Buyers' regrets on Senate Bill 3
When the Georgia General Assembly passed Senate Bill 3 -- the "tort reform" conglomeration -- in February 2005, most of the legislators hadn't even read the entire bill, most of its provisions were not discussed in any detail, and hardly anyone understood it. To say it had a lot of poor draftsmanship is an understatement. I heard one prominent Republican legislator privately describe it has having been "written with a crayon." Since then bits and peices of the legislation have been been held unconstitutional by trial or appellate courts, and more likely meet the same fate. Increasingly, I hear legislators who voted for it in the rush of the moment saying things like, "we went too far," "we didn't understand what was in the bill," etc.
It will take a few years, but I predict that the problems with the bill will be largely repaired. A cap on noneconomic damages in medical malpractice cases will likely remain, as the political support for it in the medical community is mighty strong. However, as in California after it adopted such a cap in the 1970's, we may see a requirement for financial disclosure by insurance companies to support premium rate increases.
Likewise, the replacement of "joint and several liability" with "proportional liability" will be politically difficult to change. However, if the problems with the new rule are explained to legislators, perhaps there could be some modification.
The Daubert rule on expert testimony is here to stay, but the version of it in the State Bar's proposed new Georgia Evidence Code makes more sense, both procedurally and substantively, than the self-contradictory scissors and paste job in S.B. 3.
The offer of judgment rule in S.B. 3 is such a miscarriage that I hardly ever hear of anyone actually using it. I know that most of the insurance companies are afraid to use it in significant cases out of concern that it will be they rather than the plaintiffs who it will hurt. It may take a couple of years, but I expect that a more sensible and workable version of the offer of judgment rule will be passed.
A lot of the other stuff that was included in S.B. 3 will bite the dust over the next couple of years.
Continue Reading Questions & comments 0Georgia tort reform -- proportional liability replaces joint & several liability
In the spasm of tort reform (SB 3) that passed with scant discussion of details, Georgia has replaced the ancient rule of joint and several liability with a new rule of proportional liability. Applying to cases arising after Gov. Perdue signed it on 2/16/05, the new law (text below) provides that a jury is required to apportion fault not only among parties but also among non-parties, known and unknown, as to which a defendant gives notice. We anticipate many complications in litigation, all to the benefit of defendants and insurance companies and probably none benefiting innocent injury victims. Combined with the Daubert rule on expert testimony and offers of judgment, this represents a radical change in the nuts and bolts of tort law practice in Georgia.
In future posts we will explore some of the issues implicit in the new proportional liability rule, and some of the unintended (?) consequences. See the text below.
