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by: Brandon R. Taylor
btaylor@webb-firm.com
In order to prevail in a personal injury lawsuit in Georgia, one has to show that he/she has suffered "damages" caused by the defendant's negligence of another.. Under Georgia law, there are two major components to damages, what are so-called "special" damages and "general" damages. Before we can assess these damages, however, we first must understand the elements of a personal injury lawsuit.
Under the law, one has to prove 1) that another was negligent in a given activity and that 2) that negligence caused him/her injury. For example, a driver talking on his/her cell phone runs a stop sign. That driver is negligent. What if a second driver gets blind-sided by the negligent driver and suffers a broken arm in the impact? In this case there is negligence by the first driver (running the stop sign) and injury to the second driver as a result (broken arm). In this case, the second driver would most likely be able to recover "damages" from the negligent driver for the injury. These damages would include both our "special" damages and our "general" damages mentioned above.
"Special" damages are ones that are monetary and quantifiable. They are, for example, medical bills and lost wages. They can be objectively calculated by adding up all the hospital and doctor bills, multiplying rate of pay by the number of days missed from work, etc. They are called "special" damages because they are unique to that specific person's situation and injury.
"General" damages are generic or implied damages. These "pain and suffering" damages, however, are much harder to calculate. For example, when the second driver suffers a broken arm, in addition to incurring medical bills and possibly losing wages, he/she also suffers interference with normal living; actual physical pain and suffering, past and future; mental anguish, past and future; limitation of his/her activities; and so on. Unfortunately, these damages do not come with a price already assigned to them, like an X-ray or a doctor visit, so how are they calculated? Because they are so subjective, they are to be decided by the "enlightened conscience of a fair and impartial jury."
Because of this built in discretion, lawyers and insurance companies argue every day over these calculations. Every single case is different, so every single measure of damages is different. It is therefore critical that the injured person have legal representation to ensure that the insurer fairly compensates the injured person for both their special and general damages in order to receive fair compensation for their injuries.
Expert Witnesses After 2005 Tort Reform
Jonathan J. Wade
jwade@webb-firm.com
ln 2005, Georgia's legislature passed sweeping "reform" of our tort laws, especially in the area of medical malpractice. One of the most significant changes was in the evidentiary threshold that must be met for an expert to testify in a malpractice case. In its not so esteemed "wisdom", the legislature created four (3) different standards or criteria that an expert must meet to qualify for offering the same opinion(s), based on whether the case is a criminal one, a general civil case, or a malpractice civil case! As such, depending on what type of case, one's expert may be qualified in one type and yet not in one or the other type.
(a) Criminal: OCGA '24-9-67 (admissibility of expert opinions) now applies only to criminal cases. (Why have we created the lowest evidentiary standard when we are talking about cases where life and death are literally at stake, and where the burden of proof is the highest, beyond a reasonable doubt? If we are so concerned about Ajunk science,@ how about racial profiling, fingerprinting, eyewitness identification, polygraphs, etc?)
(b) Civil Generally: ALL civil cases are now governed by '24-9-67.1 This new section sets qualifying rules for ALL experts= opinions being admissible at trial. There are three criteria:
1) experts must base their testimony on "sufficient facts or data",
2) the testimony must be based on "reliable principles and methods", and
3) the witness must apply those principles and methods reliably to the case facts.
(c) All malpractice cases (not just medical): Experts must be licensed by an Aappropriate regulatory agency to practice his or her opinion in the state in which the expert was practicing or teaching in the profession at the time@
(d) Medical malpractice cases: The expert is also required by the new code section to be licensed by the appropriate agency, practicing or teaching in the area of specialty for 3 of the past 5 years.
Finally, in subparagraph (f), our legislature explicitly adopted Daubert and its related progeny for ALL civil cases. In light of all of the above, it is clear that finding a competent expert is among the most critical decisions that an attorney must make for handling a client's case. At Webb, Lindsey & Wade, we have worked extensively with many experts in various fields for many years, and can usually therefore find the right expert for your case.
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