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Simplifying Your Case: Cutting Loose Defendants and Apportionment

Georgia Institute of Continuing Legal Education

JURY TRIAL

January 12, 2018

Paul G. Phillips
Flynn & Phillips, LLC
517 West Broad Avenue
Albany, GA 31701

I. INTRODUCTION

Before 2005, Georgia followed the time-tested common-law rule of joint and several liability, and its many corollaries, such as contribution among joint tortfeasors, and set-off from judgments of amounts paid by settling co-defendants. In most personal injury actions with multiple joint tortfeasor defendants, any money paid to a plaintiff in a settlement with a defendant would be set-off, or subtracted by law from any verdict amount ultimately returned against the remaining defendants. The remaining defendants were not required to prove a settling defendant's liability, or present evidence regarding what percentage of any verdict amount should be allocated to any settling defendant, or other non-party. However, the remaining defendants were liable for the entire judgment jointly and severally. If the plaintiff was not partly responsible for the injury, joint tortfeasors were equally liable for the judgment, regardless of their relative degree of responsibility. Disputes about how much of the judgment should be paid by each defendant, and whether any non-parties should pay any portion of it were left for another day, in a separate action for contribution if necessary. These rules greatly influenced litigation planning and settlement considerations in cases involving multiple potentially liable entities.

In 2005, Georgia's apportionment statute changed all this. Over the twelve years since its enactment, Georgia appellate Courts have grappled with the meaning and application of this law, and have addressed and clarified many of its ambiguities. While questions remain, most of the central concepts have been fleshed-out, and applied in a variety of cases. Litigants now know largely what to expect, and must give serious consideration to their new burdens under apportionment. These include defendants' burden to prove the equivalent of a tort case against any non-parties (and current parties which may become non-parties) they intend to blame, and plaintiffs' burden to defend any such entities. These considerations are further complicated in cases where expert testimony is required, and both sides are required to identify and make available for deposition all of their expert witnesses well before trial. The apportionment statute creates difficult issues in discovery when parties and their witnesses must commit to positions about who failed to exercise reasonable care or breached a professional standard of care, and whose acts or omissions proximately caused the plaintiff's damages.

The replacement of traditional joint and several liability with apportionment certainly benefits the defense in several important ways, allowing a defendant to define and reduce its individual exposure, and shifting the risk of any uncollectible share of liability to the plaintiff. However, apportionment can also benefit the plaintiff. By shifting the burden to prove all of the necessary elements of legal liability of non-parties to the defendant, the apportionment statute often puts defendants in a difficult position when developing their cases in multi-defendant litigation, and provides plaintiffs with opportunities. Defendants can settle, or be dismissed on dispositive motions. A current defendant can suddenly become a non-party, shifting the burden of proving apportionment to it onto the remaining defendants. This presents significant tactical benefits to the plaintiff, which all parties must consider from the beginning of any multi-defendant case.

This paper will discuss the six Georgia appellate opinions published in 2017 which directly address the apportionment statute. It will also highlight some of the issues which arise from Georgia's apportionment law in multi-defendant litigation when plaintiffs seek to simplify their cases by settling with some but not all defendants.

II. THE STATUTE

Georgia's apportionment statute, O.C.G.A. § 51-12-33, reads as follows:

§ 51-12-33. Reduction and apportionment of award or bar of recovery according to percentage of fault of parties and nonparties

(a) Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.

(b) Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

(c) In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.

(d)

  1. Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault.
  2. The notice shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty's name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.

(e) Nothing in this Code section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly stated in this Code section.

(f)

  1. Assessments of percentages of fault of nonparties shall be used only in the determination of the percentage of fault of named parties.
  2. Where fault is assessed against nonparties pursuant to this Code section, findings of fault shall not subject any nonparty to liability in any action or be introduced as evidence of liability in any action.

(g) Notwithstanding the provisions of this Code section or any other provisions of law which might be construed to the contrary, the plaintiff shall not be entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages claimed.

O.C.G.A. § 51-12-33.

By its plain language, the apportionment statute mandates that in Georgia injury cases:

  1. The jury must decide the plaintiff's percentage of "fault," and the judge must reduce any verdict amount by this percentage. O.C.G.A. § 51-12-33 (a);
  2. If the plaintiff is 50 percent or more "responsible," plaintiff losses. O.C.G.A. § 51-12-33 (g);
  3. When there are multiple defendants, the jury must decide the percentage of "fault" of each defendant separately, and each defendant is only liable for its share (abolishing joint and several liability). O.C.G.A. § 51-12-33 (b);
  4. The jury must decide the percentage of "fault" of nonparties if:
    1. the non-party settled with the plaintiff, or if;
    2. a defendant gave proper notice of the non-party's "fault." O.C.G.A. § 51-12-33 (c) and (d).

This statutory language changed several bedrock legal concepts which had long been the law in Georgia, including joint and several liability, and the right of contribution between joint tortfeasors. In the twelve years since its enactment, Georgia appellate courts have addressed and clarified much of the apportionment statute. While some ambiguity remains, the basic framework and operation of the law is now mostly known, and parties can conduct litigation with a reasonable expectation of how it will be applied.

III. 2017 APPORTIONMENT CASES

Georgia Appellate Courts issued six opinions involving the apportionment statute in 2017. Their main apportionment holdings are summarized below:

Camelot Club Condo. Assoc. v. Afari-Opoku, 340 Ga. App. 618 (March 9, 2017). (Apportionment based on independent acts of negligence, not solely vicarious liability.)

After a man was murdered in the parking lot of his gated community, his surviving spouse sued the condominium complex and the security firm that it hired for negligently failing to keep the premises safe. The jury returned a $3,250,000 verdict, apportioning 25% to the defendant condominium complex, 25% to the defendant security firm, and 50% among three non-party assailants. The trial court entered judgment in the amount of $1,625,000 against the defendant condominium complex, which "constitute[d] the 25% fault the jury assigned to [it] plus the 25% fault the jury assigned to [the defendant security firm], and the amount of $812,500 against [the defendant security firm], representing the 25% fault the jury assigned to it."

The trial court's apparent rationale for adding the defendant security firm's apportioned share of the award to the defendant condominium complex's share was that the condominium complex was liable vicariously for the security firm's actions under OCGA § 51-2-5 (4), which imposes liability for an independent contractor's performance in connection with a statutory duty, such as the duty owed by a landowner to an invitee, and the apportionment statute does not apply to claims of vicarious liability in which the vicariously liable defendant committed no independently negligent act or omission. The condominium complex based this argument on PN Express, Inc. v. Zegel, 304 Ga. App. 672 (2010). In Zegel, the defendant trucking company argued for apportionment to a non-party which it alleged was the actual or statutory employer of the negligent driver. The trial court rejected this argument and the Court of Appeals affirmed, reasoning that unless independent acts of negligence are alleged against an employer, "a verdict exonerating the employee also exonerates the employer." Id. at 680. "Generally, where a party's liability is solely vicarious, that party and the actively-negligent tortfeasor are regarded as a single tortfeasor." Id. "Since the corporation's liability for the accident was purely vicarious in nature for the acts of [the driver] himself, rather than joint and several, it is obvious . . . that the comparative fault statute [does] not apply." (Citations omitted.) Id. The Court concluded, "other states have determined that comparative fault statutes do not apply where the defendant's liability is derivative, and we concur." Id.

In Camelot, the Court of Appeals reversed, holding that the trial court erred in imposing liability on the condominium complex for the security firm's share of fault. The Court reasoned that unlike in Zegel, where the defendant's alleged liability was only vicarious, the Camelot plaintiff had asserted claims for independent acts of negligence against both the security firm and the condominium complex. The Court found that the verdict form did not specify which of the plaintiff's claims its verdict was based upon. Because the jury's apportionment to the two defendants could have been based on independent acts of negligence by both, and not solely vicarious liability to either, the trial court erred by adding the defendant security firm's apportioned share of fault to the judgment against the condominium complex. The Court remanded for the trial court to enter judgment in accordance with the jury's apportionment percentages to each defendant.

Martin v. Six Flags Over Georgia II, 301 Ga. 323 (June 5, 2017). (Retrial on apportionment only.)

A man was attacked and seriously injured at a bus stop outside the Six Flags Over Georgia amusement park. He sued, alleging Six Flags was negligent for failing to keep its premises safe for invitees. The jury returned a $35 million verdict, and apportioned 92% to defendant Six Flags and 2% each against the four named defendant assailants. The trial court rejected Six Flags' request to apportion to several non-party individuals who were alleged to have been involved in the attack, apparently finding that since they had not been criminally convicted, the evidence was insufficient to permit apportionment against them.

The Court of Appeals reversed this holding, concluding that the trial court had imposed too high an evidentiary burden for apportionment to these non-parties, and holding that "because there was some evidence that [these non-parties] may have contributed to [Plaintiff's] injuries, the trial court erred by removing from the jury's consideration the issue of whether those individuals should be apportioned fault." Six Flags Over Georgia II, L.P. v. Martin, 335 Ga. App. 350, 365 (2015). It further held that Six Flags had preserved the issue for appeal only as to two individuals, both of whom were the subject of trial testimony supporting their involvement in the attack, and were specifically named by Six Flags in its appellate filings as having been improperly excluded from consideration for apportionment. After identifying this apportionment error, the Court of Appeals concluded that the jury's verdict was "infirm in its entirety" and ordered the judgment reversed and the case remanded for a full retrial.

The Georgia Supreme Court granted certiorari to determine (1) whether Six Flags could properly be held liable for the injuries inflicted in this attack; and (2) assuming liability was proper, whether the trial court's apportionment error did indeed require a full retrial. The Supreme Court answered the first question in the affirmative. Addressing the second question, it first noted that "[i]mplicit in the framing of this question" was the understanding "that the trial court did in fact commit error in declining Six Flags' request to submit to the jury the question of apportionment to non-parties." Martin v. Six Flags Over Georgia II, L.P., 301 Ga. 323, 336 (2017). Clearly, both reviewing courts agreed that Six Flags' had satisfied its burden to produce some evidence of the necessary elements of legal liability of non-parties, and apportionment to them should therefore have been allowed.

The Supreme Court then turned to the question of whether a full retrial, as ordered by the Court of Appeals, was necessary to correct this apportionment error. It first discussed the common-law principle that "where a judgment appealed from can be segregated, so that the correct portions can be separated from the erroneous, the court will not set aside the entire judgment, but only that portion which is erroneous." Id. at 338. Noting that this principle has been applied in a variety of circumstances, including retrials only as to whether plaintiff was contributorily negligent, and on damages only, the Court held that the principle "is readily adaptable to the apportionment context." Id. The Court held that the apportionment statute sets forth a sequence of distinct steps, and that "once liability has been established, the calculation of total damages sustained by the plaintiff is the first step, and the allocation of relative fault and award of damages according to that allocation is a distinct second step. There is no reason these two steps cannot be segregated for purposes of retrial." Id. at 338-339. The Court then analyzed whether Georgia law requires the same jury to decide these two distinct steps, concluding it does not, and holding "we reject the contention that the text of the statute requires a single trier of fact to make the determination of liability, damages sustained, and apportionment." Id. at 339. "Accordingly, relative fault among tortfeasors will not in all cases be 'inextricably joined' with the issues of liability and damages so as to preclude a retrial on apportionment only." Id. In its core holding, the Supreme Court stated that "in the ordinary case, the issue of apportionment among tortfeasors will be sufficiently distinct from the issue of liability and calculation of damages that the correction of an error in apportionment will not require a full retrial." Id. at 341.

Hosp. Auth. v. Fender, 342 Ga. App. 13 (June 23, 2017). (Respondeat Superior Rule not superseded by the apportionment statute.)

A patient and his wife brought this medical malpractice action against a hospital and medical providers alleging that the negligent performance and interpretation of a carotid artery ultrasound study resulted in the patient suffering a stroke and brain damage. The hospital moved for summary judgment on the plaintiffs' claims against it for the negligent hiring, training, supervision, and retention of its employed sonographer who performed the study, contending that the plaintiffs were limited to pursuing a claim against it based on respondeat superior. The trial court denied this motion, and the hospital appealed.

The hospital argued that because it conceded it employed the sonographer and respondeat superior applied, and the plaintiffs had not asserted a claim for punitive damages, it was entitled to summary judgment on the plaintiffs' claims of negligent hiring, training, supervision, and retention based on the "Respondeat Superior Rule." The plaintiffs argued that the Respondeat Superior Rule has been superseded by Georgia's apportionment statute, citing Little v. McClure, 2014 U.S. Dist. LEXIS 120681. In Little, the United States District Court for the Middle District of Georgia held that Georgia's apportionment statute superseded the Respondeat Superior Rule, reasoning that "[b]ecause the jury must apportion separate percentages of damages to each party at fault [under OCGA § 51-12-33 (b)], the employer's liability will no longer necessarily be coextensive with the employee's simply because respondeat superior applies." Id. at 8.

The Court of Appeals disagreed with the plaintiffs, and reversed the trial court's denial of summary judgment on this issue, holding,

Given that we have held that the apportionment statute does not apply to claims based on respondeat superior liability, see PN Express, 304 Ga. App. at 680 (5), we discern no basis for applying the statute to the merely duplicative claims of negligent hiring, training, supervision, and retention. Accordingly, the plaintiffs' argument based on the apportionment statute is misplaced, and summary judgment should have been granted to [the hospital] on the plaintiffs' negligent hiring, training, supervision, and retention claims based on the Respondeat Superior Rule.

Hosp. Auth. v. Fender, 342 Ga. App. 13, 23 (2017).

In a footnote, the Court commented that "without specifically considering or addressing this issue, our courts have continued to apply the Respondeat Superior Rule even after the passage of the current version of the apportionment statute, which was enacted as part of the Tort Reform Act of 2005." Id., footnote 3. In the next footnote, the Court acknowledged that "the federal district court in Little v. McClure, ... held that Georgia's apportionment statute superseded the Respondeat Superior Rule. But as a state appellate court, we are not bound by the decisions of the federal district courts. To the contrary and as a general matter, this Court adopts such federal decisions only when they are not in conflict with our own legal precedent." (Citations omitted.) Id., footnote 4. Certainly, reasonable minds and courts differ on the logical results of blending the apportionment statute, which requires consideration of all defendants' direct negligence, with the Respondeat Superior Rule, under which the direct negligence of a defendant is ignored if it admits a respondeat superior employer relationship with another defendant.

City of Kingsland v. Grantham, 342 Ga. App. 696 (September 6, 2017). (Respondeat Superior Rule not superseded by the apportionment statute.)

A woman was injured in an automobile wreck with a city police car being driven by an officer. She sued, asserting claims against the officer for negligence, and against the city for negligent training, negligent supervision, negligent entrustment, and respondeat superior. The city moved for partial judgment on the pleadings, arguing that the claims for negligent training, negligent supervision, and negligent entrustment should be dismissed as redundant because they sought recovery that is duplicative of that sought under respondeat superior. This motion was denied, and the city appealed.

On appeal, the Plaintiff argued that these claims should not be dismissed because the city's liability could differ from the officer's under the apportionment statute. Citing Little, the plaintiff argued that "in the wake of Georgia's abolishment of joint and several liability through the enactment of the apportionment statute, OCGA § 51-12-33 (b), the Respondeat Superior Rule is no longer applicable." City of Kingsland v. Grantham, 342 Ga. App. 696, 698 (2017). The Court of Appeals acknowledged the holding in Little, but pointed-out:

...in Schreckengast v. Carollo, No. CV-416-038, 2017 U.S. Dist. LEXIS 96649, 2017 WL 2702543 (S.D. Ga., decided June 22, 2017), the United States District Court for the Southern District of Georgia declined to extend the holding in Little, supra, and found that the plaintiffs' negligent hiring claim was redundant to the plaintiffs' claim for respondeat superior in that case. Id., 2017 U.S. Dist. LEXIS 96649, at *5, [WL] at *2-*3 (II) [**119] (A). Accord Downer v. Boyer, No. 1:15-CV-3734-TWT, 2017 U.S. Dist. LEXIS 42028, *4, 2017 WL 1093167, *2 (III) (N.D. Ga., decided March 23, 2017) ("Under Georgia law, respondeat superior and negligent hiring, training, and supervision are mutually exclusive theories of liability").

Id. at 699.

As in Fender, the Court noted that it was not bound by the decisions of the federal district courts, and that "as a general matter, this Court adopts such federal decisions only when they are not in conflict with our own legal precedent." Id. Citing Fender for the proposition that the Respondeat Superior Rule has not been nullified by the apportionment statute, the Court concluded that claims based on respondeat superior and claims based upon negligent hiring, supervision, and retention of an employee are both "derivative of the underlying tortious conduct of the employee," and are therefore duplicative. The Court therefore reversed, ruling that the plaintiff's in light of respondeat superior liability, the plaintiff's claims for negligent training, negligent supervision, and negligent entrustment should be dismissed as redundant. Again, the soundness of this holding seems shaky since the apportionment statute requires apportionment "among the persons who are liable according to the percentage of fault of each person." Certainly, an employer who knowingly hires a dangerous employee, then trains and supervises him carelessly, could reasonably be considered to be at least partially at "fault" for a wreck he causes. Such direct negligence by an employer would no longer appear to be "coextensive" or "redundant" as under our former joint and several liability system. Unfortunately, the Court of Appeals in Grantham did not provide any deeper analysis of this issue.

Demere Marsh Assocs., LLC v. Boatright Roofing & Gen. Contr., 343 Ga. App. 235 (October 19, 2017). (Apportionment to a defendant dismissed on summary judgment.)

A condominium association sued a developer, general contractor, roofing subcontractor, and vinyl-siding contractor alleging negligent construction, misrepresentation, and breach of contract in the construction of a condominium project. The developer and general contractor filed a cross-claim against the roofing subcontractor for indemnity and/or contribution and a notice of apportionment, identifying the roofing subcontractor as an entity to which they intended to seek apportionment. The roofing subcontractor later moved for summary judgment based on the statute of limitation. The court granted the motion, and entered judgment in favor of the roofing subcontractor. The developer and general contractor appealed, arguing that this "full and final judgment" potentially impacted their cross-claims for contribution and indemnity against the roofing subcontractor as well as their rights of apportionment.

The apportionment statute clearly allows a defendant to apportion fault to a non-party former defendant which "entered into a settlement agreement," upon proper notice. In this case, the developer and general contractor pointed-out that the roofing subcontractor did not enter into a settlement agreement, and they therefore sought clarification in light of the lack of Georgia law under these circumstances. Certainly, one interpretation of the apportionment statute would be that the jury could not apportion fault to the now non-party roofing subcontractor without proper notice from the remaining defendants since it was not a settling defendant. On the other hand, Georgia's appellate courts have repeatedly held that a jury may apportion fault to any entity which has breached a legal duty, and proximately caused a plaintiff's injury, regardless of whether that entity has complete immunity or some other affirmative defense. Based on these holdings, it seems that apportionment should be allowed to a defendant who prevails on summary judgment based on the statute of limitation if that defendant is still at "fault" by breaching a legal duty which proximately caused a plaintiff's injury. However, the remaining defendants apparently must give proper notice of their intent to apportion to the former defendant. Litigators should consider the timing problems this presents when summary judgment is granted less than 120 days prior to trial.

The Court of Appeals did not shed light on these issues, and simply affirmed the trial court's grant of summary judgment in favor of the roofing subcontractor based on the statute of limitation, holding, "we decline appellants' invitation to issue an advisory opinion on whether the entry of a 'full and final judgment' in favor of the roofing subcontractor impacts appellants' claims of contribution and indemnity, and their right of apportionment." Demere Marsh Assocs., LLC v. Boatright Roofing & Gen. Contr., 343 Ga. App. 235, 249 (2017).

Robles v. Yugueros, 2017 Ga. App. LEXIS 503 (October 26, 2017). (Can the jury be told non-parties will not have to pay?)

A plastic surgery patient experienced post-operative abdominal pain, and returned to the plastic surgeon and others for additional care, but later died. The patient's surviving spouse sued the plastic surgeon and medical group, alleging medical malpractice in the treatment of his wife's post-operative complications. The defendants identified several non-party medical providers to which they intended to apportion fault. During closing arguments, the plaintiff's attorney began to tell the jury that these nonparties would not have to pay any portion of a damages award the jury apportioned to them. Defense counsel objected. Outside the jury's presence, defense counsel argued that it was improper to tell the jury that nonparties are not responsible to pay any portion of a damages award. Agreeing, the trial court sustained the objection. The jury returned a defense verdict.

On appeal, the plaintiff argued that the trial court erred by truncating that part of his closing argument that would have explained the monetary effects of apportionment. The Court of Appeals disagreed, holding that "because it was unnecessary for the jury to consider that the nonparties would have no responsibility to pay any damages awarded, the trial court did not err in curtailing the cited portion of the closing argument." The Court explained that under Georgia law, "a trial court is authorized to require counsel to eliminate from argument a reference to matters which are unnecessary for the jury to consider." (Citations omitted.) Robles v. Yugueros, 2017 Ga. App. LEXIS 503, 24 (2017).

IV. APPORTIONMENT ISSUES IN MULTI-DEFENDANT CASES

As anyone who has ever watched a trial knows, a simpler plaintiff's case is usually a better plaintiff's case. However, under apportionment, plaintiffs are forced to name as defendants all persons and entities bearing any fault for their damages, or risk some percentage of their hard-won verdict being subtracted from the final judgment. This often results in multi-defendant litigation with more complexity and expense in discovery, and less efficiency and effectiveness for the plaintiff at trial. When plaintiffs seek to simplify their cases by settling with some but not all defendants, the apportionment statute raises issues that may not be obvious from the statute itself. Several of these issues are highlighted below.

A) Swapping Burdens

In order to apportion to a non-party, a defendant must prove the non-party committed a "breach of a legal duty in the nature of tort that is owed for the protection of the plaintiff, the breach of which is a proximate cause of his injury." Zaldivar v. Prickett, 297 Ga. 589, 595 (2015). The standard for proving nonparty fault at trial is by preponderance of the evidence. See, Brown v. Tucker, 337 Ga. App. 704, 717 (2016). This is the same burden a plaintiff would bear if the non-party was a defendant. So, when a plaintiff settles with a defendant, the remaining defendants seeking to apportion to the settling defendant (now non-party) effectively assume the plaintiff's position against it, and the plaintiff becomes its defender. Similarly, when a plaintiff adds a new defendant, the burden shifts from the existing defendants proving a the equivalent of a tort case against a non-party, to the plaintiff proving the same case against the same entity as a new defendant. This framework under the apportionment statute creates a number of significant issues for attorneys to consider.

B) Swapping Experts.

For example, in professional liability cases, and other cases in which experts are required, special consideration should be given to expert identification and deposition in light of settlement possibilities. From the plaintiff's perspective, it has always been counter-productive to locate, prepare, pay, and have an expert deposed, establishing important points against a defendant, if the plaintiff anticipates settling with that defendant. This was of course true before apportionment, but it is especially true now, since this expert testimony will be as useful to the remaining defendants in meeting their burden to apportion to the settling defendant as it was to the plaintiff in the action against the settling defendant. On the other side of this coin, by deposing a defendant's experts before settling with that defendant, a plaintiff can acquire testimony necessary to defend the remaining defendants' apportionment claim against the settling defendant. It is also important to remember that experts must be properly identified by any party wishing to use their testimony at trial. Deposition testimony from a qualified expert can be read, but consideration should also be given in settlement negotiations to whether a settling defendant will cooperate in making its experts available to be called live by the plaintiff.

C) Deposition Issues.

Assume an expert is identified by a medical malpractice plaintiff as having standard of care opinions against one of several defendants. The expert is deposed, and testifies as to his necessary qualifications, the proper basis for his opinions, and his opinions themselves. The plaintiff later settles with the defendant this expert criticized. The remaining defendants designate his testimony to be read at trial. Their failure to earlier identify this expert is probably not a valid ground for objection, since the rationale behind requiring prior identification is to give the other side an opportunity to discover the expert's opinions and the basis for them. What if portions of the designated testimony were in response to leading questions? What if objections to the form of the question were not reserved, and no objections were made?

D) Admissions.

The Court of Appeals has held that with respect to apportionment, "the plaintiff's own evidence may create questions of fact that preclude a directed verdict." (Citations omitted) Double View Ventures, LLC v. Polite, 326 Ga. App. 555, 560 (2014). The Georgia Supreme Court has also held that a defending party may use a plaintiff's complaint to create a question of fact as to the fault of nonparties. See Georgia-Pacific, LLC v. Fields, 293 Ga. 499 (2013). In Fields, the plaintiff filed suit against numerous asbestos companies, alleging that she contracted mesothelioma as a result of exposure to asbestos from various sources. After settling with a number of the defendants, the plaintiff amended her complaint to exclude allegations against the settling defendants. The plaintiff then moved for summary judgment on the issue of apportionment to the settling defendants. The trial court granted the motion, and the Court of Appeals affirmed, holding in part, that the unverified allegations in the plaintiffs' original complaint were not sufficient to defeat summary judgment. See Union Carbide Corp. v. Fields, 315 Ga. App. 554, 562 (2012).

The Supreme Court reversed, holding that the defendants could rely on "admissions and allegations" against the nonparties made the original complaint to defeat summary judgment. Citing O.C.G.A. § 24-8-821, the Court held that "admissions or allegations appearing in the pleadings are treated as admissions in judicio and, if not withdrawn, are conclusive of the facts contained therein. Georgia-Pacific, LLC v. Fields, 293 Ga. 499, 501 (2013).

Plaintiff's should be aware that statements of fact made in their pleadings related to the fault of a later settling defendant will be available for use by other defendants to support apportionment. Even if withdrawn, a party's statements of fact in a pleading are still likely to be treated as admissible evidentiary admissions.

E) Timing of Settlement.

Plaintiffs should also consider the timing of settlement with some but not all defendants. Co-defendants frequently rely on each other in preparing different portions of the general defense case, and often fail to prepare any case against each other. Plaintiffs can gain a significant advantage on the remaining defendant with respect to apportionment by settling with its co-defendants shortly before trial, particularly if the remaining defendant has not taken the lead in trial preparation, and has not developed evidence, or identified experts to establish the necessary elements of legal liability against all entities which are non-parties at the time of trial, including former defendants.

Defendants should be equally aware of this dilemma. While it may be comforting for co-defendants to share trial preparation responsibilities, refrain from criticizing each-other, and generally hold hands during discovery, this approach may leave them unprepared for apportionment when other defendants settle late in the process.

F) Attacking Apportionment.

Plaintiffs often have the choice of seeking summary judgment on a defendant's apportionment claim, or waiting, and moving for directed verdict on it at trial. While waiting may seem the riskier choice, it does provide certain advantages to the plaintiff. A defendant's standard for proving nonparty fault at trial is by preponderance of the evidence. See Brown v. Tucker, 337 Ga. App. 704, 715 (2016). The relaxed "rational basis" test appears to apply only at summary judgment to determine whether nonparty fault can even be considered by the jury. In addition, if summary judgment is granted to a plaintiff as to the fault of a nonparty, the order is probably subject to direct appea1 pursuant to 0.C.G.A. § 9-11-56(h). Finally, a motion for summary judgment provides the defendant with a roadmap for the steps to correct its evidentiary deficiencies, and at least 30 days to perform these steps.

V. CONCLUSION

Georgia's apportionment statute altered several bedrock legal principles central to settlement considerations in multi-party litigation, including joint and several liability, and contribution among joint tortfeasors. The apportionment statute effects the way cases are planned and conducted by both sides, including how and when settlements are reached, and how burdens shift when settlements occur. It continues to be interpreted by Georgia's appellate courts, and applied by litigators daily. Which side it benefits in any given case depends in large part on which side better understands its application and plans proactively.