Georgia's Governor Brian Kemp made no secret that he would push for ambitious tort reform as part of this year's state legislative agenda. Two Senate bills successfully made it through the session and await the Governor's signature. The bills contain measures, which proponents and sponsors suggested were necessary to combat nuclear verdicts, reduce the costs of litigation, and control rising insurance premiums.
A summary of key highlights of the bills follow, but many questions remain as to how the changes will be enacted and future legal challenges are almost certain.
Senate Bill 68's Key Components
Damages
Defense trial lawyers have long-lamented plaintiffs' attorneys' practice of "anchoring," where hypothetical dollar amounts (often referring to movie star or sports athletes' reported multi-million dollar contracts) are offered to a jury to represent possible noneconomic damage awards for pain and suffering. SB 68 prevents anchoring arguments until closing arguments are presented. Furthermore, they are restricted to being "rationally related" to the facts of the case. While this change certainly does not prohibit large noneconomic damages award, the bill's supporters hope that it will make it harder to convince juries to award artificially high amounts not tied to the facts of the case.
Other measures intended to curb damages include a provision limiting recovery of medical or health care expenses to amounts actually paid as opposed to billed, and to allow the use of insurance contracts and workers' compensation programs to demonstrate what are medically necessary or reasonable care costs.
The bill also attempts to limit potential double recovery of attorneys' fees or other legal expenses.
Bifurcation
Senate Bill 68 allows a party to request that trial be split between a liability/allocation of fault phase and damages phase. By splitting trials like this, supporters of the bill hope that juries will not be swayed by sympathetic damages testimony prior to finding fault.
Parties can oppose bifurcation where the amount in controversy is less than $150,000, or where the case is about certain sexual offenses where the plaintiff would suffer distress by being forced to testify twice.
Procedural Changes
Currently, Georgia law allows voluntary dismissal at any point prior to the swearing in of the first witness. Under the new bill, voluntary dismissal is restricted to 60 days after the service of an answer or motion for summary judgment, unless all parties consent, as is standard in federal court. The goal of the change is to prevent strategic dismissals after defendants have already incurred large costs.
Another significant change adopts federal court practice when motions to dismiss are filed. Now, defendants who respond to a complaint with a motion to dismiss will no longer need to file an answer as is currently required under state law. The new bill also stays discovery until after the motion to dismiss is ruled upon, rather than the limited 90 day stay under current law.
Other Notable Changes
The bill contains numerous provisions relative to negligent security claims, including creating a specific cause of action, exclusivity of damages, and apportionment of liability for such claims.
The bill also reverses the long-standing prohibition regarding evidence relating to seat belt use.
Senate Bill 69's Key Provisions
Senate Bill 69 regulates third parties funding litigation. Under this legislation, litigation financiers will have to register with Georgia Department of Banking and Finance, are prohibited from making any decisions regarding the course of the civil action, and can now be held jointly or severally liable for attorney's fees if the lawsuit fails.
Senate Bill 69 also bans any foreign corporations, governments, or their agents from funding litigation.
Both bills contain other nuances and details, such as effective dates and application to pending or future matters, which should be reviewed relative to specific matters.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
