance coverage, medical treatment and other issues related to the care and treatment of the injured person. Many times, there is only a short window of time to uncover this evidence before it is destroyed (either on purpose or accidentally).

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