CF, I wasn't really taking a position on the majority of the issues you discussed in your epistle (other than the summary judgment standard). I was simply reporting what was happening. Still, you know that I'm on the defense side of things which means that I am support many of the reforms in the statute.
1. Non-economic damages:
First of all, caps on damages is not a foreign concept in this state or in federal courts. Indeed, retaliatory termination claims under the Workers Comp statute caps punis at 100,000 (85 O.S. §§ 5-7) and in Real Estate Disclosure Act cases punitive damages are prohibited. 60 O.S. § 837. On the fed side, in employment discrimination cases both compensatory and punitive damages are capped based upon the number employees there are. 42 U.S.C. § 1981a. The world has not collapsed as a result of those caps.
Moreover, I am unsure what sort of cases you work on, but where I am at we deal with multi-million dollar non-economic damage cases all the time. I have personally tried and won cases where these damages were in the tens of millions. Also, were you around during the "let's sue the crap outta nursing homes" wave about four years ago? As a result of all that mess many nursing homes are now either uninsured or underinsured. Heck, go ask State Farm about their experiences with non-economic and punitive damages.
As for insurance bad faith claims, I have tried several of these and they ain't pretty. It seems as if everyone has seen "The Rainmaker" and how that evil insurance company ripped off that family. Juries hate insurance companies. Heck, go ask State Farm about their experience with smart Oklahoma juries.
Finally, capping damages will have more of an effect on both the number of cases filed and how they are evaluated for potential settlement. If as defendant knows that the most he can lose is 400K, I see the potential for more jury trials because the fear of a runaway jury will be removed.
2. Professional Negligence and the Expert Requirement
You know I have a personal interest in this so I will not waste your time. As you may recall, Oklahoma had an expert requirement rule and such was found unconstitutional as "special legislation" by the Oklahoma Supreme Court in
Zeier v. Zimmer, Inc. and Theron S. Nichols, M.D., 2006 OK 98, 152 P.3d 861. I think this is just another to require plaintiffs to have a professional evaluate a cause of action before filing because the standard of care is way beyond the common understanding of lay persons. And the "cost" argument is dubious because the plaintiff in a professional negligence (med mal, accountancy, legal mal) are going to have to hire an expert anyway or will lose on summary judgment. See,
Benson v Tkach, 2001 OK CIV APP 100, 30 P.3d 402 )("A plaintiff has the burden of proving through expert testimony: (1) the standard of medical care required of physicians, (2) that a duty existed and was breached, and (3) that this breach of duty resulted in harm to the plaintiff.")
3. Summary Judgment
Oklahoma substantive law governing summary judgment is far different than in federal court. The way I read the reform, it will be much easier for a party to obtain summary judgment since Oklahoma will now require a party to both refute alleged undisputed facts and come forward with facts that are in dispute.
4. Contingency Fees Capped
To borrow your phrase, that discussion is so two months ago:
http://www.tulsanow.org/forum/index.php?topic=12702.0We've had that debate already, I don't want to plow over that again.
I do take issue with several of your points about punitive damages in general, but I got to split out of here. Maybe tonight.
