Tort reform bill heads to Oklahoma governor's desk

Journal Record, The (Oklahoma City), Apr 20, 2007 by Janice Francis-Smith

In passing the most extensive tort reform bill ever to be approved by the Oklahoma Legislature, members of the state Senate on Thursday quoted heavily from past speeches of the one person that now has the power to stop the measure from becoming law - Gov. Brad Henry.

"Four years ago, Governor Henry promised to bring 'Texas Plus' tort reform to Oklahoma," said Senate Co-President Pro Tempore Glenn Coffee, R-Oklahoma City. "Senate Bill 507 includes 18 of the 28 reforms proposed by the governor, and his signature on this bill will help Oklahoma catch up with states like Texas. Oklahoma needs meaningful lawsuit reform to help attract jobs and to make health care more affordable and available."

Advocates of tort reform - also called lawsuit reform - seek to write into law protections against frivolous lawsuits that may be filed against businesses and health care providers for alleged injuries, or torts. In past years, Republicans have introduced several tort reform bills only to see most of those measures defeated by Democrat leaders. But this year, with Republicans controlling the state House of Representatives and exactly half of the state Senate, an extensive tort reform bill was able to pass with the aid of just one Democrat legislator: state Sen. Susan Paddack, D-Ada.

SB 507 began the legislative session as a three-page bill to protect volunteers from lawsuits. But the bill was overhauled once it reached the House, with the House Republican leadership growing the bill to a 130-page, comprehensive tort reform measure. The legislative process dictates that the new version of SB 507 required just one hearing in the Senate, by the full membership - which is evenly divided between 24 Democrats and 24 Republicans. All bills require the support of at least 25 senators to pass. By breaking with her party, Paddack ensured the success of SB 507 on an otherwise party-line vote of 25 to 23. Paddack did not comment on the vote before leaving the Capitol.

Now the bill heads to Democrat Gov. Henry for his signature. Shortly after voting in favor of SB 507, Coffee distributed copies of a letter Henry had addressed to him on April 21, 2004, in which Henry asked Coffee for his support in passing tort reform measures in the Legislature.

"As you know, I am a leading proponent of lawsuit reform," Henry wrote. "I have worked diligently, both publicly and behind the scene, for passage of meaningful, genuine, sweeping reforms which exceed even those enacted last year by Texas. -Perhaps most important, I have consistently and forcefully continued to push this issue with legislative leaders during our regular leadership meetings."

Mike Seney, vice president of operations for The State Chamber, called SB 507 an excellent bill.

"It includes so much of the governor's call for tort reform," said Seney.

The State Chamber also made note of a news release from Henry's office in January 2004, introducing Henry's tort reform plan as "the most sweeping, comprehensive tort reform package in the nation," one that "beats Texas."

SB 507 would make it harder to file frivolous lawsuits, requiring a plaintiff to present an affidavit from a qualified expert attesting that the case has merit. SB 507 addresses the unconstitutional issues with a similar 2003 law the Oklahoma Supreme Court struck down in December. The new law would require plaintiffs filing any kind of professional liability case - not just medical liability cases - to obtain the affidavit, and would give the plaintiff more time to get it.

Other provisions of SB 507 include a $300,000 cap on non- economic damages, the elimination of joint and several liability, limits on prejudgment interest, standards for expert testimony, and a statute of limitations on liability cases.

State Sen. James Williamson, R-Tulsa, who carried the bill in the Senate on Thursday, acknowledged one problem with SB 507, which legislative leaders have assured him will be taken care of with another bill. SB 507 would allow a jury to be informed if the plaintiff in a tort case has received payment for his or her injury from a collateral source, such as the plaintiff's own health insurance policy.

In an earlier version of SB 507, the jury would have been allowed to chose whether to deduct the amount of the collateral source payment from the amount the defendant would have to pay if found guilty. But in the version of SB 507 passed Thursday, the word "may" had been changed to "shall," thus requiring the jury to deduct collateral source payments from the judgment.

"I about flipped over when I saw that," Williamson told his fellow senators, adding that he did not know why House members made that particular change in the bill. "I told them in our caucus we cannot live with that language that way."

House leadership has promised a new bill will change the law, restoring the word "may."

A few lawmakers addressed accusations made over the last few days by some royalty owners, who said SB 507 would inhibit class-action lawsuits against oil and gas companies. The bill would merely require attorneys who handle class-action lawsuits to work harder, said Senate Republican Floor Leader Owen Laughlin, R-Woodward. SB 507 would require potential members of the class to opt in to the lawsuit, so attorneys would have to personally contact each member of the class to ensure their participation. Current law automatically makes potential class members party to the case unless they choose to opt out.