March 24, 2025
By Troutman Pepper Locke
Friday, March 21, 2025, marks the first time significant lawsuit reform has been passed by the General Assembly in Georgia since 2005. Senate Bill 68 (SB 68) will improve the legal environment for nearly all Troutman Pepper Locke clients. After many years of leading on this effort, Troutman Strategies has worked hand in hand this legislative session with Governor Brian Kemp, Lt. Governor Burt Jones, Speaker Jon Burns, and countless stakeholders to advocate for the passage of this critical legislation. SB 68 aims to lower costs of goods and services for consumers, reduce burdens on employers, and ease access to health care. The legislation now awaits Kemp’s signature for final enactment.
The legislation accomplishes the following:
Anchoring
The Problem: When a plaintiff brings a lawsuit, some of their damages are already quantifiable — bills, lost income, etc. But Georgia law also allows plaintiffs to recover damages for pain and suffering, emotional distress, and other “noneconomic” damages. It has been a staple of our law that these noneconomic damages should be left to the jury to decide. Recently, however, we have repeatedly seen attorneys — on both sides — attempt to “anchor” the jury’s mind to irrelevant or arbitrary amounts for these damages, often resulting in enormous windfall awards.
The Solution: Prohibits a plaintiff from “anchoring” a jury to a large number for pain and suffering that has no rational connection to the plaintiff’s noneconomic damages, like a professional athlete’s salary or a private jet.
Stay of Discovery
The Problem: Under the current rules, even if defendants file a motion to dismiss in response to a baseless lawsuit, they must still prepare and file an answer and may also have to respond to extensive discovery requests, before their motion is ruled on by a judge. Preparing an answer and discovery responses can be very expensive and time-consuming.
The Solution: Requires a stay of discovery until a judge can rule on a defendant’s motion to dismiss or when a defendant files a motion for a more definite statement. This will promote judicial efficiency and reduce unnecessary expense.
Pre-dismissal Rule
The Problem: Currently, plaintiffs have the option to dismiss their case without prejudice all the way up until after the jury is picked and the parties have given opening statements. This standard unfairly allows the plaintiff to refile in or “cherry-pick” a more favorable jurisdiction to them after the defense has already racked up the significant cost of preparing and beginning the trial.
The Solution: Reduces the amount of time a plaintiff may dismiss a case to within 60 days of the filing of an answer, aligning Georgia much more closely with the federal rule.
Preventing Double Recovery of Attorney Fees and Costs
The Problem: A court can award attorney’s fees to plaintiff’s counsel or defense counsel under certain circumstances in a personal injury lawsuit. Despite the law’s original intent, courts have interpreted the attorney’s fees provision in the contract code to apply to personal injury cases as well, allowing for an instance where plaintiff’s counsel can recover their fees twice for the same lawsuit — an unfair windfall.
The Solution: Prevents a plaintiff from recovering the same attorney’s fees and litigation costs by making claims under multiple statutes that allow recovery. Additionally, attorneys operating by contingency fee are no longer permitted to utilize the contingency contract as a basis for calculating an award of fees.
Seat Belt Nonuse Admissibility
The Problem: Seatbelt use is required by law in Georgia because we all know that seatbelts keep individuals and families safe in the event of an accident. However, the law prohibits a defendant in an automobile accident case from telling the jury that the other driver was not wearing a seatbelt. This is not only unfair, it defies common sense. Every Georgian with auto insurance is paying the additional cost of those involved in auto accidents who recklessly chose to not wear a seatbelt.
The Solution: Permits juries to consider evidence of a plaintiff’s failure to use a seatbelt in a motor vehicle accident when apportioning fault and damages. This evidence is currently prohibited.
Phantom Damages
The Problem: Under current law, the jury is prevented from knowing how much a plaintiff — or a plaintiff’s insurer — actually paid for medical costs. This inflates the true cost of damages, which gets passed down to consumers. Plaintiffs that are successful in litigation should always be made whole, and have their costs covered. However, awarding plaintiffs — and in turn, their attorneys — more than their true costs distorts our judicial system and incentivizes frivolous litigation that ultimately impacts every person in this state seeking care. Our civil justice system should make victims whole, not award “profit margins” for accidents.
The Solution: Allows a jury to determine a plaintiff’s actual value of necessary medical treatment by considering evidence of both the total amounts charged for the care as well as the amounts actually necessary to satisfy such charges.[1] Now, both amounts will be considered by the jury in determining the reasonable value for necessary treatment.
Additionally, if the treatment is provided under a letter of protection, evidence of the letter of protection, the price of the account receivable when sold, and the referral source are all discoverable and relevant evidence to be considered by the jury.
Trifurcation of Trial Proceedings
The Problem: When an accident occurs, current Georgia law allows the harmed to recover damages only when someone else is at fault. Liability and damages are two distinct questions, but right now, the jury has to consider them both at the same time and attorneys often try to blur the distinction. Separating the question of liability from the issue of damages ensures defendants are judged for their actions, not for the extent of the plaintiff’s injuries.
The Solution: Allows either party to split the trial into three phases: (1) liability and fault allocation, (2) compensatory damages, and (3) punitive damages liability and amount, as well as recoverable attorney fees and litigation expenses. Parties prefer to split trials into phases, particularly when they determine they have a strong chance of winning outright or receiving a very low percentage of fault assignment. When the liability and damages phases are combined, detailed information about the nature of a plaintiff’s injuries, the impact of the accident on the plaintiff’s life, large sums of money associated with medical expenses and lost employment, corporate net worth, and corporate bad acts not directly related to the circumstances of the incident can inflame the jury and thereby drive a plaintiff’s verdict where none would otherwise occur.
Premises Liability
The Problem: Businesses of all sizes — but particularly small businesses — are shutting their doors due to skyrocketing commercial property insurance costs to cover the risk of a business being held liable for the criminal acts of a third party. Businesses have a duty to take care of their customers and keep them safe, but currently businesses face enormous liability for things that are outside their control. Kemp highlighted some of these examples in his State of the State Address to begin this year’s legislative session.
The Solution: Limits landowner liability for third-party criminal conduct occurring on the premises of a property owner to what was foreseeable to the property owner and within his or her control. Further, a finding of fault for the criminal actor must be greater than the degree of fault allocated to the property owner.
[1] In the initial version of the legislation, a recovery for medical expenses was limited to only the amounts actually paid to health care providers or to be paid under coverage available to the plaintiff. A floor amendment in the Senate allowed for both amounts to be considered by the jury in determining the reasonable value for necessary treatment.
