Adventures in Rule Making: The Court Struggles to Make Sense Out of Non-Party Fault, and Other Outgrowth From Tort Reform — A guest blog post by Brian G. Brooks

The Court issued three separate per curiam orders on August 7, 2014, addressing the work of the Special Task Force on Practice and Procedure in Civil Cases and the Supreme Court Committee on Civil Practice.  These orders are marked by a true oddity: dissents.  And not just “I respectfully disagree” dissents.  These dissents are strong and pointed leaving no doubt that the debate within the Court’s conference room was heated.

The first of the three orders is the focus of the debate.  That order adopts changes to Rules 9, 49, and 52 of the Rules of Civil Procedure that put in place a procedure for allocating fault to absent alleged tortfeasors in civil cases.  (Well, it also amends Rule 8 of the Rules of Appellate Procedure—Civil dealing with supersedeas bonds, but no one cares.)  In essence, these Rule changes allow juries to assess “fault” against parties not sued by the plaintiff, or with whom the plaintiff has already settled before trial, when the procedures are followed and where the language applies.  Lifting language directly from Act 1116 of 2013, the Rules allow assessment of fault against anyone “who may have joint liability or several liability” for the plaintiff’s injury even if that person or entity is not, and perhaps never was, a party to the suit.  For some history of how Act 1116 relates to this rule making endeavor, you might read Legislative and Case Law Ties that Bind Act 649 of 2003 with Act 1116 of 2013, The Arkansas Lawyer (Winter 2014), and the other articles about Act 1116 found in that edition.

The overarching question purposely left unanswered by the Rules’ drafters is how far the language “may have … liability” reaches.  Does it include those who are immune, those who are outside the long-arm jurisdiction of the Court, and those who are protected by the Workers’ Compensation bar?  Are those classes of potential defendants persons or entities who “may have … liability” for the plaintiff’s indivisible injury?  Neither the Task Force nor the Court answered that question.  Indeed, how the language of the Rules will be construed, and whether it is in whole or in part constitutionally suspect, was not dealt with by the Task Force, the Committee on Civil Practice or the Court. Rather, the Court refers to the changes as “a good start,” and leaves for later cases issues of construction and validity.  That is precisely, I think, the attitude of the Task Force and the Committee.

And that is where Justices Hart and Baker took strong issue with the work of the Task Force, the Committee and the Court majority in a dissent penned by Justice Hart.  (Justice Baker wrote a separate dissent advocating that the Rules be sent out for further comment from the Bench and the Bar because of alterations to the Rules inserted by the Civil Practice Committee arising from the initial comment period.)  Justice Hart wrote that, because of the unanswered questions identified above and a few others, the Rules are “unclear,” they are “unfair,” and they “may not survive constitutional scrutiny.”  This lack of clarity and fairness combined with constitutional concerns places the Court in the odd position of perhaps needing to declare its own Rules invalid or ineffective in future cases.  “Other solutions” are available, in her view, such as instructing the jury that a defendant may only be charged with the degree of “fault” his behavior merits (as this author has advocated in other writings, The Perplexing Problem of the Absent Joint Tortfeasor, The Arkansas Lawyer, (Fall 2011)), deciding the issues case-by-case as they come before the Court, or allowing the Legislature to promulgate Rules that the Court can review, a somewhat puzzling notion given that the source of much of the need for the drafting of these Rules is the Court’s decision that the Legislature lacks any such power under the State Constitution.

The majority had good reasons for adopting these Rules as a “good start.”  Lawyers, litigants and judges need some guidance as to how to handle the mind-bending questions arising from the abrogation of joint and several liability when not all tortfeasors are in the case that goes to trial, which is what led to this quagmire.  The Legislature “messed with” several hundred years of reasoned common law and this is the result.  The Rules are, indeed, a “good start” to sorting the mess out.  But the dissenters correctly identify the problems.  Indeed, Justice Hart’s dissent is a roadmap for future wrangling over how far the Rules go and whether they are a valid approach to the problems they seek to address.  Of course, the Legislature could undo the mess by abrogating the abrogation of joint and several liability, in which case the way things have been done for decades or centuries would be revitalized.  But that’s a sermon for another day.  For now, let the wrangling Justice Hart identifies begin.

Here’s a link to the text of the first Per Curiam and Dissents:

          The other two orders sail on calmer waters, for now.  One sends out for comment a revision of Rule 3 of the Rules of Civil Procedure that is a novel and creative solution to the pre-suit notice problem in medical malpractice cases.  Legislative attempts to require such notice have been held unconstitutional because they are Legislative rule making offending separation of powers.  But the Task Force’s initial attempt to draft a Rule doing the same thing ran into the mirror-image problem when it in essence tolled the limitations period based on the notice.  That is a substantive issue outside the Court’s authority and within the Legislature’s.  The proposed solution is this new Rule 3(d), which is a notice provision that springs to life when and if the Legislature enacts a statute tolling the limitations period.  Comments are due to the Court on this proposed Rule by September 30, 2014.

Here’s a link to the second Per Curiam:

          The final order deals with Rules 11 and 42 and again seeks comment on the proposals.  The primary Rule 11 change is an addition to the certification section that is meant to satisfy the desire by the medical community for a certificate or affidavit of merit in medical negligence cases.  The suggested approach is to make a certification that an expert has been consulted or has disclosed in discovery that he or she finds merit in the claim or defense part of what it means when a lawyer or a party signs a pleading.  In other words, the attorney’s signature is the certificate of merit.  The proposal then re-writes the Rule for clarity and to beef up the sanctions section.

The Rule 42 change addresses procedures in cases where punitive damages are sought.  Trial judges are given the discretion to bifurcate punitive damages questions one of two ways.  Upon motion by either party, judges may either try liability for punitive damages in the first or second phase of the trial, but must always try the amount of punitive damages to be awarded in the second phase.

Here’s a link to the third Per Curiam:

          Comments on the proposed rule changes can be made in care of the Clerk’s Office and are due by September 30, 2014.

*** Thank you to Brian Brooks for this guest blog post.   Feel free to use the comment feature to discuss this post, or contact Brian directly at:

Brian G. Brooks

Brian G. Brooks, Attorney at Law, PLLC

P.O. Box 605

Greenbrier, Arkansas  72058

(501) 733-3457