Oklahoma House sends ‘hard cap’ on damages to Senate

By Patrick B. McGuigan
The Oklahoma House of Representatives today (Wednesday, March 16) passed lawsuit reform legislation that would put a cap of $350,000 on noneconomic damages in all civil actions. The limit has been deemed a “hard cap” designed to limit tort litigation costs in the state.
The measure also repeals an indemnity fund that had never taken effect due to lack of resources.
Today’s final vote came after a dizzying sequence of 14 separate roll call votes; the first came at 11:34 a.m., and the last ended at 1:11 p.m. As the recorded votes advanced, there were times when two dozen or more members did not vote one way or the other.
On final passage, the margin of victory was 57-40, a shift of more than 25 members since the “hard cap” amendment to the proposal, House Bill 2128, lost when considered yesterday. Three members did not vote while one took a newly-popular (but rarely used until recent days) non-vote deemed “constitutional privilege.”
While several GOP members weaved in and out of support for the position of Republican leaders, some, including Rep. Randy Terrill, were consistently in opposition to the bill’s passage.
In today’s debate, House Democratic Leader Scott Inman argued passionately against the measure. He insisted a no vote meant, “I’ll side with the constitution and my constituents.” He said the shift in members’ votes meant members were saying about constituents, “I’m against them.”
Inman said a vote he highly regretted in recent years was one in which he first supported “open carry” legislation, then led the way to sustain a veto of such legislation by former Governor Brad Henry. He told members of the House the shift from support of open carry to opposition was “the number one question I encountered” in door-to-door campaigning in his 2010 reelection. He asked members, rhetorically, “Will you regret this decision next November?”
Inman characterized shifts on the tort reform legislation as “a disgusting display.” He asserted, “In everything we do, we pit one person against another,” in law. He said the proposed law meant the Legislature could “stand with innocent injured people or … on the side of people who hurt them. “
He maintained the new legislation contains “no insurance reforms.” He also said, concerning the Republican contentions that the bill would help make the state more friendly to businesses, that I passage of the bill might attract new businesses to Oklahoma, “I don’t want those businesses in my state.”
Closing debate for the bill, state Rep. Dan Sullivan of Tulsa, the majority floor leader, said the “tone of this debate indicates the nature of this issue.” He pointed to a former Senate President Pro Tem, a Democrat, who had issued a general invitation to “come to Oklahoma and sue” after the Lone Star State had passed lawsuit reforms.
Countering an argument from some foes of the bill, including some conservatives, Sullivan said rulings against lawsuit reform in some states had “not come on the basis of the Seventh Amendment” to the U.S. Constitution but on the basis of state constitutional provisions. He also argued that limiting the measure’s scope to certain kinds of litigation could “get it ruled as special legislation.”
Sullivan said he could not predict how state courts might interpret the new law, but that it had been crafted, “to the best of our ability” to withstand judicial scrutiny. He insisted passage of the measure was “an opportunity to move forward or to stand still.”
In a statement sent to CapitolBeatOK after the measure cleared the House, Speaker Kris Steele, a Shawnee Republican, said:
“Lawsuit reform is not only relevant for job creation, it is also necessary to protect access to quality healthcare. Defensive medicine contributes to skyrocketing healthcare costs. The high price of medical care coupled with a shortage of healthcare professionals leads to limited access and poor health indicators.
“This legislation could reduce the burden on businesses while encouraging job growth across the state. A state’s legal climate impacts business decisions. House Bill 2128 opens the window of opportunity to focus on reaching our state’s economic potential.”
Sullivan added to his floor comments by contending in his statement:
“For far too long, Oklahoma has faced the negative outcome of frivolous and unnecessary lawsuits. In order for Oklahoma to compete for jobs and see improvement in our economy we must pass meaningful lawsuit reform legislation immediately. We can’t afford companies fleeing Oklahoma and taking jobs as they exit.
“With the passage of HB2128, we improve far more than just our business environment. We improve health care by keeping doctors here and bringing more health care professionals to Oklahoma. The passage of this legislation also helps us take another step forward in our goal to improve education and our overall quality of life as result of less lawsuits that hurt our state.”
The first “final” vote on the bill came Tuesday, in the aftermath of turmoil late last week and early this week within the Republican caucus.
Reporters observing the vote, after a highly divisive debate, observed that many many first- and second-term Republican members waited for several minutes before punching their buttons to vote, even though most of them were on the floor, in their seats, the entire time.
The push-back on the proposal at that point came primarily from Republicans arguing for a robust interpretation of federal and state provisions in terms of tort litigation. It was clear that some members avoiding voting to see which way the vote might go.
When Tuesday’s roll call reached approximately 25 in favor and 35 against, the “no” vote suddenly strengthened, including some members breaking against the measure. In the parlance of the House chamber, many “greens” (yes votes) turned to “reds” (no votes) as the final tally rolled in and the amendment failed 32 in favor, 68 opposed .
The measure now advances to the state Senate, where a similarly-themed proposal passed 29-18 in late February.
Senator Andrew Rice of Oklahoma City, leader of Democrats in the upper chamber, has identified lawsuit reform as an area of disagreement with majority Republicans since Governor Mary Fallin made it a priority in her State of the State address