House approves amended tort reform amendment; rejects compromise | Arkansas Blog

Friday, February 24, 2017

House approves amended tort reform amendment; rejects compromise

Posted By on Fri, Feb 24, 2017 at 12:04 PM

click to enlarge AN ALTERNATIVE TO TORT REFORM: Jimmy Gazaway offered one.
  • AN ALTERNATIVE TO TORT REFORM: Jimmy Gazaway offered one.
The House today added an amendment to the "tort reform" constitutional amendment proposal to lift actual and punitive damage caps from $250,000 to $500,000.

It was the amendment added in House committee yesterday.

Rep. Jimmy Gazaway of Paragould objected to the speedy process of efforts to limit lawsuits. He tried unsuccessfully to propose an alternative tort reform proposal. It included penalties against lawyers who file frivolous lawsuits.

Rep. John Walker fought Rep. Bob Ballinger's amendment to raise the cap because he said it obscured the larger issue of how much the proposal will damage the ability of the poor and injured to seek compensation. He said it would be more honest for the sponsors to stick with the original, lower proposal. The opposition failed. The House approved the Ballinger amendment.

Gazaway tried to amend the amendment.

The proposal is wrong on principle, Gazaway said of the cap of attorney fees at one-third of the net award. Corporations can hire the best attorneys for $250 an hour. Poor people injured in an accident can't afford to hire an attorney. So they get lawyers through contingency fees. "You're going to have people who have meritorious claims, who have legitimate claims and they're gong to take it to attorneys and they're going to say, with a cap of my fees at one third of the damages, I can't afford to take the case."

"It won't limit frivolous lawsuits," Gazaway said. "It will limit all lawsuits."

"This isn't conservative,"  Gazaway said. "Just because you don't like attorneys you're going to limit what an attorney can make. That's not conservative. That's not the free market. That's not capitalism. " He noted that the definition of what a "net" recovery means will be left to the legislature and complications will deny people access to the courts.

Gazaway proposed to keep a one-third cap on fees, but on gross recovery. And he proposed to raise the cap on so-called non-economic damages, meaning pain and suffering from permanent injuries, for example, to $1 million. With a $500,000 cap, the injured will never see that amount after negotiations and attorney fees. He also would say there'd be no limitation on intentional conduct, gross negligence or death.

To those who campaigned as pro-life, Gazaway asked, "Are you really pro-life? Are you going to put a low value on a child injured in accident who has no economic value?"

Rep. Andy Mayberry, active in the anti-abortion movement, echoed that argument later. He said he didn't see how you could set a limit on the value of a life.

Gazaway also dealt with the proposal in the amendment to take away rule-making authority from the Arkansas Supreme Court. He proposed duplicating congressional language for court rules. Some of the defenders of tort reform had said Congress has a role in rule-making and so should the Arkansas legislature. Gazaway said mirroring Congress would be better than a usurpation of all rules by the legislature.

Rep. Andy Davis and others objected to a vote on Gazaway's amendment only a few hours after it was introduced.

Ballinger said the governor supported his amendment and he said Gazaway's amendment was part of an effort to kill tort reform. "This amendment would gut that."

Gazaway said debate had been restricted in the Senate. A special meeting was scheduled Thursday afternoon to add the amendment and debate was limited. He said amending the constitution was too important to be decided so quickly. It's not fair to say he'd interjected something at the last minute. Had people not tried to "railroad" the amendment, he wouldn't have been forced to try his amendment today.

Gazaway's amendment failed on a 36-48 vote.

Here's Ballinger's amendment.

Here's Gazaway's amendment.

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