GA Tort Reform Legislation: SB 68

SB 68 contains multiple initiatives.  McGuireWoods Consulting prepared an excellent writeup of the bill's contents, which have changed somewhat since Governor Kemp released a summary in late January.  My reactions follow.

Damages. The proposed legislation limits recoverable damages in two significant ways: first, it prohibits attorneys from arguing for or eliciting testimony referencing any specific amount for noneconomic damages; secondly, it limits medicals to only the damages paid out to a provider, not billed by that provider.

I oppose both changes.  Deciding to ask and asking for a specific amount for pain and suffering is advocacy, and both sides can engage in it over the proper amount to be awarded.  Let them do it.  Although I appreciate that the bill does not fully abrogate the collateral source rule, it still undermines it.  The collateral source rule ensures that the plaintiff receives payment for the medical bills caused by the defendant from the defendant.  Why should the defendant receive the benefit of a writeoff, usually offered because of plaintiff's insurance?   

Civil Procedure. Under the bill, if a party files a motion to dismiss before or at the time of filing an answer, discovery is automatically stayed until the court rules on the motion. If the court has not ruled within 90 days, a party may request the court to terminate or modify the discovery stay for good cause. This effectively delays and possibly precludes unnecessary discovery costs in frivolous matters that are highly deserving of early dismissal.

This change seems reasonable to me.  Why should defendant have to answer discovery for a claim that is not legally sufficient?

Voluntary Dismissal. The bill alters the timeline for plaintiffs to voluntarily dismiss a case without prejudice. If enacted, plaintiffs must file a written notice of dismissal before the opposing party serves an answer or a motion for summary judgment. This marks a significant departure from current law, which allows dismissal at any time before the first witness is sworn in.

This appears to change one extreme deadline for another; perhaps a middle point would be fairer to both sides.

Litigation Costs. The proposed legislation prohibits parties from recovering the same attorney’s fees, court costs, or litigation expenses more than once.

This change certainly seems reasonable, but I would want to know more about how Georgia law operates now.

Seat Belt Admissibility. In a significant shift from current law, Senate Bill 68 permits judges and juries to consider seat belt usage as evidence at trial; the evidence may be admitted for purposes of negligence, comparative negligence, causation, assumption of risk, or fault apportionment. However, the bill explicitly states that insurance companies cannot use a driver’s failure to wear a seat belt as grounds for canceling coverage or increasing policy rates.

This change seems reasonable to me.  Don Gifford and I have written about this issue before.

Premises Liability. The bill refines the liability standards for landowners and occupiers regarding negligent security. Owners or occupiers may be held liable for injuries to invitees for a third party’s wrongful conduct in one of two ways – first, they may be liable if they had received a particularized warning; alternatively, they may be held liable if the wrongful conduct was reasonably foreseeable and the wrongful conduct exploited a known physical condition of the premises. For licensees, liability applies if the owner or occupier had specific warning of imminent wrongful conduct, took no action to mitigate the risk, and this failure led to the injury where, again, the wrongful conduct that caused the injury exploited a known physical condition of the property. However, landowners and occupiers are not liable for injuries sustained by trespassers, individuals off the premises, or those harmed by tenants or their guests when eviction proceedings have begun. The bill also clarifies that property owners are not required to provide extraordinary security measures or assume the responsibilities of law enforcement, though courts will consider existing security measures at the time of an incident.

I don't have a strong opinion about this change, but I would want to know more about how Georgia law operates now.

Trial Bifurcation. The trial process will be divided into two phases. In the first phase, the trier of fact determines the defendant’s liability and assigns a percentage of fault to each defendant. If liability is established, the trial moves to the second phase, where compensatory damages are calculated and awarded to the plaintiff.

I strongly oppose this change.  The only time tort law bifurcates trials is for punitive damages.  Because certain evidence, such as the defendant's wealth, is admissible in a punitive damages case, but not for basic liability, we bifurcate trials to protect defendants from a jury hearing evidence that is not relevant.  The proposal here actually prohibits a jury from hearing evidence that is not only relevant, but is required in order to establish liability in negligence cases.  Moreover, bifurcating trials can further delay tort cases that are already too slow.