Written by: Ashley Gowder Mitchell, Esq. Data stored in Fitbits, Apple Watches, and other wearable personal activity “trackers” can be invaluable when evaluating and defending personal injury claims. These devices offer attorneys and claim professionals a wide array of relevant and easy to use information. Mining these devices for key evidence will only become more commonplace as the popularity of trackers increases. It is important for litigators and claims handlers alike to be familiar with personal activity trackers, the data they create, and how to obtain and use that data to defend claims. Data stored in Fitbits, Apple Watches, and other wearable personal activity “trackers” can be invaluable when evaluating and defending personal injury claims. These devices offer attorneys and claim professionals a wide array of relevant and easy to use information. Mining these devices for key evidence will only become more commonplace as the popularity of trackers increases. It is…       Read More

Written by: Payton D. Bramlett, Esq. In trucking cases, plaintiffs very often sue the motor carrier’s primary insurance company directly pursuant to Georgia’s direct action statute.  Traditionally, Georgia appellate courts have held that a direct action against a motor carrier’s primary insurance provider is permitted even when the accident occurred outside the state of Georgia.  See Johnson v. Woodard, 208 Ga. App. 41, 429 S.E.2d 701 (1993).  In Johnson, the Georgia Court of Appeals held that a plaintiff in a personal injury suit stemming from an automobile accident that happened in South Carolina can pursue a direct action against a motor carrier’s insurer.  Id. at 44.  The Court in Johnson concluded that the mere reference to use of Georgia highways in some sections of the direct action statute does not mean that a person has a cause of action under Georgia’s direct action statute only if an injury occurs on…       Read More

Written by: Sean Cox, Esq. Life Care Planners purport to calculate the total cost of future care related to the catastrophic injury. The term is a misnomer. Typically they do not, nor are they typically qualified to, determine what medical care the injured person needs. Neither will Life Care Planners typically help the injured person or her family plan how to obtain or provide that care. According to one of the fathers of life care planning, Paul M. Deutsch Ph.D., “at no time during the plan development process should budgetary concerns influence care and rehabilitation recommendations.“ There are several ways to attack Life Care Planner testimony. First, a Life Care Planner can be challenged on his or her qualifications. Rare is the Life Care Planner that is a physician. Typically, a Life Care Planner will prepare a schedule of treatment for the plaintiff, and the physician will simply sign-off on…       Read More

Written by: Ashley Gowder Mitchell, Esq. The Transportation Department’s National Highway Traffic Safety Administration and the Federal Motor Carrier Safety Administration are seeking to forcibly limit how fast commercial vehicles can travel on the nation’s highways. On August 26th, the NHTSA and FMCSA jointly proposed a rule that would impose a nationwide speed limit on newly made U.S. vehicles that weigh more than 26,000 pounds. The current proposal calls for electronic devices termed “speed limiters” to cap maximum truck speeds at 60, 65 or 68 mph miles per hour. Commercial motor carriers would be responsible for maintaining the speed limiters at or below the designated speed for the life of the vehicle. The regulation has the support of the American Trucking Associations, the largest trucking industry trade group, and several of the largest carriers in the nation. One exception to the current proposal is that older heavy trucks are not…       Read More

Written by: Sean Cox, Esq. On December 1, 2015, significant changes to the Federal Rules of Civil Procedure went into effect, including two that deal with proportionality and cost-shifting. Typically, there is asymmetry between the amount of discoverable information in the possession of individual plaintiffs and business entity defendants. This, combined with the rule that the producing party should bear the cost of production, has led to disproportionate discovery costs between the parties. Two recent changes address this by modifying the scope of discovery. The scope of discovery now explicitly includes a proportionality limitation. While a proportionality limitation has been part of the federal rules, the Advisory Committee recognized that most judges were reluctant to limit discovery. Therefore, proportionality language was moved front and center in part “to encourage judges to be more aggressive in identifying and discouraging discovery overuse.” Fed. R. Civ. P. 26 (2015 Advisory Notes). (b) Discovery…       Read More

Written by: Ashley Gowder, Esq. “On January 15, 2016, the FMCSA released a proposal that would make several significant changes to existing regulations related to the method for assigning motor carriers’ safety fitness determinations. Currently, a safety fitness determination can only be made after an on-site compliance review. Compliance reviews are extremely labor and time intensive, so only a very small percentage of motor carriers are evaluated every year.  The system also relies heavily on limited roadside data, and information available on any particular motor carrier is often outdated. These factors result in a current system that only provides a basic snapshot of the carriers’ overall safety performance. The FMCSA’s goal with the new proposal is to take a performance based approach using current data. The FMCSA also believes the proposed changes to the safety fitness determination system will make it easier for those who hire transportation companies to determine…       Read More

Written by: Don Benson, Esq. The Federal Motor Carrier Safety Administration [“FMCSA”] issued on December 21,  2015, a drug testing program change, effective January 1, 2016, reducing the requirement for random testing from 50 percent to 25 percent of the average number of driver positions for drivers of commercial motor vehicles [CMVs] requiring commercial driver’s license [CDL]. FMCSA Management Information System data reported by carriers showed that the positive test result rate for agency-regulated controlled substances testing for the years 2011, 2012 and 2013 fell below a 1.0 percent threshold, allowing the FMCSA to reduce the testing percentage to 25 percent. The 10% percentage rate for random alcohol tests required by FMCSA will remain the same. In accordance with 49 CFR 382.305(e)(2) if, in the future, the reported positive rate for any calendar year is equal to or greater than 1.0 percent, the FMCSA Administrator will increase the minimum annual percentage…       Read More