Federal Government: FDA Approval Process Puts Patients at Risk

The General Accounting Office, part of the federal government, is criticizing the Food and Drug Administration over its streamlined procedure for approving medical devices such as hip implants and heart defibrillators following several high-profile device recalls.  The DePuy hip implant recall (manufactured by parent company Johnson & Johnson), in particular, has resulted in disabling injuries to many recipients of the devices.  Read more about this recall:


DePuy ASR Implants Associated with Cobaltism
Metallosis and DePuy ASR Hip Implants
List of Recalled Hip Implants

Turkheimer & Hadden, LLC
Trial and Appellate Lawyers
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Ford recalls trucks with defective airbags

Ford Motor Company has recalled nearly 1.2 million trucks suspected of containing defective airbags, according to the Associated Press.  The problem reportedly stems from airbags that improperly deploy, which can cause injuries or loss of vehicle control.  And according to the Los Angeles Times, the defect has led to at least 269 incidents, with over 1/3 of those resulting in injuries. 

Earlier this year, Ford recalled about 144,000 light trucks, but after investigation by federal authorities raised additional concerns, it substantially expanded the recall.

Turkheimer & Hadden, LLC
Trial and Appellate Lawyers
(404) 890-7200

Dangers of driving while using cell phones detailed

An article in this week's issue of the Economist presents new evidence on the dangers of using mobile phones while driving.  As we have previously written, the dangers of distracted driving are well documented, and have led to substantial personal injury settlements as well as action by state and federal governments to curb the problem.  Now research suggests that cell phone usage is more distracting that others activities undertaken by drivers such as eating, listening to the radio, or dealing with kids.

According to the article, cell phone usage differs from other language activities, such as speaking with someone actually in the car and listening to the radio.  It is more difficult to process communication when someone is not physically present.  The Economist article cited a Carnegie Mellon study that found a 37% decrease in activity in the brain's parietal lobe simply from listening to another caller.  As a result, some have argued that hands-free communications are not substantially safer, since the resulting distraction results not from physically holding a phone to one's head, but from the mental act of communicating without someone being present.

According to at least one study cited in the article, a driver using a cell phone is more collision-prone than a driver at the legal limit for alcohol consumption in Georgia; such drivers are 4 times as likely to cause a collision while on the phone as non-distracted drivers.  And drivers using a phone for text messages are several times more likely than drivers simply talking on the phone to cause a collision.

Our firm has represented numerous individuals injured in automobile collisions caused by drunk drivers and drivers distracted by cell phone use.  Please call us if we can answer any questions about your legal rights.

Previous posts:
City settles car accident case involving cell phone use for $1.5 million
Georgia enacts new laws prohibiting driving and text messaging while driving
United States Department of Transportation proposes ban on cell phone usage for commercial drivers

Turkheimer & Hadden, LLC
(404) 890-7200
Trial and Appellate Lawyers

Georgia Evidence Code Revised by Georgia General Assembly

On April 14, the Georgia Senate approved a sweeping revision to the Georgia Evidence Code, adopting the framework of the Federal Rules of Evidence first enacted in 1975, and replacing the current evidence scheme that was based largely on laws enacted during the Civil War.  Although the code does little to change the substance of Georgia law, it does substantially modernize the numbering of the code and codifies provisions that were previously found only in case law, bringing Georgia's legal system in line with the majority of state legal systems, as well as the federal system.  Georgia had previously adopted the Federal Rules of Civil Procedure in the 1970s, but had resisted adoption of the Federal Evidence Rules despite attempts to do so by various legislators, including now-governor Nathan Deal,for approximately 25 years.

State Bar of Georgia president-elect Kenneth Shigley has posed a blog entry with further information, including a link to a summary of the bill, on the Atlanta Injury Law and Civil Litigation Blog.

The new evidence code has an effective date of January 1, 2013.  It applies, however, to any trial starting on or after that date, regardless of when the lawsuit is filed.  Therefore, it is not at all unlikely that the new code would apply to the trial of a case filed today.

Governor Nathan Deal is expected to sign the bill into law soon.

Turkheimer & Hadden, LLC
(404) 890-7200
Trial and Appellate Lawyers

Georgia Court rules landowner can be liable for damages caused by aerial applicator acting as independent contractor

Yancey v. Watkins, Case no. A10A1636 (March 9, 2011)
Appeal from the Superior Court of Ben Hill County

The Georgia Court of Appeals for the the first time declared the aerial application of chemicals to crops, commonly known as "crop-dusting," an inherently dangerous activity that could render a landowner subject to liability even if undertaken by an independent contractor. 

In Yancey v. Watkins, the Georgia court reviewed the trial court's denial of summary judgment to two defendants who were allegedly liable for damage to a neighboring landowner's crops as a result of errant chemical application.  The two pieces of property in question were owned by the Watkins family and Ussery, who was assisted in his farming operations by his brother-in-law, Yancey.  In the fall of 2006, Ussery decided to use the services of a crop-duster to spread defoliant chemicals on his cotton crop.  Yancy assisted by purchasing the defoliant chemicals and delivering them to the airport for use by the crop-duster.  Unfortunately, some of the defoliant drifted onto the neighboring Watkins farm during application causing damage to the Watkins's pepper crop.  The Watkins then filed this lawsuit.

As an initial matter, the Court of Appeals held that because there was no evidence that Yancey was a partner or joint venturer with Ussery, but was rather akin to an employee, he could not, as a matter of law, be held liable for the damages.

The court then analyzed whether Ussery could himself be liable because he had hired the crop-duster as an independent contractor rather than an employee.  Generally, an employer is not liable for the acts of a contractor engaged in independent business and not under the direct control of the employer.  Although there are many exceptions and qualifications to the rule, the determination of whether someone is an independent contractor often depends on whether the employer controls the "time, manner, and method of performance of the work, as distinguished from the right merely to require certain definite results in conformity with the contract."  Slater v. Canal Wood Corp. of Augusta, 178 Ga. App 877, 878 (1986) (citing O.C.G.A. § 51-2-4).

After reviewing the evidence, the court found that the crop-dusting pilot was indeed an independent contractor, and thus Ussery would not typically be liable for his acts.  But the court's analysis was not complete.  One of the exceptions to the independent contractor rule is that the employer cannot escape liability where, "according to the employer's previous knowledge or experience, the work to be done is in its nature dangerous to others however carefully performed.  O.C.G.A. § 51-2-5. 

Finding first that Ussery himself had knowledge of the dangers of aerial application based on a prior experience, the court went further and held for the first time that the activity was inherently dangerous in general, and therefore landowners/employers who retained the service of crop-dusters cannot escape liability for damages caused by application of these chemicals.  The court thus sent the case back to the trial court for trial with respect to the claims against Ussery (and likely the crop-duster as well, who was named in the lawsuit but was not involved in the appeal).

Turkheimer & Hadden, LLC
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Trials and Appeals
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Georgia Court of Appeals upholds immunity for landowner conducted controlled burn

The Georgia Court of Appeals recently decided two cases addressing liability for agricultural operations.  In the first, the court held that a landowner who followed the advice of a forest ranger and obtained the advice of the forestry service was not liable for the death of a motorist who was killed because of reduced roadway visibility resulting from the burn.  In the second, the Court of Appeals held for the first time that aerial application of chemicals, or “cropdusting,” is an inherently dangerous activity, and therefore a landowner can be liable for the acts of an independent contractor doing work on the landowner's land.  The first case is discussed below, and the second will be summarized in a subsequent post.

Immunity upheld for prescribed burn of farmland
Morgan v. Horton, Case no. A10A1914 (March 4, 2011)
Appeal from the Superior Court of Brantley County

Ronnie Horton was killed on December 6, 2001, after his vehicle collided with a tractor trailer in rural Georgia.  The collision was a result, according to Horton's estate, or reduced roadway visibility caused by a nearby landowner, Morgan's, prescribed burn, or “burning off,” of a field.  The question addressed by the court was whether Morgan was entitled to immunity from liability caused by the burn because of a statute, O.C.G.A. § 12-6-148, that purports to limit a landowner's liability to third-parties.

Prior to undertaking the burn, Morgan, who had no experience with prescribed burns, contacted the forestry service for advice on the project and to obtain a permit for the burn.  The forest ranger, who had over 30 years experience with prescribed burns, instructed Morgan on how to properly divide the field into separate sections and to place firebreaks.  On the morning of December 4, the weather conditions appeared ideal and the ranger and Morgan began the burn, after obtaining the required permit.

By December 5, although small spots of brush continued to smolder, the fire was mostly burned out.  The ranger and Morgan continued to monitor the field throughout the day, and the state patrol told them that it would continue to monitor the visibility and inform the Department of Transportation if roadway visibility changed so that it could put out warning signs.

That night, conditions changed, and residual smoke began to hover in the area.  Between 6:00 and 7:30 am, the remaining smoke combined with fog and severely reduced the visibility on a roadway adjoining Morgan's land.  A truck driver traveling through the area stopped his vehicle because off the low visibility, and shortly thereafter, it was hit by Horton's truck, resulting in Horton's death.

Georgia law provides that

   (a) Prescribed burning conducted under the requirements of this part shall:
   (1) Be accomplished only when an individual with previous prescribed burning experience or training is in charge of the burn and is present on site until the fire is adequately confined to reasonably prevent escape of the fire from the area intended to be burned;
   (2) Be considered in the public interest and shall not create a public or private nuisance;
   (3) Be considered a property right of the landowner; and
   (4) Be conducted in accordance with a permit issued under Part 3 of this article.
(b) No property owner or owner's agent conducting an authorized prescribed burn under this part shall be liable for damages or injury caused by fire or resulting smoke unless it is proven that there was gross negligence in starting, controlling, or completing the burn.

Horton's estate argued that the immunity created by O.C.G.A. § 12-6-148 (b) was not applicable on several grounds.  First, it argued that since Morgan had never conducted a prescribed burn before, he was not entitled to the statute's protections under subsection (a)(1).  The court rejected this argument since the evidence showed that the forest ranger was actually in charge of the burn.  The court also held that this subsection contained no requirement that the ranger be on site for the entire time of the burn.   Second, the estate argued that because the fire continued to burn after the expiration of the permit, Morgan would have been required to obtain a new permit in order to claim the protections of the statute.  Once again, the court held that the statute did not contain such a requirement, and therefore found that subsection (b) was applicable to the case.

Although the court found that the statute applied, the estate also argued that the immunity provision was not absolute and did not apply where the defendant was was grossly negligent.  Gross negligence is defined as “the failure to exercise that degree of care that every man of common sense, however inattentive he may be, exercises under the same or similar circumstances; or lack of the diligence that even careless men are accustomed to exercise.” (Currid v. DeKalb State Court Probation Dept., 274 Ga. App. 704, 707 (2005).

The court agreed that Morgan could be subject to liability if the estate could prove that he was grossly negligent, but found that the record did contain any evidence suggesting such a gross lack of care.  Morgan was not, for example, required to take precautions above and beyond those required by the forestry service, nor was he required to forgo the burn entirely and use more costly and less effective methods to clear his land.  As a result, the Court of Appeals ordered the trial court to enter summary judgment in favor of Morgan and against the estate.

Turkheimer & Hadden, LLC
Attorneys at Law
Trials and Appeals

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