On January 30, 2025, a tort reform bill was introduced in the Georgia legislature proposing multiple initiatives for cases where plaintiffs bring personal injury or wrongful death claims. On February 11, 2025, it passed the Senate Judiciary Committee with some changes, but it largely remains intact. Key provisions of Senate Bill 68 include prohibitions on “anchoring” noneconomic damages and recovering “phantom” damages and a passage that would permit bifurcation of the fault and damages phases at trial. The bill also greatly shortens the time frame when a plaintiff can voluntarily dismiss their case without prejudice.
Although many of the tort reform measures outlined in the bill will likely face stark opposition from the plaintiffs’ bar, they are a crucial first step toward addressing what some believe are excessive damages awards in Georgia. But even if the key provisions of SB 68 become law, there is still work to be done in the state on other aspects of tort reform.
Summary of Key Provisions of Current Senate Bill 68
- Prohibits counsel from arguing – or, in front of the jury or prospective jurors, eliciting any testimony about or referencing – the worth or monetary value of noneconomic damages such as pain and suffering and loss of enjoyment (i.e., anchoring) until after the close of evidence. These arguments must also be “rationally related” to the facts of the case.
- Limits special damages for medical and health care expenses to the amounts paid or amounts necessary to pay expenses incurred by the plaintiff for “medically necessary” and “reasonable and customary” care, treatment, or services. This is an effort to combat recovery of damages billed but written off or never paid, colloquially known as “phantom” damages.
- Allows a party to elect to bifurcate fault and damages phases at trial.
- Shortens the time when a plaintiff can file a voluntary dismissal without prejudice, from the swearing in of the first witness to 60 days after the service of an answer or motion for summary judgment.
Bill Status
After being introduced, the bill underwent the first reading in the Senate and was sent to the Senate Judiciary Committee, which favorably reported the bill and made a few amendments to the bill text. Legislators will now debate and vote on the bill. Before becoming law, the bill, including any amendments, must pass a vote in both the House and the Senate, and then either be signed by the governor or not vetoed by the governor within 40 days of its passage.
Practical Implications
The tort reform measures outlined in SB 68 fulfill Governor Brian Kemp’s promise to tackle frivolous lawsuits and excessive damage awards in Georgia. With Republican majorities in both the Georgia House and Senate, the Georgia business community is optimistic that at least some of these measures will dampen the “nuclear” verdicts that have caused Georgia to be labeled the “#1 Judicial Hellhole” since 2022 by the American Tort Reform Foundation.
For mass tort litigation, the most impactful aspects of this bill (if it becomes law) will likely be the prohibition on anchoring and the bifurcation provision. In high-exposure tort matters, plaintiffs’ attorneys often eschew economic damages (i.e., medical and health care expenses) and focus instead on perceived bigger-ticket items like noneconomic and punitive damages. If passed, the latter provisions on phantom damages will likely have a greater impact in single-plaintiff tort cases across the state.
To be fair, the standard for noneconomic damages in Georgia is somewhat untethered; the measure of these damages is the “enlightened conscience of an impartial jury.” So there is still an opening for large noneconomic damage awards even if the anchoring portion of this bill is passed. But what this bill would prevent is a plaintiff’s counsel arguing, for example, the plaintiff’s pain and suffering is worth, for example, more than LeBron James one-year salary (~$50 million). This anchoring or suggestion to the jury of an amount often becomes the focus of the jury’s deliberations as opposed to what their “enlightened conscience” thinks is proper. And more often than not, if a plaintiff prevails, it becomes the amount that is awarded.
Bifurcation seems innocuous enough, and even efficient, but this provision will likely be forcefully opposed by the plaintiffs’ bar. While there are jury instructions that mandate that a verdict be based on evidence and not sympathy,1 sympathy generated by damages testimony often colors findings of fault. In jury deliberations, jurors sometimes do not fully appreciate that a plaintiff receives no money if the defendant is not found to be at fault. When they come to that realization, they might rethink their verdict and reverse their finding so that the plaintiff will walk away with something rather than nothing.
The provision on dismissal, although not directly affecting the size of verdicts, is also meaningful. It prevents a plaintiff from dismissing a case without prejudice after a defendant has already spent a significant amount of time and money preparing that case for trial. This provision will also limit the ability of plaintiffs’ counsel to cherry-pick their trial cases in mass tort litigation – counsel likely will not be able to voluntarily dismiss without prejudice a less-favorable bellwether case in hopes of getting a more favorable bellwether case to the front of the line.
Proponents of SB 68 and companies that are targets in mass tort litigation would be well served to closely follow the prohibition against anchoring and the provision on bifurcation as the bill moves through the legislative process, given those provisions will likely have the greatest ability to impact the size of verdicts. Both provisions, however, will likely face stark opposition from the plaintiffs’ bar and may not pass despite the Republican majority. As the dismissal provision is not as controversial, it may be able to squeak by with less opposition. Passage of that provision alone would be a win for those advocating for tort reform.
What’s Next?
If the important provisions discussed above do not pass, the governor could present them again. Another area that requires attention from the governor and state legislature is conforming O.C.G.A. § 24-7-702 to mirror the amended Rule 702 of the Federal Rules of Evidence. The amended Rule 702 underscores the importance of the court’s gatekeeping function when deciding whether to admit or exclude expert testimony. Similar to what practitioners saw in federal court that prompted the passage of the amended Rule 702, many Georgia state courts are not applying O.C.G.A. § 24-7-702 in the way it was intended, often characterizing an expert’s flawed methodology as issues that go to the “weight” of an opinion and not its admissibility. The defense bar would be well served to prioritize this when discussing further tort reform.
Endnotes
- See Georgia Suggested Pattern Jury Instructions, Civil Cases § 02.550 (“Your verdict should be a true verdict based upon your opinion of the evidence according to the laws given you in this charge. You are not to show favor or sympathy to one party or the other. It is your duty to consider the facts objectively without favor, affection, or sympathy to either party.”).
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