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Georgia’s civil justice system is plagued by skyrocketing nuclear verdicts®, inflated awards for medical costs, expansive premises liability, and laws that set up defendants to fail creating endless liability.

Georgia also continues to embrace an archaic seatbelt gag rule that precludes a jury from hearing evidence about whether an occupant wore a seatbelt at the time of a crash. The state’s fall from the top spot this year is due in part to the sheer volume of abuses occurring in other jurisdictions, but also due to a sense of optimism that 2025 may bring some much-needed legislative relief.

This renewed hope for reform is fueled by Governor Brian Kemp’s focus on addressing lawsuit abuse. He has positioned this issue as a top priority for his administration in 2025. To that end, he has held multiple roundtables with affected businesses and industry leaders to discuss policy solutions and legislative fixes. This comes following a year when the Georgia General Assembly enacted legislation to address rising insurance costs. In November, the Insurance Commission released an extensive report highlighting the need for civil justice reform to address the growing insurance rates and specific litigation abuses laid out in this year’s Judicial Hellholes® report. The ATRF is encouraged by the prospect of reform in the coming year and will keep a close eye on the Peach State moving forward.

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.

Premises Liability

Premises liability cases have generated some of the most eye- popping nuclear verdicts® in Georgia, particularly lawsuits blaming businesses for the criminal conduct of others on or near their property.

In 2023, the Georgia Supreme Court issued a decision that ATRF warned would only lead to further deterioration of the state’s civil justice system and drastically expand liability for landowners. In CVS Pharmacy LLC v. Carmichael, the Court embraced an overly broad test for “foreseeability,” significantly expanding the scope of liability for property owners. In that instance, the plaintiff sued CVS after he was shot in the store’s parking lot, where he had arranged to meet an acquaintance to purchase an electronic device. After the transaction, an unknown assailant entered the plaintiff’s car, threatened to kill him, and ordered him to hand over his money. The plaintiff tried and failed to shoot the assailant with his own pistol, at which point the assailant shot the plaintiff several times and fled. The plaintiff survived but sustained severe injuries. The lower court awarded $45 million to the plaintiff, assigning 95% of liability to CVS, 5% to the plaintiff, and zero liability to the shooter.

The Court held that a premises owner is liable for injuries caused by a third party’s criminal acts if it was “reasonably foreseeable” the act would occur. The Court said the jury must consider the “totality of circumstances relevant to the premises” and it must be decided on a “case-by-case basis.” The Court rejected a bright-line approach that requires a plaintiff to identify a “substantially similar” crime occurring on the premises – a standard that the Georgia Supreme Court used in prior cases that places a premises owner on notice of the need to address a specific safety risk. This new totality-of-the-circumstances standard greatly expands the potential liability of landowners because it no longer requires criminal acts to have occurred on the property before a landowner can be held liable. The decision seems to allow even crimes occurring near  a landowner’s premises to be considered in the foreseeability test.

As a result of this decision, businesses operating in dangerous neighborhoods will be forced to either close their stores or charge higher prices to offset the high costs of additional security measures, concerns Justice Shawn Ellen LaGrua raised in her concurring opinion. Businesses like pharmacies and supermarkets will be less likely to open locations where they may be needed most due to the potential liability for criminal activity that they cannot control near their stores.

In 2024, the effects of this decision have been on display. In Pappas Restaurant, Inc. v. Welch, the Georgia Court of Appeals upheld a trial court’s decision to allow a case to go to trial that seeks to hold an Atlanta-area restaurant and its security company liable after a customer was robbed and shot in its parking lot. Though no similar crimes had previously occurred, the plaintiffs claim the restaurant owner knew there was an uptick in property crimes, such as car break-ins, in the area and should have taken additional steps to secure the parking lot.

Abuse Under State’s ‘Standard of Triviality’

The flexible and context-dependent “standard of triviality” used by Georgia courts creates almost no restriction on when nominal damages can be awarded in personal injury cases and no limit on the amount that can be awarded. A jury can choose to award only nominal damages when there is a small injury or strong mitigating circumstances but jurors still feel a plaintiff is entitled to some degree of recovery.

According to the Georgia Court of Appeals, “In Georgia, the term ‘nominal damages’ is purely relative, and carries with it no suggestion of certainty as to amount. Instead of being restricted to a very small amount, the sum awarded as nominal damages may, according to circumstances, vary almost indefinitely.”

Relying on this standard, the Georgia Court of Appeals upheld a $1 million award in nominal damages for a Georgia plaintiff, despite the jury not awarding any damages for medical expenses or pain and suffering.

A Walmart employee who was walking backwards, bumped into the plaintiff as she sat in a motorized shopping cart. The impact was “very light, not harsh at all.” The plaintiff declined when Walmart employees asked if she needed paramedics; however, she went to the emergency room in the evening for head pain and blurred vision. “According to the treating physician at the emergency room, a head CT scan showed no sign of injury, and he found no signs of concussion.” At closing, the plaintiff requested more than $5.5 million in damages for future medical expenses and future pain and suffering.

The jury returned a verdict in favor of the plaintiff but chose only to award nominal damages in the eye-popping amount of $1 million. Walmart appealed, arguing that $1 million in nominal damages “was excessive as a matter of law and not a legal award of nominal damages.”

The Court of Appeals disagreed and upheld the startling award. The Court relied on the “test of relativity,” as opposed to limiting nominal damages to a “trivial sum.” In practice, this seems to allow nominal damages awards of any amount, as long as the original damages amount requested by the plaintiff is high enough. The court reasoned that the award of $1 million damages was not excessive because it was “less than one-fifth the amount requested by the plaintiff.”

This behavior by the courts aligns with Georgia’s history of nuclear verdicts®. These lax standards allow for irrational verdicts that are unsupported by evidence and contribute to Georgia’s plaintiff-friendly reputation, which has made it a choice destination for litigation tourism.

Mirror-Image Rule

Lawyers in Georgia engage in gamesmanship in which they make settlement demands full of conditions, then claim that an insurer did not comply with one of the many requirements. The goal is to seek amounts far above the insurance policy limits by claiming that the insurer operated in “bad faith” by having them innocuously overlook one of the trick conditions.

Georgia courts require that “an insurer’s response to a demand must be a mirror image of the demand” to be an enforceable settlement. Any deviation from the demand, no matter how immaterial, voids the settlement agreement.

This has incentivized plaintiffs’ attorneys to insert needless technical requirements into proposed agreements, then assert that the insurer’s response does not comply, thus nullifying the settlement. When there is no settlement, the plaintiff can then bring bad-faith-failure-to-settle claims against the insurer. Despite Georgia law favoring settlements, the mirror-image rule penalizes insurers for trying to settle.

The Georgia Supreme Court had an opportunity to create a “materiality exception” to the rule when a plaintiffs’ lawyer makes a settlement offer in bad faith, however, in January 2024, it declined to review the underlying case.

Cases to Watch

The Georgia Supreme Court is considering a case that could lead to more nuclear verdicts® and spark a medical liability crisis. In Medical Center of Central Georgia v. Turner, the Court will decide whether the state’s limit on non- economic damages in medical liability cases applies to wrongful death claims against healthcare providers. In that case, a jury awarded $9.2 million in damages, including $7.2 million in non-economic damages. The defendant requested that the trial court reduce the portion of the verdict awarded for noneconomic damages to $350,000 as required by the state’s statutory limit. The trial court denied the motion, stating that a 2010 Georgia Supreme Court decision had completely invalidated the cap as a violation of the right to jury trial. An intermediate appellate court summarily affirmed that ruling in August 2024.

Most state high courts have upheld a legislature’s authority to set a maximum amount of damages for highly subjective noneconomic damage awards, making Georgia an outlier. About half of states limit pain and suffering awards, and a few cap total damages in medical liability cases, recognizing that stable, accessible, and affordable healthcare for all citizens is more important than providing a windfall to a few plaintiffs and their attorneys. This is particularly critical in Georgia, where about one out of three of the state’s nuclear verdicts in personal injury and wrongful death cases between 2013 and 2022 were in medical liability trials.

The case before the Georgia Supreme Court presents the high court with three choices. The first path is to maintain its 2010 decision, but find that the limit constitutionally applies to wrongful death claims, a type of action that did not exist at common law. The second path is to reconsider its earlier ruling and find the legislature may constitutionally modify the remedies available in a tort claim, bringing Georgia law into the mainstream. The final, and most problematic course, is for the court to extend its 2010 ruling to wrongful death cases, affirming the lower courts and exacerbating the significant risk of nuclear verdicts® against healthcare providers.

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