In two well-reasonsed decisions, the Oklahoma Supreme Court today struck down the special-interest tort reform statutes as violating the Oklahoma Constitution.
In the first decision, the court strikes down the requirement of an expert report as a requisite to filing a medical malpractice lawsuit. The court found it improperly created two classes of victims and tortfeasors, professional tortfeasors/victims and general tortfeasors/victims, and had two different standards. Also, the Court found it created an undue burden that limited access to the courts because the victim would have to spend $500-$5,000 to get an expert opinion before filing the case.
The second case finds the legislatures Comprehensive Lawsuit Reform Act of 2009 unconstitutional and it is VOID in its ENTIRETY because it violates Oklahoma's "single subject" requirement of the Oklahoma Constitution that says a law can only cover one subject and this bill covers about 90 unrelated tort reform items.
It appears that sections of the 2009 tort reform which were invalidated include:
1. Requirement of an expert affidavit in professional negligence cases (12 O.S. § 19);
2. Section allowing Court to decline jurisdiction on basis of Forum Non Conveniens (12 O.S. § 140.2);
3. Section requiring Plaintiff to get permission of Court or all parties before can dismiss case after a pretrial has been held (12 O.S. §683);
4. Section requiring no prejudgment interest until 24 months after filing of the action to the verdict (12 O.S. §727.1);
5. Section limiting appeal bonds to never exceed $25 million and requiring no appeal bond on award of punitive damages (12 O.S. §990.4);
6. Section requiring Medicaid to reduce its subrogation recovery depending on circumstances (12 O.S. §994.1)
7. Section stating if summons is not served within 180 days the Petition shall be deemed dismissed without prejudice (12 O.S. §2004);
8. Section requiring statement whether Plaintiff is seeking damages in excess of amount required for diversity ($75,000) or specific amount if less than $75,000 (12 O.S. §2011);
9. Section defining frivolous to include an action filed without any rational argument based in law or facts to support the position of the litigant, or to change existing law (12 O.S. §2011.1);
10. Section on class actions changing standard of review on appeal on appeal of the certification or denial of a class to a de novo review (from an abuse of discretion standard); staying discovery on class claims pending the appeal of the certification of a class; adopting the Federal Class Action Fairness Act standards as the foundation for class actions in Oklahoma by requiring that a class be limited to residents of the State, or non-residents who own an interest in property that is relevant to the class in the State; allowing court the power to appoint an independent attorney to represent the interests of the class members during the hearing on class counsel's application for fees and requires the Court to consider those factors set out in Burk v. Oklahoma City, 598 P.2d 659, when considering the awarding of fees; and requiring attorney fees to be awarded in same cash/noncash proportion if any of the class benefit comes in the form of coupons, discounts on the purchase of future goods or services or similar noncash benefits (12 O.S. §2023);
11. Section of summary judgments which requires a court grant summary judgment if it finds that there is no genuine issue of material fact (District Court Rule 13 required the court to grant such a motion if no substantial controversy exists as to any material fact). (12 O.S. 2056);
12. Section adopting Federal Rule 702 and 703, which adds language from Daubert v. Merrill Dow, 509 U.S. 579, as to the requirements for expert testimony (12 O.S. §§2702, 2703);
13. Section imposing a duty on Plaintiffs to disclose, within 60 days of service of the petition and without request by the Defendant, a computation of the damages sought and to provide all documents and evidence upon which the computation is based (12 O.S. §3226);
14. Section adding language that states a breach of the obligation of good faith, imposed in every contract governed by the U.C.C., does not give rise to a separate tort cause of action (12A O.S. §1-304);
15. Section changing liability of joint tortfeasors to be several unless Defendant is greater than 50% responsible or a joint tortfeasor acted willfully and wantonly or with reckless disregard, in which case all Defendants are jointly and severally responsible (23 O.S. §15); (Please note that this law was changed again in 2011 to be simply that each tortfeasor is liable only for the amount of damages allocated to that tortfeasor);
16. Section changing limits on non-economic damages to $400,000 with certain limitations (23 O.S. § 61.2); (Please note that this law was changed again in 2011 to limit non-economic damages to $350,000 with certain limitations;
17. Section changing admissibility of seat belt usage in passenger cars unless Plaintiff is under age of 16 (47 O.S. §11-1112);
18. Section broadening the protection given to certain health care facility peer review data, to include data related to credentialing and recrendentialing of physicians (63 O.S. §1-1709.1);
19. Section granting immunity from suit to health care providers who volunteer to provide care during times when the Governor has declared a state of emergency (63 O.S. §683.9);
20. Section providing the distributor or seller of food may not be sued for any claim that the food provided caused a Plaintiff to become obese (76 O.S. §33);
21. Section broadening Livestock Activities Liability Limitations Act to include those persons conducting "agritourism" activities on their property (76 O.S. §50.2);
22. Section providing immunity to firearms manufacturers from suits alleging that a manufacturer's gun was used by another person to injure or kill a Plaintiff (76 O.S. §51);
23. Section statutorily adopting existing case law, as well as the Restatement of Torts, by providing that a manufacturer or distributor of a product may not be held liable for injury by its product if the product is inherently unsafe and known to be unsafe by the ordinary consumer who consumes or uses the product with the ordinary knowledge common to the community. A claim that a product is inherently unsafe is an affirmative defense, to be pled and proven by the Defendant. In order for the defense to apply a Defendant must show (1) the product is a common consumer product; (2) the product's utility outweighs the risk created by its use; (3) the risk imposed by the product was one known by the ordinary consumer who consumes the product with the ordinary knowledge common to the community; (4) the product was properly prepared and reached the consumer without a substantial change in its condition; and (5) adequate warnings of the risk posed by the product were given to the consumer. This statute does not apply to claims alleging a manufacturing defect or for breach of warranty. (76 O.S. §57);
24. Section adopting Federal Rule 407 regarding subsequent remedial measures but does not repeal 12 O.S. 2407 (76 O.S. §58);
25. Section adopting an asbestos claims priority act.
Read the opinions here.
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