Full Text of Brief

SUPREME COURT OF GEORGIA

Case Number S25G0132

The Medical Center of Central Georgia, Inc., et al.,

Appellants

— versus —

Norkesia Turner, et al.,

Appellees

Brief of Clinton Crawford

As Amicus Curiae in Support of Appellees

Daniel E. Holloway

Georgia Bar No. 658026

DEH Law

2062 Promise Road

Rapid City, SD 57701

404-670-6227

dan@dehlegal.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES 4

IDENTITY AND INTEREST OF AMICUS CURIAE 7

ARGUMENT 9

1. The Nestlehutt framework should be applied to the operative Constitution. So the damages cap is unconstitutional, because wrongful death claims existed in 1983. 9

2. Even if the law in 1798 anchors our right to a jury, the cap is unconstitutional because the supposed bar on wrongful death claims was not part of Georgia law in 1798. 14

2.1. The supposed common-law bar derives from the 1808 English decision in Baker v. Bolton. The bar did not exist in English or Georgia law as of 1798. 16

2.1.1. Baker v. Bolton was ipse dixit and did not state the law as it existed in 1798. 17

2.1.2. Before Baker v. Bolton, English law suspended but did not bar wrongful death claims, pursuant to the “felony merger” rule. 22

2.1.3. Georgia never incorporated the felony-merger rule, so even the common-law suspension of wrongful death claims did not apply in Georgia. 24

2.1.4. Early American decisions show there was no bar on wrongful death claims. 25

2.1.5. Shields v. Yonge (Ga. 1854) unnecessarily discussed the felony-merger rule but nonetheless held — under common-law principles — that wrongful death claims were not barred if the tortious conduct was not a felony. 27

2.2. The supposed bar on wrongful death claims gains no support from the maxim actio personalis moritur cum persona, because Georgia’s adoption of the non-abatement act in 1789 abrogated the maxim. 29

3. If the Court considers questions beyond the one in the certiorari order, the Court should allow full briefing on them. 32

3.1. Nestlehutt was correctly decided: The right to a jury trial is a substantive right, not an empty right to a sham procedure. 32

3.2. The damages cap violates the equal-protection clause: The legislature addresses a society-wide interest, creates a subsidy for insurance costs to serve that general interest, but perversely forces the victims & their families to fund the subsidy alone. 33

3.3. The damages cap creates an unconstitutional taking of property: A civil claim is a protected property interest. Under the caps statute, the jury fixes the value of the property, and then the legislature orders the judge to confiscate it and transfer it from victims and their families to tortfeasors. 35

CONCLUSION 35

CERTIFICATE OF SERVICE 37

TABLE OF AUTHORITIES

Constitution & Statutes

2005 Ga. ALS 1; 2005 Ga. Act 1; 2005 Ga. SB 3 32

Cobb’s 1851 Digest at 476, § 83 26

Georgia Constitution (1983) Art. I, § 1, ¶ XI 11

Georgia Constitution (1983) Art. XI, § 1, ¶ II 7, 12

Georgia Constitution (1983) Art. XI, § 1, ¶ VI 7, 12

Lord Campbell’s Act (1846) 15, 18

Watkins 1800 Digest, pg. 289-90. 14, 23

Cases

Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731 (2010) 8

Baker v. Bolton, 170 Eng. Rep. 1033 (1808) 15, passim

Bibbs v. Toyota, 304 Ga. 68 (2018) 27

Higgins v. Butcher, 80 Eng. Rep. 61 (1607) 21

Jones v. Perry, 2 Esp. 482. 22

Osborn v. Gillett, LR 8 Exch 88, 99 (1873) 17

Shields v. Yonge, 15 Ga. 349 (1854) 26-27

Sullivan v. Union Pacific, 23 F. Cas. 368 (Cir. Ct. Nebraska 1874) 17

Taylor v. Devereux Foundation, 316 Ga. 44 (2023) 7

Other

‘Espinasse, Isaac. Reports of Cases Argued and Ruled at Nisi Prius: In the Courts of King’s Bench and Common Pleas, 1793-1807. UK: n.p., 1799. 22

Anstie, James., Charles, Arthur., Bulwer, James Redfoord. The Law Reports. Court of Exchequer: From Michaelmas Term, 1865, to Trinity Term, 1875. UK: T. and J. W. Johnson, 1873. 17

Baron Campbell, John Campbell, Campbell, John. Reports of Cases Determined at Nisi Prius, in the Courts of King's Bench and Common Pleas, and on the Home Circuit .... United Kingdom: Saunders and Benning, 1809, pg. 493 16

Blackstone, William. Commentaries on the Laws of England, Book 3. UK: Clarendon Press, 1768. 14

Bryan, Michael. “Early English law reporting.” University of Melbourne Collections 4 (2009): 45-50 16

Daniel, William Thomas Shave. The History and Origin of the Law Reports: Together with a Compilation of Various Documents Shewing the Progress and Result of Proceedings Taken for Their Establishment. And the Condition of the Reports on the 31st December, 1883. Germany: W. Clowes, 1884. 16

Department of Health and Human Services Office of Inspector General, “Adverse Events in Hospitals: A Quarter of Medicare Patients Experienced Harm in October 2018.”. 33

Goudy, Henry. “Two Ancient Brocards” in Vinogradoff, Paul, ed. Essays in legal history read before the International Congress of Historical Studies held in London in 1913. Oxford University Press, 1913 28-29

Gray, Anthony, “Barclay v Penberthy, the Rule in Baker v Bolton and the Action for Loss of Services: A New Recipe Required,” Monash U Law Rw 35; (2014) 40(3). 18

Jefferson, Thomas. The Works of Thomas Jefferson: Published by Order of Congress from the Original Manuscripts Deposited in the Department of State. US: Townsend Mac Coun, 1884, pg. 103-06. 10-11

Mason, Malcolm S., “Civil Liability at Common Law for Wrongful Death” (July 9, 2009). Available at SSRN: https://ssrn.com/abstract=1431922. 19

Nolan, Donal. “The Fatal Accidents Act 1846.” Tort Law and the Legislature (Hart 2012) (2012): 131-157. 20

Parliamentary Papers: Bills, Public, Vol. II. UK: H.M. Stationery Office, 1846, 18 May 1846. 18

Peters, Philip G. “Twenty years of evidence on the outcomes of malpractice claims.” Clinical orthopaedics and related research 467 (2009): 352-357. 33

Pollock, Frederick. The Law of Torts: A Treatise on the Principles of Obligations Arising from Civil Wrongs in the Common Law, Fourth Ed. UK: Stevens, 1895 29

Radzinowicz, Leon. A history of English criminal law and its administration from 1750: The movement for reform, 1750-1833. London: Stevens & Sons. (1948) 21

Records of the Court of Assistants of the Colony of the Massachusetts Bay, 1630-1692. United States: AMS Press, 1973 24-25

Root, Jesse. Reports of Cases Adjudged in the Superior Court and Supreme Court of Errors. United States: Hudson and Goodwin, 1802 25

T. A. Smedley, “Wrongful Death-Bases of the Common Law Rules,” 13 Vanderbilt Law Review 605 (1960). 18

The Public Records of the Colony of Connecticut [1636-1776]. US: Brown & Parsons, 1850. 24

W. S. Holdsworth, “Origin of the Rule in Baker v. Bolton,” Law Quarterly Review 32, no. 4 (1916): 431-437 19, 24

IDENTITY AND INTEREST OF AMICUS CURIAE

Clinton Crawford is the plaintiff in a wrongful-death medical malpractice case pending in Richmond County State Court (Crawford v. Piedmont Healthcare, Inc., et al., File No. 2024 RCSC 00591). This Court’s decision in the present case will directly impact Mr. Crawford.

INTRODUCTION

Two years ago, in Taylor v. Devereux Foundation, 316 Ga. 44 (2023), this Court noted a “mystery” in need of a solution: Georgia’s Constitution was ratified by the People in 1983. It repealed all previous constitutions. Art. XI, § 1, ¶ VI. The Constitution provided that “All laws in force and effect on June 30, 1983, not inconsistent with this Constitution shall remain in force and effect” subject to amendment, etc. Id., ¶ II. Despite this, Georgia courts have continued to look to Georgia’s 1798 Constitution as the anchor for certain rights, including the right to jury. There is no apparent reason to confine the rights adopted by the People in 1983 to those adopted two centuries earlier in a very different moral and legal world. No one has offered a reason to do so — not even the Appellants or their amici here, even though Taylor teed the issue up and the certiorari order specifically referenced Taylor.

The People in 1983 had no less autonomy or moral authority than their counterparts two centuries prior. Indeed, the 1983 Constitution was ratified by a far broader section of the People than was the 1798 Constitution. The 1983 Constitution should be taken on its own, without being constrained by the more limited rights embodied in a repealed constitution.

If the Court looks to the governing Constitution to define the right to a jury trial, then by the framework laid out in the Court’s unanimous opinion in Division 2 of Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731 (2010), the right to a jury trial applies to wrongful death damages, and the statutory cap on such damages is unconstitutional for the reasons stated in Nestlehutt. And the answer to the Court’s question in the order granting certiorari is: Yes, the Court of Appeals in this case correctly applied this Court’s decision in Nestlehutt. That should end the matter.

However, even if the anchoring year for our rights is 1798, the Court of Appeals still applied Nestlehutt correctly. Even in that case, the Nestlehutt framework would still lead to the conclusion that the caps statute is unconstitutional as applied to wrongful death damages. The appellants and their amici premise their argument on the idea that wrongful death damages were not available as of 1798. Who can blame them? For over a century we have all thought — at least all of us who are not legal historians have thought — that wrongful death damages were unavailable at common law. But that’s wrong. We discuss below.

Finally, if the Court expands the scope of its review beyond the single question in the order granting certiorari, we ask the Court to permit supplemental briefing. Without briefing them, we outline the additional issues we believe should be included if the Court expands its review.

ARGUMENT

1. The Nestlehutt framework should be applied to the operative Constitution. So the damages cap is unconstitutional, because wrongful death claims existed in 1983.

The original intention and meaning of the 1983 Constitution was to repeal all previous constitutions. Art. XI, § 1, ¶ VI. And to preserve all laws then in force, subject to ordinary legislative action concerning them. Id., ¶ VI. At that time, the right to a jury trial applied to wrongful death claims. So when the Constitution said, “The right to trial by jury shall remain inviolate,” that could only mean the jury-trial right that then existed.

For purposes of Constitutional law today, the founding generation is the generation of Georgia citizens in 1983. The original meaning of the 1983 Constitution cannot be disregarded or exchanged in preference for a prior constitution except by abandoning bedrock principles.

Unless we dispute the foundational principle of our government — that sovereignty resides in the People — the People in 1983 had the power to create their own Constitution free of the limits of prior centuries. Unless we revert to the ideologies of ancient monarchies, tyrannies, theocracies, etc., there is no argument for shackling the People, circa 1983, to the limited conception of human dignity and rights that prevailed circa 1798 — a time when women could not vote (much less sit as judges) and human slavery was enshrined in law.

The very purpose of a Constitutional right is to limit the power of state actors, including the legislature, to abrogate the right. The proponents of the caps statute say the caps are needed in order to serve a great public good. If so, they may convince the People to amend the Constitution. The Constitution provides a process for that, see Art. X, and the People of Georgia have been willing to amend their constitutions many times. But it is the People through the amendment process who must do so — not the legislature. Just as it would violate the separation of powers for this Court to deny the legislature its rightful authority, so it would violate the separation of powers for the legislature to exercise power that is reserved to the People through the amendment process.

———

There are two arguments — or rather, one argument and one sentiment — that might support limiting the People of 1983 to the rights recognized in 1798. Neither suffice.

The sentiment is the proper but complicated respect we have for the Revolutionary Generation. That Generation stood at a great inflection point in history and accomplished enormous good. And yet they were human, subject to the virtues and vices common to the species. Honor for the Revolutionary Generation does not justify limiting the People who ratified the 1983 Constitution to the rights recognized two centuries earlier.

The Founding Generation itself would not have it so. In 1789, Thomas Jefferson wrote to Madison from Paris and discussed the legitimacy problem when the hand of the past weighs too heavily on the living. Jefferson argued (impractically, perhaps) that constitutions should be renewed with every generation:

The question, whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water. Yet it is a question of such consequences as not only to merit decision, but place also among the fundamental principles of every government. … [T]he earth belongs in usufruct to the living; [] the dead have neither powers nor rights over it. … [N]o society can make a perpetual constitution, or even a perpetual law. … The constitution and the laws of their predecessors are extinguished then, in their natural course, with those whose will gave them being. … Every constitution, then, and every law, naturally expires at the end of thirty-four years. If it be enforced longer, it is an act of force, and not of right.

As it happens, though, Georgia recently did renew its Constitution much as Jefferson urged. In any event, the Revolutionary Generation itself — or at least its greatest lights — would have acknowledged that their own sensibilities did not constrain the People of Georgia two hundred years later. Honor for the Founders neither requires nor justifies constraining the People of 1983 to the rights recognized in 1798.

Feelings aside, the only argument for limiting the jury-trial right in the 1983 Constitution to the right circa 1798 is a strained lexical argument. The 1983 Constitution says “The right to trial by jury shall remain inviolate….” Art. I, § 1, ¶ XI. The word “remain” refers to a pre-existing right to jury trials. Since the Constitution was enacted in 1983, it seems obvious that the jury-trial right that “remains” is the one that existed in 1983 — not the right that existed in Rome under Nero, in France under Charlemagne, or in Georgia under the slavery-era constitutions. That is confirmed by the final provision of the 1983 Constitution, that “except as otherwise provided in this Constitution, all previous Constitutions and all amendments thereto shall thereupon stand repealed.” Art. XI, § 1, ¶ VI. The salience of the jury-trial right as of 1983 is further confirmed by the Constitution’s provision that, “All laws in force and effect on June 30, 1983, not inconsistent with this Constitution shall remain in force and effect….” Art. XI, § 1, ¶ II.

Nonetheless, a motivated advocate might argue that several of Georgia’s constitutions contain the “remain inviolate” language — and therefore, somehow, the train of “remain inviolate[s]” anchors the jury-trial right to the earliest link in the chain of such phrases. The argument does not bear up under scrutiny, but it makes no difference anyhow. The chain of “remain inviolate[s]” only goes back to 1868 — by which time Georgia’s wrongful death statute was in place.

The constitutions of 1976, 1974, 1943, 1877, and 1868 all contain the provision that the right to jury trial shall “remain inviolate.” But that language does not appear in the Civil-War-era constitution of 1865. The chain is broken, and with it the lexical argument for anchoring the jury-trial right to the pre-wrongful-death era. So the “remain inviolate” argument does the Defense no good.

On a stare decisis analysis, the cases treating the 1798 Constitution as an anchor for the rights of the People of 1983 must fall. First, the pre-1983 decisions could not have considered the 1983 Constitution, so they have limited if any relevance. Second, on this issue the pro-1798 decisions are unreasoned. They offer no reason why the People circa 1983 were limited to the rights recognized in 1798. Third, no one has relied to their detriment in any important way on the idea that the 1983 Constitution is limited to protecting rights recognized in 1798. We can’t think of any such reliance interests, and the appellants and their amici have identified none. Fourth, and most importantly, the pro-1798 decisions are wrong. There is no principled basis on which to bind the generation of 1983 to the rights recognized in 1798.

Finally, back to the specific point at hand: Applying the Nestlehutt framework to the Constitution — the actual, governing Constitution, of 1983 — the right to a jury trial applies to the type of damages recoverable on a wrongful death claim, because wrongful death claims existed in 1983. The Court of Appeals (and the trial court) properly applied this Court’s decision in Nestlehutt.

2. Even if the law in 1798 anchors our right to a jury, the cap is unconstitutional because the supposed bar on wrongful death claims was not part of Georgia law in 1798.

This next issue is irrelevant if the Court applies the Nestlehutt framework to the 1983 Constitution.

In 1784, Georgia adopted English common law only “so far as [it] is not contrary to the constitution, laws and form of government now established in this State.” Watkins 1800 Digest, pg. 289-90. Therefore, if 1798 is treated as anchoring our right to jury trial, then it becomes necessary to answer this question: As of 1798, was a bar on wrongful death damages consistent with Georgia law? The answer is No. There was no such bar in Georgia law as of 1798.

In summary:

i. The general principle in English law and Georgia law is that “every right when with-held must have a remedy, and every injury it’s proper redress.” Blackstone (1768) Book 3, pg. 109. Exceptions abound, but that was and remains the foundational principle.

ii. In English common law as of 1798, wrongful death damages were allowed in some circumstances and disallowed in others.

iii. Where wrongful death damages were not allowed, (a) that was an exception to normal principles, (b) it was a suspension of remedies rather than an absolute bar, and (c) the suspension was based on a doctrine that was never part of Georgia law — the “felony merger rule.”

iv. The main basis of the putative bar on wrongful death damages arose from Baker v. Bolton — an 1808 English case in which a single trial-court judge reportedly said that, “in a civil court the death of a human being could not be complained of as an injury.” This was a decade after Georgia’s 1798 constitution and says nothing about Georgia law as of 1798.

v. A potential secondary basis for the putative bar on wrongful death damages is the maxim actio personalis moritur cum persona (“a personal right of action dies with the person”). But that maxim was abrogated in Georgia as of 1789 (11 years before the 1798 constitution) with the adoption of Georgia’s non-abatement act.

Therefore, as of 1798 the supposed bar on wrongful death damages was not part of Georgia law.

2.1. The supposed common-law bar derives from the 1808 English decision in Baker v. Bolton. The bar did not exist in English or Georgia law as of 1798.

The primary basis for the putative common-law bar on wrongful death damages is Baker v. Bolton, 170 Eng. Rep. 1033 (1808) and the preamble to Lord Campbell’s Act (1846). Those sources support a categorical common-law bar on wrongful death claims as of 1808. But 1808 was 10 years after 1798. Baker and the preamble to the Act do not state, or even purport to state, English common law as it existed in 1798. The categorical bar that eventually arose from Baker v. Bolton did not exist in English or Georgia law as of 1798.

2.1.1. Baker v. Bolton was ipse dixit and did not state the law as it existed in 1798.

Baker v. Bolton was a nisi prius (trial court) decision. The report of the case is cursory. It spans half a page. The reporter, John Campbell, (not the judge himself) wrote:

Lord Ellenborough said, the jury could only take into consideration the bruises which the plaintiff had himself sustained, and the loss of his wife’s society, and the distress of mind he had suffered on her account, from the time of the accident till the moment of her dissolution. In a civil Court, the death of a human being could not be complained of as an injury; and in this case the damages, as to the plaintiff’s wife, must stop with the period of her existence.

The report includes no basis for the statement — neither precedent nor reasoning.

Even as late as 1873, British judges were not uniformly convinced that Baker was good law in England. E.g., Osborn v. Gillett, LR 8 Exch 88, 99 (1873) (dissenting judge: “No argument is stated, no authority cited, and I cannot set a high value on that case….”). On the American side, the following year in 1874, the court in Sullivan v. Union Pacific, 23 F. Cas. 368 (Cir. Ct. Nebraska) declined to follow Baker, writing: “[A]ll the cases, English and American, on this subject, rest upon the nisi prius decision, in 1808, of Lord Ellenborough in Baker v. Bolton. … [I]t is not reasoned and cites no authorities….”

One of the leading historians of English law concluded that Baker misstated the law. William S. Holdsworth’s life’s work was the 17-volume A History of English Law, published between 1903 and 1966. In 1916, Holdsworth wrote the definitive inquiry into the status of Baker v. Bolton within English common law. He concluded that the statement in the report of Baker did not reflect prior law, but rather that “when Lord Ellenborough gave his ruling in Baker v. Bolton he was the victim of [a] confusion of ideas.” More recent commentators have agreed. See, e.g., Smedley (1960) (“[I]t seems probable that Lord Ellenborough unwittingly (or, if deliberately, wholly without authority) phrased his rule too broadly and thereby caused the restriction against recovery to be extended to a degree not warranted by the earlier decisions.”) ; Gray (2014) (Baker “is based on confused reasoning and principles that have long since been abolished, and … is so discredited so as to require its abandonment.”).

Nonetheless, Ellenborough’s declaration caught on with enough English judges that less than 40 years later Parliament stepped in to undo some of the damage Baker had done. Parliament passed the Fatal Accidents Act of 1846, commonly known as Lord Campbell’s Act. (This was not the same Campbell who reported the Baker decision.) The preamble treated Baker as established law: “Whereas no action at law is now maintainable against a person who by his wrongful act, neglect or default may have caused the death of another person….” The preamble, while incorrect as to pre-1808 law, largely formed later generations’ impressions of English legal history, greatly contributing to the now-universally-believed historical myth of an ancient common-law bar on wrongful death claims.

Malcolm Mason, a fellow of the Foundation for Research in Legal History, concludes that “The rule that no action may be brought against one who wrongfully causes another’s death has no foundation in common law principle.” Of Baker v. Bolton, Mason writes: “It has little history. It was casually created by Lord Ellenborough in the charge to the jury in Baker v. Bolton, perpetuated by the preamble to the Death by Accidents Bill, and accepted thereafter on no other authority.” Why, then, do we all think wrongful death damages were barred at common law? Mason writes:

From 1847 or 8 on [] the general American view has been that no action lay at common law. This later tradition can have no weight beyond that of Baker v. Bolton for it is plainly based on that case, in faith of the preamble to the Death by Accidents Bill [i.e., Lord Campbell’s Act] and without examination of authority. A striking example of this carelessness is the leading federal case, Insurance Co. v. Brame, [95 U.S. 754 (1877)] which cites in support of its rule Shields v. Yonge which held exactly the contrary.

…

Lord Cambell’s Act gives no right of action that did not exist at common law. What, then, was the intention of the legislature that enacted it? It is hard to say. In the Commons, the bill was, properly, called hasty and carelessly drawn.

…

Add to that that Lord Campbell was a bad lawyer but a persuasive orator, and perhaps the [Act] is explained.

This, of course, is mere speculation. What is certain is that the Fatal Accidents Act did not create good law for the future, but invented bad law for the past.

———

The state of English law in 1808 does not matter here. If we are looking to the year 1798, then what matters is only that Baker v. Bolton and the preamble to Lord Campbell’s Act do not reflect the law as of 1798. So then what was the law on wrongful death claims before Baker v. Bolton?

2.1.2. Before Baker v. Bolton, English law suspended but did not bar wrongful death claims, pursuant to the “felony merger” rule.

English common law included a “felony-merger” rule. The idea was that if a tort amounted to a felony — a much broader category in the old days — it became a matter for the crown. Pending prosecution, the crown’s interest superseded and precluded the private interest of the victim. (By analogy, in our own time a civil case may be stayed while a related criminal case proceeds.) In the 1607 case of Higgins v. Butcher the report reads:

If a man beats the servant of J. S. so that he dies of that battery, the master shall not have an action against the other for the battery and loss of the service, because the servant dying of the extremity of the battery, it is now become an offence to the Crown, being converted into felony, and that drowns the particular offence, and private wrong offer’d to the master before, and his action is thereby lost.

In older English law, in practice, the suspension of a private action frequently became permanent, because felonies were punishable by death and the crown confiscated the wrongdoer’s property. But some prosecutions were dropped, and some torts did not amount to felonies. And due to lenient statutes enacted in 1566 and 1576, some felons could escape death by taking benefit of clergy and being “burnt in the hand.” That latter category of felons forfeited all property they owned at the time of the offense, but they could acquire new property after conviction. In such cases, private actions could resume. Holdsworth cites two cases in which felons were sued after the suspension was lifted: Markham v. Cobb (1625) and Dawes v. Coveneigh (1652). Holdsworth thus concludes that under common law principles, a plaintiff “ought to be able to sue if the tortious act causing death does not amount to a felony.”

And so it was: In the 1796 case of Jones v. Perry, the defendant kept a dog “by which the Plaintiff’s child was bit and torn, and in consequence thereof died per quod servitium amisit” (“whereby he lost the service”). “The jury found a verdict for the Plaintiff, damages 30 [pounds sterling].” 2 Esp. 482. In the negligent keeping of the dog, there was no felony — and nothing barring the recovery of wrongful death damages.

Prior to Baker v. Bolton in 1808, English common law did not bar wrongful death claims. Rather, the law suspended them when the offense fell into the broad category of felonies. As a practical matter, that usually made a later civil action pointless, but not always.

2.1.3. Georgia never incorporated the felony-merger rule, so even the common-law suspension of wrongful death claims did not apply in Georgia.

The suspension of wrongful death claims in English common law arose from the felony-merger rule. That rule never existed in Georgia law. Many early Georgia statutes provide both criminal penalties and civil fines or damages to the victims of various offenses — meaning that the offense to the “crown” did not even temporarily preclude a civil recovery. For example, a 1787 act to prevent biting, gouging, and maiming provided both a criminal fine and compensation for the victim — for a first offense, 50 pounds to the State and 50 to the victim. Watkins 1800 Digest, pg. 356-57. Similarly, by a 1770 law anyone who murdered another’s slave was to suffer penalties and also to “mak[e] satisfaction to the owner of such slave.” Id. at 178. Likewise, a 1773 law against stealing or maiming horses, cattle, etc. provided both for criminal fines and “the damages otherwise recoverable by law.” Id. at 185-86.

Georgia’s typical provisions for criminal punishment and compensation to victims simultaneously leave no room for the felony-merger rule. The rule was inconsistent with Georgia law as of 1798. And since the suspension of wrongful death claims arose only from that rule, the suspension of such claims was inconsistent with Georgia law as of 1798.

2.1.4. Early American decisions show there was no bar on wrongful death claims.

Malcolm Mason has collected early wrongful death cases from the Massachusetts and Connecticut colonies. In 1643 in the Colony of Connecticut, John Ewe negligently caused the death of Thomas Scott, and a jury required him to pay five pounds to the government and ten to the widow. In 1677 in the Massachusetts Bay Colony, John Flynt was acquitted of murdering Eljaze Coates but found guilty of manslaughter, for which he was ordered to pay the government 20 pounds and, to Coates’ father, another 20 pounds. Similarly in the 1675 case of “Jn ffoster” who accidentally shot “Samuel fflacks.” And also in the 1675 case of “James ffoord” who drove a cart over Abigaile King, killing the child. In 1677 the portentously named Samuel Hunting shot John Dexter in the woods, was found guilty of manslaughter, and was ordered to pay “twenty pounds to the widdow of the sajd John Dexter towards hir losse & damage.” And so on it went in Massachusetts Bay.

Returning to Connecticut: Mason describes the court that decided a 1794 case:

[A] court consisting of Andrew Adams, C. J., Jonathan Sturges, Benj. Huntington, Asher Miller, and Jesse Root, men of “brilliant scholarship” and “great learning,” “severe students of the law”….

The case was brought by a husband against a physician whose negligent operation caused the wife’s death. The jury awarded 1,000 pounds damages to the husband. On appeal, the defendant argued for application of the English felony-merger rule. The court rejected the argument and upheld the verdict: “The rule urged by the defendant, is applicable, in England, only to capital crimes, where from neceſſity, the offender muſt go unpuniſhed, or the injured individual go unredreffed.”

In early American law as in English law before Baker v. Bolton, wrongful death damages were allowed.

2.1.5. Shields v. Yonge (Ga. 1854) unnecessarily discussed the felony-merger rule but nonetheless held — under common-law principles — that wrongful death claims were not barred if the tortious conduct was not a felony.

In 1854 — only 56 years removed from 1798 — this Court interpreted English and Georgia common law as to wrongful death damages in Shields v. Yonge, 15 Ga. 349. Shields was a wrongful death case brought by a father whose 18-year-old son was killed. While Georgia’s first wrongful death statute was adopted in 1850, Shields did not discuss it — presumably because the events of the case pre-dated the statute.

As we’ve seen, the felony-merger rule was never consistent with Georgia law. The Shields court did not address that threshold question but started from an un-analyzed assumption that the felony-merger rule applied. Nonetheless, the Court held that the wrongful death claim could be brought — again, under common-law principles, with no reference to Georgia’s wrongful death statute.

The Shields Court mentioned Baker v. Bolton but observed that it cited no authority. Shields then ignored Baker while proceeding to discuss the felony-merger rule at length. In essence, the Court deemed the rule limited to offenses that amounted to felonies — not to misdemeanors or negligence. 15 Ga. at 356. The Court went on to hold that because the tortious conduct did not amount to a felony, wrongful death damages were recoverable without delay or suspension:

It follows, therefore, that the private injury which resulted from the homicide, was not merged in the public injury, or suspended until after that had been avenged.

15 Ga. 356. As the Shields Court interpreted common law — 170 years closer to it than we are — common law did not preclude wrongful death damages.

———

The primary basis for the supposed common-law bar on wrongful death claims is Baker v. Bolton. Whatever status that case acquired in England in the 1800’s, it says nothing about Georgia law as of 1798. At that time, common law in Georgia did not bar wrongful death claims.

2.2. The supposed bar on wrongful death claims gains no support from the maxim actio personalis moritur cum persona, because Georgia’s adoption of the non-abatement act in 1789 abrogated the maxim.

The maxim actio personalis moritur cum persona might be asserted as fallback support for the supposed common-law bar on wrongful death damages as of 1798. The maxim does not relate to claims brought by a survivor for the death of a decedent. Rather, it relates to the decedent’s own claims. In any event, the maxim does not support a supposed bar on wrongful death claims in Georgia as of 1798, because the non-abatement act of 1789 (11 years before the 1798 constitution) abrogated the maxim.

The maxim translates as “a personal right of action dies with the person.” The legal historian Henry Goudy wrote of it, “Though this is one of the most familiar maxims of English Law, the veil of obscurity covers not only its origin but its true import and significance.” The maxim never applied categorically. It did not apply to actions concerning real property, and eventually it had no application to contracts. English judges did apply it to what we now call torts.

No one has any very good explanation of the origins of the maxim or its rationale. As to origins, Goudy thought the maxim “was originally deduced from a misunderstanding of the Roman Law.” As to rationale, Blackstone said survivors weren’t personally involved in the events of a tort and therefore have no interest in a tort claim, whereas they do have interests in a decedent’s contracts. That makes little sense. A later scholar, Frederick Pollock, noted of the maxim that, “This is one of the least rational parts of our law.” Pollock suggested that “At one time it may have been justified by the vindictive and quasi-criminal character of suits for civil injuries. A process which is still felt to be a substitute for private war may seem incapable of being continued on behalf of or against a dead man’s estate….” He added, “But when once the notion of vengeance has been put aside, and that of compensation substituted, the rule … seems to be without plausible ground.”

In any event, whatever the rationale, Georgia abrogated the maxim with the adoption of a non-abatement statute in 1789. See Watkins 1800 Digest, pg. 395, § XVIII. With that act, the death of a party no longer ended the action. So whatever support the actio personalis maxim might have given to the supposed common-law bar on wrongful death damages, that support evaporated in 1789, 11 years before the 1798 constitution.

———

The state of the law in 1798 should be irrelevant to this case. The People of Georgia in 1983 created the Constitution that governs us. The Nestlehutt framework should be applied to the operative Constitution, not to a repealed one from two centuries before, when only a fraction of the people governed by it could vote.

But even if 1798 is treated as the year that anchors and limits our right to a jury trial, the Court of Appeals properly applied the Nestlehutt framework. In 1798, the supposed common-law bar on wrongful death damages did not exist. So even if applied to 1798, the Court of Appeals correctly applied Nestlehutt to hold that the right to jury trial applies in wrongful death cases just as it does in other cases.

3. If the Court considers questions beyond the one in the certiorari order, the Court should allow full briefing on them.

The order granting certiorari permitted briefing only on the question whether in light of Taylor, the Court of Appeals correctly applied Nestlehutt. The Court did not seek (and Rule 45 does not allow) briefing on additional questions — e.g., whether Nestlehutt was correctly decided or whether there is a healthcare crisis in Georgia. Nonetheless, Appellants and their amici (collectively, the “Industry”) all address such additional questions to one degree or another.

If the Court chooses to entertain additional questions, we ask the Court to allow full briefing on them. Here we only sketch the issues we think should be briefed if the Court considers additional questions.

3.1. Nestlehutt was correctly decided: The right to a jury trial is a substantive right, not an empty right to a sham procedure.

The Industry argues that the Constitution’s right to a jury trial is merely procedural, so that a jury may render its verdict and then the legislature may by statute nullify the verdict. But (a) procedure and substance are not fully separate from one another and (b) in any event the Constitution does not speak of the right as a purely procedural one. It does not, for example, speak of a right to “trial procedure.” If the right does not guarantee the traditional, substantive decision-making of a jury, then the right is empty and guarantees no more than a sham procedure. Particularly since the same right to a jury trial pertains to criminal as well as civil matters, it would be dangerous to hold that the right guarantees no more than a sham procedure that can be nullified.

3.2. The damages cap violates the equal-protection clause: The legislature addresses a society-wide interest, creates a subsidy for insurance costs to serve that general interest, but perversely forces malpractice victims & their families to fund the subsidy alone.

According to our statutory scheme, Georgia law grants a wrongful death plaintiff a right to recover for the full value of the life of their negligently killed spouse, parent, or child. At trial, the jury determines that value — the amount properly belonging to the victim’s family. Then, if it’s a medical malpractice case, the trial judge is told to take away any amount exceeding the statutory cap and transfer it to the tortfeasor.

The legislature’s stated purpose is to remedy a state-wide problem of healthcare cost and accessibility. See 2005 Ga. ALS 1; 2005 Ga. Act 1; 2005 Ga. SB 3. This transfer of property operates to subsidize liability insurance companies and, derivatively, liability insurance premiums — in the hope of creating a downstream benefit to all residents of the state.

The legislature has a legitimate interest in the cost and accessibility of healthcare. The legislature is free to subsidize liability insurers — provided it does so lawfully. But the cost of subsidies to benefit the entire state should be borne by the entire state, not by a discrete group singled out by the legislature. And to single out the victims of malpractice and force them and their families to bear alone the burden of the subsidy — that is not only irrational but perverse. It violates the Constitutional guarantee of equal protection of law.

3.3. The damages cap creates an unconstitutional taking of property: A civil claim is a protected property interest. Under the caps statute, the jury fixes the value of the property, and then the legislature orders the judge to confiscate it and transfer it from victims and their families to tortfeasors.

The statutory scheme also constitutes an unconstitutional taking of property. The statutes create a right to recover the full value of the decedent’s life. The victim’s family has a protected property interest in the full value of the decedent’s life. The jury verdict fixes the value of it. Then to create a public benefit, the caps statute requires the trial judge to confiscate a portion of it.

CONCLUSION

The Court of Appeals properly applied this Court’s decision in Nestlehutt, in light of Taylor. As Taylor noted, the Constitution that governs Georgia was enacted in 1983. It repealed all prior constitutions, confirmed the then-existing laws, and provided that the right to a jury trial shall “remain inviolate.” That can only mean that it preserved the right to a jury trial as it existed in 1983. But even if the Nestlehutt framework were anchored on the year 1798, the Court of Appeals’ application of Nestlehutt would still be correct, because as of 1798 wrongful death claims were not barred under Georgia law.

This submission does not exceed the word count limit imposed by Rule 20 (7,000 words excluding TOC, etc.).

Respectfully submitted March 31, 2025,

/s/ Daniel E. Holloway

Daniel E. Holloway

Georgia Bar No. 658026

DEH Law

2062 Promise Road

Rapid City, SD 57701

404-670-6227

dan@dehlegal.com

Counsel for Amicus Curiae

CERTIFICATE OF SERVICE

I certify that, contemporaneous with the filing of this brief, I caused a copy of the brief to be served upon the following counsel of record by United States Postal Service:

R. Page Powell, Jr.

ppowell@huffpowellbailey.com

Alexander C. Vey

avey@huffpowellbailey.com

HUFF, POWELL & BAILEY, LLC

999 Peachtree Street, Suite 950

Atlanta, Georgia 30309

Counsel for the Appellants

Katherine L. McArthur

kmcarthur@mcarthurlawfirm.com

Caleb F. Walker

cwalker@mcarthurlawfirm.com

MCARTHUR LAW FIRM

6055 Lakeside Commons Drive, Suite 400

Macon, Georgia 31210

Counsel for the Appellees

Tracey L. Dellacona

tdellacona@dellaconalaw.com

DELLACONA LAW FIRM, LLC

6055 Lakeside Commons Drive, Suite 420

Macon, Georgia 31210

Counsel for the Appellees

Michael B. Terry

terry@bmelaw.com

Naveen Ramachandrappa

ramachandrappa@bmelaw.com

BONDURANT, MIXON & ELMORE LLP

1201 West Peachtree Street, Suite 3900

Atlanta, Georgia 30309

Counsel for the Appellees

Hon. David E. Nahmias

dnahmias@jonesday.com

JONES DAY

1221 Peachtree Street, Suite 400

Atlanta, Georgia 30361

Counsel for Chamber of Commerce of the United States and Georgia Chamber of Commerce as Amici Curiae

Jason E. Bring

jason.bring@agg.com

W. Jerad Rissler

jerad.rissler@agg.com

ARNALL GOLDEN GREGORY LLP

171 Seventeenth Street, Suite 2100

Atlanta, Georgia 30363

Counsel for Georgia Hospital Association and Medical Association of Georgia as Amici Curiae

Hon. Keith R. Blackwell

keith.blackwell@alston.com

Christopher J. Kelleher

chris.kelleher@alston.com

ALSTON & BIRD LLP

One Atlantic Center

1201 West Peachtree Street

Atlanta, Georgia 30309

Counsel for Metro Atlanta Recovery Residences, Inc. as Amicus Curiae

March 30, 2025

/s/ Daniel E. Holloway

Daniel E. Holloway

Georgia Bar No. 658026