Over the last several years, Georgia has experienced a significant increase in the amounts awarded by juries in personal injury cases. The Georgia General Assembly recently passed Senate Bill 68 (SB68), which represents the most significant overhaul of the state’s tort laws since 2005.  The bill was a top priority for this year’s legislative session and is aimed at addressing the state’s reputation as a “Judicial Hellhole,®” a designation by the American Tort Reform Foundation used to describe jurisdictions with a large number of “nuclear verdicts” with damage awards typically exceeding $10 million.

This article will analyze the key components of SB68 that seek to curb “nuclear verdicts,” including: (1) restrictions on “anchoring” values for non-economic damages, (2) limitations on  “phantom” medical damages, and (3) automatic bifurcation of trial.  The article will further evaluate the potential effects of SB68 on future cases, as well as anticipated constitutional challenges to the legislation.

As of the date of this article, SB68 has passed the Georgia Assembly and is currently awaiting Governor Kemp’s signature.  This is presumably because SB69 (the second part of the tort reform addressing third-party litigation financing) is still working its way through the legislature and it would be preferred to sign both bills simultaneously to avoid potential confusion associated with multiple effective dates.

1. Restrictions on “Anchoring” the Amount of Non-Economic Damages

One of the most notable provisions in SB68 is the restriction on arguments regarding the amount of non-economic damages. In practice, “anchoring” is arguing or discussing an amount for the non-pecuniary/non-economic elements of a damages claim, such as pain and suffering, emotional distress, or loss of enjoyment of life. In theory, the proponent hopes jurors will base their awards around such figures. For example, the proponent may ask prospective jurors whether they have an opposition to returning a verdict if the evidence supported a “very large” amount or “more than $10 million.” In closing, the attorney may argue that a reasonable award for non-economic damages may be “more than $10 million” and may draw analogies to professional athlete salaries, pieces of art that have been sold, or the like to emphasize that human life should be worth more than other things society values greatly.

Under SB68, counsel are prohibited from asking prospective jurors or arguing, eliciting testimony, or otherwise referencing a specific dollar amount for non-economic damages until specific times during trial, and then only in specific ways.  Attorneys are still permitted to argue the value of non-economic damages in both opening and closing argument provided such arguments are “rationally related to the evidence of non-economic damages.”  This language is undefined in the statute, which leaves room for court interpretation.

We anticipate that litigants will file motions regarding the admissibility of evidence of non-economic damages, including motions in limine and challenges to expert testimony that attempt to justify large amounts of non-economic damages.  

Of particular note is the effect on jury selection:

Nothing in this Code section shall be construed to prohibit counsel from asking prospective jurors during voir dire whether they could return a verdict . . . in excess of some unspecified amount, provided that such question is supported by the evidence.

It is unclear what an “unspecified amount” is intended to mean and it is hard to know in advance whether a question “is supported by the evidence,” considering jury selection comes before the presentation of evidence.

It is possible to imagine an interpretation of this section that limits voir dire questioning of juror opinions about large verdicts.  This could affect plaintiffs and defendants, as both sides seek to identify jurors with potential biases related to damages awards.   

2. Prohibition on Use of “Phantom” Damages

In SB68, the General Assembly sought to address the issue of “phantom” medical damages.  Under prior Georgia law, the party claiming damages could “blackboard” the raw amount of bills for medical treatment, without reduction for collateral source payments or write-downs. In practice, this meant that a party claiming damages could receive compensation over and above the amount actually paid by anyone, whether the party themselves or a third party payor.

Under SB68, juries will only see the actual amounts paid for the medical treatment.  This aligns Georgia with other jurisdictions that limit special damage awards to only the amount actually paid.  Additionally, damages for future medical expenses not yet incurred will be limited to the “reasonable value of medically necessary care, treatment, or service[.]”  This will could lead to an increased reliance on life care planners and medical experts to demonstrate ongoing and future medical costs.

We anticipate this provision will result in an increase of pretrial motions in limine and expert challenges.  There will also be a greater focus during written discovery to uncover the amounts of “actual” payments made by insurers, Medicare, Medicaid, or other third-party payers.

Please note: unlike other sections of SB68 which will become effective immediately, the provisions concerning “phantom” damages will only apply to causes of action arising on or after the effective date of the Act.  Any earlier causes of action will be governed by prior law, regardless of when they are filed.

3. Automatic Bifurcation of Trial

Another significant change in SB68 is automatic bifurcation of trials into liability and damages phases upon request of any party. Under this arrangement, the jury would first determine  liability of the defendant and fault of any non-parties under the apportionment rules, followed by  a damages phase to determine the amount of damages if there is a finding of liability. However, the court may reject the election upon motion by an opposing party, if the court determines: (1) the plaintiff is a sexual assault victim and would likely suffer psychological or emotional distress by testifying more than once in a bifurcated proceeding, or (2) the amount in controversy is less than $150,000.

This provision of SB68 will undoubtedly have a significant impact on trial strategy as parties will need to tailor their arguments and evidence precisely to focus on the separate phases of trial.  However, trial bifurcation may also dramatically alter the process of settlement discussions.   Many of us are familiar with cases “settling on the courthouse steps.”  These last-minute settlements occur, in part, in an attempt to avoid the unknown risks associated with trial and potentially receiving an unfavorable judgment.  However, by splitting the trial into two phases, if liability is established in the first phase, there may be a greater likelihood of settlement before proceeding to the damages phase, especially if evidence is strong and the potential for significantly reducing a damages award seems limited.

4. Anticipated Legal Challenges to SB68

As with all tort reform measures, SB 68 is expected to face significant legal challenges, particularly on constitutional grounds related to due process, equal protection, and the right to a jury trial.  Whether the provisions of SB68 can withstand these legal challenges will shape the future of litigation in Georgia.

Due process challenges to SB68 will likely focus on whether restrictions on “anchoring” and “phantom” damages unfairly limit plaintiffs’ ability to present their case, restrict their ability to advocate for full compensation, and deprive them of a fair trial.   Equal protection challenges will likely include arguments that: (1) the bill’s provision on “phantom” damages creates an unfair distinction between plaintiffs based on their insurance status, and (2) the bifurcated trial provision imposes an unnecessary procedural hurdle that delays justice and increases litigation costs, making it an unconstitutional burden on access to the courts for lower-income individuals. Additionally, ambiguous language in the bill may arguably result in arbitrary enforcement by courts or result in some provisions simply being deemed “void for vagueness” to the event they fail to provide fair notice of prohibited conduct (for example, what questions are permissible in voir dire without running afoul of the bill’s “anti-anchoring” provisions).

Conclusion

SB68 represents a major shift in Georgia’s tort landscape, directly targeting various tactics that lead to “nuclear” verdicts. By restricting anchoring, eliminating phantom damages, bifurcating trials, and tightening evidentiary standards, the law seeks to create a less volatile litigation environment.

However, constitutional challenges are inevitable, particularly concerning the right to a jury trial, due process, and equal protection. As courts begin interpreting SB68, legal battles will likely shape the extent to which these reforms withstand judicial scrutiny.

For attorneys on both sides, staying informed on how courts interpret and apply SB68 will be essential to effectively advocating for clients in the evolving legal landscape.