GENERAL PRACTICE AND TRIAL SECTION STATE BAR OF GEORGIA Vol. XV Winter 2006 No. 2 Tradition2 of0 0 Excellence6 Awards The General Practice and Trial Section 2006 “Tradition of Excellence Award” Recipients (l-r) Hylton B. Dupree, Jr.(General Practice), Judge Willis B. Hunt, Jr. (Judicial), Wallace E. Harrell, (Defense), James B. Franklin, (Plaintiff ) and Section Chairman, Myles Eastwood MARK YOUR CALENDAR March 16 - 18, 2007 Make plans to attend... The General Practice and Trial Section Institute at the Amelia Island Plantation Amelia Island, Florida It promises to be a spectacular program - one you won’t want to miss. GENERAL PRACTICE AND TRIAL SECTION STATE BAR OF GEORGIA Vol. XV Winter 2006 No. 2 “Georgia’s Largest Law Firm” EDITOR AND EDITORIAL BOARD Elizabeth Pelypenko Susan Jones ARTICLES Rosser Adam Malone Thomas E.Cauthorn Chairman’s Corner EXECUTIVE DIRECTOR Cal Callier 2 Be y Simms Recovering “Medical Monitoring” Damages 2006/2007 OFFICERS Douglas A. Henderson Jeff erson C. “Cal” Callier Lynette E. Smith Chairman Jeffrey J. Hayward 3 Mary Prebula Chair-Elect 2006 Tradition of Excellence Awards Adam Malone Secretary/Treasurer Wallace E. Harrell Myles E. Eastwood Introduced by Lisa Godby Wood 4 Immediate Past Chair Hylton B. Dupree, Jr. 2006/2007 BOARD MEMBERS Introduced by Tom Cauthorn 8 John A. Tanner, Jr. Judge Willis B. Hunt, Jr. William P. Langdale, III Virgil L. Adams Introduced by Justice George H. Carley 12 Stephen M. Ozcomert Robin Clark James B. Franklin Susan Jones Introduced by Rebecca Franklin 16 Thomas E. Cauthorn James W. Hurt, Jr. Tradition of Excellence Breakfast and Reception 26 Daniel P. Griffi n Carla Register Preyesh Manikial Audio/Video Tape Library 28 Joseph A. Roseborough Robert W. Chambers, III Laura Austin Clay Ra eree 2006/2007 TRUSTEES Albert Fendig, Jr. Paul M. Hawkins John C. Bell, Jr. John T. Laney, III Robert P. Wilson Thomas Wm. Malone William F. Underwood, Jr. Paul D. Hermann Rudolph Pa erson James B. Pilcher John E. James Verlyn C. Baker Paul W. Painter, Jr. Joel O. Wooten, Jr. Calendar Call is the offi cial publication of the General Practice and Trial Section of the State J. Sherrod Taylor Bar of Georgia. Statements and opinions expressed in the editorials and articles are not nec- John M. Hya essarily those of the Section of the Bar. Calendar Call welcomes the submission of articles James H. Webb, Jr. on topics of interest to the Section. Submissions should be doublespaced, typewri en on Judge Bonnie Oliver le er-size paper, with the article on disk or sent via e-mail together with a bio and picture of William L. Lundy, Jr. the author and forwarded to Elizabeth Pelypenko, The Pelypenko Law Firm PC, 100 Galleria Joe A. Weeks William L. Lundy, Jr. Parkway, Suite #1320, Atlanta, Georgia 30339-5948; ep@pelypenkolawfi rm.com. Published John W. Timmons by Appleby & Associates, Austell, Georgia. Sally Akins S. Cathy Harris Helms 1 By Cal Callier CHAIRMAN’S CORNER Section Chair infl uential and respected attorneys in forces who brought the recent our state, along with timeless kernels challenge to Justice Hunstein will of knowledge. now turn their efforts towards making The events of this past year, and judicial elections partisan and/or particularly the recent challenge to the packing the Supreme Court through independence of our judiciary, remind the creation of additional judgeships. me of one of Hank’s timeless lessons. We will again be presented with an “All you can ever want or ask for is an opportunity. The opportunity is to impartial forum where book and page spread the word that the impartiality number will be followed.” and independence of our judiciary is As we have witnessed, there are not to be tampered with. One of the individuals and groups who seem to people at the round table with Hank care nothing about impartiality, nor years ago was Manley Brown. From book and page. Thankfully, Georgians Manley, I learned this - “When you have once again resoundingly are dead wrong you deserve to lose.” declared that the independence of our If we keep up the fi ght and continue judiciary is not for sale. In the race for to spread the word, the opponents of Justice Hunstein’s seat, the opponent’s our justice system will get what they camp declared that attorneys were deserve. not infl uential enough to swing the I never had the privilege of knowing election. I do not know whether that Hank O’Neal. I do know that he was is true or not. What I do know is that a great lawyer and a tremendous my friends, most of whom declare infl uence in the lives of many. I have themselves republicans, agree with heard the stories. At the close of Hank. They believe our courtrooms the business day, Hank would lock should remain impartial forums where the offi ce door and the attorneys book and page are followed. I do not would gather round, often until late attribute Justice Hunstein’s recent in the evening, and discuss the “one victory solely to the work of attorneys, consuming passion” of Hank’s life but to the good judgment and sound - that is “the law the way the law fundamental values of the citizens of ought to be.” From these round table this state. discussions emerged some of the most The rumor now is that the same “All you can ever want or ask for is an impartial forum where book and page number will be followed.” H. T. O’Neal, Jr . 2 Recovering “Medical Monitoring” Damages Douglas A. Henderson, Lynette E. Smith, and Jeffrey J. Hayward Douglas A. Henderson is a partner In 2005, while fi lling your car with arising out of the U.S. District Court at Troutman Sanders LLP, specializing gasoline, you begin to feel light- for the Northern District of Georgia, in toxic torts and environmental headed from breathing the fumes, changes that situation, providing a litigation. Henderson earned a Ph.D. and you then notice a warning on long overdue exposition of relevant from the University of Michigan and a the pump that gasoline vapors have state and federal case law against the J.D. from the University of Kentucky. been “shown to cause cancer in labo- backdrop of Georgia traditional tort He also teaches at the University of ratory animals.” Your physician, law. Parker provides a useful roadmap Georgia College of Public Health. an environmental health specialist, for Georgia state courts considering explains that you have elevated levels damages for medical monitoring costs, of benzene metabolites in your blood and it may fi nally usher in a period of Lynette E. Smith is also a partner at with an associated one hundred-fold reduced uncertainty concerning the Troutman Sanders LLP, specializing in increased risk of cancer, likely due to viability of this and other “innovative” complex litigation. She earned her B. the gasoline vapors. Other than being toxic tort claims in Georgia. Parties A. from Emory University and a J.D. distraught over the prospect of devel- considering or defending against such from the University of Florida. oping cancer at a young age, you have claims in Georgia state courts would no symptoms of cancer. Is this suffi - be wise to pay close attention to Parker cient physical impact to support a tort and its analysis and ultimate holdings. Jeffrey J. Hayward is an associate at claim in Georgia? Can you recovery Troutman Sanders LLP. He earned simply for being exposed to potentially Medical monitoring claims a B.S in pharmacology & toxicology carcinogenic vapors? Can you recover in Georgia from the University of Wisconsin, and the costs of monitoring your health It is a fundamental maxim of tort an M.S. in public health and J.D. from to determine if you actually develop law that a plaintiff must prove a the University of North Carolina. cancer in the future? compensable injury.1 In recent years, Like many legal questions, the however, parties began pleading for answer to these questions is “maybe.” recognition of latent injuries – those Despite the absence of a traditional that are initiated by a tortious act, physical injury, plaintiffs in several but may not manifest in any clearly states have sued and won damages identifi able form for many years. A for medical monitoring costs on facts prime example involves exposure to not substantially different from those carcinogens, which can initiate the described above. But many more process of cancer development but plaintiffs, perhaps a majority, have without giving rise to a clinically lost on similar facts, and recent deci- identifi able tumor until years or even sions from the U.S. Supreme Court decades later.2 and several state courts suggest a trend This increased appreciation for against such claims. disease latency and concerns about In Georgia, few published opin- fairness and justice prompted several ions have addressed the merits of courts around the country to issue these toxic exposure claims. Parker v. damage awards for “medical moni- Brush-Wellman, however, a recent case toring.” These courts, seeking to continued on page 20 3 DEFENSE WALLACE E. HARRELL Introduced by Lisa Godby Wood We gather this morning to identify constant courtesy, and good humor. and celebrate excellent people. My He’s been lead counsel in literally former law partner and constant hundreds upon hundreds of cases. friend, Wallace Harrell, is an Additionally, when big multinational excellent person. To say that he’s a corporations get sued in Brunswick, “lawyer’s lawyer” is accurate, but Wallace gets hired as local counsel. incomplete. He’s the son of a lawyer, What the general counsel would and the father of a lawyer.