Thursday, February 16, 2017

Senate approves amendment to limit damage lawsuits, strip court power

Posted By on Thu, Feb 16, 2017 at 12:45 PM

click to enlarge A PLEA TO PRESERVE JURY TRIALS: Sen. Will Bond fought the tort reform amendment, but fell short (file photo). - BRIAN CHILSON
  • Brian Chilson
  • A PLEA TO PRESERVE JURY TRIALS: Sen. Will Bond fought the tort reform amendment, but fell short (file photo).

The Arkansas Senate today approved  SJR 8, the proposed constitutional amendment to cripple damage lawsuits and transfer court rulemaking power from the Arkansas Supreme Court to the Arkansas legislature.

The vote was 21-10. It will require approval in the House to reach the 2018 ballot. There's some talk of a less expansive measure being crafted in the House.

Sen. Missy Irvin, lead sponsor (and coincidentally spouse of a doctor), argued it "will" create jobs and a robust economy. She contends the current legal climate discourages investment.

The amendment places a cap on damages, actual and punitive, and sharply limits attorney contingency fees. Irvin called a $250,000 cap on a human life "reasonable." The court controls rules under the voter-approved Amendment 80 of 2000. Irvin said the previous practice of legislative control was preferable.

Trial lawyers have been leaders in opposition. But defense lawyers and others have particularly objected to the court takeover provision, including Chief Justice Dan Kemp.

Irvin drew questions from, among others, Sen. Linda Chesterfield and Joyce Elliott. Sen. Trent Garner joined Irvin in complaining that the court had ruled unconstitutional legislative efforts to set court rules, such as limiting punitive damages. Pressed for specifics on damage to business, Garner contended that companies couldn't speak up specifically because it would put a target on them for trial lawyers.

Garner contended the legislation would increase jobs in a state that currently is at a record low in unemployment and has been for months.

Promises of punishing injured people to create business is much like the promise that a right to work law would set Arkansas on fire economically. Or a low minimum wage. Or pitiful unemployment benefits. Or crummy workers comp coverage. We've tried all these things and still we lag, perhaps because our education is so inferior.

Garner was pressed on the likelihood  that damages to children would produce little in damages because children can't demonstrate economic damage. He was also pressed on the argument that the amendment is not pro-life because of how little it values human life. He said a good lawyer could make an argument for damages.

Sen. Will Bond, a trial lawyer, spoke against the bill. He described the case of an Army trainee electrocuted in a base latrine because a private company had failed to perform repair work. "You're saying his life is worth $250,000? That's what you're doing."

He said today's measure is a "wholesale takeover of the judiciary" and reversal of a popular vote. He said the legislature wasn't qualified to do this. He notes that noneconomic damages, a phrase in the bill, is a euphemism made up to pass the bill. Death, injury, pain, suffering, disfigurement — these are "noneconomic damages." Cap on damages? $250,000. Lose a limb? Cap on damages: $250,000.

The right to a civil jury trial is a constitutional right, Bond noted. It is, he said, "the ultimate local control." That's who serves on juries — individuals. Are you going to tack on to that invocation of the greatest version of local control "unless they serve on a jury."

Bond noted, too, that judges have the power to reduce damages, but not to add to them. He referenced the recent bribery case where a judge reduced a damage award by $4.2 million.

Bond closed: "Don't fill the lungs of liberty with this smokescreen to satisfy people out there who want to limit a fundamental right. And a right to a jury trial is a fundamental right."

Sen. Jeremy Hutchinson said the tort system needed reform, but he said this proposal goes too far. He supports a cap on punitive damages, for example. But he objected to the change on rule-making authority. The constitutional requirements of due process are complex, for example. Also interlocutory appeals. The legislature is not equipped, nor does it have the time to study, all the ramifications of changes in rules such as these. The court delegates such changes to committees that spend years working on them.

Capping attorney contingency fees is the government interfering with two private parties contracting with each other, he said. It's price-fixing and socialism to have the government telling individual parties what they can contract for, he said.

Sen. Eddie Joe Williams complained at length because his insurance company paid a $75,000 claim on an accident in which his daughter was involved. He viewed the action as frivolous. Hutchinson said the amendment will do nothing about frivolous lawsuits generally or that lawsuit. But he said there are ways to discourage such suits.

"If we're going to do tort reform, let's do it the right way," he said.

Sen. Linda Chesterfield acknowledged that the train was rolling. But she said: "It's just amazing to me that every time we talk about something that will hurt the little guy, we call it reform." She also said she was alarmed at the "creeping infringement" of the legislature on the other branches of public, both judicial and executive. She said the legislature was usurping court authority on something it didn't "know jack sprat about." "Who is going to be left to check us?"

Irvin said the measure was vital to return power to the legislative branch.

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