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Georgia’s Lawsuit Climate

Testimony of Cary Silverman for the U.S. Chamber Institute for Legal Reform addressing the concerns with Georgia's lawsuit climate and proposing solutions to improve it.

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Georgia’s Lawsuit Climate

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  1. Georgia’s Lawsuit Climate Concerns and solutions Testimony of Cary Silverman for the U.S. Chamber Institute for Legal Reform Before the Senate Study Committee on the Cost of Doing Business in Georgia August 29, 2019

  2. First, the Good News • Georgia has several important laws in place: • Expert testimony: Daubert gatekeeper standard • Medical liability: Affidavit of merit, expert witness standards, 5-year statute of repose • No consumer class action abuse • Product liability: Innocent seller protection • Liability in proportion to fault: Several liability and modified comparative fault • Punitive damages: Due process safeguards and statutory limit in most cases • Business court: Begins operating in 2020

  3. The Not So Good News • No significant civil justice reform enacted in past decade, aside from the business court. • Litigation and areas of abuse are always shifting. • Liability-expanding and other concerning court decisions. • Competing states making progress. Comprehensive reforms: • Tennessee (2011) • North Carolina (2011) • Oklahoma (2009, 2011, 2013) • West Virginia (2015)

  4. A String of Record Breaking Awards Premises Liability • $1B Clayton County 2018 Alleged security company negligently supervised guard who raped daughter. • $125M Muscogee County 2019 Alleged apartment complex’s poor conditions caused tenant death. • $70M DeKalb County 2019 Alleged Kroger should have prevented attempted robbery/carjacking in parking lot where plaintiff was shot. • $43M Fulton County 2019 Alleged CVS security should have prevented shooting of man selling electronics in its parking lot • $32M Cobb County 2013 Alleged Six Flags failed to prevent gang attack at bus stop off property that began with incident in park. • $25M Fulton County 2019 Alleged MARTA driver should have helped disabled passenger who fell off bus. • $14M Gwinnett County 2018 Alleged hotel was responsible for infant who died at hands of cult member. Total verdict $46M. Medical Liability • $46M Fulton County 2017 Brain damage following heart attack • $31M Clayton County 2018 Botched circumcision • $26M Muscogee County 2017 Negligence in treating complications from surgery • $18M Chatham County 2018 Failure to diagnose spine abscesses Auto Accident • $280M Muscogee County 2019 Alleged trucking company liable when driver crossed median and hit family’s car. • $150M Decatur County 2015 Alleged Jeep defective when driver rear-ended Jeep at high speed and gas tank exploded. Reduced to $40M. • $128M Union County 2018 Alleged drunk driver, co. that owned vehicle, and driver’s father were responsible when driver hit family’s car. • $54M Gwinnett County 2017 Alleged Avis was responsible when an employee stole a rental car and hit two women while on a joyride. • $27M Fulton County 2018 Alleged bar failed to check ID of 20-year old and served her after intoxicated when she hit family’s car.

  5. What leads to these extraordinary amounts? • Sky is the limit for noneconomic damages • Manipulating jury with “anchoring” and per diem arguments • Admission of prejudicial wealth evidence when deciding liability • Phantom damages

  6. The Cost of Litigation in Georgia • $13.4 billion: GA annual costs and compensation from tort system • $3,600: Cost per household • 2.5% of state GDP • Georgia’s tort costs are above the national average • 11th highest auto insurance premiums ($1,777) • GA rates are about $320 above national average (Insure.com, 2019) • Rates have jumped (+54% between 2011 and 2017 in GA, but only +22% nationally) • Second highest per capita medical liability payouts of southern states • $148.2 million in annual medical liability payouts (Diederick Healthcare, 2018) • $14.21 per capita. Average of 14 southern states is $8.30. Only Florida is higher. • Georgia payouts up 25% over the prior year(national increase was just 2.34%)

  7. Improving Georgia’s Litigation Environment • Facilitate reasonable damage awards • Prohibit use of prejudicial wealth evidence when deciding liability • Stop manipulation of juries through anchoring • Allow juries to consider the actual amount paid for medical expenses • Rein in burdensome and costly discovery • Federal rules amended to require discovery to be proportional to needs of case • Missouri (2019), Oklahoma (2017), Wisconsin (2018), and Wyoming (2017) have followed • Stop misleading lawsuit advertising practices that jeopardize public health • Tennessee and Texas enacted safeguards in 2019 • Adopt safeguards for lawsuit lending • Ruth v. Cherokee Funding, LLC (Ga. 2018) invited legislature to act

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