Austrian co-operation partner Brandl & Talos law firm.
A year and a day after the European Court of Justice (“ECJ”) had ruled on the Portuguese case C-42/07, Liga Portuguesa and only one day after three judgements in German gaming cases (C-316/07 et al, Markus Stoß et al, C-46/08, Carmen Media and C-409/06, Winner Wetten), the ECJ issued its judgement on the Austrian case for a preliminary ruling C-64/08, Engelmann on 9 September 2010. The Court holds that certain provisions in the Austrian Gaming Act and “the total absence of transparency for the purposes of the grant of the concessions” to the Austrian de-facto monopolist casino operator, Casinos Austria AG (“CASAG”), are contrary to EU law.
The Austrian Gaming Act (Glücksspielgesetz) establishes a state monopoly on lotteries and casinos. Only operators having been granted a license according to § 14 respectively § 21 of the Act are entitled to offer such gaming operations in Austria. At the time of the referral to the ECJ by the Regional Court of Linz, the Act required a casino operator to be a publicly listed company with a seat in Austria and a share capital of EUR 22 million. All twelve licenses are currently held by CASAG, to which the licenses had been awarded behind closed doors without any tender procedure. Furthermore it is interesting to note, that the licensing and supervising authority, the Ministry of Finance, is an indirect shareholder of CASAG through the participation of the state.
The German citizen Ernst Engelmann “operated gaming establishments in Austria […]. In those establishments, he offered his customers, inter alia, a game called observation roulette and the card games Poker and Two Aces. He had not sought a concession to organise games of chance, nor was he the holder of a lawful authorisation in another Member State.“ Therefore he was charged according to § 168 of the Austrian Criminal Code for offering games of chance without a national license. The court of first instance (District Court of Linz) imposed a fine of EUR 2,000 upon Mr Engelmann, however, the court of appeal (Regional Court of Linz) was in doubt of the conformity of relevant provisions of the Austrian Gaming Act with EU law, namely with the freedom of establishment (Art 49 TFEU) and the freedom to provide services (Art 56 TFEU).
The national court, therefore, asked the ECJ to clarify (a) whether Art 49 TFEU precludes the provision which constitutes the requirement of a certain legal form and seat within a certain Member State in order to obtain a license. Furthermore the referring court wanted to know (b) whether Art 49 TFEU and 56 TFEU preclude a national monopoly on certain types of gaming if there is no consistent and systematic policy as the monopoly is being advertised aggressively. Regarding the allotment of the licenses, the court wanted to know (c) whether Art 49 TFEU and 56 TFEU preclude national legislation granting licenses without a tender procedure, thereby excluding operators from other Member States.
Therefore the freedom to provide services precludes the “legislation of a Member State under which games of chance may be operated in gaming establishments only by operators whose seat is in the territory of that Member State“.
Concerning the second question on the consistent and systematic approach of the Austrian gaming regulation in regard to the extensive and aggressive advertising attitude of casino licensee Casinos Austria AG and the lottery licensee Österreichische Lotterien GmbH (Austrian Lotteries, “ÖLG”), the ECJ did not give an answer as it did not deem it relevant for the decision at hand. However, concerning the extensive advertisement conducted by the de-facto monopolists, the ECJ had ruled just one day before issuing its Engelmann judgement that all advertising needs to be “[…] measured and strictly limited to what is necessary in order thus to channel consumers towards authorised gaming networks.” Advertising must not “[…] aim to encourage consumers’ natural propensity to gamble by stimulating their active participation in it, such as by trivialising gambling or giving it a positive image due to the fact that revenues derived from it are used for activities in the public interest, or by increasing the attractiveness of gambling by means of enticing advertising messages depicting major winnings in glowing colours“. As this is exactly the advertising policy that CASAG and ÖLG pursue, it is clear that this internal “inconsistency” of the Austrian gaming market does not conform to what the ECJ laid out in Markus Stoß et al.
By answering the third question the ECJ assesses the compliance of Austria’s license awarding practice with EU law.
In the Engelmann ruling, the ECJ directly addressed its critics to the Austrian government confirming Austria’s total lack of transparency. As previously laid out in its consistent case law, the ECJ held that a prior administrative authorisation scheme”must be based on objective, non-discriminatory criteria known in advance, in such a way as to circumscribe the exercise of the authorities’ discretion so that it is not used arbitrarily“.
If a Member State (i.e. in this case Austria) issues concessions without applying the principle of transparency, the ECJ states that, although concessions in the field of games of chance are not subject to any specific EU regulation, the Member States “[…] are none the less bound to comply with the fundamental rules of the Treaties, in particular [Art 49 and 56 TFEU], and with the consequent obligation of transparency […]“. Furthermore, any person affected by a restrictive measure based on such derogation must have an effective judicial remedy in place. An impartially conducted competition must be sufficiently made possible by the licensing authority. However, the ECJ ascertained the “total absence of transparency for the purposes of the grant of the concessions” in the Austrian system.
It is vital to note, that due to the Austrian regulations at stake it was impossible for potential licensees from other Member States to acquire a license under Austrian law. The requirement of a seat and the lacking transparency are clearly violating EU law. Therefore, according to established ECJ case law, an operator, who was not able to obtain a license due to these circumstances, may not be sanctioned.
The main purpose of the amendment of the Austrian Gaming Act was to regulate the slot-machine sector. In the course of this amendment, the Austrian legislator, also extended the number of casino licenses from 12 to 15, introduced a new license for poker casinos and adapted provisions concerning the licensing procedure for the casino licenses and the single lottery license.
In the amendment, the Austrian government abolished the requirement of a seat for the application phase. However, during the operational phase the operator is still required to have a seat in Austria. This is clearly contrary to the freedom of establishment and freedom to provide services and has also been repeated in the Engelmann ruling.
In order to comply with EU law, the Austrian government also changed the objective pursued when choosing the most suitable licensee for casinos and the lottery license. Before the amendment the licensee was supposed to gain the highest revenues for the state treasury, however, now that licensee shall be chosen, who can best safeguard the aim of protecting consumers. A “public and transparent” announcement shall take place before licenses are tendered.
In November 2010, the Austrian government issued a draft amendment of the Austrian Gaming Act as part of the budgetary bill, slightly redesigning one license requirement for the lottery and casino licenses. The purpose of the new draft amendment was to overcome violations of EU freedoms which were found by Engelmann ruling.
The amendment has two main areas of focus. It modifies the requirements listed in § 14 for companies in order to be able to apply for a lottery license as well as the requirements for casino licenses given in § 21 of the Austrian Gaming Act.
This recent amendment modified the requirement of having a seat in the operational phase to the effect that now a seat in any Member State is sufficient, if the potential licensee also has a “comparable license” from the Member State in which it is established or, in case of a successful application, the company founds its seat in Austria within a certain respite. The comments to the §§ 14 and 21 of the Austrian Gaming Act further explain that it is the duty of applicants (!) established in another Member State to submit evidence of the comparability of their concession, as well as a statement by the gaming regulator of its home country declaring the willingness for administrative cooperation with the Austrian authorities.
The implications of the amendments of the Austrian Gaming Act clearly discriminate against applicants from other Member States, as for an Austrian applicant it is sufficient to have a seat in Austria while an applicant from another Member State finds numerous burdens: Even with a seat in an EU Member State, an applicant would still need a “comparable license” in its Member State of establishment plus a statement of the regulator, while an Austrian applicant needs to provide neither a previously obtained license nor a statement of any regulator. Beyond that, the provision “comparable state supervision and control” leaves a wide discretion to the Austrian authority. There is also no justification why an applicant from another Member State would need a statement from the regulator of that Member State: According to EU law and consistent ECJ case law, it is the duty of the Austrian authority (and not the one of an applicant) to initiate and proceed with the administrative cooperation between national authorities.
This leads to the conclusion that the Austrian Gaming Act, even after these amendments would still not be compliant with EU law. The outcome of the amendments would ultimately result in a similar ECJ ruling like already delivered in the Engelmann case.
According to the Austrian Gaming Act, online gaming can only be offered by the licensee for lottery products. This single license is currently held by ÖLG. Despite the fact that due to an order from the Ministry of Finance, the online platform of ÖLG is set up in cooperation with casino licensee CASAG, there is no EU compliant over-all regulation of online gaming within the Austrian Gaming Act. Drafting a compliant online regulation for the gaming sector has been on the table of the Austrian legislator for some time. The Austrian deputy to the Minister of Finance recently announced that a regulation for online gaming shall enter the drafting process in 2011.
On 27 January 2011 the oral hearing of the next Austrian gaming case, C-347/09, “Dickinger and Ömer” will take place before the ECJ.
The Austrian referral court wants to know whether Art 49 TFEU and 56 TFEU preclude national licensing regulations under which a concession for lotteries is granted to only one applicant. Can this be justified as a restriction of betting activities relating to the public interest in light of the massive advertisement and expansionist policies of the de-facto monopolists? Does supervision in the Member State of establishment have to be considered?
– What particular difficulties can the competent authorities foresee in evaluating the qualities and probity of private operators that operate only online and mostly target consumers from other Member States?
– Can these difficulties be met and a level of control ensured that is comparable to the levels met in offline gaming?
– Is there mutual trust between Member States in respect of the supervising activities and the actual implementation of the regulations applicable to games of chance on the part of the authorities of other Member States?
Targeting at the special constellation in the initial case, in which an Austrian operator, provides its services under a Maltese license, the referring court also asked to what extent the controls on the qualities and probity of organisers of games of chance undertaken by the competent Austrian authorities go beyond the controls applied by the competent Maltese authorities?
It is expected that the outcome will be similar to the Engelmann ruling, however, broaden its scope also to lotteries.
The Austrian government has recently announced that in June 2011 the tender procedures for all 15 casino licenses, the license for poker casinos and the single lottery license shall be commenced. The licenses shall be awarded at end of 2011 respectively the beginning of 2012. The Secretary of State, deputy to the Minister of Finance, announced that the government will certainly wait for the developments in the Dickinger and Ömer case. It is rumoured that the submission of the application documents will cost EUR 10,000.- and the grant of a license will be subject to further fees of EUR 100,000.- payable to the Ministry of Finance.
As long as the Austrian government maintains the various provisions within the Austrian Gaming Act that clearly violate EU law for various reasons, according to the consistent case law of the ECJ, all operators, who have never been able to successfully apply or be granted a license due to the Austrian regulations being in breach of EU law, must remain without any sanctions whatsoever. Any sanctioning of non-compliant operators will be possible the earliest when the Austrian government is able to fully comply with EU law. Thereby a transparent and public licensing procedure must take place under circumstances that do not discriminate against operators from other Member States potentially interested in obtaining an Austrian license and do not violate the fundamental freedoms of the EU. The Austrian gaming system must be regulated in a consistent and systematic manner, both externally in an over-all approach and also internally, so that if the lottery license is awarded to only one licensee, this license holder must not extensively advertise.
Only when the Austrian government has taken all measures necessary to regulate the gaming market in a manner compliant with EU law, will sanctions against operators not willing to comply with the law be enforceable. Therefore and also in order to provide a secure and systematic gaming legislation, the Austrian government is called upon to take the appropriate measures in due time.
 ECJ, 9 September 2010, C-64/08, Engelmann, para 17.
 ECJ, 9 September 2010, C-64/08, Engelmann, para 31.
 ECJ, 9 September 2010, C-64/08, Engelmann, para 33.
 ECJ, 30 November 1995, C-55/94, Gebhard, para 37 and ECJ, 6 November 2003, C-243/01, Gambelli, para 65.
 ECJ, 9 September 2010, C-64/08, Engelmann, para 37.
 ECJ, 9 September 2010, C-64/08, Engelmann, paras 37-38.
 ECJ, 9 September 2010, C-64/08, Engelmann, para 40.
 ECJ, 8 September 2010, C-316/07, Markus Stoß et al., para 103.
 ECJ, 3 June 2010, C-203/08, Sporting Exchange, para 50.
 ECJ, 9 September 2010, C-64/08, Engelmann, para 49.
 ECJ, 9 September 2010, C-64/08, Engelmann, para 55.
 ECJ, 9 September 2010, C-64/08, Engelmann, paras 49-50.
 ECJ, 9 September 2010, C-64/08, Engelmann, para 56.
 ECJ, 6 March 2007, C-338/04 et al, Placanica et al, para 69 and subsequently ECJ, 8 September 2010, C-316/07, Markus Stoß et al., para 115.
 Compare to that extent the comments of Article 24 of the Amendment of the Austrian Gaming Act.


VINEYARD INDUSTRIES, INC. d/b/a McDONALD'S RESTAURANTS v. DESTA BAILEY et al.
BARNES, P. J., MCMILLIAN and MERCIER, JJ.
Vineyard Industries, Inc., d/b/a McDonald's Restaurants (“Vineyard”) appeals the judgment entered against it in a negligence action brought by Desta Bailey, as parent and guardian for Antonia Bailey, a minor (collectively the “Baileys”).Vineyard argues on appeal that the trial court erred in (1) allowing the Baileys' counsel to use story boards with pictures of testifying witnesses and quotations from their deposition testimony in opening statement that were inconsistent with their trial testimony; (2) excluding certain testimony by Vineyard's expert witness; and (3) entering judgment on the pain and suffering damages awarded by the jury, which Vineyard asserts was inconsistent with the evidence at trial. For the following reasons, we affirm.
On appeal, the presumption as to the validity of a jury verdict requires that all the evidence and every presumption and inference drawn from the evidence be construed most favorably to the jury verdict. McIntee v. Deramus, 313 Ga. App. 653, 653 (722 SE2d 377) (2012). So construed, the evidence shows that on the morning of April 18, 2013, before heading to school, Antonia Bailey (“Antonia”) stopped for breakfast at a McDonald's restaurant owned by Vineyard. After ordering, Antonia went to the restroom, which was in the opposite direction from both the door she had entered and the restaurant's drink machine. After exiting the restroom, Antonia walked toward the drink machine. She was watching where she was walking and looking at the drink machine. She was not on her cell phone or otherwise distracted. Nevertheless, she slipped in front of the drink machine and fell.
Antonia remembers that after she fell she noticed that the floor around the drink machine was wet, and a number of witnesses testified that it appeared that the area had just been mopped. In fact, when Antonia landed, she was facing a McDonalds' worker who was mopping another area of the restaurant. However, Antonia did not see a wet floor sign in the vicinity of the drink machine or in the direction from which she had walked, and one of the cashiers, who came to help her after she fell, told her that the employee was mopping and should have put out a wet floor sign. The only wet floor sign anyone remembered seeing was in the vicinity where the employee was then mopping, which was by the drive-through entrance that Antonia had used to enter the restaurant, although neither the employee nor the sign were there when she entered the building.
On February 14, 2014, Desta Bailey filed suit on behalf of her then-minor daughter, Antonia, against Vineyard for damages under a negligence theory. A jury trial commenced on January 19, 2016 and was completed two days later with the jury's return of a verdict in favor of the Baileys. The trial court entered judgment in accordance with the verdict, awarding $16,206.51 to Desta for past medical expenses incurred on behalf of Antonia and $28,224.82 for past medical expenses, $29,999 for future medical expenses, and $600,000 for pain and suffering to Antonia. It also entered judgment for Desta Bailey in the amount of $10,928.94 as interest under Georgia's Unliquidated Damages Act. Following the denial of its motion for a new trial, Vineyard filed this appeal.
1. In Vineyard's first enumeration of error, it contends that the Baileys' use of demonstrative exhibits during opening statement with quotations from witnesses' depositions was improper and the quotations prejudiced the jury because they were inconsistent with the evidence presented at trial.
In a civil trial, “counsel for either party shall be permitted to use a blackboard and models or similar devices in connection with his argument for the purpose of illustrating his contentions with respect to the issues which are to be decided by the jury, provided that counsel shall not in writing present any argument that could not properly be made orally.” OCGA § 9-10-183. Counsel are given wide latitude in the use of demonstratives to assist in the jury's understanding of the issues to be decided at trial. Tench v. Galaxy Appliance &Furniture Sales, Inc., 255 Ga. App. 829, 830-31 (1) (a) (567 SE2d 53) (2002) (physical precedent only); Oglethorpe Power Corp. v. Sheriff, 210 Ga. App. 299, 303 (6) (436 SE2d 14) (1993). See also Lewyn v. Morris, 135 Ga. App. 289, 290 (1) (217 SE2d 642) (1975) (“Counsel for both parties in either a civil or a criminal case, preliminary to the introduction of evidence, may state to the jury what each expects to prove on the trial.”) (citation and punctuation omitted). Upon objection to such evidence, the trial court has discretion in determining whether such demonstrative exhibits will be allowed, which we will uphold absent an abuse of that discretion. Sheriff, 210 Ga. App. at 303 (6) (trial court did not abuse its discretion in allowing counsel to read law in a civil case during opening argument and to present “such law by means of excerpts on charts”).
It is evident from the record that Baileys' counsel used trial boards in opening statement with quotations from witness depositions and that Vineyard's counsel objected to their use. Counsel's stated use for these trial boards was to assist in clarifying to the jury what he intended the evidence to show by allowing the jury “to read along so that it doesn't all stream together and get lost.” However, the trial boards were not included in the record on appeal nor does it appear that Vineyard requested that they be preserved for appeal. As the appealing party, Vineyard “bore the burden of ensuring an accurate and complete record on appeal and of taking steps to have the record supplemented with any necessary materials.” (Citation and punctuation omitted.) Central Ga. Women's Health Center, LLC v. Dean, 342 Ga. App. 127, 133 (1) (a) (800 SE2d 594) (2017). See also Griffin Builders v. Synovus Bank, 320 Ga. App. 307, 309 (739 SE2d 760) (2013) (“[I]t is the appellant's duty to include in the record on appeal the items necessary for the appellate court to objectively review the evidence and proceedings giving rise to [the trial court's ruling.]”) (citation and punctuation omitted); Ga. Ct. App. R. 18 (b) (“[I]t is the burden of the appealing party to ensure that a complete record is transmitted to this Court on appeal[.]”) Accordingly, we must presume that the evidence supported the trial court's ruling, and thus we find no abuse of discretion in permitting the trial boards to be used during opening statement.1 See Crawford v. State, 288 Ga. 425, 427 (2) (a) (704 SE2d 772) (2011).
2. Vineyard next argues that the trial court erred in allowing the Baileys to make a purportedly untimely objection to a portion of Vineyard's expert's testimony and in excluding that testimony after a hearing. The trial court's determination of whether a witness is qualified as an expert and whether to exclude a portion or the entirety of an expert's testimony shall not be disturbed absent manifest abuse of discretion. HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641, 642 (1) (697 SE2d 770) (2010); Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 279 (5) (658 SE2d 603) (2008).
(a) Vineyard first argues that the Baileys' objection to Dr. Boulhouwer's testimony was untimely because it was made after the pretrial order was entered, and the trial court committed reversible error in allowing such an untimely objection.
Under OCGA § 24-7-702 (d), the trial court may, upon motion by one of the parties, hold a pretrial hearing to determine whether a proposed expert witness qualifies as an expert under the statute and if his testimony meets the requirements of OCGA § 24-7-702 (a) and (b) to testify as an expert. The statute provides that such a hearing and the trial court's ruling “shall be completed no later than the final pretrial conference.” OCGA § 24-7-702.
(b) Vineyard also argues that the trial court erred in granting the motion in limine because Dr. Boulhouwer met all the criteria for testifying under OCGA § 24-7-702 (b) and his opinion would have been both helpful to the jury and relevant.
Dr. Boulhouwer's disputed opinion was that “one cannot conclude to a reasonable degree of scientific certainty that had a different or additional warning been presented to an individual [in Antonia's position] that would necessar[ily] change their behavior in such a manner as to avoid this accident.” Dr. Boulhouwer later explained that “to a reasonable degree of scientific certainty” meant that “there was no evidence in the scientific literature to support that an additional warning sign would change someone's behavior,” noting that the scientific literature suggests that although some people may change their behavior in response to a warning sign, not all people will. Dr. Boulhouwer based his opinion on his understanding of the scientific literature , and he brought several articles to court of which he was aware, but upon which he did not specifically rely, in forming his opinion. In explaining his opinion, Dr. Boelhouwer cited one study that demonstrated that not all people chose to avoid an area containing a wet floor sign, but he conceded that this research made no attempt to study whether those individuals who chose to proceed despite the warning altered the manner in which they traversed the affected area.
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case which have been or will be admitted into evidence before the trier of fact.
The party seeking to rely on the expert bears the burden of establishing not only that an expert is qualified and that the expert's testimony is reliable within the meaning of the statute, but also that the testimony will be helpful to the jury. Scapa Dryer Fabrics, Inc. v. Knight, 299 Ga. 286, 293 (788 SE2d 421) (2016).
Although the trial court made no specific findings in its determination that Dr. Boulhouwer could not testify about the opinion at issue, we find that Vineyard has failed to carry its burden to show that the testimony was admissible. Vineyard argued below that Boulhouwer's testimony met the statutory criteria because the Baileys did not dispute his competency to testify as a human factors expert, “there is literature to support his opinion,” and the opinion is based on this literature and not just his personal opinion. However, pretermitting whether Vineyard has shown that Dr. Boelhouwer based his opinion on sufficient facts or data or whether the opinion is the product of reliable principles and methods, Vineyard has failed to show how Dr. Boelhouwer applied those principles and methods reliably to the facts of this case. Specifically, even assuming the literature shows that some people respond to warnings, while others do not, Dr. Boelhouwer failed to explain how someone in Antonia's position would have responded to a warning sign in the area of the drink machine. To the contrary, the gist of his testimony was that no one could say to a reasonable degree of scientific certainty how anyone would react had a sign been in place. Moreover, the fact that some people do not heed warning signs and other people respond to them is within the common knowledge of jurors, without the need for expert opinion, and the trial court permitted Vineyard to raise that point in its argument to the jury.
Accordingly, we find that Vineyard has failed to establish that the trial court abused its discretion in excluding the expert's testimony on this issue. See Winters v. Fru-Con, Inc., 498 F3d 734, 741, 743 (II) (C) (7th Cir. 2007) (lower court properly excluded human factors expert's testimony where it failed to meet requisite standards of intellectual rigor); Calhoun v. Yamaha Motor Corp., 350 F3d 316, 322 (II) (A) (3d Cir. 2003) (trial court did not abuse its discretion in excluding expert opinion that lacked adequate foundation in literature or testing); Previto v. Ryobi North America, Inc., 766 FSupp2d 759, 766 (II) (B) (S.D. Miss. 2010) (excluding human factor's expert's testimony based upon insufficient facts and data); Calvitt v. Procter & Gamble Mfg. Co., 207 FSupp2d 527 (I) (M.D. La. 2002) (excluding testimony of human factors' expert where adequacy of warning was factual issue that jury could handle without expert help).
3. Vineyard further argues that the trial court erred in entering judgment because the jury award of damages was contrary to the preponderance of the evidence. We find no error.
“Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence.” (Citation omitted.) McIntee, 313 Ga. App. at 653. See also Beam v. Kingsley, 255 Ga. App. 715, 716 (1) (566 SE2d 437) (2002).
(a) Vineyard complains that the jury's apportionment of no fault to Antonia was error because it went against the weight of the evidence and that Antonia's “admissions” mean that no reasonable jury could determine that Vineyard had superior knowledge of the wet floor. Vineyard cites as admissions Antonia's answers on cross-examination that, based on her past experiences in restaurants such as McDonald's, she knew that the floor in front of a drink station could become wet from excess ice and drinks and that she did not need a sign to tell her that. However, even though Antonia admitted that she knew that such areas could become wet, there was no evidence to show that she saw that the floor at McDonald's was wet that morning, that she knew it had recently been mopped, or that the wet area extended from the drive-through door to the wall, not just in the immediate area of the drink machine. In fact, the evidence is to the contrary. Antonia testified that she was always careful around drink machines, was not distracted, was not in a hurry, was watching where she was going, was wearing sneakers, and did not see any water on the floor when she entered the drink machine area. Moreover, the evidence supported a finding that the floor was wet, not from spilled drinks or ice, but because a Vineyard employee had mopped the floor around the drink machine without posting a sign to warn of the wet surface. Based on this evidence, the jury was authorized to find that Antonia bore no fault for her fall.
(b) Vineyard also argues that the trial court should have granted a new trial on the issue of damages because the award of $600,000 for pain and suffering, which was 13 times the award for special damages, was so clearly excessive that it is inconsistent with the preponderance of the evidence.
is governed by no other standard than the enlightened conscience of impartial jurors. And the defendant has a heavy burden under OCGA § 51-12-12 (a) to establish that such a damage award is excessive. In particular, appellate courts should be hesitant to second-guess verdicts where the damage award is based on any significant part on pain and suffering. ․ Therefore, for this Court to overturn the jury's verdict, it must be so flagrantly excessive or inadequate, in light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake by the jurors.
AT Systems Southeast, Inc. v. Carnes, 272 Ga. App. 671, 671 (1) (613 SE2d 150) (2005).
Here, the evidence showed that after her fall, Antonia felt pain along her left side from her bottom to her thigh and down her leg. The store manager offered to fill out an incident report, but Antonia wanted to get to school so as to not be late. During school, Antonia began to experience pain in her left knee severe enough that her father had to pick her up early from school. The next day, Antonia went to work at her internship with a pediatrician's office but realized that the pain was worsening the more she walked around. At that point, the doctor took a look at Antonia's knee and recommended Antonia see an orthopedist.
On April 22, 2013, Antonia consulted an orthopedist, and a diagnostic MRI revealed that she had a torn meniscus. She underwent surgery on May 30 and spent the rest of the school year on crutches or in a wheelchair. Prior to the fall, Antonia was energetic and an athlete with no history of knee issues, playing multiple sports in high school. After surgery, she was in severe pain, but after physical therapy, she was able to put some weight on her knee with the assistance of crutches, eventually increasing her activity level in an attempt to return to competitive sports. However, the more active Antonia was, the more pain she had in her knee, so she went to a second orthopedist in February 2014. The orthopedist recommended further physical therapy, which Antonia undertook, and an MRI when the pain still did not recede. Based on the MRI results during the summer of 2014, the orthopedist recommended a second knee surgery to fix a cartilage tear, which was performed on December 23, 2014.
After the second surgery, Antonia experienced severe pain, she had trouble walking to class and around her dorm, and she was unable to participate in many activities with friends. Eventually she returned to her orthopedist and had a third MRI. That MRI showed that the cartilage tear was not healing, and the orthopedist recommended an osteochondral allograft transfer system (“OATS”) procedure. Antonia went to a third orthopedist for a second opinion after receiving the MRI results, and the third orthopedist concurred that Antonio would either need the OATS procedure or an osteotomy, but preferably both at the same time. Antonia plans to have further surgery when she graduates from college in the spring of 2018 so she can take time to recover before starting post-graduate schooling. Antonia testified at trial that she was not in as much pain as before the visit to her third orthopedist, due in part to a specific knee brace he recommended Antonia use until the surgery, although she is still experiencing pain three to four times a week and is limited in her activities.
Despite this evidence, Vineyard contends that in making its award, the jury ignored undisputed testimony at trial, including the Baileys' experts' testimony that additional surgery would likely take care of the pain Antonia is currently suffering. However, damages for pain and suffering are not awarded merely for the pain the plaintiff experiences at the time of trial or the pain the plaintiff is expected to suffer following all possible corrective surgeries. Rather, such damages are awarded for past, present, and future pain and suffering beginning at the time of the injury for which the lawsuit was filed. Carnes, 272 Ga. App. at 672.
There is ample evidence in the record that Antonia suffered severe pain for at least two years after her fall, still experiences pain, and will likely experience some pain after her third knee surgery. Vineyard points to no evidence let alone compelling evidence, nor have we found any upon review of the record, that shows that the verdict was so excessive as to shock the conscience and require reversal. Carnes, 272 Ga. App. at 671-72 (1) ( $1,250,000 verdict was not excessive although special damages were only $74,791.16 and future surgery would “substantially relieve” plaintiff's pain); Beam v. Kingsley, 255 Ga. App. at 716 (1) (affirming $2.5 million award for funeral expenses and pain and suffering where decedent survived for two minutes, drowning in his own blood, after the fatal crash where record supported award and appellant could point to no compelling evidence to the contrary).
Therefore, the trial court did not abuse its discretion in denying Vineyard's motion for a new trial on the issue of damages.
1. To the extent that Vineyard also asserts error based on the Baileys' counsel's reading deposition testimony during his opening statement, we find that it has waived any such argument on appeal. Vineyard has not pointed us to any objection it raised to this portion of opening statement or any ruling by the trial court on this ground. It is well settled that “[w]hen a party fails to assert a contemporaneous objection to allegedly improper remarks of counsel, the party waives his right to complain about the remarks on appeal.” (Citation and punctuation omitted.) Womack v. Johnson, 328 Ga. App. 543, 545 (1) (762 SE2d 428) (2014).
2. The substance of this opinion will be addressed in Division 2 (b) below.
3. Because OCGA § 24-7-702 carries forward the language from former OCGA § 24-9-67.1 (d) requiring that motions to determine the qualifications of experts be heard and ruled upon no later than the final pretrial conference, prior cases construing that language under the earlier statute remain good law.
Judgment affirmed. Barnes, P. J., and Mercier, J., concur.


PUC issues Goodhue Wind order!!!
1) The Commission will require the project to make a filing within 14 days in which it either surrenders its site permit or states that it intends to begin construction by August 23. If the project states that it intends to begin construction by August 23, it must demonstrate its ability to do so.
If the project states that it intends to begin construction by August 23, it must also provide by that date a more comprehensive response to the Commission’s request in section IV of the March 20 order that it investigate and respond to comments by members of the public alleging deficiencies in its performance on wildlife monitoring and protection issues. It must also file a summary of the March 27, 2013 site visit, referred to in its April 17 letter, conducted by the U.S. Fish and Wildlife Service, the Minnesota Department of Natural Resources, and the Energy Facility Permitting Staff of the Minnesota Department of Commerce.
The Commission has declined to extend the certificate of need for this project for the reasons set forth above; therefore, any construction of the project must proceed under the exemption provisions of Minn. Stat. § 216B.243. The Commission hereby gives notice of its intent to revoke the site permit if the project has neither surrendered its site permit nor filed an exemption petition by August 23, 2013.
The commission shall require that C-BED projects provide sufficient security to secure performance under the power purchase agreement, and shall prohibit transfer of a C-BED project during the initial term of a power purchase agreement if the transfer will result in the project no longer qualifying under subdivision 2, paragraph (h).
Subdivision 10 Does Not Make the Anti-Transfer Provision of Subdivision 3 (c) Inapplicable to New Era… This subdivision does not repeal subdivision 3, and its provisions do not conflict with the anti-transfer provision subdivision 3 contains. It does not invalidate or otherwise free existing C-BED projects from the statutory prohibition on ownership transfers that result in existing C-BED projects failing to qualify under the eligibility criteria of subdivision 2, paragraph (h).
1. The Commission denies the project’s April 17 request to hold the case in abeyance and its June 18 request for an extension of time.
2. The Commission finds that the project violated the anti-transfer provision of Minn. Stat. § 216B.1612, subd. 3 (c) and that the transfer of power purchase agreements that occurred is prohibited.
3. The Commission declines to recertify the certificate of need due to New Era’s failure to demonstrate that it will comply with the Commission’s orders and due to its failure to show that it is prepared to move forward with the project for which the certificate of need was obtained, including the failure to specify a current in-service date.
4. Within 14 days of the date of this order, New Era shall either surrender its site permit or show cause that it intends to begin construction by August 23 and that its site permit should not be revoked. If the project states that it intends to begin construction by August 23, it shall demonstrate that it is able to begin construction by that date.
5. If New Era makes a filing stating that it intends to begin construction by August 23, it shall provide by that date a more comprehensive response to the Commission’s request in section IV of the March 20 order that it investigate and respond to comments by members of the public alleging deficiencies in its performance on wildlife monitoring and protection issues.
6. If New Era makes a filing stating that it intends to begin construction by August 23, it shall provide by that date a summary of the March 27, 2013 site visit, referred to in its April 17 letter, conducted by the U.S. Fish and Wildlife Service, the Minnesota Department of Natural Resources, and the Energy Facility Permitting Staff of the Minnesota Department of Commerce.
7. The Commission gives notice of its intent to revoke the project’s site permit if it has neither surrendered its site permit nor filed a certificate of need exemption petition by August 23, 2013.
8. This Order shall become effective immediately.
I’d like to see the address for Red Wing Township!!! But it looks like they got the names and addresses straightened out by the second mailing.
#2 of 3: And the MPCA Rulemaking!
As if two rulemakings at the EQB, in addition to development of “standards and criteria” for silica sand mining, isn’t enough, as if a rulemaking at the DNR wasn’t enough, well, here we go with a fourth silica sand rulemaking going on at the same time.
NOTICE IS HEREBY GIVEN that the Minnesota Pollution Control Agency (Agency) is requesting comments on plans to amend rules relating to silica sand projects as directed by the 2013 Legislature. The Agency may amend Chapters 7011 (standards of performance for specific types of facilities), 7001 (water permitting), 7007 (air permitting), 7009 (air standards), 7017 (air testing), 7050 (water standards), or other related and affected chapters.
Subject of Rules: The Agency requests comments on plans to amend its rules or establish new rules pertaining to the control of particulate emissions and other pollutants from silica sand projects that may affect the state’s air or water resources.
As will be discussed in this rulemaking, “silica sand” is well-rounded, sand-sized grains of quartz that is commercially valuable for use in the hydraulic fracturing of shale to obtain oil and natural gas. Silica sand does not include common rock, stone, aggregate, gravel, sand with a low quartz level, or silica compounds recovered as a by-product of metallic mining.
“Silica sand project” means the excavation, mining and processing of silica sand; the washing, cleaning, screening, crushing, filtering, drying, sorting, stockpiling and storing of silica sand, either at the mining site or at any other site; the hauling and transporting of silica sand; or a facility for transporting silica sand to destinations by rail, barge, truck or other means of transportation.
The Legislature has directed the Agency to adopt rules pertaining to particulate emissions from silica sand projects. The Agency will also consider adopting rules to control other potential pollutants from silica sand projects, such as those that might contribute to water pollution. This Request for Comments is the Agency’s initial notice of its intent to begin rulemaking. This is only the first of several opportunities for public comment and input on this rulemaking.
Persons Affected: The Agency’s planned rulemaking potentially affects any owner or operator of an existing or proposed silica sand project and those persons potentially impacted by particle emissions or water discharges from silica sand projects.
commissioner of the Pollution Control Agency shall adopt rules pertaining to the control of particulate emissions from silica sand projects. The rulemaking is exempt from Minnesota Statutes, § 14.125.” The exemption from § 14.125 is that the Agency is not limited by an 18- month time limit to adopt, amend, or repeal rules following legislative direction. Further, the Agency plans to use existing general authorities under § 115.03, subds. 1(e) and (g); 5, and 5c; and § 116.07, subd. 4(b) to maintain rules that protect state waters.
Public Comment: The Agency presently has no proposed rules on which to comment, but encourages interested parties to submit written comments or information regarding the Agency’s plans to amend rules on this subject until 4:30 p.m. on September 30, 2013. The Agency cannot publish a Notice of Intent to Adopt Rules until at least 60-days from the date of this Request for Comments. Comments or information should be submitted to the Agency contact at the address below.
Note: Written comments received in response to this notice will not necessarily be included in the formal rulemaking record submitted to the administrative law judge if and when a proceeding to adopt rules is started. The Agency is required to submit to the judge only those written comments received in response to the rules proposed in a Notice of Intent to Adopt Rules. If you submit written comments in response to this notice or during the development of the rules, and you want to ensure that the administrative law judge reviews those comments, you should resubmit those same comments in accordance with the instructions found in the Notice of Intent to Adopt Rules.
The Agency does not anticipate that the rule amendments will require a local government to adopt or amend an ordinance or other regulation under Minnesota Statutes, § 14.128. Local governments are welcome to submit written information to the contrary if this belief is incorrect.
Alternative Format: Upon request, this information can be made available in an alternative format, such as large print, Braille or audio. To make such a request, please contact the rule process contact person at the telephone number or address listed above.
#1 of 2: And the DNR rulemaking!
First, the DNR’s release, found in the State Register while looking up MPCA rules.
Subject of Rules. The Minnesota Department of Natural Resources requests comments on its possible rules governing reclamation of silica sand mines. The Department is considering rules that would control possible adverse environmental effects of silica sand mining, preserve natural resources, and encourage planning of future land utilization. The rules may address other reclamation issues that come up during the rulemaking process.
Persons Affected. The rules would likely affect entities that are proposing to mine or are mining silica sand, local units of government that regulate silica sand mining, and citizens and companies located in the proximity of proposed or existing silica sand mining operations.
Statutory Authority. Laws of Minnesota 2013, Chapter 114, Article 4, Section 105 (b) requires the Department to adopt rules for reclamation of silica sand mines.
Public Comment. Interested persons or groups may submit comments or information on these possible rules in writing until further notice is published in the State Register that the Department intends to adopt or to withdraw the rules. The Department will not publish a notice of intent to adopt the rules until more than 60 days have elapsed from the date of this request for comments. The Department does not plan to appoint an advisory committee to comment on the possible rules. However, the Department may consult with the silica sand technical assistance team assembled by the Environmental Quality Board pursuant to Laws of Minnesota 2013, Chapter 114, Article 4, Section 91.


TELECHRON, Inc., and General Electric Company.
The judgment is reversed. The petitioner's notice of appeal to the Court of Appeals from a judgment of the Distrct Court for the Northern District of New York, together with his appeal bond, was received at the office of the Clerk of the District Court within the 30 days prescribed by 28 U.S.C. § 2107, 28 U.S.C.A. § 2107, for filing a notice of appeal. In dispatching these papers the petitioner inadvertently failed to include the $5 fee required by 28 U.S.C. § 1917, 28 U.S.C.A. § 1917, to be paid 'upon the filing' of a notice of appeal. The Clerk notified the petitioner of his omission, and declined to 'file' the notice of appeal until he received the $5 fee three or four days later. By that time the 30-day period for appeal had expired. Upon petitioner's motion the District Court made a nunc pro tunc order according the notice of appeal a filing date as of the date it was originally received by the Clerk.
The Court of Appeals, without opinion, dismissed the appeal as untimely. We think that the Clerk's receipt of the notice of appeal within the 30-day period satisfied the requirements of § 2107, and that untimely payment of the § 1917 fee did not vitiate the validity of petitioner's notice of appeal. Anything to the contrary in such cases as Mondakota Gas Co. v. Montana-Dakota Utilities Co., 9 Cir., 1952, 194 F.2d 705, we disapprove. Our conclusion does not leave § 1917 without other sanctions.


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Studied at Cambridge (England) where he was a member of the Cambridge University Boxing Team (C.U.A.B.C.). United Way Leadership Donor and Member, The Tocqueville Society. Named, Distinguished Barrister for Leadership in the Law, 2008. Recipient, Fifth Annual Child Safety Advocate Award, Indiana University School of Medicine - Automotive Safety Program. Appointed Class Counsel in several important class actions, including the South Shore Train Crash at Gary, Indiana, on January 18, 1993; the Nurseryland Bus Crash at Gary, Indiana, on June 25, 1998; the Truck/Train Collision at Portage, Indiana, on June 18, 1998. Also appointed to Plaintiffs' Discovery Committee for the Air Crash Disaster at Sioux City, Iowa, on July 19, 1989. Clients have been featured on DATELINE and he has also been interviewed on INSIDE EDITION, CNN, NBC, CBS, ABC, WGN, FOX, listed in Who's Who in American Law and on OPRAH. Former Superior Court Judge, pro tempore. Member, Carpenter's Union (UBC). Former Member, Teamster's Union (IBT). Former railroad Track Laborer (UTU).
Van Swol v. ISG Burns Harbor, LLC, 491 F. Supp. 2d 80 (2008); Florio v. Tilley and CalArk International, Inc., 875 N.E. 2d 253 (Ind. Ct. App., 2007); Bond v. Walsh & Kelly, Inc., 869 N.E. 2d 1264 (2007); Recio v. GR-MHA Corp., 366 Ill. App. 3d 48; 851 N.E. 2d 106 (2006); Allstate v. Fields, 842 N.E. 2d 804 (Ind. 2006); R & D Transp., Inc. v. A.H., 855 N.E. 2d 996 (2006); Reliable Dev. Corp. v. Berrier, 851 N.E. 2d 983 (2006); Walker v. Emplrs Ins. of Wausau, 846 N.E. 2d 1098 (2006); Parks v. Guidant Corp., 402 F. Supp. 2d 964 (N.D. Ind. 2005); Anderson v Griffin, 397 F.3d 515 (7th Cir. 2005); Madden v. INDOT, 832 N.E. 2d 1122 (Ind. Ct. App. 2005); Bechard v. CSX Corp., 415 F.3d 205 (7th Cir. 2005); In re Estate of Hammar, 832 N.E. 2d 1065 (Ind. Ct. App. 2005); Mesman v. Crane Pro Services, 409 F.3d 846 (7th Cir. 2005); Monroe Guaranty Ins. Co. v. Berrier, 827 N.E. 2d 158 (Ind. Ct. App. 2005); Funston v. School Town of Munster, 822 N.E. 2d 985 (Ind. Ct. App. 2004), transfer granted 831 N.E. 2d 748 (Ind. 2005); Csicsko v. Hill, 808 N.E. 2d 80 (Ind. Ct. App. 2004); Woodley v. Fields, 819 N.E. 2d 123 (Ind. Ct. App. 2004), transfer granted, 831 N.E. 2d 750 (Ind. 2005); Messer v. Cerestar USA, Inc., 803 N.E. 2d 1240 (Ind. App. 2004); Fifth Third Bank v. CSX Corp., 306 F. Supp. 2d 841 (N.D. Ind. 2004); Strack and Van Til, Inc. v. Carter, 803 N.E. 2d 666 (Ind. App. 2004); Fifth Third Bank v. CSX Corp. 306 F. Supp. 2d 841 (N.D. Ind. 2004); Evans v. Buffington Harbor River Boats, LLC, 799 N.E. 2d 1103 (Ind. App. 2003); Wright v. American States Ins. Co., 765 N.E. 2d 690 (Ind. App. 2002); Indian Trucking v. Harber, 752 N.E. 2d 168 (Ind. App. 2001); Kleen v. Homak Mfg. Co., Inc., 749 N.E. 2d 26 (Ill. App. 1 Dist. 2001); Schmidt v. American Trailer Court, Inc., 721 N.E. 2d 1251 (Ind. App. 1999); Pluard ex rel. Pluard v. Patients Compensation Fund, 705 N.E. 2d 1035 (Ind. App. 1999); Barclay v. Universal Underwriters Group, 703 N.E. 2d 169 (Ind. App. 1998); Grand Trunk Western R. Co. v. Kapitan, 698 N.E. 2d 363 (Ind. App. 1998); Thiele v. State Farm Mut. Auto. Ins. Co., 973 F. Supp. 1091 (N.D. Ind. 1997); In re Train Collision at Gary, Ind. on Jan. 18, 1993, 670 N.E. 2d 902 (Ind. App. 1996); In re Train Collision at Gary, Ind. on Jan. 18, 1993, 654 N.E. 2d 1137 (Ind. App. 1995); Osmulski v. Becze, 638 N.E. 2d 828, (Ind. App. 1994); Precision Erecting, Inc. v. Wokurka, 638 N.E. 2d 472 (Ind. App. 1994); Voight v. Subaru-Isuzu Automotive, Inc., 141 F.R.D. 99 (N.D. Ind. 1992); Laporte Cmty. Sch. Corp. v. Rosales, 963 N.E.2d 520 (2012); Estate of Vandam v. Daniels, 278 F.R.D. 415 (2011); A.S. v. LaPorte Reg'l Health Sys., 921 N.E.2d 853 (2010); Storey v. Leonas, 904 N.E.2d 229 (2009); Funston v. Sch. Town of Munster, 849 N.E.2d 595 (2006); Appointed class counsel: In Re: Hidden Lake Bridge Collapse July 4, 2009;In Re: Indiana State Fair Disaster (VanDam v. State of Indiana) (2012).

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PHOENIX CONTACT Software GmbH (hereafter, “operator”) is pleased that you are interested in our company and our products and/or services and would like you to feel secure with regards to our protection of your personal data.
The protection of the private sphere is of critical importance–particularly for the future of Internet-based business models and for the development of Internet-based business. Thus, through this Data Protection Declaration, we wish to underscore our commitment to the protection of your private sphere.
We have obligated our employees as well as the service companies that we commission to maintain confidentiality and follow the provisions of the General Data Protection Regulation and other relevant data protection guidelines.
The processing of personal data, e.g. the name, postal address, e-mail address or telephone number of a data subject, shall always be undertaken in accordance with the General Data Protection Regulation and in accordance with the country-specific data protection guidelines that are valid for the operator. By means of this Data Protection Declaration, we would like to inform the public of the type, scope and purpose of the personal data which we collect, use and process. Moreover, the data subjects are supposed to be informed of their rights via this Data Protection Declaration.
The operator, as the controller for the processing, has implemented numerous technical and organizational measures in order to guarantee the most seamless protection possible of the personal data processed via this Internet site. Nonetheless, in principle, Internet-based data transmissions can have security gaps so that absolute protection cannot be guaranteed. For this reason, each data subject shall be at liberty to provide personal data to us by alternative means, e.g. by telephone or post.
We take the protection of your personal data very seriously and strictly follow the provisions of the data protection laws.
The operator’s Data Protection Declaration is based upon the terms which have been used by the European regulatory authorities when establishing the General Data Protection Regulation (GDPR). Our Data Protection Declaration is supposed to be easily readable and understandable both for the public as well as for our guests and business partners. In order to guarantee this, we would like to first discuss in detail the terms used.
Personal data shall be considered to be all information which refers to an identified or identifiable natural person (hereafter, “data subject”). An identifiable person shall be considered to be a natural person who can be identified, directly or indirectly–particularly via categorization by an identifier such as a name, an ID number, locational data, an online name or one or more special characteristics which are the expression of the physical, physiological, genetic, psychological, business, cultural or social identity of this natural person.
The data subject shall be considered to be each identified or identifiable natural person whose personal data are processed by the controller responsible for the processing.
Processing shall be considered to be each process, or each such series of processes, implemented with or without the assistance of automated procedures in conjunction with personal data such as the collection, recording, organization, filing, storage, adaptation or alteration, reading-out, querying, usage, disclosure via transmission, dissemination or any other form of supplying, alignment or linking, restriction, deletion or destruction.
The restriction of the processing shall be considered to be the flagging of stored personal data with the goal of restricting their future processing.
Profiling shall be considered to be each type of automated processing of personal data which encompasses these personal data being used in order to assess certain personal aspects that refer to a natural person–particularly in order to analyze or predict aspects regarding the work performance, financial situation, health, personal preferences, interests, reliability, behavior, place of residence or relocation of this natural person.
Pseudonymization shall be considered to be the processing of personal data in such a manner that the personal data can no longer be categorized to a specific data subject without being provided additional information insofar as this additional information is stored separately and subjected to technical and organizational measures which guarantee that the personal data cannot be categorized to an identified or identifiable natural person.
The controller or the party responsible for the processing shall be considered to be the natural or juridical person, government agency, institution or any other party who, solely or collectively, makes decisions regarding the purposes and methods of processing of personal data. If the purposes and methods of this processing have been prescribed by the law of the European Union or the law of the member countries, then the controller and/or the specific criteria for his or her appointment may be prescribed in accordance with the law of the European Union or the law of the member countries.
The processor shall be considered to be any natural or juridical person, authority, institution or any other party who processes the personal data by mandate from the controller.
The recipient shall be considered to be any natural or juridical person, government agency, institution or any other party to whom personal data are disclosed regardless of whether he or she is a third party or not. Public authorities, which may possibly receive personal data within the parameters of a specific investigation mandate in accordance with the law of the European Union or the law of the member countries, shall nonetheless not be considered to be recipients.
A third party shall be considered to be any natural or juridical person, government agency, institution or any other party with the exception of the data subject, the controller, the contracted data processor and the persons who are authorized to process the personal data who are under the direct responsibility of the controller or of the processor.
Consent shall be each declaration of intention that is voluntarily rendered by the data subject for the specific case in an informed and transparent manner in the form of a declaration or any other transparent confirming action, by means of which the data subject announces that he or she is in agreement with the processing of his or her personal data (e.g. when making contact via a form).
Art. 6 I lit. a GDPR shall serve as the legal basis for the processing procedures for which we shall obtain consent for a specific processing purpose. If the processing of personal data is required for the fulfillment of a contractual agreement whose contractual party is the data subject such as is the case, for example, during processing procedures which are required for a supplying of goods or the rendering of any other service or counter-performance, then the processing shall be based upon Art. 6 I lit. b GDPR. The same shall be valid for such processing procedures which are required for the implementation of pre-contractual measures, e.g. in cases of inquiries regarding our products or services. If our company is subject to a legal obligation whereby processing of personal data shall be required, e.g. in order to fulfill tax obligations, then the processing shall be based upon Art. 6 I lit. c GDPR. In rare cases, the processing of personal data could become required in order to protect vital interests of the data subject or of another natural person. If the processing is required owing to a rightful interest, then the processing shall be based upon Art. 7 I lit. f.
If the data subject would like to assert one or more of the rights described below, he or she may, at any time, contact our Data Protection Officer or any other employee of the party responsible for the processing.
Each data subject shall have the right, which has been granted by the European regulatory authorities, to demand that the controller confirm whether his or her personal data are being processed. If a data subject would like to exercise this right of confirmation, he or she may, at any time, contact our data protection officer or any other employee of the controller.
Furthermore, the data subject shall have a right to information regarding whether personal data have been transmitted to a third country or to an international organization. Insofar as this is the case, the data subject shall also be entitled to receive information regarding the suitable guarantees provided in conjunction with the transmission.
Each data subject shall have the right, which has been granted by the European regulatory authorities, to demand the prompt correction of his incorrect personal data. Moreover, subject to the consideration of the purposes of the processing, the data subject shall also have the right to demand the completion of incomplete personal data–including via a supplemental declaration.
The personal data have been collected for such purposes or in any other manner for which they are no longer required.
The data subject revokes his or her consent which formed the basis for the processing in accordance with Art. 6 (1) lit. a GDPR or Art. 9 (2) lit. a GDPR and there is no other valid legal basis for the processing.
The data subject lodges an objection to the processing in accordance with Art. 21 (1) GDPR and there are no prevailing justified reasons for the processing or the data subject lodges an objection to the processing in accordance with Art. 21 (2) GDPR.
The deletion of the personal data is required for the fulfillment of a legal obligation in accordance with the law of the European Union or the law of the member countries to which the controller is subject.
The personal data have been collected while making reference to the services offered by the information society in accordance with Art. 8 (1) GDPR.
If the personal data have been publicly disclosed by the operator and our company, as the controller, is obliged to delete the personal data in accordance with Art. 17 (1) GDPR, then the operator shall, subject to the consideration of the available technology and the implementation costs, undertake appropriate measures–including of a technical nature–in order to notify other parties responsible for the data processing who process the published personal data that the data subject has demanded that these other responsible parties delete all links to these personal data or copies or replications of these personal data insofar as the processing is not required. In the individual case, the operator’s Data Protection Officer or another employee shall ensure that the required actions in this regard are taken.
The correctness of the personal data has been disputed by the data subject for a period which enables the controller to verify the correctness of the personal data.
The processing is illegal, the data subject rejects the deletion of the personal data and instead demands the restriction of the usage of the personal data.
The controller no longer requires the personal data for the purposes of the processing. However, the data subject requires them for the assertion, exercising or warding-off of legal claims.
The data subject has lodged an objection to the processing in accordance with Art. 21 (1) GDPR and it has not yet been determined whether the justified reasons of the controller outweigh those of the data subject.
Each data subject shall have the right, which has been issued by the European regulatory authorities, to receive his or her personal data, which have been provided by the data subject to a controller, in a structured, commonly used and machine-readable format. Moreover, he or she shall also have the right to transmit these data to another controller–without any objections upon the part of the controller–to whom the personal data have been provided insofar as the processing is based upon the consent granted in accordance with Art. 6 (1) lit. a GDPR or Art. 9 (2) lit. a GDPR or upon a contractual agreement in accordance with Art. 6 (1) lit. b GDPR and the processing is undertaken via an automated procedure insofar as the processing is not required for the fulfillment of a task which lies in the public interest or in the exercising of public authority which has been issued to the controller.
Furthermore, the data subject shall have the right, with regards to the exercising of his or her right to data portability in accordance with Art. 20 (1) GDPR, to request that the personal data be transmitted directly by one controller to another controller insofar as this is technically feasible and insofar as the rights and freedoms of other persons are not restricted by so doing.
Each data subject shall have the right, which has been granted by the European regulatory authorities, to lodge an objection, at any time for reasons related to his or her special situation, to the processing of his or her personal data which is undertaken in accordance with Art. 6 (1) lit. e or f GDPR. This shall also be valid for a profiling in accordance with these provisions.
In the case that an objection is lodged, the operator shall no longer process the personal data unless we can document mandatory reasons worthy of protection for the processing which outweigh the interests, rights and freedoms of the data subject or the processing serves the purpose of the assertion, exercise or defense of legal claims.
If the operator processes personal data in order to conduct direct marketing, then the data subject shall have the right, at any time, to lodge an objection to the processing of the personal data for the purpose of such marketing. This shall also be valid for the profiling insofar as it is conjunction with such direct marketing. If the data subject submits an objection to the operator regarding the processing for the purposes of direct marketing, then the operator shall no longer process the personal data for these purposes.
In addition, the data subject shall have the right, for reasons related to his or her special situation, to lodge an objection to the processing of his or her personal data which is undertaken by the operator for scientific or historical research purposes or for statistical purposes in accordance with Art. 89 (1) GDPR unless such processing is required for the fulfillment of a task which is in the public’s interest.
Furthermore, the data subject shall be at liberty, in conjunction with the usage of services from the information society and notwithstanding directive 2002/58/EC, to exercise his or her right of objection via an automated procedure in which technical specifications are used.
Each data subject shall have the right, which has been granted by the European regulatory authorities, to not be subjected to decision-making which is exclusively based upon automated processing–including profiling –which creates legal ramifications for him or her or substantially restricts him or her in a similar fashion insofar as the decision-making (1) is not required for the conclusion or the fulfillment of a contractual agreement between the data subject and the controller, or (2) owing to legal regulations of the European Union or of the member countries to which the controller is subject, is permissible and these legal regulations contain appropriate measures for the safeguarding of the rights and freedoms as well as the rightful interests of the data subject or (3) is undertaken with the express consent of the data subject.
If the decision-making (1) is required for the conclusion or the fulfillment of a contractual agreement between the data subject and the controller or (2) it is undertaken with the express consent of the data subject, the operator shall undertake appropriate measures in order to safeguard the rights and freedoms as well as the rightful interests of the data subject whereby this includes at least the right to affect the intervention of a person on the part of the controller in order to express his or her own viewpoint and contest the decision.
Each data subject shall have the right, which has been granted by the European regulatory authorities, to–at any time–revoke the consent for the processing of personal data.
Personal data, which you transmit to us via our website or in some other manner, shall be collected, processed and stored for correspondence with you and for the purposes for which you provided us with the data. Moreover, as required, we shall use these data for sending occasional offers to you and in order to inform you of new products or services and other services which may be of interest to you. You may, at any time, lodge an objection to this usage of your data by sending a suitable notification, e.g. by sending an e-mail to: info-pcs@phoenixcontact.com.
With regards to the dissemination of personal data to third parties, we restrict this to that information which is required for rendering our respective services. The respective third-party provider may use these personal data exclusively for rendering the required service or the implementation of the required transaction which is undertaken by our mandate. In this regard, we shall obligate the service providers to follow the data protection laws. We shall never pass on your personal data for external marketing purposes to third parties, sell them or otherwise make them available to third parties.
The operator may be compelled to disclose your data and any related information based upon court or official authority decrees. Likewise, we reserve the right to use your data in order to assert or ward off legal claims. In accordance with applicable law, we also reserve the right to undertake event-based storage and dissemination of personal and other data in order to detect and combat illegal acts, attempts to defraud or any violations of the operator’s Usage Terms and Conditions.
In accordance with the statutory provisions, our Internet site contains data which enables fast electronic contacting as well as direct communication with us which also encompasses a general address for so-called electronic post (e-mail address). Insofar as a data subject contacts the controller via e-mail or via a contact form, the personal data transmitted by the data subject shall be automatically stored. Any such personal data provided upon a voluntary basis by a data subject to the controller shall be stored for the purpose of the processing or the contacting of the. These personal data shall not be disseminated to third parties.
We shall endeavor to transmit and store your personal data in such a manner, by means of technical and organizational measures, in such a manner that they are not accessible to third parties.
However, in general, the Internet is considered to be an insecure medium. In contract to, for example, a telephone line, the transmission of data on the Internet can more easily be intercepted, recorded or even altered by unauthorized third parties.
During unencrypted communication via e-mail, total data security cannot be guaranteed so that we recommend that you send us confidential information via post.
We shall not undertake a commingling of these data with other data sources or undertake statistical evaluations upon the basis of these data.
Some observations regarding IP addresses: IP addresses shall be mandatorily required for sending the webpages and data from our servers to your browser. They are the “addresses” for the information which you request from our web servers. However, in accordance with the prevailing legal opinion, IP addresses are considered to be personal data and we shall thus use them exclusively in the technically-required scope.
Our Internet pages use so-called cookies in multiple sections. Cookies are small text files which are stored on your computer and which your browser stores. They serve to make our website user-friendlier, more effective and more secure.
Required for the creation of the user session.
Contains a 32-digit alphanumerical character string.
Is deleted by closing the browser.
These are 1st-party cookies which are generated by the Matomo statistical software. These "persistent" cookies shall be stored on the computer and shall only then lose their effectiveness when their assigned expiration date lapses. By using these cookies, we can recognize whether a visitor was already on our website and what types of content are of interest to this person.
Contains a 51-digit alphanumerical character string.
Most of the cookies that we use are so-called “session cookies” (cookie “PHPSESSID”) for your user session. They shall be automatically deleted after your visit ends (after the browser is closed). All cookies on our webpages shall contain purely technical information in pseudonymized or anonymized form. They shall contain no personal data.
If you would like to prevent the storage of cookies, you must select “accept no cookies” in your browser’s settings. If no cookies are accepted by the browser, however, the functional scope of our Internet site may be very greatly restricted. Some functions shall then no longer be available.
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The controller shall process and store the personal data of the data subject only for the period which is required for the attainment of the storage purpose or insofar as this has been prescribed by the European regulatory authorities or any other lawmakers in laws or regulations to which the controller is subject.
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Jeffrey Light argued the cause for appellants. With him on the briefs were William Claiborne and Lynn E. Cunningham.
Jason Lederstein, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellee. With him on the brief were Karl A. Racine, Attorney General, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General.
Before: Kavanaugh, Circuit Judge, and Sentelle and Randolph, Senior Circuit Judges.
This case concerns the District of Columbia's post-and-forfeit statute. Under that law, certain individuals arrested for misdemeanor crimes receive an opportunity to resolve their criminal charges immediately by paying a relatively small sum of money, typically $25 to $50. An arrestee who chooses to use the post-and-forfeit procedure is released without the need to attend any criminal proceedings and without any admission of fault or record of conviction. An arrestee who declines to use the post-and-forfeit procedure is entitled to all criminal due process protections, including an initial hearing before a judicial officer and a trial on the merits.
In this case, a group of individuals who resolved their misdemeanor charges using the post-and-forfeit procedure later filed suit, challenging the procedure and the statute authorizing it as unconstitutional. They argue that the post-and-forfeit procedure deprives arrestees of their property in violation of the Due Process Clause of the Fifth Amendment. They also contend that the statute authorizing the post-and-forfeit procedure is void for vagueness under the Due Process Clause. The District Court dismissed those claims, concluding that the post-and-forfeit statute is consistent with the Due Process Clause. We affirm.
In 2004, the Council of the District of Columbia adopted the First Amendment Rights and Police Standards Act. The Act took effect in 2005 following a 30-day period of congressional review. See 52 D.C. Reg. 5417 (June 10, 2005). Among other things, the Act codified D.C.'s longstanding "post-and-forfeit" procedure. See D.C. Code § 5-335.01.That procedure has been used to resolve low-level criminal charges in the District for more than 50 years. Under the post-and-forfeit procedure, police officers may offer a misdemeanor arrestee the opportunity to "obtain a full and final resolution of the criminal charge" by posting and simultaneously forfeiting an amount of money associated with the charge. Id. § 5-335.01(a)(3). In other words, the post-and-forfeit procedure allows an arrestee to pay a sum of money to resolve his or her criminal charge without having to proceed through the traditional criminal process. The post-and-forfeit amounts are pre-determined by the Superior Court of the District of Columbia and are available online. Those amounts typically range from $25 to $50, but may in some cases extend up to $500 or $1, 000 for certain misdemeanor offenses. See Superior Court Bond and Collateral List, Non-Traffic Offenses (June 11, 2014).
An arrestee who chooses to use the post-and-forfeit procedure must pay the amount associated with his or her misdemeanor charge. Following payment, the arrestee's charge is fully resolved and the arrestee need not attend any further criminal proceedings. The statute makes clear that an arrestee's choice to use the post-and-forfeit procedure "is not a conviction of a crime and shall not be equated to a criminal conviction." D.C. Code § 5-335.01(b). The statute similarly specifies that resolution of a charge using the post-and-forfeit procedure "may not be relied upon by any District of Columbia court or agency in a subsequent criminal, civil, or administrative proceeding or administrative action to impose any sanction, penalty, enhanced sentence, or civil disability." Id.
By statute, an arrestee who receives a post-and-forfeit offer must also be provided with a form that explains the post-and-forfeit process. The form must make clear, among other things, that the arrestee has "the right to choose" whether to "[a]ccept the post-and-forfeit offer and terminate the criminal case" or, alternatively, "[p]roceed with the criminal case and a potential adjudication on the merits of the criminal charge." Id. § 5-335.01(e)(2); see also id. § 5-335.01(e)(1), (3)-(7). In order to accept a post-and-forfeit offer, an arrestee must indicate his or her understanding and approval of the process by signing the required form. Id. § 5-335.01(g).

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