“Tort reform light” passes by one vote 

By STEVE BRAWNER

A one-page tort reform bill passed by one vote in the Senate last Thursday before heading to the governor’s desk.

House Bill 1204 by Rep. Jon Eubanks, R-Paris, stipulates that plaintiffs can recover only the medical damages that they or their insurer actually paid. 

Business groups including the Arkansas State Chamber of Commerce supported the bill, which bans what some call “phantom damages.”

Through the years, those groups have supported other tort reform efforts meant to reduce their exposure to big and sometimes excessive verdicts and to slow the ever-rising costs of insurance. Many of those efforts have fallen short, including a far-reaching ballot measure in 2018 that the Supreme Court blocked weeks before the election. Comparatively, this latest one was “tort reform-light,” as the Arkansas Democrat-Gazette said Eubanks described it.

I should disclose that, as a freelancer, I have written stories about tort reform issues, including phantom damages, for magazines published by trucking trade associations that would support House Bill 1204 and others like it.

This being a business-friendly Legislature and governor – and this being a relatively modest proposal compared to past efforts – it would have seemed likely to pass. And indeed, the House of Representatives passed it, 71-18. 

The Senate vote was much closer. The initial vote was 17-16, or one vote short of a majority. Sens. Jim Petty, R-Van Buren, and Terry Rice, R-Waldron, initially did not vote. (Editor’s note: Sen. Steve Crowell, a Magnolia Republican who represents Senate District 3 including the Arkadelphia area, was among the lawmakers who cast a vote in favor of the bill.)

Lt. Governor Leslie Rutledge, who presides over the Senate, asked if anyone wished to change their vote, as the presiding officer commonly does. Rice voted no, making it 17-17. Petty, who was expected to vote yes, did so, giving the bill the one-vote majority it needed. Gov. Sarah Huckabee Sanders planned to sign the bill, as reported by the Democrat-Gazette. 

While all 18 yes votes were Republicans, 11 Republicans joined with the Senate’s six Democrats in voting no.

In presenting the bill, Sen. Missy Irvin, R-Mountain View, the lead Senate sponsor, told her colleagues that medical bills are negotiated, and it was reasonable to expect that damages should be equal to what was actually paid. If you buy a $100 sweater for $50, you don’t expect to get $100 back from the store if you take it back. 

“The data and information that I can see and trust is, here’s the receipt, here’s what was paid, and so here is what you should be able to recover,” she said.

She noted that the one-page bill doesn’t preclude the many other types of damages judges and juries can award victims. Those include lost wages, property damage, pain and suffering, punitive damages, and others.

Sen. Clarke Tucker, D-Little Rock, one of two attorneys in the Senate, opposed the bill. He said medical expenses serve as a baseline for other damages. He said there is no proof the bill would reduce insurance rates. Irvin pretty much conceded that point when she presented the bill.

Several Republicans joined Tucker in speaking against the bill. Sen. Gary Stubblefield, R-Branch, said it would help big insurance companies at the expense of “the little guy.” Sen. Clint Penzo, R-Springdale, called it an “insurance enrichment program.” Sen. John Payton, R-Wilburn, an auctioneer, pre-owned car dealer and cattle farmer, said his default position is to support tort reform. But he took issue with the three times the bill used the word “necessary” when describing covered medical expenses.

Sen. Alan Clark, R-Lonsdale, said there was no evidence that similar laws had lowered rates in other states. 

“I have learned, to my dismay, in my time chairing (the) Judiciary (Committee) that the courts are for the rich and big corporations,” he said. 

Afterwards, the state Republican Party sent a press release praising the bill’s passage despite the party split in the Senate. It quoted Speaker of the House Brian Evans, R-Cabot; Senate President Pro Tempore Bart Hester, R-Cave Springs; and other elected officials along with the party’s chairman, Joseph Wood. 

Meanwhile, at least two grassroots groups often allied with Republicans, Conduit For Action and the Family Council, opposed the bill. Conduit News raised the specter of challenging yes voters in party primaries on its Facebook page.

You could make the case that the bill won’t accomplish a whole lot for the business community. On the other hand, based on the 18-17 Senate vote, business groups achieved about as much as they could. 

They’re not coalescing behind any other tort reform bills this session. In politics, you often take what you can get.

Steve Brawner’s column is syndicated to 17 outlets in Arkansas. Email him at brawnersteve@mac.com.