Comments on: Arkansas Supreme Court strikes portions of tort reform law as violating separation of powers.

By: Jodie L. Hill

Jodie L. Hill — Fri, 02 Apr 2010 21:42:36 +0000

Thanks! I’ve also written a law review article on the subject and hope to post it on my blog soon.

By: Cutaia48@hotmail.com

Cutaia48@hotmail.com — Fri, 02 Apr 2010 16:07:24 +0000

Thank you for your great work in putting this together! This blog is above and beyond others i have read on this topic. Thank you very much for your help in helping me get to grips with this subject.

By: Jodie L. Hill

Jodie L. Hill — Mon, 15 Jun 2009 13:45:16 +0000

Defense attorneys have always been able to point the finger at the “empty chair.” Without a non-party on the verdict form, defense attorneys will return to focusing on the causation element of negligence. Even if a jury feels like a defendant some wrong, but didn’t cause all of the injury, the jury can find that the defendant caused 75% (or some other figure) of the harm. Without a verdict form allowing them to apportion fault, though, the jury has to do this math somewhere else, and the attorneys won’t know how the jury reached its verdict (unless they track down individual members of the jury to ask).

Thanks for the comment!

By: Josh

Josh — Sun, 14 Jun 2009 21:44:13 +0000

This was such an interesting article. Thank you. Im a law student and really enjoyed reading it. One thing I am wondering though — what will defense do attys now? Since there is no joint and several liability, how will juries hold a defendant liable for their negligence when it appears after this decision that you cannot add a non-party to the verdict form and apportion fault?

By: Jodie L. Hill

Jodie L. Hill — Sun, 17 May 2009 17:12:12 +0000

It might affect you. You should follow up your attorney regarding whether the full amount can be claimed. He or she will have access to all of the information relevant to your case and will be able to say for sure.

By: Mike

Mike — Sat, 16 May 2009 14:47:42 +0000

I was involed in an auto accident in April 2006 and the doctor just realeased me Jan 09. I have a total 0f 128000.00 in medical bills and they are saying i can only show about 60000. Because that is what was paid due to tort laws in Arkansas. Does this tort law provision ruled unconstituional on total medical expenses effect my situation? Would I now be able to show the full 128000.oo? Just curious thanks Mike

By: Blawg Review #210 |

Blawg Review #210 | — Mon, 04 May 2009 17:33:37 +0000

[...] lately with the splitter on my upstairs TV and splitters reminds me of our next post, this one by Jodie Hill on a recent Arkansas Supreme Court decision regarding separation of powers. Me, I am just impressed [...]

By: Jodie L. Hill

Jodie L. Hill — Fri, 01 May 2009 19:28:23 +0000

Thanks for the feedback! I think a lot of people agree with you.

By: Stan Flattleyc

Stan Flattleyc — Fri, 01 May 2009 18:55:21 +0000

Great post. Interestingly, many other courts have made similar rulings with respect to other tort reform laws. http://tinyurl.com/dztfm6 It strikes me that such laws are not only constitutionally questionable, but unnecessarily clogging our court dockets. Really, we should just do away with them and let people have their day in court–let juries decide, not legislatures.

By: Jodie L. Hill

Jodie L. Hill — Thu, 30 Apr 2009 21:42:24 +0000

We have the same defense in Arkansas, but tort reform allowed the non-party’s fault to be considered by the jury. The legislature stated that it wanted defendants (particularly medical defendants) to be responsible for only their share of liability (in an effort to keep physicians in the state). Our tort reform did three things: (1) eliminated joint and several liability, (2) created a mechanism for non-party fault to be considered by juries, and (3) limited recovery of damages to only those damages actually paid by plaintiffs or on behalf of plaintiffs.

Our supreme court is generally very deferential to the legislature, but the court guards its territory. In the opinion, the court lists several other laws that have been struck down for the same reason. There were a lot of good arguments on both sides of these issues, so I was suprised by the ruling and suprised that the court limited its reasoning to separation of powers only.