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Republican majority split on tort reform 

With the Republican Party in the Arkansas legislative majority, intraparty squabbles now have higher stakes, not to mention opportunities for outsiders.

A good example happened last week.

Sen. Jeremy Hutchinson, a legislative veteran, filed a constitutional amendment on tort reform. It is aimed at addressing an Arkansas Supreme Court ruling that invalidated an overly restrictive statute about who could be an expert witness in a medical malpractice case.

Ho hum. A Republican with lots of Republican co-sponsors in the House and Senate offers a defense-friendly tort reform measure, which also would allow damages for frivolous lawsuits.

But wait. Hutchinson lined up liberal Democratic lights such as Sens. David Johnson and Joyce Elliott and Rep. Greg Leding as sponsors along with Republican conservatives like Jon Woods and Denny Altes.

It was a crafty move by Hutchinson, who's been associated in legal practice with David Goodson, the political powerhouse trial lawyer from Texarkana (and husband of Supreme Court Justice Courtney Goodson). He took an idea to the Arkansas Trial Lawyers Association, which espouses the interests of plaintiff lawyers. Tort reform was coming. Every business lobby wants it. The legislature is majority Republican. Was there a way to make the certain dose of medicine go down more easily?

Hutchinson's idea was to enshrine new tort rules in the Constitution. This puts them out of reach of the legislature. The rules he's proposed are modeled on tort reform legislation adopted in Republican-majority Tennessee. They are not liberal. But they provide a little more time to perfect a medical malpractice cases and a tiny bit of leeway on qualifying an expert medical witness.

Most of all, the amendment sidesteps a worse alternative. The business lobby — led by the Arkansas State Chamber of Commerce, Tyson Foods and the Walton family — will back a proposal to be sponsored by Sen. Eddie Joe Williams. It was still cooking last week in the Friday Law Firm. But a circulating draft indicated, along with some workers compensation changes, the proposal would strip the Arkansas Supreme Court of its constitutional authority to set procedural rules in tort cases. It would hand that power to the legislature.

Legislative control is a corporate lobbyist full-employment act. Faced with a potentially ruinous lawsuit, a company could hire lobbyists to win a legislative rule change to cripple or kill the lawsuit. Think of how quickly, for example, potential damages could mount in a class action suit for farmers with food crops polluted by a chemical in fertilizer provided by chicken waste.

The trial lawyers decided to go with Hutchinson against a far worse fate. They have helped assemble a broad coalition to outnumber the business lobby but also to guard against a weakening of Hutchinson's proposal.

Eddie Joe Williams admits he was "surprised" by Hutchinson turning up first with a proposal backed by a number of Republicans. Williams, the Republican leader in the Senate, thought that would be his prerogative. He insists reports of harsh words with Hutchinson last week are inaccurate. "I'm a gentleman," he said.

Williams is also reportedly thinking, as many Republicans in the Senate seem to be, of seeking a higher office in 2014, say lieutenant governor. The business lobby could be a powerful financial helper.

The business lobby's diversity — from doctors to retailers to poultry producers to industrialists — means it has a variety of specific wants beyond the general goal of tort reform. That might be why it's taken them longer to get their proposal in order. It's certainly why they prefer to have all those varied interests in the legislature's hands, rather than those of the Arkansas Supreme Court.

Of course, if this session goes wrong for the business lobby on tort reform (and even if they get their preferred amendment to the ballot, it could be beaten), there are always Supreme Court elections to correct any problems at the source. Business interests have enough money for that, too.

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