by Max Brantley
The business establishment is aching to invalidate permissive Arkansas Supreme Court rulings on medical damage suits. Arkansas is not a plaintiffs' dream state, but there have been some big verdicts and any damage verdict is generally unacceptable to business
One of the first responses to the coming battle on "tort reform" was a proposed constitutional amendment filed by Sen. Jeremy Hutchinson on medical malpractice. A Republican named Hutchinson filing a "tort reform" amendment? Must be good for the chamber of commerce, right?
Well, not necessarily. Hutchinson is a lawyer and associated with mega-plaintiffs' lawyer John Goodson of Texarkana ( who also happens to be married to a member of the Arkansas Supreme Court, Courtney Goodson).
Hutchinson raced to the bill hopper first with this proposed amendment, joined as sponsor by a gang of other Republicans and, significantly, Democrats of a decidedly different stripe. When sponsors range from Fireball Holland and Jon Woods to David Johnson and Joyce Elliott in the Sente and from Denny Altes to Greg Leding in the House, you have quite a coalition.
The proposal is not a liberal's dream. It allows damages for frivolous claims. It sets standards for expert witnesses. Standards for proof.
But. It is NOT the chamber of commerce/poultry industry/Walton tort reform proposal. That one, being drafted by the Friday Law Firm, is coming from Sen. Eddie Joe Williams and I heard Friday that he was none too happy to be blind-sided by Hutchinson's proposal and its long list of sponsors, including several Republicans.
Williams admits surprise, but said that, while he and Hutchinson had talked about the matter, no sharp words had been exchanged. "I'm a gentleman and I always conduct myself that way," he said.
Williams said he couldn't talk specificially about his proposal until it was perfected. He said it would undoubtedly have some differences from Hutchinson's. And he said, when asked about specific shortcomings in Hutchinson's measure, only that it undoubtedly reflected "whoever Hutchinson was speaking for."
He means, of course, the Arkansas Trial Lawyers Association, which confirms it has indeed been conferring with Hutchinson about tort reform.
Here's what the brewing conflict is all about: With the business establishment unified about tort reform and with a majority Republican legislature, trial lawyers expect something to come from this legislature on tort reform. Hutchinson stepped forward — whether on his own volition or prompted by friends — with a compromise to put tort lawsuit rules in the Constitution and make the best of a bad situation.
The alternative, according to the copy of one proposal that is being circulated, is the chamber/Tyson/Walton proposal, which would take tort rule making out of the hands of the Arkansas Supreme Court, where it now vests constitutionally, and put it in the hands of the legislature.
This would be a lobbyist's full employment measure. Need a favorable specific rule? Pass a law. Facing a vexatious and potentially enormous tort claim — say a giant environmental claim about chemicals in chicken feed reaching food crops through waste used as fertilizer — you could go to the legislature for a rule tailored to making that claim hard to pursue in court.
The trial lawyers have decided they'd be better off with a constitutional solution, even one that goes farther than they were once willing to go on what constitutes an expert witness in a medical malpractice case or on what it takes to raise a frivolous lawsuit claim. Trial lawyers note that the Hutchinson amendment is close to a copy of tort reform legislation passed in Tennessee after Republicans took control, so it's hardly a plaintiff lawyer's text. It's more the stuff of compromise, bipartisan even.
Williams says he's all about compromise, too, and says he hopes the trial lawyers will have a seat at the table on discussion of his measure, which he said should appear within a week or so. But he insists there was no hostility as a result of Hutchinson's proposal. "I was surprised by it, but so be it. We all have the right to file a bill and I respect that."
I haven't heard back from Hutchinson.