The following is a transcript of Episode 8 of Championing Justice. You can listen to the full episode here, or watch it on YouTube.

Darl: Thank you for tuning into the Championing Justice podcast. We’re joined today by my good friend, Max Thelen. 

Max is a partner at Ashby Thelen Lowry in Marietta, Georgia. Today our topic is going to be important case rulings from 2023. Thanks for joining us, Max.

Max: Thank you. Glad to be here.

Darl: So tell us a little bit about your background and the type of work that you do, because one of the reasons I wanted to have you on is you do some appellate work in addition to trial work. 

You work as embedded trial counsel and identifying issues and preserving issues for appeal, also handle appeals and also try cases as trial counsel. So tell us a little bit about how you got to that point from the time you graduated from law school.

Max: Yeah, absolutely. I always enjoyed the more complicated thornier intellectual challenges, and so in law school I got the opportunity to intern for Steve Dillard on the Court of Appeals, Judge Dillard. That was great. I enjoyed it a whole lot. 

And so after I graduated law school, I did some clerkships, second one at the United States Court of Appeals for the Seventh Circuit. And then once I got into private practice, I got the opportunity to work with Darren Summerville for a few years and got to do an appellate practice there. And then when Drew and I started our firm together, I continued that.

Darl: So tell us a little bit about your clerkship experience. Obviously, I clerked for a federal district judge. I did not do a Court of Appeals clerkship, and that was very significant part of my career. I mean, I learned a ton. I did a two-year clerkship. Tell us about your experience doing that and what you learned.

Max: Yeah, it was similar. It’s great. So my first clerkship was with Judge Morgan on the Eastern District of Virginia, which is what they call the Rocket Docket, trial court level.

Darl: I’ve been told to avoid that. It’s tough unless you’re absolutely ready at the moment you file it to try the case. You might want to file in the Western District if it’s an option.

Max: Yeah, the good side is they almost never grant summary judgment, but you might be at trial without having done any discovery. It’s a mixed bag. 

So spent a year there and loved that. And then I clerked for Judge Manion on the Seventh Circuit, which is in Chicago. That was a good experience. Got to work with Easterbrook and Posner, if you know those folks.

Darl: Yes, I do. Yes. Not personally, but certainly by reputation. Excellent judges. And have you always been a plaintiff’s lawyer since you’ve entered private practice or did you spend any time on the defense side?

Max: I spent three years on the defense side and then I’ve also served in the Georgia National Guard for 20 years, including the last eight or so, as a dad.

Darl: You’re old enough to retire.

Max: Well, yes.

Darl: Close, right? 20 years you get to retire.

Max: I’m approaching 20.

Darl: Impressive. Well, today we wanted to talk about appellate cases, and there are several that came down from the Court of Appeals and Georgia Supreme Court. 

The main ones we’re going to talk about today came down from the Georgia Supreme Court and they kind of run the full spectrum from a variety of cases ranging from your negligent security cases, we’ve got one involving punitive damages, we’ve also got one case on a particular evidentiary issue. 

One thing that everybody needs to be aware of is the preponderance of the evidence charge that is in the pattern charges is no longer valid, which is a little interesting that the pattern instructions, which you feel like are safe and the ones that you want to go with, are apparently not.

Max: There’s more than a couple that are wrong.

Darl: Yeah, so that’s always interesting. So let’s start with—and I didn’t intend for these to be ranked in any order of significance—but as I was putting these in a Word document and coming up with the different cases, they did kind of naturally flow that way. 

And so the first one that comes to mind is the Carmichael decision. So this was two cases, this was CVS v. Carmichael, and then the other case, I can’t remember the name, I think it was Pappas Restaurants. It was the one at Pappas.

Max: That’s right. Yeah.

Darl: Where the Georgia Supreme Court, there were several holdings in the case, but what they said was the standard is a totality of the circumstances test when determining reasonable foreseeability. 

And so let’s start off by talking about Carmichael. So tell us a little bit about Carmichael and its importance and then we’ll kind of dive into the specifics.

Max: Yeah, absolutely. I think the first and most important thing to say about Carmichael is, especially as it pertains to the totality of the circumstances test, is that it doesn’t change the law. That’s essentially what the law has always been. 

There have just been some poor articulations that have clouded the law over the years. And so really all the Supreme Court was doing there in my opinion, is cleaning it up. Which, the test always is for reasonable foreseeability, is essentially: Should the ordinary person, the ordinary landowner, anticipate violent crime or other acts by third parties? And whether or not a reasonable person anticipates something is always the totality of what that person knows.

Darl: And I totally agree with you, that’s my reading of the case as well. 

I think that some people, particularly those on the defense side or corporate interests are going to use it to make it sound like there was some sea change in the law and things need a legislative fix, but all it was doing was clarifying the law because some Court of Appeals decisions had muddied the waters. 

And so, totality of the circumstances should be the test for reasonable foreseeability. I mean, why would you create some special test that requires, for example, a specific substantially similar crime, which I think was what some Court of Appeals decisions had held? 

And so you’d have these decisions come out that were, in my view, very myopic and they would say, “Okay, well, was there some substantially similar prior crime?” Now that’s still part of the analysis, but now we’re looking at other facts under this totality of the circumstances test.

Max: Yeah, that’s exactly right. I think that there were cases like Couch v. Red Roof Inns way back where the Supreme Court’s like, “Well, obviously it’s reasonably foreseeable if the same thing already happened here.” 

And so that’s kind of like the gold standard obvious fact that makes something reasonably foreseeable. But some intermediate appellate court decisions had kind of said, “Oh, well you need that,” when the Supreme Court had really never said that you need that. It just said that that was exceptionally good evidence.

Darl: Exactly. It’s a way to show it. It’s not the only way.

Max: That’s right. And there are a lot of other Supreme Court decisions and even some Court of Appeals decisions that have said, “Look, it doesn’t have to necessarily be substantially similar in the way that we use those terms in the case law. It just has to be enough to put the owner on notice,” which is the whole idea of, in the totality of the circumstances, should you have anticipated it? Are you on notice of it?

Darl: So for example, let’s say that prior to Carmichael, some decisions may have applied an overly stringent test for some sort of substantially similar crime. 

They may say, “Well, this was an aggravated assault with a shooting during an armed robbery, and the prior one might’ve been a bunch of shoplifting, maybe some other minor assault.” 

What Carmichael is saying is you can look at prior crimes, a substantially similar prior crime is important, because that can be an important way to show it, but it’s not the only way. Also, you can look at other crimes on that property, even if they’re not substantially similar, but you can also look at crimes in the area. 

And I don’t know in your view if that’s something that’s always been done or should have been done by courts, but I did note that aspect of the decision as being important.

Max: Yeah, I think for a while courts have looked at whether a particular premises is within a high-crime area because that is something that a reasonable property owner should observe, and if they observe that they should realize if crimes are happening around me, they could happen on my premises. I think that’s been a part of the analysis for a while and it’s definitely solidified. 

And as far as particular lesser crimes being indicative of a problem with greater crimes, that’s also been in the case law for a while. And I think the court in Carmichael will kind of emphasized that more on the Pappas case, in that one they had had people break into unoccupied cars. 

But obviously if people are breaking into unoccupied cars, there’s the potential they break into an occupied car. And if that happens, the potential for violence is obvious.

Darl: Right. Yes. Some of the other parts about the Carmichael and Pappas case that I thought were important is, one, reasonable foreseeability as part of the duty analysis, but that it’s typically for the jury. 

And that was interesting because normally duty is a question for the court. And I don’t know at the end of the day that it really is going to matter, but to me it seems kind like a breach issue. Like is something reasonably foreseeable? Because the duty is to exercise ordinary care to maintain your premises in a safe condition that duty exists regardless. 

The question to me is whether you breached that duty and whether you breached that duty is whether you failed to protect from a reasonably foreseeable crime. But what Carmichael says is it’s actually a duty question. So you only have a duty to protect against criminal attacks if it’s reasonably foreseeable.

From my point of view, they got too granular in the duty analysis and should have just focused on a broader duty and then sort of brought it under the duty umbrella as part of the breach analysis. 

But still, they said it’s a question for the jury. So it doesn’t really matter that they said it’s a duty question, it would only have mattered, I think, if they said it’s a duty question and it’s for the judge. Because it is normally for the judge. 

How can we reconcile that and say reasonable foreseeability as part of the duty analysis, the question of duty is normally for the court, but for this one it’s going to be for the jury?

Max: Yeah, that’s a very good question. I think that there probably is an explanation. A lot of times the duty and breach questions will get murky at the edges. It’s one or the other. 

I think maybe the best way to articulate what the Supreme Court is saying here is that the legal duty that exists, that is a matter of law for the judge to decide is reasonable care under the circumstances. And here there’s no doubt that as a premises owner, there’s a duty of reasonable care under the circumstances, at least as it pertains to protecting invitees. 

So I think really what the court is saying with the foreseeability analysis is that the jury decides: What are the circumstances? And so that’s a big part of the foreseeability analysis, which is the jury says, “Here’s the totality of the circumstances, there’s these crimes.” 

And so the jury decides the circumstances are that these crimes are foreseeable, and then reasonable care requires a response to that proportional response to those circumstances, that foreseeability.

And I think that’s the way the court’s looking at it. And I think that that kind of opens the door to also look at other case law that had kind of gotten that mixed up. 

There’s an old case called Sun Trust v. Killebrew. I think it’s a ’95 Supreme Court case that, kind of in passing, says there’s no duty to look through police reports. And in the abstract that’s correct, there’s no statute that says premises owners have to look at police reports. 

But the reality of the question is what does an ordinarily prudent commercial landowner do? And we’ve learned from these cases that these big gas station chains, these big shopping malls, they do look at crime grids, they do look at police reports.

Darl: Hundred percent. Right.

Max: And so I think there’s a lot of opportunity to take that analysis, to take that reasoning and say, “Look, we need to revisit this too. If we have an expert that says an ordinarily prudent mall owner does look at police reports, then those police reports should be considered in the totality of the circumstances.”

Darl: Right. And I think this gets into the importance of distinguishing between duty and breach, whether it’s a car wreck case or a premises case or whatever. 

And I’ll give you an example. When I was at the firm I was at, before I started my firm, we did a lot of FELA work, so represented injured railroad workers. And we had a case where somebody was injured in a grade crossing collision. And the issue that we argued was that there was a breach of the duty to provide a reasonably safe place to work. So the duty to provide a reasonably safe place to work existed. 

We said they breached that duty by not training him on how to respond in a grade crossing collision, how they didn’t train him how to protect himself. Which also can create problems with things like PTSD because part of PTSD stems from a lack of control or feeling that you have no control over a situation.

There were a lot of cases across the country that had said there’s no duty to train an employee on how to respond. And so you look at it and it’s like, “Well, it’s not a duty question. The duty exists. The duty is to provide a reasonably safe place to work. The question is whether they met that duty.” 

And so we traveled through the trial court, the Court of Appeals, and up to the Georgia Supreme Court on the theory that this was really a breach question. This wasn’t a duty question. And the Georgia Supreme Court agreed with us, and I think that case became the first—and at the time, I think it was the only one—that had held that a railroad could be held responsible for not training an employee in that scenario. 

And I think that’s important, that as we look at Carmichael and other cases, whatever the case may be, always make sure that you’re distinguishing between duty and breach because the consequences can be significant. 

Because if you frame it as a duty issue as the plaintiff, the court can take that away from the jury relatively easily by saying it’s a question of law at that point.

If it is a breach question, well, you’re almost always going to get to the jury. One of the things that I wanted to—there were some other aspects of the decision I wanted to talk about—

Max: One thing about that is I do think that’s generally right, but I think that the Carmichael decision does kind of open up this world where the Supreme Court says, “Actually some duties we are going to re-look at whether part of that duty determination is a fact question for the jury,” and that could cause the court to revisit case law.

Darl: Sure. And that’s something I want to come to in a minute is about the impact of this decision. 

On other cases, because I think the Carmichael case represents a trend of the Georgia Supreme Court being willing to look at situations where the Court of Appeals has kind of gone astray on certain issues. And there’s probably no area of law where that’s happened more than premises liability claims, in my opinion.

But before we get to that, I wanted to talk about a couple aspects of the decision that I think are important. 

One is that security services companies may be able to be held liable for breaching a duty of care to third parties. And that’s important because some decisions had held, “Well, the security services company’s duty arises from contract. There’s no independent legal duty to provide a safe premises. that’s just owned by the owner occupier.” 

And so to pursue a claim against the security company, you would’ve to show you were a third-party beneficiary of the contract and you couldn’t show that. So they would get out on summary judgment or whatever. 

Georgia’s Supreme Court clarifies that the security company may owe a duty of care to third parties relying on Section 324A of the Restatement (Second) of Torts. What significance do you think that’s going to have to negligent security claims in the future?

Max: A lot. And we’ve worked on some of those cases where you’re trying to establish third-party beneficiary status, and every now and then you’ll get lucky and find a poorly written contract. 

But it was tough. And we’d argue 324A voluntary assumption. And it was really good to have the Supreme Court reaffirm that. It’s a pretty straightforward doctrine from the Restatement (Second) of Torts and I think it’s going to provide a lot of opportunity for really what is an obvious common sense claim. It’s bizarre that someone could say, “I’m the security company that’s going to provide security for this mall, but I have zero responsibility if I do a bad job providing security.” 

There’s a common sense problem there. And as we know, almost all tort law developed in common law from kind of a common sense analysis. 

And so I think it’s good that what clearly should have always been the law now clearly is the law, and I think it’s going to have a lot of application to security companies obviously in these cases going forward. Whether it goes beyond security companies is an interesting question. Because there are maintenance companies who repair things, janitorial services.

Darl: Yeah. Another aspect of the decision that I don’t know is super significant, but I think some of the dicta could be in future cases, was whether a verdict is inconsistent when no fault is apportioned to the criminal. 

So the interesting issue here was the way that it was worded, the jury instruction, if I remember correctly, said, “If you find any negligence of a third party, you must apportion, or you can apportion fault, or something to that effect.” 

The Georgia Supreme Court said, “Well, that was the instruction that was given. They were instructed to consider the negligence, not the fault the negligence. And a jury could have found that the criminal wasn’t negligent. And because of that, the verdict’s not inconsistent.” 

Now, obviously in other cases, the instruction is normally whether there was any fault of third parties. In light of Carmichael, every defense attorney that has read that decision is going to make sure that their jury instruction says that, but there seemed to be an indication in the opinion that the judges may be willing to overturn verdicts where 0% fault is put on the criminal. Did you read that the same way?

Max: I think that’s right. And that’s exactly right is the Supreme Court basically said the charge was you have to apportion fault among all the people whose negligence contributed to the injuries. And the court says, “Well, he shot him on purpose. It wasn’t negligent.”

Darl: Right, and there was no objection to the jury charge.

Max: Correct.

Darl: So it wasn’t reviewable on appeal.

Max: That’s right. Now—and the language in that section is strong. I would say they came just about as close to a holding without making a holding that they could have. 

Where they said essentially, “We really think this is a problem if you bring us the right case.” So I think as practitioners in this area, we need to tell the jury, put a percentage on the shooter, don’t put 0%.

Darl: 10%, 20%, right.

Max: And I’ve even seen some folks file MSJs essentially, asking for an order of the court that there has to be at least a certain percentage on a non-party. 

And that’s a weird squishy situation, but if it prevents you from having an inconsistent verdict because the judge tells them, “You have to put at least some percent on the shooter,” maybe that saves us from an inconsistent verdict. 

But I also think the way that the law is written, it doesn’t have to be a percent. Comparative negligence only requires some fault. The jury could put 0.001% and then it’s not an inconsistent verdict because they’re just weighing the comparative negligence.

Darl: Sure. Yeah. And it is interesting because we’re talking about negligence security. The whole reason that they’re negligent is because they didn’t take some steps to reduce or eliminate the risk of the criminal attack. 

And so it’s kind of like, ‘Well, that’s the whole reason you’re negligent. So why should they have to put fault on the criminal? Because the idea is you would’ve prevented the criminal attack by doing it.”

Max: Yeah. It’s philosophically interesting because for example, in a dog bite case, you’re never going to put fault on the dog. It’s the dog that actually bites the person. But our law looks at moral decision-makers as actors, and so I understand why the court’s looking at that and saying, “Okay, a dog’s not a moral decision-maker or an actor.” 

And so in that situation, you would not apportion fault to the dog and you’d hold the premises under a hundred percent liable. But when you do have two actors, there has to be some allocation to someone who is a person that owes a duty that can be breached or does it intentionally.

Darl: It’ll be interesting to see how that plays out in the future if there are future cases on that. Again, plaintiff’s attorneys I think would be well advised to tell the jury to put some fault on the criminal. 

And not only from an appellate issue standpoint, it seems like it would give you some credibility as well to acknowledge the wrongdoing.

Max: I think it certainly helps from an advocacy perspective. And I do think if you get a verdict back from the jury and it puts zero on the shooter, I think you tell the court breaks, breaks, let’s give this back to the jury and tell them they have to put at least, at least something on the shooter.

Darl: Right. That’s interesting. 

So here was the big question that I had as I was reading Carmichael, is I’m wondering what applicability does this have to other premises cases? 

Because I mean, we talked about the issue of security services companies owing a duty of care under Restatement 324A, and that may apply to janitorial companies or whatnot. But the bigger question I have is, with Carmichael and the adoption of the reasonable foreseeability test, what are some ways that may impact other premises liability claims?

Max: Yeah, I think it will in fact impact other premises liability claims. And really beyond that. 

And here’s what I mean by that: So in your normal premises liability claim, you have the equal knowledge rule. And so you’re always trying to show that the premises owner knew more about the hazard than you did. And what they know about the hazard comes not just from the specific spill on the ground, for example, but from everything else the premises owner knows. 

So I think you can point to they know it’s a high traffic area, they know that they have products that are prone to spilling in that area, they know this, that, the other thing, that are things tangential to but related to a propensity for spills. 

And I think you can use that to build a greater knowledge or proof of greater knowledge, and then it helps you even more when you’re both trying to apportion fault between the plaintiff and the defendant.And when you’re trying to show that the store knew or should have known about a particular hazard. 

And I think it applies broader than that. We’ve recently made similar arguments based on Carmichael in the negligent hiring context because there’s a similar trend in the Court of Appeals to say, “You have to know about the particular prior acts that show a propensity for dangerous or reckless driving.” 

And we’ve been saying that’s not what the law is, is the Supreme Court said in the premises liability context, it’s the totality of the circumstances. That you can look at all aspects of a driver and it’s not just subsequent tickets or wrecks.

Darl: Right. Yeah. And I think this is something where the Georgia Supreme Court has demonstrated this willingness to correct things where the Court of Appeals goes astray. And it’s no secret that we’ve got one of the busiest Court of Appeals in the country, if not the busiest. 

And I know that’s why they expanded in recent years. But it seems like a lot of decisions in the past have kind of just tried to rely on simple legal principles to dismiss or get rid of cases without really analyzing in depth the underlying holding and reasoning of it. 

And I can’t remember what judge it was, but I seem to remember—maybe this was in the ’90s, a decision that came down in the ’90s—where a premises liability decision would be issued, they’d be analyzing it under the equal knowledge rule, and there was always somebody that was like concurring in judgment only or dissenting saying, “I don’t think it is a superior or equal knowledge thing. I think it still comes down to you weigh the relative comparative fault of the parties.” 

And I think Carmichael gives us a good opportunity to argue that we’re always looking at the totality of the circumstances. So it isn’t a one type of particular standard that needs to be met. 

And I was looking here, I don’t know if we have this… I didn’t have this on my list, but there was a Court of Appeals case that came down recently talking about punitive damages and 13-6-11 fees. Judge Dillard wrote the opinion and was distinguishing between punitive damages and 13-6-11. And one of the things he noted, which again is similar to Carmichael, was some cases had held that the only way you could recover punitive damages in a motor vehicle case is if there was a pattern of bad driving. 

And Judge Dillard said, “No, we’ve held that that can be a way that you show it, but it’s not the only way. And here’s all the examples of that.” 

So I think that the lesson and the takeaway I have from Carmichael is: look at other types of cases you have, look at—and it could be a premises case, maybe a motor vehicle case where courts have been too rigid in their application of a particular rule or principle—and think of ways that you can identify that they should have expanded it beyond this kind of narrow myopic focus. 

That’s just my thought, but we could talk about Carmichael all day. It’s a fascinating decision, a very, very lengthy decision. 

And the next one that I wanted to talk about, though, is equally fascinating and may take just as long as Carmichael: Taylor v. Devereux Foundation

So the Georgia Supreme Court upholds the constitutionality of Georgia’s punitive damages cap kind of. And I say kind of because the issue in Taylor was the underlying conduct. There was no evidence or argument that it was intentional. It was a conscious indifference to the consequences. 

So Taylor is looking at the Nestlehutt framework for analyzing whether a cap violates the Georgia constitution. So they say, “Well, we got to go back to the 1700s and see whether there was this right to a trial by jury at common law.” 

So Taylor asks the question—and they got very granular with this, which I thought was a little surprising. They didn’t just say, “Is there a right to trial by jury for punitive damages, or was there a right to trial by a jury for this type of negligence case?” 

Which in that case was a sexual assault and then a sort of negligent hiring and failure to protect from the sexual assault. But they said, “We’re actually going to ask the question, was there a constitutional right to trial by jury for punitive damages claims based on a conscious indifference to the consequences?” 

A little granular. And they said there is no case that they could find at least—and that’s not to say it doesn’t exist, but maybe somebody could uncover it and find it—but the only thing they could find were cases on intentional conduct. And they said there was a right to trial by jury for punitive damages claims based on intentional conduct. 

So although the plaintiff in Taylor did not have a constitutional right to trial by jury to uncap punitive damages, they left open the door that you would if the conduct at issue was intentional. Is that accurate?

Max: I agree. Yeah, that’s a good summary.

Darl: Okay. So here’s the big question: Going forward, what is intentional conduct? Because the statute itself exempts from the cap specific intent to cause harm, but a specific intent to cause harm is different from intentional misconduct. Because you can intend the misconduct without intending the harm.

Max: Absolutely.

Darl: So let’s talk about that because that’s important because I think if you’ve got a punitive damages claim in a case, you want to frame it as an intentional misconduct case.

Max: Yeah, absolutely. The analysis in Taylor v. Devereaux is really interesting, and you could spend forever talking about the case law that led the court to the conclusion that it did reach. But at the end of the day, we have a decision that gives us these tools. And so how do we use them? 

And I think the way to think about intentional misconduct is essentially three tiers: So you have what the punitive damage statute specifically accepts from the cap, which is the intent to cause harm, which is perhaps what you might call the highest level of intentionality. Not just the act, but the result was intended. And so that’s always been exempt from the cap. 

There’s another level of intentionality, which is what you might call an intentional tort, which is where you’re actually intending an act but not intending the harm. And that’s not what the court’s talking about.

That is a higher level of intentionality than what the court is talking about. The court is talking about what it characterizes as intentional misconduct, but if you look at what it’s saying counts as that, it’s definitely broader than intentional torts. 

So there’s a series of footnotes, I think it’s 31, 36, and 37, where they explore Blackstone’s Commentaries talking about nuisance. And in Blackstone’s Commentaries talking about nuisance, it says, if you know that you have a nuisance, for example, like a ditch in your road, and after knowing that it’s hurting people, you don’t correct it, that is intentional misconduct. 

But even at the common law, that was not an intentional tort, it was brought as an action on the case, which is a predecessor to a negligence claim, but it was clearly eligible for our punitive award at common law before the Georgia Constitution was adopted.

So I think that we have the opportunity in our cases to point to those footnotes in Taylor and say, “Here we have intentional misconduct. And so the cap of $250,000 does not apply.” 

And I think the way we do that practically in our cases is we show knowledge that their action or inaction is causing harm and a decision to not remedy their action or inaction. And I think you see that in a lot of cases. 

You see that in premises liability cases where they know they have an ongoing problem with violent crime and they don’t make any changes to protect their invitees. That can be phrased as intentional misconduct if they know their invitees are getting hurt and they don’t change anything to protect their invitees.

Darl: I have a case right now where I’m intending to rely on this decision, and I’m sure you and I will talk about it in the weeks and months ahead, where there was a slip and fall on a surface where 20 plus people had fallen in the five or six years before my client. 

And my argument is if you know of a dangerous condition in your property, your acts or omission and failing to correct it is intentional. 

Here’s an interesting hypothetical, and maybe we’d have to break open the statute and look at the text, but product liability claims are excluded from the cap, if it’s the first case. What if you have a product liability case that’s the second, third, fourth case, or whatever, but you can show intentional misconduct? Does the cap still apply?

Max: That’s a very interesting question. I think the answer to that question is probably that the cap does not apply. And I think it has broader application than that. 

Let me explain what I mean. So if at common law you could recover uncapped punitive damages for conduct, for harm that was caused to you, and that’s a right that you had, then any change to that by statute to take away what you had at common law is unconstitutional as infringing on the jury trial. 

And so if a second person could bring a claim then at common law for the same conduct, then you could do it now and the cap would be unconstitutional. And I think a great example of that is the nuisance, right? If the defendant knows that someone’s hurt and a second person gets hurt, you could have a punitive award. And if a third person gets hurt, it seems clear from Blackstone that that person could also get a punitive award.

So I think that the limitation on one is probably unconstitutional. And there’s also the question about whether the state taking 75% is unconstitutional, because if at common law, the entire punitive award belonged to the plaintiff, then that’s unconstitutional as a taking. 

And there are cases like MacK Trucks v. Conkle and a couple others saying, “Oh, well, there is no right to punitive damages, so it’s not a taking.” But Taylor could completely undermine that rationale.,

Darl: Because there is a right to punitive damages.

Max: If there is a right to punitive damages, then it arguably is taking.

Darl: Right. So here’s another interesting question that I have about the scope of intentional misconduct. 

We’ve got on the one hand situations where somebody knows their product is dangerous or the premises are dangerous, but what if you’re driving down the road and you’re late for work and you intend to run a red light? You intend to run a stop sign? You intend to text on your phone while you’re driving because you need to respond to a text? 

Now, on the one hand, you’ve got cases specific to punitive damages on, for example, the decision we were talking about earlier, talking about punitive damages… Some cases had held, you needed to have a pattern of misconduct. There’s still courts that are very rigid in applying that standard, I think will continue to be rigid. 

But there might be a way to frame your case to where not only are you entitled to punitive damages where some prior decisions may have said you couldn’t, but you may be able to get uncapped punitive damages.

Max: I think that’s right.

Darl: So is that something where, for example, in a deposition question, we want to ask the defendant that? “You intended to run the red light. You saw the light was red.” I think you can frame the case. 

I mean, here’s another example: You’re intending to speed. “I knew I was going 75 in a 55. I knew I was going a hundred miles an hour or whatever.” You can potentially get uncapped punitive damages. 

So I think it’s important to frame the case in a way and see how it goes because we don’t really know how courts are going to apply this going forward because Taylor‘s new. And it’s going to take some cases being presented in trial courts, having a jury verdict, having a jury verdict based on that, and then going up. 

The other thing that I think is important to cover here is, is it enough to argue intentional misconduct and have evidence of it to support a claim that there was intentional misconduct? Or should the plaintiff request a special verdict form asking the jury to specifically find intentional misconduct in order to argue that at the higher courts?

Max: Yeah, I know, that’s an interesting strategic decision. Obviously, if you have a special interrogatory where you have a check yes on intentional misconduct, that makes your argument pretty easy, especially when you have the deferential standard for reviewing a jury verdict. And so if you think that you have a strong chance of getting that check, yes, do it.

Darl: Do it. Okay.

Max: Now, if you’re on the margins, maybe you don’t want the special interrogatory? If you think you can get it and then you’re in a situation where you’re having the entire verdict reviewed deferentially with every inference construed in favor of affirming the verdict, and then you’re trying to argue, “Well, there was sufficient evidence for the jury to find specific intent to cause intentional misconduct and so we should presume that that’s what they did.” 

And that’s a weaker argument for overturning the cap. But if you’re worried they’re not going to check yes, maybe that’s what you go with.

Darl: Are there any other caps out there that you think this may have applicability to? The Taylor decision? 

I mean, med mal caps have already been struck down. One interesting thing is some defense lawyers have tried to argue that Taylor actually saves the medical malpractice cap for wrongful death claims.

 And I don’t know that there’s been any Court of Appeals decisions on that, but I think they’ve been making that argument at the trial courts. The argument being, “Well, there was no entitlement to a wrongful death action at common law, therefore there was no right to damages period.” 

I think those arguments are wrong, and you and I have discussed that because in Nestlehutt, the entire medical malpractice cap was struck down on its face.

Max: Yeah. Nestlehutt wasn’t an as-applied challenge, it was a facial challenge. And the court struck down the statute on a facial challenge. 

So there is no statute to apply. So I think the decisions are wrong for that reason. It is an interesting argument, if it hadn’t been struck down whether the cap could be upheld as to wrongful death claim. That’s interesting.

Darl: Could you not have an equal protection challenge then, though? That for the most egregious claims and the ones with the highest damages, those are being capped, but not others?

Max: Yeah, I mean, equal protection challenges are tough, especially when there’s kind of the historic distinction, right? There was not really a claim for wrongful death in common law, and that’s why they’re being treated differently just because of that historical basis, not because of any invidious reason. 

But I also think there’s some interesting reasoning in Nestlehutt that should make these defense arguments or these defendants making these arguments a little bit more concerned about what the outcome might actually be. 

Because there was no 51-3-1 premises liability statute in England. But they’re clearly applying those principles and saying that the punitive damages would be uncapped. And so the Supreme Court is looking at, essentially in those cases, is the actual action on the case. Was there a claim for negligence?

Darl: The theory of liability.

Max: Whereas wrongful death isn’t really about a theory of liability. Wrongful death is about standing or capacity to bring a claim. And so it’s not that it’s creating a new theory of liability, it’s just creating a plaintiff who can pursue a liability. It is just allowing a plaintiff to pursue a claim that would otherwise exist.

It’s like a standing issue. And so it very well could be that the Supreme Court looks at this and says, “Sure, the wrongful death claim didn’t exist at common law, but the claim for the negligence did exist. 

And so if there’s a claim for that negligence, the court can’t cap what the jury can do.” And so I don’t think it’s an automatic win that the wrongful death statute didn’t exist at the time of common law.

Darl: And I think the other issue that would come up in those is having some very bizarre verdicts, right? Imagine somebody who lives for a period of time after a wrongful act in a medical situation and they have an uncapped estate claim, but then a capped wrongful death claim. 

And one of the things that I would like to point out here is one of the firms that has made that argument and was retained is a firm of former defense lawyers who purports to now represent plaintiffs. And, to me, that is total BS that a firm that purports to be a plaintiff’s firm and to include GTLA members is going to be advancing—not only what is a ridiculous argument—but one that is so contrary to the right to civil trial by jury. 

And I am going to get on my soapbox for a minute. What we do isn’t just about money. It isn’t just about getting money for ourselves or fees or whatever. And I think some people that come over from the defense side think that and operate that way. 

It’s about the lives of the clients that are impacted. And so for people to make these arguments, it’s some sort of cute law school exam is really frustrating to me.

Max: Yeah, it’s problematic. And there’s a lot of problems with caps. 

I mean, if you think about them from a philosophical or moral perspective, they couldn’t be more backwards. So in Georgia, we don’t have any cap on what could be awarded to someone who lives, right? The med mal caps. 

If they’re arguing, “Oh, well, we should be able to cap wrongful death,” you’re essentially incentivizing killing somebody. Where if you don’t kill them, you could be liable for a tremendous amount of money. If you do kill them, then you’re capped. 

And it’s not like this is an abstract problem. I mean, there was a while where under Chinese law, they had a rule that if you injured somebody, you had to pay for their medical care for the rest of their life. But if you killed them, it was just a flat sum.

And so there are videos on social media sites of people hitting kids with their cars, and when they realize what happens, they’ll back over the kid to make sure they’re only liable for the death sum. And that’s the kind of behavior that these kind of caps are incentivizing. 

It’s a warrant, and it’s exactly the same with punitive damages. If you’re just negligent or you’re just grossly negligent, then there can be an award. But if we prove that you are just completely reckless or consciously indifferent, well we’ll limit the amount of damages you owe under that circumstance. It’s absurd.

Darl: So, let me give you an example from a case we just handled in Florida. So Florida, God bless them, I like visiting, but it is an interesting state. 

And they have caps. They have caps for medical malpractice cases. They also cap attorney’s fees at some ridiculously low amount that the client can waive and you can get more.

Max: But they don’t cap defense lawyer fees.

Darl: They don’t cap defense lawyer fees. Of course not. Florida’s just a weird, kind of the perfect example to me of just crony capitalism and what can happen when you have special interests that are advancing these laws. 

And fortunately in Georgia we’ve avoided that to a large extent, but so they’ve got caps on medical malpractice cases. They also have an arbitration procedure for medical malpractice cases. If the defendant—you send them this pre-suit notice of a claim and they elect arbitration—the defendant is admitting fault, is electing arbitration, you as the plaintiff can either agree to arbitration or reject it and file a lawsuit. 

If you accept arbitration, you’re capped at, I think it’s $250,000. If you reject it and go to court, I think you’re capped at $350,000. So you’re capped regardless because the defendant said, “I admit I was at fault.” The Florida Supreme Court has said the general punitive damages cap is unconstitutional.

But the Florida Court of Appeals has said the arbitration cap is not. It has not made its way to the Florida Supreme Court. I’m not sure that it will. In talking to Florida medical malpractice lawyers, they do not think that a Florida Supreme Court would overturn—at least as it’s currently composed—would overturn the arbitration cap. 

So here’s the problem, and this is a perfect example of what you just mentioned: The most egregious misconduct where a defendant’s like, “I got no defense here. I really screwed up.” You’re stuck at a low amount. 

The ones where the defendant’s like, “This is a close call. I’m going to fight it,” you can get unlimited damages. It makes absolutely zero sense.

Max: And all these incentives are perverse. There are other states that will not cap economic damages, but will cap non-economic damages. And folks will defend those as saying, “Oh, well, economics more provable or whatever.”

 But what that effectively does is if you’re a high-earning individual working for an investment bank, your life is worth a lot of money. But if you decide to stay home and raise your family or take care of a sick relative, your life is worth less. What you can recover will be capped just because you’re not a banker or an insurance executive.

Darl: No, it is ridiculous. And I think that anybody that is willing to even support that—and again, I don’t know what internal thought process was going on in that law firm when they were talking about taking on that client, making those arguments—but it makes me sick to my stomach. 

And I hope that they’re listening and I hope that they should reconsider their life choices, because it’s absolutely sickening.

Max: It’s never too late to do the right thing.

Darl: Yeah. Yes.

Well, so next decision I want to talk about that’s important is the Georgia Supreme Court case of Miller v. Golden Peanut Company

This case was interesting because, even though Georgia adopted evidence code 10 years ago, trial courts were still like, “Investigating officers can testify as experts without having to meet a Daubert standard,” which makes absolutely zero sense. 

Miller says they do have to meet the Daubert standard because they’re giving expert testimony. Now, this to me, seems obvious under the old evidence code and the quote “new one,” but the significance of this case is, whether you’re plaintiff or defense, we’ve all had cases where the investigating officer either helps us or hurts us. 

And what this case is saying is to get those opinions in, they’ve got to meet Daubert. You’ve got to show the reliability criteria and show their methodology. The one thing that I think is interesting about this case, which is a common theme with what we’ve talked about with Carmichael, is it does reflect the Georgia Supreme Court’s recognition that there’s areas where the Court of Appeals has just been getting things wrong in trial courts. And it’s an effort by them to fix it.

The evidence code was adopted 10 years ago. How did it take a decade to abolish the investigating officer rule and to say they do have to meet Daubert when it’s literally right there in the text of the statute?

Max: Yeah, no, I think the reality is about every year for the last decade, we’ve had a decision like this that says, “No, really, we did adopt the federal rules of evidence with some exceptions.” 

And like you said, the holding in this case is if someone is going to give an expert opinion, they have to be qualified as an expert under 7-0-2, and it has to meet the reliability requirements, and the helpfulness requirements. It’s that simple. 

And I think it’s exactly right that going forward, if we want to get that officer’s testimony on the record, we’re going to have to voir dire him or her about the qualifications, about the methodology that they’re using, about whether it’s considered reliable in their field and whether they reliably applied it to this case and establish the helpfulness of the opinion to the jury. And that’s not hard, but you have to do it. 

And if the other side doesn’t do it, the opinion should be excluded. And I think that the big takeaway from this is anytime you’re dealing with an evidentiary issue, read the rules. Don’t just look for case law. There’s a lot—and I think the reason that this keeps coming up, and I don’t mean to be insulting, but I’m going to be—is that a lot of these motions in limine that are filed on both sides, but especially on the defense, are recycled briefs. 

Frequently they will even cite the old evidence rule, not the current codification. And so what you’ll have is just these recycled briefs filed with the old evidence rules, and the court will look at the case law in these briefs—

Darl: Some judges who’ve been on the bench since before then as well, and know that that’s the way they’ve always done it.

Max: Right, and they’ll look at the opinion and they won’t see a red flag in the opinion, and they won’t read the new rule. And so they’ll rule the way they had for the last 20 years. And so because of that, the Georgia Supreme Court’s been reversing an evidentiary issue like this about every year for the last decade.

Darl: Right. I think the biggest takeaway that I have from Miller is: read the evidence code.

Max: A hundred percent.

Darl: And if you have an evidentiary issue that you’re concerned about, don’t just look at cases. It might be something that you’re looking to get into evidence, or it might be something that you’re looking to exclude because it’s harmful. 

Read the evidence code, look at federal decisions, and if they’re citing cases that predate the current evidence code, I think it’s important to look at Miller and say, “Judge, Miller just said ‘we meant what we said when we adopted the evidence code.'” 

And it’s shocking to me that it’s like the decisions keep coming out where they’re like, “We meant what we said. We adopted the evidence code.” 

Again, it’s not hard to qualify an officer under Daubert. But let me put it this way: It isn’t hard to meet the criteria if the criteria is met, obviously, but there’s plenty of times where the investigation is shoddy and they haven’t really applied a methodology.

I mean, I’ve seen cases where you talk to the officer and they’re like, “I didn’t take any measurements. I didn’t do this. I didn’t do that. I just kind of eyeballed it and talked to some people, and this is what I came up with.”

And it’s like, “Well, that’s not really reliable.” One area that I do wonder where this might come up more is in the context of medical providers and their testimony. 

It seems that the courts have been very lenient on giving treating providers leverage—not leverage, but allowing their opinions to be admissible—whether they’re giving favorable testimony to the plaintiff or favorable testimony to the defense. 

If you’ve got a case where your own treating doctor’s giving favorable testimony to the defense, you may have some bigger problems. But do you see this becoming a bigger issue in other areas and qualifying other non-retained witnesses as experts?

Max: Yeah, I think it’s possible. I don’t think it changes the law for treating physicians. 

I think 7-0-2 and Daubert has been applied to treating physicians before the evidence code and, after the evidence code it might’ve been done more leniently, but the reality is that these treating physicians are virtually always qualified and giving reliable opinions that are applied reliably and helpful to the jury and any issue with the expert opinion really goes to cross-examination if you think they have an inadequate factual basis. 

And that’s been recently reaffirmed in Court of Appeals decisions. And so I don’t think it’ll change that, but it certainly could change a lot of lay-adjacent opinion where it’s not truly a lay opinion, it is involving some expertise, but it’s not really being sussed out. I think we need to be more careful of that.

Darl: Sure. Here’s the one thing that I think everybody needs to be aware of too: There’s certain areas where the federal evidence code is different than the Georgia evidence code.

Max: That’s right.

Darl: And you need to acknowledge that. And if you’re citing something where it’s a nuanced issue and some distinction between the language can make a difference, you need to be aware of that. And one example is the Rule 7-0-2 in the federal rules is being amended. 

And if it hasn’t gone into effect, I think it is by the end of the year, and it talks about that these are criteria for the admissibility. So if this criteria isn’t met, you can’t say, “Well, this goes to weight, not admissibility.” You still have to decide the admissibility first. 

And I don’t know that that part in the federal decisions is going to make a huge difference. But there are, I think in the advisory committee notes for this new rule at the federal level, says there’s too many cases where maybe they’ve let testimony in that probably shouldn’t have. And they just say, “Well, it goes to weight not admissibility.”

Well, we’re going to just clarify that. Well, I’m assuming that’s not going to be adopted in Georgia. I mean, it’s not currently being adopted. So if there are new decisions coming out in federal courts, be aware that if they’re based on some distinction in the language and the difference between the two statutes, you need to know that.

Next decision: Another good example of a distinction brought about by the federal rules and the adoption of the Georgia evidence code. White v. Stanley

Georgia Court of Appeals holds that the preponderance of the evidence pattern charge is an incorrect statement of law, which was probably upsetting to trial judges everywhere who are like, “You give us these pattern charges and they’re called pattern—you’re supposed to follow because it’s a pattern—and now you’re telling us that it’s wrong.” 

But the charge was confusing. It was not a correct statement of the law. And so, as I read the case, until there’s a new pattern charge on preponderance, the jury just needs to be instructed: “Preponderance means more likely than not.”

Max: Yeah, that’s right. Or you could give the 11th Circuit pattern charge. It’s got a lot cleaner language. I think there’s a lot of important things to take away from this. It’s important to remember that a lot of the pattern charges are pulling from case law, and we have kind of a codification of the common law. 

We have a whole bunch of statutes that establish a lot of rules like this. But all those statutes are not true statutes in the traditional sense. They were intended to be a codification of the common law. And so the Supreme Court still technically has power to modify that. 

They aren’t statutes in the traditional sense. And a lot of times those statutes are literally just taking language from old opinions and making it like 51-3-1 or whatever. And so there’s a lot of times where you have archaic 1800s language put in a statute, and people are like, “Well, that’s the law.” 

Kind of. Really, it’s the common law principle behind that articulation of the rule that is actually the law. And this is an example of the Court of Appeals cleaning that up and saying that’s not exactly precise. And using that archaic language is unclear. 

And this applies in a lot of contexts. A few years back in Johnson v. Omondi, that was the gross negligence med mal case. And Justice Blackwell wrote an excellent concurrence where he is like, “Look, we use all these terms like ‘slight diligence,’ ‘gross negligence,’ ‘absence of care,’ ‘total absence of care,’ that are very, very confusing. That’s kind of archaic language that comes from these 1800s and 1900s Court of Appeals opinions, but that’s not it at all. All it really is, is just a gross deviation from what the standard of care requires.” 

And after that, the whole court adopted that articulation in a subsequent decision. And I think it’s important that we bring that rationale from the patent jury case and from Omondi and apply it to a lot of things, because I think it’s the same thing in a traditional negligence case in the gross negligence context. The charges are confusing and the reality is—

Darl: Proximate cause.

Max: Yeah. The reality is—

Darl: What does that mean?

Max: Is it a gross departure from what an ordinary person would do under their circumstances? That’s what it actually should be. And so I think we should push the envelope on all these things and say, “Look, don’t just think that dated archaic language is correct. Look at what the law actually is.”

Darl: Plain language jury charges.

Max: Plain language, jury charges.

Darl: Normal people will understand.

Max: Exactly. And on that note, this is an important warning for pattern charges: The apportionment statute, the apportionment charge, it’s wrong. 

It says if the fault of the plaintiff exceeds the fault of defendants, then the plaintiff has to lose. That’s what the pattern charge and apportionment says. But that’s wrong. 

If you have a case where you are apportioning to non-parties, then it’s possible for the fault of the plaintiff to exceed the fault of the defendant but not be over 50%. What the law actually is, is not over 50%. So if you ever have a case where there’s non-party apportionment, do not give the pattern charge and apportionment without tweaking that.

Darl: Sure. That’s a good example. Lesson from that case is always be cautious with the pattern charges. 

The pattern charges may not be an accurate statement of the current law. They might be based on old cases or old statutes. And it’s important to just always apply a critical analysis to each charge before you submit it to the court.

So the next decision, Eliezer v. Mosley. This was a non-party apportionment case. And I’ll let you talk a lot about this one because I know you’re the apportionment guru. The gist of this decision though as I read it, was under Alston & Bird v. Hatcher, you can’t apportion in a single-defendant case. 

Now, there’s been a legislative fix that was put into place, but under cases that are governed by Alston & Bird v. Hatcher, what the Mosley decision says is if the two defendants you’re suing are employer and employee, they don’t get to apportion to non-parties. Is that accurate?

Max: That’s what Eliezer says.

Darl: Okay. Tell us about that and what the importance is because I had a hard time wrapping my head around the rationale of that decision.

Max: Yeah, it’s a difficult one to understand. There’s currently a cert petition pending. I don’t believe it’s been granted, but it’s out there. 

And so there’s definitely the possibility that we see a little bit more evolution in this area. But here’s essentially what happened: There’s an old Supreme Court case—not old but old in terms of the apportionment statute—called FDIC v. Loudermilk that talks about concerted action. 

And what it essentially says is if there are multiple tort fees who work in concert such that the fault is not divisible, then you cannot apportion among them because the fault is not divisible and they’re effectively treated as a defendant that works in concert. 

And Loudermilk is not dealing with non-party apportionment, Loudermilk is dealing with apportionment among defendants. So Loudermilk doesn’t say, “When you have concerted action among named defendants, you don’t apportion to non-parties.” It doesn’t say that, but it does have the rationale that when fault is not divisible like in concerted action, then they’re treated as one defendant for purposes of the verdict form. 

And the Supreme Court left open the question of whether that would be the case in other situations where fault isn’t divisible with the obvious one being vicarious liability. Because when you’re suing employer employee in most circumstances it’s just the employee’s fault which the employer is liable for. So there’s no really intelligible basis to divide the fault between the two. So they’re treated as one defendant. 

What the court does in Eliezer is kind of interesting. The court kind of says there’s two defendants, and so it’s not really a single-defendant case, but because the fault is not divisible, they’re treated as one defendant. And so when you’re in a single-defendant case, there’s no apportionment of fault to non-parties and it’s not completely clear if that’s the best articulation of the rule there.

I think it would be right to say that they are effectively one defendant. So it’s effectively a single-defendant case and because of that, there’s no reduction of damages for fault apportioned to non-parties. But I don’t know if it’s the best articulation to say that “It’s two defendants, but we’re not going to apply apportionment of fault.” 

And the reason I think that’s important is because even in Alston & Bird v. Hatcher, there’s this distinction between apportionment of fault versus apportionment or reduction of damages. And the court allowed fault to be apportioned to a non-party, but just said there was no reduction of damages for fault apportioned to that non-party. 

And I’m not blaming the court in Eliezer because I don’t think that was really grappled with in Eliezer. But I think that when all of those principles have to be reconciled, there’s going to need to be a realization that fault can be apportioned to a non-party, but there can be no reduction of damages for fault apportion to a non-party.

Darl: So it sounds like this one is TBD, see what the Georgia Supreme Court does with it?

Max: That’s right.

Darl: Because they could make this whole discussion moot by overruling the decision.

So last one I just wanted to briefly mention before we talk about some things that might be coming down the pike that could be important cases going forward: Carr v. Yim

Anybody that sends offers of settlements like I do—I send them in almost every case, I think they’re great tools to use as leverage and settlement negotiations, and to potentially get fees, we’ve beaten offers of settlements multiple times a trial and gotten significant fee awards. And so it’s important that you ensure your offer settlement is enforceable. 

What they said in Carr v. Yim was when you file a lawsuit and send an offer settlement in that case, but then dismiss and refile, your prior offer of settlement is no longer good. You’ve got to send a new one. That one’s significant for a few reasons. 

Not only do you need to do it, but it can significantly affect the amount that you could claim as fees because you’re only entitled to fees from the time the offer of settlement expired going forward. 

So if you sent one early on in the first case, you did a ton of work, got it ready for trial, and then you’re just like, for whatever reason—maybe you don’t like the jury panel that day, right—and you dismiss. And then you refile and send another one, because you now have to send another one, your fees are going to run from the time of the second one. So that’s an important one. Just be aware of Carr v. Yim.

Max: Yeah. There is a silver lining to that case, though. So when Alston & Bird v. Hatcher came out, a lot of folks would dismiss their cases and refile them as single-defendant cases. 

And a lot of defendants are arguing that, because it started in the original action as a multi-defendant case, refiling it as a single-defendant case doesn’t change the fact that it was originally a multi-defendant case. 

Now that’s wrong because Carmichael says that the time that matters is the time of trial, not the time of filing. But it’s also wrong because in Carr v. Yim, the Court of Appeals emphasizes the Supreme Court’s older case law.

Darl: It’s an entirely new action.

Max: It’s a de novo action and it is not a continuation of the other actions. So Carr v. Yim, even though it does have the potential to take away a lot of fees, if you do a lot of work, dismiss, refile, it is great for defeating that argument from defendants.

Darl: So 2024 is on the horizon. One of the cases I’m watching—and I can’t remember the name of the case, apologies to my good friend John Hadden who handled it—has to do with: Where do you send the ante litem notice to when you’re dealing with a sheriff in a county? And I think that case will probably be decided soon.

Max: I think so. I haven’t followed that one closely. I followed the previous precedent about it. 

What’s interesting is I think that some justices like Nahmias—and obviously he’s not on the court anymore, so who knows what the current court will do. But there seems to be an opinion that maybe there’s not even a requirement for anti litem notice to the sheriff. Because they’re not even mentioned by an anti litem statute.

Darl: Right. Yeah. It’s this kind of weird gray area and we might get some clarity with that with the case that comes out in the future.

What are some other decisions that plaintiff’s lawyers in Georgia need to be on the lookout for over the next few weeks, months, and throughout 2024?

Max: Yeah, I think the most important one that we need to be on the lookout for, and it’s working through the courts in a couple of different cases, but the issue is whether Alston & Bird v. Hatcher applies when you start as a multiple-defendant case and dismiss down to a single-defendant case. 

That’s really important because we got an alternate holding in Georgia CVS v. Carmichael at the Court of Appeals that says what matters is the time of trial. That’s good for us. That means that we have single-defendant Hatcher cases if we get down to one defendant by the time of trial. 

But of course there’s a big push by the defense bar to undermine that, overturn that. Carmichael at the Supreme Court, they dropped a footnote explicitly saying, “We’re not deciding this issue one way or the other. It’s for another day. We don’t have to decide it here.” 

But how that’s playing out currently is interesting because in federal court there’s an order by Judge Jones in the Andrews v. Autoliv case where he says that he disagrees with the Court of Appeals’ opinion and thinks the Supreme Court would not follow it. 

And when a federal court is applying the Erie doctrine in a diversity case, they’re not bound by intermediate appellate court opinions. They’re only bound by Supreme Court opinions. And there’s kind of like a presumption that they’re immediate appellate court—

Darl: Sure, but they don’t have to follow it if they think it’s wrong.

Max: And so we have federal court opinions where they’re not applying Carmichael. And we have challenges to Carmichael where they’re trying to get it turned around, and those cases are going to come up. 

I think the argument that Carmichael is correct is very strong because the language in the statute—people say broad is past tense, but the actual operative term is broad, which is a present tense term. 

And of course it makes no sense because if it was when the action was filed, you could file against one defendant, add three defendants, and then you’re a multi-defendant case at trial even though it was originally a single-defendant case. So it doesn’t make sense the other way. It only makes sense for when it’s submitted to the fact finder, is it a single-defendant case?

Darl: A hundred percent, yeah. Any other issues, whether there are specific cases or just kind of general legal principles or issues that you think may get resolved or decided in 2024 that have been open questions?

Max: We could definitely get a decision on whether intentional misconduct is an exception that invalidates the cap and punitive damages.

Darl: Sure. So it could be a case right now at the trial court going to trial soon, and the attorneys make that argument, it could go up to the Court of Appeals and get a decision next year. Obviously, it would take longer to get to the Georgia Supreme Court and then get a decision.

Max: Well, actually no, because if the argument is that the statute capping punitive damages is unconstitutional, that’s within the exclusive jurisdiction of the Supreme Court, it would go straight to the Supreme Court.

Darl: We’ve covered some great ground today, Max. This has been very helpful. I hope that we’ve covered all the significant cases. 

There’s a lot of other cases, of course, that have come out that have importance. I mentioned a few times about the case that Judge Dillard wrote the opinion on about distinguishing punitive damages from 13-6-11 fees, and when you can collect those in different cases. 

There’s a lot of good Court of Appeals decisions that come out on a routine basis that do clarify the law, that talk about things. But these have been what I think are the most important decisions to come out in 2023. I think every lawyer really needs to be aware of them and understand their application of their practice. 

And I would encourage everybody to read the decision because each decision has multiple footnotes and reasoning. Then you can think of ways that you can apply these things to your cases that you have going on right now.

So thank you for joining us, Max. This has been awesome. 

This has been by far the longest podcast interview. I could probably talk for hours on these topics because it’s fascinating. But thank you for joining us.

Max: Thanks for having me.

Darl: Look forward to talking to you around the building in the weeks ahead as we talk about these cases. Some more.

Max: I’m excited.

Darl: Excellent.


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