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If you think the "tort reform" bill being pushed so hard by Governor Kemp, 25 Senators, and special interest PACs is to protect consumers, think again.

Many of those who have reviewed it say it seems designed to impose limits on claims consumers can make against corporations, insurance companies, and property owners among others.

The 18 page bill introduced by John F. Kennedy and sponsored by 25 Georgia Senators, is also being pushed by the “Protecting American Consumers Together (PACT) organization – the name makes it sound nice doesn’t it.

Note that a number of these Senators were called out recently in our expose of "Peach States Values PAC" found working against Republican candidates:

Alert Georgians will be immediately suspect of the Protecting American Consumers Together (PACT) name and even more so when they find out the Board of PACT is made up of a 30 year insurance defense attorney, a 20 year medical expert who owns an expert witness firm, along with a  former Leader of the Florida House of representatives and a dive-master from Key Largo, Florida.

The full current version of the Bill (SB 68) – the so-called “Tort Reform” Bill is available for review or download below:

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Let's call out just some of the issues inside SB 68:

Economic versus Non-economic damages

One section of the bill attempts to define the circumstances under which various types of damages can be discussed in court.  It appears the writers wish non-economic damages to be kept from the jurors in a case until “economic” damages have been established (actual doctor charges, hospital charges etc.) and as stated in the bill "only after the close of evidence." In other words if certain evidence supports a claim of non-economic damages it may potentially be withheld from a jury.

In plain language, Economic damages generally are those which can be demonstrated by a measurable dollar-value loss.

The bill describes Economic damages as follows:

• 'Economic damages' means pecuniary damages recoverable in tort for bodily injury  or wrongful death, including, but not limited to, damages for past and future medical  expenses; costs of rehabilitation; costs of therapy; loss of wages; loss of income; loss of  earning capacity; loss of services performed by the injured or deceased person as a result  of the injury or death, including domestic and other necessary services performed without  compensation; and funeral or burial expenses.”

Non-economic damages are generally those areas of harm which can’t necessarily be measured in dollars but may create as much or more harm to a person, their loved ones and their family depending on the situation.    One recalls the old adage "how do you put a price on the loss of a human life."

SB 68 describes Non-economic damages this way:

• "Noneconomic damages' means all damages recoverable in tort for bodily injury or  wrongful death other than economic damages, including, but not limited to, damages for  physical or emotional pain, discomfort, anxiety, hardship, distress, suffering,  inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment  of life, loss of society and companionship, loss of consortium, injury to reputation, and  in wrongful death cases, the nonpecuniary elements of the full value of life.”

The SB 68 bill limits what a jury may hear regarding non-economic damages and when they can hear it:

“(b) Except as otherwise provided in subsection (c) of this Code section, in the trial of any   action to recover damages for bodily injury or wrongful death, counsel shall not argue the   worth or monetary value of noneconomic damages, and counsel shall not, in the hearing   of the jury or any prospective juror, elicit any testimony regarding, or make any reference   to, any specific amount or range of amounts of noneconomic damages, the measure of such   damages being the enlightened conscience of an impartial jury.”

Further, the bill states: "......only after the close of evidence....."

Such language is clearly meant to keep a jury from learning about potential "non-economic damages", which in some cases could be far in excess of simple doctor bills and thus result in a greater award for the person or relatives who have been wronged.

If an attorney violates the above within hearing of one or more jurors, the bill states “….the court shall take remediate measures….. potentially including dismissing the jury.”

Does that sound like it is meant to protect consumers?

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Experienced trial lawyers also point out that Georgia has adopted the Federal Rules of Evidence (FRE.) Their assessment of the bill suggests that implementation of the restrictions contained with SB68 may indeed violate these Federal Rules of Evidence, standards which were adopted by Georgia and much of the rest of the Country. Why would Georgia wish to go against these standards?

Stay of Discovery

One trick sometimes used by attorneys in various situations is to attempt to keep certain information from becoming available to the opposing party or to the public.   The process by which one party requests and receives information from the other party is known as “discovery.”

The bill stipulates that if a party files a motion to dismiss the case before the deadline to file an answer to the claims, discovery is automatically “stayed” or postponed.  They do not have to turn over information requested by the other party.    The bill also states that under certain circumstances or if the court fails to rule on the motion to dismiss within three months, (90 days) a party may submit a motion to remove the stay of discovery.

Consider a situation where a defendant has certain information that might help prove the plaintiff's case.    The defendant can file for a dismissal of the case rather than filing an answer and the plaintiff is put in a position of arguing against a dismissal but without benefit of the defendants answers to the claims and with certain information now shielded behind by a stay of discovery.

Experts say this benefits the defendants (most often insurance companies or other corporate entities) by keeping information of out the plaintiff's hands.

Automotive Seat Belts

The bill includes language which states that if any occupant sits in a seat where a seat belt is available but does not use the seat belt, this can used used in an attempt to show comparative negligence and thereby potentially diminish any recovery: 

Specifically the bill states, “may be considered  in any civil action as evidence admissible on the issues of negligence, comparative  negligence, causation, assumption of risk, or apportionment of fault or for any other  purpose and may be evidence used to diminish any recovery for damages arising out of  the ownership, maintenance, occupancy, or operation of a motor vehicle.”

Consider a hypothetical case:  You are driving a car which is hit by a drink driver.   A passenger in your back seat is unharmed, had no part in causing the accident, but was not wearing their seat belt.   The defendant's insurance company can potentially argue that you have some negligence in the accident because your passenger was not wearing their seat belt.

Does this protect the consumer or the insurance company?

Property Owner Liability / Negligent Security / Third Parties

Eleven pages of the 18 page document discuss changes surrounding the potential liability of property owners, security firms they may employ, "invitees" and "third persons" and the liability exposure borne when a "bodily injury or wrongful death" occurs on an owners property.

After reviewing SB68, an attorney familiar with Georgia law and cases which might be impacted by the bill, noted that existing law places a burden on property owners to use "ordinary care” in an attempt to prevent others from being injured on their property.  This bill appears to attempt to change that expectation of ordinary care, thereby shifting responsibility away from a property owner.   

Take another hypothetical example, this time involving human trafficking:  If a young girl is held by criminals and used in a human trafficking ring operating, in part, from a hotel (perhaps a well-known hotel chain.)    Would those who own, operate or manage the hotel be in a position to potentially spot the signs of human trafficking?      Should they be expected to then alert authorities? If they chose to not notice or remain silent, would this bill help shield hotel owners and operators from the claims of victims trafficked on their property?

The Georgia Record anticipates further details on the clauses proposed within SB68 but we believe that readers can see by what has already been provided in this article that this legislation is anything but protecting the public.   Instead it makes it more difficult for a person or family to seek recovery when they are up against corporations and insurance companies.

Even some local Atlanta mainstream media has noted the concerns about the potential difficulties for victims of human trafficking to receive appropriate verdicts and compensation in court given the restrictions of this bill.

As we have also noted in previous writings, that the rising incidence of certain illnesses and adverse medical conditions is now documented through a growing number of medical studies over the past three years.   

Without concluding what might be causing this rise, the fact that the health effects are confirmed through many  peer-reviewed studies can not be ignored.

What effect would SB68 have on the individuals who may be experiencing such adverse effects?  Would it help shield those who knew or should have known about these effects before or after the symptoms began to be measured? (Examples might inc;ude big pharma companies, medical providers, and others.)

Given the issues inside the bill itself and the fact that all evidence suggests the bill is designed to protect and aid insurance companies and corporations – NOT consumers, we trust that Georgians will take the time to call their Senators (start with the list of sponsors shown above) and House members and express their concerns surrounding the bill.

Tell them Georgians say NO to SB 68.

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