By Rick Kennedy, managing editor
2nd Write-thru: clarifies dollar amounts, includes complete text of Notice on Issue One
Issue One, the first one on the ballot facing voters in a matter of weeks, promises tort reform, but is really a dangerous threat to the Arkansas Constitution and citizen’s rights, says a prominent Fort Smith attorney, who has been touring the state tirelessly in speaking out against the measure.
Joey McCutchen, the immediate past president of the State Trial Lawyers Association, said Wednesday “Issue One was written for special interest groups; it is basically asking citizens to vote away their rights and place a value on human life. It breaks with our state constitution and rights granted since 1874, and it deserves to be voted down.”
Issue One’s version of tort reform, among other things, would cap attorney contingency fees at 1/3 of the net recovery in a civil action and set limits on punitive damages and non-economic damages. (Editor’s note: Please see complete text of Issue One as provided by Arkansas Secretary of State’s office at the end of this story.)
Going back to a familiar mantra from his comments a year ago, when the measure was still in the state legislature, he said “Are citizens willing to say that a human life — their spouse, their kid, their mother or father — is only worth $500,000?”
“Imposing these caps on awards is imposing caps on accountability for malpractice, for nursing homes, for negligence. Are the citizens of Arkansas OK with that? I wouldn’t think so,” he said, “and, citizens trust juries in Arkansas.”
Over the past few months, Issue One has created an unorthodox bi-partisan collation of allies, including people like Jerry Cox of the Arkansas Family Council, the Arkansas Bar Association and Democratic Governor’s candidate Jared Henderson, all coming out against the measure.
McCutchen said, “This is a ‘Solution’ looking for a ‘Problem’ and has little to do with any substantial tort reform. In fact, within Issue One, no where can the words ‘Frivolous Lawsuits’ be found. This is a measure designed for special interest groups in Little Rock by special interest groups in Little Rock, not Arkansas citizens; it is that simple.”
With in Hope and surrounding areas, commercials touting Issue One have said that approval of the amendment would limit certain damages in civil lawsuits and allow the State Legislature to rewrite the state Supreme Court’s procedural rules, which in turn, would encourage more medical professionals, especially doctors, to practice in Arkansas.
McCutchen, however, said “This measure promotes an unnecessary government overreach, where the authority for rules for court procedures, like what can be admitted as evidence, shifts to the State Legislature; it takes the power from judges and courts.”
“The right of trial by jury, whether it is a civil or criminal case, is guaranteed by the Constitution in Article 5, Section 32. It goes back to the days of the railroads, where workers were being injured,” he said.
Oddly, another well-known lawyer in the state, Jason B. Hendren, a partner with the Little Rock firm of Wright, Lindsay, Jennings, appears in some commercials in favor of Issue One, but McCutchen said the wide majority of lawyers in the state are opposed to the measure.
McCutchen added that limitations on awards could hurt efforts by citizens through the trial lawyers to get cases to court.
“It can be expensive for trial lawyers to help their clients in getting these cases heard in court. There are upfront expenses in getting experts, witnesses and evidence; capping fees will discourage some trial lawyers from taking these important cases, imposing limits on justice and accountability” he said.
“The people of Arkansas didn’t ask for this,” he said, “And, as voters learn more about what this really is, I predict this will be soundly defeated.”
Editor’s Note: The Notice For Amendment Referred To The People By The Arkansas General Assembly Issue No. 1 reads as follows:
A proposed amendment to the Arkansas Constitution providing that a contingency fee for an attorney in a civil lawsuit shall not exceed thirty-three and one third percent (33 1/3 %) of the net recovery; defining “contingency fee” as an attorney’s fee that is paid only if the claimant recovers money; providing that the General Assembly may amend the foregoing percentage by a two-thirds (2/3) vote of each house; limiting punitive damages awards for each claimant in lawsuits for personal injury, property damage, or wrongful death to the greater of (i) five hundred thousand dollars ($500,000), or (ii) three (3) times the amount of compensatory damages awarded; defining “punitive damages” as damages assessed to punish and deter wrongful conduct; providing that the General Assembly may not decrease the foregoing limitations on punitive damages but may increase the limitations by a two-thirds (2/3) vote of each house; providing that the limitations on punitive damages do not apply if the factfinder determines by clear and convincing evidence that the defendant intentionally pursued a course of conduct for the purpose of causing injury or damage to the claimant and that such intentional conduct harmed the claimant; limiting awards of non-economic damages in lawsuits for personal injury, property damage, or wrongful death to (i) five hundred thousand dollars ($500,000) for each claimant, or (ii) five hundred thousand dollars ($500,000) for all beneficiaries of an individual deceased person in the aggregate in a lawsuit for wrongful death; defining “non-economic damages” as damages that cannot be measured in money, including pain and suffering, mental and emotional distress, loss of life or companionship, or visible result of injury; providing that the General Assembly may not decrease the foregoing limitations on non-economic damages but may increase the limitations by a two-thirds (2/3) vote of each house; providing that the General Assembly shall adopt a procedure to adjust the dollar limitations on punitive damages and non-economic damages in future years to account for inflation or deflation; providing that the Supreme Court’s power to prescribe rules of pleading, practice, and procedure for courts is subject to the provisions of this amendment; providing that the General Assembly, by a three-fifths vote of each house, may amend or repeal a rule prescribed by the Supreme Court and may adopt other rules of pleading, practice, or procedure on its own initiative; providing that rules of pleading, practice, and procedure in effect on January 1, 2019, shall continue in effect until amended, superseded, or repealed under the provisions of this amendment; providing that a rule of pleading, practice, or procedure enacted by the General Assembly shall supersede a conflicting rule of pleading, practice, or procedure prescribed by the Supreme Court; providing that certain other rules promulgated by the Supreme Court may be annulled or amended by a three-fifths (3/5) vote of each house of the General Assembly instead of a two-thirds (2/3) vote as presently stated in the Arkansas Constitution; and providing that this amendment becomes effective on January 1, 2019.