USA – GEORGIA Trends and Developments Contributed by: Louis Cohan, Bert Levy, Adrianna Prosdocimo and Grace Vigar, Cohan & Levy
arguments to the jury, and allowable evidence, regarding certain damages, commonly known as pain and suffering. Section 9-10-184 of the Official Code of Georgia Annotated (O.C.G.A.) defines non- economic damages as those recoverable in tort for bodily injury or wrongful death, and for physical or emotional pain and suffering, loss of enjoyment of life, loss of consortium, and injury to reputation. Now, neither party has the opportunity to argue the worth or value of non-economic damages prior to the close of evidence. With this, attorneys entitled to opening and concluding arguments, pursuant to O.C.G.A. Section 9-10-186, face an additional limitation. Specifically, they must argue the same worth or monetary value of non-economic dam - ages in both arguments. Furthermore, this argu - ment must be “rationally related” to the evidence of non-economic damages. However, nowhere in the statue is “rationally related” defined, making it dif - ficult for attorneys to know what evidence they are permitted to reference. This is a corporate (insur - ance) friendly statute intending to prevent anchor - ing tactics that encourage a jury to determine the monetary value of pain and suffering by referring to the value of famous works of art, athletes’ salaries or other factors far removed from the claim. • Trial bifurcation: the statute permits any party to a wrongful death or bodily injury case to elect, via a written demand prior to the entry of the pretrial order, to have the fault of each defendant deter - mined before considering the damages to be awarded. Bifurcation is mandatory unless the other party objects and the court determines that the amount in controversy is less than USD150,000, or where the claimant, in very limited circumstances, would be likely to suffer distress by having to testify twice. In a bifurcated trial, if one or more defendants are determined to be at fault, the trial recommences for a determination of compensatory damages. If compensatory damages are awarded, the trial may recommence for a determination of punitive damages or liability for an amount of attorney fees or other litigation expenses. Bifurca - tion is thought to be business-friendly because the defendant’s liability is determined before the jury hears more emotional testimony. Bifurcation also makes litigation more expensive for the plaintiff because the trial is longer. And juries do not want
to stay for additional litigation. It is too early to see the impact in Georgia. Studies elsewhere have shown that defence verdicts are more likely, but that juries that have already determined liability may tend to award higher damages against the remaining defendants. • Third-party litigation funding: a consumer-friendly change caused by the tort reform governs third- party litigation funding. Third parties providing litigation funding are bound by new guidelines, all of which are geared toward consumer protection. Third parties must register as litigation financi - ers with the Georgia Department of Banking and Finance, which will oversee the new process. One qualification for these litigation financiers is that the individual or entity cannot be associated with a hostile foreign adversary. Litigation financiers must utilise litigation financing agreements going forward. Numerous requirements were created for these agreements – namely, a pre-drafted set of disclosures that identifies a consumer’s right to cancellation, the maximum amount the litiga - tion financier may receive, the litigation financier’s inability to make decisions related to the litigation, and the consumer’s right to change legal repre - sentation. A violation of any of these new rules regarding litigation funding agreements renders the agreement void and unenforceable. • Negligent security claims: in reaction to the grow - ing number and size of jury verdicts against property owners and occupiers, and several appellate decisions that decreased the likelihood of summary judgment, Georgia enacted legisla - tion to make it much harder to hold an owner or occupier accountable for injuries sustained on their premises as a result of wrongful conduct by a third party. Plaintiffs now face heightened foreseeability and prior knowledge requirements, as well as other limitations on bringing such a claim. A person may not bring a negligent security claim if they were trespassing, or intended to or were committing a crime, if they were injured on a single-family resi - dence, or if they were injured by either a tenant or the guest of a tenant and eviction proceedings had been initiated against such tenant. Furthermore, owners and occupiers are protected by a rebut - table presumption that an apportionment of fault is unreasonable if they are assigned a greater per -
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