Oklahoma's Highest Court Strikes Down Tort Reform Legislation

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By: Timothy S. Tomasik and Patrick J. Giese

“But there is one way in this country in which all men are created equal – there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president.  That institution gentlemen, is a court.”  - Harper Lee, To Kill a Mockingbird.

There has been a raging debate in this country over the last thirty years over “Tort Reform.”  Another battle has been won – however briefly – by tort victims.  Earlier this month, the Oklahoma Supreme Court struck down what was one of this nation’s most sweeping pieces of Tort Reform legislation.  In Douglas v. Cox Retirement Properties, Inc., the Honorable Rebecca Brett Nightingale’s decision struck down the state’s 2009 Comprehensive Lawsuit Reform Act – which limited non-economic damage awards to victims to $350,000 regardless of the facts and circumstances – for violating Oklahoma’s “single-subject rule.”  Judge Nightingale wrote that the legislation violated the single-subject rule by “logrolling” multiple issues into one piece of legislation, thereby creating a situation where lawmakers are forced to assent to an unfavorable provision to secure passage of a favorable one, or vice-versa.  In dissecting the Oklahoma law, Judge Nightingale explained that the legislation contained 90 sections without a common, closely akin theme or purpose – a clear violation of State prohibitions on logrolling.

In response to arguments that the Court simply sever the portions of the legislation it found unconstitutional, the Court inDouglas noted that the various provisions were so diverse that severance could not cure the defect.  To that end, the Court explicitly declined to engage in policy making, noting that “policy making is the job of the Legislature” and concluded that the defects could only be cured by considering each of the Acts articulated in the comprehensive reform bill separately.

Of course, this decision has once again sparked debate over how best to handle the keys to the courthouse and compensation for the injured.  Though this firm applauds the Oklahoma Supreme Court’s common sense approach to striking down this oppressive and erroneous attempt at “tort reform,” we fear the Oklahoma Supreme Court’s failure to specifically address the constitutionality of damages caps could simply rally Tort Reformers to re-pass more narrowly tailored legislation.  We fear the rights of the injured in Oklahoma have received only temporary respite.

Here in Illinois, in the last two decades our Supreme Court has more boldly struck down similarly imprecise and artificial measures to trample the rights of the injured. In its 1997 decision, Best v. Taylor Machine Works, our Supreme Court thoughtfully opined that a $500,000 cap on noneconomic damages violated our Constitution’s special legislation clause and acted as a “legislative remittitur,” usurping the power of the judiciary.  Nevertheless, in 2004, the Illinois General Assembly passed another effort aimed at limiting compensation for injured Illinois citizens.  In 2010, yet again, our Supreme Court, relying heavily on Best, decided Lebron v. Gottlieb Memorial Hospital and reaffirmed the unconstitutionality of damages caps.

Kudos to the Oklahoma Supreme Court.  However, if history is any indication, we should expect our own General Assembly to revisit this issue in the next few years.

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