Nuclear Verdicts®
According to a recent study by the U.S. Chamber of Commerce, from 2013 to 2022, Georgia had the fourth most nuclear verdicts® (awards of $10 million or more) in personal injury litigation on a per capita basis with 64 verdicts. $6 billion was awarded to plaintiffs during this period with a median award of $24 million. DeKalb, Fulton, and Gwinnett counties recorded the largest share of these verdicts.
Trials continue to result in nuclear verdicts® in Georgia courts. For example, a Gwinnett County $16.2 million nuclear verdict® resulted when a jury found Amazon 85% responsible after a delivery partners’ driver struck an unsupervised child who crossed the street on an electric bike. It was the first case of its kind in Georgia in that it held Amazon liable as an employer for a driver employed by another company on the theory that Amazon had not sufficiently trained the driver. The jury apportioned just 10% of the liability to the driver and 5% to the non-party neighbor who had agreed to watch the eight-year-old.
In October, a DeKalb County State Court jury returned a $50 million verdict in the retrial of a dental malpractice case, quintupling the previous verdict which was already the highest verdict in Georgia history for a dental malpractice case. The case arose from a root canal that, according to the plaintiff’s complaint, “ended in lingering pain in her left cheek, chin and lip.” The previous $10 million verdict was vacated after a judge found that the damages were “more punitive than appropriate” and “contrary to the evidence.” In the 2024 retrial, after less than two hours of deliberations and despite arguments that the defendant dentist’s actions were in line with medical standards, the jury returned the record-setting $50 million verdict.
Other recent nuclear verdicts® in Georgia include:
- March 2024: $25.7 million in a wrongful death case in Hall County
- March 2024: $25.5 million in a wrongful death case in Fulton County
- April 2024: $28 million in an auto-accident case in Gwinnett County
- August 2024: $47 million in a medical liability case in Union County
The threat of a nuclear verdict® in Georgia courts has led businesses and insurers to enter massive settlements rather than risk trial. In January of 2024, for example, a Gwinnett County case involving a driver who collided with a turning tractor-trailer resulted in a $32.5 million settlement in which the defendants denied any wrongdoing. The pre-trial settlement is “the largest of its kind reached before trial in a single- victim wrongful death case in Georgia.”
Drivers Of Nuclear Verdicts®
There are three main drivers of nuclear verdicts® in Georgia: anchoring tactics, the availability of phantom damages, and plaintiffs’ lawyers use of the Reptile Theory.
ANCHORING
Anchoring is a tactic that lawyers use to plant an extremely high amount into jurors’ minds to set a base dollar amount for a pain and suffering award. While some courts prevent or limit this tactic, Georgia is one of a few states with a specific statute allowing the practice. Additionally, Georgia does not limit the amount of pain and suffering damages a plaintiff can receive, which makes the allowance of anchoring all the more concerning.
In January 2024, the Georgia Court of Appeals solidified the state’s open-arm approach to anchoring and issued a ruling that will further incentivize improper tactics by plaintiffs’ lawyers. In White v. McGoirk, the trial court permitted several inflammatory statements by the plaintiff’s lawyer including “your verdict should be for a lot of money because it’s a lot of damage, the past, now, and in the future. I said 65 [mil- lion]. They mentioned $5 million. I don’t know where they got that. I mentioned $65 million.” The attorney also pointed out that there are people who “make more than that in a year,” noting that Los Angeles Angels star centerfielder “Mike Trout makes $37 million a year.” He also noted that “[a] few weeks ago, we learned that a golfer, a guy named Dustin Johnson — they call him DJ — making $125 million to go play golf.” The lawyer also urged jurors to use their “voice” and “power” to make the doctor and medical practice they had sued “take responsibility for ruining someone’s life.” Given such figures, the jury may have viewed its award of $10 million in compensatory damages to the plaintiff plus $100,000 to the plaintiff’s husband for loss of consortium as relatively modest.
The Georgia Court of Appeals upheld the verdict, finding the statements not so extreme or improper to warrant reversal. The Court also found urging the plaintiffs’ lawyer’s plea that the jury to make the defendants “take responsibility” did not cross the line into urging the jury to punish the defendants when there was no evidence of misconduct that would justify a punitive damage award.
PHANTOM DAMAGES
Georgia courts routinely award phantom damages, providing a windfall to plaintiffs and their attorneys. “Phantom damages” occur when courts calculate a plaintiff’s medical expenses using a healthcare provider’s list price for medical services (chargemaster rate), which may appear on an invoice, instead of the amount the patient, or the patient’s insurer, Medicare, Medicaid, or workers’ compensation actually paid, and the healthcare provided accepted, as full payment for the treatment. For example, a hospital may bill $20,000 for an emergency room visit, while the amount the hospital actually receives may be $8,000. The $12,000 difference is not owed or ever paid for the treatment – that is the amount of phantom damages.
These phantom damages occur because Georgia courts misinterpret the collateral source rule, which allows a plaintiff to collect damages from a defendant that has engaged in tortious conduct even if the plaintiff’s expenses will be covered by insurance. Georgia courts have inappropriately expanded this doc- trine to find that plaintiffs are entitled to recover medical expenses based on full chargemaster rates that few, if any, patients or insurers actually pay. Georgia courts even prevent juries from learning amounts a healthcare provider accepted as full payment, telling them only the list prices of medical services. It is the amount actually paid and accepted, however, that indicates the reasonable value of medical services, not rates that exist only in medical billing systems.
Consequently, litigation in Georgia results in higher verdicts and settlements based on exaggerated (phantom) amounts, which produce larger contingency fees for trial lawyers. Awarding such inflated amounts does not serve the purpose of compensatory damages, which is to make an injured party whole. Instead, the practice of awarding damages based on rates that are often three or four times or more than the actual value of medical care unnecessarily increases the cost of the liability system, which results in homeowners, drivers, and businesses paying higher insurance costs and consumers paying more for goods and services.
REPTILE THEORY
Georgia plaintiffs’ lawyers also resort to using the “reptile theory,” a tactic that manipulates jurors into deciding cases based on raw emotion and perceived threats rather than evidence presented at trial. Georgia judges routinely allow plaintiffs’ lawyers to introduce evidence of a company’s general policies, practices, or alleged lack of compliance with government regulations, even if only remotely related to the plaintiff’s case, to portray the business as a threat to public safety.
This tactic was on full display in a case in which a plaintiff rear ended a tractor trailer after the truck driver hit the brakes to avoid colliding with a van that passed through his lane. At trial, the defense presented evidence (video and vehicle data) showing that the truck driver acted appropriately under the circumstances. In closing arguments, the defense argued that the driver “did not have time to safely evaluate other potential alternative maneuvers as the van passed through his lane” and that the plaintiff collided with the truck because he followed the vehicle too closely. Plaintiff’s counsel, however, focused on the truck driver’s failure to follow “a host of trucking industry standards, leading to the crash.” The jury reached a
$16.6 million verdict, finding the trucking company 60% responsible and the plaintiff 40% responsible for the crash. After trial, the plaintiff’s attorney pointed to the effectiveness of the reptile theory, noting that “we built our strategy around the violation of a few trucking industry standards” to overcome the challenge that it was his client that rear-ended the truck.
Update on Record $1.7 Billion Verdict
A case chronicled by recent Judicial Hellholes® reports involves a $1.7 billion punitive damage verdict against Ford. In August 2022, a Gwinnett County jury returned this massive verdict in a rollover accident case in which the plaintiff alleged that the automaker’s “Super Duty” models had defectively weak roofs. This astronomical verdict helped propel Georgia atop the 2022-2023 Judicial Hellholes® list. The case went to the jury after the trial court stripped Ford of its defenses, as a “death penalty” sanction for introducing expert testimony in a previous trial that the court viewed as beyond the scope of what it had permitted.
The case was riddled with ethically questionable events and biased court orders. Ford was prohibited from informing the jury that the plaintiffs were improperly wearing their seatbelts during the crash or about scientific studies finding that the roof’s strength did not cause the plaintiffs’ deaths. The award practically tripled the prior Georgia record. Nevertheless, Judge Joseph C. Iannazone refused to reduce the award or grant a new trial, as Ford requested.
In an encouraging decision in November, the Georgia Court of Appeals threw out the massive verdict, finding the trial court should not have sanctioned Ford as it did and should have allowed the automaker to introduced evidence of seatbelt usage and potentially the rollover studies. The Court ordered a new trial and advised the lower court to revisit the admissibility of several pieces of evidence.
While this is a significant development, the plaintiffs’ lawyers have indicated their intent to appeal the ruling to the Georgia Supreme Court.
The Future of the Seatbelt Gag Rule
A key part of the Georgia Court of Appeal’s Hill ruling was on the state’s seatbelt gag rule. The Court overturned the lower court, finding that it erred in prohibiting the introduction of evidence showing that the plaintiffs were not properly wearing their seat belts at the time of the crash. Current Georgia law states that “[t]he failure of an occupant of a motor vehicle to wear a seat safety belt in any seat of a motor vehicle which has a seat safety belt or belts shall not be considered evidence of negligence or causation, shall not otherwise be considered by the finder of fact on any question of liability of any person, corporation, or insurer, shall not be any basis for cancellation of coverage or increase in insurance rates, and shall not be evidence used to diminish any recovery for damages arising out of the ownership, maintenance, occupancy, or operation of a motor vehicle.”
Interpreting the plain language of the statute and previous precedent, the Court of Appeals reasoned that evidence of complete failure to wear a seatbelt – i.e. “it is not ‘on the person’” is not permissible; how- ever, the statute does not exclude evidence of it being worn improperly because the seatbelt is still “on the person.” In this instance, the plaintiffs improperly tucked the shoulder straps under their arms, so they were still wearing the belt.
Judge J. Wade Padgett wrote a dissent in which he agreed with the majority opinion except for its decision regarding the admissibility of the seatbelt evidence. He disagreed with the majority’s interpretation of legislative intent and its reading of the plain language of the statute, specifically the word “wear.” This disagreement amongst members of the court signals the need for a legislative fix to address the uncertainty around the statute.
Excessive Sanctions on Defendants
Honda experienced similar disproportionate treatment in a trial before Clayton County State Court Chief Judge Michael T. Garrett. In September 2024, Chief Judge Garrett issued debilitating sanctions against Honda for an inadvertent mistake in a PowerPoint presentation used during opening statements and statements made during voir dire. In response, the Chief Judge struck Honda’s answers and ability to present affirmative defenses, thereby preventing the company from defending itself, effectively handing the plain- tiffs a victory.
On the other hand, when plaintiffs’ attorneys make similar mistakes or improper arguments, judges often give the jury a curative instruction, find such errors not sufficiently prejudicial to require a new trial, and do not go to the extreme of dismissing a complaint.