OPINION

JOHN BRUMMETT: Don't count for much

That column two weeks ago seems insufficient in decrying the proposed constitutional amendment the state Senate intends to refer to the general election ballot in 2018.

The Senate has passed it for referral at the behest of the state's powerful moneyed establishment, which says that the amendment would make the state's economic climate more competitive with other states.

It would accomplish that end, the theory goes, by providing that our doctors and nursing homes and business owners could limit what they'd have to pay if they really harmed somebody.


This is the proposal--SJR8--to stipulate in effect that the lives of children and old people don't count for much, and that the damages you'd have to pay for them would be limited to the $250,000 range.

That's unless, say, an employee of a nursing home--just for an example--acted on purpose to kill or injure grandma, and you could prove that intent, in which case you might be able, under the amendment, to cite the employee's act of murder or assault and battery to qualify for higher damages.

I refer to the section saying intentional harm qualifies as an exception to the $250,000 punitive-damage cap. Presumably that means that, if somebody essentially murders you premeditatedly in the course of his employment duties, then your survivors could sue the convicted murderer's employer and seek more than $250,000 punitively.

Otherwise, here's how the amendment would work: You could sue for consideration by a jury of your peers if you believed that you--or a departed loved one--had been the victim of someone else's damaging action. You could seek to recover actual economic damages, primarily lost future earnings based on an established record of earnings.

Beyond that mathematical calculation, the jury could award no more than $250,000, or triple the economic damages, whichever was higher.

Now let me ask: Who in our society is at the greatest risk of harm from another's faulty act and, at the same time, lacks demonstrated earnings power to support a credible calculation of lost earnings and compensable economic damages as covered under SJR8?

That would be children and old people.

They're frail; they're needy; they're at the mercy of the rest of us; they didn't make a penny last week, or the week before.

If they go into court with a lawyer who proves to a jury that they were injured or worse by someone's bad action, then they would be worth ... bottom line ... $250,000, the punitive cap, plus perhaps some incidental actual economic damages such as damage to property or unpaid medical bills.

The lawyer would be limited by SJR8 to a contingency fee of no more than a third, which might make a lawyer think twice about taking the case and devoting a lot of time to it. Which is the point.

The other thing about SJR8 is that it presumes to take the rule-making authority for establishing Arkansas court procedures from the Arkansas Supreme Court and convey it to the Legislature in defiance of the treasured principle of three separate and co-equal branches of government.

The business and medical communities pushing for SJR8 don't want to go to the trouble of passing a constitutional amendment unless they also can make sure the courts can't come in later and put a provision in the rules of civil procedure that would be helpful to injured persons or survivors of departed loved ones.

Supporters of SJR8 say that, prior to Amendment 80, court rule-making authority was not expressly given to the courts and at least part of it was handled legislatively as a matter of general policy.

To that I say two things: So what? And thank goodness for Amendment 80.

Lawsuits should be regulated by judges, juries and lawyers, not legislators and lobbyists.

Now, for full and fair context: More than 30 states impose some form of damage cap on non-economic damage. Most apply those to medical malpractice cases, while SJR8 would apply to all civil damages, such as Riceland Foods' record $138 million bounty from Bayer in a suit over genetically modified rice.

SJR8 advocates also like to say that 16 states empower their legislatures to make some court policies. They prefer putting it that way to saying 34 states don't.

To be fair to SJR8 advocates, they seem merely to want to add Arkansas to the misguided majority of states that put price caps on human lives so that they can make their business climates competitive ... with each other.

Alas, business-climate competitiveness can be a complex thing.

Randy Zook, head of the state Chamber of Commerce, was testifying last week that Arkansas has the 41st worst legal climate for business. But Sen. Bryan King, reading from the same study Zook was citing, pointed out that a few surrounding states that have damage caps ranked even lower than Arkansas.

------------v------------

John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, was inducted into the Arkansas Writers' Hall of Fame in 2014. Email him at jbrummett@arkansasonline.com. Read his @johnbrummett Twitter feed.

Editorial on 02/21/2017

Upcoming Events