By John Lyon
Arkansas News Bureau

LITTLE ROCK — Two provisions of a tort reform law the state Legislature passed six years ago are unconstitutional, the Arkansas Supreme Court ruled Thursday.

Responding to questions submitted to the court by U.S. District Judge Leon Holmes, the court said portions of Act 649 of 2003, also known as the Civil Justice Reform Act, are unconstitutional because they affect procedural issues that are the province of the state Supreme Court, in violation of the separation-of-powers clause of the Arkansas Constitution.

“Rules regarding (legal) pleading, practice and procedure are solely the responsibility of this court,” Justice Paul Danielson wrote in the high court’s answer.

Holmes asked the state Supreme Court to consider the constitutionality of the provisions in connection with a federal lawsuit filed by Darrell Johnson, who was injured on Feb. 24, 2004, while working as a mechanic at Eastman Chemical Co.’s Batesville plant.

Johnson alleged that a safety switch on a “starter bucket” was defectively designed, allowing the bucket to power on while his hand was inside it and injuring his hand and nervous system. He filed a suit seeking damages from Milwaukee-based Rockwell Automation, which designed the device.

Rockwell denied the design was defective, but it also claimed Eastman had modified the starter bucket and argued that under the Civil Justice Reform Act of 2003, it had the right to name Eastman as a “non-party at fault.” Rockwell said any damages it had to pay should be limited to its “percentage share of actual liability.”

Johnson claimed that although his employee medical plan paid some of his medical costs, his costs exceeded the amount the plan paid. He sought to present evidence of the full extent of his costs, but Rockwell argued that the tort reform law limited the evidence to costs that Johnson had already paid or that remained unpaid.

Johnson argued that the two provisions of the tort reform law cited by Rockwell violate the Arkansas Constitution. In its answer Thursday, the Supreme Court agreed.

Regarding the non-party provision of the law, Danielson wrote that because the provision is procedural, it “offends the principle of separation of powers and the powers specifically prescribed to this court by Amendment 80.”

The provision limiting evidence of medical costs also violates the principal of separation of powers because “rules regarding the admissibility of evidence are within our province,” Danielson wrote.

The Legislature passed the Civil Justice Reform Act two years after a jury awarded a controversial $78 million judgment against a Mena nursing home in a resident’s death. The state Supreme Court reduced the award to $26 million in May 2003.

Among other provisions, the law sets a $1 million cap on punitive damages in civil lawsuits. The Supreme Court was not asked about the damages cap.

Little Rock lawyer James McMath, who is representing Johnson, said Thursday he was pleased with the court’s finding that parts of the law are unconstitutional.

“The Legislature is trying to operate as a court,” McMath said.

David Donovan, a Little Rock lawyer representing Rockwell, said he respected the court’s opinion but was disappointed by it. He said he had viewed the tort reform law as making substantive, not procedural, changes.

“I think that the legislation was designed to accurately reflect the liability and damages which a jury was asked to assess and to make substantive changes in that,” he said.

Donovan said the court’s answer does not affect Rockwell’s main argument, which is that the starter bucket was not defectively designed. The case is scheduled to go to trial in U.S. District Court at Little Rock in June.