Product Liability Key Issue for Tort Reform in Oklahoma
Francis-Smith, Janice, THE JOURNAL RECORD
The last portion of House Bill 1603 - the 2009 legislative session's main tort reform bill - deals mainly with product liability. The latter sections of the bill also include many of the provisions most debated by lawmakers for and against tort reform: a $300,000 cap on noneconomic damages, joint and several liability, and collateral source payments.
Section 31 alters the criteria a jury would use to determine punitive damages. The jury would be asked to consider not only the hazard presented by a defendant's misconduct, but also what harm has actually occurred due to the misconduct. The plaintiff would have to provide evidence to back up their claim for punitive damages before conducting discovery of the financial assets of the defendant.
Manufacturers would be exempt from punitive damages if the product complies with state or federal regulations. Punitive damages could be imposed if it is "proven by clear and convincing evidence" that the manufacturer intentionally withheld or misrepresented information it was required to provide to regulators, or if the manufacturer bribed a government official to secure approval of the product.
Section 32 allows the court to order future medical damages of more than $100,000 to be awarded in periodic payments rather than as a lump sum. Upon the death of the recipient, unpaid damages would continue to be paid to recipient's estate.
Section 33 eliminates joint and several liability, preventing joint defendants with more financial resources from being forced to pay more than their fair share of an award. Joint and several liability may apply if a joint defendant is shown to have acted with willful and wanton conduct or reckless disregard.
Section 34 is known as the collateral source rule. The section would allow the court to admit evidence of payments of medical bills made to the injured party, such as payments from a health insurer, unless the payments are subject to subrogation - that is, if the insurance company plans to recover those payments from a third party who caused the injury. Life insurance payments and disability payments would not be admitted.
Section 35 limits awards of noneconomic damages, such as payment for pain and suffering, to $300,000, regardless of the number of parties harmed or the number of lawsuits filed against the defendant. The cap would be adjusted annually to reflect increases in the Consumer Price Index. The cap could be lifted in cases where the jury finds clear and convincing evidence of gross negligence or malice. Caps would not apply in lawsuits brought to wrongful death.
Section 36 requires plaintiffs to prove loss of earnings or earning capacity, as a net loss after reduction for income tax payments.
Sections 37 and 38 would allow evidence that a child was not properly restrained by a seatbelt to be admissible in court.
Section 39 deals with prejudgment interest, referring to the section of law that prohibits prejudgment interest from accruing before 36 months after the case begins.
Section 40 includes credentialing data in the definition of "peer review information," which is kept private and confidential and not subject to discovery in civil cases involving medical professionals.
Sections 41 through 51 deal with the "Uniform Emergency Volunteer Health Practitioners Act," providing protections from liability for volunteers who are first responders in an emergency situation.
Sections 52 and 53 exempt state emergency management workers from liability in emergency situations.
Sections 54 through 58 protect as confidential and not subject to discovery quality assessment information for nursing homes. …