GA Court of Appeals cracks open door to evidence of amount of settlements for prior accidents
Georgia law on the trial of personal injury cases has for most of my career provided for exclusion of evidence of settlements of claims arising from prior injuries. Now the Court of Appeals has cracked open the door to evidence that in the past has been excluded.
In the case of Goforth v. Wigley, 178 Ga. App. 558, 560 (2), 343 SE2d 788 (1986), the court ruled that “evidence as to the amount of a settlement or compromise in [an] earlier case is generally irrelevant and prejudicial and therefore inadmissible.” Thus, the court in Goforth held that the trial court did not err in excluding evidence of amount of prior settlement where the plaintiff did not deny she had suffered injuries in earlier incident. See also, Fred F. French Mgmt. Co. v. Long, 169 Ga. App. 702, 704 (2), 314 SE2d 666 (1983).
On November 7, 2012, in the case of Bolah v. Driskell, Case No. A12A1612, the Court of Appeals in an opinion by my friend Judge Chris McFadden, held that evidence of the $20,000 amount of the settlement for a prior injury was allowed for impeachment. The plaintiff has testified about a prior injury that “I got knocked off the bike. My left wrist, you know, I had abdomen stuff, a little bit of trauma, you know, knee’s feeling a little bit hurt.” He testified that he was able to go to work the next day and perform his job without difficulty, and that he did not have to return to the doctor for further treatment related to his injuries from the prior accident.
The court ruled that “the evidence that Bolah received a monetary settlement for his injuries in the prior motorcycle accident was relevant to the issue of impeachment, because a jury could find that the evidence contradicted Bolah’s testimony that his injuries were not serious enough to impair his job performance or require additional medical treatment.”
The exception in this Bolah case could swallow the general rule if plaintiffs’ lawyers are not careful.
First, in the initial interview plaintiffs’ lawyers need to grill potential clients about prior injuries and settlements, and then follow up by seeking out medical records and settlement in order to guard against innocent discrepancies that would make a client’s testimony vulnerable to impeachment.
Second, counsel must be careful to have clients testify accurately about the extent of prior injuries, including the extent of medical treatment and impact on work and other activities, so as to avoid any basis for impeachment. The summary can be brief but it must be accurate. That has always been true, but lawyer should exercise some extra care now in light of the Bolah decision to make sure all bases are covered.
Third, plaintiffs’ lawyers should file a motion in limine to exclude evidence of prior settlements, taking care to substantiate that there is no discrepancy between the client’s testimony about the prior injury and any evidence of settlement of the prior case that the defense might seek to use for impeachment.
Ken Shigley is immediate past president of the State Bar of Georgia and current chair of the board of the Institute for Continuing Legal Education in Georgia. Lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-12), he has an AV Preeminent rating in Martindale-Hubbell Law Directory and Bar Register of Preeminent Lawyers, double board certification in Civil Trial Advocacy and Civil Pretrial Advocacy from the National Board of Legal Specialty Certification (formerly National Board of Trial Advocacy). In addition, he is listed in Super Lawyers (Atlanta Magazine), Legal Elite (Georgia Trend) and Who’s Who in Law (Atlanta Business Chronicle). In the American Association Justice, he is secretary of the Motor Vehicle, Highway & Premises Liability Section and a board member of the Trucking Litigation Group.