Over the past Legislative session a number of headline grabbing issues, notably healthcare and guns at stadiums, took center stage, but under the radar, a far more ominous development occurred, according to one state association leader, which will appear in the form of a ballot measure at the polls in November 2018.

Over the past Legislative session a number of headline grabbing issues, notably healthcare and guns at stadiums, took center stage, but under the radar, a far more ominous development occurred, according  to one state association leader, which will appear in the form of a ballot measure at the polls in November 2018.
Senate Joint Resolution 8 was a proposed constitutional amendment to institute Tort Reform, complete with caps on damages and awards, in Arkansas. States like Texas and California have instituted such measures over the years; State Senator Missy Irvin of Mountain View was the lead sponsor in the now past 2017 session, and in Hope last week, one of her colleagues, State Senator Trent Garner of El Dorado spoke about the issue at the Hempstead GOP dinner.
Joey McCutchen, president of the State Trial Lawyers Association, who was also in Hope earlier this week, expressed his concerns Thursday saying, “This measure is basically asking the voting public to vote their rights away.”
The Tort Reform amendment that voters will see on the ballot seeks to sharply limit the punitive and non-economic damages that can be awarded to $500,000 to plaintiffs in civil actions.
“Are the voters willing to say that a human life — their spouse, their kid, their mother or father — is worth $500,000,” McCutchen said.
McCutchen called the issue a largely “Non-Partisan” one, and he expressed surprised that many Republicans in the state, including those in the State Legislature, are supporting the idea. McCutchen himself is a well-known and respected conservative as are Irvin and Garner, but they finds themselves on opposing sides of the issue.
“The right of trial by jury, whether it is a civil or criminal case, is guaranteed by the Constitution. I see this as an effort by special interest groups to curtail citizen rights that are guaranteed,” he said.
And intervention again by the State Supreme Court?
“This ballot measure is significant because it is an Constitutional amendment; so it is asking citizens to amendment their own Constitution in a way that is against their own interests, against their own rights,” he said.
McCutchen says he is also concerned that many traditional conservatives are backing a measure in which government is imposing caps on awards, which he says, in effect, imposing caps on accountability.
“When a Jury speaks, they are saying that a certain conduct needs to stop. They are saying that 'If you broke something, then you fix it.' What this measure does is that it imposes a cap on accountability. It says you can kill a person in a Nursing Home, and it will only cost you $500,000,” he said.
McCutchen said a similar Tort Reform ballot issue appeared in 2016, and was touted and promoted by several Nursing Homes and some physicians, but the State Supreme Court did intervene then, striking it down.
The proposed 2018 version of Tort Reform would cap the attorney contingency fees at 1/3 of the net recovery in a civil action and set limits of $250,000 each on punitive damages and non-economic damages, resulting in a net total of $500,000.
McCutchen said “What has happened here is that the State Legislature has taken power out of the hands of citizen juries, and said ‘We, as the government, will set the cap,’ which runs contrary to what most conservatives stand for.”
Hope Attorney Blake Montgomery said “What is more local in government than a citizen jury of 12 community peers?”
McCutchen also said “And, this isn’t an issue that the general public has been clamoring for.”
McCutchen testified against the measure during the 2017 session, but it still made it out of committee and made it to the 2018 ballot.