Oklahoma High Court Nullifies State Tort Reform Law

Alaskan Log Rolling (source Wikicommons)
Alaskan Log Rolling (source Wikicommons)

Cross-posted at WLF’s Forbes.com contributor page

Fifteen years ago, Washington Legal Foundation published a groundbreaking Monograph, Who Should Make America’s Tort Law: Courts or Legislatures?” Authors Victor Schwartz, Mark Behrens, and Mark Taylor described a growing tension between state legislatures and their passage of laws aimed at curbing abuses in personal injury and other types of “tort” litigation, and state courts, which asserted their authority to “make” tort law by striking down legislative reform measures. The rulings are based entirely on state constitutional law, so tort reform advocates have no recourse to the U.S. Supreme Court. The practice certainly hasn’t abated, as evidenced by the numerous shorter papers WLF has devoted to this “judicial nullification” in the years since 1997 (examples here, here, and here).

On Tuesday, the Oklahoma Supreme Court became the newest state court on the nullification list, overturning a comprehensive tort reform law because it violated the Oklahoma Constitution’s “single subject” rule (Douglas v. Cox Retirement). Just one of the law’s 90 provisions affected the plaintiff  – a requirement for an expert affidavit in personal negligence cases – but she challenged the entire law as unconstitutional “logrolling.” In a twelve-paragraph opinion, the Court ruled that the reform law violated Article 5, § 57 of the Oklahoma Constitution, the single subject rule. In the five-Justice majority’s opinion, the provisions of the bill were dissimilar enough that legislators who supported some but not all of the sections would feel “logrolled” into voting for the entire legislation.

The Court’s opinion defies law and logic. The single subject or purpose of the Oklahoma law, as the dissent put it plainly, was “tort reform.” The vote in the legislature, Justice Winchester wrote, reflected that “the public understood the common themes and purposes embodied in the legislation.” The House vote was 86-13; in the Senate, it was 42-5.

So what’s a state legislature to do under the non-guidance offered by the majority opinion in Douglas? Should it spend its limited time in session trying to pass 90 separate bills or smaller groups of bills, with, as the dissent wrote, “no greater assurance the legislation will pass the single-subject test”? Douglas will have a chilling effect not only on broad-based tort reform, but any other type of comprehensive reform.

So it’s back to the drawing board for the Oklahoma legislature, which will have to devote more taxpayer dollars if they want to craft a fairer civil justice system that will help keep businesses in Oklahoma and attract new ones.

Patent Litigation Abuse Reduction Idea on Discovery Costs Should Apply to ALL Civil Suits

discoveryTwo separate posts this week referenced or discussed the White House’s ideas on how to reduce predatory patent litigation and reduce incentives in the patent system which inspire such suits. Coverage of the President’s involvement noted that numerous bills have been introduced in Congress related to patent litigation.

One proposal comes from Senator John Cornyn, the “Patent Abuse Reduction Act.” A provision of the bill, § 300, addresses the process of requesting documents related to the patent at issue, known in legal terminology as “discovery.” Regarding the costs for “core documentary evidence,” the provision retains the approach taken under the Federal Rules of Civil Procedure for all civil litigation — each side bears their own costs for producing such documents. But for “additional discovery” (which the bill defines as “evidence other than core documentary evidence”), the requesting party will have to pay for production of those documents.

The approach taken by Senator Cornyn’s bill — targeting one particularly potent tool that patent plaintiffs use to encourage defendants to settle — is one that certainly deserves consideration for all civil litigation. A Washington Legal Foundation Legal Backgrounder released on June 7 makes a compelling case for reversing the Federal Rules’ default setting that those producing discovery pay the costs in all instances.

Hollingsworth LLP partner Rebecca Womeldorf authored the WLF publication A Requester-Pay Default: Common-Sense Discovery Reform Can Reduce Undesirable Litigation Incentives

In the Legal Backgrounder, she writes,

Discovery — once exclusively a means of obtaining information relevant to the legitimate end of fact finding — now indisputably provides the requester with court-assisted settlement leverage, irrespective of the merits.

The potency of discovery as a leverage weapon has intensified in the past two decades with the explosion of electronic data. The nature of such data, which can be easily and unintentionally deleted, has also given rise to so-called spoliation claims, where one litigant accuses the other of document destruction and urges courts to sanction the alleged offender.

For these and other reasons, the federal judiciary has initiated a process to reform Federal Rules that govern discovery. On June 3, a Standing Committee of the Judicial Conference of the United States’ Advisory Committee on the Rules of Civil Procedure approved a proposal for public comment on discovery rules. But as Ms. Womeldorf notes in her paper, the idea of shifting the cost burden is not part of that proposal and the judiciary “cannot achieve . . . its objective absent a paradigm shift that requires every litigant to consider the potential benefits of discovery in light of its cost.”