Everything Old is New Again: Special session restores 2009 lawsuit reforms
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Published: 12-Sep-2013

OKLAHOMA CITY – The 2013 special session of the Oklahoma Legislature was nearly, but not quite, the soul of efficiency. In terms of tort litigation, the gathering settled some important policy questions – for now.

The session ran just five days. Oklahoma trial lawyers may deliberate before taking a new run at limiting or gutting some of the new laws, and few analysts expect them to leave the measures unchallenged.

From the original cluster of 31 bills on the calendar when the special session began just nine days ago, Republicans in the two chambers settled on 23 measures that have the practical effect of reenacting the key provisions of a 2009 lawsuit reform bill, the sweeping measure the state Supreme Court struck down on a 7-2 vote in early June.

In sum, the court had decided the broad original law violated the Sooner State’s “single subject” provisions. The special session remedied that -- and did so quickly -- putting the "old" 2009 provisions back into force.

By Monday, all but four of the restorative measures had passed with super-majorities, meaning 19 parts of the 2009 law went immediately back into effect with Gov. Mary Fallin’s signature Tuesday afternoon.

Four measures did fall short of super-majorities, so they will not take effect for 90 days. Still, as Gov. Fallin reminded reporters this week, her objective in issuing the “call” for a special session was, all along, to have the key lawsuit reforms back in place by year’s end.

A favored theme for House Democrats during the session was that it was nothing more than a “special interest special session” – but the measure passed with Democratic support in the Senate and opposition in House floor debates was more muted that might have been expected.

In broad summary, the mix of new laws puts back into place these stricken provisions:

Requiring certificates of merit (also described as “affidavits of merit”) for negligence cases in which a professional expert witness is expected to testify.

Limitations on liability for varied products "inherently unsafe and known to be unsafe by the ordinary customer."

Exemption of some records from discovery in professional malpractice cases. This provision included limits on medical liability.

Thursday, The Tulsa World editorial page touted the end result: “The special session was short, efficient and necessary. The result is a return to the way things have been running for years. And the only special interest that was being protected was the future growth and prosperity of Oklahoma.”

Senate President Pro Temp Brian Bingman, R-Sapulpa, has made lawsuit reform his top priority during his tenure in the upper chamber’s top job. He approached the session with intensity.

pointing to several examples of fresh tort litigation, as plaintiff attorneys tried to take advantage of this summer’s High Court decision.

In comments to Capitol reporters, including Oklahoma Watchdog, Bingman stressed the economic gains that he believes will flow from the old but new laws: “This special session was needed to end the legal chaos created by the June Supreme Court ruling, striking down critical lawsuit reform passed in 2009.

“The Senate quickly, efficiently and in a bipartisan way passed the 23 bills needed to close the window of legal uncertainty and restore important reform that is needed for our state’s economic development efforts and to ensure health care is affordable for all Oklahomans. I applaud the bipartisan support these bills received.”

You may contact McGuigan at Patrick@capitolbeatok.com  

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