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On May 7, 2009 the Southeast Texas Record reporter Michelle Massey, Texarkana Bureau, writes that a portion of the tort reform law passed in 2003 by the Arkansas legislature has now been held unconstitutional.

Asking the higher court whether the provisions violate the state constitution, U.S. District Judge Leon Holmes submitted questions over the provisions regarding the negligence or fault of nonparties when considering liability and the provision regarding evidence of damages for the costs of necessary medical care, treatment, or services.

A federal lawsuit filed by Darrell Johnson against Rockwell Automation in the Batesville Division of the Eastern District of Arkansas was where the battle started.

Johnson claimed in his lawsuit that in February 2004, he was injured when a defective safety switch on a "starter bucket" turned on while his hand was inside. He was doing repairs on the starter bucket and when he turned the machine off and the interlock safety fell into place. While using a tool to pull the fuses for the necessary repairs, his hand inadvertently cause the interlock and power switch to rotate into the power position. According to the original complaint, the fuse Johnson removed, arched with the nearby contact and caused an electrical explosion. He is seeking to get paid for his medical expense, lost wages, lost ability to earn a living as well as general damages for his suffering and disfigurement.

He claims that Rockwell Automation among others was at fault for his injuries because the design was defective and because they failed to warn of inherent risks to users of the starter bucket.

Defendant Rockwell claimed that Johnson’s employer Eastman Chemical Company modified the starter without Rockwell’s knowledge. Rockwell argued that under the Civil Justice Reform Act of 2003, it could name Eastman Chemical as a "nonparty at fault" and that damages should be limited to its percentage share of actual liability. A commentary on the law when it was passed suggested that insurance companies were behind the changes:

The overall impact of the new law will certainly favor defendants and their liability insurers as a class. Instances of injustice likely to arise under the law are not hard to imagine,33 and one can expect challenges to some of its provisions on separation of powers and other constitutional grounds. While the courts work through these issues, attorneys handling Arkansas tort cases are well advised to give close attention to the new law’s language and structure.

Some of Johnson’s medical costs were paid by his employee medical plan but he claims his costs exceeded the amount paid. In response to Johnson’s efforts to present evidence of the costs, defendant Rockwell argued that the tort reform law only allowed evidence limited to the amount already paid or that remained of medical costs.

Johnson argued that the act’s provisions cited by the defendant violated the Arkansas constitution and the Arkansas Supreme Court agrees.

Associate Justice Paul Danielson in the decision agrees with Johnson’s argument "that the nonparty-fault provision invades the powers granted to the judiciary by the Arkansas Constitution" and that the "provision effectively established a procedure that conflicts with our rules of pleadings, practice and procedure."

"that it is clear to this court that the legislature has, without regard to this court’s "rules of pleading, practice and procedure," established its own procedure by which the fault of a nonparty shall be litigated."

The higher court also stated that the provision regarding limitations on evidence is violation of separation of powers.

The appeals court explained that "the rules regarding the admissibility of evidence are within the court’s province" and ruled that the provision is unconstitutional because it

"clearly limits the evidence that may be introduced relating to the value of medical expenses to the amount of medical expenses paid or the amount to be paid by the plaintiff or on a plaintiff’s behalf, thereby dictating what evidence is admissible."

The Arkansas Supreme Court did not address the $1 million cap the law places on punitive damages in civil lawsuits. The case is scheduled to go to trial at the end of June. The plaintiff is represented by Little Rock attorney James Bruce McMath.

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