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

B&B v. Hargis Certiorari Petition Granted

Congratulations to Larry Bogatz (B&B Hardware) and William Jay at Goodwin Proctor.   The U.S. Supreme Court will hear the merits of their appeal from a decision of the 8th Circuit Court of Appeals.   See   This was the first case I discussed on this blog.  I was privileged to handle the appeal to the 8th Circuit Court of Appeals and I am pleased the U.S. Supreme Court will consider these issues.

Here are the questions presented: Certiorari Granted

The Arkansas Project Weighs in on Supreme Court Race

“I find LEAA’s injection of such ideas into Arkansas politics offensive, as a lawyer – and I think everyone who knows anything about the Constitution should find LEAA’s conduct offensive, as an American. Wynne has been vocal about the fact that he isn’t the author of these ads. But when he’s asked about his evaluation of them, he has – just a little ironically – exercised his right to remain silent.”

Read more: A Note On Cullen Vs. Wynne For Supreme Court | The Arkansas Project
Follow us: @nhhorton on Twitter | TheArkansasProject on Facebook

Annenburg Public Policy Center Exposes False LEAA Ad

“In the end, the LEAA attack ad is beyond the pale. It comes at the 11th hour and distorts the record in a blatant appeal to fear and emotion. It is funded by special interests, but we don’t know the real intent of those behind the ad, because the group does not have to disclose its donors. This kind of attack has become all too common in races for the legislative and executive branches of government, but it is incompatible with the code of judicial conduct and has no place in judicial races.”

Task Force Recommends Adding “Same Specialty” Requirement to A.R.E. 702

The final report (2014 Ark. 47) of the Supreme Court Task Force on Practice and Procedure in Civil Cases was released today.   The prior interim report and proposals were previously discussed here:

This final report chronicles the history of the “same specialty” requirement in medical malpractice cases from Justice George Rose Smith’s decision in Cathey v. Williams, 290 Ark. 189 (1986), the enactment of Act 649, to the invalidation of the “same specialty” requirement in Broussard v. St. Edward Mercy Health System, Inc., 2012 Ark. 14 (as impinging on the authority of the court to decide who may testify under what conditions pursuant to Amendment 80).

The Task Force proposes to incorporate the “same specialty” requirement into Rule 702 of the Arkansas Rules of Evidence.   The proposed new rule can be found at page 11-12 of the report linked here:

The Supreme Court has requested comments from the bench and bar.  They should be directed to:

Les Steen, Clerk of the Supreme Court
Attention: Task Force
Justice Building
625 Marshall Street
Little Rock, AR 72201

Court of Appeals Reversed: Hollandsworth Presumption Does Not Apply in Joint Custody

I previously blogged about Bishop v. Singletary, 2013 Ark. App. 394, a custody case where the parents shared joint custody, the mother proposed a move out-of-state, and the trial court changed custody to the father.

On appeal, a split en banc panel of the Court of Appeals reversed the trial court, saying the Hollandsworth presumption would apply even in a joint-custody situation.   Recall Hollandsworth v. Knyzweski, 353 Ark. 470, 109 S.W.3d 653 (2003), announced a presumption in favor of a custodial parent’s relocation, and that relocation alone would not constitute a material change of circumstances to justify a change of custody.

But that decision (and blog post) can be relegated to the dust bin of history because the Court of Appeals decision in Bishop was taken on review by the Arkansas Supreme Court and the Supreme Court reached the opposite conclusion.

A 5-2 decision of the Supreme Court vacated the Court of Appeals opinion and affirmed the trial court.   The majority held: “We clarify today that the Hollandsworth relocation presumption applies only in those cases where a parent has been granted sole or primary custody of a child.   We further clarify that the Hollandsworth relocation presumption simply does not apply when the parents share joint custody of a child.”   The decision goes on to announce the analysis to be applied when a court faces a change in custody request involving a joint custody arrangement.   The trial court must first find a material change in circumstances, and then determine if a change of custody is in the best interests of the child, citing Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002).

The full text of the Supreme Court’s decision can be found here:

Special Task Force on Practice and Procedure Issues Report

The Arkansas Supreme Court published an interim report of the special task force appointed last year to address several recurring issues in the civil justice system.   Their report includes recommended changes to several important rules, and a discussion of the rationale for the proposed changes.   The Court is now soliciting comments and further reports from the task force before deciding whether to implement the proposed changes.

The full report can be found here:

Comments should be submitted in writing to Les Steen, Clerk of the Supreme Court,
Attention: Task Force, Justice Building, 625 Marshall Street, Little Rock, AR 72201. The
comment period shall expire on March 14, 2014.

Here are some verbatim excerpts from the report:

In a per curiam order issued August 2, 2013, the Supreme Court established the Task Force to
consider problems with and recommend changes in the court-adopted procedural rules that
pertain to “parties, liability, and damages in civil litigation involving negligence, medical
malpractice, and related cases.”

The Task Force devoted more time to allocation of nonparty fault than to any other issue but
in the end could not reach consensus. Nevertheless, seven of the nine voting members agreed on
the recommendation included in this report.

In brief, the Task Force recommends adding new provisions to three Rules of Civil
Procedure: Rule 9(h), Rule 49(c), and Rule 52(a)(2). Rule 9(h) would be the exclusive procedural
mechanism for asserting the substantive right to an allocation of nonparty fault under Ark. Code
Ann. §§ 16-60-201 & 16-60-202(c), as amended by Act 1116 of 2013. Like similar rules in other
states, Rule 9(h) requires a defendant to assert a contribution claim for allocation of nonparty fault
in an answer or amended answer.

This pleading requirement assures notice to all parties and must be met if a nonparty’s fault
is to be determined by the trier of fact, as provided in proposed Rules 49(c) and 52(a)(2).
However, it does not apply to a nonparty whose status stems from a settlement with the plaintiff;
by statute, the trier of fact must determine a released joint tortfeasor’s “pro rata share of
responsibility” for the plaintiff’s damages. Ark. Code Ann. § 16-61-204(d).

The proposed additions to Rules 49 and 52 provide that, in actions for personal injury,
medical injury, wrongful death, or property damage, the trier of fact must “determine the fault of
all persons or entities, including those not made parties, who may have joint liability or several
liability” for the alleged harm if: (1) the plaintiff has settled with the nonparty, or the defendant
has given the notice required by Rule 9(h), and (2) the defendant has carried its burden of
establishing a prima facia case of the nonparty’s fault. The italicized language within the quotation
is taken from Ark. Code Ann. § 16-61-201 and is intended to be coextensive with the statute.

Under both rules, apportionment of fault to a nonparty is to be used only for determining
the percentage of fault of the parties, and a finding of fault can neither subject a nonparty to
liability in any action nor be introduced as evidence of liability in any action. These provisions are
based on Section 2 of Act 649 of 2003, the Civil Justice Reform Act. Section 2, codified at Ark.
Code Ann. § 16-55-202, was invalidated on separation-of-powers grounds in Johnson v. Rockwell
Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135 (2009).