Must The Jury Apportion? Appellate Court Says No…Sort Of…For Now
Georgia’s apportionment statute requires a jury, upon a party’s request, to apportion fault among all the bad actors responsible for an injury, whether or not those bad actors are actually parties to the case. O.C.G.A. § 51-12-33(b)&(c). So what happens when the jury declines to apportion any fault to an admitted bad actor, despite overwhelming evidence of his bad acts? That was the question that, at least, seemed to be before the Court of Appeals in the recently decided case of Goldstein, Garber & Salama, LLC v. J.B., Case No. A15A1491 (February 23, 2016).
In that case, a patient underwent dental surgery at Goldstein, Garber & Salama, LLC (“GGS”). GGS’s nurse-anesthetist, Paul Serdula, heavily sedated the patient and then, while she was unconscious, sexually assaulted and took lewd photographs of her. The patient sued GGS and Serdula (who eventually pled guilty to criminal sexual assault), but later dismissed Serdula from the case. At trial, GGS—then the lone defendant—asked the jury to apportion fault between it and Serdula, the admitted criminal wrongdoer. The jury awarded the patient $3.7 million dollars in damages and apportioned all of the damages to GGS and none to Serdula.
On appeal, GGS argued that it was entitled to a new trial because the verdict was contrary to the evidence and to principles of justice and equity. O.C.G.A. § 5-5-20, et seq. In short, GGS argued that, under the circumstances of its case, the law required the jury to apportion some fault to Serdula since he admitted that he engaged in the criminal sexual acts that gave rise to the patient’s claims.
Thus, the GGS case presented the appellate court with what seemed to be a clear question: does the apportionment statute require a jury to assign some fault to an obviously blameworthy party—in this case, Serdula? As the appellate court summarized, “[i]f it were clear that the jury” had ignored evidence of Serdula’s culpability, then the question would be whether, under O.C.G.A. § 51-12-33(c), “the jury was required not only to ‘consider the fault’ of ‘persons or entities’ not party to the action…..but also—at least where there is undisputed evidence of such fault—to reduce the liability of the named defendant by some amount.” Id.
But, the appellate court concluded, it was not so clear that the jury had ignored the evidence against Serdula. That’s because it was possible that “after considering Serdula’s fault and adjusting their award in light of that fault, [that] the jury intended to award [the patient] $3,700,000 from GGS and that—perhaps uncomfortable with the complexity of the procedure described in the[verdict] form—they expressed that intent in a way that ensured the judge would not further reduce the award, but that did not spell out their reasoning.” Id. Since such a conclusion (if it had been so arrived at) would not be legally erroneous, the appellate court allowed the verdict to stand. O.C.G.A. § 9-12-4 (“Verdicts shall have a reasonable intendment and shall receive a reasonable construction. They shall not be avoided unless from necessity.”).
The appellate court thus saved for another day the thorny question of whether Georgia’s apportionment statute compels a jury to assign fault to an admitted bad actor (and thereby reduce the liability of the named defendant(s)). Caught in the thicket, in the meantime, was GGS, against which a $3.7 million dollar verdict was upheld, with no fault assigned to the admitted sexual assaulter, Serdula, whose bad acts were the subject of the lawsuit.