The failure of tort reform measures to gain much traction among lawmakers this session will leave unresolved a legislative response to a state Supreme Court ruling that struck down part of a 2003 law meant to limit civil lawsuits and damage awards.
Now some advocates for action to address the decree say they may have to depend on the high court itself for change.
In 2012, the state Supreme Court struck down a provision of the 2003 tort reform law that limited who could testify as an expert witness in medical malpractice cases. The decision came on the heals of a 2011 ruling in which the court had stricken provisions in the law that capped punitive damage awards in civil cases.
This year, champions of tort reform entered the regular session with the idea of putting in the state constitution parts of the state law that the high court said did not meet constitutional muster. But last week, a joint legislative committee considering proposed constitutional amendments to recommend for referral to the 2014 general election ballot passed over a pair of tort reform proposals.
Senate Joint Resolution 2 by Sen. Jeremy Hutchinson, R-Little Rock, would have required that a person who files a lawsuit deemed to be frivolous pay the other party’s attorney fees; that an expert witness in a medical malpractice lawsuit be trained in the same or similar discipline as the person on trial or have similar education and experience; and that an attorney who files a medical malpractice suit file a "certificate of good faith" stating that a medical expert is ready to testify that medical malpractice occurred.
SJR 6 by Sen. Eddie Joe Williams, R-Cabot, proposed to strip the state’s highest court of the authority to set rules for pleading, practice and procedure for all courts in the state, and would have placed that authority with the Legislature. The measure was debated nearly two hours during a joint meeting of the Senate and House State Agencies and Governmental Affairs Committee last week before failing in a voice vote.
The panel never considered SJR 2.
"It’s disappointing because the whole time I was trying to find a compromise where we didn’t strip the rules from the (state) Supreme Court … I think we’re all for tort reform, some form of it," Hutchinson said.
Hutchinson said he thought the high court would make some rules changes before the 2015 regular session.
"Maybe if the court issues some new rules we can come back next session and deal with punitive caps in the constitution, which is the only thing you really have to put in the constitution," he said.
Two minor tort reform bills managed legislative approval and were signed into law by Gov. Mike Beebe.
Senate Bill 1162, now Act 1196, by Sen. Jonathan Dismang, R-Beebe, limits the number of lawsuits that can be filed in a single medical malpractice injury to one. House Bill 2022, now Act 1116, by John T. Vines, D-Hot Springs, specifies that if two or more people are sued by the same person for an injury or property damage, they each have full liability.
Dismang said tort reform generally is a broad issue, making it difficult for lawmakers to agree on how to address it, particularly with the involvement of lawyers and representatives from the medical society, business and other groups.
"It’s a complex issue, not an easy subject to take all in one bite," he said. "Some of those negotiations weren’t exactly in good faith and that led to some breakdowns. I wish we had been able to get something out, but it is what it is this session."
While unable to craft a plan that got the support of the Legislature, Hutchinson was able to get a nonbinding resolution approved by the Senate that urges the state Supreme Court to develop new rules and procedures on tort reform.
Senate Joint Resolution 3 asks the justices to adopt policies and procedures to implement tort reforms contained in SJR 2 "in order to strike a fair and equitable balance between the rights of plaintiffs and defendants in civil actions and to protect the state’s citizens and economic interests from inequitable litigation claims and damage awards."
Hutchinson said last week he hopes the justice will review the request.
Brian Brooks, an attorney and member of the Supreme Court’s Committee on Civil Practice, said he expects the committee to look at the issue.
"My guess is that if there is a joint resolution, or even a resolution from one side of the Legislature, that asks the Supreme Court of the state of Arkansas to look at some rules in a particular area, that at a minimum we’re going to … look at those rules."
Brooks said he’s not surprised lawmakers struggled with how to address the issue during the session.
"It’s one thing to say, ‘Gee, I don’t want to be part of a runaway jury; we don’t like those runaway juries,’" he said. "But, if a truck driver, driving too fast late at night on a dark highway without enough sleep ran into your daughter’s car and your daughter will spend the rest of her life as a paraplegic … and you place these facts in front of a jury of human beings and say, ‘OK, if tort reform were to say you can award the daughter money to try to make their life a little better from now on, but you can’t (award more than) X dollars because the Legislature has predetermined that’s all you can give,’ would you be for that?"
Most people would say of court not, Brooks said, adding, "The rubber is the reality. The facts are the road, and when the two hit together, people start to think again about whether they really want to do that."
He said he thought the Legislature did the right thing by not passing any of the proposed constitutional amendments.
"The court will handle this," he said. "You only need one body making rules. It makes sense to have the body making the rules the one that actually has to practice them."