Recently the Georgia Assembly passed what is referred to as SB3 - Tort Reform.
Within the statute, a defendant may now assert that some other "party" should be held responsible for the
injuries to your client. The statute provides at 51-12-33, (a) through (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.
In Florida, attorneys have lived with a similar statute for years. In what is referred to as Mesmer Interrogatories, Plaintiffs' lawyers flesh out the so called "non -parties" that the Defendants may seek to inject into the case, and ultimately add to the verdict form.
Florida does not have a duty to supplement Interrogatories. You might want to mail this same set more than once. I can almost guarantee that you will get something like "discovery is ongoing, unable to identify said parties at this time."
By the time discovery closes, I would then move for Summary Judgment and seek fees, stating that there are in fact no such parties.
I use the ones listed below - feel free to use as well:
1. Do you contend any person or entity other than you is, or may be liable in whole or part for the claims asserted against you in this lawsuit? If so, what is the name and address of each person or entity; the legal basis for your contention and the facts or evidence upon which your contention is based and have you notified each person or entity of your contention?
2. If your answer to Interrogatory number 1 is "yes", please state the name(s) of such individuals or entities.
3. If your answer to Interrogatory number 1 is "yes", please state all facts upon which you rely to support your contention that those named in answer to Interrogatory number 2 were at fault.
4. If your answer to Interrogatory number 1 is "yes", please state the names and addresses of all witnesses with knowledge or opinions, or both, to support your contention that those named in answer to Interrogatory number 2 were at fault in causing Plaintiff's injuries and damages.
5. If your answer to Interrogatory number 1 is "yes", please state the percentage of fault you attribute to those named in answer to Interrogatory number 2 and the factual basis for such apportionment.
(a) Please state the factual basis upon which you asserted this affirmative defense.
(b) Please give the names and addresses of any witnesses you are aware of who can substantiate said facts.
(c) If there is any documentation to support that affirmative defense presently in your custody or that of your agents and/or employees, please give the name and address of the person who has custody of the document.
Case law from Florida should be posted in the next few days, but here is a sample:
"If a defendant wants a Mesmer defendant on the verdict form, the defendant must see to it that there is legally sufficient evidence in the record from which the jury can find that the Mesmer defendant was at fault. If there is no such evidence, the defendant is not entitled to have the Mesmer defendant placed on the verdict form . . . Again if the Mesmer defendant is exonerated because there is no evidence of fault, that defendant does not go on the verdict form."
