The Finley Firm
Welcome to The Finley Firm!
The Finley Firm is an AV-rated national law firm based in Atlanta, Georgia. With offices in Atlanta and Columbus, Georgia, our attorneys provide quality legal services in numerous areas of civil litigation. We concentrate our practice on the representation and defense of Fortune 500 companies, small businesses, insurance carriers and self-insurers, as well as individuals, in preventing, negotiating and litigating matters in all aspects of Liability and Workers’ Compensation claims throughout the States of Georgia and Alabama. Our practice areas include: Workers' Compensation, Environmental Law, Mass Torts, Product Liability, Premises Liability, Commercial Law, Professional Law with emphasis in Medical Malpractice, Business/Insurance Coverage, Construction Litigation and more. To view all of our practice areas, please visit our website www.thefinleyfirm.com. At The Finley Firm, we strive to provide results that matter!
Keeping up with new law changes and interesting cases can be very time consuming. The Finley Firm has created this newsletter that will provide a summary of articles and new case law updates to keep you informed of the constant changes in the legal arena. Moreover, our attorneys would be please to assit you with any questions or concerns.
Along with the newsletter, we provide in-house seminars to all of our clients. Our seminars are CE and CLE approved. If you are interested in a list of seminars, please contact Vanessa Williams.
For more information regarding the newsletter or the firm, please contact Vanessa Williams 404-320-9979.
Upcoming Events
October 22-25: Christopher R. Reeves attended the DRI Annual Meeting in New Orleans, LA.
November 3rd: Christopher R. Reeves will run the New York Marathon in New York City.
November 8th: Michelle LeGault will run in the Children’s Healthcare of Atlanta Strong Legs 10k.
November 10th: Workers' Compensation 101 Seminar (CU Credits) Presented by J. Benjamin Finley, C. Gregory Ragsdale and M. Kathryn Rogers in Asheville, NC
November 13th: NBI’s Collection Law From Start to Finish: Michelle LeGault will be presenting CLE talks on “The Fair Debt Collection Practices Act” and “Avoiding Ethical Tangles in Collections”. For more information, please visit http://www.nbi-sems.com/Enbi/Brochurepdfs/46240.pdf.
Winter 2008: Christopher R. Reeves' article Climate Change on Trial: Making a Case for Causation will be published in the 3nd issue of American Journal of Trial Advocacy.
Winter 2008: Christopher R. Reeves' article Liability Implications for Holding Yourself Out as "Green" in the Winter edition of ABA Climate Change Sustanable Development and Ecosystems Newsletter.
Medical Malpractice Law
Negligent Reliance On Another Physcian, Not Quit
In the recent case of Pottinger v. Smith , No. A08A1461 (2008 WL 4072197 (Ga. App., Sept. 4, 2008)) the Plaintiff went to the ER at Floyd Medical Center after being involved in a motor cycle accident, where he was treated by Dr. Pottinger. Dr. Pottinger ordered a battery of tests, including a cranial CT scan, spinal x-rays, and x-rays of the tibia and fibula in Smith’s left leg. Dr. Burch reviewed the leg x-rays but did not find a significant fracture to a weight-bearing bone. Because of Dr. Burch’s opinion, Dr. Pottinger did not obtain an orthopedic consult, and care was transferred to Dr. Murphy, a neurosurgeon, due to Mr. Smith’s possible head and spinal injuries. As it turned out, Mr. Smith still had severe leg pain following his discharging, prompting him to see an orthopedic surgeon, who reviewed the prior x-rays and found a serious fracture that required surgery.
Mr. Smith brought a medical malpractice action against Drs. Pottinger, Burch, and Murphy, as well as Floyd Medical Center. The expert affidavit stated that all three doctors acted below that standard of care and that Dr. Pottinger was grossly negligent for misreading the x-rays. Dr. Pottinger moved for summary judgment under O.C.G.A. § 51-1-29.5, asserting that there was no clear and convincing evidence that her reliance on Dr. Burch’s assessment was grossly negligent. The motion was denied, and the appeal was taken by the Court of Appeals. Ruling for Dr. Pottinger, the Court defined gross negligence, as per O.C.G.A. § 51-1-4, as the absence of even slight diligence. Gross negligence is “equivalent to the failure to exercise even a slight degree of care” or even “lack of the diligence that even carless men are accustomed to exercise.” Furthermore, the Court reasoned proof of gross negligence must be by “clear and convincing evidence.” Thus, even though questions of gross negligence and slight diligence are typically for a jury to decide, the court could solve the question as a matter of law in plain and indisputable cases. Therefore, the court held that even though there may be a jury question as to negligence, no jury could reasonably conclude that Dr. Pottinger failed to exercise even slight care by relying on the radiologist.
In Georgia, ER physicians are not grossly negligent if they reasonably rely on a qualified colleague’s medical opinion. Furthermore, summary judgment is appropriate on questions of gross negligence in plain and indisputable cases, even though such questions are typically for the jury. Thus, a patient should survive summary judgment only if he can show clear and convincing evidence of failure to exercise even slight diligence.
For further information about this matter, contact Christopher R. Reeves (404) 320-9979.
Workers' Compensation
Georgia Requirements for Panel of Physicians
The Georgia Workers’ Compensation Act and rules are fairly straightforward with respect to the panel of physicians (O.C.G.A. § 34-9-201 and Board Rule 201). Employers must prominently post a panel of physicians and ensure that employees know that they may choose one of these doctors to treat them in case of a work injury. Employees get one “free” change to another doctor on the list without asking for approval from the State Board of Workers’ Compensation. The panel must be composed of at least six unassociated doctors, i.e. not operating out of the same facility. No more than two “industrial clinics” may be on the panel, and at least one doctor must be an orthopedic surgeon. The Board Rule seems to require at least one minority doctor; the code section is silent, but it is probably better to air on the side of the Rule. A minority physician would be a member of a group traditionally subjected to prejudice based on race, color, sex, handicap, or national origin.
Once the Employee has selected a doctor, he is the authorized treating physician (ATP). The ATP may make referrals to other doctors, who become additional authorized treating physicians; however, these doctors may not refer the Employee to anyone else. The ATP determines the course of treatment for the Employee, and Employer is obligated to pay all related medical expenses, whether from the ATP or from a referral doctor. As mentioned above, the Employee gets one “free” change to another panel doctor. Otherwise, the Employer or Employee may request to change the ATP, but any change must be approved by the Board. Additionally, Employer or Employee may request an independent medical examination (IME), to be paid for by Employer. An IME is basically a second opinion, often used to provide grounds for a change in ATP or a change in condition.
For further information about this matter, contact C. Gregory Ragsdale (404) 320-9979.
Toxic Torts
Toxic Chemicals Causing Major Law Suits: Toxic Trespass (aka Toxic Battery)
Toxic trespass is a developing area of law. Various courts have been asked by plaintiffs to recognize a cause of action for the presence of chemical or other man-made substances in their bodies without any discernable injuries or diseases. Plaintiffs are also trying to bring a cause of action based on mere exposure to chemicals or toxins, even where there is no discernable injury. These claims are generally referred to as “toxic trespass” or “toxic battery” claims. What it boils down to is that plaintiffs are trying to recover damages for being intentionally exposed to toxic chemicals, even though they are not sick or injured due to the exposure.
Two recent cases may shed some light on how courts will handle toxic trespass claims. One judge in a U.S. District Court in Texas held that bodily injury may not be required if a jury decides the toxic exposure was an offensive contact. See Cotroneo v. Shaw Environmental & Infrastructure, Inc., 2007 WL 3145791 (S.D.Tex. Oct 25, 2007) (case still pending). Additionally, a case pending in Minnesota state court may allow the mere presence of toxins in the plaintiffs’ blood to constitute an actionable battery. See Palmer, et. al. v. 3M Co., 2007 WL 2708536 (Minn. Dist. Ct. Aug 30, 2007).
Another side of the issue is legislation or administrative regulation designed to create a cause of action for toxic trespass or to provide additional safeguards for workers likely to be exposed to toxins. Local governments in Virginia and Pennsylvania, as well as the California and Minnesota state governments, have already enacted laws and regulations regarding toxic trespass. Overall, there is a likelihood of more plaintiffs attempting to bring claims for toxic trespass, and future legislation and regulation is probably not far off.
For further information about this matter, contact Mary Lewis (404) 320-9979.
Class Action
What you should know about your Mortgage Lenders as a Borrower...
Liberty Lending Services v. Irene Canada
No. A08A1295
2008 WL 4182395 (Ga. App., Sept. 12, 2008).
Irene Canada’s mortgage contained provisions allowing Liberty to charge inspection fees and attorney’s fees if it was deemed necessary to take actions to protect its interests. Canada was in arrears on her payments and threatened with foreclosure, so she filed for Chapter 13 bankruptcy. Canada was charged the fees but not notified, and the fees just rolled into the loan. It actually was the Liberty's policy not to provide notice or demand payment of these fees while a borrower was in bankruptcy. Canada eventually received a discharge on her bankruptcy, at which point Liberty accelerated the past due fees and again threatened to foreclose.
Canada sued Liberty, alleging among other claims that it breached the terms of the security deed when it conducted inspection of her property and assessed fees related to those inspections, as well as attorney fees, without prior notice. She also obtained a TRO to stop the foreclosure. Canada was able to successfully petition for a class certification, based primarily on the fact that Liberty's form mortgage contained the same provisions in mortgages sold in every state.
A trial court’s certification of a class will only be set aside if there is an abuse of discretion, so the Court of Appeals used the “clearly erroneous” standard of review. Additionally, any issues on appeal must have been raised at the trial court. Here, Liberty made the standard attacks on class certification, e.g. non-commonality of claims, poor representative, etc. The Court of Appeals did not find an abuse of discretion, primarily based on the fact that the common legal questions of the putative class members predominated over individualized issues. Moreover, many of Liberty's issues were not reviewable due to lack of a record. Accordingly, the class and subclass certifications were affirmed.
Georgia law is very deferential to a trial court’s certification of class actions under Rule 23. A trial court’s certification will hold up as long as the proper factual findings about the class are made and the requirements at numerosity, typicality, commonality and adequacy are met.
For further information about this matter, contact J. Benjamin Finley (404) 320-9979.
Creditor Law
Tips Plus Mininum Wage....How much should you pay? FLSA and the Tip Credit in the Eleventh Circuit
Skycaps at the Miami International Airport brought a class action suit under the Fair Labor Standards Act (FLSA) against their employer, alleging that fees charged by airlines for curbside bag service has deprived them of their ability to collect tips. A Miami federal court granted summary judgment in favor of the defendants, and the Eleventh Circuit Court of Appeals in Atlanta recently affirmed the lower court ruling. The Eleventh Circuit, in an unreported decision, made a de novo review and essentially adopted the lower court decision as its own. The lower court case is Pellon v. Business Representation International. Inc., 528 F.Supp.2d 1306 (S.D. Fla. 2007).
The decision provides guidance for how tipped employees can expect to be paid in the Eleventh Circuit. First of all, employers do not have to “explain” the tip credit to employees; however, it is enough to “inform” them of it (a tip credit essentially allows an employer to pay a lower hourly wage where the employee will be regularly earning tips from customers). Employees are considered informed of the tip credit if there is a prominently posted notice of the FLSA standards and the employer tells them about the practice.
The ruling also seems to make it clear that tipped employees are not entitled to a non-tipped wage merely because their job includes duties typically performed by non-tipped employees, where “duties were directed toward receiving tips or incidental to receiving tips and dividing employees’ work day among various tasks they performed was impractical or impossible.” In other words, a tipped employee is not entitled to a higher wage for time spent performing non-tipped duties if they are incidental to the tipped duties.
Finally, fees charged by employers for services that were once offered only on the expectation of a tip to the employee do not give rise to a cause of action by the employees for lost tips. Moreover, because the fee itself is not a tip, employees have no expectation of keeping any of the collected fee, even if the employer agrees to pay a portion of the fee to the employees as a concession for the reduced tips.
Overall, the Eleventh Circuit has taken a very pragmatic approach to the application of the tip credit under the FLSA. Employers can expect to prevail on summary judgment in similar cases, so long as the tip credit and minimum wage information are prominently posted and the employer has explained to the tipped employees that they will be paid a lower wage when the employee earns tips beyond the regular minimum wage. Furthermore, employers can feel free to expect tipped employees to perform non-tipped duties without paying them a higher non-tipped wage, to the extent those duties are incidental to the tipped duties.
For further information about this matter, contact Michelle LeGault (404) 320-9979.