On June 4, 2013, the Oklahoma Supreme Court struck the sprawling mass of statutes passed in 2009 as H.B. 1603, or the?Comprehensive Lawsuit Reform Act?(CLRA), finding the statutes violate the Oklahoma Constitution.
The CLRA required only injured plaintiffs to submit expert affidavits with their petitions in certain professional?negligence cases and capped their non-economic damages.?Other sections of the law limited physicians’ ability to testify in asbestos and silica litigation, shielded companies from claims that food they sold caused obesity and immunized firearms manufacturers from suits involving claims that a person was injured or killed by one of their guns.
The court handed down two decisions last week:
In?Douglas v. Cox Retirement Properties,?a lawsuit claiming a man’s death was caused by the negligent treatment he received at Cox Retirement Properties, a rehabilitative care center, the lower court dismissed the suit under the CLRA provision that requires plaintiffs bringing a professional negligence claim to first have a written expert opinion.?The Oklahoma Supreme Court said that H.B. 1603 was unconstitutional because it “logrolled” unrelated topics into one bill.?The?Oklahoma?constitution contains what is known as the single-subject rule, which requires that each piece of legislation deal with only one subject.?In other words, the court struck the CLRA, finding the legislation impermissibly addressed numerous unrelated areas.?”This court finds the legislature’s use of the broad topic of lawsuit reform does not cure the bill’s single-subject defects,” Justice Noma Gurich wrote in the 7-2 majority opinion.?An attorney for the plaintiff Carol Douglas said the court had warned lawmakers several times in recent years not to include unrelated topics in one bill.?”I hate to say this, but some of those things they could do, if they do them right ? but we’ve got Keystone Cops in our Legislature,” he said.
In Wall v. Marouk,?another medical negligence case, the court found the statute requiring an affidavit of merit in professional negligence actions was a ?special law,? meaning that it applies to only a certain class of persons. The court found the law created a ?new subclass of tort victims and tortfeasors? by requiring victims to obtain an affidavit of merit prior to proceeding with a lawsuit. The court also found the affidavit requirement creates an unconstitutional financial burden on access to the courts.
The CLRA also included statutes addressing many areas, including the following: class actions, appeal bond caps, asbestos claims (including protections for successor companies), specific products liability limitations, volunteer liability, medical peer review confidentiality and others.?Complicating the impact of the court’s decisions, the opinions do not specify the sections of the approximately 85 laws that may now be partially or totally void. Without those references, an automated annotation system at the state court OSCN Web site can?t include a reference to the court?s opinions in the annotations for each law altered by the decisions. My next blawg post deals with one such law and how it was saved by subsequent legislation.
The major provisions of the CLRA invalided include:
- affidavits of merit not required for lawsuits alleging professional negligence;
- prejudgment interest in personal injury suits no longer tolled for 24 months after filing of a lawsuit;
- $400,000 cap on non-economic damages in lawsuits alleging bodily injury is abolished. However, the 2011 Act amended the 2009 Act by lowering the cap to $350,000 and expanding its application, so district courts may find that this provision survives in its new form;
- appeal bonds no longer capped at $25 million; punitive damages awards no longer excluded from appeal bond calculation;
- a petition no longer need state whether or not damages are sought that exceed $75,000 (aiding in removal of lawsuits to federal court);
- disclosure by a plaintiff within 60 days of filing suit of a computation of all damages with all supporting documents and evidence no longer required;
- joint and several liability of defendants is restored when a plaintiff is without fault or when one of the defendants acted willfully or in reckless disregard. The 2011 Act went even further and abolished joint and several liability, so district courts likely will follow this more recent enactment until the Oklahoma Supreme Court instructs otherwise;
- a lawsuit is no longer dismissed if service of summons is not accomplished within 180 days;
- a plaintiff may dismiss unilaterally a lawsuit without prejudice until time of trial; the deadline of doing so before pretrial is abolished;
- in products liability, manufacturers and distributors are no longer immune from suit when a product is inherently unsafe and known to be unsafe by an ordinary consumer;
- food vendors no longer immune for claims that the food resulted in obesity;
- firearms manufacturers no longer immune from claims that a firearm was used to injure or kill another person;
- immunity removed for acts of health care providers who offer volunteer care during a declared state of emergency; and,
- ?evidence of use or non-use of seatbelts no longer statutorily admissible in civil lawsuits.
I expect that the Oklahoma Legislature, with heavy guidance from the State Chamber of Commerce, will soon commence drafting new individual bills to file in the 2014 legislative session which begins in February. [Update: A Special Session may be sought.]