Punitive Damages Are Exempted From A Supersedeas Bond

As part of the tort reform law passed in 2009, 12 O.S. § 990.4(I),‘exempted punitive damages from the obligation to post a bond on appeal as a means to stay execution of a judgment. The legislation was declared unconstitutional by the Oklahoma Supreme Court citing Douglas v. Cox Retirement Properties, 2013 OK 37, 302 P.3d 789. Some attorneys have erroneously rushed to the conclusion that a supersedeas bond is again required for punitive damage awards due to the determination the 2009 statute was held unconstitutional as violative of Oklahoma’s procedural requirements. The attorneys argue that the March 15, 2005, version of the statute is the existing law since the 2009 version was determined to be unconstitutional.  The position is entirely incorrect and ignores the Legislature’s 2010 amendment of the statute. The 2010 version, not the 2005 version, is the correct existing law.

The Oklahoma legislature revisited 12 O.S. § 990.4(I) effective November 1, 2010. The procedural defect in the 2009 statute was corrected by the passage of the 2010 version of the statute. Under settled Oklahoma law, the actions of the Legislature are not to be ignored and the courts are expected to follow the statutes enacted. In Douglas, supra, cited by the Plaintiff, the Supreme Court stated:

"Every presumption is to be indulged in favor of the constitutionality of a statute." Id. "It is also firmly recognized that it is not the place of this Court, or any court, to concern itself with a statute's propriety, desirability, wisdom, or its practicality as a working proposition." Fent, 1999 OK 64, ¶ 4, 984 P.2d 200, 204. "A court's function, when the constitutionality of a statute is put at issue, is limited to a determination of the validity or invalidity of the legislative provision and a court's function extends no farther in our system of government."  Id. 

A procedural defect in a statute can be cured by later adoption or re-enactment of the statute. See Atchley v. Board of Barber Examiners of State, 1953 OK 146, 257 P.2d 302, 304-305, citing Atlas Life Ins. Co., v. Rose, 1946 OK 52, 166 P.2d 1011. Accordingly, in our view the Legislature’s actions in amending Section 990.4 in 2010 cured any constitutional defect of the statute; therefore, Section 990.4 as amended in 2010 remains in full force and effect.

Comprehensive Lawsuit Reform Act of 2009: A Summary (Effective November 1, 2009)

Oklahoma recently passed a tort reform bill into law which will be effective November 1, 2009. The following are the highlights of the legislature's actions.

Expert Affidavits 12 O.S. 19

In any civil action alleging "professional negligence", the Plaintiff must attach an affidavit to their Petition attesting that:

1.   The Plaintiff has consulted with a qualified expert;

2.   The Plaintiff has obtained a written opinion from the expert that identifies the Plaintiff and that, based on a review of all the available relevant material, the expert believes that a reasonable interpretation of the factors supports a finding that the acts or omissions of the Defendant constitutes professional negligence; and

3.   Based on this review by the expert the Plaintiff believes the claim is meritorious and based on good cause. The expert’s written opinion must include the specific acts and omissions which constitute professional negligence and the reasons why. These written opinions are not admissible at trial and may not be used or discussed for any reason during discovery or at trial.

If the Petition if filed without this affidavit and the court has not granted an extension, the court shall dismiss the Petition without prejudice upon motion of the Defendant. The court may grant an extension of time to provide an affidavit, not to exceed 90 days, for good cause shown.

Voluntary Dismissal 12 O.S. 683

Changes existing law to allow a Plaintiff to voluntarily dismiss an action at any time prior to pretrial. After pretrial a Plaintiff may dismiss without prejudice only by agreement of the parties or by order of the court If a Plaintiff dismisses and later refiles, alleging the same cause of action, the court may award costs to the Defendant of the previous action.

Prejudgment Interest 12 O.S. 727.1

In personal injury or injury to someone's personal rights, prejudgment interest doesn't start until 24 months after the filing of the lawsuit. The prejudgment interest rate was lowered to the United States Treasury Bill rate.

Appeal Bonds 12 O.S. 990.4

Appeal bonds will not exceed $25 Million and no appeal bond needs be pledged to appeal an award of punitive damages. The court can still lower the statutory bond requirements, which have not been changed, upon a showing of substantial economic harm. This hasn't been a problem for most of us!

Summons 12 O.S. 2004

This change is significant. If a summons is not served within 180 days the petition shall be deemed dismissed without prejudice.

Pleading 12 O.S. 2011

A Plaintiff's petition must state whether the Plaintiff is seeking damages in excess of the amount required for diversity jurisdiction under 28 U.S.C. 1332 (presently $75,000). If the Plaintiff seeks less than the current $75,000.00, the petition must state the actual amount sought.

Summary Judgment 12 O.S. 2056

This statute adopts Federal Rule 56 and requires a court grant summary judgment if it finds that there is no genuine issue of material fact. The change is not really significant.

Expert Testimony 12 O.S. 2702, 2703

The legislation essentially incorporates Federal Rule 702 and 703 which adds language from Daubert v. Merrill Dow, 509 U.S. 579, as to the requirements for expert testimony. This is not a significant change.

Discovery 12 O.S. 3226

The Plaintiff must disclose, within 60 days of service of the petition and without request by the Defendant, a computation of the damages and provide all documents and evidence used to calculate the damages. Sorry, we fail to believe this statute will be useful. Plaintiffs will be forced to exaggerate their claims or risk a court implying some prejudice to defendants.

Joint and Several Liability 23 O.S. 15

Under the present law, the liability of joint tortfeasors is several unless:

- a Defendant is greater than 50% responsible; or

- a Defendant acted willfully and wantonly or with reckless disregard; or

- the Plaintiff is fault free.

Under the New Act, the liability of joint tortfeasors is several unless:

- a Defendant is greater than 50% responsible; or

- a joint tortfeasor acted willfully and wantonly or with reckless disregard, in which case all Defendants are jointly and severally responsible.

Damages 23 O.S. 61.2

Non Economic Damages in any suit alleging bodily injury are capped at $400,000, except:

a) in suits against a physician, if the judge and jury find by clear and convincing evidence the Plaintiff suffered a permanent and substantial physical abnormality or disfigurement, loss of use of a limb or loss of, or substantial impairment to, a major body organ or system; or

b) the Plaintiff has suffered a permanent physical functional injury that prevents them from being able to independently care for themselves and perform life sustaining activities; or

c) The Defendant's acts were with reckless disregard, grossly negligent, fraudulent or intentional and with malice.

d) In other cases not involving doctors, if the jury finds, by a preponderance of the evidence, that the Plaintiff suffered a permanent and substantial physical abnormality or disfigurement, loss of use of a limb or loss of, or substantial impairment to, a major body organ or system; or

e) Plaintiff has suffered a permanent physical functional injury that prevents them from being able to independently care for themselves and perform life sustaining activities; or

f) The Defendant's acts were with reckless disregard, grossly negligent, fraudulent or intentional and with malice.

The jury will not be told about the cap, on non-economic damages but will be asked to return a general verdict with answers to the following interrogatories:

- what is the total amount of damages awarded to Plaintiff?

- What portion of these damages are being awarded for economic loss?

- what portion of these damages are being awarded for non economic loss?

- did Plaintiff's injuries, for which they are being compensated, include damages for a permanent and substantial physical abnormality or disfigurement, loss of use of a limb or loss of, or substantial impairment to, a major body organ or system?

- did Plaintiff's injuries, for which they are being compensated, include damages for a permanent physical functional injury that prevents them from being able to independently care for themselves and perform life sustaining activities?

- did the Defendant act with reckless disregard, grossly negligently, fraudulently or intentionally and with malice?

For lawsuits against doctors, any damages awarded over and above the $400,000 cap are to be paid from the Health Care Indemnity Fund, a fund to be created and funded by the State of Oklahoma. A physician must carry professional liability insurance of at least $1 million to be eligible for the protection of the fund.

This act will not apply to claims governed by the Oklahoma Governmental Tort Claim Act or claims for wrongful death.

The legislation has some Constitutional problems and may not stand up to judicial scrutiny.

Seat Belts 47 O.S. 11-1112

Evidence of the use or nonuse of seatbelts will be admissible in a civil action except for minors under the age of 16.

Immunity 63 O.S. 683.9

The Uniform Emergency Volunteer Health Practitioners Act provides immunity to health care providers who volunteer during times when the Governor has declared a state of emergency.

Common Sense Consumption Act 76 O.S. 33

The distributor or seller of food will not be responsible for food that caused a Plaintiff to become obese. It does not preclude suits alleging a food product was adulterated or misbranded, and caused a Plaintiff injury. If you want to blame someone else for your weight, better do it before November 1st.

Livestock Activities Liability Limitations Act 76 O.S. 50.2

The statute gives greater protection to people conducting “agritourism” activities on their property.

Firearms 76 O.S. 51

Immunity is granted to firearms manufacturers from lawsuits alleging that a manufacturer's gun was used by another person to injure or kill someone. The statute does not apply to suits alleging product liability, breach of warranty or suits against the transferor ofa gun.

Product Liability 76 O.S. 57

This section adopts existing case law, as well as the Restatement of Torts, and puts it in the form of a statute. A manufacturer or distributor of a product may not be held liable if the product is inherently unsafe and known to be unsafe by the ordinary consumer who consumes or uses the product with the knowledge readily known to the community. A Defendant must show:

- the product is a common consumer product;

- the product's utility outweighs the risk created by its use;

- the risk imposed by the product was one known by the ordinary consumer who consumes the product with the knowledge common to the community;

- the product was properly prepared and reached the consumer without a substantial change in its condition; and

- adequate warnings of the risk posed by the product were given to the consumer.

This statute does not apply to claims alleging a manufacturing defect or for breach of warranty.

Subsequent Remedial Measures 76 O.S. 58

The statute essentially adopts Federal Rule 407 (but does not repeal existing 12 O.S. 2407). The legislature left lawyers and judges to fight over what they intended.