Missing the Statute of Limitations
This is perhaps the most obvious way that a potential third-party claim can be mishandled. The statute of limitations for personal injury claims is two years, and the statute accrues on the date of injury. O.C.G.A. ? 9-3-33 (note that the statute for loss of consortium claims is four years); Everhart v. Rich's, Inc., 229 Ga. 798 (1972). There is a wealth of case law discussing calculation of the limitations period in a variety of circumstances, such as, for example, when certain situations exist to toll the statute. The important thing to note, however, is that, as a general rule, the statute expires two years from the date of injury. Also, if the claim is not brought within one year from the date of injury, the employer, or its insurer, has the right to assert the employee's cause of action. O.C.G.A. ? 34-9-11.1(c). That rarely happens, but if it does, the employee then has the right to intervene in the action.
Missing the Statute of Repose
The statute of repose applicable to product liability claims is more often overlooked. Georgia law provides, with limited exception, that no personal injury claim for the defective design of a product, either in negligence or strict liability, shall be commenced after ten years from date that the product was first sold for consumer use. See O.C.G.A. ? 51-1-11(b)(2). The statute or repose only applies to design claims and does not bar a failure to warn claim. O.C.G.A. ? 51-1-11(c); Chrysler Corp. v. Batten, 264 Ga. 723 (1994). Any time your client sustained product caused harm and there is a possibility of a product liability claim, it is important to quickly learn when the product was first sold for consumer use and then calculate the expiration of the statute or repose. Failure to take these steps could lead to a much more watered down claim arising out of a failure to warn, which is almost always a much flimsier claim that a design defect claim.
Allowing Client to Give Statement to Third-Party Insurer
There is simply no benefit to having your client give a statement to the insurer for a third-party. The insurance adjuster will act like she just wants to know the facts of the case or how to value your client's injuries, but that is almost never true. Their true motivation is to get your client locked into a story early on in the case. Even if that statement is not on its face beneficial to the third-party, it will still provide a way for your client's story to be attacked in cross-examination if it deviates in the slightest detail from the previous statement. Simply put, the third-party's insurer does not have you or your client's best interests at heart in seeking a statement, so do not open your client up to a potential attack later down the road. If the insurer questions your motivations for not allowing your client to give a statement, politely ask the adjuster if the insurer is going to let you take a statement of its insured.
Blaming the Employer for the Injuries
When individuals are injured at work, it is often the case that the employer failed to do all that it should have done to provide your client with a safe place to work. For example, the employer could have failed to properly train the plaintiff or his co-workers, it could have failed to provide adequate guarding or maintenance for a particular piece of equipment that caused injury. Consequently, the employer is frequently an easy target and the knee jerk reaction is to point the finger at it. DO NOT DO IT. Blaming the employer for your client's injuries serves no beneficial purpose and will only diminish, or even defeat, your client's potential recovery from a third-party. This is particularly true now that we have entered the age of non-party apportionment. See O.C.G.A. ? 51-12-33. There are few things more damaging to a potential liability case than having a statement from the injured client, or his spouse, assailing the employer.
Spoliation of Evidence
It is axiomatic that the plaintiff will need evidence to prove his third-party claim. This evidence could come in many forms, from statements or photographs, to the piece of equipment that caused the harm. Failing to have third-parties preserve evidence or allowing it to be spoliated can have a detrimental impact on the ability to prove the case. "Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation." Bridgestone/Firestone N. Am. Tire, LLC v. Campbell, 258 Ga. App. 767, 768 (2002). Not only can it possibly prevent you from having the necessary evidence to prove your case, but, if the evidence was in your possession, custody, or control, it could give rise to a negative inference instruction, or, worse yet, the dismissal of your case. Id. As soon as possible, send a letter of representation to all potential defendants in the third-party case, and itemize all categories of evidence you want preserved.
Lacking Sufficient Experience and Resources to Prosecute the Action
It is easy for attorneys to get in over their heads in a particular case. We have all done it. In certain types of cases, such as products liability, it is much easier. Product liability cases are very expensive and time intensive, requiring hours of written discovery and depositions. To work one up properly, expect to spend, at a minimum, $50,000 just preparing the case for trial. These cases can become even more complex when an attorney finds himself or herself in federal court after the foreign manufacturer removes the case. Federal court presents numerous potential pitfalls for an attorney who lacks the proper experience. At the earliest possible time, it is important to associate an attorney who has the requisite resources and experience to assist in prosecuting the claims.
Filing in an Unfavorable Venue
We all know that certain venues are more hostile to plaintiffs than other venues are. Filing a case in an unfavorable venue can have a dramatic impact on the value of your case. In many cases there are multiple venue options available to the plaintiff, some of which that are obvious, while others are more obscure. See Gay v. Piggly Wiggly Southern, Inc., 183 Ga. App. 175 (1987) (recognizing that venue as to one tortfeasor is proper as to all joint tortfeasors). It is important to identify all potential claims and all potential defendants early in the case. Once all the potential claims and parties are identified, you should thoroughly review all venue options under Georgia law and then determine which one is more favorable.
Doctor shopping can provide a fertile ground for cross-examination of your client regarding the cause and extent of his injuries and damages. Sure, we have all encountered situations where a particular doctor is hostile and there may be a few limited situations where you may want to consider finding an alternative medical provider. However, it does not look good when your client has seen five different orthopedic doctors in a two-month period for the pain in his back.
Settling the Workers' Compensation Case Without Getting Waiver of Subrogation Lien
The workers' compensation subrogation statute in Georgia is more plaintiff-friendly than are the statutes of some other states. Nevertheless, workers' compensation carriers seeking reimbursement sometimes aggressively pursue the enforcement of their lien. This can not only be headache, but if the lien is fully or partially paid, either voluntarily or by court order, it can deprive your client of funds that they would have received from the third-party. That is why the claimant's attorney should always attempt to have the carrier waive its subrogation lien as part of the workers' compensation settlement. Resolving the issue at that stage provides peace of mind and the guarantee that the insurer will not be able to dig into your client's pockets when the liability case is resolved.
Not Evaluating Whether a Potential Third-Party Claim Exists
Last but not least, the most fatal mistake you can make is never bothering to evaluate the facts, and the law, to determine whether a potential third-party claim exists. In this regard, you should be creative. Look at all the actors who played a role in the events leading up to your client's injuries, and then research the law to see if any of their acts or missions are actionable under Georgia law. If you run into a dead-end, just pick up the phone and call an attorney who specializes in third-party liability claims. There could be a whole body of case law regarding a particular cause of action that you were simply unaware of.