Oklahoma Supreme Court Declares Oklahoma s Lawsuit Reform Act of 2009 Unconstitutional

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1 Oklahoma Supreme Court Declares Oklahoma s Lawsuit Reform Act of 2009 Unconstitutional On June 4, 2013, the Oklahoma Supreme Court issued two opinions invalidating as unconstitutional numerous Oklahoma statutes. The first decision, Wall v. Marouk, 2013 OK 36, concerned only 12 O.S , which required plaintiffs to file an affidavit of merit in actions for professional negligence. The court held section 19 was a special law in violation of the Oklahoma Constitution and was also an unconstitutional financial burden on access to the courts. Id. ( Title 12 O.S creates a monetary barrier to access the court system, and then applies that barrier only to a specific subclass of potential tort victims, those who are the victims of professional negligence. The result is a law that is unconstitutional both as a special law, and as an undue financial barrier on access to the courts. ) Consequently, plaintiffs pursuing professional negligence actions are no longer required to file an affidavit of merit. The second opinion, Douglas v. Cox Retirement Properties, Inc., 2013 OK 37, voided the entirety of H.B enacted in 2009 (commonly known as the Comprehensive Lawsuit Reform Act of 2009 ). The Oklahoma Supreme Court declared H.B unconstitutional due to its violation of the single-subject rule of Article 5, 57 of the Oklahoma Constitution. Id. The effects of this decision are far reaching because, as noted by the court, H.B contains 90 sections, encompassing a variety of subjects that do not reflect a common, closely akin theme or purpose. Id. The first 24 sections of H.B amended and created new laws within Oklahoma s civil procedure code. Id. Another 45 sections created new acts, including The Uniform Emergency Volunteer Health Practitioners Act, The Common Sense Consumption Act, The Asbestos and Silica Claims Priorities Act, The Innocent Successor Asbestos-Related Liability Fairness Act, and The School Protection Act. Id. The remaining 21 sections created new laws and amended then-existing ones. Id. The Practical Implications of Douglas The practical effect of the Douglas decision includes the need for counsel in pending litigation previously controlled by the 2009 version of a statute enacted or amended by H.B to determine the appropriate version now applicable to the case. By way of example, 23 O.S. 15, enacted as a new statute in 2004, was amended by H.B in 2009 and again amended in Though the Oklahoma Legislature s 2011 amendment to section 15 remains good law at present, it applies only to those civil actions that accrue on or after November 1, Therefore, there are many cases now pending before Oklahoma courts, which prior to the Douglas decision were controlled by the 2009 version of the statute once applicable to actions that accrued on or after November 1, However, following Douglas, the 2004 version will apply to those actions that accrued on or after November 1, 2004 and before November 1, For those actions which accrued on or after

2 November 1, 2011, the 2011 version applies. A discussion of the effects of each version on the application of joint and several liability follows. The most recent statute, enacted on November 1, 2011, abolishes joint and several liability in all civil actions based in tort, 1 except those brought by or on behalf of the State of Oklahoma. See, 23 O.S. 15 (2011). Consequently, as the statute so declares, a joint tortfeasor shall be liable only for the amount of damages allocated to that tortfeasor and nothing more. Id. at (A). Importantly, the 2011 statute completely eliminates any consideration of the egregiousness of the defendant s conduct or the relative percentage level of fault, as was present in the previous version. Id; compare, 23 O.S. 15 (2009) (superceded November 1, 2011). As noted above, this 2011 abolition of joint and several liability remains effective at present. The previous 2009 version, voided by Douglas, provided joint and several liability applied to a defendant only under the following conditions: (1) The defendant was more than fifty percent (50%) at fault; (2) The defendant s conduct was determined to be willful and wanton or reckless; or (3) The action was brought by or on behalf of the State of Oklahoma. 23 O.S. 15 (2009)(superceded November 1, 2011). The 2004 version, now applicable to all civil actions based on fault and not arising out of contract that accrue on or after November 1, 2004 and before November 1, 2011, mandates [a] defendant shall be jointly and severally liable for the damages recoverable by the plaintiff if the percentage of responsibility attributed to the defendant with respect to a cause of action is greater than fifty percent (50%). 23 O.S. 15(B) (2004). The statute further provides that liability for damages shall be joint and several [i]f at the time the incident which gave rise to the cause of action occurred, any joint tortfeasors acted with willful and wanton conduct or with reckless disregard of the consequences of the conduct and such conduct proximately caused the damages legally recoverable by the plaintiff. Id. at (C). Furthermore, the limitations on joint and several liability found in the 2004 version of the statute do not apply to actions brought by the state or a political subdivision of the state or any action in which no comparative negligence is found to be attributable to the plaintiff. Id. at (D). Like 23 O.S. 15, the following statutes were amended by H.B but previous and subsequent versions thereto remain viable even after Douglas: 1 23 O.S. 15 applies in any civil action based on fault and not arising out of contract.

3 12 O.S , which relates to judgments on interests; 12 O.S , which relates to stays of enforcement of judgments; 12 O.S. 2004, which relates to the Oklahoma Pleading Code; 12 O.S. 2023, which relates to class actions; 12 O.S. 3226, which relates to discovery; 47 O.S , which relates to child passenger restraint systems and seat belts; and 51 O.S. 155, which relates to the Governmental Tort Claims Act. Other Statutes Affected by Douglas 1603: The Douglas decision completely voids the following statutes and acts created by H.B. The Health Care Indemnity Task Force created by 36 O.S. 2211; The Common Sense Consumption Act, 76 O.S. 33 et seq.; The Asbestos and Silica Claims Priorities Act, 76 O.S. 60 et seq.; The Innocent Successor Asbestos-Related Liability Fairness Act, 76 O.S. 72 et seq.; The School Protection Act, 70 O.S et seq.; 12 O.S. 19, which required the filing of an affidavit of merit in professional negligence actions (amended in 2011 and invalidated by Wall v. Marouk, see above); 12 O.S , which authorized courts to decline to exercise jurisdiction under the doctrine of forum non conveniens; 12 O.S , which outlined the recovery and computation of certain payments and costs related to Medicaid; 76 O.S. 51, which stated the legislative finding that the unlawful use of firearms is the proximate cause of an injury resulting therefrom, rather than the unlawful manufacture, distribution or sale thereof; 76 O.S. 52, which limited liability for firearm manufacturers; 76 O.S. 53, which limited liability for certain firearm associations;

4 76 O.S. 54, which clarified the applicability of certain provisions pertaining to firearms; 76 O.S. 57, which provided that a manufacturer or seller shall not be liable for inherently unsafe products and provided that a claim that a product is inherently unsafe is an affirmative defense; and 76 O.S. 58, which made evidence regarding subsequent remedial measures inadmissible for certain purposes. The Douglas decision also voids H.B s amendments to the following statutory provisions: Amendments to the procedure for voluntary dismissals as delineated in 12 O.S. 684; Amendments adding certain grounds for interlocutory appeals related to class actions to 12 O.S. 993; Amendments to the pleading requirements for the amount in controversy as found in 12 O.S. 2008; 2 Amendments to 12 O.S allowing motions to clarify damages; Amendments to the definition of frivolous as found in 12 O.S & ; 3 Amendments to 12 O.S adding additional requirements for admission of expert testimony; Amendments to 12 O.S to include that certain facts or data upon which an expert bases an opinion or inference shall not be disclosed to the jury; Amendments to 12A O.S to preclude a separate tort cause of action for a breach of obligation of good faith under the UCC; Amendments to 63 O.S to include credentialing data and recredentialing data into the definition of Peer Review Information and modifications to the information subject to discovery; 2 Following Douglas, 12 O.S will require: Every pleading demanding relief for damages in excess of Ten Thousand Dollars ($10,000) shall, without demanding any specific amount of money, set forth only that the amount sought is in excess of Ten Thousand Dollars ($10,000), except in actions sounding in contract. 3 Following Douglas, frivolous means the action or pleading was knowingly asserted in bad faith or without any rational argument based in law or facts to support the position of the litigant or to change existing law. 12 O.S &

5 Amendments to the definition of volunteer and scope of immunity, as related to volunteers immunity from liability in a civil action in 76 O.S. 31; and Amendments to certain definitions under the Oklahoma Livestock Activities Liability Limitation Act in 76 O.S : 4 Finally, the Douglas decision effectively reinstates the following laws repealed by H.B. 5 O.S. 7.1 s requirement of an evidentiary hearing to determine a fair and reasonable fee for class counsel and declaration of the fiduciary capacity of the court on behalf of the class in making an award of attorney fees in class actions; and The Emergency Powers Regarding Licensing and Appointment of Health Personnel, as found in 63 O.S (part of the Catastrophic Health Emergency 4 HB 1603 repealed 63 O.S E also. However, the Oklahoma Supreme Court decision of Zeier v. Zimmer, 2006 OK 98, 152 P.3d 861, previously struck down the statute as unconstitutional. Therefore, the Douglas decision has no further impact on section E.

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