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As a personal injury attorney in Atlanta, I was initially one of those who feared the worst when the Georgia legislature passed it omnibus tort reform legislation, Senate Bill 3, in 2005.   It was as if the political power structure had done everything it possibly could to kill victims of negligence — and the lawyers who represent them.  Some thought it was the death knell for personal injury tort litgation in our state.

However, as soon as the bill passed, a few of us began to gather for a series of weekly breakfast brainstroming sessions focused on how to survive and prosper in the new environment. Those sessions helped transform the law practices of several of the participants. Other lawyers around the state began to go through the same sort of process of evaluation and change.

Three years later, we have seen an increase in the frequency and geographical distribution of impressive jury verdicts in injury and death cases. Even counties that had been viewed as black holes for plaintiffs are producing seven and eight figure jury verdicts.

The most recent was a $5 million verdict this week in a hospital malpractice wrongful death case in Gwinnett County. That case involved the death of a new mother due to a fall, as the hospital personnel had not followed fall precautions which were indicated.

Until very recently many of us had simply declined to accept cases in Gwinnett because the juries there were so notoriously hostile to personal injury and wrongful death plaintiffs. I haven’t heard how the $350,000 cap on noneconomic damages in medical malpractice cases may affect that, if at all. It would not be surprising for an economist to reach a $5 million economic valuation on the life of a promising young adult.

A couple of weeks ago in Fulton County, which used to be a big-verdict venue but in recent years has become much more conservative, there was a $54 million verdict, which was reduced to a mere $10.25 million due to the statutory cap on punitive damages which was enacted in 1987.

Last year we had a $2.3 million verdict in a trucking case in conservative, rural Gordon County..  There have even been million dollar verdicts in some of the small, rural, deeply conservative counties.

The "loser pays" provision of S.B. 3 — an "offer of setlement" feature in OCGA 9-11-68 which can require a party to pay the other side’s attorney fees and litigation expenses if it fails to do 25% better at trial than in trial than in a rejected settlement offer — was designed to intimidate and oppress plaintiffs.  However, it has primarily hurt the defense side. In one medical malpratice case, the plaintiff got some $4 million in fees and expenses added to the compensatory damage award under this provision.

There are quite a few other examples that I have not taken the time to compileon a Saturday morning of a holiday weekend.

Why have we seen an increase in substantial verdicts in Georgia after the tort reformers got everything they asked for in the legislature?  Certainly a few minor details of S.B. 3 have been held unconstitutional, but none of those points are substantially involved in these cases.

Another hypothesis is that tort reform has forced plaintiffs’ lawyers to work harder and smarter in case preparation. With so many obstacles thrown in our path, we have to work hard in investigation, in selection and preparation of experts, and in all aspects of trial strategy and preparation.

When that enhanced preparation encounters the most democratic of all institutions in American society — a jury of ordinary people from all walks of life with no political fears or aspirations related to their service on one case — serious cases can get serious verdicts.

Three years ago, one might have predicted that by now we would be out of business and our clients would be out of luck.  Today, however, it’s a great time to be a lawyer representing good people with legitimate claims of serious injury or wrongful death of a loved one.

As a Georgia trial attorney handling trucking accident cases, I see too many instances of truck driver fatigue and drug usage leading to tragedy.  The pattern is exemplified in a Missouri case.  It has resulted in an $18 million settlement for the deaths of four family members (ages 55, 57, 81 and 94) on the way to a 50th wedding anniversary celebration. 

The truck driver had less than the required amount of rest the night before, according to subpoenaed cell phone records, and  was on eight prescribed medications that warned of possible drowsiness.   Witnesses said he was falling asleep at the wheel before he sped past warning signs and a flagman, slammed into a long line of cars, crossed the median and jackknifed on the opposite side of the highway.

According to a report by Joe Meyer of the Columbia Tribune, a family member said, "The money wasn’t something that we were after.  It was just a way to give a message in this part of town that the truckers should not be out there like that."

A Tennessee jury awarded $6.65 million in damages recently to the mother of a 17-year-old girl who died in a tractor-trailer accident. Lindsey Garretson was killed August 8, 2000 when a truck driven by Stuart Foy slammed into the back of her car on Interstate 40. Foy failed to slow the tractor-trailer, owned by KLLM Transport Services Inc., when vehicles began braking to avoid a mattress that had fallen off another truck.  Plaintiff attorneys argued that Foy should never have been employed by KLLM due to his record of reckless driving and several accidents.

We have handled similar cases in Georgia, collecting policy limits plus some, and this year we got a $2.3 million verdict against a trucking company for a badly broken leg. Unfortunately, the trucking companies that are the sloppiest about driving hiring, training and supervision are also the least diligent about maintaining more than the minimum required insurance coverage.