Archive for February, 2012

Settlement Talks Delay BP Oil Trial

February 27th, 2012

Wade H. Tomlinson

Less than 24 hours before the first day of trial was scheduled to begin in the BP Oil Spill lawsuits, the parties filed a joint statement requesting a delay in the start of trial to allow for continued settlement talks. News agencies have reported rumors of settlement sums that could amount to a $14 billion-dollar settlement in the works, to compensate the thousands of people and businesses affected by this disaster.

The BP Oil Spill was a devastating environmental disaster which occurred almost two (2) years ago, on April 20, 2010, after an explosion of the Deepwater Horizon drilling rig in the Gulf of Mexico and subsequent oil spill, approximately 130 miles southeast of New Orleans and approximately 50 miles from the Mississippi River Delta. The explosion killed eleven of the 126 workers on the rig, which eventually sank in approximately 5,000 feet of water. An estimated 4.9 million barrels of oil spewed endlessly for nearly 3-months from the mile-deep Macondo oil well.

Lawsuits involving more than 120,000 plaintiffs have been coordinated for consolidated proceedings in a New Orleans District Court, presiding before Judge Carl Barbier. Those involved in the lawsuit range from condominium owners, fisherman, hoteliers, restaurants, homeowners, property owners and others who say their livelihoods were damaged by the April 20, 2010 disaster.

BP has publicly accepted responsibility for the disaster. Company sources have estimated its legal fees and cleanup costs for the spill amount to sums in excess of $40 billion-dollars and could reach up to $60 billion-dollars, especially if there is a finding that BP’s activities at the project site were “grossly negligent.”

The BP Oil Spill is said to be the largest offshore spill in U.S. history. The oil was reported to have come ashore in Louisiana, Mississippi, Alabama, Florida and Texas. The environmental damage as well as the hit on tourism and economy is so widespread, that its full impact on the lives and livelihoods of tens of thousands of Americans, especially those living and owning businesses in or near the Gulf, may remain undetermined for years.

The trial is now scheduled to take place on March 5, 2012 should settlement negotiations fail between the parties.

Anticipating Spoliation of Evidence Issues

February 21st, 2012

R. Timothy Morrison

For those who may be faced with litigation, it is very important to know what evidence spoliation is and how to avoid it. Spoliation is the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation. The law does not simply frown upon the spoliation of evidence; it punishes it. Moreover, proof of spoliation raises “a rebuttable presumption against [the spoliator] that the evidence favored [the spoliator’s opponent], a fact rendering summary judgment inappropriate.” Baxley v. Hakiel Indus., Inc., 282 Ga. 312, 313, 647 S.E.2d 29, 30 (2007), citing Lane v. Montgomery Elevator Co., 225 Ga. App. 523, 525, 484 S.E.2d 249 (1997). Therefore, the spoliation of evidence could very well expand the cost and time associated with litigation for the spoliator.

It can often be difficult for a party to determine what evidence may be necessary or relevant to contemplated or pending litigation, especially when the evidence may consist of voluminous electronic records or when evidence is destroyed in the ordinary course of business. Nevertheless, it is important that those who may be facing litigation take steps to ensure that evidence is preserved because when spoliation does occur, the trial court will often consider what steps were taken to avoid the spoliation when issuing sanctions.

When it comes to spoliation, the trial court acts as the finder of fact on all issues. This includes determining whether spoliation occurred, whether the spoliator acted in bad faith, whether the spoliator was a party’s agent, the importance of the compromised evidence, and so on. Not only will the trial court act as the finder of fact, but the trial court will also have wide latitude to fashion sanctions on a case-by-case basis. Wide discretion is afforded the trial court in order to “control the behavior of litigants before them [and] to maintain the integrity of the judicial process.” Bouve & Mohr, LLC v. Banks, 274 Ga. App. 758, 762 (2005). Therefore, a trial court may choose from an array of sanctions, including striking pleadings or excluding testimony from the spoliator about the evidence.

There is little hope for a successful appeal for relief from a trial court’s spoliation sanction. Our appellate courts are reluctant to disturb a trial court’s decision to impose sanctions for spoliation, and “will not disturb a trial court’s imposition of sanctions for evidence spoliation unless the court abused its discretion. Moreover, [our appellate] courts will uphold a trial court’s finding of willful discovery abuse if there is any evidence to support it.” Bouve & Mohr, LLC, at 762, citing R.A. Siegel Co. v. Bowen, 246 Ga. App. 177 (2000).

In order to avoid becoming subject to spoliation sanctions, it is best to plan ahead. Companies that manage large volumes of documents or electronic information should spend time preparing a litigation hold strategy well before a litigation incident occurs. The strategy should consider how to prevent documents that would otherwise be destroyed in the ordinary course of business from being destroyed once litigation is contemplated. Additionally, employees should be well trained to retain and preserve evidence when litigation is contemplated. If a well-organized litigation hold policy is in place before a litigation event ever occurs, then it is less likely that spoliation will occur.

Pope McGlamry Welcomes Its Newest Lawyer – Kimberly J. Johnson

February 15th, 2012

KJJ - 100x133

ATLANTA, GEORGIA – February 13, 2012 – Kimberly J. Johnson has joined Pope, McGlamry, Kilpatrick, Morrison & Norwood, PC as an associate in their Atlanta office. Since 2000, Kim’s practice has been devoted to complex litigation, personal injury, products liability, and appellate practice, most recently with Atlanta firm Doffermyre, Shields, Canfield & Knowles, LLC. “We are incredibly fortunate to have someone of Kim’s caliber working with us,” said Neal Pope for the firm. He continued, “Having Kim come aboard allows us to maintain the highest level of representation for our clients while also allowing us to keep up with our growing case load.”

Kim was born in St. Louis, Missouri. She graduated from DePauw University with a B. Mus. in 1991 and taught music in the public schools for four years before attending law school. Upon obtaining her J.D. from the University of Alabama in 1998 (summa cum laude), she served as a Judicial Law Clerk for the Honorable W. Harold Albritton III, then-Chief Judge, U.S. District Court, Middle District of Alabama (1998-1999), and for the Honorable Emmett R. Cox, Circuit Judge, U.S. Court of Appeals, Eleventh Circuit (1999-2000).

Ms. Johnson is a member of several professional associations, including the Alabama (1998) and Georgia (2000) State Bars, and the Georgia Trial Lawyers’ Association, where she serves on the editorial board for The Verdict magazine. She is an amateur musician, playing violin and viola in chamber ensembles and the Atlanta Community Symphony Orchestra. She served as Chair of the Orchestra’s Board for the 2008-2010 seasons, and also serves on the Board of the Metropolitan Youth Symphony Orchestras of Atlanta.

About Pope McGlamry Kilpatrick Morrison & Norwood, P.C.

Pope, McGlamry, Kilpatrick, Morrison & Norwood, PC, a Georgia law firm with offices in Atlanta and Columbus, GA, is a recognized leader in the field of civil litigation. The firm specializes in wrongful death and catastrophic injury cases, particularly those involved with motor carrier liability or products liability. The firm is also a recognized leader in business litigation and class action suits, especially those related to consumer issues. Although its offices are in Georgia, Pope McGlamry maintains a regional and national practice. For additional information, visit www.pmkm.com.

Pope McGlamry Welcomes Its Newest Lawyer – Kimberly J. Johnson

February 15th, 2012

KJJ Web Photo

ATLANTA, GEORGIA – February 13, 2012 – Kimberly J. Johnson has joined Pope, McGlamry, Kilpatrick, Morrison & Norwood, PC as an associate in their Atlanta office. Since 2000, Kim’s practice has been devoted to complex litigation, personal injury, products liability, and appellate practice, most recently with Atlanta firm Doffermyre, Shields, Canfield & Knowles, LLC. “We are incredibly fortunate to have someone of Kim’s caliber working with us,” said Neal Pope for the firm. He continued, “Having Kim come aboard allows us to maintain the highest level of representation for our clients while also allowing us to keep up with our growing case load.”

Kim was born in St. Louis, Missouri. She graduated from DePauw University with a B. Mus. in 1991 and taught music in the public schools for four years before attending law school. Upon obtaining her J.D. from the University of Alabama in 1998 (summa cum laude), she served as a Judicial Law Clerk for the Honorable W. Harold Albritton III, then-Chief Judge, U.S. District Court, Middle District of Alabama (1998-1999), and for the Honorable Emmett R. Cox, Circuit Judge, U.S. Court of Appeals, Eleventh Circuit (1999-2000).

Ms. Johnson is a member of several professional associations, including the Alabama (1998) and Georgia (2000) State Bars, and the Georgia Trial Lawyers’ Association, where she serves on the editorial board for The Verdict magazine. She is an amateur musician, playing violin and viola in chamber ensembles and the Atlanta Community Symphony Orchestra. She served as Chair of the Orchestra’s Board for the 2008-2010 seasons, and also serves on the Board of the Metropolitan Youth Symphony Orchestras of Atlanta.

About Pope McGlamry Kilpatrick Morrison & Norwood, P.C.

Pope, McGlamry, Kilpatrick, Morrison & Norwood, PC, a Georgia law firm with offices in Atlanta and Columbus, GA, is a recognized leader in the field of civil litigation. The firm specializes in wrongful death and catastrophic injury cases, particularly those involved with motor carrier liability or products liability. The firm is also a recognized leader in business litigation and class action suits, especially those related to consumer issues. Although its offices are in Georgia, Pope McGlamry maintains a regional and national practice. For additional information, visit www.pmkm.com.

Wright Medical Conserve Hip Implant Products Liability Litigation Transferred to MDL in the United States District Court for the Northern District of Georgia

February 13th, 2012

Kirk Pope

On February 8, 2012, the United States Judicial Panel on Multi-District Litigation (“JPML”) transferred four cases involving the Wright Medical Conserve Hip Implant System to the United States District Court for the Northern District of Georgia. The JPML held that the actions filed against Wright Medical involve common questions of fact, and that centralization will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. All of the actions share factual questions concerning the design, manufacture, marketing and performance of Wright Medical’s Conserve Hip Implant System and related products.

The JPML’s transfer to the Northern District of Georgia is in response to a Pope, McGlamry, Kilpatrick, Morrison & Norwood, P.C. petition to the JPML for centralization of cases involving Wright Medical’s Conserve Hip Implant System. On November 29, 2011, lawyers at Pope, McGlamry, Kilpatrick, Morrison & Norwood, P.C. took the lead in the hip implant litigation against Wright Medical by petitioning the JPML for centralization. Centralization of the Conserve Hip Implant System cases will help resolve discovery issues in a swift and organized manner in what could potentially be a substantial number of cases. The Wright Medical Conserve Cup features a similar design to the DePuy ASR Cup, which was recalled in August 2010 after medical data suggested that a higher-than-expected number of people had their artificial hip fail within a few years resulting in revision surgery.
The JPML’s transfer affects four lawsuits that are currently filed in Arizona, California, Georgia and Utah, but there are at least another 16 cases filed throughout the United States that are likely to be transferred to the MDL as the number of lawsuits involving Wright Medical’s Conserve Hip Implant System is expected to continue to grow.

All of the complaints allege that Wright Medical manufactured a defective metal-on-metal hip implant, known as the Conserve Plus, and failed to warn patients about the potential risk that the device may fail within a few years of surgery causing serious medical problems and the need of revision surgery. Plaintiffs say that the Conserve acetabular cup has a tendency to loosen and fail as metal particles are shed into the body from the metal parts of Wright Medical’s Conserve Hip Implant System rubbing against each other.

Since the FDA approved the Wright metal-on-metal hip replacement system under their controversial 510(k) approval system, more than 200 adverse event reports have been submitted by patients or physicians, which likely only represents a fraction of the total number of problems with Wright Medical hip replacements. In May 2011, the FDA asked Wright Medical and other metal-on-metal hip makers such as DePuy, Stryker and Zimmer, to obtain more information about the level at which the metal particles released by hip replacements becomes dangerous, how much metal they actually release and to quantify the potential side effects of metallosis.

The Wright Conserve Hip Implant System is a metal-on-metal design, which consists of cast cobalt chromium molybdenum that provides the receptacle for the cobalt chromium molybdenum femoral head. The metal femoral head rotates within the metal monoblock Conserve Cup, which does not have a liner, resulting in the release of metal particles that can cause metal toxicity in the blood, soft tissue and bone. This can result in metallosis, tissue necrosis, pseudotumors and other problems, according to the complaints.

If you or a loved one had a Wright Conserve Hip System implanted and have suffered complications, or experienced a hip replacement failure requiring revision surgery, you may be entitled to recover significant damages from the defective product manufacturer, Wright Medical.

 

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