Verdict - Spring 2018 - 13

of negligence per se. In our case, the elderly

an immune disorder that results in atrophy

"Sudden Emergency" without providing evi-

defendant was cited for a number of traffic

of the muscles in a person's extremities,

dence. Often, a strategic motion for partial

violations, including vehicular homicide in

including their hips and thighs. The defen-

summary judgment by the Plaintiff can smoke

connection with the wreck. In the criminal

dant told his doctors that his biggest con-

out that the defense has no factual basis to

case against him, his defense attorney negoti-

cern was his "instability," which is why

support the defense.

ated a plea for "failure to maintain lane." A

he wore a medical-help necklace in case

In our case, the defendant strategically

charge for "driving too fast for conditions"

he fell. He had also been diagnosed with

chose not to have his treating doctors testify

was merged into that plea. In Georgia, when

diabetic neuropathy, which, according to

or provide any evidence early on in the case.

a person violates a traffic law, is cited, and

evidence in his records, caused his vision

When the defendant later moved for summary

then admits guilt, that constitutes negligence

to "fluctuate."

judgment, arguing in part Sudden Emergency,

per se. The guilty plea established that the

We uncovered evidence that the defen-

we pointed out that the defendant had not met

Defendant in our civil case "participated" in

dant had a host of medical concerns for

his burden. There was no testimony from his

the negligent act. In essence, negligence per

years, including numbness in his feet,

doctors in Ohio at all - particularly on how the

se barred reliance on the Sudden Emergency

beginning 15 years prior to the wreck. The

loss of control of his leg was unforeseeable.

Doctrine.

defendant's leg strength and control of his

Thus, the court was precluded from granting

leg muscles had gotten particularly bad in

the motion.

4

OBTAINING FULL DISCOVERY
ON FORESEEABILITY OF THE

the five years preceding the wreck.

In the weeks before trial, the defense

We also found evidence that the defen-

tried to remedy this defect by noticing the

dant had fallen two to three times a year in

evidentiary deposition of the defendant's

In my mind, combating the Sudden

the last several years. This led his doctors

longtime physician in Cleveland. The doctor

Emergency Doctrine, like combating many

to prescribe him a "lift chair," which he

had treated the defendant for decades, and

other defenses, is about getting evidence

used regularly. His doctor's records also

thus, we knew the deposition was an attempt

of foreseeability. And, when a defendant

noted that the defendant walked with a cane

to "explain away" all of the bad evidence in

invokes the Sudden Emergency Doctrine

and sometimes a walker (even though the

the medical records.

- especially in cases that involve medical

defendant refused to admit using anything

issues - then full discovery must be had.

but a cane).

"EMERGENCY"

The defense also wanted to point out that
the doctor had never told the defendant not

This is not to say that a defendant will just

Our detailed analysis of the defendant's

to drive. However, regardless of whether a

hand over all of his medical records. You will

medical history allowed us to cross-examine

doctor or other medical professional told the

usually have a fight about that. But even if

the defendant on all of these points. And, no

defendant not to drive, he had an independent

you're forced to file a motion to compel, you

answer would turn out good for him. Either he

obligation to discern whether he was capable

should seek full discovery concerning the

would admit the host of medical conditions,

of making the cross-country trip without the

defendant's medical history.

or he would disagree with the plain language

possibility of injuring someone. Thus, the

In our case, we sought the medical

of the medical records. Either way, a jury

defendant's doctor admitted:

records of all of the defendant's treaters in

would likely view the evidence in our favor.

* That an individual has more knowledge

Ohio. My partner, Susan Cremer, did a phe-

than anyone else about whether it's pru-

nomenal job combing through the records

DEPOSING THE TREATING DOCTORS

as they came into our office. What we found

Remember, the Sudden Emergency Doctrine

was alarming.

is an affirmative defense in Georgia. Therefore,

dent to drive on a given day;
* As people age, they have to decide whether
they have the ability to drive;

Unbeknownst to us initially, the defen-

the defendant bears the burden of affirmatively

* Driving to the grocery store or pharmacy is

dant had been diagnosed with polymyositis,

proving it, and a defendant cannot simply claim

different than driving across the country;
Spring 2018 13



Table of Contents for the Digital Edition of Verdict - Spring 2018

President’s Message
How I Obtained Justice: Sudden Emergency Doctrine
Thank You to Outgoing Verdict Chairman, Madeleine Simmons
Look Before You Leap: Conducting Jury Focus Groups Before Trial
Voir Dire In Low Speed, Soft Tissue Injury Cases
Defeating Reptile Theory Motions in Limine
Leading the Jury Down the Right Path: Framing Your Case During Voir Dire
Hernandez v. State: Empowering Jurors to Seek the Truth
Exploding Takata Airbags From Cover-Up To Accountability
Using Simple Technology to Pick a Better Jury
Case Updates: Who Really Loses When Medical Funding Becomes an Issue at Trial?
Professional Practice Pointers: Voir Dire, An interview with Cobb County State Court Judge Allison Barnes Salter
Dig In To Do Good: Making the World a Better Place
Welcome New GTLA Members!
Champion Members
Meet The Experts
Index to Advertisers/Advertiser.com
Verdict - Spring 2018 - Intro
Verdict - Spring 2018 - bellyband1
Verdict - Spring 2018 - bellyband2
Verdict - Spring 2018 - cover1
Verdict - Spring 2018 - cover2
Verdict - Spring 2018 - 3
Verdict - Spring 2018 - 4
Verdict - Spring 2018 - 5
Verdict - Spring 2018 - 6
Verdict - Spring 2018 - 7
Verdict - Spring 2018 - 8
Verdict - Spring 2018 - 9
Verdict - Spring 2018 - 10
Verdict - Spring 2018 - President’s Message
Verdict - Spring 2018 - How I Obtained Justice: Sudden Emergency Doctrine
Verdict - Spring 2018 - 13
Verdict - Spring 2018 - 14
Verdict - Spring 2018 - Thank You to Outgoing Verdict Chairman, Madeleine Simmons
Verdict - Spring 2018 - Look Before You Leap: Conducting Jury Focus Groups Before Trial
Verdict - Spring 2018 - 17
Verdict - Spring 2018 - 18
Verdict - Spring 2018 - 19
Verdict - Spring 2018 - 20
Verdict - Spring 2018 - Voir Dire In Low Speed, Soft Tissue Injury Cases
Verdict - Spring 2018 - 22
Verdict - Spring 2018 - 23
Verdict - Spring 2018 - 24
Verdict - Spring 2018 - 25
Verdict - Spring 2018 - Defeating Reptile Theory Motions in Limine
Verdict - Spring 2018 - 27
Verdict - Spring 2018 - 28
Verdict - Spring 2018 - Leading the Jury Down the Right Path: Framing Your Case During Voir Dire
Verdict - Spring 2018 - 30
Verdict - Spring 2018 - Hernandez v. State: Empowering Jurors to Seek the Truth
Verdict - Spring 2018 - 32
Verdict - Spring 2018 - 33
Verdict - Spring 2018 - Exploding Takata Airbags From Cover-Up To Accountability
Verdict - Spring 2018 - 35
Verdict - Spring 2018 - 36
Verdict - Spring 2018 - Using Simple Technology to Pick a Better Jury
Verdict - Spring 2018 - Case Updates: Who Really Loses When Medical Funding Becomes an Issue at Trial?
Verdict - Spring 2018 - 39
Verdict - Spring 2018 - Professional Practice Pointers: Voir Dire, An interview with Cobb County State Court Judge Allison Barnes Salter
Verdict - Spring 2018 - Dig In To Do Good: Making the World a Better Place
Verdict - Spring 2018 - 42
Verdict - Spring 2018 - Champion Members
Verdict - Spring 2018 - 44
Verdict - Spring 2018 - Meet The Experts
Verdict - Spring 2018 - Index to Advertisers/Advertiser.com
Verdict - Spring 2018 - cover3
Verdict - Spring 2018 - cover4
http://www.nxtbook.com/naylor/GTLQ/GTLQ0318
http://www.nxtbook.com/naylor/GTLQ/GTLQ0218
http://www.nxtbook.com/naylor/GTLQ/GTLQ0118
http://www.nxtbook.com/naylor/GTLQ/GTLQ0417
http://www.nxtbook.com/naylor/GTLQ/GTLQ0317
http://www.nxtbook.com/naylor/GTLQ/GTLQ0217
http://www.nxtbook.com/naylor/GTLQ/GTLQ0117
http://www.nxtbook.com/naylor/GTLQ/GTLQ0416
http://www.nxtbook.com/naylor/GTLQ/GTLQ0316
http://www.nxtbook.com/naylor/GTLQ/GTLQ0216
http://www.nxtbook.com/naylor/GTLQ/GTLQ0116
http://www.nxtbook.com/naylor/GTLQ/GTLQ0415
http://www.nxtbook.com/naylor/GTLQ/GTLQ0315
http://www.nxtbook.com/naylor/GTLQ/GTLQ0215
http://www.nxtbook.com/naylor/GTLQ/GTLQ0115
http://www.nxtbook.com/naylor/GTLQ/GTLQ0414
http://www.nxtbook.com/naylor/GTLQ/GTLQ0314
http://www.nxtbook.com/naylor/GTLQ/GTLQ0214
http://www.nxtbook.com/naylor/GTLQ/GTLQ0114
http://www.nxtbook.com/naylor/GTLQ/GTLQ0413
http://www.nxtbook.com/naylor/GTLQ/GTLQ0313
http://www.nxtbook.com/naylor/GTLQ/GTLQ0213
http://www.nxtbook.com/nxtbooks/naylor/GTLQ0113
http://www.nxtbook.com/nxtbooks/naylor/GTLQ0412
http://www.nxtbook.com/nxtbooks/naylor/GTLQ0312
http://www.nxtbook.com/nxtbooks/naylor/GTLQ0212
http://www.nxtbook.com/nxtbooks/naylor/GTLQ0112
http://www.nxtbook.com/nxtbooks/naylor/GTLQ0411
http://www.nxtbook.com/nxtbooks/naylor/GTLQ0311
http://www.nxtbook.com/nxtbooks/naylor/GTLQ0211
http://www.nxtbook.com/nxtbooks/naylor/GTLQ0111
http://www.nxtbook.com/nxtbooks/naylor/GTLQ0410
http://www.nxtbookMEDIA.com