Groups join forces to bar new tort law
It violates state constitution, suit says
BY SETH BLOMELEY ARKANSAS DEMOCRAT-GAZETTE
April 21, 2004

   Arkansas Advocates for Nursing Home Residents and others filed a complaint Tuesday to strike down as unconstitutional the state’s new tort reform law.
   The suit was filed by attorney Morgan "Chip" Welch of Little Rock.
   Also challenging the law in Welch’s suit are the Arkansas AFL-CIO, the Arkansas Trial Lawyers Association and three people who contend the law infringes upon their rights as jurors.
   Welch filed the suit as an original action in the state Supreme Court. He’s seeking an order to bar lower courts from enforcing the tort law. The state’s circuit judges are listed as defendants.
   The law, Act 649 of 2003, limits damages that plaintiffs can receive in lawsuits.
   "Act 649 unfairly punishes victims of corporate misconduct and medical malpractice, who have already suffered great pain and suffering," Welch said in a news release.
   Ron Russell, president of the Arkansas State Chamber of Commerce, which took the lead in lobbying for the act, said he wasn’t surprised trial lawyers would file a challenge.
   "I will say [the tort law] will be well defended," Russell said. "There’s just a lot of greed going on with the trial lawyers and this [lawsuit] is not about justice. This is about greed for trial lawyers."
   Welch said lawyers aren’t being greedy.
   "Nope, this is about the Arkansas Constitution," Welch said in an interview. "This is about the rights of citizens and juries. In 1868 the robber barons and the greedy business owners got the Legislature to take away the right of jury trials except in limited situations."
   He said that prompted the people six years later to approve Article 5, Section 32 of the state constitution. The article addresses workers’ compensation and says the Legislature "shall have the power to enact laws prescribing the amount of compensation to be paid by employers for injuries to or death of employees."
   The section doesn’t specifically address other kinds of lawsuits but says, "Provided, that otherwise no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property."
   Welch said that language would make the tort law unconstitutional.
   Russell said he hasn’t seen the lawsuit and, therefore, could not comment on its merits. He said the chamber’s lawyers would analyze it.
   Gov. Mike Huckabee supported the tort law. Huckabee spokesman Jim Harris said Huckabee hasn’t seen the lawsuit and so cannot comment on it.
   During the debate in the Legislature, supporters said Arkansas insurance rates were going up because of lawsuits against businesses. They said there needed to be limits to create a better business climate.
   But opponents said there were few large-dollar-amount verdicts in Arkansas and that there was no proof lawsuits were hurting Arkansas businesses.
   Act 649, among other things, limits punitive damages in civil lawsuits to $250,000 or three times compensatory damages, whichever is greater, but not to exceed $1 million.
   Punitive damages can be awarded only if the plaintiff receives compensatory damages and proves by "clear and convincing evidence" that the defendant knew his conduct would likely injure the plaintiff, but continued the conduct with malice or an intent to cause injury.
   "Clear and convincing evidence" is a more demanding standard than some others, such as "a preponderance of" the evidence.
   The caps on damages don’t apply if clear and convincing evidence shows that the defendant intentionally tried to harm, and "in fact, did harm" the plaintiff.
   Act 649 also provides that defendants partly responsible for damages don’t have to pay the entire judgment if other defendants fail to pay their share.
   The law set stricter evidence requirements in medical malpractice cases and provides that lawsuits in such cases can be filed only in the county in which the alleged misconduct occurred. Information for this article was contributed by Michael Rowett of the Arkansas Democrat-Gazette.