Arkansas Lawmakers Weigh Competing Tort Reform Ideas

By ANDREW DeMILLO | February 12, 2013

Arkansas lawmakers are weighing competing ballot measures to address rulings that overturned parts of a 2003 tort reform law, including a proposal to give the Legislature the authority to write the rules and practices for the state’s courts.

The move has prompted trial lawyers, worried that transferring that power to lawmakers would politicize the state’s courts, to withhold their objection to another proposal that would place other limits on lawsuits.

The two proposals are among dozens of proposed constitutional amendments lawmakers are expected to consider after a Wednesday filing deadline. The Legislature can refer up to three proposed amendments to place on next year’s ballot.

The most intense fighting may come over the two different responses to recent court rulings over a 2003 law aimed at placing caps on punitive damages in civil lawsuits. In the most recent ruling, justices last year tossed out a part of the law that specified who would be considered an expert in medical malpractice cases.

Sen. Eddie Joe Williams filed a proposed amendment last week that would give the Legislature the authority to set the rules of pleading, practice and procedure for all courts in the state. Williams, R-Cabot, said the measure would return to lawmakers a power they had before voters approved Amendment 80 to the state Constitution in 2000. That amendment says the Supreme Court shall “prescribe the rules of pleading, practice and procedure for all courts.”

“What we’re doing has resided in the state Legislature for well over 100 years and it was not changed until the year 2000 with amendment 80,” Williams said. “Any type of tort reform we’ve tried to do has been struck down by the supreme court because of amendment 80, section 3.”

Williams has the backing of the state’s business lobby, which says his approach is the one it prefers if lawmakers address the rulings over the tort reform law.

“We in general are definitely desirous of correcting the course we’re on right now, which has resulted in undermining the civil justice reform act of ’03,” said Randy Zook, president of the Arkansas Chamber of Commerce. “We think it’s a good piece of legislation and it’s basically been set aside in several different cases and we think it’s time to correct that.”

The Arkansas Trial Lawyers Association, however, has derided Williams’ legislation as a “lobbyist employment act” and says it would radically change the separation of powers in the state Constitution.

“They’re trying to radically alter the way government operates in this state,” said Chad Trammell, a Texarkana attorney and the association’s president. “What happens is you’ve got a situation where anytime someone doesn’t like the rules in court, they can just get a high paid lobbyist and go to the Legislature and get them to change the rules.”

The group isn’t objecting to an alternate proposal by Sen. Jeremy Hutchinson that would ask voters to approve several changes regarding damages and experts in cases rather than handing the rule-making authority over to the Legislature entirely.

The proposed amendment by Hutchinson would require expert witnesses to be trained in the same specialty as the defendant and require those who file a lawsuit that is found to be frivolous to pay up to $10,000 in court costs and fees to the defendant. His proposal would also cap punitive damages at nine times the amount of compensatory damages awarded in a civil lawsuit and would allow courts to determine percentages of responsibility when awarding damages.

Hutchinson said he crafted the bill after talking with business and lawyers groups to see if a compromise on addressing tort reform would be. He said he believed specifying the reforms would provide more certainty than giving the rule-making authority to the Legislature.

“Obviously I prefer an approach that spells out exactly what tort reform is going to be and having people vote on tort reform measures rather than removing the Supreme Court’s rule-making authority and give it to the Legislature. Then voters won’t know what the Legislature’s going to do it with it,” said Hutchinson, R-Benton. “I’m afraid there’s going to be a lot of inconsistency depending on who has control of the Legislature and what issues arise.”

Trammell said the trial lawyers association isn’t endorsing Hutchinson’s idea, but won’t oppose it either.

“If we really have to do something to make everybody happy so they feel like there are some restraints on the judicial system, let’s address it head on,” he said. “That’s what the Hutchinson bill does.”

Williams said he doesn’t necessarily see the two measures as competing proposals, and Hutchinson said he was hopeful the two could a find compromise between their ideas.

“The approaches may be quite different,” Hutchinson said. “I think the end result is pretty similar.”

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