Milton Friedman Distinguished Fellow

Andrew C. Spiropoulos (M.A., J.D., University of Chicago) is the Robert S. Kerr, Sr. Professor of Constitutional Law at the Oklahoma City University School of Law. He also serves as the Milton Friedman Distinguished Fellow at OCPA.

Milton Friedman Distinguished Fellow

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Any serious effort to reform a state’s civil justice system must include, as one of its core components, a solution to the problem of excessive claims for noneconomic damages, commonly understood as damages awarded for the pain and suffering experienced by the injured person seeking compensation. Unlike economic damages such as medical expenses or lost wages, the calculation of damages for pain and suffering is truly speculative, which empowers juries to indulge their passions in setting damage awards.  

Even a modest possibility of winning a windfall judgment encourages injured parties and their lawyers to pursue claims they should settle, causing (through higher insurance rates) harm to the entire society. In 2011, Oklahoma lawmakers, following the lead of many states, addressed this problem of excessive litigation by capping noneconomic damages at $350,000, with exceptions made for cases of wrongful death or those involving proof of specific wrongdoing.  Economic damages, which can be empirically measured, remain unlimited.

The Problem  
Unfortunately, as so often has been the case with Oklahoma lawsuit reforms, last April the Oklahoma Supreme Court, in Beason v. I.E. Miller Services, Inc., held that the cap violated Article 5, Section 46 of the Oklahoma Constitution, which forbids the enactment of special laws, defined by the Court as a law that defines a class of similarly situated persons and then treats some of them differently.

Two excellent dissenting opinions demonstrated that another provision of the Oklahoma Constitution forbids the capping of damages for wrongful death and thus, by definition, creates separate classes of plaintiffs. Nevertheless, the Court majority held that treating victims who were injured differently than those killed as a result of the same course of behavior by the defendant created an unconstitutional special law. In other words, the legislature did not possess the constitutional authority to cap the noneconomic damages awarded to the injured, when it did not cap the damages to those who perished as a result of the same conduct. 

The Solution  
The only effective way to save this indispensable component of lawsuit reform is, as did reformers in Texas, to amend the Oklahoma Constitution to keep this provision out of the grasp of the anti-reform majority of the Court. It is difficult, if not impossible, to conceive of any statutory fix. The only way, for example, to repair the specific problem identified by the Court is to apply an equal cap to plaintiffs suing for wrongful death. The Constitution, however, explicitly forbids the legislature from enacting any limit on the damages recoverable for wrongful death—if the legislature imposed a cap in these cases, the Court would have independent grounds for striking the law down.

But even if it were possible to craft a statutory fix to apply the cap to what the Court might consider a truly separate class, one has to ignore the Court’s explicit statement that any cap on damages violates the spirit of the Oklahoma Constitution and the considered judgment of the people of Oklahoma. The Court, to illustrate, opines: “By forbidding limits on recovery for injuries resulting in death, the people have left it to juries to determine the amount of compensation for pain and suffering in such cases . . . Unlike the Legislature (which has imposed a discriminatory cap that favors only one party), the people of Oklahoma have shown a clear preference that damages for personal injury be based on an assessment of evidence by a jury in a proceeding where the interested parties have the equal right to be heard on that issue.” 

The Court could not be clearer—it believes that juries should have plenary authority to set damage awards, unfettered by any legislative cap. The only way to enact this fundamental reform is to amend the Constitution.

Milton Friedman Distinguished Fellow

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