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Released Opinions

July 12, 2010

Apologies for  not updating on Friday with the forthcoming opinions, but this morning, the Supreme Court of Georgia released opinions in 13 cases, two of which are civil.  Brief summaries of the cases along with the opinions, are below.

S09G1177. Cowart et al. v. Widener et al.

Cowart died while riding in a truck operated by Widener. The evidence presented on summary judgment determined that failure to treat Cowart was only one possible cause of death, and the trial court granted summary judgment to the company and Widener. The Court of Appeals (Andrews, Miller, and Barnes) unanimously affirmed the grant of summary judgment to defendants, concluding the plaintiffs failed to raise a reasonable inference that failure to treat was the proximate cause of death.

The Supreme Court voted 4-3 (Thompson, Hines, and Melton dissenting) to grant certiorari on the following two issues:

  1. Whether expert testimony is required to establish causation in simple negligence cases where a medical question is involved? Compare Gilbert v. R.J. Taylor Mem. Hosp., 265 Ga. 580, 581 n. 4 (1995) and Allstate Ins. Co. v. Sutton, 290 Ga. App. 154 (2008) with Self v. Executive Comm. of the Ga. Baptist Convention, 245 Ga. 548 (1980).
  2. If so, what constitutes a “medical question” so as to require such expert testimony?

The Supreme Court heard oral argument on January 12, 2010.

On July 12, 2010, the Supreme Court affirmed the Court of Appeals in a 4-3 decision, with no majority opinion as to the entire case.  Justice Nahmias wrote for the Court and the majority as to divisions 1 and 2 of the opinion, but Chief Justice Hunstein, Justice Carley, and Justice Benham concurred in part and dissented in part.

In a 34-page opinion, Justice Nahmias found that although expert evidence is not usually required in a simple negligence case, it is required when a medical question involving specialized medical knowledge is necessary to establish causation.  The majority found that most “medical questions” related to causation in simple negligence cases can be answered without expert testimony, but some medical questions are beyond common knowledge and experience.

The dissent found a triable issue of material fact remained in the case, and said the majority misapplied the summary judgment standard.

S10Q0193. Schorr et al. v. Countrywide Home Loans, Inc.

This case comes to the Supreme Court as a certified question from the U.S. District Court for the Middle District of Georgia.  The Schorrs financed their home with Countrywide when they originally purchased it, and in 2003, paid off their loan in full.  They made a demand that the security deed be cancelled, but Countrywide did not do so within the 60 days required by law.  The Schorrs demanded $500 under O.C.G.A. § 44-14-3(c), which provides for liquidated damages after a demand.  When Countrywide failed to pay the amount, the Schorrs filed a federal class action, purporting to represent every person who had not been paid liquidated damages after paying off their mortgage.  Although the Schorrs had made a demand under the statute, however, the remaining class members had not.

Countrywide argues the statute is unambiguous and requires a demand from each member of the class prior to creating liability.  The Schorrs argue that the legal system allows for flexibility within the class action structure, including related to pre-suit demands.  The federal court found that no Georgia court had squarely addressed the issue of “the ability of named plaintiffs’ pre-suit demand on behalf of putative class members to satisfy the pre-suit demand for litigated damages pursuant to O.C.G.A. § 44-14-3(c)” and certified the following question to the Supreme Court of Georgia:

  1. Whether named plaintiffs in a class action may, pursuant to O.C.G.A. § 44-14-3, satisfy the pre-suit written demand requirement for liquidated damages on behalf of putative class action members by the named plaintiffs’ satisfaction of the written demand requirement.

The Supreme Court heard oral argument on January 19, 2010.

On July 12, 2010, the Supreme Court answered the certified question in the affirmative in a 6-1 decision (Melton, dissenting).  Writing for the majority, Justice Carley explained that there was no reason not to apply the general rule that allowed plaintiffs in a class action to satisfy preconditions for suit on behalf of the entire class, and not require pre-suit written demands by every single class member.

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