Skip to content

Oral Argument Recap – Atlanta Oculoplastic Surgery v. Nestlehutt

September 15, 2009

This morning, the Supreme Court took up the case of Betty Nestlehutt, a woman who received a jury verdict of $1.165 million after her medical malpractice case went to trial.  The total award was reduced to $465,000 after Georgia’s caps on noneconomic damages (a maximum of $350,000) were factored in.  Fulton County Superior Court Judge Diane Bessen ruled the caps, a signature part of the Georgia Tort Reform effort (also known as Senate Bill 3), unconstitutional and entered the full award.

The oral argument at the Court was marked by the surprising lack of questions from the Court (a total of only 16 over the 40 minutes of argument).  While the discussion also delved deep into the minutiae of whether certain causes of action originated with common law or statute, the main issue remained clear: can the legislature require a trial court judge to reduce damages in cases of harm to an individual?  This is a lengthy summary, but hopefully a helpful one, for a key case in the Court’s term:

Atlanta Oculoplastic Surgery was represented by Jonathan Peters and former Georgia Supreme Court Justice Normal Fletcher.  Peters noted that he was defending a law not many lawyers and judges like.  He also noted there was a dearth of law on this subject, which he said could mean two things – either the law was so obscure as to be off the map, or it was so obvious that it did not require many decisions.  He contends the latter is the reason for the lack of case law in this area.

The trial court rejected the caps on noneconomic damages on two grounds: (1) violation of the right to jury trial provisions of the Georgia Constitution, and (2) violation of the Equal Protection provisions of the Georgia Constitution.  Peters argued the Constitution and the Supreme Court have traditionally granted wide latitude to the legislature to change the right to jury trial with a changing society, as long as they do not remove it.

The Court explored the limits on punitive damages it upheld, and whether the right to jury trial would be considered a hollow right under the appellant’s interpretation.  One of the key questions came from the Court to both sides: could the legislature eliminate all noneconomic damages if it chose to do so?  Peters sidestepped the question, by arguing the that this limitation should be considered in the context of the legislative history, which found that the average noneconomic award was $250,000.  Peters also argued that the equal protection argument had no merit, because the Georgia Equal Protection clause is the same as the federal Equal Protection clause.

Michael Terry argued for the appellees, Mr. and Mrs. Nestlehutt.  Terry argued that the legislature invaded the exclusive province of the jury to set awards and the exclusive province of the trial court to review awards when it imposed the $350,000 cap on noneconomic damages.  Courts have traditionally held that only the “enlightened conscience” of the jury can determine pain and suffering damages, and that finding of the jury can only be disturbed by the judiciary.

Justice Nahmias asked specifically for authority that damages cannot be restrained by some prior rule.  Terry cited a number of cases saying the jury determines damages, and said the only way the jury finding could be altered was by a court’s review.  Terry distinguished the Court’s allowing limits on punitive damages by saying punitive damage findings by the jury are advisory to the trial court, they are quasi-fines, and are a windfall to an otherwise-compensated plaintiff, unlike noneconomic damages.  Justice Nahmias appeared to dismiss these as good “policy arguments,” and also raised the right of a defendant to a jury trial, questioning whether treble damages or additional interest limited that right.

Terry argued that treble damages are limited only to statutory causes of action, and are still related to the jury award, because they are based on the award.  Asked by Justice Carley on the question of whether the legislature can eliminate noneconomic damages completely, Terry agreed, saying that is exactly what the appellant argued in its brief, in essence providing the basis for the legislature to eliminate any common law claim and stop the civil justice system if it chose to do so.

Terry closed by arguing the caps constitute a blatant violation of the separation of powers and the power of a court to grant a new trial.  He also argued the right of remittitur (reduction of a jury verdict by a judge) was not granted by the  legislature, but predated the first Code in Georgia.

Justice Nahmias explored one other area, questioning whether the worker’s compensation system and no-fault insurance allowed for “rationing justice.”  Terry argued that the trade-off was always to an individual – a faster resolution of their case – and that the legislature could not give the quid pro quo to society at large.

In rebuttal, former Chief Justice Fletcher said that no case law says the legislature can place no limit on damages.  He also cited case law related specifically to the creation of remittitur in statute, and hesitation by courts to use the power before given the statutory right.  The former Chief closed by saying the Court would open Pandora’s box if they declared the caps unconstitutional.


Comments are closed.

%d bloggers like this: