Trial Practice and Procedure
| Publication year | 2020 |
Trial Practice and Procedure
Brandon L. Peak
Joseph M. Colwell
Christopher B. McDaniel
Rory A. Weeks
Ramsey B. Prather
Michael F. Williford
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This Article addresses several significant opinions and legislation of interest to the Georgia civil trial practitioner issued during the survey period of this publication.1
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There were several significant bills that were passed or considered by the Georgia General Assembly this year. Trial practitioners should pay close attention to the following legislation in particular.
House Bill 2392 created a statewide business court in Georgia.3 The business court will be a court of limited jurisdiction that is primarily limited to complex business litigation matters and that excludes claims such as those for personal injury sounding in tort.4 As passed, the law requires the consent of all parties to remove or transfer a case out of state or superior court into business court.5
There are two other bills that, while they were not passed by the General Assembly during this legislative session, had the potential to impact trial practice and procedure in Georgia. Therefore, they are included in this article in the event that the bills resurface during a future legislative session.
The first is House Bill 171,6 which would have made the plaintiff's failure to wear a seatbelt admissible into evidence at the trial of a car-wreck case.7 The bill also would have permitted the jury to apportion fault to the plaintiff and reduce the plaintiff's damages awarded due to the plaintiff's failure to wear a seatbelt.8 House Bill 171 did not pass a vote in the General Assembly.
The second is Senate Bill 155,9 which would have limited a plaintiff's recovery of damages for medical expenses to the amount paid by an insurer or other third-party benefits provider, rather than the amount billed by the medical provider.10 The bill would have made the amount billed inadmissible as evidence at trial.11 The bill also would have allowed a post-verdict motion by the defendant to challenge whether the plaintiff's medical providers' charges exceeded usual and customary amounts, thereby reducing the damages owed under the verdict,
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including future damages.12 Senate Bill 155 did not pass out of committee.
A. Appeals
In Duke v. State,13 the Georgia Supreme Court unanimously overruled its earlier decision in Waldrip v. Head14 and held that Georgia's appellate courts cannot circumvent the requirements of O.C.G.A. § 5-6-3415 by permitting interlocutory appeals where the trial court has not granted a certificate of immediate review.16
In Duke, the defendant was accused of malice murder, among other charges, in connection with Tara Grinstead's death. The case was set for trial, and the defendant moved for public funding of experts and investigators to aid in his defense.17 Pursuant to O.C.G.A. § 5-6-34(b),18 the motions were denied, and the trial court refused to grant Duke a certificate of immediate review. Despite the failure to obtain a certificate of immediate review from the trial court, Duke appealed to the Georgia Supreme Court, arguing the court had appellate jurisdiction pursuant to Waldrip v. Head.19
In Waldrip, the Georgia Supreme Court created an exception to the statutory limitations on interlocutory appellate review for cases that involve "an issue of great concern, gravity, and importance to the public and no timely opportunity for appellate review."20 This rule allowed parties to file appeals even where the trial court had denied a certificate of immediate review.21 In Duke, the court reversed its holding in Waldrip, holding that the judicially created exception to the interlocutory appellate process in Waldrip "extended beyond the Court's constitutional and statutory authority and [was] based on unsound and inapposite precedents."22
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The court's rationale for overruling its prior decision in Waldrip was threefold. First, the court held that the Waldrip rule impermissibly shifted the authority to decide whether interlocutory appellate review was warranted from the trial court to the appellate courts.23 Second, the court held that Waldrip's holding was based upon non-binding, unpersuasive, and inapposite case authority.24 Third, the court held that the Waldrip decision wrongly construed the constitutional and statutory grants of authority to Georgia's appellate courts to allow the court to extend its own appellate jurisdiction.25
For these reasons, the court held that Waldrip should be overruled and that stare decisis did not warrant maintaining Waldrip's judicially created exception to the interlocutory appeal process.26 Although the court noted that the appellate courts have rarely permitted appellate review under Waldrip,27 the court determined that it should nonetheless be overruled because its "reasoning was unsound and unmoored from [the] Court's consistent and longstanding application of statutory appeal requirements enacted by the General Assembly."28 Parties will no longer be able to rely upon the judicially-created Waldrip rule to seek interlocutory appeal.29 Rather, parties must follow the appellate procedures outlined in O.C.G.A. § 5-6-34 and seek a certificate of immediate review (or, alternatively, rely upon other statutory or judicial grounds for interlocutory appeal, such as the collateral order doctrine, where applicable).30
B. Apportionment
In Federal Deposit Insurance Corporation v. Loudermilk,31 the primary holding of the Georgia Supreme Court, in response to three certified questions from the United States Court of Appeals for the
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Eleventh Circuit, was that Georgia's apportionment statute does not abrogate the common law rule imposing joint and several liability on persons who act in concert in the commission of a tort.32
In its capacity as the receiver for the Buckhead Community Bank, the FDIC sued nine of the bank's former directors and officers under theories of negligence and gross negligence associated with their approval of ten commercial real estate loans in Georgia. Before trial, the defendants requested that the district court instruct the jury to apportion damages among them if the jury found they were liable. The district court denied the request, and the defendants renewed the request during trial, which the district court again denied.33
The jury found the directors and officers were negligent in approving four of the ten loans and awarded damages of $4,986,993. The district court entered a final judgment for that amount and the defendants appealed.34
On appeal, the FDIC argued that even if the apportionment statute generally abrogated joint and several liability for most torts, joint and several liability survived where tortfeasors "act in concert."35 The Eleventh Circuit then certified the question to the Georgia Supreme Court, which emphasized that the touchstone of the damages analysis under Georgia's apportionment statute is "whether fault is divisible."36 In comparing the statute's directive to apportion fault "according to the percentage of fault of each person" to civil conspiracies, the court observed that:
true concerted action is predicated on the idea that wrongdoers "in pursuance of a common plan or design to commit a tortious act . . . are equally liable," and that through "joint enterprise" and "mutual agency . . . the act of one is the act of all." Under that legal theory, where the act (and thus the fault) of one person is imputed to all
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other members of the same joint enterprise, "liability for all that is done is visited upon each." And where the fault of one person is legally imputed to another person who is part of the same joint enterprise, we cannot say that there is a legal means of dividing fault "among the persons who are liable."37
Because the entirety of the "fault" of tortfeasors who "act in concert" was imputed to each bad actor, the court concluded there was no way to divide that fault among them.38 Thus:
Georgia's apportionment statute, OCGA § 51-12-33,39 did not abrogate Georgia's common-law rule imposing joint and several liability on persons who act in concert. We emphasize, however, that this holding encompasses only traditional concerted action, as it was understood at common law, for the basic reason that fault in such scenarios is not divisible.40
In Trabue v. Atlanta Women's Specialists, LLC,41 the Georgia Court of Appeals held that apportionment was not proper between an employer and a nonparty physician where the basis of the employer's liability for the actions of the physician-employee who was a party to the suit is solely vicarious, and the defendant-employer failed to give the 120-day notice required by Georgia's apportionment statute to apportion fault to the nonparty physician.42
The plaintiffs sued Atlanta Women's Specialists (AWS) and one of its physician-employees in Fulton County State Court, alleging AWS was liable for the catastrophic brain injury the primary plaintiff's spouse suffered after being admitted to the hospital for induction of labor.43 The plaintiffs asserted no direct liability claim against AWS, instead alleging that AWS was vicariously liable for the alleged malpractice of both the physician-employee named as a defendant as well as the nonparty physician-employee not named as a defendant, a fact to which AWS stipulated.44 The jury awarded the plaintiffs $46 million and the
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defendants moved for a new trial, alleging, among other things, that the trial court erred because it did not require the jury to apportion fault between the named physician-employee and AWS based on the alleged relative fault of the nonparty physician-employee.45 The trial court granted the defendants' motion and ordered a new trial on...
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