The Arkansas Democrat-Gazette’s rundown today of the 40 proposals filed by legislators to amend the Arkansas Constitution was necessarily limited by a lack of details on many measures filed in “shell” form and the lack of indication so far of which are likely to break from the pack for legislative consideration. Only three can be chosen. But it is safe already to conclude life is cheap in corporate Arkansas.
The pack of measures filed to change civil lawsuit procedures to make them more favorable to corporate Arkansas (so-called tort reform) are mostly in shell form. There’s at least one exception.
Sen. Jeremy Hutchinson, generally a pack horse for class action lawsuit lawyer and political player John Goodson, does detail that he wants to set a cap on punitive damages. This is a nursing home wish.
It’s simple: The constitution would limit punitive damages to five times compensatory damages and in no case more than $1 million.
Could we infer from this that a person’s life is worth no more than roughly $200,0000 — one fifth of that $1 million cap? Seems like a place to start.
Perhaps we could view this as progressive policy. The younger and more productive a victim of corporate negligence, the less you could punish a corporate bad actor for damages to that person. Punish the rich for being rich, in other words. A person with million-dollar earning potential at a young age — no matter how egregious the negligence that led to that person’s death — couldn’t claim more than $1 million punitive damages to deter future negligent acts, though compensatory damages might be higher.
This cap isn’t about the productive, of course. It’s about the most vulnerable — aging and infirm nursing home patients who’ve been left to fester in oozing bed sores, their painful cries unheeded. It is a handful of cases such as these that have led to a few large punitive damage awards. Nursing homes want to prohibit this by Constitution.
(Recall the $5 million award against a Greenbrier nursing home by a unanimous jury in defense friendly Faulkner County? A woman died in horrid pain because the nursing home failed to follow an order to transfer her to a hospital. Judge Mike Maggio’s conscience was shocked by this verdict and he reduced it to $1 million, a great benefit to one of his recent key campaign contributors, nursing home owner Michael Morton.)
In a typical nursing home damage case — where the victim of abuse and neglect is elderly and often unable to express the need for medical attention — the value of an injured person’s life is much less. A quintuple multiplier won’t amount to much in the way of corporate deterrence.
No one understands this better than the nursing home owners holding daily feeding and cocktail sessions for legislators in a Capitol Hill private hideaway, Amendment 94’s ban on freebies for legislators be damned.
A five-fold punitive damage award for failing to treat a 90-year-old person won’t burden Michael Morton much — he who just bought millions more dollars worth of nursing homes in Lonoke and land to build more beds in Faulkner County. This is on top of the vast empire he’s used to finance the political campaigns of several members of the Arkansas Supreme Court as well as Mike Maggio. Alas for Morton, Maggio didn’t take a Court of Appeals seat as planned this year, having pressing business with the U.S. Justice Department and, likely, the federal Bureau of Prisons.
It’s a dirty business protecting corporate Arkansas from lawyers for grievously injured people. But I suspect Jeremy Hutchinson isn’t the only one up to the task.
The rest of the “tort reform” story to limit damages in civil suits is the approach by the Chamber of Commerce forces to take legislative control of rule-making from the courts and give it to the legislature. That power has stymied past legislative efforts to limit corporate exposure to civil damages.
Some might also have an interest in putting some restraint on the lawyers who make huge sums in class action lawsuits on commercial issues. This is a subject of interest to Hutchinson’s patron, John Goodson. I wouldn’t look for help on that count from Hutchinson.
UPDATE: Sen. Hutchinson checks in. He says the cap in his proposal is a drafting error.
It was a drafting error. I wasn’t planning on filing anything regarding tort reform but in the recent maneuvering, I decided to do so at the last minute. I was rushed and the bill was supposed to say 5x’s compensatory or 1mm dollars which ever is “greater” – the one million was to allow suits that may not have much in compensatory damages (like civil rights claims) to still allow for meaningful punitive damages.
So, that’s Hutchinson. But nursing homes want caps. Corporate Arkansas wants a variety of changes to reduce the size and number of damage awards. The proof of how much will be in the pudding is what emerges from the committee process — if Senate Republicans allow the Senate process to work given a Democratic power sharing on the key committee.