Georgia Tort Reform Bill (SB 68) Does More Harm Than Good

Why Senate Bill 68 is Harmful to the People of Georgia

I am not one who cries wolf when laws change, but Georgia Governor Brian Kemp is supporting a bill that will drastically change the landscape of civil cases. The bill will adversely impact every individual or family who seeks fair compensation for their injuries.

Here are some of the key changes the bill seeks to make to civil trials in Georgia, and why each of the changes would be so harmful to plaintiffs.

Placing Limits on Noneconomic Damages in Civil Cases

Senate Bill 68 places new restrictions on plaintiff attorneys, prohibiting them from arguing specific monetary values for noneconomic damages before a jury. Noneconomic damages refer to a diverse array of damages that aren’t inherently measured by set monetary payouts, including:

• Pain
• Suffering
• Emotional distress
• Loss of companionship
• Loss of enjoyment of life

Current law allows lawyers to argue specific monetary values on these noneconomic damages, a practice sometimes referred to as “anchoring.” Attorneys can use both per past precedent and the unique circumstances surrounding an individual plaintiff’s damages to determine just financial compensation.

Senate Bill 68 would make it illegal for an attorney to argue specific values for noneconomic damages, instead trusting the jury to determine value based entirely on their “enlightened conscience.”

Lawyers violating this rule under the new bill would face remedial action, which may include striking testimonies or excusing jurors.

Why Limits on Noneconomic Damages in Georgia Senate Bill 68 Are Bad for Plaintiffs

The restrictions on noneconomic damages proposed by Senate Bill 68 would lead to juror confusion, ultimately resulting in less compensation for plaintiffs. Noneconomic damages would be the only aspect of a jury’s decision-making in all of Georgia law that counsel cannot argue.

Juries rarely have the context to understand what monetary value matches a plaintiff’s noneconomic damages; the odds of a jury’s “enlightened conscience” matching the exact value due to a plaintiff are exceedingly low. In turn, jurors will deliver increasingly disparate results from case to case, leading to major unpredictability for plaintiffs.

To make matters worse, such restrictions on negotiations for noneconomic damages are unprecedented. Georgia would be the first and only state to implement such a restrictive law.

Changes to Civil Procedure & Discovery Rules

Georgia Senate Bill 68 would bring with it several changes to civil procedure and discovery rules in jury trials — including changes to stay of discovery, and logistics regarding voluntary dismissals. Under the bill:

• Defendants will still be required to serve an answer within 30 days of being served with a summons and complaint.
• Discovery will be automatically paused for 90 days as soon as a defendant files a motion to dismiss — opposed to current law mandating indefinite discovery until a court orders a stay with demonstration of good cause.
• Limited discovery will be allowed only when necessary to respond to certain defenses or identify additional parties.

Voluntary dismissal rules would also change under the new low. These include stipulations that:

• Plaintiffs can no longer voluntarily dismiss a case after the defendant has filed an answer or a motion for summary judgment
• If a plaintiff has dismissed the case twice, the second dismissal counts as a final adjudication (with prejudice).

Overall, these changes limit a plaintiff’s ability to strategically dismiss and refile a case.

Further Reading: What is Legal Discovery in Civil Litigation Proceedings?

Why Changes to Civil Procedure & Discovery Rules in Senate Bill 68 Are Bad for Georgia Plaintiffs

These changes would holistically limit a plaintiff’s ability to gather evidence and use new evidence to get them the payout they deserve.

Automatic 90-day stays on discovery can prolong litigation, hindering a plaintiffs’ ability to gather crucial evidence; these restrictions are especially problematic in cases where evidence may be lost or witnesses unavailable.

In turn, defendants can challenge a case before a plaintiff has time to access the discovery materials needed to win a case. Essentially, this bill would allow for defendants to legally obstruct litigation. Not only will this capability hurt a plaintiff’s case, but it will also stifle the court system at large.

Restrictions on evidence-gathering are intrinsically connected to the damage caused by restrictions on voluntary dismissal. Unfavorable rulings, settlement negotiations, and discoveries of new evidence all have significantly less power with the limits on refiling.

With even less opportunities to gather evidence in the first place, these changes put plaintiffs at a severe disadvantage.

Limits on Attorney’s Fees & Litigation Expenses

Senate Bill 68 also imposes key limitations on recovery of attorney’s fees and litigation expenses.

Current law indicates that parties may utilize multiple statutes to recover:

• Attorney’s Fees
• Court Costs
• Litigation Expenses

This leads to potential for duplicate recovery of fees for plaintiffs should a case extend beyond one statute.

The new law would prevent the rediscovery of duplicate attorney fees, unless the statues specifically authorize the recovery of duplicate amounts.

Impact on Contingency Fee Agreements

Contingency fee agreements also lose power under the new law.

Currently, contingent fee agreements between plaintiffs and their attorney can occasionally be introduced as evidence to justify the reasonableness of claimed attorneys fees. The bill proposes that contingency fee agreements between plaintiffs and attorneys cannot be used as proof of reasonable attorney fees in court.

Why Limits on Attorney’s Fees & Litigation Expenses in Senate Bill 68 Are Bad for Plaintiffs

Simply put, these stipulations limit the ability of plaintiffs to maximize their compensation within jury cases.

Juries frequently award different elements of attorney’s fees and expenses of litigation; the aggrieved party should have the final say in which options provide the maximum reimbursement to them as a victim, as opposed to that decision being out of their hands.

Further Reading: Understanding Legal Fees in Civil Injury Cases

Newfound Admissibility of Seatbelt Evidence

Disproving negligence is a common tactic used by defendants in civil litigation trials.

One area of negligence where plaintiffs are currently protected is whether or not they were wearing seatbelts; the law states failure to wear a seatbelt could not be considered negligence, or even be used as evidence in a case.

Senate Bill 68 would change that, allowing defendants to consider failure to wear a seatbelt as comparative negligence, assumption of risk, and even apportionment of fault. Seatbelt non-use cannot, however, be used to cancel an insurance policy or raise insurance rates.

Why the Admissibility of Seatbelt Evidence Allowed for Within Senate Bill 68 is Bad for Plaintiffs

Admissibility of seatbelt evidence directly benefits defendants and insurance companies by giving them another piece of evidence to use against plaintiffs and reduce payouts.

These new pieces of evidence exclusively benefit defendants; plaintiffs only stand to recover the same amount of money in their case if they were wearing a seatbelt, while risking significantly less if they weren’t.

The law fails to mention essential nuances of seatbelt use within these cases — shifting unnecessary blame onto victims at every opportunity.

Take children in cars as an example. Children have no say in how they’re harnessed in a vehicle; under this new law, a drunk driver who killed a child passenger could win a civil trial because said child was unbuckled or improperly harnessed.

This example is just one of many potential hypotheticals. Altogether, seatbelt usage only serves as one possible source of causation for some, but not all, damages related to these accidents; the new law would allow improper seatbelt usage to take 100% of the blame.

New Framework for Negligent Security Liability

In Georgia, negligent security falls under premises liability law — which holds property owners accountable for failing to implement reasonable security measures to protect lawful visitors from foreseeable criminal acts by third parties. Currently, negligent security claims in Georgia are based on general premises liability principles.

Senate Bill 68 seeks to formally define and structure negligent security claims within Georgia law, standardizing how these cases are approached.

Under the new law, property owners can be held liable for injuries caused by a third party if the plaintiff proves that:

• The criminal act was reasonably foreseeable, based on:
  • A specific warning of an imminent crime.
  • Prior similar crimes occurring nearby.
  • The perpetrator’s known history of similar criminal acts
• The criminal act resulted from a specific physical condition of the property that increased the risk of crime.
• The property owner failed to take reasonable steps to fix the problem.
• The property owner’s failure approximately caused the plaintiff’s injury.

Further Reading: Understanding Proximate Cause in Negligence & Premises Liability

Meanwhile, the new law states that a property owner cannot be sued for negligent security if:

• The injured person was a trespasser.
• The crime happened off the premises.
• The criminal was a tenant or tenant’s guest, and eviction proceedings were already started.
• The injured person was committing a crime at the time (except for human trafficking victims).
• The property was a single-family residence.
• The owner reported the criminal threat to law enforcement.

Regarding fault, juries must apportion fault between:

• The property owner.
• The actual criminal who committed the attack.
• Any other responsible parties.

If a jury fails to assign reasonable fault to the criminal, the judge must order a retrial.

Finally, security companies hired by property owners can only be sued under the same limited rules as property owners, and their liability cannot exceed the owner’s liability.

Further Reading: Understanding Georgia’s Modified Comparative Fault Rules in Civil Litigation

Why The New Framework for Negligent Security Liability in Senate Bill 68 is Bad for Plaintiffs

All changes suggested to negligent security liability in the Georgia Tort Reform Bill serve to protect the irresponsible property owners and slum lords that profit over unsafe residences.

Responsible property owners are already protected by Georgia law; in short, negligent security laws as they currently stand work, and prevent liability for property-owners as long as said owners take reasonable measures to protect people legitimately on their property.

Senate Bill 68 seeks to solve a problem that doesn’t exist, while virtually eliminating consumer rights in the process.

Further Reading: Common Examples of Negligent Security

New Limits on Special Damages for Medical Expenses

The Georgia Tort Reform Bill imposes substantial new limits on recoverable damage for medical expenses. The bill caps recoverable medical expenses to the actual amount paid or the amount necessary to satisfy outstanding bills.

Meanwhile, if the plaintiff has health insurance, the recoverable amount is limited to what the insurer would pay, alongside the out-of-pocket amount owed by the plaintiff. Any future medical expenses must be proven as medically necessary.

Why The New Limits for Special Damages in Senate Bill 68 Are Bad for Plaintiffs

The new limits for special damages in Senate Bill 68 punishes injured victims with health insurance by shifting the benefit of insurance premiums towards the defendant rather than the plaintiff.

This portion of the bill attempts to overturn the collateral source rule, a 150-year-old legal stipulation meaning the person who caused the harm does not get the benefit of insurance owned by the injured person. Without this law, bad actors gain the benefit of private insurance premiums without the bad actors contributing to the cost of health insurance.

Take, for example, a person who injures someone else in a car accident. If the victim of the car accident has excellent health insurance, their plan may provide substantial discounts to care and lower premiums — all because they earned or pay for a more comprehensive plan.

Under the changes proposed by Senate Bill 68, the perpetuator of the injury would only have to pay for damages after those discounts.

Effectively, this law punishes responsible citizens of Georgia for paying for a comprehensive health insurance plan — leading to disproportionate rulings for:

• Military Service Members
• Veterans
• Retirees
• Working Georgians

Leading to windfalls for the uninsured plaintiffs and those who cause accidents.

Introduction of On-Demand Bifurcated Trials for Damages

Georgia’s Tort Reform Bill SB 68 also opens up further avenues for bifurcated trials — trials that are split into two separate phases — within jury cases. While trial courts already have the right to bifurcate and trifurcate (three phases) trials if there is reason to do so, the new law proposes that any party can request a two-phase trial at any time.

The phases follow as such:

• Phase 1 – Jury decides liability and apportions fault.
• Phase 2 – If the defendant is liable, the jury determines damages.
• (Possible) Phase 3 – Added if punitive damages or attorney fees are claimed.

Why Bifurcated Trials Allowed For in Senate Bill 68 Are Bad for Plaintiffs

These tweaks to the how and when parties can request bifurcated trials complicates and prolongs trials, ultimately weakening the authority of judges and the will of the plaintiffs.

Trial judges are trained to manage cases and make decisions on how to effectively run their courtroom; mandating bifurcated and trifurcated trials upon the request of a single party weakens a judge’s ability to control their courtroom.

Victims of heinous crimes may also have to report two or three times for a single case just because the defendant wants to prolong trial outcomes.

Action You Can Take Against Georgia’s Tort Reform Bill SB 68

If you agree that your right to seek fair compensation will be impacted and you want your voice to be heard, simply call or email your State Representative and or your State Senator and simply say that you are against SB 68.

Finally, the bill has not become law yet, but “tort reform” is Governor Kemp’s number one priority this year.