In a dramatic setback for proponents of tort reform, the Oklahoma Supreme Court invalidated the entirety of the Oklahoma Legislature’s keystone achievement of 2009: the Comprehensive Lawsuit Reform Act of 2009, a 130-page wide-ranging civil suit tort reform bill. The reforms broadly restricted money damages awards, imposed greater burdens on plaintiffs filing tort claims, and established categories of immunity from suit for certain kinds of defendants.
In the course of chiding the Legislature for “logrolling” legislation, the Court in large part rolled back tort reform to 2009, by a 7-2 margin. Other elements of tort reform, enacted as a package of tort reform by the 2011 legislature, face constitutional challenges that have yet to reach the Oklahoma Supreme Court. These later tort reform efforts build on the 2009 Act by such things as imposing additional caps on money damage awards and abolition of joint and several liability.
Today’s 7-2 decisions of the Oklahoma Supreme Court, contrasted with the strong tort reform majorities that exist in both chambers of the Legislature, makes clear that the tort reform battles will continue in Oklahoma for years to come.
Wall v. Marouk: the end of the affidavit of merit in professional negligence suits. Wall v Marouk
The Court led off with an opinion that struck down just one requirement of the tort reform act: the “affidavit of merit.” At the time of filing of any lawsuit alleging “professional negligence,” the Act requires that a Plaintiff must file with their Petition an affidavit of merit attesting that a written opinion of a qualified expert has been obtained and that the opinion finds that the alleged acts or omissions of the defendant constitute professional negligence. 12 O.S. § 19. The penalty for failing to meet this requirement can be dismissal.
First, the Court found that the Act is a “special law” in violation of Art. 5, § 46 of the Oklahoma Constitution. The law is described as “a special law regulating the practice of judicial proceedings before the courts or any other tribunal” by creating “a new subclass of tort victims and tortfeasors known as professional tort victims and tortfeasors.” Wall v. Marouk, 2013 OK 36, ¶ 6.
Second, the Court held that the Act imposed an impermissible restriction on the rights of citizens to access the courts, relying in part on its own precedent stating that the cost of an affidavit of merit ranges from $500 to $5,000. The Legislature sought to avoid application of this precedent by creating an indigence safety valve, allowing a plaintiff to apply for a waiver of the affidavit requirement, but the Court rejected the effort because the application itself imposed a $40 fee. Wall, 2013 OK 36 at ¶¶ 19-23.
Douglas v. Cox Retirement Properties: the entirety of the Act is incurably infirm. Douglas v Cox Retirement
In its second decision of the day, the Court moved from the specific to the general and ruled that the Act violates the “single-subject rule” of the Oklahoma Constitution. Art 5, § 57. The Court found that the Act contains 90 sections, many of which having nothing in common with any other. The Court further found that the Act contains so many topics that it cannot cure them through severance. Douglas v. Cox Retirement Properties, Inc., 2013 OK 37, ¶¶ 7-9.
The major provisions of the 2009 Act that now are invalid 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.