Tort reform fight could move from Legislature to ballot box


LITTLE ROCK — The state’s leading business organization and trial lawyers were at odds during the legislative session over tort reform, and their standoff could continue through the 2014 general election.

The State Chamber of Commerce-Associated Industries of Arkansas sent out questionnaires to its 1,300 member organizations last week asking for their feedback on tort reform, or efforts aimed at reducing civil litigation or damages.

Randy Zook, CEO of the state chamber, said the Legislature’s failure during its recent session to refer a tort reform measure to voters next year left his organization with little choice but to develop a proposal of its own.

“We’re just sounding our membership trying to figure out what people’s view of that issue is at this point,” Zook said last week, adding that “it’s likely” the chamber will move forward with trying to get an ballot initiative before voters in Nov. 2014.

During the session, the state chamber backed a proposal by Sen. Eddie Joe Williams, R-Cabot, that would have stripped the the state Supreme Court of its authority to set rules for pleading, practice and procedures, and given it to the Legislature.

Dan Elliott, president of the Arkansas Trial Lawyers Association, which tacitly supported — agreed not to oppose — a competing tort reform measure by Sen. Jeremy Hutchinson, R-Little Rock, said his organization is watching the state chamber’s efforts and plans to act accordingly, if necessary.

“We’re preparing for a full-blown campaign,” Elliott said last week. ” We are assuming at this point that the chamber is going to try and do a petition initiated act and we have taken steps, without getting into a whole lot of detail, we are taking steps.”

In 2012, the state Supreme Court struck down a provision of the 2003 tort reform law that limited who could testify as an expert in medical malpractices cases. The decision came on the heals of a 2011 ruling in which the high court struck provisions of the law that capped punitive damage awards in civil cases.

When lawmakers entered the 89th General Assembly in January, they said their goal was to put in the Arkansas Constitution parts of the tort reform law that the state Supreme Court said did not meet constitutional muster. Voters would be given the opportunity to vote on the tort reform in the form of a proposed constitutional amendment that would be referred to voters in the 2014 general election.

During the session, battle lines were drawn between two vastly different approaches to address the issue.

The proposal Hutchinson sponsored would have required that a person who files a lawsuit deemed to be frivolous pay the other party’s attorney fees; that an expert witness in a medical practice lawsuit be trained in the same or similar discipline as the person on trial or have similar education experience; and that an attorney who files a medical malpractice suit file a “certificate of good faith” stating that a medical expert is ready to testify that medical malpractice occurred.”

While the Arkansas Bar Association opposed the measure, the trial lawyers group said it was compromise its members could live with.

“It’s not that we thought that Hutchinson’s amendment was really needed by everybody, but it was okay, and we agreed to support it if it got passed,” Elliott said.

On the other hand, he said Williams’ proposed amendment was unacceptable.

“”That proposal basically violates the principal of three separate but equal branches and puts the Legislature in charge of making the rules of practice and procedures and the rules of evidence for the Supreme Court, which makes it more political” Elliott said. “If anything, it’s the Supreme Court … under Amendment 80 that was passed by voters, that should make the rules for practice and procedure for the Supreme Court.

“If the chamber is going to push something like (Williams’ proposal) to punish working Arkansans, we’re going to fight back and we’re going to push for a measure that’s going to strengthen the position of the working Arkansans who have been injured due to the fault of others.”

Zook said the chamber has not developed a proposal yet, but it did strongly support Williams’ during the session.

“It’s a widely recognized problem,” he said. “I think people recognize there is a great deal of lawsuit abuse, or legal system abuse — the whole idea of cooked up class-action suits that have soaked and in some cases bankrupted companies, people understand this.

“When you see outlandish damage settlement and jury awards that are just over the top, people understand that somebody is paying for that. The fact is, we’re paying for it. In fact, medical costs is an area with malpractice abuse.”

Zook said his organization does not have a timetable for drafting a proposal, but it is moving in that direction.

Seeking input from members “is a routine business for us,” he said. “We’ve got plenty of time to make a decision.”

Once a proposal is drafted, it’s ballot title and name must be certified by the attorney general before signature-gathering can begin. Supporters would have until July 7, 2014, to gather 62,507 signatures for proposed initiated act or 78,113 signatures for a proposed constitutional amendment to qualify for the 2014 general election.