Attorney David Bain, who represents the female plaintiffs, reminded the Supreme Court's justices on Tuesday that his clients' personal information was stolen by a criminal, not compromised by some inadvertent mistake. "And it will be exposed for the rest of their lives," Bain said.
The response from Athens Orthopedic, Bain added, "has been disappointing to say the least." The clinic maintains that Georgia law does not allow the women to receive financial compensation, "and that is what you're going to get," he said.
Attorney John Dalbey, who represents the clinic, argued that an injury in the legal sense is physical harm, harm to property or a financial loss. The prophylactic steps taken by the women to prevent anything bad from happening in the future is not the same, he said.
"Yes, it is perhaps a harsh result," Dalbey acknowledged. "It is something for the Legislature to address."
But a number of justices did not appear to be satisfied with Dalbey's position.
Justice Sarah Warren said it seemed logical that the Dark Overlord hacked the patients' information with nefarious intent. Justice Nels Peterson agreed and said, with that in mind, don't the clinic's patients have a duty to mitigate what could happen next?
What if you're mugged by some criminal who takes your keys? Justice David Nahmias asked. Wouldn't you have to change your locks to make sure that person doesn't break into your home or office?
"It would be prudent to do so," Dalbey responded. "But it's not required."
That answer didn't satisfy Nahmias.
So we all have to wait until hundreds of thousands of people are victims of identity theft? Nahmias asked. "Until that day your life is ruined you get nothing? That is a very odd view of the law."
The court is expected to issue its ruling in the coming months.
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