The debate over tort reform in Georgia has intensified, with Governor Kemp making it the centerpiece of his 2025 legislative agenda. With the introduction of Senate Bills 68 and 69, the landscape of litigation in Georgia is set to undergo substantial changes, particularly in areas such as medical damages, litigation financing, and negligent security. But what does “fairness” truly mean in this context? Fairness is best determined by the market rather than by legislative interventions that risk distorting natural economic balances.
The Issue of “Runaway Verdicts” and the Abolition of the Collateral Source Rule
One of the prevailing narratives in tort reform discussions is the concern over so-called “runaway verdicts.” While some argue that large verdicts indicate systemic flaws, the reality is more nuanced. The size of a verdict must be viewed within the context of individual circumstances—no two injuries are alike, and the economic and personal impact of an injury varies significantly.
SB 68 proposes to abolish the collateral source rule for medical bills, which would create two separate classes of injured individuals: those with health insurance and those without. Plaintiffs with insurance would only be allowed to claim the amount their insurance would have paid plus their out-of-pocket costs, regardless of whether they used their insurance or not. This shift could significantly impact settlements and jury awards, potentially limiting recoverable damages for insured plaintiffs while creating disparate outcomes for those without insurance.
A more market-driven solution would be to prioritize faster settlements and reduce prolonged litigation, ensuring that injured parties receive timely compensation without unnecessary financial hardship. The proposed reforms would put pressure on third-party liability carriers to offer reasonable settlements earlier in the process, thereby reducing protracted legal battles.
Forensic Accounting and the True Cost of Damages
A critical aspect of fair tort reform is the accurate calculation of damages. SB 68 highlights the importance of forensic accounting in assessing claims. Bringing in experts who can precisely evaluate economic damages would help prevent exaggerated claims and ensure that settlements are based on actual losses rather than inflated figures. Long-term trucking cases, which can take up to five years to resolve, are a classic example of the inefficiencies of the current system. A shift toward more immediate and transparent resolution mechanisms would prevent unnecessary delays, benefiting both plaintiffs and defendants.
Negligent Security and Increased Burdens of Proof
Negligent security is another focal point of SB 68, introducing significant changes to how plaintiffs must prove foreseeability in security-related liability cases. The proposed law raises the standard of evidence required to hold property owners accountable. Plaintiffs would need to prove that the property owner had a “particularized warning” of an imminent crime or, alternatively, that there were prior “substantially similar” crimes within a specified radius that the owner should have known about. Additionally, the bill introduces new legal defenses, shielding property owners from liability in certain cases, such as when the criminal act was committed by a tenant or a guest of a tenant facing eviction.
These provisions would make it significantly harder for injured parties to hold property owners accountable for security failures. While intended to limit frivolous claims, the impact on victims seeking compensation for violent crimes committed on poorly secured premises raises questions about access to justice. A balanced approach should seek to streamline the legal process while still holding negligent parties accountable.
Litigation Financing: Transparency vs. Accessibility
SB 69 introduces a new regulatory framework for litigation financing in Georgia, requiring litigation financiers to register with the state and disclose ownership structures—foreign-affiliated entities would be prohibited. While increased transparency is a positive step, there is concern that excessive regulation could limit access to funding for plaintiffs who may lack financial resources to pursue valid claims.
Litigation financing plays a critical role in leveling the playing field, allowing individuals to pursue legal action without being forced into premature settlements. And while I agree that reasonable safeguards must be in place to prevent predatory lending practices, the proposed changes seek to balance these concerns but may inadvertently limit access to capital for plaintiffs in need.
Gag Rule on Non-Economic Damages
One of the most controversial aspects of SB 68 is the restriction on attorneys arguing the value of non-economic damages, such as pain and suffering. I am completely against this. The bill explicitly prohibits attorneys from discussing or suggesting a monetary value for such damages during trial, leaving it entirely up to jurors to determine compensation without guidance.
This restriction could have significant implications for plaintiffs, particularly in cases where the emotional and psychological toll of an injury far exceeds the quantifiable economic damages. The question remains whether this provision is constitutional, as it significantly limits how plaintiffs can advocate for holistic, fair compensation.
A Market-Driven Path Forward
True fairness in tort reform is not about imposing rigid legislative restrictions but about creating a system that promotes efficiency, transparency, and equitable treatment for all. The proposed changes in SB 68 and SB 69 present a mixed bag of benefits and challenges. While they aim to reduce frivolous claims and promote early settlements, they also introduce potential inequities that could disadvantage injured plaintiffs.
I am a fierce defender, and have been my whole career, for a reform approach that aligns with economic realities while ensuring that injured parties receive just and timely compensation. The market, rather than arbitrary legislative constraints, should guide the evolution of Georgia’s tort system to create a truly fair and sustainable legal environment.
