Arkansans for Jobs and Justice

  • Legislative Question Committee filed paperwork on Monday, October 16, 2017
  • Membership on the committee includes
  • Arkansas State Chamber
  • Arkansas Medical Society
  • Arkansas Trucking Association
  • Arkansas Health Care Association
  • The Poultry Federation
  • Arkansas Hospital Association
  • Members represent a broad coalition representing diverse Arkansans

 

SJR8 – November 2018 Ballot

  • SJR8 would install civil justice reform measures into the Arkansas Constitution.
  • If the voters pass the constitutional amendment, the Court won’t be able to claim those measures to be unconstitutional.
  • Cap contingency fees for attorneys in civil actions at 33 1/3% of the net recovery.
  • Authorize the General Assembly to adopt legislation establishing the process for calculating the fee and setting penalties for violation.
  • Authorize the General Assembly to adjust the fee cap with 2/3 vote of each chamber.
  • Cap punitive damage awards in actions for wrongful death or injury to person or property at the greater of $500,000 or 3 times the compensatory damage award for each claimant.
  • Create an exception to the cap for intentional conduct.
  • Authorize the General Assembly to increase – but not decrease -the cap with 2/3 vote of each house.
  • Cap non-economic damage awards in actions for wrongful death or injury to person or property at $500,000 for each claimant, not to exceed $500,000 to be shared among the beneficiaries of a decedent in a wrongful death action.
  • Authorize the General Assembly to increase – but not decrease – the cap with 2/3 vote of each house.
  • Authorize the General Assembly to adopt legislation establishing the process for adjusting the damage caps based on inflation/deflation.
  • The Arkansas Supreme Court will continue to adopt and implement rules of pleading, practice and procedure.
  • Authorize the General Assembly, by 3/5 vote of each chamber, to 1) adopt rules of pleading, practice and procedure for the courts; and, 2) amend or repeal rules of pleading, practice and procedure prescribed by the Arkansas Supreme Court.
  • In the event of a conflict between a rule adopted by the General Assembly and a rule adopted by the Arkansas Supreme Court, the General Assembly rule will control.
  • Explicitly preserves the right of trial by jury.

 

None of the proposals contained in SJR8 are novel.

  • Nineteen (19) states have some form of limits on contingency fees for attorneys.
  • Thirty-three (33) states have some form of damage caps.
  • In the federal court system, and in sixteen (16) states, the legislature has authority to approve and/or adopt court rules.

 

Civil Justice Reform Act of 2003

  • In 2003, the Arkansas General Assembly adopted the Civil Justice Reform Act (CJRA) of 2003.
  • Some of the things CJRA did include:
  • Changed Arkansas from Joint and Several Liability to Joint Liability and adopted a process for apportionment of fault;
  • Capped punitive damages at the greater of $250,000 or 3 x compensatory, not to exceed $1,000,000;
  • Allow evidence of payment of medical bills from a 3rd party (collateral source rule);
  • Require an “affidavit of merit” in a medical malpractice lawsuit such that a plaintiff must submit the affidavit of a qualifying expert when filing the complaint
  • The CJRA showed signs of success following its implementation.
  • The number of medical malpractice filings in Arkansas dropped after its adoption.
  • Records of the Administrative Office of the Courts show 383 malpractice cases filed in 2001, 383 in 2002, 385 in 2003.
  • In 2004, after passage of CJRA, the number dropped to 305. It dropped in 2005 to 282, and again in 2006 to 255. It rose slightly in 2007 to 285, but far below the pre-CJRA levels.
  • Furthermore, the Arkansas Insurance Commissioner reported that “new insurance companies were coming in because they found a friendlier and more stable climate since passage of the CJRA1.
  • Plaintiffs challenged various aspects of the CJRA and, over the course of several rulings, the Arkansas Supreme Court invalidated much of it.
  • In 2009 (Johnson v. Rockwell), it held that the CJRA’s provisions for apportioning fault- which were necessary to implement the switch to Joint Liability- were in violation of Amendment 80; as a result, the switch to Joint Liability was rendered meaningless.
  • In 2010 (Bayer v. Schafer), it held that the cap on punitive damages was unconstitutional.
  • It also invalidated the affidavit of merit, again stating that it amounted to a rule of pleading, practice and procedure (Summerville v. Thrower).
  • The 2003 Civil Justice Reform Act passed 34-1 in the Senate, 87-8 in the House.
  • These were policy decisions made by an overwhelming majority of the elected officials in Arkansas and they were struck by the Court on constitutional grounds.

 

 1 “Civil Justice Reform, Twists and Turns in Arkansas”, Mark Behrens & Christopher Casolaro (2015) (citing Doug Smith, Fewer Medical Malpractice Suits, Ark. Times, Nov. 6, 2008).