Legislators Await Judicial Action on Tort Cases

State lawmakers who pushed the landmark tort reform laws in 2005 are keeping a close eye on the Supreme Court of Georgia across the street, where the justices are expected to rule on three key prongs of those laws by the end of next month.

If the court strikes any of the provisions down, tort reform advocates say they want to move quickly to enact a legislative fix.

Three cases could kill parts of ’05 legislation, whose supporters pledge to try to craft fixes.

The challenge for lawmakers would be one of timing. The high court’s rule requiring cases to be decided within two of its three-month terms means that the tort reform decisions have to issued by the end of March. The General Assembly has only 20 days left to be in session, and House Speaker David E. Ralston, R-Blue Ridge, is expected to stretch those days, which do not have to occur consecutively, at least through mid-March and possibly as late as April, according
to one of his lawyers.

One ex-senator suggested that any change to the law in response to a high court decision would require at least five legislative days of work and possibly one house’s passage of “dummy bills,” empty measures that can be amended easily.

“Are people [in the Legislature] aware that these cases are pending? Yeah, very much so,” said Joe Fleming, lobbyist for the Georgia Chamber of Commerce, which backs tort reform. “No matter if they rule with us or against us, somebody down here at the Capitol is bound to want to seek a remedy.”


The cases, docketed to the September term, must be decided by the end of March. They are:

♦  Atlanta Oculoplastic Surgery v. Nestlehutt, No. S09A1432, which tests the
constitutionality of a $350,000 cap on pain and suffering damages in medical
malpractice cases;

♦  Gliemmo v. Cousineau, No. S09A1807, which challenges a requirement that med-mal
plaintiffs prove evidence of “gross negligence” when suing emergency-room doctors; and

♦  Smith v. Baptiste, No. S09A1543, which deals with the law’s offer-of-settlement provision,
which punishes a party who rejects a settlement offer but doesn’t fare any better than that
offer at trial.

Much of the attention is on the Nestlehutt case, in which Fulton County State Court Judge Diane E. Bessen tossed out the caps on noneconomic damages, saying they violated the Georgia Constitution’s guarantees of a right to trial by jury and to equal protection under the law. Bessen also wrote that the caps infringed upon the separation of powers by interfering with the trial judge’s usual role of forcing plaintiffs to choose between a reduced award and a new trial when a jury verdict is deemed too high.

There are several grounds on which the high court could uphold the ruling in the Nestlehutt case, said Atlanta attorney J. Marcus “Marc” Howard, chair of the Georgia Trial Lawyers Association’s amicus committee.

If the court upholds Nestlehutt on the grounds of right to trial by jury or separation of powers, that would almost certainly require the Legislature to amend the state constitution in response, Howard said.

Upholding the case on the grounds of due process could also require a constitutional amendment, he said. If the court upholds the case on equal protection grounds, the Legislature may only need to write a new statute to respond.

“Any opinion needs to be considered by the Legislature before action is taken,” Howard said.


Sen. John J. Wiles, R-Kennesaw, said he would file legislation to respond to the Supreme Court if it overturns parts of the tort law.

“As a strong supporter of tort reform in 2005, I would most certainly offer legislation to address any judicial decision adverse to the important provision contained in the current Georgia law that protects the citizens of Georgia,” Wiles said in a statement.

How the Legislature can respond to the high court’s rulings will depend on what legal grounds the justices use, several attorneys said. Lawmakers could simply pass legislation to write a new section of the Georgia Code. Or a response may require amending the state constitution, a more difficult proposition, as it requires a two-thirds majority of both the House and Senate, in addition to the governor’s signature. A constitutional amendment also requires approval by voters in a ballot referendum.

Regardless of whether the Legislature’s response would take the form of a new statute or a constitutional amendment, it would take the same amount of time to pass legislation, said Mark Woodall, a veteran lobbyist for the Sierra Club of Georgia who is not involved in the tort law issue.. The fastest that legislation can be passed out of both the House and Senate is five days, said former state Sen. Bobby Rowan, D-Enigma, who has lobbied at the state Capitol in the past but also is not involved in the tort issue.

There are ways to speed up that process, however, Rowan said. One method is to file a dummy bill in advance of the court’s opinions. The purpose of a dummy bill is to have one piece of legislation that has passed either the House or Senate before the Legislature’s so-called crossover day, the 30th legislative day. If a bill or resolution hasn’t passed at least one chamber by the crossover day, it’s much more difficult to approve new legislation.

The dummy bill would later be amended, based on the details of the court’s opinion, Rowan said. The language of the dummy bill must have some connection to its planned new version.

“There is nothing illegal or irresponsible about a dummy bill. It’s just parliamentary tactics,” Rowan said. “It’s an acceptable strategy that’s been used many times before.”

The Supreme Court could also tie the hands of lawmakers who want to respond by issuing its opinion later in March, said Barry A. Fleming, counsel to the House Speaker. (He is not related to Joe Fleming.)

“The later the court waits, the less likely it is the Legislature would act,” he said.

Barry Fleming said he and Ralston have discussed the matter of the Supreme Court issuing opinions on the tort cases before the Legislature adjourns, but he declined to describe the nature of the discussions or say if a decision has been made whether to support a dummy bill.

Joe Fleming said he was not aware of a dummy bill being filed in anticipation of the Supreme Court’s rulings on the tort law.

The Legislature has more pressing issues to address, including the state’s budget, water supply, transportation and education, than how the court may rule on these cases, said Rep. Edward H. Lindsey Jr., the House Republican whip and a member of the House Judiciary Committee.

“We will deal with that challenge if and when the Supreme Court burns that bridge,” Lindsey said. Joe Fleming of the Georgia Chamber disagreed with Lindsey.

“Obviously, the budget, transportation, water and health care are all major issues,” he said. “But there are a lot of other issues, including lawsuit abuse, on people’s minds as well.”

By Andy Peters, Fulton County Daily Report

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