Not many people closely follow the events of the Arkansas Supreme Court. In fact, most Arkansans would be hard pressed to name one of the seven justices. But a recent ruling from the court has the potential to change all of that in the next few years and could even bring a fictional story from John Grisham to life.
It all has to do with something called tort reform. In 2003, the state Legislature passed the Civil Justice Reform Act to limit the liability of defendants in civil suits. The law limited the punitive damages a plaintiff may receive to three times the amount of compensatory damages with a maximum amount of $1 million.
If you don’t speak legalese, compensatory damages total the actual dollar amount of damages the plaintiff has suffered. Punitive damages go beyond this to punish conduct and deter future bad acts. The tort reform measure had broad support in the Legislature with 71 votes in the House and 34 votes in the Senate.
But earlier this month the state’s highest court upheld the judgment of a lower court that included $42 million in punitive damages against a Germany-based company whose genetically altered rice tainted the crop of rice farmers in Arkansas. In doing so, the Supreme Court stuck down the tort reform law, ruling that the Legislature did not have the power under the state constitution to place limits on punitive damages.
The ruling was immediately condemned by the Arkansas business community, which sees tort reform as necessary for protecting business interests and attracting development in Arkansas. Companies look at a variety of issues when deciding where to conduct business, including how likely they are to get hit with a multi-million dollar judgment.
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On the other hand, the Arkansas Trial Lawyer’s Association immediately praised the ruling as a win for the little guy. In their view, it shows the average citizen can hold big business accountable. And if the trial lawyers representing the little guys get a nice cut of the action, that is fine as well.
Anyone wanting to know what happens next should look to the fictional story that Grisham writes about in his 2008 book “The Appeal.” In it, an out-of-state chemical company gets hit with a multi-million dollar judgment for contaminating the water supply of a rural Mississippi town. With the ruling on appeal, the company recruits a problem solver to fix the Supreme Court to rule in its favor. Millions of dollars are poured into Mississippi to support Ron Fisk, a young lawyer who has specialized in defending insurance companies, to defeat Justice Sheila McCarthy, a left-leaning justice with strong ties to the Mississippi Trial Lawyer’s Association.
The fictional tale could quickly become a reality in Arkansas. Five of the seven members of the current court are expected to retire within the next three years. Just as in Mississippi, Arkansas elects its justices in nonpartisan elections.
The somewhat tame beauty contest judicial elections we have had may become a thing of the past as both sides dig in to elect justices they feel will be friendly to their view of the law. A few million dollars to elect either a business-friendly court or a trial lawyer friendly court might be worth the return on their investment.
The tort reform ruling could be the straw that breaks the camel’s back to make this happen. Go dust off Grisham’s book and get ready for Fisk versus McCarthy here in Arkansas.
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Jason Tolbert is an accountant and conservative political blogger. His blog — The Tolbert Report — is linked at ArkansasNews.com. His e-mail is jason@TolbertReport.com.