Imagine serving on a jury in a car-wreck case and being told for weeks that the victim's catastrophic injuries were caused by some defect in the car. Outraged, you vote to award millions of dollars - only to be told after your verdict is official that the plaintiff wasn't wearing a seatbelt.
That type of information has previously been withheld in cases in Georgia, which remedied that earlier this year. But in other states evidence of seatbelt usage remains off-limits, leaving jurors dumbstruck as to why they weren't told.
"Oh, are they angry," says Lee Mickus, a Denver attorney who defends automakers in accident cases. “They were told about an accident that didn’t happen."
With the passage of a wide-ranging tort-reform bill last month, Georgia became the latest state to repeal what Mickus calls “absolutely anachronistic” statutes that prevent civil juries from learning whether the plaintiffs in car-crash lawsuits were wearing seatbelts.
The laws were a frequent companion to seatbelt laws that every state but one passed in the 1980s and 1990s. To placate voters angry over what they perceived as an intrusion on their liberty, lawmakers threw in seatbelt gag rules designed to make sure plaintiffs didn’t suffer lower damage awards if they weren’t wearing belts.
States passed seatbelt laws in response to a 1984 federal rule that required states with two-thirds of the population to pass seatbelt laws or regulators would require airbags in all automobiles. As it turns out, legislators added so many conditions to those laws the airbag rule’s conditions weren’t met. But the gag rules remained in place.
“Now all cars have airbags but we’re stuck with all these statutes on the books that are absolutely anachronistic,” said Mickus, of Evans, Fears, Schuttert, McNulty, Mickus.
Plaintiff lawyers, many of whom also serve as state legislators, said seatbelt gag rules prevented juries from being distracted from the job of determining who was responsible for an accident. Since many people still didn’t use seatbelts in the 1980s, the argument went, plaintiffs shouldn’t be penalized for failing to foresee the consequences of getting in an accident without them.
That story is no longer valid today, Mickus said. Seatbelts have been the law in every state but New Hampshire for decades, yet juries hand down spectacular verdicts based on partial information. Georgia jurors ordered Ford to pay $1.7 billion in a truck rollover case, for example, without hearing evidence about how injuries could have been avoided if the occupants were wearing seatbelts.
Georgia removed its seatbelt gag rule as part of Senate Bill 68, a package of tort reforms supported by the U.S. Chamber Institute for Legal Reform, the American Tort Reform Association and manufacturers. Other measures include changing how liability and damages are determined, closing a loophole for double recovery of attorneys fees, and eliminating “phantom” medical damages based on bills the plaintiff never paid.
Texas, Indiana and West Virginia have also eliminated their seatbelt gag rules and the Chamber and ATRA are pushing for reforms elsewhere. Georgia’s law was crafted to avoid what defense attorneys call “the Texas problem,” where judges evaded the law by prohibiting seatbelt evidence because it wasn’t required to be presented to the jury. Instead of stating seatbelt evidence “shall not be excluded,” the Georgia law says it “may be considered in any civil action as evidence.”
Georgia has been a particularly dangerous jurisdiction for carmakers, with juries handing down billion-dollar verdicts after being told a vehicle’s design was at fault. They argued that it is unconstitutional for legislators to prohibit them from defending themselves by telling jurors about seatbelt use.
“The vehicle as a whole is designed to work with all of its components in concert and taking one element arbitrarily out of the system defeats the purpose,” Mickus said.
The gag rule persists in other states, Mickus wrote in research for the Washington Legal Foundation. Lawmakers in Alabama, for example, introduced a tort-reform package a year ago that, in part, "would specify that the nonuse of a seatbelt by an injured individual can be used in a civil action for certain purposes, including proof that an accident victim failed to mitigate or otherwise caused his or her injury."
Both the House bill and its Senate counterpart never made it out of their respective committees. It doesn't appear legislators in Tennessee or Montana have introduced any bills that would repeal their gag rules.
And in Nebraska and Oregon, courts can only reduce a jury award by a maximum of 5% if the plaintiff failed to wear a seatbelt.