Oklahoma Supreme Court Holds Comprehensive Lawsuit Reform Act of 2009 Unconstitutional

by Wilson Elser
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In 2009, Oklahoma joined the list of states attempting to curb “lawsuit abuse” by passing the Comprehensive Lawsuit Reform Act of 2009 (CLRA of 2009). Arguably the most sweeping legislation affecting the practice of law in Oklahoma, the CLRA of 2009 was 130 pages long and contained both new statutes and amendments to existing statutes. It attempted to address the issues, both procedural and substantive, that lawmakers found troubling, including, but not limited to:

  • Elimination of appeal bonds for punitive damages (12 O.S. § 990.4) 
  • Capping of non-economic damages (23 O.S. § 61.2)
  • Applicability of joint and several liability (23 O.S. § 15) 
  • Calculation of prejudgment interest in personal injury cases
    (12 O.S. § 727.1)
  • Pleading requirements related to diversity (12 O.S. § 2004) 
  • Mandatory initial discovery disclosures regarding plaintiff’s damages (12 O.S. § 3226).

The CLRA of 2009 also created immunity for:

  • Firearms manufacturers (76 O.S. § 51-54) 
  • Agritourism activities (76 O.S. § 50.2) 
  • Food distributors from obesity claims (76 O.S. § 33-36) 
  • Teachers for use of force against a student (51 O.S. § 51)
  • Volunteer health care worker liability immunity during a declared emergency (63 O.S. § 683.13-684.24; 76 O.S. § 31). 

In addition, the CLRA of 2009 created an entirely new system for handling asbestos and silica claims, which included among other things compliance with an objective medical criteria prior to prosecuting claims in the civil system, tolling of limitations for certain individuals who could not meet the medical criteria, and limitations on liability for successor corporations (76 O.S. § 60-79). In an effort to ensure that professional negligence cases were truly meritorious, expert affidavits were required to proceed against the professional (12 O.S. § 19). 

On June 4, 2013, in Douglas v. Cox Retirement Properties, Inc., the Oklahoma Supreme Court held that the CLRA of 2009 amounted to unconstitutional “logrolling” in violation of the Oklahoma Constitution’s single-subject rule. Logrolling is defined as the trading of favors or quid pro quo. It is the practice of ensuring the passage of a law by creating one choice in which a legislator or voter is forced to assent to an unfavorable provision to secure passage of a favorable one or, conversely, forced to vote against a favorable provision to ensure an unfavorable provision is not enacted. The good intentions of the Oklahoma lawmakers in the broad CLRA of 2009, often described as the most comprehensive tort reform, were ultimately swept away by the Oklahoma Supreme Court in a single succinct opinion wherein, because of its numerous, unrelated subjects, the Court held the CLRA of 2009 to be void in its entirety.

Background: Douglas v. Cox Retirement Properties, Inc.
Richard Douglas was admitted to Defendant’s rehabilitative center for extended care and remained at the facility for 21 days. Shortly after being discharged, Douglas died. Douglas’s estate filed a wrongful death action against Defendant alleging Douglas died as a result of the facility’s negligent care and treatment.

Defendant moved to dismiss the case for Plaintiff’s failure to comply with 12 O.S. Supp. § 19 of the CLRA of 2009, which required an expert affidavit to be attached to the petition. Plaintiff responded to the motion and argued that the CLRA of 2009 was unconstitutional “logrolling.” The trial court ultimately granted Defendant’s motion to dismiss. Plaintiff filed a petition for certiorari and the Oklahoma Supreme Court granted review.

Decisions
On appeal, the Oklahoma Supreme Court reversed the trial court’s order dismissing the case and held that the CLRA of 2009 was unconstitutional. Citing Article 5, § 57 of the Oklahoma Constitution, which provides “Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title…,” the Court concluded that the 90 sections and varying subjects contained in the act were of no common theme or purpose and too dissimilar to be in harmony with the constitution. “The Legislature’s use of the broad topic of lawsuit reform does not cure the bill’s single-subject defects.” The bill was held to be unconstitutional and void in its entirety.

Comment
This decision by the Oklahoma Supreme Court is a classic case of “no good deed goes unpunished.” The CLRA of 2009, which was clearly meant by the Oklahoma Legislature to curtail the filing of questionable lawsuits and to lessen the burdens on the Oklahoma court system, has been erased in a single, concise opinion. The decision potentially affects all pending litigation, especially with regard to professional negligence and asbestos and silica claims. Courts will likely experience an increase in new filings across Oklahoma. Just as litigators rushed to the courthouse to beat the effective date of the CLRA of 2009, they will now rush to beat any attempt by the Oklahoma Legislature to pass the various sections within the CLRA of 2009 as separate acts, which according to the Court is the only way to cure the defects within the CLRA of 2009.

With this opinion, the Oklahoma Supreme Court sent a strong message to the Oklahoma Legislature that regardless of “the wisdom behind the law,” the law as written must not run afoul of the mandates of the Oklahoma Constitution.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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