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Twice this year, justices of the Georgia Supreme Court have granted certiorari in a case after first having issued a denial. Lawyers for AOL Time Warner will have to convince the court to reverse course once again to save their client from having to pay a $257 million punitive damages award to former investors of Six Flags Over Georgia. The justices on Sept. 16 voted 5-2 to refuse to hear the appeal by Time Warner Entertainment Co., a partnership that formerly operated the theme park and is principally owned by AOL Time Warner. The award was part of the largest civil jury verdict in Georgia history — $454 million — that grew out of the investors’ claims that Time Warner had systematically short-changed the park on capital investment, thereby lowering its sale value. Time Warner denied the investors’ allegations, but in 1998, a Gwinnett Superior Court jury awarded them $197 million in compensatory damages and $257 million in punitives. In 2000, a three-judge panel of the Georgia Court of Appeals affirmed the whole award. Time Warner continued to challenge the punitive damages as excessive. U.S. SUPREME COURT REMAND Last year, Time Warner won a remand from the U.S. Supreme Court. The justices told the Georgia appeals court to review the Six Flags verdict in light of a recent ruling on punitive damages. The recent decision said appeals court judges should review anew, or de novo, district court decisions on punitive damages, rather than applying a less demanding abuse-of-discretion standard. The appeals court did as it was told, but in March found that the U.S. high court’s decision did not apply to this case because Time Warner had failed to assert that the punitive damages award violated the U.S. Constitution. Time Warner Entertainment v. Six Flags Over Georgia, No. A00A0120 (Ga. Ct. App. March 29, 2002) (Daily Report, April 2, 2002). When Time Warner asked the state high court to review the case, the entertainment giant made it halfway to its goal. Georgia Chief Justice Norman S. Fletcher and Justice Carol W. Hunstein voted to grant certiorari, but the other five justices voted for denial. It takes four votes to win certiorari at the Georgia high court. In the two cases where the court granted cert after an initial denial, lawyers said they wanted the court to see the global effect of letting the lower court rulings stand. In February, the court switched from a 5-2 cert denial to a 7-0 cert grant in the case of Ontario Sewing Machine v. Smith, No. S01C1233 (Sup. Ct. Ga. cert. granted Feb. 4, 2002). The case deals with whether a manufacturer may be held liable for injuries caused by its product even after the manufacturer issues a recall. PUBLIC POLICY ASPECTS CITED “We focused on the public policy implications,” said Ashley P. Nichols, a partner at Atlanta’s Weinberg, Wheeler, Hudgins, Gunn & Dial who represents the manufacturer in the case, along with Earl W. “Billy” Gunn. Fletcher and Justice P. Harris Hines, who dissented in the cert denial, apparently won over their colleagues on reconsideration. In July, Foy R. Devine and Georgiana Rizk of Doffermyre, Shields, Canfield, Knowles & Devine in Atlanta won a unanimous cert grant after the court voted 6-1 to deny. Justice George H. Carley dissented in the first vote. At issue was a jury charge, used in an underlying medical malpractice trial, that Georgia law presumes that medical services were “performed in an ordinarily skillful manner, and the burden is on the Plaintiffs to show a want of due care, skill, and diligence.” The Georgia Court of Appeals had upheld a defense verdict in the case and rejected the plaintiffs’ argument that the charge prejudiced the jury. Asked why he thought the court decided to take the case, Devine said he speculated, “They realized our issue was something they were going to face sooner or later,” so they decided to take this case rather than wait for more cases like this to build up. Beach v. Lipham, No. S02C0721 (Sup. Ct. Ga. July 26, 2002). Troutman Sanders’ John J. Dalton, who represents AOL Time Warner, said his client will ask the court for reconsideration, but he would not speculate on his client’s chances. “We’re disappointed” in the denial, he said. James E. Butler Jr. of Butler, Wooten, Fryhofer, Daughtery & Sullivan, who represents the investors, had no comment on the court’s cert denial.

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