September 05, 2013 Top Story

Tort Reform Dealt a Blow in Oklahoma

Other states watch closely as tort reform struck on constitutional grounds

Andrew J. Kennedy

Tort reform proponents are left stinging after a pair of decisions handed down by the Oklahoma Supreme Court that struck a massive 90-provision tort reform bill called the Comprehensive Lawsuit Reform Act (CLRA). These decisions sent the future of tort reform back to the Oklahoma state legislature and dictated that any future reform would have to be made in piecemeal fashion. They also raise constitutional concerns that may influence tort reform efforts in other states.

Oklahoma Strikes Down Comprehensive Lawsuit Reform

The first of those two cases involved a frontal attack on CLRA. In Douglas v. Cox Retirement Properties, Inc., the plaintiff’s estate sued a rehabilitation center for allegedly causing his death while in the care of the center. The trial court granted a motion to dismiss because the plaintiff had failed to attach an “affidavit of merit” to his complaint, as required by a provision of the CLRA. An affidavit of merit is an affidavit stating that the plaintiff has consulted an expert who has certified the claim has merit.

On appeal, the plaintiff challenged the constitutionality of the entire CLRA, arguing that the act’s wide-ranging provisions ran afoul of Oklahoma’s constitutional “single-subject” provision that all acts “shall embrace but one subject.” The underlying purpose of the state Constitution’s single-subject rule, as the Oklahoma Supreme Court explained, was to ensure that both legislators and voters were “able to make a choice without being misled and [are] not forced to choose between two unrelated provisions contained in one measure.” Another purpose was to prevent making a bill veto-proof by combining two unrelated subjects into a single measure.

On examining the constitutionality of the CLRA, the Oklahoma Supreme Court first observed that the law was very broad on its face. Indeed, it consisted of 90 provisions and 45 entirely new acts, ranging in topics from immunity from lawsuits, expert testimony in asbestos cases, limited liability for firearms manufacturers, and school discipline. The court ultimately concluded that the term “lawsuit reform” was simply too broad to be considered a single subject. It reasoned that “the provisions are so unrelated that those voting on the law were faced with an all-or-nothing choice to ensure passage of the legislation.” A concurring justice said that the CLRA “ceased to be a statute for the reform of civil procedure when sections having nothing to do with civil procedure were included.”

The majority rejected the approach of the dissenting justices to save the CLRA by just severing the affidavit of merit requirement. It reasoned that picking and choosing what provisions to keep and which to jettison would transform the court into a policy-making body, which was not its function. The court then pointedly advised the legislature—in boldface type, no less—that the legislature could ameliorate the “logrolling” defects in the statute only by separately considering each of the CLRA’s 90 provisions.

Court Holds Affidavits of Merit Are Too Costly

In what some see as a stern rebuke of the state’s legislature’s tort reform efforts, on the same day it invalidated the entire CLRA, the Oklahoma Supreme Court also pointedly struck down the “affidavit of merit” requirement in malpractice cases against physicians. Wall v. Marouk. The court did not merely find that this requirement failed because the CLRA itself was unconstitutional; it found the affidavit of merit requirement itself was unconstitutional on two grounds.

First, the court held that the law flouted an Oklahoma constitutional provision barring the legislature from regulating judicial proceedings. But the court spent most of its opinion discussing the cost imposed on plaintiffs in obtaining affidavits of merit. It found that an affidavit of merit would cost a plaintiff between $500 and $5,000, which was simply too much. The court reasoned the cost created a burden on open access to the courts, a right guaranteed by the Oklahoma Constitution, which it traced back to the 13th century Magna Carta. In striking the requirement, the court reasoned that these increased costs were so high that they went “from being merely a hurdle to being an unconstitutional burden on accessing the courts.”

How Far-Reaching Are the Court’s Constitutional Concerns?

Some observers believe the Oklahoma Supreme Court’s decision shows that courts are taking a harder look at constitutional issues in tort reform measures. “I think the case shows that courts are more willing to strike down tort reform measures on constitutional grounds,” says Erik H. Olson, Atlanta, cochair of the ABA Section of Litigation’s Medical Professional Practices Subcommittee of the Health Law Litigation Committee.

But he does not think that this Douglas decision will necessarily start a trend. “I don’t foresee many successes using the single subject rule. This bill was unbelievably broad,” he notes. “I think the legislature made this an easy call for the Supreme Court.”

Others question whether a broad tort reform bill can pass muster. The Oklahoma Supreme Court had rejected a previous affidavit of merit measure in 2006 because it was too narrow and called that requirement an unconstitutional “special law,” states Joseph A. Frank, St. Louis, MO, cochair of the Section of Litigation’s Solo and Small Firm Committee. “Now,” he says, “the court has held that the legislation is too broad. Is there a ‘just right’? I don’t know.”

Even so, Frank predicts that the Douglas opinion’s rationale will have more far-reaching effect. “This may be a fertile area for challenging tort reform,” he observes. “A lot of states have single subject provisions and this is a powerful argument for throwing out broad tort reform statutes.”

Strictly applying single-subject provisions of other state constitutions may impede tort reform efforts elsewhere, states Olson. “Ironically, I think strict construction of the Oklahoma Constitution doomed the law. The dissent acknowledged that applying the Constitution’s single-subject requirement was difficult. Then it jumped over that requirement to say it would have upheld the law.”

The court’s striking the affidavit of merit requirement in Wall may also have a broader impact on tort reform. According to the National Conference of State Legislatures, as of 2011, there were 22 states that imposed affidavit of merit requirements upon plaintiffs in medical malpractice cases. By invoking the Magna Carta to dismiss the affidavit of merit requirement, the Oklahoma Supreme Court was grounding its holding on a document that is a foundation for American jurisprudence in general, observes Frank. It was not limiting its rationale to just its own state constitution. He noted that open courts provisions are common in state constitutions. So Wall could spur more challenges to affidavit of merit requirements. “I would anticipate that plaintiffs challenging tort reform would cite this case,” he says. “It is a strong argument.”

Andrew J. Kennedy is a contributing editor for Litigation News.

Keywords: tort reform, single subject, affidavit of merit, certificate of merit, open courts

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