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.

Tags: , , , , , ,

Favorite

Speaking of...

Comments (9)

Showing 1-9 of 9

Add a comment

 
Subscribe to this thread:
Showing 1-9 of 9

Add a comment

More by Max Brantley

  • Arkansas Tech settles dispute with lawmakers riled by 'Sex on the Lawn'

    Legislators have dropped an effort to kill the Department of Diversity and Inclusion at Arkansas Tech in a dispute that arose over a student sex education program.
    • Mar 22, 2017
  • Another bill to stock the prisons

    The Senate today voted 20-9 to pass Sen. Bryan King's bill that says a fourth commitment to the Arkansas Department of Correction means the person sentenced must serve at least 80 percent of the sentence before parole eligibility.
    • Mar 22, 2017
  • Midweek open line

    The open line and news roundup.
    • Mar 22, 2017
  • More »

Readers also liked…

  • In defense of Planned Parenthood and abortion rights

    An op-ed in today's New York Time by Katha Pollitt says what I've been struggling to say about the reaction to the attack on women's reproductive rights launched by means of the undercover videos made by anti-abortion activists.
    • Aug 5, 2015
  • The Arkansas Medicaid scandal: the state is purging the rolls of tens of thousands of eligible beneficiaries

    Tens of thousands of Arkansans have been kicked off of Medicaid for failure to respond to an income verification letter. Many of them are eligible for the program according to the very data that triggered the letter in the first place.
    • Aug 6, 2015
  • Matt Campbell files ethics complaint against Dennis Milligan

    Little Rock attorney and blogger Matt Campbell, whose knack for deep research brought down Mark Darr, Mike Maggio and Dexter Suggs, now has his sights trained on another worthy target. Today, he filed a 113-page ethics complaint against state Treasurer Dennis Milligan that includes 14 separate allegations.
    • Aug 20, 2015

Most Shared

Most Viewed

Most Recent Comments

Blogroll

 

© 2017 Arkansas Times | 201 East Markham, Suite 200, Little Rock, AR 72201
Powered by Foundation