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INSTITUTE OF CONTINUING LEGAL EDUCATION

DEFENSE OF PERSONAL

INJURY CASEPROGRAM MATERIALS

January 11, 2018

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Defense of Personal Injury Case1 of 180

January 11, 2018 ICLE: State Bar Series

Defense of Personal Injury Case

5.5 CLE Hours1 Ethics Hour | 1 Professionalism Hour | 5.5 Trial Practice Hours

Sponsored By: Institute of Continuing Legal Education


iiiFOREWORD

Dear ICLE Seminar Attendee,

Thank you for attending this seminar. We are grateful to the Chairperson(s) for organizing this program. Also, we would like to thank the volunteer speakers. Without the untiring dedication and eff orts of the Chairperson(s) and speakers, this seminar would not have been possible. Their names are listed on the AGENDA page(s) of this book, and their contributions to the success of this seminar are immeasurable.

We would be remiss if we did not extend a special thanks to each of you who are attending this seminar and for whom the program was planned. All of us at ICLE hope your attendance will be benefi cial as well as enjoyable We think that these program materials will provide a great initial resource and reference for you.

If you discover any substantial errors within this volume, please do not hesitate to inform us. Should you have a diff erent legal interpretation/opinion from the speaker’s, the appropriate way to address this is by contacting him/her directly.

Your comments and suggestions are always welcome.

Sincerely, Your ICLE Staff

Jeff rey R. DavisExecutive Director, State Bar of Georgia

Tangela S. KingDirector, ICLE

Rebecca A. HallAssociate Director, ICLE

Printed By:

Copyright © 2018 by the Institute of Continuing Legal Education of the State Bar of Georgia. All rights reserved. Printed in the United States of America. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, electronic, mechanical photocopying, recording, or otherwise, without the prior written permission of ICLE.

The Institute of Continuing Legal Education’s publications are intended to provide current and accurate information on designated subject matter. They are off ered as an aid to practicing attorneys to help them maintain professional competence with the understanding that the publisher is not rendering legal, accounting, or other professional advice. Attorneys should not rely solely on ICLE publications. Attorneys should research original and current sources of authority and take any other measures that are necessary and appropriate to ensure that they are in compliance with the pertinent rules of professional conduct for their jurisdiction.

ICLE gratefully acknowledges the eff orts of the faculty in the preparation of this publication and the presentation of information on their designated subjects at the seminar. The opinions expressed by the faculty in their papers and presentations are their own and do not necessarily refl ect the opinions of the Institute of Continuing Legal Education, its offi cers, or employees. The faculty is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. This publication was created to serve the continuing legal education needs of practicing attorneys.

ICLE does not encourage non-attorneys to use or purchase this publication in lieu of hiring a competent attorney or other professional. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

Although the publisher and faculty have made every eff ort to ensure that the information in this book was correct at press time, the publisher and faculty do not assume and hereby disclaim any liability to any party for any loss, damage, or disruption caused by errors or omissions, whether such errors or omissions result from negligence, accident, or any other cause.

The Institute of Continuing Legal Education of the State Bar of Georgia is dedicated to promoting a well organized, properly planned, and adequately supported program of continuing legal education by which members of the legal profession are aff orded a means of enhancing their skills and keeping abreast of developments in the law, and engaging in the study and research of the law, so as to fulfi ll their responsibilities to the legal profession, the courts and the public.


iiiFOREWORD

Dear ICLE Seminar Attendee,

Thank you for attending this seminar. We are grateful to the Chairperson(s) for organizing this program. Also, we would like to thank the volunteer speakers. Without the untiring dedication and eff orts of the Chairperson(s) and speakers, this seminar would not have been possible. Their names are listed on the AGENDA page(s) of this book, and their contributions to the success of this seminar are immeasurable.

We would be remiss if we did not extend a special thanks to each of you who are attending this seminar and for whom the program was planned. All of us at ICLE hope your attendance will be benefi cial as well as enjoyable We think that these program materials will provide a great initial resource and reference for you.

If you discover any substantial errors within this volume, please do not hesitate to inform us. Should you have a diff erent legal interpretation/opinion from the speaker’s, the appropriate way to address this is by contacting him/her directly.

Your comments and suggestions are always welcome.

Sincerely, Your ICLE Staff

Jeff rey R. DavisExecutive Director, State Bar of Georgia

Tangela S. KingDirector, ICLE

Rebecca A. HallAssociate Director, ICLE

Printed By:

Copyright © 2017 by the Institute of Continuing Legal Education of the State Bar of Georgia. All rights reserved. Printed in the United States of America. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, electronic, mechanical photocopying, recording, or otherwise, without the prior written permission of ICLE.

The Institute of Continuing Legal Education’s publications are intended to provide current and accurate information on designated subject matter. They are off ered as an aid to practicing attorneys to help them maintain professional competence with the understanding that the publisher is not rendering legal, accounting, or other professional advice. Attorneys should not rely solely on ICLE publications. Attorneys should research original and current sources of authority and take any other measures that are necessary and appropriate to ensure that they are in compliance with the pertinent rules of professional conduct for their jurisdiction.

ICLE gratefully acknowledges the eff orts of the faculty in the preparation of this publication and the presentation of information on their designated subjects at the seminar. The opinions expressed by the faculty in their papers and presentations are their own and do not necessarily refl ect the opinions of the Institute of Continuing Legal Education, its offi cers, or employees. The faculty is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. This publication was created to serve the continuing legal education needs of practicing attorneys.

ICLE does not encourage non-attorneys to use or purchase this publication in lieu of hiring a competent attorney or other professional. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

Although the publisher and faculty have made every eff ort to ensure that the information in this book was correct at press time, the publisher and faculty do not assume and hereby disclaim any liability to any party for any loss, damage, or disruption caused by errors or omissions, whether such errors or omissions result from negligence, accident, or any other cause.

The Institute of Continuing Legal Education of the State Bar of Georgia is dedicated to promoting a well organized, properly planned, and adequately supported program of continuing legal education by which members of the legal profession are aff orded a means of enhancing their skills and keeping abreast of developments in the law, and engaging in the study and research of the law, so as to fulfi ll their responsibilities to the legal profession, the courts and the public.


AGENDA

Presiding:Sean L. Hynes, Program Chair, Downey & Cleveland, LLP, Atlanta

7:45 REGISTRATION AND CONTINENTAL BREAKFAST (All attendees must check in upon arrival. A jacket or sweater is recommended.)

8:25 WELCOME AND PROGRAM OVERVIEW Sean L. Hynes

8:30 ISSUES AT MEDIATION Thomas D. Harper, BAY Mediation & Arbitration Services, Atlanta 9:10 NEGOTIATING PERSONAL INJURY ACTIONS Terrell W. “Chip” Benton, III, Hall Booth Smith PC, Atlanta

9:50 BREAK

10:00 ETHICS IN HANDLING PERSONAL INJURY CASES J. Maria Waters, Worsham Corsi Scott & Dobur, Savannah

11:00 TRAUMATIC BRAIN INJURY DEFENSE (Mr. Fox will record his presentation before the event.) Warner S. Fox, Hawkins Parnell Thackston & Young LLP, Atlanta

11:40 LUNCH (Included in registration fee.)

12:10 APPORTIONMENT: DOES IT WORK Sean L. Hynes

12:50 DEFENDING UNINSURED AND UNDERINSURED MOTORISTS CASES Mike O. Crawford, Swift Currie McGhee & Hiers LLP, Atlanta

1: 30 TOP 10 PITFALLS IN DEFENDING PERSONAL INJURY LITIGATION Barbara A. Marschalk, Drew Eckl & Farnham LLP, Atlanta

2:10 BREAK

2:20 VOIR DIRE FROM A DEFENSE PERSPECTIVE G. Lee Welborn, Downey & Cleveland, LLP, Marietta

3:00 ADJOURN

v


TABLE OF CONTENTSvii

Foreword .................................................................................................................................................. iii

Agenda ........................................................................................................................................................v

Defense of Personal Injury Case .............................................................................................. 9- 166

Appendix: ICLE Board ................................................................................................................................................. 1Georgia Mandatory CLE Fact Sheet ................................................................................................ 2

Page


8:30 ISSUES AT MEDIATION Thomas D. Harper, BAY Mediation & Arbitration Services, Atlanta


Issues at Mediation

Thomas D. Harper Thomas D. Harper, P.C.

[email protected]

(770) 851-8026

Questions to Ask About2 Mediating

Should you agree to mediate a case where no demand/offer has been made? Should you let the other party pick the mediator? Should you update/confirm the special damages to the opposing party a week before the mediation? What, if anything, should you tell the mediator before you begin? Should the plaintiff’s attorney know how much he will have to pay on liens/subrogation/repayment before the mediation begins? Should you give your client your “bottom line”/“top dollar” for settlement before the mediation begins? Should the defense attorney know the authority on the file at the time of scheduling/or by the day of the mediation? Should a plaintiff attorney insist that a claim rep attend in person? Should the plaintiff and/or claim rep speak?


Have you made it clear that you have a “plan b” if the case does not resolve that day? Should you make the first “big move?” Should you ask the mediator to leave the room when you discuss strategy or demands with your client? Was the mediation a waste of time if the case DID not settle?

A. Recognize the Differences 1. Focus For the Plaintiff- It’s Personal.

For most plaintiffs, this is their one and only experience with a claim and/or

a personal injury. Although the plaintiff may be motivated by concepts of

“justice,” anger and/fear, for the vast majority of plaintiffs, it is primarily about the

money. But even those transparently motivated by the money still want

“satisfaction:” they want to hear some sympathy for their plight.

For the Defendant-It’s Business.

With rare exception, it is only about the money. If there is insurance, in

most cases, it’s just another file the carrier wants to close.

2. The Money

For the Plaintiff- It’s the Net Amount.

The “Net” figure controls-the amount the plaintiff receives. The total

payment, as reduced by amounts for liens, unpaid bills (including -maybe

especially- attorney’s fees) and mediation costs (in low-dollar settlements). No


attorney representing a plaintiff should come to a mediation without a plan (if not a

commitment) as to the payouts that will be required from the settlement proceeds.

For the Defendant-It’s the Gross Amount.

The “Gross” figure controls-the size of the check they have to write. The

defense focus is not on how much the plaintiff him/herself puts in their pocket, but

on ensuring that the settlement concludes all claims.

For a defendant with a “self retention,” the “gross” is exponentially more

important.

3. Precedent

For the Plaintiff-A One Time Experience.

As a “one time” experience, the typical plaintiff has no concerns about

setting a precedent for other claims. Their attorney may have a slightly greater

concern for establishing a base for future dealings with the same insurer. In the era

of CaseMetrix and other reporting services, this has a slight value to some

attorneys in specific cases.

For the Defendant-Expectations May Be Set.

Insurance companies desire to avoid setting unfavorable precedents or

creating future expectations they think are unfavorable to them. These may relate

to the attorney involved for the plaintiff, the type of case, the provider (Pain

Management, scheduled surgery, the provider, and/or the mediator.

4. Time

For the Plaintiff-Why are We Ordering Lunch?

The overwhelming majority of plaintiffs need time to be comfortable with

the process, with the mediator, and with the facts. The mediation is, in all

likelihood, the first time they are forced to confront the weaknesses of their case.

Many plaintiff attorneys use the mediator as a “reality check” to expose the

plaintiff to “best case” and “worst case” scenarios which are often far different

than the client may have expected. It may take time to come to grips with the fact

that their case may not be as strong or valuable as they might have believed.

For the Defendant-Another Day, Another Dollar.

The length of the mediation is largely irrelevant. The claim representative,

at least, knows their authority and where they expect to end up with their offer.

Time is less important because (a) they personally are not paying for the process

and (b) they understand the process and its benefits.


B. Address The Issues

1. Should you insist that the Claim Representative Attend in Person?

The response depends upon how good a witness your client will be or what

your opening presentation will be. An exceptional plaintiff is worth extra money,

but it is unlikely to be forthcoming if the person with the checkbook is at their

office pretending to listen. A Power Point/Keynote presentation is wasted on a

representative who is only hearing it over a phone. Additionally, if the Claim

Representative is not present in person, the Mediator cannot (a) “read” them or

(b) influence them as easily.

2. Should you insist that a particular person attend?

The preferred course is to have a Claim Representative with file

responsibility attend. Some carriers have “task representatives” attend, but once

the mediation is over, their participation ends. You are less likely to settle if the

representative in attendance will finish the day without further file responsibility

regardless of the outcome.

3. Should you insist that the Attorney defending the case be aware of the authority

on the file?

In the majority of cases, you are attending a mediation that you scheduled

with the attorney. If the attorney is not aware of the authority level, you have no

confirmation that the person who convinced you to mediate has any basis to think

that the mediation will succeed. An attorney with no knowledge of the authority

level is unlikely to be of much influence on the final outcome of the case.

Authority levels are more problematic in the era of “Roundtables” and

Locked-In Authority. Every representative who attends come with some level of

authority for offers. If, however, the authority has been set by a group (particularly

a group where most of the members have no direct responsibility for the file), it

will be very difficult for the defendant to respond to your arguments or the facts

that were overlooked to get the original authority. In some cases, they may not be

able to “make a call” to get more authority.

5. Should you confirm the amount of the liens and their negotiability?

Unless the plaintiff is the rare person who does not care how much of the

settlement they will receive, you need to identify the liens and have a plan, if not a


commitment, for disposing of them. The plaintiff is interested in their “net,” and

you cannot give them that number without addressing the liens.

6. How does Medicare affect the issuance of drafts?

If the plaintiff has received Medicare benefits, or if they are eligible for

Medicare, most insurance companies will not issue a draft until they receive

confirmation from Medicare that their claim has been resolved. Generally, that

cannot be done until after a settlement has been reached. Do not allow a plaintiff

to leave a mediation expecting a check next week when Medicare will take sixty

days to provide a final figure.

7. Who should speak at the general session of the mediation?

One good indication of the likelihood of a trial is the willingness of the

plaintiff to speak during the general session. Anyone who is uncomfortable

speaking to a small group of five people who came together with the common goal

of settling a case by agreement is unlikely to be willing to go through the stress of

a trial, let alone be effective in a courtroom. Claim representatives want to settle

cases with people that jurors will like and want to help. The plaintiff should speak

if the attorney wants to create the impression that settlement at mediation is not a

foregone conclusion.

Similarly, the claim representative should speak, especially in an uninsured

motorist case where the plaintiff is a customer of their company. In any case,

however, the plaintiff needs to hear that someone on the other side regrets the

circumstances necessitating litigation.

8. Should I expect mediation costs to be paid if the mediation is successful?

The answer depends on the insurer. For many years, it was standard practice

for all insurance companies to pay the plaintiff’s share of mediation costs (in

addition to their own) if the case was settled at mediation. The payment of such

costs is classified as an “adjustment expense” much like attorney’s fees or case

expenses. Given the number of mediations involving the large insurance

companies, this added up to a considerable expense for these companies. Several

have adopted the uniform rule that they will only pay their share of the charges.

Unfortunately, this rule is applied by those insurers regardless of the size of the

case.

Some plaintiff attorneys attempt to address this problem by adding $1000 or

some similar amount to cover the plaintiff’s share of the mediation costs. Because

of contingency fee arrangements, of course, the attorney receives a portion of this

additional sum, meaning that the defendant will have to pay more than the

mediation costs to cover the true costs for the client.

9. If the case does not settle at mediation, was the process a failure?


Even a failed mediation gives you an opportunity to assess the case, possibly

to assess the plaintiff, and to address any deficiencies in your presentation or case

before trial. Moreover, a significant percentage of cases settle shortly after the

mediation has concluded. Negotiations can continue and you will be better

prepared to address the opposing party’s arguments at trial.

C. The Mediator’s Role

Select a mediator who (a) brings value to the process, especially someone

with experience in the subject matter of the case; (b) the parties will respect and to

whom they will listen; and (c) can give you feedback on you cases. You want

someone who will give you meaningful commentary on your strengths and

weaknesses.

It is important to know what the mediator is not:

Not a judge, not a jury: they have no power to compel any

activity or result;

Not a legal advisor;

Not a clairvoyant who predicts jury verdicts; and

Not a mere message taker-as to amount or silly contentions.

There are two basic approaches by mediators: the Facilitative and the

Evaluative. In a simplistic sense, Evaluative Mediators provide more opinions and

insights. Evaluative mediators will assume that you want their opinions on the

merits and they will be free to give those opinions to you.


Defendant’s Letter-One Week Before Mediation Dear , In preparation for the mediation on , my client has requested a complete and up-to date statement of damages. With this information, we can give your client a full and fair evaluation of the claim. At the present time, I understand the total medical expenses incurred by your client to be $ . As we have discussed, we are missing some of the medical bills. I have attached our summary of the bills you have provided and would ask that you provide us with any that you have which we have not included. I need those additional bills by in order to have them considered in our evaluation of the case You allege lost wages of $ [OR] It is my understanding that your client had no loss of income as a result of this accident. The date of the last time missed from work was . It is my understanding that your client has not had any treatment since their final visit to Dr. on . If your client has been treated for any injuries or problems since that time, or if their condition has changed materially since their deposition, that information will have to be provided immediately in order to be given any consideration at the mediation. If your client is claiming special damages other than those outlined above, or if there are undisclosed circumstances which give this claim a value outside of the ordinary, please let me know immediately. Medical expenses or income documentation not provided prior to the mediation cannot be taken into consideration in our evaluation. Finally, I show that your last demand in the case was $ . Our last offer was $ . If that is not consistent with your records, please let me know. I appreciate your assistance in confirming that my insurer has all of the information they need to properly evaluate the case. I look forward to seeing you next . Sincerely, Enclosure

Plaintiff’s Letter-One Week Before Mediation Dear , In preparation for the mediation on , I am enclosing a summary of our medical specials. If you are missing any of the bills or need further confirmation concerning the charges, please notify me immediately as to what you are missing. My client has incurred lost wages of $ . The date of the last time they missed an entire day from work was . He/she has been under limited activities at work for the period through and including . As you know from prior communication, we contend that this case has special value because of the following factors: . For that reason, we expect discussions to require offers in excess of what your carrier has paid in previous cases. In order to avoid any dispute as to the status of pre-mediation settlement discussions, I show that our last demand in the case was $ . Your last offer was $ . If that is not consistent with your records, please let me know immediately. I also want to confirm that (a) you will have the assigned claim representative, , or their supervisor, attend the mediation in person [by phone] and (b) you are aware of the settlement authority they will have and believe it to be a reasonable amount for this claim. I appreciate your assistance in confirming that the insurance company has all of the information they need to properly evaluate the case. I look forward to seeing you next . Sincerely, Enclosure


9:10 NEGOTIATING PERSONAL INJURY ACTIONS Terrell W. “Chip” Benton, III, Hall Booth Smith PC, Atlanta


12/19/17

1

NEGOTIATIONS

John E. Hall, Jr., Esq.Hall Booth Smith, [email protected]

• We have a tendency to use anchors or reference points to make decisions and evaluations, and sometimes these lead us astray.

12/19/17

2

• The Misconception: You rationally analyze all factors before making a choice or determining value.

• The Truth: Your first perception lingers in your mind, affecting later perceptions and decisions.


12/19/17

3

•  You walk into a clothing store and see what is probably the best leather jacket you have ever seen.

•  You try it on, look in the mirror and decide you must have it. While wearing this item, you imagine onlookers will clutch their chests and gasp every time you walk into a room or cross a street. You lift the sleeve to check the price – $1,000.

•  Well, that’s that, you think. You start to head back to the hanger when a salesperson stops you.

•  “You like it?”•  “I love it, but it’s just too much.”•  “No, that jacket is on sale right now for $400.”•  It’s expensive, and you don’t need it really, but $600

off the price seems like a great deal for a coat which will increase your cool by a factor of 11.

•  You put it on the card, unaware you’ve been tricked by the oldest retail con in the business.

•  Does a $800 Louis Vuitton purse function better than a $25 handbag from Wal-Mart?

•  No? not even if it was hand made from giraffe leather and stitched by real, magical leprechauns.

•  It’s just a purse. •  But the anchor is set. Louis

Vuitton bags are expensive, and that in itself has social value. People still buy them and are happy with their purchase.

•  If Wal-Mart offered a purse at $800 it would live out its life on the shelf. The price would be so far from the anchors already set by the store it would seem like a bad deal.

12/19/17

4

• So, if I’m told the price of a particular diamond ring is $5K, I’ll tend to search around looking for evidence that confirms this.

•  In this case it’s easy: plenty of diamond rings cost about that, no matter the value of this particular ring

• For all I know about diamond rings it could be worth $500 or $50,000, but I am reassured by my “research”.

•  Is the population of Venezuela greater or fewer than 60 million? Go ahead and guess.

•  Ok, another question, how many people do you think live Venezuela? Come up with a figure and keep it in your head.


12/19/17

5

Experiments

•  Auction experimenters conducted a study in which they asked people to listen to annoying sounds for money.

•  The researchers initially offered either 90 cents or 10 cents for a blast of awful electronic screaming

•  Then they asked the subjects how much would be the lowest possible price they would need to be paid to listen to the sound

i

Experiments •  People who were offered 10

cents said it would take about 33 cents to continue.

•  People offered 90 cents said it would take 73 cents to continue.

•  They repeated the experiment in other ways, but no matter how they messed with the sounds or the payouts, those who were first offered a low payment consistently agreed to lower amounts than those offered higher payouts at the start

•  People who got more money at first were unwilling to accept lower payments later

12/19/17

6

Make the 1st offer or not?

•  In research by Kellogg faculty, they dug deep into the question of, "Should you make the first offer, or let the other person do it?"

• There is a widespread, almost unquestionable, assumption that it is wise and strategic to let the other person talk first - and that it is suicidal to make the first offer.


•  Conversely, several research investigations show a strong and powerful positive effect of making the first offer.

•  The negotiator who puts the first offer on the table has an advantage, other factors remaining constant.

•  That means that if you and I have done equal preparation and have similar leverage points, you will have an advantage if you make the first offer.


12/19/17

5

Experiments

•  Auction experimenters conducted a study in which they asked people to listen to annoying sounds for money.

•  The researchers initially offered either 90 cents or 10 cents for a blast of awful electronic screaming

•  Then they asked the subjects how much would be the lowest possible price they would need to be paid to listen to the sound

i

Experiments •  People who were offered 10

cents said it would take about 33 cents to continue.

•  People offered 90 cents said it would take 73 cents to continue.

•  They repeated the experiment in other ways, but no matter how they messed with the sounds or the payouts, those who were first offered a low payment consistently agreed to lower amounts than those offered higher payouts at the start

•  People who got more money at first were unwilling to accept lower payments later

12/19/17

6


•  In research by Kellogg faculty, they dug deep into the question of, "Should you make the first offer, or let the other person do it?"

• There is a widespread, almost unquestionable, assumption that it is wise and strategic to let the other person talk first - and that it is suicidal to make the first offer.


•  Conversely, several research investigations show a strong and powerful positive effect of making the first offer.

•  The negotiator who puts the first offer on the table has an advantage, other factors remaining constant.

•  That means that if you and I have done equal preparation and have similar leverage points, you will have an advantage if you make the first offer.


12/19/17

7


• Opening offers also influence the offers that the other party (the opponent) makes.

• Meaning, if you open first, the other party's counteroffer is influenced by your offer - not good for them.

WHAT IS THE ANCHOR NUMBER?

•  Juries asked to assign value or a number to a case, but often this is a difficult task

•  “When asked to make quantitative decisions in novel situations, people use available numbers as a starting point or anchor for their reasoning. ”1

•  When people have difficulty determining a monetary amount to assign to the case, they resort to mental shortcuts, known as “anchoring” and adjustment heuristic.2

1 Schmitz, Jessica L., “The Effect of Random Anchors on Damage Awards,” www.lagrange.edu/resources/pdf/citations/2007/psychology/psy-Schmits.pdf 2 Id.

12/19/17

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• According to the anchoring principle, the first offer made in a negotiation sets up a powerful, unconscious psychological anchor that acts as a gravitational force.

• Stated simply, there is a strong correlation between first offers and final outcomes.

•  Jury studies show that when defendants produced no testimony contesting plaintiff’s damage estimates……………..

•  Jurors felt they had no choice but to rely on the plaintiff’s damages evidence


12/19/17

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Additional Findings

•  Some attorneys worry juries will interpret an alternative response as a concession of liability at worst, or a damages floor at best

•  RESEARCH SHOWS JURORS STILL CONSIDER OTHER ASPECTS OF CASE.

776 mock jurors Medical Malpractice Trial - 6 groups • Low Plaintiff Demand ($250k) or High

Plaintiff Demand ($5M)Damages:

• For individual jurors, average damages jumped from $225,765 to $1,859,137 as the demand increased from $250,000 to $5 million

• The defense counter anchor lowered damages by 41% THAN WHEN DEFENSE DID NOT OFFER A COUNTER TO JURORS

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Additional Findings

•  Anchoring effects persists even when anchors are extreme. One study tested demands ranging from $100 to $1 billion. Both the absurdly low and inordinately high demands produced anchoring effects.

•  Within 31 actual audiotaped jury deliberations; there were 1,624 references to the attorney’s recommendations – mentioned by 86% of the jurors.

•  Even jurors who criticized the plaintiff’s anchors as too high or outrageous use the number as a starting point (e.g., “I’ll give them half.”)

Research Studies on the Impact of Anchoring on Personal Injury Lawsuits Study 1: 248 mock jurors – 3 levels of Plaintiff requests; No defense response


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Research Studies on the Impact of Anchoring on Personal Injury Lawsuits •  Study 2: 265 mock jurors

–  Four groups: 1. Contested liability and offered alternative damages; 2. Stipulated liability and offered alternatives damages; 3. Contested liability and provided no suggestion for damages; 4. Stipulated liability and provided no suggestion for damages

•  Awards lower – by 43% – when the defense offered an alternative damages amount (i.e., anchoring and adjustment heuristics)

•  On average, damage awards were also 22% lower when defendant stipulated to liability – though all found liability

STATE OF INDUSTRY

Plaintiff Leads• Plaintiff used medical bills and treating

physicians to set value• Life care plans are damages tools for

designed by plaintiff attorneys. –Deutsch• Last 20 years, Plaintiff has driven the value

by how damages are determined

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GETTING TO THE VALUE NUMBER • Crucial to develop own number – do not

rely on Plaintiff’s calculations • Do this EARLY, through discovery and

expert review • Checklist of experts and discovery to

provide the necessary information and accurately set the value

• Do this on an aggressive timeline

ANCHOR THE VALUE

•  Any number will have an effect on a jury, but a meaningful number – one that provides a reference point that matters in the context of the case – carries a stronger and more predictable effect

•  Defense should be prepared to present a counter-anchor to any amount put forth by the plaintiff

•  Building the defense’s case with the knowledge of its value at the outset is crucial to having a meaningful counter-anchor by the time the


12/19/17

13

EARLY RESOLUTION BASED ON ACCURATE VALUE NUMBER •  Data shows that resolution of a claim within

6 months and/or prior to the suit being filed can lead to a cost reduction of as much as 50%

•  Develop damages at beginning of case to establish a base line early

PRESENTING ACTUAL VALUE AT MEDIATION • Settlement presentations

–  At every mediation we should prepare and be able to present, if strategically advantageous, the following models of future medical expenses, along with annuity costs for those models(1) Plaintiff’s Life Care Plan(2) Plaintiff’s Life Care Plan with Insurance(3) Defendant’s Life Care Plan(4) Defendant’s Life Care Plan with Insurance(5) Future costs of care under Medicare/Medicaid

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Mediation and The Reptile

•  It is crucial to find the person whose head is at stake

•  Demand that the person attending has the power to settle for an amount you specify

•  Require the defendant to be there the whole time•  Be willing to walk away / Do not settle at 1st

mediation•  Defendant will always offer the money he has

offered before.•  Defendant will reduce their offers•  Defendants pay more to avoid imminent trial

STAYING WITH THE VALUE

• Once value is set, stay with it• Be aware of changing circumstance and

reevaluate if needed• However, absent change, manage the file

based on the set value•  Including taking to trial if not in that range.• Trial


12/19/17

15

DEVELOPING THE VALUE - OVERVIEW 1)  What was plaintiff’s Pre-event status/Pre-

existing condition2)  Has plaintiff been taken care of well /

Managed by real providers3)  What are the real costs since the event until

the present - Actual costs vs. Billed4)  Show what collateral sources have been

(trial/settlement)

DEVELOPING THE VALUE - OVERVIEW 5)  Set the real value of the case early6)  Strategies for real future costs and

supporting valuea)  Role and benefits of Medicare Set Asideb)  Role and strategy of Medicaid Waiver Programsc)  Use ACA to show valued)  Special Needs Truste)  Use annuity testimony to show value of moneyf)  Use of financial professionals to show real investment

12/19/17

16

DEVELOPING THE VALUE - OVERVIEW 7)  Collateral source barriers and benefits8)  Undermine the Plaintiff’s Proof by showing

exaggerated future costs of care9)  Presenting actual value at mediation10) Taking the case to trial

• Remember, it takes both sides to resolve a case

• You have to consider in your pursuit, how to have the other side see your number as a win (ex. Special Needs Trust)

• To have them understand your Anchor value you have to understand their needs and then have them see how you are getting them there.

•  If both sides don’t agree, the Realistic path is the right path to the jury.


12/19/17

17

Vaccinate Against Plaintiff Anchoring • One way of avoiding this bias - whether it’s

emotional or in decision-making - is by trying to wriggle free from the anchor state.

•  This can be done by thinking about other comparisons. That is what we are doing when we comparison shop: getting some new price anchors.

• When negotiating it might mean thinking about what the other options are (negotiation theorists call this the ‘BATNA’: the best alternative to a negotiated agreement).

Alternatively, for nullifying the anchoring effect in decision-making, find out more

about the area: experts are less susceptible to it.

12/19/17

18

•  What if I told you the population of Venezuela is between 10 and 80 million.

•  Think about it….

•  Write down a number.

TORT REFORM BIRTHED LIFE CARE PLANS

• Reform has shifted focus from non-economic damages to economic damages

• Evidence to show large number of future costs of care for plaintiff in order to avoid caps to damages request for non-economic damages


12/19/17

19

PROBLEMS

• Competition between life care planners has lead to a highest price race between planners competing for plaintiff attorneys’ work

• No one is paying attention to the differential between the plaintiff’s prior existing pecuniary problem and the added problem caused by a tort

PROBLEMS

• Actual value of the Plaintiff’s needs are lost – jury is only focused on numbers put in front of them

•  Increased exposure to defense to pay high cost of future care based on inflated prices by plaintiff

• Risk of reliance solely on plaintiff’s numbers

12/19/17

20

LIFE CARE PLANNERS

• Purposely ignore past actual:– Medical expenses– Attendant care and service costs– Average lifetime costs for cerebral palsy

and other developmental disabilities–  Individualized Economic Plans specific to

the plaintiff in the case

Undermine the plaintiff proof by showing exaggerated future costs of care

– Undermine the life care plan– Using the Plaintiff’s life care plan to

establish your case– Using the Plaintiff’s economist to

establish your case– Using life expectancy to show real costs


12/19/17

21

UNDERMINE PLAINTIFF’S LIFE CARE PLAN

• Use the text and literature of life care planners to show the other sources available to the plaintiff

• Go through those other sources concerning benefits and eligibility to show Plaintiff can utilize

EXERCISE – Clear Liability (Failure to Diagnosis Meningitis)

•  Jordan is 9 year old little girl• Was born normal healthy baby•  Injury from meningitis at 6 months•  IQ is now 65• Can walk 15 steps with assistance• Will never live alone

12/19/17

22


• Plaintiff Evidence For Economic Damages–  $65,000 in medical care per year for 65 more

years = $4,225,000–  $100,000 Assistance in Care for parents until 18

(11 years) = $1,100,000–  Future custodial costs after 18 until 65 of

$150,000 per year (47 years)= $7,050,000Total $12,375,000


•  Additional fact - Cost of Annual Custodial care after 18 is $70,000•  Additional fact - Average cost of medicals per year the last 9 years

is $17,000•  Additional fact - Actual cost of custodial assistance last 9 years is

$12,000 (School and other programs)

Defense Evidence For Economic Need–  $20,000 in medical care per year for 65 more years =

$1,300,000–  $25,000 Assistance in Care for parents until 18 (11 years) =

$275,000–  Future custodial costs after 18 until 65 of $70,000 per year (47

years) = $3,290,000

Total $4,865,000


12/19/17

21

UNDERMINE PLAINTIFF’S LIFE CARE PLAN

• Use the text and literature of life care planners to show the other sources available to the plaintiff

• Go through those other sources concerning benefits and eligibility to show Plaintiff can utilize


•  Jordan is 9 year old little girl• Was born normal healthy baby•  Injury from meningitis at 6 months•  IQ is now 65• Can walk 15 steps with assistance• Will never live alone

12/19/17

22


• Plaintiff Evidence For Economic Damages–  $65,000 in medical care per year for 65 more

years = $4,225,000–  $100,000 Assistance in Care for parents until 18

(11 years) = $1,100,000–  Future custodial costs after 18 until 65 of

$150,000 per year (47 years)= $7,050,000Total $12,375,000


•  Additional fact - Cost of Annual Custodial care after 18 is $70,000•  Additional fact - Average cost of medicals per year the last 9 years

is $17,000•  Additional fact - Actual cost of custodial assistance last 9 years is

$12,000 (School and other programs)

Defense Evidence For Economic Need–  $20,000 in medical care per year for 65 more years =

$1,300,000–  $25,000 Assistance in Care for parents until 18 (11 years) =

$275,000–  Future custodial costs after 18 until 65 of $70,000 per year (47

years) = $3,290,000

Total $4,865,000


12/19/17

23


•  Additional fact - (life expectancy of total 25 years)Defense Evidence For Economic Need

–  $20,000 in medical care per year for 25 more years = $500,000

–  $25,000 Assistance in Care for parents until 18 (11 years) = $275,000

–  Future custodial costs after 18 until 25 of $70,000 per year (7 years) = $490,000

Total $1,265,000


•  Additional fact - (life expectancy of total 25 years)•  Additional fact - ACA policy

Defense Evidence For Economic Need–  $10,000 in medical care per year for 25 more

years = $250,000–  $25,000 Assistance in Care for parents until 18

(11 years) = $275,000–  Future custodial costs after 18 until 25 of

$70,000 per year (7 years) = $490,000Total $1,155,000

12/19/17

24

How old was Mahatma Gandhi when he died? •  For half of you I’ll preface the question by saying: “Did he die

before or after the age of 9?” •  For the other half I’ll say: “Did he die before or after the age of

140?”•  Obviously these are not very helpful statements. Anyone who has

any clue who Gandhi was will know that he was definitely older than 9; while the oldest person who ever lived was 122. So why bother making these apparently stupid statements?

•  Because, according to the results of a study conducted by Strack and Mussweiler (1999), these initial statements, despite being unhelpful, affect the estimates people make.

•  In their experiment, the first group guessed an average age of 50 and the second guessed 67.

•  Neither was that close, he was actually assassinated at 87; but you can still see the effect of the initial number.

•  The population of Venezuela is 28 million people.

•  How far away was your answer?

•  If you are like most people you assumed something much higher.


12/19/17

25

CHANGE THE MINDSET

• Defense must set the value of the case from the beginning, regardless of liability

• Do this by propounding the right discovery, obtaining the right experts, and identifying the right areas where value will be challenged

• Must do this within the first 90 days of litigation


10:00 ETHICS IN HANDLING PERSONAL INJURY CASES J. Maria Waters, Worsham Corsi Scott & Dobur, Savannah


11:00 TRAUMATIC BRAIN INJURY DEFENSE (Mr. Fox will record his presentation before the event.) Warner S. Fox, Hawkins Parnell Thackston & Young LLP, Atlanta


Mild Traumatic Brain Injuries

Warner S. Fox

1

TBI INCIDENCE-PREVALENCE-COSTCDC INJURY DATA

• 1.7 MILLION PER YEAR 1• 275,000 HOSPITALIZED 1

• 5.3 MILLION LIVING WITH TBI 2• DIRECT+INDIRECT COST $76.5 BILLION3

1. Faul, M., Xu, L., Wald, M., and Coronado VG. Traumatic brain injury in the United States: emergency department visits, hospitalizations, and deaths. Centers for Disease Control and Prevention, National Center for Injury Prevention and Control; 2010.

2. Thurman D, Alverson C, Dunn K, Guerrero J, Sniezek J. Traumatic brain injury in the United States: a public health perspective. J Head Trauma Rehabil 1999;14(6):602-615.

3. CDC Website

2


Defense Department TBI Database

• Shows that 202,281 service members sustained a TBI between 2000-2010

• The majority experience a mild TBI or concussion

• Approximately 85 to 90 percent of combat exposed troops who sustain a mild TBI experience a complete resolution of symptoms within the first several days to weeks after the incident

3

4


MILD BRAIN INJURY

• GLASGOW COMA SCORE 13-15• +/- LOSS OF CONSCIOUSNESS• NORMAL NEUROLOGIC EXAMINATION• NORMAL NEUROIMAGING• TYPICAL SYMPTOMS

– HEADACHE– DIZZINESS– IMPAIRED INFORMATION PROCESSING

5SM

MILD COMPLICATED BRAIN INJURY

• GLASGOW COMA SCORE 13-15• +/- LOSS OF CONSCIOUSNESS• NORMAL OR ABNORMAL NEUROLOGIC

EXAMINATION• ABNORMAL NEUROIMAGING

– SUBARACHNOID HEMORRHAGE– SUBDURAL HEMORRHAGE– CEREBRAL CONTUSION

6SM


MODERATE TRAUMATIC BRAIN INJURY

• GLASGOW COMA SCORE 9-12• +LOSS OF CONSCIOUSNESS• TIME TO FOLLOW COMMANDS < 7

DAYS• ABNORMAL NEUROLOGIC

EXAMINATION• ABNORMAL NEUROIMAGING COMMON

7SM

SEVERE TRAUMATIC BRAIN INJURY

• GLASGOW COMA SCORE 3-8• COMA: DAYS-WEEKS• TIME TO FOLLOW COMMANDS > 7 DAYS• ABNORMAL NEUROLOGIC

EXAMINATION• ABNORMAL NEUROIMAGING COMMON

8SM


9

10


11

12


• Medical literature and research denote that recovery from a mild concussion is practically universal.

• Mild concussions are not known to commonly result in brain damage or any permanent pathology.

Majority of TBI/CHI/MTBI

13

• Most patients with mild traumatic brain injury improve and are able to return to school or work within days or weeks.

• Two-thirds of patients with a mild traumatic brain injury return to their jobs within three months and most patients are asymptomatic after six months.

Mild Traumatic Brain Injury(MTBI)

14


15

16SM


NEUROPSYCHOLOGICAL ASSESSMENT: OBJECTIVES

• DOCUMENT NEUROPSYCHOLOGICAL FUNCTIONING

• DETERMINE IF ABNORMALITY PRESENT• CORRELATE TEST SCORES WITH HISTORY• DETERMINE IMPACT OF

NEUROPSYCHOLOGICAL FUNCTIONING ON BEHAVIOR

• DETERMINE IF NEUROPSYCHOLOGICAL DEFENSE OR MITIGATION EXISTS

17SM

TECHNICAL PROBLEMS

• USING THE WRONG TESTS• USING OUTDATED TESTS• USING TESTS WITH POOR NORMS• USING TESTS NOT VALIDATED IN TBI RESEARCH• USING INTERPRETERS WITH NON-ENGLISH

SPEAKING TBI PERSONS• ADMINISTERING TESTS IMPROPERLY• SCORING TESTS IMPROPERLY• FAILING TO REPORT STANDARD SCORES

18


COMMON DIAGNOSTIC PROBLEMS

• FAILURE TO USE NORMS• ASSSUME UNIFORM PERFORMANCE ACROSS 25 TESTS• EQUATING IMPAIRED TEST PERFORMANCE WITH

“BRAIN DAMAGE”• FAILURE TO DISTINGUISH BETWEEN WEIGHT AND

CONSISTENCY OF SYMPTOMS/SIGN• MAKING PREDICTIONS UNSUPPORTED BY SCIENCE• FAILURE TO USE DAUBERT

– CONSTRUCT TESTED– PEER REVIEWED– ERROR RATE KNOWN– GENERALLY ACCEPTED

19

COMMON DIAGNOSTIC PROBLEMS

• CONFIRMATORY BIAS• SOFT HEARTEDNESS VERSUS SOFT HEADEDNESS • LACK OF UNDERSTANDING OF EXISTING EMPIRICAL

EVIDENCE• LACK OF UNDERSTANDING OF BASIC PSYCHOMETRICS• FAILURE TO CONSIDER MULTIPLE INDICATORS OF EFFORT• FAILURE TO CONSIDER MATRIX OF DATA

– HISTORY– TEST PERFORMANCE– CURRENT FUNCTIONING

20


RED FLAGS

• INJURY SEVERITY AND COMPLAINTS DISCORDANT• SYMPTOMS DEVELOP WELL AFTER INJURY• NEW SYMPTOMS APPEAR DURING FOLLOW-UP• SYMPTOMS WORSEN OVER TIME• SELF-REPORTED HISTORY CHANGES OVER TIME• SYMPTOMS INCONGRUENT WITH CURRENT

SCIENCE (“SEIZURES” IN PERSONS WITH MTBI)• INJURY HISTORY AND NEUROPSYCHOLOGICAL

DIAGNOSIS DISCORDANT

21SM

RED FLAGS

• PRE-INJURY HISTORY OF COGNITIVE PROBLEMS • PRE-INJURY HISTORY OF PSYCHIATRIC DX

• ANXIETY/DEPRESSION/PHYSICAL-SEXUAL ABUSE

• SIMILAR PRE-INJURY SYMPTOM COMPLAINTS• MULTIPLE PRE-INJURY MEDICAL PROBLEMS

WITHOUT DIAGNOSIS• HISTORY OF LITIGATION +/-• OCCUPATIONAL DYSFUNCTION

22SM


What Needs to be Obtained to Evaluate a Head Injury

• EMT Records• Emergency Room

Records• Medical Records

23

• Military records• Education records

– High School Graduation Tests– College Aptitude Tests

Gathering Records

24


Answer: The Plaintiff’s baseline level of functioning prior to the event.

More importantly, was the Plaintiff already impaired?

25

CONSULTANT ROLE• RECORD REVIEW

– ALWAYS FIRST STEP

• DEPOSITION – PREPARE QUESTIONS FOR

DISCOVERY

• ASSESSMENT • CROSS EXAMINATION OF OTHER

EXPERTS– PREPARE QUESTIONS FOR TRIAL

• TESTIMONY

26


Plaintiff’s Deposition

• Always videotape

• Always display date & time on screen

• Lengthy

• Put Plaintiff(s) at ease

• Tease out life stressors

• Latch inconsistency

• Let Plaintiff talk

27

TBI SEVERITY

• GENERAL CLINICAL METRICS– GLASGOW COMA SCORE– DURATION OF UNCONSCIOUSNESS– DURATION OF CONFUSION/DELIRIUM– NEUROIMAGING FINDINGS– SECONDARY COMPLICATIONS

28


29

NEUROPSYCHOLOGICAL ASSESSMENT: OBJECTIVES

• DOCUMENT NEUROPSYCHOLOGICAL FUNCTIONING

• DETERMINE IF ABNORMALITY PRESENT• CORRELATE TEST SCORES WITH HISTORY• DETERMINE IMPACT OF

NEUROPSYCHOLOGICAL FUNCTIONING ON BEHAVIOR

• DETERMINE IF NEUROPSYCHOLOGICAL DEFENSE OR MITIGATION EXISTS

30


12:10 APPORTIONMENT: DOES IT WORK Sean L. Hynes


1

Apportionment

Sean L. Hynes, Esq. DOWNEY & CLEVELAND, LLP

288 Washington Avenue Marietta, Georgia 30060

[email protected]

Since its enactment in 2005, O.C.G.A. § 51-12-33, “the apportionment

statute” has kept litigants, attorneys, trial courts, and appellate courts busy. A fair

synopsis of the current state of the appointment statute follows:

• Constitutional challenges have failed;

• It codifies comparative negligence;

• It applies to negligence and intentional torts;

• It applies even if the plaintiff is not negligent;

• “Fault” can be apportioned to the plaintiff; defendants; and other

tortfeasors, even if they are not subject to suit;

• Strict compliance with notice provisions is required; and

• The defense must present proof of non-party fault.

More on the above points, and others, are detailed below.

Background and enactment:

What is referred to today as the “apportionment statute”, O.C.G.A. § 51-12-

33, was originally enacted in 1987. It was initially titled: “[a]pportionment of

damages in actions against more than one person where plaintiff is to some degree

2

responsible for injury or damages claimed.” The full text of the original statute was

as follows:

(a) Where an action is brought against more than one person for injury to person or property and the plaintiff is himself to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, may apportion its award of damages among the persons who are liable and whose degree of fault is greater than that of the injured party according to the degree of fault of each person. Damages, if apportioned by the trier of fact as provided in this Code section, shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

(b) Subsection (a) of this Code section shall not affect venue provisions regarding joint actions.

(c) This Code section shall apply only to causes of action arising on or after July 1, 1987.

Under the original version of O.C.G.A. § 51-12-33, a jury could not apportion

damages to a non-party. In Fraker v. C.W. Matthews Contracting Co., Inc., the

Court of Appeals reversed the trial court’s ruling that a jury could apportion fault

against a non-party at-fault driver in an action against the DOT. 272 Ga. App. 807

(2005). See also Schriever v. Maddox, 259 Ga. App. 558, 561 (2003) (holding that

defendants in medical malpractice action could not seek to have damages

apportioned to a doctor who had previously been dismissed from the suit).

The inability of defendants to apportion fault to non-parties, likely led to the

amendments to O.C.G.A. § 51-12-33 contained in Senate Bill 3 in 2005, which


1

Apportionment

Sean L. Hynes, Esq. DOWNEY & CLEVELAND, LLP


[email protected]

Since its enactment in 2005, O.C.G.A. § 51-12-33, “the apportionment

statute” has kept litigants, attorneys, trial courts, and appellate courts busy. A fair

synopsis of the current state of the appointment statute follows:

• Constitutional challenges have failed;

• It codifies comparative negligence;

• It applies to negligence and intentional torts;

• It applies even if the plaintiff is not negligent;

• “Fault” can be apportioned to the plaintiff; defendants; and other

tortfeasors, even if they are not subject to suit;

• Strict compliance with notice provisions is required; and

• The defense must present proof of non-party fault.

More on the above points, and others, are detailed below.

Background and enactment:

What is referred to today as the “apportionment statute”, O.C.G.A. § 51-12-

33, was originally enacted in 1987. It was initially titled: “[a]pportionment of

damages in actions against more than one person where plaintiff is to some degree

2

responsible for injury or damages claimed.” The full text of the original statute was

as follows:

(a) Where an action is brought against more than one person for injury to person or property and the plaintiff is himself to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, may apportion its award of damages among the persons who are liable and whose degree of fault is greater than that of the injured party according to the degree of fault of each person. Damages, if apportioned by the trier of fact as provided in this Code section, shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

(b) Subsection (a) of this Code section shall not affect venue provisions regarding joint actions.

(c) This Code section shall apply only to causes of action arising on or after July 1, 1987.

Under the original version of O.C.G.A. § 51-12-33, a jury could not apportion

damages to a non-party. In Fraker v. C.W. Matthews Contracting Co., Inc., the

Court of Appeals reversed the trial court’s ruling that a jury could apportion fault

against a non-party at-fault driver in an action against the DOT. 272 Ga. App. 807

(2005). See also Schriever v. Maddox, 259 Ga. App. 558, 561 (2003) (holding that

defendants in medical malpractice action could not seek to have damages

apportioned to a doctor who had previously been dismissed from the suit).

The inability of defendants to apportion fault to non-parties, likely led to the

amendments to O.C.G.A. § 51-12-33 contained in Senate Bill 3 in 2005, which


3

was Georgia’s effort at comprehensive tort reform. In February of 2005, Senate

Bill 3 was signed into law. Senate Bill 3 included significant amendments to

O.C.G.A. § 51-12-33. The primary amendments relate to apportioning fault to non-

parties. The amended statute is titled: “[a]pportionment of damages in actions

against more than one person according to the percentage of fault of each person”

and the full text of the statute is below:

(a) Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.

(b) Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

(c) In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.

(d)(1) Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault.

4

(2) The notice shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty's name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.

(e) Nothing in this Code section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly stated in this Code section.

(f)(1) Assessments of percentages of fault of nonparties shall be used only in the determination of the percentage of fault of named parties.

(2) Where fault is assessed against nonparties pursuant to this Code section, findings of fault shall not subject any nonparty to liability in any action or be introduced as evidence of liability in any action.

(g) Notwithstanding the provisions of this Code section or any other provisions of law which might be construed to the contrary, the plaintiff shall not be entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages claimed.

O.C.G.A. § 51-12-33. The purpose of the apportionment statute is to ensure that

each tortfeasor responsible for the plaintiff’s harm, including the plaintiff, be held

responsible only for his or her respective share of the harm. Wade v. Allstate Fire

and Cas. Co., 324 Ga. App. 491, 494 (2013) and Couch v. Red Roof Inns, Inc., 291

Ga. 359, 365 (2012).

The 2005 amendment became effective in February of 2005 and applies only

to cause of actions arising on or after February 16, 2005. Turner v. New Horizons

Cmty. Serv. Bd., 287 Ga. App. 329, 330, (2007).


3

was Georgia’s effort at comprehensive tort reform. In February of 2005, Senate

Bill 3 was signed into law. Senate Bill 3 included significant amendments to

O.C.G.A. § 51-12-33. The primary amendments relate to apportioning fault to non-

parties. The amended statute is titled: “[a]pportionment of damages in actions

against more than one person according to the percentage of fault of each person”

and the full text of the statute is below:


(b) Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

(c) In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.

(d)(1) Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault.

4

(2) The notice shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty's name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.

(e) Nothing in this Code section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly stated in this Code section.

(f)(1) Assessments of percentages of fault of nonparties shall be used only in the determination of the percentage of fault of named parties.

(2) Where fault is assessed against nonparties pursuant to this Code section, findings of fault shall not subject any nonparty to liability in any action or be introduced as evidence of liability in any action.

(g) Notwithstanding the provisions of this Code section or any other provisions of law which might be construed to the contrary, the plaintiff shall not be entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages claimed.

O.C.G.A. § 51-12-33. The purpose of the apportionment statute is to ensure that

each tortfeasor responsible for the plaintiff’s harm, including the plaintiff, be held

responsible only for his or her respective share of the harm. Wade v. Allstate Fire

and Cas. Co., 324 Ga. App. 491, 494 (2013) and Couch v. Red Roof Inns, Inc., 291

Ga. 359, 365 (2012).

The 2005 amendment became effective in February of 2005 and applies only

to cause of actions arising on or after February 16, 2005. Turner v. New Horizons

Cmty. Serv. Bd., 287 Ga. App. 329, 330, (2007).


5

The first appellate decision involving the amended version of O.C.G.A. §

51-12-33 appears to be Bailey v. Annistown Road Baptist Church, Inc., 301 Ga.

App. 677 (2010). In this negligence, nuisance, and trespass action involving

surface water run-off, the Court of Appeals addressed the entry of judgment on two

verdict forms and the trial court’s initial failure to instruct the jury on subsection

(g). The jury was not initially instructed that if the plaintiff was found 50 percent

or more at fault she would recover nothing. The jury then returned a verdict finding

the plaintiff was 50 percent at fault. The trial court then instructed the jury as to

subsection (g); the jury continued deliberating; and then found the plaintiff was 49

percent at fault. The Bailey Court did not interpret O.C.G.A. § 51-12-33 or address

any challenges to it.

Constitutional Challenges:

Georgia Courts have considered, and rejected, several constitutional

challenges to the apportionment statute. In Couch v. Red Roof Inns, Inc., the

Supreme Court held the procedures set forth in O.C.G.A. § 51-12-33 requiring

instructions that a jury apportion fault and use a special verdict form requiring

apportionment do not violate a plaintiff’s constitutional rights to a jury trial, due

process, or equal protection. 291 Ga. 359 (2012). The Supreme Court in Couch

also considered and rejected several public policy arguments by the plaintiff.

6

The ruling in Couch also resolved GFI Management Services, Inc. v.

Medina, 291 Ga. 741 (2012). The trial court in GFI held O.C.G.A. § 51-12-33 was

unconstitutional and the defendant appealed. While on appeal, Couch was decided

and the ruling of the trial court in GFI was reversed.

Similarly, considering the holding in Couch, the trial court’s ruling that the

apportionment statute was unconstitutional was reversed in Accor North America,

Inc. v. Todd, 318 Ga. App. 317 (2012).

Prior to Couch, the plaintiff in Pacheco v. Regal Cinemas, Inc., was also

held to have waived any constitutional challenges to O.C.G.A. § 51-12-33. 311 Ga.

App. 224 (2011).

Apportioning Negligence and Intentional Torts:

Along with constitutional challenges, Georgia Courts have also considered

numerous challenges to the apportionment statute based on the argument that it

cannot apply to both negligence and intentional torts.

In Pacheco, the plaintiff unsuccessfully argued that apportionment was not

permissible where a defendant negligently failed to keep premises safe from

allegedly foreseeable intentional conduct. 311 Ga. App. 224 (2011). The plaintiff

in Pacheco filed a wrongful death action after the decedent was shot and killed

outside of a movie theater. A jury returned a defense verdict and the plaintiff

appealed. The plaintiff argued the trial court improperly instructed the jury under


7

O.C.G.A. § 51-12-33 and asserted that the apportionment statute was inapplicable

where conduct was intentional. The Court of Appeals disagreed and declined to

follow the Tennessee case law or the Florida apportionment statute, which does not

apply to cases based on intentional acts, cited by the plaintiff.

In another premises liability case, Couch v. Red Roof Inns, Inc., the

Supreme Court considered and rejected a nearly identical argument by the plaintiff.

291 Ga. 359 (2012). In concluding that a jury can apportion fault between

tortfeasors who were negligent and those who committed intentional torts, the

Supreme Court stated as follows:

[b]oth negligent tortfeasors and intentional tortfeasors are “answerable in law” to a plaintiff for damages caused to that plaintiff. By its plain language, O.C.G.A. § 51–12–33(b) makes all persons responsible according to their respective percentages of responsibility. Therefore, as set forth above, proper statutory construction mandates a finding that “fault,” as used in O.C.G.A. § 51–12–33, encompasses intentional torts.

291 Ga. at 365 (2012).

Based on the holding in Couch, the Court of Appeals reversed a trial court’s

holding that O.C.G.A. § 51-12-33 did not permit apportioning fault to non-party

assailants in a premises liability case in Accor North America, Inc. v. Todd, 318

Ga. App. 317 (2012).

Similarly, on interlocutory appeal, the Court of Appeals reversed the trial

court’s grant of the plaintiff’s motion in limine to exclude evidence of

8

apportionment in a premises liability case stemming from an assault and battery.

Six Flags Over Georgia II, L.P. v. Martin, 320 Ga. App. 52, 53, (2013).1 Under

Couch, “‘fault,’ as used in O.C.G.A. § 51–12–33, encompasses intentional torts

…” and, accordingly, the Court of Appeals reversed the trial court. Id. See also

Hickory Lake, L.P. v. A.W., 320 Ga. App. 389 (2013).

Comparative negligence:

It is often an after-thought or over looked, but subsections (a) and (g) codify

the doctrine of comparative negligence. Zaldivar v. Prickett, 297 Ga. 589 (2015).

In Clark v. Rush, which involved a two-car accident and no allegations of

non-party fault, the Court of Appeals disapproved the pattern jury instruction on

comparative negligence and held O.C.G.A. § 51-12-33(a) governs the procedure

for assessing comparative negligence. 312 Ga. App. 333 (2011). The pattern

charge on comparative negligence provided that the jury “reduce the amount of

damages otherwise awarded to the plaintiff in portion to the negligence of the

plaintiff compared with that of the defendant.” 312 Ga. App. at 334 (punctuation

omitted). Under O.C.G.A. § 51-12-33 (a), the Clark Court held the procedure for

reducing an award for comparative negligence requires the following: (1) the jury,

if it finds comparative negligence, must quantify the fault of the plaintiff in precise 1 This was the first appearance of Martin in the appellate courts and occurred prior to trial. The case was subsequently tried and appealed to the Court of Appeals and Supreme Court. See Martin v. Six Flags Over Georgia II, L.P., 301 Ga. 323, 336 (2017).


9

terms by determining the { "pageset": "Sdd “percentage of fault of the plaintiff” and (2)

the judge must reduce any damages award and reflect the reduction in the

judgment. Under subsection (a), therefore, the jury specifies the percentage of fault

of the plaintiff and the judge, rather than the jury, reduces the damages award

based on that percentage.

The plaintiffs in Reed v. Carolina Cas. Ins. Co., tried to argue that the

language in subsection (a) precludes summary judgment in a case in which the

plaintiff is 50 percent or more at fault because the statute states damages shall be

apportioned by the “trier of fact.” 327 Ga. App. 130 (2014). The Court of Appeals

disagreed and held nothing in the apportionment statute abrogates a trial court’s

authority under O.CG.A. § 9-11-56 to grant summary judgment in an appropriate

case.

Cross-claims and third-party claims under the apportionment statute:

There has been considerable litigation as to the effect of the apportionment

statute on cross-claims and third-party complaints.

In Murray v. Patel, the Court of Appeals considered subsection (b) and held

that it did not prohibit third-party complaints for indemnification. 304 Ga. App.

253 (2010). The plaintiffs in Murray were passengers in a car. They were injured

when the car they were riding in hit a disabled car owned by the defendants. After

being sued by the passenger-plaintiffs, the defendants filed a third-party complaint

10

seeking indemnification against the driver of the car the plaintiffs were in. Arguing

that O.C.G.A. § 55-12-33 (b) abolished joint and several liability, the plaintiffs

moved to dismiss the third-party complaint, which the trial court granted.

However, the Court of Appeals reversed the trial court and found that third-party

practice, as set forth in O.C.G.A. § 9-11-14, was not incompatible with the

apportionment statute. The Court of Appeals stated: “the plain language of

O.C.G.A. § 51–12–33(b) requires that the factfinder apportion liability between the

defendant and the third-party defendant, and [that] neither has the right of

contribution against the other.”

Subsequently, the Court of Appeals in Dist. Owners Ass'n, Inc. v. AMEC

Envtl. & Infrastructure, Inc., expressly stated it is “dubious as to the extent of

Murray's continuing precedential value.” 322 Ga. App. 713, 718 (2013). In

AMEC, the plaintiff sued a property owner for injuries sustained after falling 30

feet between a sidewalk and parking deck. The owner answered and filed a third-

party complaint against the designers and builders of the sidewalk and parking

deck and asserted common law claims for indemnification and apportionment. The

Court of Appeals affirmed the trial court’s dismissal of the third-party complaint

finding such claims are barred by O.C.G.A. § 51-12-33.

In City of Atlanta v. Benator, the Court of Appeals held the apportionment

statute did not preclude cross-claims for contribution and indemnification in a suit


11

involved alleged overcharges for sewer and water use. 310 Ga. App. 597, 597

(2011). The plaintiffs in Benator sued the City of Atlanta and its water meter

contractors. The City asserted cross-claims for contribution, indemnification, and

attorney’s fees against the contractors. The contractors moved to dismiss the cross-

claim under subsection (b) of the apportionment statute, which the trial court

denied. In rejecting the contractors’ appeal, the Court of Appeals held O.C.G.A. §

51-33-12(b) did not apply because “this case does not involve ‘injury to person or

property’” as required under the statute.

The issue of contribution under the apportionment statute was addressed in

Zurich Am. Ins. Co. v. Heard, 321 Ga. App. 325 (2013). In that case, the owners of

a hotel asserted claims against contractors. A settlement was reached between the

owners and one of the contractors before any finding by a court or arbitrator. The

settling contractor then asserted claims for contribution against another contractor.

The trial court granted summary judgment in favor of the defendant contract

finding that contribution had been abolished by the apportionment statute. The

Court of Appeals reversed. Under subsection (b), the Court of Appeals in Heard

determined that “joint liability and the right of contribution no longer exist when

damages have been apportioned by the trier of fact under this subsection.” 312 Ga.

App. at 330. However, the Heard Court further noted that O.C.G.A. § 51-12-32

remains intact and valid law and that O.C.G.A. § 51-12-33 (b) “cannot be

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interpreted to abolish the right of contribution between settling joint tortfeasors

when there has been no apportionment of damages by a trier of fact.” Id. 2

Cross-claims were also addressed in McReynolds v. Krebs, which stemmed

from an auto accident and products liability claim. The plaintiff was driving a

General Motors (“GM”) vehicle when she was involved in an accident with the

defendant. 307 Ga. App. 330, 333 (2010). The plaintiff sued the defendant and

GM. In her answer, the defendant asserted a cross-claim against GM and asserted

claims for set-off and contribution. The plaintiff settled with GM and GM moved

to dismiss the cross-claim. GM argued the apportionment statute abolished joint

and several liability. The trial court agreed and dismissed GM prior to trial.

The Court of Appeals noted that “subsection (b) provides that when

apportionment is required by the Code section, the defendants have no right of

contribution.” 307 Ga. App. at 334. Because the defendant had no right of

contribution against GM, the trial court properly dismissed GM. With respect to

the cross-claim for set off, the Court of Appeals found “no basis for set-off given

2 O.C.G.A. § 51-12-32 (a) provides as follows: “[e]xcept as provided in Code Section 51-12-33, where a tortious act does not involve moral turpitude, contribution among several trespassers may be enforced just as if an action had been brought against them jointly. Without the necessity of being charged by action or judgment, the right of a joint trespasser to contribution from another or others shall continue unabated and shall not be lost or prejudiced by compromise and settlement of a claim or claims for injury to person or property or for wrongful death and release therefrom.”


13

that the statute requires each liable party to pay its own percentage share of fault

and [the defendant] presented no evidence regarding GM's alleged fault.”

As noted, the Supreme Court granted the petition for certiorari in Krebs. The

Supreme Court affirmed the ruling by the Court of Appeals that the trial court

properly dismissed the defendant’s cross-claims against GM for contribution and

set-off. The Supreme Court held that subsection (b), “flatly states that apportioned

damages ‘shall not be subject to any right of contribution.’” 290 Ga. at 852. As it

relates to set-off, the Supreme Court noted the requirement that the applicability of

a set-off is predicated on the settling party being liable, in some part, of the

plaintiff’s injury and then noted that the defendant conceded she had no evidence

against GM, except the allegations in the plaintiff’s complaint. Id.

What is “fault” under O.C.G.A. § 51-12-33?

In Zaldivar v. Prickett, the Supreme Court interpreted “fault” as used in

O.C.G.A. § 51-12-33. Under the statute, “fault” means “all persons or entities who

have breached a legal duty in tort that is owed with respect to the plaintiff, the

breach of which is a proximate cause of the injury sustained by the plaintiff.” 297

Ga. 589 (2015).

Who can fault be apportioned to?

In Zaldivar, the Supreme Court held that fault could be apportioned to the

following: (1) the plaintiff; (2) defendants with liability to the plaintiff; and (3)

14

every other tortfeasor whose commission of a tort against the plaintiff was a

proximate cause of his injury, regardless of whether such tortfeasor would have

actual liability to the plaintiff. 297 Ga. 589. Specifically, the Supreme Court held

the jury could potentially apportion fault to the plaintiff’s employer, whose vehicle

the plaintiff was driving at the time of the accident. Noting that “what happened,

happened,” the Zaldivar Court stated that “the apportionment statute permits

consideration, generally speaking, of the “fault” of a tortfeasor, notwithstanding

that he may have a meritorious affirmative defense or claim of immunity

agreement by liability to the plaintiff.” 297 Ga. at 598.

Shortly after the decision in Zaldivar, the Supreme Court, answering a

certified question from the United States District Court for the North District of

Georgia in the affirmative, held that apportionment is permitted to a nonparty

employer, even though the employer is immune from suit under the Workers'

Compensation Act. Walker v. Tensor Machinery, LTD., 298 Ga. 297 (2015).

In Bennett v. Farmer, the Court of Appeals held the trial court erred by

failing to allow the jury to apportion fault to a plaintiff’s husband who was driving

the car the plaintiff was in at the time of the accident at issue. 308 Ga. App. 358

(2011) (physical precedent only). There was evidence that the defendant driver had

a green light as he approached the intersection where the accident occurred and

that the husband failed to look before entering the intersection. The trial court


15

refused to instruct the jury to apportion the award of damages to the wife according

to the percentage of fault of the defendant and her husband. In reversing the trial

court, the Court of Appeals reasoned: “it would be contrary to the clear intent of

the legislature to require [the defendant] to pay for the full amount of [the plaintiff-

wife’s] damages for the same collision simply because she was a passenger in the

car her husband was driving.” 308 Ga. App. at 362.

The Bennett Court also considered, and rejected, the plaintiff’s argument

that allowing apportionment would violate the interspousal tort immunity doctrine.

The holding, the Court of Appeals concluded, would not require the plaintiff-wife

to file suit against her husband, but “instead, precludes her from recovering from

[the defendant] that portion of her damages, if any, that a trier of fact concludes

resulted from the negligence of her husband.” Id.

In Cavalier Convenience, Inc. v. Sarvis, the Court of Appeals ruled that even

where the plaintiff bears no fault the apportionment statute applies and that a jury

is required to apportion its award of damages among multiple defendants 305 Ga.

App. 141 (2010). The plaintiff in Sarvis sued a driver, Bath, who he alleged was

intoxicated and caused an auto accident. The plaintiff also sued the defendant

convenience and grocery stores alleging they unlawfully sold alcohol to Bath. The

plaintiff argued, and the trial court agreed, that apportionment was not permitted

because language in subsection (b) of the apportionment statute allows

16

apportionment of fault only “after a reduction of damages pursuant to subjection

(a) of this Code section, if any….” O.C.G.A. § 51-12-33 (b) (emphasis added).

The Court of Appeals relied on the “if any” language in subsection (b) and

disagreed. The Sarvis Court concluded: “it is clear from that subsection's plain

language that the legislature did not intend for apportionment to be limited to those

cases wherein the plaintiff was to some degree at fault.” 305 Ga. App. at 144.3

The holding in Cavalier was approved by the Court of Appeals in

McReynolds v. Krebs, 307 Ga. App. 330, 333 (2010). Following the decision by

the Court of Appeals, the defendant petitioned for certiorari, which was granted. In

Krebs, the Supreme Court held that “in applying O.C.G.A. § 51-12-33, the trier of

fact must ‘apportion its award of damages among the persons who are liable

according to the percentage of fault of each person’ even if the plaintiff is not at

fault for the injury or damages claimed.” 290 Ga. 850, 852 (2012).

The argument that O.C.G.A. § 51-12-33 only applies in cases involving

multiple defendants has also been considered and rejected. See Alston & Bird, LLP

v. Hatcher Management Holdings, LLC, 338 Ga. App. 527 (2016).

Who can’t fault be apportioned to? 3 In addition, the Sarvis Court also rejected the plaintiff’s policy arguments and his arguments under O.C.G.A. §§ 51-12-31 and 51-12-32.


17

It appears derivative liability may prevent a jury from apportioning fault.

Subsection (c) was considered in PN Express, Inc. v. Zegel, 304 Ga. App. 672

(2010). The suit in Zegel stemmed from a tractor-trailer accident. The plaintiff’s

claims against the defendant trucking company were entirely based on derivative

liability for the actions of the driver, including respondeat superior and statutory

employment. The defendant trucking company gave notice, as required under

subsection (d), of its intent to ask the jury to assign fault to a freight broker,

Patterson, and other entities. The defendant trucking company argued that it was

hauling freight for Patterson at the time of the accident and that the jury could

conclude the driver was working for Patterson. The trial court refused to instruct

the jury under O.C.G.A. § 51-33-12. The Court of Appeals affirmed the trial

court’s ruling. Under Georgia law, the Zegel Court noted that where a party’s

liability is solely vicarious, that party and the actively-negligent tortfeasor are

regarded as a single tortfeasor. The Court of Appeals held: “since the corporation's

liability for the accident was purely vicarious in nature for the acts of [the driver]

himself, rather than joint and several, it is obvious that the comparative fault statute

does not apply.” 304 Ga. App. at 680 (punctuation omitted).

In Trotman v. Velociteach Project Management, LLC, the Court of Appeals

found no error in the trial court’s refusal to instruct the jury on apportionment

under O.C.G.A. § 51-12-33 in a suit involving the misappropriation of teaching

18

materials. 311 Ga. App. 208 (2011). The defendant company sought to have

damages apportioned to an employee of the plaintiff company; however, the

founder of the defendant company admitted he was personally responsible for the

content of the teaching materials and that he did not assign blame to others.

Accordingly, the Court of Appeals held the trial court did not err in refusing to

charge the jury on apportionment.

Proof of non-party fault:

In Krebs, the defendant’s lack of evidence of fault on the part of GM also

defeated her claim that she was entitled to apportionment under O.C.G.A. § 51-12-

33(c) and (d). 290 Ga. App. at 853. The defendant in Krebs also argued that the

trial court should have apportioned damages between her and GM. Again, the

Court of Appeals disagreed. The defendant admitted at the beginning of trial that

she had no evidence to present regarding GM's liability. At trial, the defendant had

no evidence regarding GM’s potential liability, except allegations in the plaintiff’s

complaint, and the defendant rested without presenting any evidence. The Court of

Appeals also noted the defendant “waived any issue with regard to the verdict

form.” Thus, the Court of Appeals in Krebs also rejected the defendant’s argument

that damages should have been apportioned between the defendant and GM.

The Supreme Court in Krebs also affirmed this ruling by the Court of

Appeals. In Levine v. Suntrust Robinson Humphrey, the Court of Appeals cited


19

Krebs and noted “the Supreme Court of Georgia recently held … that it is the

defendant's burden to establish a rational basis for apportioning fault to a

nonparty.” 321 Ga. App. 268, 272 (2013). See also Double View Ventures, LLC

v. Polite, 326 Ga. App. 555, 562 (2014).

Proper proof appears to include a non-party driver’s guilty pleas to traffic

citations. Such guilty pleas are admissible for purposes of assessing non-party

fault under O.C.G.A. § 51-12-33 under Woods v. Allied Van Lines, Inc., 316 Ga.

App. 548 (2012). In Woods, the Court of Appeals affirmed the trial court’s denial

of the plaintiff’s motions in limine to exclude evidence of a non-party driver’s

guilty pleas to traffic citations.

In Georgia-Pacific v. Fields, the Supreme Court reversed the Court of

Appeals and held that admissions of fact contained in the plaintiff’s pleadings,

even if withdrawn, could be relied on by the defendants in responding to the

plaintiff’s motion for summary judgment as to the fault of non-parties under

O.C.G.A. § 51-12-33 (c). 293 Ga. 499 (2013). In this case, which involved the

plaintiff’s claims for damages due to exposure to asbestos, the Supreme Court

agreed with the defense argument that “they had presented sufficient evidence, in

the form of allegations contained in the [plaintiff’s] complaint and … sworn

information form, to preclude summary judgment on their nonparty defense as it

pertained to the potential fault of nonparties….” 293 Ga. at 500.

20

The Supreme Court in Zaldivar also concluded by stating: “[t]o the extent

that [the defendant] can prove [the plaintiff’s employer] breached a legal duty it

owed to [the plaintiff], the breach at which is a proximate cause of the injury that

[the plaintiff] sustained, the trier of fact may be permitted under O.C.G.A. § 51-12-

33(c) to assign “fault” to [the plaintiff’s employer].”

Notice of Non-party Fault

In order to have fault apportioned to a nonparty tortfeasor proper notice must

be given. In Ingles Markets, Inc. v. Kempler, the Court of Appeals rejected the

defense argument that under subsection (c), which provides “the trier of fact shall

consider the fault of all persons or entities who contributed to the alleged injury or

damages …”, the failure to provide notice of non-party fault under subsection (d)

did not prohibit the jury from considering the fault of non-parties. In Kemper, one

defendant provided notice of non-party fault and the jury was permitted to consider

the fault of that non-party; however, the other defendants did not provide notice.

The defendants on appeal argued that requiring notice under subsection (d) would

render subsection (c) superfluous. The Court of Appeals disagreed and reasoned,

“[s]ubsection (d) provides the mechanism by which the defendant exercises its

statutory right to have such non-party tortfeasors presented to the jury.” 317 Ga.

App. 190, 193 (2012).


21

Where the defendant failed to provide proper notice of non-party fault under

subsection (d), the trial court properly excluded the issue of apportionment for the

jury’s consideration. Freese II, Inc. v. Mitchell, 318 Ga. App. 662, 664 (2012).

The plaintiff in Mitchell sought to recover under the Dram Shop Act from the

defendant after a driver was involved in a fatal accident after drinking at the

defendant’s strip club. The defendant in Mitchell did not serve a notice of non-

party fault and only raised the issue on the first day of trial. Accordingly, the trial

court properly excluded the issue of apportionment.

The notice provisions of O.C.G.A. § 51-12-33 (d) have been held to require

“strict compliance.” Monitronics Int'l, Inc. v. Veasley, 323 Ga. App. 126 (2013).

In Veasley, the plaintiff was deposed in June of 2010, but the notice of non-party

fault was not filed until July of 2011. In August of 2011, the trial court placed the

case on a November 2011 trial calendar. Because the defendant did serve the

notice of non-party fault more than 120 days before trial, the Court of Appeals

affirmed the trial court’s striking of the notices.

In Double View Ventures, LLC v. Polite, supra, the Court of Appeals

rejected the plaintiff’s argument in a premises liability case that apportionment was

not available because the defense did not show the exact identity of the at-fault

non-party. 326 Ga. App. 555, 562 (2014). Rather, the Court held that subsection

(d) requires only notice of “the best identification of the non-party which is

22

possible under the circumstances…” and that it does not require “precise party

identification.”

Apportioning fault in UM claims:

In Wade v. Allstate Fire and Cas. Co., the plaintiff was injured in a multi-

vehicle accident. The plaintiff sued Bergh; Froman and his employer; and Bruce

and his mother. The plaintiff also served his UM carrier. 324 Ga. App. 491 (2103).

The plaintiff accepted the liability policy limits of the Bruce defendants in

exchange for a limited liability release. The plaintiff settled with the Bergh and

Froman defendants for less than their liability limits; executed full releases; and

dismissed those claims with prejudice. The trial court granted the UM carrier’s

motion for summary judgment finding the plaintiff could not recover UM benefits

because he had not exhausted all of the available liability coverage. The Court of

Appeals disagreed and held the plaintiff could recover UM benefits if the jury

awarded damages against the Bruce defendants in excess of the amount of liability

coverage already paid. The Court also noted that if the jury awarded more against

the parties who obtained full releases than they paid, the plaintiff would be

precluded from any additional recovery against them. 324 Ga. App. at 497, n.l.

Challenges to verdicts under the apportionment statute:

The Georgia Supreme Court reversed Double View Ventures, supra, to the

extent it could be read to always require a full new trial as a result of any


23

apportionment error. See Martin v. Six Flags Over Georgia II, L.P., 301 Ga. 323,

341, n. 12 (2017). In Martin, the Supreme Court crafted a new rule regarding

when an apportionment error by a trial court requires a new trial. “[W]here

correction of an apportionment error involves only the identification of tortfeasors

and assessment of relative shares of fault among them, there is no sound reason to

disturb the jury's findings on liability or its calculation of damages sustained by the

plaintiff.” Martin, 301 Ga. at 340. The Martin Court further suggested that in

“most instances” an apportionment error would not require a full new trial.

“[W]here the issue of apportionment is distinct from the issues of liability and

damages sustained, our “law of the case” doctrine will in most instances preclude

the re-litigation of these issues once the jury's verdict on them has been affirmed.”

Id. (citing O.C.G.A. § 9-11-60 (h)).

In 2010, the Court of Appeals rejected a defendant’s argument under

subsection (b) that the jury apportioned damages in a manner that was

“unreasonable and contrary to the evidence” under O.C.G.A. § 13-6-4.4 Royalston

v. Middlebrooks, 303 Ga. App. 887 (2010). The suit in Royalston stemmed from a

multi-vehicle accident. The plaintiff was northbound and stopped waiting to turn

4This code section provides: “[t]he question of damages being one for the jury, a reviewing court should not interfere unless the damages are either so small or so excessive as to justify the inference of gross mistake or undue bias.” O.C.G.A. § 13-6-4.

24

when he was rear-ended by Davis. The plaintiff was then hit by Royalston who

was driving a truck southbound. A witness testified Royalston was speeding and

weaving in and out of traffic; however, the plaintiff did not see Royalston cross the

center line and the plaintiff did not know if Davis pushed his car across the

centerline. The jury found that Davis, who rear-ended the plaintiff, was 48 percent

at fault and that Royalston was 58 percent at fault.

Based on the evidence, the Court of Appeals declined to conclude that the

jury’s apportionment of damages was the product of “gross mistake of bias.” In

reaching its conclusion, the Royalston Court stated: “in arriving at how to express

these different degrees of culpability in mathematical terms, the jury was not

bound by any specific formula; instead, the matter was to be ‘determined according

to the enlightened conscience of the fair and impartial jury.’” 303 Ga. App. at 893

(quoting Surles v. Cornell Corr. of California, Inc., 290 Ga. App. 260 (2008)).

The defendant’s argument in Scapa Dryer Fabrics, Inc. v. Knight, that the

evidence required the jury to allocate fault to additional non-parties was also

rejected. 332 Ga. App. 82 (2015). The Knight Court pointed out that the defendant

had a burden to establish a rational basis for apportioning fault to a non-party. It

was the “jury’s prerogative to accept or reject, in whole or in part, the evidence


25

submitted” and, therefore, allocation of fault was not required as matter of law. 332

Ga. App. at 90 (citation omitted).5

If no fault is apportioned and a verdict is entered for the defendant, the

plaintiff will likely have no grounds to appeal the application of the appointment

statute. The Court of Appeals in a premises liability case, Raines v. Maughan,

declined to consider whether the trial court’s instruction on apportionment was

erroneous where a defense verdict was returned in favor of the property owner. 312

Ga. App. 303 (2011). The plaintiff in Raines sued the defendant owner of an

apartment complex after the decedent was killed during a robbery in the parking

lot. The jury returned a verdict for the defendant. Because a defense verdict was

returned, there was no occasion for the jury to apportion damages and “any error in

charging the jury about apportionment had no effect on the outcome of the trial and

could not have harmed the [plaintiff]….” 312 Ga. App. at 309.

4824-3644-7271, v. 1

5 The holding in division 2 in Knight was reversed by the Georgia Supreme Court in Scapa Dryer Fabrics, Inc. v. Knight, 299 Ga. App. 286 (2016). The Supreme Court held the opinion testimony regarding causation by the plaintiffs’ expert should have been excluded.


12:50 DEFENDING UNINSURED AND UNDERINSURED MOTORISTS CASES Mike O. Crawford, Swift Currie McGhee & Hiers LLP, Atlanta


1: 30 TOP 10 PITFALLS IN DEFENDING PERSONAL INJURY LITIGATION Barbara A. Marschalk, Drew Eckl & Farnham LLP, Atlanta


i

TOP TEN PITFALLS IN DEFENDING PERSONAL INJURY CASES

Barbara A. Marschalk DREW, ECKL & FARNHAM, LLP

ATLANTA, GEORGIA

TABLE OF CONTENTS

Introduction ...................................................................................................................................... Pitfall Number 1: Spoliation ........................................................................................................1 State Law ............................................................................................................................1 Federal Law .......................................................................................................................3 Practice Considerations .....................................................................................................4 Pitfall Number 2: Removal ..........................................................................................................6 28 USCS § 1331. Federal Question ..................................................................................7 28 USCS § 1332. Diversity of Citizenship; Amount in Controversy; Costs ................7 Timing .................................................................................................................................8 Unanimity Required ..........................................................................................................9 Forum Defendant Rule and Exception ..........................................................................10 Exception to 30 Day Rule re: Removal ..........................................................................12 Don’t Forget to Answer! ..................................................................................................13 Rule 81. Applicability of the Rules in General: Removed Action ..............................13 Pitfall Number 3: Removal (AGAIN) .......................................................................................14 Pitfall Number 4: Conflicts ........................................................................................................16 Pitfall Number 5: Insurance Disclosures ..................................................................................19 Pitfall Number 6: Notice of Intent to Apportion Fault ............................................................21 Pitfall Number 7: Surveillance ..................................................................................................27 When Surveillance Can be Useful ..................................................................................27 Hiring the Investigator ....................................................................................................27 Guidelines for Investigtors ..............................................................................................39 The Legal Use of Surveillance .........................................................................................31 Obligation to Provide Information to Opposing Counsel ............................................31 Use of Surveillance at Trial .............................................................................................32 Pitfall Number 8: Notice of Intent to Introduce Medical Records .........................................34

ii

Pitfall Number 9: Be Aware of Settlements Involving Co-Defendants ..................................35 Pitfall Number 10: Liens ............................................................................................................36 ERISA Reimbursement Claims: .....................................................................................37 Medicare Reimbursement Claims: .................................................................................38 Medicaid Reimbursement Claims ..................................................................................41 Healthcare Provider Liens ..............................................................................................42 Conclusion ....................................................................................................................................44


1

PITFALL NUMBER 1: SPOLIATION

State Law Spoliation refers to the destruction or failure to preserve evidence that is

necessary to contemplated or pending litigation. Silman v. Assocs. Bellemeade, 286 Ga.

27, 685 S.E.2d 277 (2009). Therefore, the initial analysis consists of a two-part test: (1)

is the evidence at issue “necessary” to the litigation; and (2) was there “contemplated or

pending litigation” at the time of the alleged spoliation.

The second part of this test probes whether the party has a duty to preserve the

evidence at issue. Whitfield v. Tequila Mexican Restaurant No. 1, 323 Ga. App. 801,

807, 748 S.E.2d 281 (2013). A personal injury defendant is deemed to have

contemplated litigation not only when the defendant receives actual notice of a claim or

litigation from the plaintiff, but can also occur with regard to other circumstances such

as the type and extent of injuries, the high damages that can flow from such injuries, the

frequency of litigation in similar circumstances, the defendant’s internal investigation,

and notification to the defendant’s counsel and/or insurer. Phillips v. Harmon, 297 Ga.

386, 398-99, 774 S.E.2d 596 (2015).

In determining whether to impose sanctions for evidence spoliation, trial courts

must consider five factors:

(1) whether the moving party was prejudiced as a result of the destruction of

the evidence;

(2) whether the prejudice could be cured;

(3) the practical importance of the evidence;

(4) whether the alleged spoliating party acted in good or bad faith; and

2

(5) the potential for abuse if expert testimony about the evidence was not

excluded.

Phillips, 297 Ga. at 399, n.12; accord AMLI Residential Props., Inc. v. Georgia Power

Co., 293 Ga. App. 358, 667 S.E.2d 150 (2008).

The Georgia courts typically fashion remedies for the alleged spoliation of

evidence based on the circumstances presented in each case, and after weighing some or

all of these factors.

To remedy the prejudice resulting from evidence spoliation, a trial court is authorized to craft a solution that fits the facts; the court may (1) charge the jury that spoliation of evidence creates the rebuttable presumption that the evidence would have been harmful to the spoliator; (2) dismiss the case; or (3) exclude testimony about the evidence. This is not an exhaustive list of sanctions a trial court may impose; rather, the trial court has wide latitude to fashion sanctions on a case-by-case basis, considering what is appropriate and fair under the circumstances.

Sentry Select Ins. Co. v. Treadwell, 318 Ga. App. 844, 848 (2012); quoting Kitchens v.

Brusman, 303 Ga. App. 703, 709, 694 S.E.2d 667 (2010). However, Georgia courts have

recently ordered spoliation sanctions only in “exceptional cases” and are to exercise the

greatest caution in establishing a rebuttable presumption of spoliation or an adverse

inference jury instruction. See Demere Marsh Assocs., LLC v. Boatright Roofing & Gen

Contr., Inc., 343 Ga. App. 235, 248, n.9 (2017); accord Phillips, 297 Ga. at 394.

The Court of Appeals has confirmed Georgia’s long-standing position that the

striking of a defendant’s Answer is to be reserved for the most extreme circumstances.

In R&R Insulation Servs. Inc. v. Royal Indem. Co., 307 Ga. App. 419, 705 S.E.2d 223

(2010), the court affirmatively determined that, “Wayne Farms spoliated evidence and

that spoliation has resulted in prejudice to the Appellees.” R&R Insulation, at 1140-41.


3

The court further determined that the destroyed evidence was important and material to

the case. However, despite these significant conclusions, the court stated that

“dismissal is usually reserved for cases involving malicious destruction of

evidence.” R&R Insulation, 307 Ga. App. at 438 (emphasis supplied). The court

declined to reverse the trial court’s order denying the motion to dismiss based on

spoliation of evidence. The “ultimate” sanction of dismissal or striking an answer is

never mandated by law. Bridgestone/Firestone North American Tire, LLC v. Campbell,

258 Ga. App. 767, 574 S.E.2d 923 (2002).

In a decision analyzing an allegation of spoliation under state law, the U.S.D.C.

for the Southern District of Georgia found that no sanctions were appropriate when

there was no prejudice to the moving party and no evidence of bad faith by the alleged

spoliator. Ballard v. Keen Transp., Inc. 2011 U.S. Dist. LEXIS 5487, 2011 WL 203378

(S.D. Ga. Jan. 19, 2011). The Ballard case involved a trucking accident that occurred

when the Defendant driver drove into the Plaintiff on a highway, who was riding a

tractor. The Defendant trucking company did not maintain driver’s logs as it was

required to do under federal law. Therefore, the evidence was “spoliated.” However, the

Court found that there was no prejudice to the Plaintiff as a result of this alleged

“spoliation.” “Without prejudice, there is no need to cure.” Id. (emphasis

added).

Federal Law

In the Eleventh Circuit, a finding of bad faith is often a prerequisite to imposing

spoliation sanctions. See, e.g., Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998)

(“key to unlocking a court’s inherent power [to sanction spoliation] requires a finding

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of bad faith.”); Bashir v. Amtrak, 119 F.3d 929 (11th Cir. 1997) (“an adverse inference

is drawn from a party’s failure to preserve evidence only when the absence of that

evidence is predicated on bad faith.”) (emphasis supplied throughout).

The Advisory Committee proposed a number of amendments to the Federal

Rules of Civil Procedure in 2015, including revisions to Rule 37(e) addressing a party’s

failure to preserve electronically stored information (“ESI”) that demonstrate a

reluctance to sanction parties for spoliation. Upon a finding that ESI that should have

been preserved was lost because a party “failed to take reasonable steps to preserve it”

and that the evidence cannot be replaced, the revisions to Rule 37(e) permit federal

courts to “order measures no greater than necessary to cure the prejudice” (emphasis

supplied). Only once the court has determined a spoliating party “acted with the intent

to deprive another party of the information’s use in the litigation” may the court (A)

presume the lost information was unfavorable to the party; (B) instruct the jury that it

may or must presume the information was unfavorable to the party; or dismiss the

action or enter a default judgment.”

Practical Considerations

1. Whenever there is a claim, or the potential for a claim, ask yourself what evidence

may be important to evaluating the claim which could be altered or lost over time. Some

examples to think about would include:

• A premises claim where the existence of signage or the position and or condition

of some area of the premises may change over time;

• A trucking case where driver logs or on-board recording data may be lost;


5

• Malfunction of some type of equipment or machinery where exposure to

elements may change the condition;

• Road wreck case where the condition of the vehicles may be important to

reconstruction of the accident; and,

• Any claim where videotapes, photographs, drawings or any other records

illustrate relevant events or conditions.

2. Consider whether there are any legal or regulatory requirements that may impose

an obligation on the insured:

• Requirement of a building owner to have any elevator inspected after an accident;

3. Don’t assume that evidence will be preserved in an unchanged condition. You are

sensitive to this need, the insured may not be.

4. Never do destructive testing without the consent of the potential plaintiff.

5. Depending upon the circumstances of the accident and the nature of the possible

claim, it may not be practical or necessary to preserve all of the potential evidence in an

unchanged condition. When in doubt, document the condition of the evidence and

avoid any appearance that evidence is being lost or destroyed for any litigation-related

purpose.

• The insured’s tractor trailer is involved in a fatal accident that seems clearly not

to be the insured’s responsibility. It is not practical to keep the truck out of

service for two years waiting to see if there is a lawsuit. However, your accident

reconstruct expert can easily document the physical condition of the truck

(through photographs and/or videos) in the event it is necessary to establish the

6

condition. Not only does this help defuse an argument about spoliation, but

often helps preserve evidence that may be helpful to the defense of the claim.

6. Spoliation is often more of a problem for plaintiffs because they have control of

the evidence. Be alert in situations where this doctrine can be useful in defense of a

case.

7. Fire scenes present unique problems for insurance carriers. There is a need to

promptly investigate the fire and take steps to clean up and repair the structure. On the

other hand, the subrogation potential can be severely compromised if the potential

targets in a subrogation claim are not accorded the ability to examine the fire scene and

draw their own conclusions about origins and cause. This is a situation where the

utmost effort should be made to identify potential subrogation targets and allow them

an opportunity to see the fire scene while it is still intact. This may require more than

one visit by your expert.

PITFALL NUMBER 2: REMOVAL

To remove or not to remove. That is the question.

Do you have a case that involves a federal question or diversity of citizenship?

Then you must make the decision about what to recommend to your client. Only you

can make the recommendation to your client about whether or not to remove a case to

federal court. This decision is based on a number of factors, including venue where suit

is originally filed; intangibles (i.e., race of the parties); allegations in the complaint;

differences between state and federal law; costs associated with litigating in federal vs.

state court, etc.


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28 USCS § 1331. Federal question

District courts shall have original jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the United States.

28 USCS § 1332. Diversity of citizenship; amount in controversy; costs

(a) The district courts shall have original jurisdiction of all civil actions where the matter

in controversy exceeds the sum or value of $ 75,000, exclusive of interest and costs, and

is between--

(1) citizens of different States;

(2) citizens of a State and citizens or subjects of a foreign state;

(3) citizens of different States and in which citizens or subjects of a foreign state are

additional parties; and

(4) a foreign state, defined in section 1603(a) of this title [28 USCS § 1603(a)], as

plaintiff and citizens of a State or of different States.

(b) Except when express provision therefor is otherwise made in a statute of the United

States, where the plaintiff who files the case originally in the Federal courts is finally

adjudged to be entitled to recover less than the sum or value of $ 75,000, computed

without regard to any setoff or counterclaim to which the defendant may be adjudged to

be entitled, and exclusive of interest and costs, the district court may deny costs to the

plaintiff and, in addition, may impose costs on the plaintiff.

(c) For the purposes of this section and section 1441 of this title [28 USCS § 1441]--

(1) a corporation shall be deemed to be a citizen of any State by which it has been

incorporated and of the State where it has its principal place of business, except that in

any direct action against the insurer of a policy or contract of liability insurance,

8

whether incorporated or unincorporated, to which action the insured is not joined as a

party-defendant, such insurer shall be deemed a citizen of the State of which the insured

is a citizen, as well as of any State by which the insurer has been incorporated and of the

State where it has its principal place of business; and

(2) the legal representative of the estate of a decedent shall be deemed to be a citizen

only of the same State as the decedent, and the legal representative of an infant or

incompetent shall be deemed to be a citizen only of the same State as the infant or

incompetent.

Timing

Removal documents must be filed within 30 days of service of Complaint (or first

notice of the Complaint) on Defendant. NOTE: Obtaining an extension of time to file

an Answer will NOT extend the time to file removal.

§ 1446. Procedure for removal

(b) The notice of removal of a civil action or proceeding shall be filed within thirty days

after the receipt by the defendant, through service or otherwise, of a copy of the initial

pleading setting forth the claim for relief upon which such action or proceeding is

based, or within thirty days after the service of summons upon the defendant if such

initial pleading has then been filed in court and is not required to be served on the

defendant, whichever period is shorter.

If the case stated by the initial pleading is not removable, a notice of removal may

be filed within thirty days after receipt by the defendant, through service or otherwise, of

a copy of an amended pleading, motion, order or other paper from which it may first be

ascertained that the case is one which is or has become removable, except that a case


9

may not be removed on the basis of jurisdiction conferred by [28 U.S.C. § 1332] more

than 1 year after commencement of the action. Murphy Bros., Inc. v. Michetti Pipe

Stringing, Inc., 526 U.S. 344, 119 S. Ct. 1322, 143 L. Ed. 2d 448 (1999). In Murphy

Bros., the Court held that a named defendant’s time to remove is triggered by

simultaneous service of the summons and complaint, or receipt of the complaint,

“through service or otherwise,” after and apart from service of the summons, but not by

mere receipt of the complaint unattended by any formal service. Finally, if the

complaint is filed in court prior to any service, the removal period runs from the service

of the summons.

In Brown v. Macon-Bibb County Planning & Zoning Comm’n, No. No. 5:07-cv-

00161-HL, 2007 U.S. Dist. LEXIS 54842, 2007 WL 2212659 (M.D. Ga. July 30, 2007),

the Court noted that the federal removal statute implicitly requires that a summons be

filed or served upon a defendant for a defendant's receipt of the initial complaint to

trigger the thirty-day removal period. Accord Murphy Bros., 526 U.S. at 354, 119 S.Ct.

at 1328-29. Without a summons, an initial complaint is considered naked and does not

trigger a defendant's time to remove.

Unanimity Required

In a case involving multiple defendants, removal under 28 U.S.C. § 1446(a)

requires "unanimity of consent," that is, the timely written consent of all defendants

who have been served at the time of removal. Russell Corp. v. Am. Home Assurance

Co., 264 F.3d 1040, 1044 (11th Cir. 2001); see also Holder v. City of Atlanta, 925 F.

Supp. 783, 785 (N.D. Ga. 1996) (Defendants have thirty days to express unanimity to the

court).

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The unanimity requirement mandates that in cases involving multiple

defendants, all defendants must consent to removal. Chicago, R.I. & P. Ry. Co. v.

Martin, 178 U.S. 245, 247-48, 44 L. Ed. 1055, 20 S. Ct. 854 (1900); In re Ocean Marine

Mut. Protection and Indem. Ass'n, Ltd., 3 F.3d 353, 355-56 (11th Cir. 1993); In re

Federal Sav. & Loan Ins. Corp., 837 F.2d 432, 434 (11th Cir. 1988).

Forum Defendant Rule and Exception

Generally, removal is appropriate only if a federal district court has original

jurisdiction over the action. The party seeking removal bears the burden of establishing

federal jurisdiction and removal statutes are narrowly construed. Additionally, any

doubt regarding jurisdiction is resolved in favor of the states. A federal court has

original jurisdiction over this action only if diversity of citizenship exists. For

jurisdictional purposes, the action must be between citizens of different states, and the

amount in controversy must exceed $75,000, for the court to have original jurisdiction

over the action pursuant to diversity of citizenship, 28 U.S.C. § 1332.

However, not every diversity action qualifies for removal. For cases commenced

in state court where a defendant wants a federal forum, there is an additional hurdle to

clear before successfully reaching federal court. That hurdle is 28 U.S.C. § 1441(b),

which states as follows: “Any civil action of which the district courts have original

jurisdiction founded on a claim or right arising under the Constitution, treaties or laws

of the United States shall be removable without regard to the citizenship or residence of

the parties. Any other such action shall be removable only if none of the parties in

interest properly joined and served as defendants is a citizen of the State in which such

action is brought.” Courts have explained that such a result may occur even where the


11

plaintiff may have originally filed the lawsuit in a federal court; a removal case may

“[meet] every requirement for federal jurisdiction: it simply took the wrong path, in a

sense, because there was an in-state defendant.” Hurley v. Motor Coach Indus., Inc.,

222 F.3d 377, 378 (7th Cir. 2000).

However, it appears that in certain instances some courts have allowed removal

where a would-be defendant, who has not yet been served, is from the forum state. In

North v. Precision Airmotive Corp., 600 F. Supp. 2d 1263 (M.D. Fla. 2009), a Florida

district court noted a split among federal circuits and district courts as to whether a

non-forum defendant that has not yet been served may remove a state court action to

federal court under Section 1441(b) notwithstanding the fact that the plaintiff has

already joined - but not yet served - a forum defendant. It should be noted in North that

all defendants consented to removal and no defendant was served prior to the filing of

the removal. The North court concluded that “in a completely diverse case such as this

one, a non-forum defendant that has not yet been served may remove a state court

action to federal court under Section 1441(b) notwithstanding the fact that the plaintiff

has already joined - but not yet served - a forum defendant.” Courts have continued to

debate this topic since North was announced in 2009. See, e.g., Goodwin v. Reynolds,

757 F.3d 1216, 1221, n.13 (11th Cir. 2014) (“there is much debate regarding the proper

application of this statutory language in such circumstances.”).

A recent decision out of the Northern District of Georgia elected to follow an

approach similar to that of the North court, stating that “the fact that the resident

defendant has not been served with process does not justify removal by the non-resident

defendant. Braude v. Emory/St. Joseph’s, Inc., No. 1:16-CV-3839-MHC, 2016 U.S. Dist.

12

LEXIS 191460, 2016 WL 9454436 (N.D. Ga. Dec. 5, 2016); quoting Gibson v. Wal-Mart

Stores E., LP, No. 5:09-CV-228, 2010 U.S. Dist. LEXIS 7013, 2010 WL 419393 (M.D.

Ga. Jan. 28, 2010).

Exception to 30 day Rule re: Removal

If a case is not initially removable to federal court on diversity grounds, there is

still the possibility that the case can be removed within the first year of the filing of the

suit. The statute specifically states that a case may be removed within thirty days “after

receipt by the defendant, through service or otherwise, of a copy of an amended

pleading, motion, order or other paper from which it may be first ascertained that the

case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3). There can be

no removal more than one year after commencement of the action, unless the district

court finds that the plaintiff acted in bad faith to prevent a defendant from removing the

action. Id. at (c)(1).

In addition to the statutory requirements, there is a judicially created voluntary-

involuntary rule, which states that if diversity is created by a voluntary act of plaintiff,

then the case may be removed. However, if diversity is created by an involuntary act of

plaintiff, e.g. the non-diverse party receives summary judgment, then the case cannot be

removed even though the other elements of 28 U.S.C. § 1446 are met. Insinga v. La

Bella, 845 F.2d 249, 252 (11th Cir. 1988) (known as the “voluntary-involuntary” rule).

Specifically, “if the dismissal was the result of either the defendant’s or the court’s action

against the wish of the plaintiff, the case could not be removed.” Id. (quoting Weems v.

Louis Dreyfus Corp., 380 F.2d 545, 546 (5th Cir. 1967)) (interior quotation marks

omitted).


13

From our research, it appears that a consent judgment against the non-diverse

defendant would be a voluntary act as it ends the litigation against the non-diverse

defendant and was not against the wish of the plaintiff. A brief search of Eleventh

Circuit case law did not reveal a case that addresses whether a consent judgment would

allow for removal by the remaining diverse defendants.

Don’t forget to Answer!

Under Rule 81, a Defendant who did not answer before removal must answer or

present other defenses or objections under the rules within 7 days after the notice of

removal is filed.

Rule 81. Applicability of the Rules in General; Removed Actions

(c) Removed Actions.

(1) Applicability. These rules apply to a civil action after it is removed from a state

court.

(2) Further Pleading. After removal, repleading is unnecessary unless the court orders

it. A defendant who did not answer before removal must answer or present other

defenses or objections under these rules within the longest of these periods:

(A) 21 days after receiving--through service or otherwise--a copy of the initial

pleading stating the claim for relief;

(B) 21 days after being served with the summons for an initial pleading on file at the

time of service; or

(C) 7 days after the notice of removal is filed.

(3) Demand for a Jury Trial.

(A) As Affected by State Law. A party who, before removal, expressly demanded a

14

jury trial in accordance with state law need not renew the demand after removal. If the

state law did not require an express demand for a jury trial, a party need not make one

after removal unless the court orders the parties to do so within a specified time. The

court must so order at a party's request and may so order on its own. A party who fails to

make a demand when so ordered waives a jury trial.

(B) Under Rule 38. If all necessary pleadings have been served at the time of

removal, a party entitled to a jury trial under Rule 38 must be given one if the party

serves a demand within 14 days after:

(i) it files a notice of removal; or

(ii) it is served with a notice of removal filed by another party.

Pitfall Number 3: Removal (AGAIN)

Even if you don’t want to go to federal court, you need to consider whether to

remove within the state/superior court system. Pursuant to O.C.G.A. § 14-2-510(b)(4), a

corporation or limited liability company is deemed to reside and be subject to venue in

the county where the cause of action originated; provided, however, that where the

corporation does not have an office and does not transact business in that county, the

corporation “shall have the right to remove the action to the county in Georgia where the

defendant maintains its principal place of business.”

O.C.G.A. § 14-2-510 governs venue of domestic and foreign corporations

authorized to transact business in Georgia. The statute states, in pertinent part, as

follows:

(b) Each domestic corporation and each foreign corporation authorized to transact

business in this state shall be deemed to reside and to be subject to venue as follows:


15

(1) In civil proceedings generally, in the county of this state where the corporation

maintains its registered office;

(2) In actions based on contracts, in that county in this state where the contract to be

enforced was made or is to be performed, if the corporation has an office and transacts

business in that county;

(3) In actions for damages because of torts, wrong, or injury done, in the county

where the cause of action originated, if the corporation has an office and transacts

business in that county.


where the cause of action originated. If venue is based solely on this paragraph, the

defendant shall have the right to remove the action to the county in Georgia where the

defendant maintains its principal place of business. ... A notice of removal shall be filed

within 45 days of the service of the summons.

Determination of venue must be made upon facts as they exist at the time that

suit is initiated, not as facts may have existed at some previous point in time. Savannah

Laundry and Machinery Co., Inc. v. Owenby, 186 Ga. App. 130, 366 S.E.2d 787 (1988).

In Georgia, a defendant has a constitutional right to have a suit brought against it in the

county of its residence. Ga. Const. 1983, Art. VI, Sec. II, Para. 6. For the purpose of

determining venue against a corporation, venue lies generally either in the county where

its registered agent is maintained, or if a tort action, in the county where the cause of

action originated if the corporation has an office and transacts business in that county.

See O.C.G.A. § 14-2-510(b)(1) and (3); see also Huddle House, Inc. v. Paragon Foods,

Inc., 263 Ga. App. 382, 587 S.E.2d 845 (2003).

16

The word "office" as found in subsection (b)(3), supra, has been held to be

synonymous with a place of business for purposes of venue. See Huddle House, Inc.,

supra; see also McLendon v. Albany Warehouse Co., 203 Ga. App. 865, 418 S.E.2d 130

(1992) ("office" as used in the venue statute governing foreign corporations, includes

any place where a particular kind of business is transacted or service is supplied by a

corporation, and an office can be operated without being open, and thus virtually

unknown, to the public); Chrysler Credit Corp. v. Brown, 198 Ga. App. 653, 402 S.E. 2d

753 (1991) (court found that the evidence that a corporate lender financed purchases of

automobiles through a dealership in Coffee County was sufficient to establish that the

lender had a "office" in that county, making venue in borrower's fraud action proper

there, although lender's registered office was in Fulton County).

Pitfall Number 4: Conflicts

Is there now or can you think of a potential future conflict? As lawyers, we have a

professional obligation to our clients to identify real and potential conflicts before

undertaking the defense. Under the Georgia Rules of Professional Conduct, Rule 1.7:

(a) A lawyer shall not represent or continue to represent a client if there is a

significant risk that the lawyer’s own interests or the lawyer’s duties to another client, a

former client, or a third person will materially and adversely affect the representation of

the client, except as permitted in (b).

(b) If client consent is permissible a lawyer may represent a client notwithstanding a

significant risk of material and adverse effect if each affected or former client consents,

preferably in writing, to the representation after:


15

(1) In civil proceedings generally, in the county of this state where the corporation

maintains its registered office;

(2) In actions based on contracts, in that county in this state where the contract to be

enforced was made or is to be performed, if the corporation has an office and transacts

business in that county;


where the cause of action originated, if the corporation has an office and transacts

business in that county.


where the cause of action originated. If venue is based solely on this paragraph, the

defendant shall have the right to remove the action to the county in Georgia where the

defendant maintains its principal place of business. ... A notice of removal shall be filed

within 45 days of the service of the summons.

Determination of venue must be made upon facts as they exist at the time that

suit is initiated, not as facts may have existed at some previous point in time. Savannah

Laundry and Machinery Co., Inc. v. Owenby, 186 Ga. App. 130, 366 S.E.2d 787 (1988).

In Georgia, a defendant has a constitutional right to have a suit brought against it in the

county of its residence. Ga. Const. 1983, Art. VI, Sec. II, Para. 6. For the purpose of

determining venue against a corporation, venue lies generally either in the county where

its registered agent is maintained, or if a tort action, in the county where the cause of

action originated if the corporation has an office and transacts business in that county.

See O.C.G.A. § 14-2-510(b)(1) and (3); see also Huddle House, Inc. v. Paragon Foods,

Inc., 263 Ga. App. 382, 587 S.E.2d 845 (2003).

16

The word "office" as found in subsection (b)(3), supra, has been held to be

synonymous with a place of business for purposes of venue. See Huddle House, Inc.,

supra; see also McLendon v. Albany Warehouse Co., 203 Ga. App. 865, 418 S.E.2d 130

(1992) ("office" as used in the venue statute governing foreign corporations, includes

any place where a particular kind of business is transacted or service is supplied by a

corporation, and an office can be operated without being open, and thus virtually

unknown, to the public); Chrysler Credit Corp. v. Brown, 198 Ga. App. 653, 402 S.E. 2d

753 (1991) (court found that the evidence that a corporate lender financed purchases of

automobiles through a dealership in Coffee County was sufficient to establish that the

lender had a "office" in that county, making venue in borrower's fraud action proper

there, although lender's registered office was in Fulton County).

Pitfall Number 4: Conflicts

Is there now or can you think of a potential future conflict? As lawyers, we have a

professional obligation to our clients to identify real and potential conflicts before

undertaking the defense. Under the Georgia Rules of Professional Conduct, Rule 1.7:

(a) A lawyer shall not represent or continue to represent a client if there is a

significant risk that the lawyer’s own interests or the lawyer’s duties to another client, a

former client, or a third person will materially and adversely affect the representation of

the client, except as permitted in (b).

(b) If client consent is permissible a lawyer may represent a client notwithstanding a

significant risk of material and adverse effect if each affected or former client consents,

preferably in writing, to the representation after:


17

(1) consultation with the lawyer,

(2) having received in writing reasonable and adequate information about the

material risks of the representation, and

(3) having been given the opportunity to consult with independent counsel.

(c) Client consent is not permissible if the representation:

(1) is prohibited by law or these rules;

(2) includes the assertion of a claim by one client against another client

represented by the lawyer in the same or substantially related proceeding; or

(3) involves circumstances rendering it reasonably unlikely that the lawyer will be

able to provide adequate representation to one or more of the affected clients.

The maximum penalty for a violation of this Rule is disbarment.

The basis of the rule are the duty of loyalty and independent judgment, which are

“essential elements in the lawyer's relationship to a client.” Comment 1 to Ga. Rule

Prof. Conduct 1.7. In large firms, conflicts checks are especially crucial. Under

applicable rules of professional conduct, a law firm owes each of its clients a duty of

loyalty, which would normally preclude any attorney within the firm from undertaking a

representation adverse to any client of the firm without the affected client’s informed

consent. Other rules generally prohibit a firm from undertaking any representation

involving an actual or potential conflict of interest without the informed consent of all

affected parties. Such a situation exists whenever a firm represents two clients

simultaneously in a situation in which their interests are potentially adverse.

18

The conflict of interest, and the need for informed consent, exist no matter how

cordial the business relationship between the two parties currently is or is anticipated to

be, and no matter how non-controversial the Transaction is anticipated to be.

Insurance defense lawyers should also be aware of Rule 1.8(f), which provides:

(f) A lawyer shall not accept compensation for representing a client from one

other than the client unless:

(1) the client consents after consultation;

(2) there is no interference with the lawyer's independence of professional

judgment or with the client-lawyer relationship; and

(3) information relating to representation of a client is protected as required by

Rule 1.6.

It may not be possible for a single law firm to represent both parties in the same

aggressive manner as would two separate and independent law firms. If there is even a

whiff of a conflict, you need to notify your clients in writing and ask for written consent.

Our letters generally contain the following language:

“By giving the consent requested in this letter, you are, in effect, recognizing the possibility that zealous representation of your individual and potentially conflicting interests with respect to ___________. It is possible that each or both of you might be advised by independent counsel ___________________________. Moreover, regardless of the Terms upon which the lawsuit is concluded, the fact that one law firm has been involved in the representation of both parties may give rise to a perception on the part of shareholders, investors or other third parties that a different result might have been arrived at had each of you had separate representation by an independent law firm. If a dispute should arise in the future between the two of you concerning the Transaction or any other aspect of your dealings with each other, I believe I would have to withdraw, or would be disqualified, from representing either of you with regard to that dispute or any other


19

relationship you might then have with each other. You would then each have to retain separate counsel, resulting in additional expense and inconvenience that you might not have incurred had you been separately represented from the outset.”

Pitfall Number 5: Insurance Disclosure

The duty to disclose all potential insurance coverage is statutory. The Georgia

Civil Procedure Act, O.C.G.A. § 9-11-26, (b)(2) provides as follows:

A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this paragraph, an application for insurance shall not be treated as part of an insurance agreement.

(Emphasis supplied.)

Judicial hostility towards a party which knowingly fails to disclose excess

insurance coverage is also demonstrated by a Georgia Court of Appeals decision, Merritt

v. State Farm Mut. Ins. Co., 247 Ga.App. 442, 544 S.E.2d 18 (2000). In Merritt, State

Farm failed to disclose as required. Plaintiff made a demand to settle for the disclosed

policy limits of $250,000.00 but “contingent upon . . . the accuracy of your

representation that there is no other insurance applicable to this claim.” The case was

settled pursuant to State Farm’s representation that $250,000 was the extent of the

coverage. The Georgia Court of Appeals held that: (1) settlement agreement for

$250,000.00 was enforceable, even thought it was contingent on the accuracy of the

insurer’s denial of an umbrella policy; (2) the victim could affirm the agreement and

also sue the insurer directly in tort; and (3) factual issue on the amount of damages

precluded summary judgment for the plaintiff. This conduct in Merritt was held by the

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appellate court to support separate tort claims directly against the insurer for fraud,

willful misrepresentation, false swearing, and a claim under RICO. Punitive damages

could be awarded by the jury at trial. The case settled after this opinion was issued.

There has been quite a bit of publicity in Georgia throughout the years regarding

the failure of parties to a lawsuit to reveal their excess or umbrella carriers in response

to Interrogatories and propounded in accordance with the above provision. In Eskew

vs. Stone, No. 92VS0063227 (Fulton State Court, Filed September 21, 1992), the

defendant failed to reveal an umbrella policy with USAA. Plaintiff’s attorney had made

a demand for $1 million pursuant to O.C.G.A. § 51-12-14, the Georgia Unliquidated

Damage Act. However, he testified that, if he had known that there was more than $1

million coverage, his demand for pre-judgment interest would have been $1.5 million

rather than $1 million. In light of this, Judge William B. Hill, Jr., increased pre-

judgment interest to $149,227.00 and ordered the defendants to pay $88,882.00 in

attorney’s fees for unnecessarily expanding the proceedings. The defendants appealed

and ultimately settled the case. An article in the Fulton County Daily Report on this

problem on Wednesday, May 18, 1994, Vol. 105, No. 97 points out that Fed. R. Civ. P. 11

and the Georgia law (code sections dealing with abusive litigation) arm a trial judge with

ample authority for the imposition of sanctions on a party and the party’s attorney for

failing to reveal all applicable liability insurance. Judge Kathryn Tanksley took full

advantage of this authority in the case of Young v. Barrett, No. 2010 A 4415-4, 2011 WL

10903373 (Ga.State Ct.) when she revoked the pro hac vice admission orders of Ford

Motor Company’s national trial counsel and struck a portion of Ford’s Answer regarding

the Plaintiff’s failure to warn claims. She also granted a motion for a new trial in


21

another case involving Ford Motor Company in which Ford had received a defence

verdict.

Lawyers defending individuals and corporations must press their clients to

disclose all applicable insurance policies, lest they find themselves in a similar situation

to Ford Motor Company.

Pitfall Number 6: Notice of Intent to Apportion Fault

Under O.C.G.A. § 51-12-33(d), even non-parties who contributed to an

injury can now be assigned a percentage of fault by the fact finder. Prior to this

amendment, it was not proper to apportion damages to a non-party. Ross v. A

Betterway Rent-A-Car, 213 Ga. App. 288, 289, 444 S.E.2d 604 (1994). The trier of fact

can consider the negligence of a non-party if the plaintiff entered into a settlement

agreement with the non-party or a named defendant provides notice designating the

non-party's name and last known address or other best identification of the non-party

possible, with a brief statement of the basis for their alleged negligence, at least 120

days prior to trial. Because of this timing requirement it is important to identify

other responsible parties as quickly as possible and make sure that the required notice is

given.

O.C.G.A. § 51-12-33 provides as follows:


22

(b) Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution. (c) In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit. (d)(1) Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault. (2) The notice shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty's name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault. (e) Nothing in this Code section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly stated in this Code section. (f)(1) Assessments of percentages of fault of nonparties shall be used only in the determination of the percentage of fault of named parties. (2) Where fault is assessed against nonparties pursuant to this Code section, findings of fault shall not subject any nonparty to liability in any action or be introduced as evidence of liability in any action. (g) Notwithstanding the provisions of this Code section and any other provisions of law which might be construed to the contrary, the plaintiff shall not be entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages claimed.

This statute is a particularly “sticky wicket” in premises liability cases.


23

Plaintiff's lawyers have asserted a number of constitutional challenges to the

statute, including that the apportionment statute deprives plaintiff of a right to a jury

trial. Plaintiff’s attorneys are also alleging that the statute denies their clients due

process. They argue that it is unconstitutionally vague and requires jurors to guess at

meaning because language of part (c) conflicts with language in (a) and (b), and "fault"

is not defined. They also raise arguments that subsection (c) provides no guidance by

which jury is to determine the percentage of "fault" or standards to apply like

subsections (a) and (b) do. Plaintiff’s lawyers assert that the statute deprives Plaintiffs

of a property right because it deprives plaintiffs of a remedy when plaintiff would not

have been injured "but for" the negligent acts of a premises owner, but the jury will

apportion all of the fault to the criminal and the injury is indivisible.

The plaintiff’s Bar has also asserted that the statute violates equal protection.

They contend that strict scrutiny should be applied because: the right to justice is a

fundamental right and minorities and poor are a suspect class. They argue the statute

also fails rational basis because: all civil plaintiffs are not treated equally; and civil

plaintiffs are not treated the same as civil defendants.

The defense Bar has countered these arguments by asserting that the statute

permits apportionment to parties who are negligent or “at fault” and the plain language

of the statute does not prohibit apportionment in premises cases. The defense lawyers

also argue that the landowner is not delegating its duty of security, because the

criminal’s fault arises from the breach of an independent duty to the plaintiff. Rather,

the landowner is exercising its right to be held liable only for the damages attributable to

its “percentage of fault.” The question is not whether the legislature only intended to

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reform medical malpractice cases, but what the legislature actually did. The statute

permits apportionment against other parties or nonparties who are “negligent or at

fault.” It also applies when the plaintiff is not alleged to be negligent. See Cavalier

Convenience v. Sarvis, 305 Ga. App. 141, 699 S.E.2d 104 (2010); McReynolds v. Krebs,

307 Ga. App. 330, 705 S.E.2d 214 (2010), aff’d, 290 Ga. 850 (2012). We have argued

that the statute does not prohibit plaintiff from pursuing a premises liability case.

Plaintiff remains free to argue to the jury both that the criminal is responsible for

committing the crime, and that the property owner is liable for failing to prevent it. The

jury is free to apportion fault between the two if they are persuaded.

The opinions by our trial judges are all over the map. We must look to our

appellate courts.

In Pacheco v. Regal Cinema, 311 Ga. App. 224, 715 S.E.2d 728 (2011) (physical

precedent only), the Court of Appeals considered the applicability of the apportionment

statute in a premises liability case involving a criminal attack in a movie theater parking

lot. The plaintiff had argued that the apportionment statute should not apply and had

cited to Florida and Tennessee cases which had declined to apportion liability between

an intentional tortfeasor and a negligent tortfeasor. Id. at 229. The Court of Appeals,

however, noted that the Florida statute was different from Georgia’s in that the statutory

language in Florida specifically excluded intentional torts from the definition of “fault.”

Id. at 229-230.

With regard to the Tennessee authority, which did not turn on statutory

language, the Court of Appeals held that the trial court had properly instructed the jury

pursuant to the Georgia apportionment statute, “rather than pursuant to Tennessee case


25

law.” Id. Thus, in its ruling, the Court held that O.C.G.A. § 51-12-33 applied to premises

liability cases involving criminal acts. Given that one of the judges on the panel

concurred in the judgment only, this case, however, constitutes physical precedent only

and thus lacks precedential value. See Fulton County Board of Tax Assessors

v. NABISCO, 296 Ga. App. 884, 886, 676 S.E.2d 41 (2009); Couch v. Red Roof Inns,

Inc., 291 Ga. 359, 365, 729 S.E.2d 378 (2012):

The rules of ordinary statutory construction…dictate that an assailant who evades hotel security to intentionally abduct, rob and assault a hotel guest is, at the very least, partially “at fault” for the brutal injuries inflicted by the assailant on that guest. As a party at fault, such an assailant must be considered with others who may be at fault…for purposes of apportioning damages to wrongdoing parties.

Instructions or a special verdict form which provide criminal third party

apportionment are constitutional: the apportionment statute does not violate due

process because it is neither unconstitutionally vague nor does it destroy a vested

property right.

After the ruling in Couch, the Court of Appeals reaffirmed its position disfavoring

trial courts denying a jury the opportunity to consider fault of non-parties. Double View

Ventures, LLC v. Polite, 326 Ga. App. 555, 757 S.E.2d 172 (2014). However, the Polite

decision was overruled by Martin v. Six Flags Over Georgia II, L.P., 301 Ga. 323, 801

S.E.2d 24 (2017).

The Six Flags case expanded the geographical scope for liability for criminal

attacks on a premises. The Supreme Court of Georgia granted certiorari in this case to

determine (1) whether Six Flags could properly be held liable for the injuries inflicted in

this attack; and (2) assuming liability was proper, whether the trial court’s

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apportionment error does indeed require a full retrial. The Six Flags case involved a

brutal attack on Plaintiff at a bus stop outside the Six Flags amusement park in July

2007. A jury found Six Flags (two corporate entities) liable for the injuries, along with

the four named individual assailants, and awarded Plaintiff a $35,000,000 verdict

apportioning 92% fault to the Six Flags entities and 2% each against the four assailants.

The Supreme Court said:

For the first question, regarding the contours of premises liability, we agree that the jury was authorized to find Six Flags liable for the breach of its duty to exercise ordinary care in keeping its premises safe for invitees, although for a different reason than that articulated by the Court of Appeals. Because the attack that caused Martin’s injuries began while both he and his assailants were on Six Flags property, Six Flags’ liability is not extinguished simply because Martin stepped outside the property’s boundaries while attempting to distance himself from his attackers.

Id. at 324.

In another fairly recent Supreme Court decision, plaintiffs’ allegations of facts

and admissions in original pleadings that identified non-party entities that were

responsible for producing or distributing asbestos-containing products to which the

plaintiffs were exposed were found to be admissions in judicio that defendants could

rely on to establish potential fault of the non-party entities for the purpose of

apportioning damages. Georgia-Pacific, LLC v. Fields, 293 Ga. 449, 748 S.E.2d 407

(2013). This was true, even though the plaintiffs’ amended complaint withdrew the

admissions. Id. at 502.


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Pitfall Number 7: Surveillance

The use of private investigators is becoming increasingly popular in an attempt to

lessen liability in litigation. Techniques by private investigators vary depending on the

organization or individual employed to perform the investigation. There are generally

three types of investigations used in lawsuits: (1) an activities check; (2) a background

check; and (3) videotapes and/or still photographs of a Plaintiff's activity. An

investigator could use one or any combination of these three types of investigation

depending on what information is requested. Obviously, since the information that you

receive from the investigator will necessarily only be as good as the investigator and the

investigation that he or she performs, it is important to pick the right investigator

initially.

When Surveillance Can Be Useful

The methods of investigation may not always uncover material that may be useful

in defending against a plaintiff’s claim. In fact, it is seldom that an investigation of a

plaintiff will uncover information that, when used alone, will provide enough

ammunition to avoid liability. If one is fortunate enough to obtain good information on

a plaintiff indicating no disability or fraudulent activity, that information, coupled with

other impeachment evidence, such as inconsistent statements by the plaintiff or medical

records contrary to the plaintiff’s contentions of disability, can be useful aids in avoiding

liability, or at least lessening potential exposure in a lawsuit.

Hiring the Investigator

Once the determination has been made to conduct an investigation on the

plaintiff, one must ensure that the investigator or the investigating company is reputable

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and properly licensed. In addition, one must provide specific guidelines to the

investigator, including the methods of investigation to use and the dollar limit of the

investigation.

O.C.G.A. § 43-38-6 requires any individual, firm, company, partnership or

corporation which desires to engage in the private detective or private security business

in the State of Georgia to submit an application under oath showing that the applicant:

(1) is 18 years of age or older; (2) is a citizen of the United States or a registered resident

alien; (3) is of good moral character; (4) has not been convicted of a felony or any crime

involving the illegal use, carrying, or possession of a dangerous weapon or any crime

involving moral turpitude or, if so, the facts and circumstances surrounding the

proceeding; (5) has not committed an act constituting dishonesty or fraud; (6) has a

competent training officer and adequate training program; (7) has at least two years

experience as a private detective with a licensed detective agency, law enforcement or

four-year degree in criminal justice or related field from an accredited university or

college; (8) has passed a written examination if prescribed by the Georgia Board of

Private Detective and Security Agents (the "Board"); and (9) meets any other

qualifications as the Board may prescribe by rule. In addition, the applicant must post

or make provisions for posting of a bond executed in favor of the State in the amount of

$25,000, with a surety company authorized to do business in the State or evidence of a

policy of liability insurance in the amount of not less than $1,000,000 insuring the

applicant against personal liability for damages arising out of acts of the insured or his

employees.


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A private insurance company may employ as many agents, operators, assistants,

guards, watchman or patrolmen as necessary, provided that such employees also meet

the requirements and qualifications for registration set forth above. O.C.G.A. § 43-38-7.

However, companies employing in-house investigative personnel who conduct

investigations off of the employer's premises are not required to be registered by the

Board, provided the in-house investigators are employed exclusively and regularly by

only one employer their investigations are in connection with the employer's affairs, and

that the employer is not in the private detective business. O.C.G.A. § 43-38-14.

If your insurance company does not employ in-house investigators, make sure

that any private investigating company or individual private detective who may be hired

to conduct any of the methods of investigation is registered and licensed as required by

§ 43-38-1 et seq. If the investigator is properly licensed, the employer/insurer does have

some remedies in the event the investigator fails to act properly.

Guidelines for Investigators

In addition to ensuring that outside investigators and investigative agencies meet

the minimum requirements noted above, the following guidelines should also be

utilized:

(1) the investigator or agency making the investigation should normally be

instructed that no contact is to be made with the claimant or the claimant's immediate

family. If, in an individual case, direct contact is thought to be necessary, the request

and supporting reasons should be discussed with legal counsel; and

(2) the investigator or agency should be instructed that the investigation must

be restricted to matters which, based upon common sense, are relevant to the workers'

30

compensation or liability claim being investigated. Investigations involving personal

matters and information on personal matters not related to the issues at hand should be

avoided.

These basic guidelines are important to stress to the investigator to avoid

potential liability on the part of the employer/insurer which could result from an

improper investigation. Georgia has long recognized an individual's right to personal

privacy. Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68 (1904). The

general right to privacy is subject to limited waiver by filing a civil action, including, but

not limited to, workers' compensation claims. Ellenber v. Pinkerton's Inc., 125 Ga. App.

648, 188 S.E.2d 911 (1972); Ellenber v. Pinkerton's Inc., 130 Ga. App. 254, 202 S.E.2d

701 (1973). However, for the privacy waiver to apply, the surveillance must be

reasonable, unobtrusive, and performed with the sole intent of catching a party

performing activities inconsistent with the basis of the claim. Pinkerton's National

Detective Agency v. Stevens, 108 Ga. App. 159, 132 S.E.2d 119 (1963). In Ellenber, the

Court stated: "Reasonable surveillance is recognized as a common method to obtain

evidence to defend a lawsuit. It is only when such is conducted in a vicious or malicious

manner, not reasonably limited and designated to obtain information needed for the

defense of a lawsuit, or deliberately calculated to frighten or torment the plaintiff; that

the courts will not countenance it." Id. at 704.

Obviously, the determination of what constitutes "reasonable surveillance" will

be conducted on a case-by-case basis. If a party can establish that the investigation was

conducted in an unreasonable manner, it could subject the investigator, employer and

insurer to tort liability. Ellenber v. Pinkerton's. Inc. supra. One area that could be


31

construed as being "unreasonable surveillance" is the direct contact between an

investigator and the claimant, or a member of the claimant's family. Generally, you

cannot have an investigator do what a lawyer cannot do. Ethical rules for lawyers

explicitly prohibit direct contact between a represented claimant and the

employer/insurer's lawyer. Therefore, if direct contact is made, there may be some

ethical problems that could impact the judge at a hearing when counsel attempts to use

the surveillance. Although there appear to be no "rules" of evidence to keep that type of

information from coming into evidence, the judge may keep it out because he feels it is

"tainted."

The Legal Use of Surveillance

Assuming a qualified investigator has been hired and provided with the

appropriate guidelines, and there has been a determination that the information

obtained through the investigation would be useful to defend a claim, the questions then

become: (1) what are the legal obligations to provide the information to opposing

counsel; and (2) how can the investigative information be entered into evidence?

Obligation to Provide Information to Opposing Counsel

If the opposing counsel does not ask about any investigative material, there is no

obligation to provide that information prior to the workers’ compensation hearing. If

opposing counsel does ask for the information, there are two schools of thought

regarding the obligation to produce the material. One is to object to the claimant's

discovery specifically requesting the information on the grounds that the information is

protected by the work product doctrine. This means that the information was prepared

in anticipation of litigation or for trial, and is discoverable only upon a showing that the

32

party seeking the information has a substantial need of the materials in the preparation

of the case and is unable, without undue hardship, to obtain the substantial equivalent

of the materials by other means. O.C.G.A. § 9-11-26. The burden is then placed on

opposing counsel to file a motion to compel requesting the information. If a motion is

not filed, the employer/insurer is not required to produce the information. The other

school of thought is that the information is not protected by the work product doctrine,

and is relevant to the pending issues and, thus, is discoverable and should be produced.

There are no Georgia cases on this specific point. However, most courts from

other jurisdictions have interpreted Rule 26 to require disclosure of surveillance

photographs and videotapes. This includes all photographs or tapes of a party, not only

those intended for use at the hearing. However, those jurisdictions have also placed

limitations on disclosure, in that disclosure is not normally required until after the

employee has been cross-examined in a deposition.

As a practical matter, the information obtained through the investigation will

generally be produced, at least after the claimant is cross-examined by deposition.

Some Administrative Law Judges hold that if the claimant's attorney sent discovery

asking for the information and an objection was filed and the information was not

produced, the information cannot be introduced at the hearing. If the information is

crucial to your case, you certainly do not want the judge to exclude that information at

the trial.

Use of the Surveillance at Trial

In order to use the investigative information at trial, the information must be

properly authenticated. Allen v. State, 146 Ga. App. 815, 247 S.E.2d 540 (1978), states


33

that the admission of a videotape requires: (1) a showing that the mechanical

transcription device was capable of taking the testimony; (2) a showing that the operator

of the device was competent to operate it; (3) the authenticity and correctness of the

recording; (4) a showing that changes, additions or deletions have not been made; (5) a

showing of the manner of the preservation of the record; (6) the identity of the speaker;

and (7) that any testimony elicited was freely and voluntarily made, without any kind of

duress.

O.C.G.A. § 24-9-923 allows for the admission of photographs, motion pictures,

video tapes, and audio recordings when the authenticating witness is "unavailable." In

effect, this "silent witness" theory requires that the following three elements be

established: (1) testimony establishing that the videotape had not been altered or

manipulated; (2) testimony establishing the date and place the videotape was taken; and

(3) testimony establishing the identity of the relevant participants depicted. However,

this exception applies only if the person taking the video is not available at trial.

As a result of the advanced technology and the ability to alter videotapes, courts

may be more stringent about the requirements to admit into evidence certain

investigation material, specifically videotapes. In the workers' compensation context,

the investigator is subpoenaed to the hearing and can testify as to his personal

observations of the claimant or, if videotape or photographs were taken of the claimant,

the investigator can provide the testimony necessary to place the videotape or

photographs into evidence. If the investigator is not available, any video or

photographic investigative material obtained can be shown to the claimant for

identification and for impeachment purposes upon cross-examination.

34

With regard to any criminal records obtained through the investigation, certified

copies of these documents may be entered into evidence, provided the crime is either a

felony or a crime of moral turpitude. It is a requirement that the record show a

conviction and that the records be certified by the Clerk of Court. Thus, the investigator

must obtain certified copies of any criminal records obtained during a background

check, or the attorney who plans to enter the records into evidence must obtain the

certified copies.

Pitfall Number 8: Notice of Intent to Introduce Medical Records

It is less costly and less burdensome to introduce medical records at trial vs.

having the physician testify. One of the 2013 revisions to Georgia’s Evidence Code

specifically intended to allow the admission of physicians’ medical opinions:

(6) Records of regularly conducted activity. Unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness and subject to the provisions of Chapter 7 of this title, a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, if (A) made at or near the time of the described acts, events, conditions, opinions, or diagnoses; (B) made by, or from information transmitted by, a person with personal knowledge and a business duty to report; (C) kept in the course of a regularly conducted business activity; and (D) it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or by certification that complies with paragraph (11) or (12) of Code Section 24-9-902 or by any other statute permitting certification. The term "business" as used in this paragraph includes any business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. . .

O.C.G.A. § 24-8-803(6).


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Pitfall Number 9: Be Aware of Settlements Involving Co-Defendants

Under Georgia law, a plaintiff traditionally has been limited to one satisfaction

for one injury. See Kroger Co. v. Mays, 292 Ga. App. 399, 664 S.E.2d 812 (2008).

However, after a February 8, 2010 opinion issued by the Georgia Supreme Court, the

one-injury-one-satisfaction rule has been abridged and curtailed.

In Broda v. Dziwura, 286 Ga. 507, 689 S.E.2d 319 (2010), the Supreme Court of

Georgia unanimously reversed a decision of the Court of Appeals of Georgia in Dziwura

v. Broda, 297 Ga. App. 1, 676 SE 2d 400 (2009). The plaintiff sued Dziwura, the driver,

and Winmark Homes on a theory that Dziwura was acting in the scope of employment

with Winmark. Winmark Homes entered into a high/low agreement with the plaintiff’s

attorney which required it to pay a minimum of $250,000 even if the jury found that

there was no scope and therefore no legal responsibility on the part of Winmark Homes.

The jury returned a verdict for $1,002,763.00 in favor of Ms. Broda who was

injured, found against her husband on his loss of consortium claim. The jury did not

find that Winmark Homes had any liability. Thus, Winmark Homes was not a

tortfeasor. Winmark Homes paid Ms. Broda $250,000 pursuant to the high-low

agreement.

The Court of Appeals of Georgia held that, under these circumstances, Dziwura

was entitled to a $250,000 credit as a set-off against the $1,002,763 judgment. The

Court of Appeals of Georgia reversed the trial judge’s decision citing the Restatement

(Second) of Torts, § 885(3) & Comment (F).

On appeal, the Supreme Court reversed the Court of Appeals and ruled that a

tortfeasor cannot diminish his liability based upon payments made by a non-tortfeasor.

36

Winmark Homes was not a tortfeasor based upon the jury verdict. The Supreme Court

cited Adkins v. Knight, 256 Ga. App. 394, 568 SE 2d 517 (2002). The Supreme Court

stated that, if a windfall must be had, it will inure to the benefit of the injured party

rather than to relieve the wrongdoer of full responsibility for his wrongdoing. In the

end, Broda appears to give a plaintiff a significant upper-hand in terms of forcing co-

defendants to settle, or else risk being responsible for the entire verdict.

Similarly, in McReynolds v. Krebs, 307 Ga. App. 330, 750 SE2d 214 (2010),

Judge Adams decided that O.C.G.A. § 51-12-33 abolished the rule of set-off, also known

as "one injury, one relief." A defendant's only "remedy" is to put the settling non-party

on the verdict form for an assessment of a percentage of fault. Thus, if a manufacturer

pays $5 million to settle a claim which can be proven only by a horde of expensive

experts, there is no "credit" other than the fault percentage and the burden of proof is on

the defendant. The trend is not our friend.

Pitfall Number 10: Liens

The case has settled, you order a settlement draft, mark that claims file closed

and move on to the next one. Before you close out the file, however, it is crucial that you

verify that all of the possible liens and subrogation claims have been resolved to ensure

that you do not end up on the hook down the road for a subrogation claim.

Ensuring that liens and subrogation claims are resolved is often easier said than

done today. There are numerous liens and claims that must be considered including:

• ERISA reimbursement claims

• Medicare reimbursement claims

• Medicaid reimbursement claims


37

• Health care provider liens

When settling a case, it is important to verify that all liens and claims have been

resolved. Obtain documentation of the lien/claim resolution rather than simply relying

on the plaintiff’s attorney’s assurances.

ERISA Reimbursement Claims:

“ERISA” is shorthand for the Employee Retirement Income Security Act, a

federal act that applies to private employee benefits, including health insurance. As a

general rule, if an employer provides health insurance to an employee, then the health

insurance plan is most likely governed by ERISA. If a claimant has health insurance

through his employer, then there may be a claim for reimbursement for medical benefits

paid on behalf of the employee.

ERISA does not provide for an express right of reimbursement. Rather, the Act

provides for “appropriate equitable relief” to enforce the terms of the health insurance

plan. 29 U.S.C. §1132(a)(3). Courts have interpreted this language to mean that when a

health insurance plan provides a right of reimbursement, then an equitable right of

subrogation arises. When a plan provides for recovery from the settlement proceeds up

to the amount that the plan has paid in health benefits, then the courts will enforce the

plan’s equitable right of subrogation.

If the claimant has health insurance, it is important to determine:

• Whether the plan was provided by an employer;

• Whether the plan was a self-funded or an insured plan. This is important

because self-funded plans are governed only by ERISA, which completely

preempts any state law defense that you might have under the “made

38

whole doctrine.” The made whole doctrine bars subrogation claims where

the claimant was not made whole by his recovery.

• The subrogation language contained in the health insurance plan.

Depending on the language in the plan, there may or may not be an

equitable right of subrogation.

Defense counsel may need to research this issue to determine whether an ERISA

lien exists and whether it has been satisfied before releasing settlement funds to the

claimant.

Medicare Reimbursement Claims:

Federal law provides that when Medicare benefits are paid on behalf of a

Medicare beneficiary, there is a right of recovery when the beneficiary has another

available source for the benefits. 42 U.S.C.A. §1395y(b). This federal law, referred to as

the Medicare Secondary Payer statute, provides that Medicare will not make payments

with respect to any item or service where payment has been made, or reasonably can be

expected to be made, by worker’s compensation, third party liability insurance, no-fault

insurance or a group health plan.

Medicare benefits are secondary to benefits payable by the primary payer. 42

C.F.R. §411.32. When a primary payer, such as a liability insurance carrier, cannot

reasonably be expected to make prompt payment, Medicare may make a conditional

payment, conditioned on reimbursement of the payment by the primary payer. The

Centers for Medicare and Medicaid Services (CMS) then has a right of recovery for

conditional payments that should have come from a primary payer.


39

Medicare has several options available for recovery of conditional payments.

CMS can recover by direct collection or by filing a direct action to recover from any

primary payer (i.e. a liability insurance carrier, workers’ compensation carrier, group

health plan). CMS can also assert its right of recovery against any party that received a

primary payment, such as the beneficiary himself, a health care provider or supplier, or

an attorney for the beneficiary. When Medicare has made a conditional payment, it is

subrogated to any individual beneficiary, health care provider or supplier, insurer, or

attorney who may be entitled to payment by a third party.

When a claimant is a Medicare beneficiary, a liability insurance carrier must

proceed with caution. CMS is authorized to bring a direct action against a liability

insurance carrier (or other primary payer, such as a worker’s compensation carrier) to

recover conditional payments. 42 C.F.R. §411.24(e). If CMS has to take legal action to

recover against a liability insurance carrier (or other primary payer), then it may recover

double the amount of the conditional payments from the liability carrier. 42 C.F.R.

§411.24(c)(2).

Liability insurance carriers must also be familiar with the reporting requirements

for liability insurance carriers. Under Section 111 of the Medicare, Medicaid, and SCHIP

Extension Act of 2007, the Medicare Secondary Payer act was amended to provide for

mandatory reporting for group health plan arrangements, liability insurance (including

self-insurance), no-fault insurance, and workers' compensation. 42 U.S.C.A.

§1395y(b)(7), (8). Under this amendment, liability insurers are required to report the

identity of a Medicare beneficiary whose illness, injury, incident, or accident was at issue

40

as well as other information deemed necessary by the Secretary of the Treasury to

enable CMS to coordinate benefits and recover conditional payments.

Liability insurance that falls within the purview of this reporting requirement

includes homeowners, automobile, commercial general, professional, uninsured and

underinsured liability insurance. Under this reporting requirement, liability insurers

must submit this identifying information about claimants within a specific amount of

time of the resolution of the claim, whether by settlement or judgment. In order to

provide the required information, liability insurance companies are authorized to

request Social Security Numbers or Medicare Health Insurance Claim Numbers by an

Alert issued by CMS.

Failure to comply with the mandatory reporting requirements by a liability

insurance carrier will result in hefty penalties against the company. The amendment to

the Medicare Secondary Payer statute provides for a civil money penalty of $1,000 for

each day of noncompliance with respect to each claimant. A civil money penalty is in

addition to any liability for a Medicare secondary payer claim. 42 U.S.C.A.

§1395y(b)(8).

Upon settlement of a personal injury claim on behalf of a Medicare beneficiary,

the attorney representing the claimant must notify CMS of the date of settlement, the

settlement amount, and the amount of any attorney's fees and other procurement costs

in the case. CMS will then respond with a final recovery demand letter. Once a

settlement or judgment is received by the claimant, the Medicare reimbursement is due

within sixty days. Failure to reimburse Medicare within sixty days may result in interest

being charged by CMS.


41

Medicaid Reimbursement Claims:

Federal law provides that when benefits are paid on behalf of a Medicaid

beneficiary and a third party is ultimately liable for those benefits, the State

administering the Medicaid plan will seek reimbursement for the Medicaid benefits paid

on behalf of the Medicaid beneficiary. 42 U.S.C.A. §1396a(a)(25)(A). As a condition of

receiving Medicaid benefits, the Medicaid beneficiary must assign his right of recovery

against the responsible third party to the extent of the Medicaid benefits received to the

State. 42 U.S.C.A. §1396k(a)(1)(A).

Georgia statutory law also addresses the State’s right of recovery. O.C.G.A §49-1-

148 provides that when the Georgia Department of Community Health pays for medical

assistance for a Medicaid beneficiary, the Department can seek reimbursement when a

third party is responsible for the injury. In order to enforce this reimbursement claim,

the Department has three available options. The Department takes an assignment from

the Medicaid beneficiary when payments are made on his behalf. O.C.G.A. §49-4-

149(d). Using this assignment, the Department can bring a direct action against the

responsible third party.

The Department of Community Health is also subrogated to the extent of the

reasonable value of the medical benefits paid to the right of a Medicaid beneficiary to

receive benefits under a private health insurance contract. O.C.G.A. §49-4-149(c).

Finally, the Department has a lien for benefits paid on behalf of the Medicaid

beneficiary where such payments were the responsibility of a third party. The

Department can perfect and enforce their lien using the Georgia hospital lien statutory

provisions.

42

The attorney representing a claimant who received Medicaid benefits must notify

the Georgia Department of Community Health of the intent to initiate a personal injury

claim on behalf of the Medicaid beneficiary. O.C.G.A. §9-2-21(c). Upon settlement of

the claim, the Medicaid reimbursement claim must be resolved. Attorneys representing

the responsible third party must also ensure that the Medicaid claim is resolved so that

the Department does not later assert a direct action against the responsible third party.

Under the United States Supreme Court decision in Arkansas Dept. of Health

and Human Servs. v. Alhborn, a Medicaid claim for reimbursement, however, can only

be asserted against the portion of the judgment or settlement that is attributable to past

medical expenses. 547 U.S. 268, 126 S.Ct. 1752 (2006).

In light of Alhborn, it is crucial to establish what portion of a judgment or

settlement is apportioned to past medical expenses. For a judgment, a jury verdict form

can provide a line item allowing the jury to make such an apportionment. For a

settlement, the attorneys for both the plaintiff and the defendant are well advised to

seek a court order apportioning the settlement amount. Such an apportionment should

address the amount of the settlement that represents past medical expenses, future

medical expenses, pain and suffering and lost income.

Healthcare Provider Liens:

Georgia statutory law provides a lien for hospitals, nursing homes, and physician

practice groups against a claimant’s cause of action for injuries which necessitated the

care given by the healthcare provider to the injured person. O.C.G.A. § 44-14-470. In

order to perfect a lien, the hospital, nursing home or physician must provide written

notice to the patient and, to the best of the facility's knowledge, the persons, firms,


43

corporations, and their insurers claimed by the injured person or the legal

representative of the injured person to be liable for damages arising from the injuries.

This notice must be sent by first class and certified mail or statutory overnight delivery,

return receipt requested. This written notice must be given at least 15 days prior to the

filing of a verified statement as discussed below.

The hospital, nursing home, or physician must then file a verified statement with

the clerk of the superior court of the county in which the hospital, nursing home, or

physician is located and in the county wherein the patient resides if the patient is a

resident of Georgia. The verified statement must set forth (1) the name and address of

the patient as it appears on the records of the treating facility, (2) the name and location

of the treating facility, (3) the name and address of the operator of the treating facility,

(4) the dates of admission and discharge of the patient or, with respect to a physician

practice, the dates of treatment, and (5) the amount claimed to be due for the care.

O.C.G.A. § 44-14-471.

The verified statement must be filed within a specified time period. If the

statement is filed by a hospital or nursing home, then it must be filed within 75 days

after discharged from the facility. If the statement is filed by a physician practice, then

the statement must be filed within 90 days after the patient first sought treatment from

the physician practice for the injury.

The filing of the claim or lien is notice to all persons, firms, or corporations liable

for the damages, whether or not they received the written notice. In addition, failure to

perfect the lien by timely complying with the notice and filing provisions of the statute

does not invalidate the lien.

44

Conclusion

With the potential for claims directly against liability insurance carriers,

subrogation claims and liens must be addressed when settling any personal injury claim.

Defense counsel will likely need to investigate the potential for a subrogation claim or

lien and obtain documentation establishing that the claim/lien was resolved

appropriately. Reliance upon indemnification language in a release may not be

sufficient in instances where a claim can be asserted directly against the liability carrier.

3195849/1 0001-10006


2:20 VOIR DIRE FROM A DEFENSE PERSPECTIVE G. Lee Welborn, Downey & Cleveland, LLP, Marietta


-i-

VOIR DIRE FROM A DEFENSE PERSPECTIVE

G. Lee Welborn Matthew R. Sessions

Downey & Cleveland, LLP Marietta, Georgia 30060

TABLE OF CONTENTS

Introduction .....................................................................................................................................1 The Purpose of Voir Dire ................................................................................................................1 Where Did These People Come From? ..........................................................................................2 What Can I Know About Them? .....................................................................................................2 How Many Jurors Can I Choose From? .........................................................................................2 Superior Court .....................................................................................................................3 State Court ..........................................................................................................................3 Can I Have Alternates? ...................................................................................................................3 Why is There a Convicted Felon on My List? ................................................................................4 Qualifying the Jury .........................................................................................................................4 Qualifying the Jury as to Family Members .........................................................................4 Qualifying the Jury as to Insurance Carriers .......................................................................5 Stock Companies vs. Mutual Companies ...........................................................................6 Persons Excused from Jury Duty ....................................................................................................6 What Kinds of Questions May I Ask? ............................................................................................7 What Kinds of Questions May I Not Ask? .....................................................................................8 General Questions vs. Individual Questions ...................................................................................8 Sequestered Voir Dire .....................................................................................................................9 Challenges for Cause or Favor ......................................................................................................10 Doubts as to Whether They can be Impartial ....................................................................11

-ii-

Rehabilitation of a Juror who Admits an Inability to be Impartial ...................................12 Striking the Jury ............................................................................................................................14 Preparation Time ...............................................................................................................14 Time Limit for Strikes ......................................................................................................14 Number of Strikes when there are Co-Defendants ...........................................................14 Order of Strikes .................................................................................................................15 Conclusion ....................................................................................................................................15


-i-


G. Lee Welborn Matthew R. Sessions

Downey & Cleveland, LLP Marietta, Georgia 30060

TABLE OF CONTENTS

Introduction .....................................................................................................................................1 The Purpose of Voir Dire ................................................................................................................1 Where Did These People Come From? ..........................................................................................2 What Can I Know About Them? .....................................................................................................2 How Many Jurors Can I Choose From? .........................................................................................2 Superior Court .....................................................................................................................3 State Court ..........................................................................................................................3 Can I Have Alternates? ...................................................................................................................3 Why is There a Convicted Felon on My List? ................................................................................4 Qualifying the Jury .........................................................................................................................4 Qualifying the Jury as to Family Members .........................................................................4 Qualifying the Jury as to Insurance Carriers .......................................................................5 Stock Companies vs. Mutual Companies ...........................................................................6 Persons Excused from Jury Duty ....................................................................................................6 What Kinds of Questions May I Ask? ............................................................................................7 What Kinds of Questions May I Not Ask? .....................................................................................8 General Questions vs. Individual Questions ...................................................................................8 Sequestered Voir Dire .....................................................................................................................9 Challenges for Cause or Favor ......................................................................................................10 Doubts as to Whether They can be Impartial ....................................................................11

-ii-

Rehabilitation of a Juror who Admits an Inability to be Impartial ...................................12 Striking the Jury ............................................................................................................................14 Preparation Time ...............................................................................................................14 Time Limit for Strikes ......................................................................................................14 Number of Strikes when there are Co-Defendants ...........................................................14 Order of Strikes .................................................................................................................15 Conclusion ....................................................................................................................................15



G. Lee Welborn

Matthew R. Sessions Downey & Cleveland, LLP


1


G. Lee Welborn



No matter how extraordinarily sympathetic or villainous the parties are, or how skilled

their attorneys might be, the single most important factor in a jury verdict is the jury who returns

it. Voir dire provides the attorney with an invaluable opportunity to shape the outcome of the

case before the first witness is ever called to the stand. A thorough understanding of the jury

selection process is crucial to successfully defending against a personal injury case.

A. THE PURPOSE OF VOIR DIRE

The sole purpose of voir dire is to provide both parties with an opportunity to determine

the impartiality of jurors, their ability to treat the cause on the merits with objectivity and

freedom from bias and prior inclination. Sallie v. State, 276 Ga. 506 (2003), cited in Reynolds v.

State, 334 Ga. App. 496 (2015). The larger purpose of voir dire is to enable counsel to identify

those prospective jurors counsel desires to remove from the panel by use of peremptory strikes as

opposed to challenges for cause. Henderson v. State, 251 Ga. 398 (1983), cited in Reynolds,

supra. A defendant must be permitted to ask sufficient questions to determine the fairness and

impartiality of the prospective jurors, but the appropriate scope of voir dire in a particular case is

left to the sound discretion of the trial judge. Arrington v. State, 286 Ga. 335 (2009), cited in

Reynolds, supra.



G. Lee Welborn



1


G. Lee Welborn



No matter how extraordinarily sympathetic or villainous the parties are, or how skilled

their attorneys might be, the single most important factor in a jury verdict is the jury who returns

it. Voir dire provides the attorney with an invaluable opportunity to shape the outcome of the

case before the first witness is ever called to the stand. A thorough understanding of the jury

selection process is crucial to successfully defending against a personal injury case.

A. THE PURPOSE OF VOIR DIRE

The sole purpose of voir dire is to provide both parties with an opportunity to determine

the impartiality of jurors, their ability to treat the cause on the merits with objectivity and

freedom from bias and prior inclination. Sallie v. State, 276 Ga. 506 (2003), cited in Reynolds v.

State, 334 Ga. App. 496 (2015). The larger purpose of voir dire is to enable counsel to identify

those prospective jurors counsel desires to remove from the panel by use of peremptory strikes as

opposed to challenges for cause. Henderson v. State, 251 Ga. 398 (1983), cited in Reynolds,

supra. A defendant must be permitted to ask sufficient questions to determine the fairness and

impartiality of the prospective jurors, but the appropriate scope of voir dire in a particular case is

left to the sound discretion of the trial judge. Arrington v. State, 286 Ga. 335 (2009), cited in

Reynolds, supra.


2

B. WHERE DID THESE PEOPLE COME FROM?

Potential jurors may be drawn from lists provided by the Department of Driver Services,

and from voter lists provided by the Secretary of State. O.C.G.A. §15-12-40.1. Upon request,

the Clerk of Court shall make the county master jury list available for review by a party or his or

her attorney. O.C.G.A. §15-12-43.1. “Venire” means the list of persons summoned to serve as

trial or grand jurors for a particular term of court. O.C.G.A. §15-12-1 (10). “Array” means the

body of persons subject to voir dire from which the final jury and alternate jurors are selected.

O.C.G.A. §15-12-1 (1).

Counties vary in terms of how far in advance of trial you may obtain a list of potential

jurors. It is good practice to get the list of names as soon as possible. Research into social

media profiles and posts can provide a wealth of information about the ones who may decide the

outcome of your case.

C. WHAT CAN I KNOW ABOUT THEM?

The chief superior court judge has the power to require prospective jurors to answer

questionnaires concerning their qualifications. Like a failure to appear for jury duty, a failure to

answer the questionnaire is punishable through contempt of court powers. O.C.G.A. §15-12-

10 ; O.C.G.A. §15-12-12.

D. HOW MANY JURORS CAN I CHOOSE FROM?

Conventional wisdom has it that it is easier for a plaintiff to persuade six people that he or

she has met the burden of proof than it is to persuade twelve. It is important for the defense

attorney to maximize the number of people the plaintiff has to convince.

3

i. Superior Court:

In all civil actions tried in superior courts, you are entitled to a twelve-person jury. Each

party may demand a full panel of twenty-four jurors from which to select a jury. O.C.G.A. §15-

12-122 (b). Judges usually bring in extra jurors in case of disqualifications.

ii. State Court:

In civil cases tried in state courts, you are only entitled to a jury of six. O.C.G.A. §15-12-

122 (a) (1). There is a way for you to get twelve jurors if you act in time, however. In all civil

actions in the state courts in which the claim for damages is greater than $25,000, either party

may demand in writing prior to the commencement of the trial term that the case be tried by a

jury of twelve. If such demand is made, the state court judge shall follow the procedure for

superior courts. O.C.G.A. §15-12-122 (a) (2).

One way to demonstrate to the court that the claim is for damages is greater than $25,000

is by way of a request for admission to the plaintiff. If the plaintiff admits that they are seeking

more than $25,000, you are entitled to a twelve-person jury, but only as long as you demanded

one in writing prior to commencement of the trial term.

If the situation warrants, the parties may file a written stipulation agreeing that the jury

shall consist of a number less than that fixed by statute. O.C.G.A. §9-11-47 (a).

E. CAN I HAVE ALTERNATES?

You are not entitled to an alternate; however, the judge may direct that one or two

additional jurors be called and impaneled to sit as alternate jurors. They are only called to

replace one of the original twelve jurors in the event they are found to be unable or disqualified

to perform their duties. O.C.G.A. §9-11-47 (b). An alternate may not be substituted for a

minority juror in the event the foreperson reports a deadlocked, less-than-unanimous verdict.


4

F. WHY IS THERE A CONVICTED FELON ON MY LIST?

Some questionnaires require prospective jurors to disclose whether they have ever been

convicted of a felony. Any person who has been convicted of a felony in a state or federal court

shall not be eligible to serve as a trial juror. O.C.G.A. §15-12-40. There is an exception,

however. After completion of the terms of their sentencing, a convicted felon can have his civil

rights restored. One of those civil rights is the right to serve as a juror. If his civil rights have

been restored, a convicted felon may lawfully serve on your jury.

G. QUALIFYING THE JURY

All trial jurors shall be disqualified to serve when such jurors are related by consaquinity

or affinity to any party interested in the result of the case within the third degree as computed

according to the civil law. O.C.G.A. §15-12-135 (a). “Consanguinity” means descended from

the same ancestor. “Affinity” means related by marriage as opposed to blood.

i. Qualifying the Jury as to Family Members:

First degree relations include parents, full siblings, and children. Second degree relations

include grandparents, grandchildren, aunts, uncles, nephews, nieces, half-brothers and half-

sisters. Third degree relations include first cousins, great grandparents and great grandchildren.

All of these are disqualified from serving. A trial juror was properly removed for cause after

jury selection when he discovered he was previously related to defendant by marriage. Krause v.

State, 286 Ga. 745 (2010).

What happens if you find out after the trial that the plaintiff’s family member failed to

disclose his relation and returned a verdict in favor of the plaintiff? Can you obtain a new trial?

The mere fact that the juror should have been disqualified by the relationship is not automatic

5

grounds for a new trial unless the litigant can show that it did not know of the relationship and

could not have discovered it by the exercise of ordinary diligence. If the plaintiff gave

deposition testimony that she didn’t know the names of all of her relatives, and those of her

husband, such that the defendant was placed on notice that further investigation would be

required to discover their names prior to trial, the trial court will not be held to have abused its

discretion if it denies a motion for new trial. Patterson Bank v. Gunter, 263 Ga. App. 424

(2003).

ii. Qualifying the Jury as to Insurance Carriers:

One of a defense attorney’s least favorite parts of jury selection is the moment when the

judge announces the identity of the liability insurance company for all of the prospective jurors

to hear. Why does this have to be done? Is there any way to prevent this? What harm is there if

it is not done?

First of all, when requested by the court, counsel should make full and fair disclosure of

the insurance information, so long as that colloquy occurs outside the presence of the jury.

Weatherbee v. Hutcheson, 114 Ga. App. 761 (1966), cited in Ford Motor Co. v. Conley, 294 Ga.

530 (2014). The court should inquire as to the existence of insurance and the name of the

company, so that the information will be available for qualifying the jury. Id. It is well-settled

that stockholders of an insurance company which carries liability insurance indemnifying a party

from a judgment against it are ‘interested in the result of the case’ and not qualified to serve as

jurors. Shipman v. Johnson, 89 Ga. App. 620 (1954), cited in Ford Motor Co., supra. A plaintiff

is entitled to obtain information about insurers who may cover a judgment against the defendant

in order to determine whether the trial jury should be qualified as to relationship with such

insurers. Id. A party to a civil case is entitled to have the jury qualified by the court as to any


6

insurance carrier with a financial interest in the case. Atlanta Coach Co. v. Cobb, 178 Ga. 544

(1934), cited in Ford Motor Co., supra. Where a civil jury was not properly qualified in this

way, prejudice to the party seeking such qualification will be presumed, Id. Demonstration by

the defense that none of the jurors actually carried insurance with the insurer in question will not

be considered sufficient rebuttal to prevent the grant of a new trial.

iii. Stock Companies vs. Mutual Companies:

Officers, directors and stockholders of a stock insurance company are disqualified from

serving if it insures one of the parties. If the interested carrier is a mutual company, however, the

judge must also qualify the jury as to policyholders. Patterson v. Lauderback, 211 Ga. App. 891

(1994), overruled on other grounds by Warren v. Ballard, 266 Ga. 408 (1996), cited in Ford

Motor Co., supra.

It is permissible for a defense attorney to tell the court that he does not know, or is not

sure whether the insurance carrier is a stock company or a mutual company; however, if the

losing plaintiff’s attorney makes a post-trial discovery that the carrier was a mutual company and

yet the court only qualified the jury as to stockholders, and not policyholders, the defendant may

likely suffer the grant of a new trial. Patterson, supra. The best practice is for the defense

attorney to research and know the answer to that question prior to commencement of jury

selection. It may often be obtained by reading the “About Us” tab on the insurance company’s

home page.

H. PERSONS EXCUSED FROM JURY DUTY

If these persons request to be excused or deferred from jury duty, they shall be excused:

i. Full-time students while actually attending class. O.C.G.A. §15-12-1.1 (a) (2)

7

ii. Primary caregiver of a child age six or younger who has no reasonably available

alternative child care. O.C.G.A. §15-12-1.1 (a) (3)

iii. Primary teacher in a home study program who has no reasonably available alternative

for the children. O.C.G.A. §15-12-1.1 (a) (4)

iv. Primary caregiver for a person with such physical or cognitive limitations that he or

she is unable to care for himself or herself and cannot be left unattended, who has no

reasonably available alternative. O.C.G.A. §15-12-1.1 (a) (5)

v. Any person who is age seventy or older. O.C.G.A. §15-12-1.1 (b)

vi. Any service member on ordered military duty or their spouse. O.C.G.A. §15-12-1.1

(c) (2)

vii. Any person who shows that he or she will be engaged in work necessary to the public

health, safety, or good order, or who shows other good cause why he or she should be

exempt from jury duty. O.C.G.A. §15-12-1.1 (a) (1)

The above-listed persons are not disqualified, and may serve as jurors if they wish. If

their answers to voir dire questions give the impression that they may be leaning in favor of

the plaintiff, their invocation of one of the statutorily-permitted excuses from jury duty may

possibly remove an unfavorable juror without the defense attorney having to expend a jury

strike.

I. WHAT KINDS OF QUESTIONS MAY I ASK?

O.C.G.A. § 15-12-133 states as follows:

In all civil cases, the parties thereto shall have the right to an individual examination of the panel of prospective jurors from which the jury is to be selected, without interposing any challenge… In the examination, the counsel for either party shall have the right to inquire of the individual prospective jurors examined touching any matter or thing which would illustrate any interest of the prospective juror in the case, including any opinion as to which party ought to prevail, the relationship or acquaintance of the


8

prospective juror with the parties or counsel therefor, any fact or circumstance indicating any inclination, leaning, or bias which the prospective juror might have respecting the subject matter of the action or the counsel or parties thereto, and the religious, social, and fraternal connections of the prospective juror.

There are many areas of inquiry that a defense attorney will want to pursue during voir

dire. It is permissible to ask jurors whether they have ever filed a personal injury claim. Harper

v. Barge Air Conditioning, Inc., 313 Ga. App. 474 (2011). Asking about whether they have been

involved in similar accidents, have had similar injuries, or have opinions about those who have

made personal injury claims are all questions a defendant has a right to ask, since the answers

would potentially illustrate any interest of the prospective juror in the case, including any

opinion as to which party ought to prevail, the relationship or acquaintance of the prospective

juror with the parties or counsel therefor, or any fact or circumstance indicating any inclination,

leaning, or bias which the prospective juror might have respecting the subject matter of the

action.

J. WHAT KINDS OF QUESTIONS MAY I NOT ASK?

Uniform Superior Court Rule 10.1 Voir Dire states as follows:

Hypothetical questions are discouraged, but may be allowed in the discretion of the court. It is improper to ask how a juror would act in certain contingencies or on a certain hypothetical state of facts. No question shall be framed so as to require a response from a juror which might amount to a prejudgment of the action. Questions calling for an opinion by a juror on matters of law are improper. The court will exclude questions which have been answered in substance previously by the same juror…Objections to the mode and conduct of voir dire must be raised promptly or they will be regarded as waived.

Certain questions will virtually guarantee protests from the plaintiff’s attorney. For

example, telling the jury that the plaintiff was on the job at the time of his injury, and then asking

if any members of the jury panel have ever made a workers’ compensation claim and at the same

time sued a third party for the same injury, is objectionable, and may require a new panel of

jurors or a new trial. Harper v. Barge Air Conditioning, Inc., 313 Ga. App. 474 (2011).

9

K. GENERAL QUESTIONS VS. INDIVIDUAL QUESTIONS

The court may propound, or cause to be propounded by counsel such questions of the

jurors as provided in O.C.G.A. § 15-12-133; however, the form, time required and number of

such questions is within the discretion of the court. The court may require that questions be

asked once only to the full array of the jurors, rather than to every juror--one at a time--provided

that the question be framed and the response given in a manner that will provide the propounder

with an individual response prior to the interposition of challenge. Uniform Superior Court Rule

10.1 Voir Dire.

Some judges may express displeasure when they feel like voir dire is taking too long.

They may place limits on the number of questions that may be asked, or the time allotted for jury

selection. This can be troublesome for a defense lawyer when the plaintiff’s attorney may have

annoyed the judge with his slow pace. In Reynolds, supra, the trial judge limited general voir

dire questions to only ten. The losing party appealed, but the judgment was affirmed for two

reasons. First, although he objected to the limit at trial, he failed to identify on the record any

questions that he wished to ask during general voir dire that he was prevented from asking due to

the ten-question limit. Secondly, he was allowed to ask as many questions as he liked when

questioning each potential juror individually. For those reasons, the Court of Appeals held that

the trial court had not abused its discretion in limiting general voir dire, while permitting

unlimited individual voir dire.

L. SEQUESTERED VOIR DIRE

In certain cases, the defense attorney may need to know if jurors have personal

knowledge or experience with things that the juror may be hesitant to disclose in public for fear

of embarrassment. For example, if a defendant driver tested positive for marijuana metabolites


10

after a car accident, but claims to have last smoked marijuana days earlier, it may be helpful to

know whether potential jurors have themselves smoked marijuana. If the trial involves a claimed

injury to the plaintiff’s genitals, it may be helpful to know if any prospective jurors have suffered

similar injuries.

Oftentimes the judge will agree that the area of inquiry is germane to the case, and that

questioning would be more appropriate in chambers or in the courtroom, one at a time, with all

other jury members outside. There is no requirement that voir dire be conducted outside the

presence of the other jurors, rather the granting of sequestered voir dire is within the discretion of

the court. Rhodes v. State, 264 Ga. 123, 441 S.E.2d 748 (1994).

M. CHALLENGES FOR CAUSE OR FAVOR

A defense attorney will want to maximize the use of his or her peremptory strikes and

preserve them as long as possible. If there is a basis for challenging an unfavorable juror for

cause, such as being related to one of the parties or attorneys, that juror can be removed without

expending a peremptory strike. If an unfavorable juror is qualified but is entitled to be excused

because of being the sole caregiver to a baby, for example, that juror can be removed without

expending a strike. The next way to remove an unfavorable juror without burning a strike is

through a challenge for favor.

O.C.G.A. §15-12-134 provides as follows:

In all civil cases it shall be good cause of challenge that a juror has expressed an opinion as to which party ought to prevail or that he has a wish or desire as to which shall succeed. Upon challenge made by either party upon either of these grounds, it shall be the duty of the court to hear the competent evidence respecting the challenge as shall be submitted by either party, the juror being a competent witness. The court shall determine the challenge according to the opinion it entertains of the evidence adduced thereon.

If a juror meets the statutory qualifications, the determination of whether a challenge for

cause should be allowed rests within the sound discretion of the trial court. The court's ruling

11

will not be disturbed unless it has clearly abused its discretion. Cox v. State, 17 Ga. App. 727, 88

S.E. 214 (1916). See also Adams v. State, 283 Ga. 298, 658 S.E.2d 627 (2008).

There is no specific test for disqualification of jurors for favor in a civil case similar to

that imposed by O.C.G.A. § 15-12-164(a) in criminal cases. The mere existence of an

employment relationship between a prospective juror and a party is not a per se ground for

disqualification of the juror. Kim v. Walls, 275 Ga. 177 (2002). If a juror indicates that he or

she is leaning in favor of one side or the other before ever hearing any evidence, however, the

court should carefully consider granting a challenge for cause. Nevertheless, the law presumes

that potential jurors are impartial, and the burden of proving partiality lies with the party seeking

to have a juror disqualified. Chatman v. State, 283 Ga. App. 673 (2007).

Many of the reported cases on challenges for cause are criminal cases. In one case, the

Court of Appeals held that the trial court abused its discretion, requiring reversal of a criminal

defendant's convictions, in failing to remove for cause a prospective juror who stated that a

person charged with a crime must be guilty of something, stated that he was not presuming

innocence, and gave no indication that he intended to be impartial during trial. Ham v. State, 303

Ga. App. 232 (2010).

i. Doubts as to Whether They can be Impartial:

Sometimes a juror won’t overtly state that he or she is leaning to one side or the other,

but will express concerns as to whether he or she can be impartial. Those jurors can go either

way, and require follow-up questioning from the attorneys and the court.

For a trial juror to be excused for cause, it must be shown that he or she holds an opinion

of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable

to set the opinion aside and decide the case based upon the evidence and the court's charge upon


12

the evidence. Huckabee v. State, 287 Ga. 728 (2010). A prospective juror's doubt as to his or her

own impartiality does not demand as a matter of law that he or she be excused for cause.

The Georgia Supreme Court has found that a juror's expression of doubt that she could be

impartial was insufficient to show a manifest abuse of the trial court's discretion in refusing to

strike her for cause. Clarke v. State, 292 Ga. 305 (2013). The juror's stated desire to prevent her

emotions from affecting her judgment could not meet the “fixed and definite” standard for

opinions that would disqualify a juror, indicating that a juror is not impartial. A similar approach

was used when a juror admitted his opinion that defendants are generally guilty. Ellis v. State,

292 Ga. 276 (2013) (juror was retained for trial).

In an aggravated cruelty to animals case, trial court did not abuse its discretion in refusing

to dismiss a prospective juror for cause when the juror initially expressed doubts as to his ability

to be impartial, and stated that he had a “bad feeling” about the nature of the case. The juror

subsequently stated that he had not formed an opinion regarding guilt or innocence and that his

ultimate decision would be based on the evidence and the court's instructions. Favors v. State,

326 Ga. App. 373 (2014).

In Maldonado v. State, the court held that the trial court did not abuse its discretion in

failing to strike a juror for cause. There, the juror stated, among other things, during the jury

selection process that she “hoped [she] could judge these individuals fairly,” that she

“believe[d]” that she “could treat it fairly. It's more of an emotional connection than a

reasoning,” and that “that there was ‘some’ question or ‘some reluctance’ whether she could

‘remain completely neutral and impartial because of the nature of the crime.’” Maldonado v.

State, 325 Ga. App. 41 (2013).

ii. Rehabilitation of a Juror who Admits an Inability to be Impartial:

13

Attorneys will often attempt to “rehabilitate” a juror who is in danger of being excused

for cause because of an admission that the juror is leaning in favor of that attorney’s client. They

will try mightily to persuade the favorable juror to say the magic words that they will set aside

those biases and decide the case fairly based upon the evidence. Sometimes the juror is

successfully rehabilitated. For example, a criminal defendant contended the trial judge erred by

refusing to strike for cause a potential juror who initially expressed misgivings about her ability

to be fair. Holding that a potential juror's opinion of her own qualifications are not controlling,

the Georgia Supreme Court approved the retention of that juror because she later said in response

to a question about whether she could give a fair judgment that “Yes, I think I'm a fair person.”

The Supreme Court applied the presumption that potential jurors are impartial, and the defendant

was unable to carry the burden of defeating the presumption. Clarke v. State, 292 Ga. 305

(2013).

There are limits to the lengths that attorney may go to rehabilitate a leaning juror. Where

a prospective juror, who has been asked whether he or she can be fair and impartial in the case,

answers under oath a plain, “No,” and provides an explanation of her inability to be fair and

impartial, the court should limit further questions to clarification of the answer. Neither the court

nor the parties should incessantly interrogate the juror in a manner calculated only to elicit a

response contrary to the one originally given. Interrogation for that purpose is nothing more than

an effort to justify finding a biased juror qualified. Foster v. State, 258 Ga. App. 601 (2002).

In Foster, the Court of Appeals found that the trial court's and the prosecutor's lengthy

and repeated questioning of Juror No. 2 about laying aside her bias and deciding the case based

solely on the evidence was “more an instruction on the desired answer than a neutral attempt to

determine the juror's impartiality. When the juror was initially asked whether she could set aside


14

her feelings about DUI and be a fair and impartial juror in this case, she plainly answered, “No.”

Yet, the record shows that subsequent voir dire of Juror No. 2 consisted of propounding her with

varying versions of the same “loaded question.” While she maintained and repeatedly explained

her position, after being confronted with the same question for the fifth time, under the weight of

this pressure, she relented with a different answer. Although the trial court purported to “take her

at her word” in refusing to excuse Juror No. 2 for cause, a trial court may not rely solely on a

prospective juror's isolated and extracted statement of impartiality, where, as here, consideration

of the entirety of her voir dire reveals a prospective juror with a fixed and definite bias that she

was unable to set aside in deciding the case. “In accordance with Walls, Juror No. 2 should have

been excused for cause, and Foster should not have been forced to use a peremptory strike to

remove her.”

N. STRIKING THE JURY

Once all of the voir dire questions have been asked, and all challenges for cause have been

ruled upon, the time has come at last for the parties to exercise their peremptory strikes.

i. Preparation Time:

After completion of the examination of jurors upon their voir dire, the parties and their

counsel shall be entitled, upon request, to 15 minutes to prepare for jury selection. Uniform

Superior Court Rule 10.4.

ii. Time Limit for Strikes:

During the selection of jurors, the court in its discretion, upon first warning counsel, may

restrict to not less than 1 minute the time within which each party may exercise a peremptory

challenge; a party shall forfeit a challenge by failing to exercise it within the time allowed.

Uniform Superior Court Rule 10.4.

15

iii. Number of Strikes when there are Co-Defendants:

Where there is more than one party on either side, they must join in exercising the six

available strikes. National Upholstery Co. v. Padgett, 111 Ga. App. 842 (1965). Some courts

hold that the opposing side is restricted to the prescribed number of peremptory challenges,

while others permit to the opposing side an increased number of challenges where the interests of

the multiple parties are diverse or antagonistic. Id. It has been held that where several litigants

are united as one party by an order of court consolidating the actions, they are not each entitled

to the full number of peremptory challenges allowed by statute, but rather are only collectively

entitled to the number allowed to one party. Ellis v. Geer, 36 Ga. App. 519 (1927). Although

multiple defendants may have different defenses where the principal issue is the same for all

defendants, defendants may not be given additional peremptory challenges. Sheffield v. Lewis,

246 Ga. 19 (1980).

iv. Order of Strikes:

In civil cases, the parties strike alternately, with the plaintiff having the first strike.

O.C.G.A. §15-12-122.

O. CONCLUSION

In the final analysis, you don’t really pick a jury; rather, you strike unfavorable jurors,

and hope for the best with the ones that are left. The importance of doing it right cannot be

underestimated. Best wishes for your next trial, and at the conclusion of deliberations may you

hear the foreperson speak the sweetest words ever spoken:

“We the jury find in favor of the defendant.”

Appendix

APPENDIX

ICLE BOARD

Name Position Term Expires

Member 2019

Member 2019

Member 2018

Member 2019

Member 2018

Member 2020

Member 2018

Member 2020

2019

2019

2019

2019

2018

Carol V. Clark

Harold T. Daniel, Jr.

Laverne Lewis Gaskins

Allegra J. Lawrence

C. James McCallar, Jr.

Jennifer Campbell Mock

Patrick T. O'Connor

Kenneth L. Shigley

A. James Elliott

Buddy M. Mears

Dean Daisy Hurst Floyd

Carol Ellis Morgan

Hon. Harold David Melton

Jeffrey Reese Davis

Tangela Sarita King

2018

Appendix1 of 2

Emory University

John Marshall

Mercer University

University of Georgia

Liaison

Staff Liaison

Staff Liaison 2018

Cassady Vaughn Brewer Member 2019

Appendix2 of 2

GEORGIA MANDATORY CLE FACT SHEET

Every “active” attorney in Georgia must attend 12 “approved” CLE hours of instruction annually, with one of the CLE hours being in the area of legal ethics and one of the CLE hours being in the area of professionalism. Furthermore, any attorney who appears as sole or lead counsel in the Superior or State Courts of Georgia in any contested civil case or in the trial of a criminal case in 1990 or in any subsequent calendar year, must complete for such year a minimum of three hours of continuing legal education activity in the area of trial practice. These trial practice hours are included in, and not in addition to, the 12 hour requirement. ICLE is an “accredited” provider of “approved” CLE instruction.

Excess creditable CLE hours (i.e., over 12) earned in one CY may be carried over into the next succeeding CY. Excess ethics and professionalism credits may be carried over for two years. Excess trial practice hours may be carried over for one year.

A portion of your ICLE name tag is your ATTENDANCE CONFIRMATION which indicates the program name, date, amount paid, CLE hours (including ethics, professionalism and trial practice, if any) and should be retained for your personal CLE and tax records. DO NOT SEND THIS CARD TO THE COMMISSION!

ICLE will electronically transmit computerized CLE attendance records directly into the Offi cial State Bar Membership computer records for recording on the attendee’s Bar record. Attendees at ICLE programs need do nothing more as their attendance will be recorded in their Bar record.

Should you need CLE credit in a state other than Georgia, please inquire as to the procedure at the registration desk. ICLE does not guarantee credit in any state other than Georgia.

If you have any questions concerning attendance credit at ICLE seminars, please call: 678-529-6688



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Additional Findings

•  Some attorneys worry juries will interpret an alternative response as a concession of liability at worst, or a damages floor at best

•  RESEARCH SHOWS JURORS STILL CONSIDER OTHER ASPECTS OF CASE.

776 mock jurors Medical Malpractice Trial - 6 groups • Low Plaintiff Demand ($250k) or High

Plaintiff Demand ($5M)Damages:

• For individual jurors, average damages jumped from $225,765 to $1,859,137 as the demand increased from $250,000 to $5 million

• The defense counter anchor lowered damages by 41% THAN WHEN DEFENSE DID NOT OFFER A COUNTER TO JURORS

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Additional Findings





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Additional Findings







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Research Studies on the Impact of Anchoring on Personal Injury Lawsuits •  Study 2: 265 mock jurors

–  Four groups: 1. Contested liability and offered alternative damages; 2. Stipulated liability and offered alternatives damages; 3. Contested liability and provided no suggestion for damages; 4. Stipulated liability and provided no suggestion for damages

•  Awards lower – by 43% – when the defense offered an alternative damages amount (i.e., anchoring and adjustment heuristics)

•  On average, damage awards were also 22% lower when defendant stipulated to liability – though all found liability

STATE OF INDUSTRY

Plaintiff Leads• Plaintiff used medical bills and treating

physicians to set value• Life care plans are damages tools for

designed by plaintiff attorneys. –Deutsch• Last 20 years, Plaintiff has driven the value

by how damages are determined

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ANCHOR THE VALUE




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ANCHOR THE VALUE




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