Lawmakers told punitive damages part of tort reform review


LITTLE ROCK — A task force studying the issue of damages in civil cases likely will recommend some limits on punitive damages, a member of the panel told lawmakers Monday.

Little Rock lawyer Paul Byrd said he expects the task force, created by Supreme Court in August to study tort reform, to include punitive damages in civil lawsuits in any recommendations, but with restrictions.

“I hope that what the Supreme Court task force committee can do, and what I expect to come out of that committee with punitive damages, is that there’s going to be some very tight procedures that when you have the right case that has the right kind of behavior that presents a punitive case, that there’s going to be certain steps that have to be taken before that goes to a jury,” said Byrd, a member of the Task Force on Practice and Procedure in Civil Cases.

“And then, once it goes to a jury, a judge has the right under his or her powers to prevent (a punitive damage award), or to lessen it,” Byrd said during a joint meeting of the Senate and House Constitutional Issues Subcommittee of the State Agencies and Governmental Affairs Committee.

He said the 2003 Civil Justice Reform Act, which capped punitive damages in plaintiffs’ lawsuits at three times the amount of compensatory damages, with a maximum of $1 million, was passed by the Legislature in response to jury award of $78 million against a Mena nursing home in a resident’s death. The state Supreme Court reduced the award to $26 million in May 2003.

In 2011, the state high court struck down some provisions of the 2003 law, including the cap on punitive damages.

“I think those problems are going to go away and hopefully we can say that Arkansas is not the hell hole of judiciary demise but that it’s a business-friendly state,” said Byrd, a personal injury lawyer.

The subcommittee spent about two hours Monday learning about the state’s tort reform law and state Supreme Court rulings.

Byrd and Brian Brooks, who is also on the 10-member Supreme Court task force, discussed the task force and its approach to reviewing tort reform laws in the state.

Along with the 2011 Supreme Court decision that struck down the provisions capping punitive damage awards in civil courts, the high court in 2012 struck down a provision of the 2003 law that limited who could testify as an expert witness in medical malpractice cases.

During the legislative session earlier this year, some lawmakers said their goal was to put in the Arkansas Constitution parts of the tort reform law that the state Supreme Court said did not meet constitutional muster. They hoped to refer their proposed constitutional amendment to voters in the 2014 general election.

However, battle lines were drawn during the session between two different approaches to address the issue. Neither received enough support to be referred to the 2014 ballot.

After the session, the Arkansas Chamber of Commerce-Associated Industries of Arkansas and the Arkansas Trial Lawyers Association both said they were considering working on competing tort reform ballot initiatives for the 2014 election.

In August, the state Supreme Court created the task force and said it would review the tort reform debate during the legislative session, the state’s current laws and the provision of the 2003 law that was struck down. The task force is to submit recommendations on possible changes to the high court.

Leaders of both the state’s leading business organization and the state’s trial lawyers said last week they would decide on whether to pursue ballot initiatives after the task force makes its recommendations at the end of the year.

Rep. Linda Chesterfield, D-Little Rock, said during Monday’s meeting that the task force must make sure there is fairness in the state’s tort reform laws.

“We do not want to create an atmosphere that is unfriendly to business, but must make sure the rights of the people are protected as well,” Chesterfield said.