The Federalist Society this week published an article, Tort Reform Update: Recently Enacted Legislative Reforms and State Court Challenges, authored by Madison Lawyers’ Chapter President Andrew Cook discussing the numerous civil liability reform bills passed throughout the country the last two years. In addition, the article discusses recent decisions involving state court challenges to previously enacted civil liability reforms.
The article notes that over the last two years numerous civil liability reforms have been enacted in nearly half of the states, with Wisconsin leading the way. Other states passing multiple civil liability reforms during the 2011-12 legislative sessions include Alabama, North Carolina, and Tennessee.
According to the article, the most common pieces of legislation enacted include:
- Removing the collateral source rule to allow juries to more accurately determine how plaintiffs should be reimbursed for damages in personal injury cases;
- Reducing interest on pre- and post-judgments;
- Creating more transparency in government retention of private plaintiff attorneys on contingency fee basis;
- Placing caps on noneconomic and punitive damages;
- Adopting the so-called Daubert standards relating to expert evidence in court; and
- Providing co-defendants greater protection in cases involving joint and several liability.
The article also discusses recent state Supreme Court decisions in cases where plaintiffs have challenged the constitutionality of previously enacted civil liability reforms. The challenges focused primarily on laws capping noneconomic damages, typically in medical malpractice liability cases. In a slight majority of the cases, the laws capping noneconomic damages were upheld. The two exceptions were the Kansas Supreme Court and Missouri Supreme Court.