Thursday, June 13, 2013

Umm . . . While You’re At It

Back in 2009, we posted that a recently enacted Oklahoma tort reform statute included a provision to eliminate most class action litigation under the notorious outlier case Ysbrand v. DaimlerChrysler Corp., 81 P.3d 618 (Okla. 2003), by forbidding nationwide classes to be brought under Oklahoma law.  It seems to have worked.  We haven’t heard of any Ysbrand shennigans since then.

Well, the Oklahoma Supreme Court was plainly out of control in Ysbrand, and unfortunately it remains out of control to this day.  Recently, in Douglas v. Cox Retirement Properties, Inc., ___ P.3d ___, 2013 WL 2407169 (Okla. June 4, 2013), the same court invalidated the entire tort reform statute, under the obscure (and rightly so) “single subject” rule for legislation.  Funny how we never seem to see that invoked except when tort reform is at issue….

Douglas thus resurrects (at least potentially) the anything goes class action practice that existed under Ysbrand – as well as the raft of other litigation abuses that the Oklahoma legislature thought it had addressed in 2009.  That’s bad news.

The silver lining is that, since practically the day Douglas was decided, legislators in Oklahoma, who passed the original bill by a substantial margins, have been quoted as saying that they would break up the original legislation into separate bills.  Moreover, with Douglas reviving tort reform as an issue, additional “measures − to limit liability for gun manufacturers, adopt federal guidelines for expert witnesses and protect restaurants [from] obesity-related lawsuits” may also be on the agenda.

Umm … guys….

If Sooner State legislators are looking for additional tort reform ideas, we have one.  How about a Kentucky-style codification of negligence per se that prohibits violations of federal (but not state) statutes and of regulations from being used as a basis for liability under state law?  See St. Luke Hospital, Inc. v. Straub, 354 S.W.3d 529, 534 & n.14 (Ky. 2011); T & M Jewelry, Inc. v. Hicks, 189 S.W.3d 526, 530 (Ky. 2006); Sadler v. Advanced Bionics, Inc., 2013 WL 898152, at *8 (W.D. Ky. March 8, 2013) (all interpreting and applying Ky. Rev. Stat. §446.070).  Not only that, we think the language of §446.070 could be improved upon a bit, to make the prohibition so perfectly clear that even the Oklahoma Supreme Court could not avoid it:

A person injured by the violation of any statute [law of this state only, and of no other enactment of this or any other jurisdiction], may recover from the offender such damages as he sustained by reason of the violation, although a penalty or forfeiture is imposed for such violation.

Bracketed language added to the existing Kentucky statute.

We note that the first Kentucky court to so hold, T & M Jewelry, did so when faced with a negligence per se action for violations of a federal gun control statute that did not include any federal right to damages.  189 S.W.3d at 529-30.  We suspect that Oklahoma legislators may view federally-based negligence per se actions of this nature with a similarly jaundiced eye.

The passage of such a statute would, of course, bring a quick end to another recent example of the unrestrained pro-plaintiff tendencies of the Oklahoma Supreme Court, Howard v. Zimmer, Inc., 299 P.3d 463 (Okla. 2013), the adverse effects of which we discussed at length, here.  In brief, Howard opened the door wide to indiscriminate federally based negligence per se litigation based on any statute or regulation, even in cases where, as with the FDCA, the drafters of the statute included explicit language forbidding private rights of action.

How ‘bout it y’all?

If any of our in-house readers are in a position to influence the legislative process in Oklahoma, please, by all means, take our idea as your own.  We don’t care about credit nearly as much as we care about results.

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