Tampering With Torts; Fallout From Tort Reform Considered -LAJ/BRBA

TAMPERING WITH TORTS; FALLOUT FROM TORT REFORM CONSIDERED

 

By Michael C. Palmintier

12/12/08

 

The Tort Reform movement of the late 20th – early 21st centuries has had substantial and obvious impacts on the rights of citizens who allege damages as a result of tortious conduct. For lawyers practicing personal injury law in Louisiana and the rest of the nation, these substantive and procedural changes have significant implications. In its most obvious forms, this movement has imposed such modifications as:

 

• Elimination of codal and jurisprudential doctrines favorable to plaintiffs;

• Immunities for specific conduct;

• Caps on general damages;

• Caps on special damages;

• Special prescriptive periods and peremption for special classes of defendants;

• Procedural modifications favorable to defendants, and so on;

No serious student of tort law would deny that these changes have brought about a veritable revolution in this area of practice. However, there would be no such consensus were we to consider the impetus behind this metamorphosis. The ideological underpinnings of tort reform could be debated ad nauseam without our reaching a meaningful conclusion. It is not our purpose to examine the philosophy of this movement. Rather, we will consider the unintended effects of its substantive and jurisprudential evolution, with an eye toward identifying and evaluating some of these collateral consequences.   What is the fall-out from these extensive changes? We will consider a sampling of state and federal reforms.

 

They include the following:

 

• Favored Summary Judgement; the two – edged sword of Partial MSJ;

• Medical Malpractice Caps; constitutionality eroded by time?

• Federal Preemption;

• Highway Defects; caps, trusts and 409;

 

 

Summary Judgment

 

THE STATUTES; a history

 

C.C.P 966 (C)and (E) before the 1997 amendments:

C. After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to udgment as a matter of law shall be granted against an adverse party who fails to make a showing sufficient to establish the existence of proof of an element essential to his claim, action, or defense and on which he will bear the burden of proof at trial.

E. A summary judgment may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

C.C.P. 966 (C)and (E) after the 1997 amendment:

C. (1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted against an adverse party who fails to make a showing sufficient to establish the existence of proof of an element essential to his claim, action, or defense and on which he will bear the burden of proof at trial.

      (2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movants burden on the motion does not require him to negate all essential elements of the adverse partys claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse partys claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial,there is no genuine issue of material fact.

E. A summary judgment may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages dispositive of a particular issue, theory of recovery, cause of action for defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case.

(All italicized portions are added by the 1997 amendment.)

 

C.C.P. 1915 before the 1997 amendment:

A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:

(1) Dismisses the suit as to less than all of the plaintiffs, defendants, third party plaintiffs, third party defendants, or intervenors.

(2) Grants a motion for judgment on the pleadings, as provided by Articles 965, 968, and 969.

(3) Grants a motion for summary judgment, as provided by Articles 966 through 969, except a summary judgment rendered pursuant to Article 966(D).

(4) Signs a judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1038.

(5) Signs a judgment on the issue of liability when that issue has been tried separately by the court, or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury.

B. If an appeal is taken from such a judgment, the trial court nevertheless shall retain jurisdiction to adjudicate the remaining issues in the case.

 

CCP 1915 after the 1997 amendment:

A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:

(1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors.

(2) Grants a motion for judgment on the pleadings, as provided by Articles 965, 968, and 969.

(3) Grants a motion for summary judgment, as provided by Articles 966 through 969, including a summary judgment granted pursuant to Article 966(E).

(4) Signs a judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1038.

(5) Signs a judgment on the issue of liability when that issue has been tried separately by the court, or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury.

(B)(1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, theories, or parties, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless specifically agreed to by the parties or unless designated as a final judgment by the court after an express determination that there is no just reason for delay.

(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the prupose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

(C)If an appeal is taken from any judgment rendered under the provisions of this Article, the trial court shall retain jurisdiction to adjudicate the remaining issues in the case.

(All italicized portions are added by the 1997 amendment.)

Significant changes in 966 were part of the 1996 Tort Reform push. The principle language change was the pronouncement that summary judgment is favored. At the same time, the statute specifically preserved the essential notion that the burden of proof in such motions shall remain with the mover. What happened next was easy to predict. In serving its function as that branch of government which interprets the law, the judiciary commenced to evaluate and apply the new language.

The circuits were not greatly inconsistent in their treatment of the new law. However, some of the cases were apparently not to the liking of the some members of the legislature. In the 1997 regular session, the words of one opinion, from one circuit, penned by a certain appellate judge (soon to be supreme court justice), were anointed as the chosen language of summary judgment. The opinion of now-justice Knolls in Hayes vs. Autin, 685 So2d. 691 (La. App. 3rd Cir. 1996) was directly mentioned in the note found at Section 4 of Act 483 of the 1997 Regular Legislative Session, which further amended the language as quoted above. The purpose statement contained in Section 4 legislatively overruled all cases inconsistent with Hayes, supra.

The favored status language of the 1996 act and the purpose statement of the 1997 law substantially effected the rulings of trial and appellate courts in Louisiana. The desired effect was achieved summary judgment became a useful weapon in the defense arsenal.

 

 

Constitutionality of the Act; Arrington v. GalenMed Inc.

 

The constitutionality of the Louisiana Medical Malpractice Act has been challenged on numerous occasions throughout the years. In the end, all of these challenges have proven unsuccessful. However, by virtue of the shear weight of time which has passed since the cap provisions of the statute were passed, that constitutional invincibility is now threatened.

In the companion cases, Arrington v. GalenMed, Inc., et al., 947 So. 2d 719, 062923

(La. 02/02/2007) and Taylor v. Clement, 947 So. 2d 721; 062518 (La. 02/02/2007), the Supreme Court reversed a ruling by the Third Circuit that the cap provisions of the Act were unconstitutional. However, that reversal was based on a technicality of pleading and appellate procedure. The cases were remanded for further evaluation of the Acts constitutionality. In turn, the Court of Appeal remanded to the trial court with instructions to allow amendment and evaluation of all issues. The details of the proceedings are significant to our discussion of the future of Medical Malpractice in Louisiana.

 

In the district court, cross motions for summary judgment under La.C.C.P. Art. 966 were filed. The rulings by thendistrict court Judge, David Painter (now of the Third Circuit), was to uphold the constitutionality of the cap. It is significant to note that Judge Painter did not express a great deal of respect for the Act in general.

The first appeal of the trial courts ruling resulted in the Third Circuits certification of a question to the Supreme Court.

As the court stated in a later opinion:

 

This case was previously before the court. Arrington v. ER Physicians Group, APMC, 041235 (La.App. 3 Cir. 3/9/05), 897 So.2d 911. The sole issue raised in that appeal was the same issue raised in its companion case, Taylor v. Clement, 041069 (La.App. 3 Cir. 3/9/05), 897 So.2d 909. At that time, we applied to the Supreme Court of Louisiana for instructions on the following question of law arising in both proceedings:

Considering the devaluation of the dollar in the thirty years since the passage of the medical malpractice act is such that the $500,000.00 limit imposed in 1975 is now, according to competent evidence, worth only $160,000.00, and considering that Section 22 of Article I of the Louisiana Constitution of 1974 provides Louisiana citizens with an “adequate remedy” under our law, is the limitation on recovery for general damages of $500,000.00 imposed by the Louisiana Medical Malpractice Act, La.R.S. 40:1299.41, et seq., still considered constitutional?…..

The Louisiana Supreme Court denied our request for certification. Arrington v. ER Physicians Group, APMC, 051059 (La.6/17/05), 904 So.2d 708, Taylor v. Clement, 051057 (La.6/17/05), 904 So.2d 708, and remanded the cases so that we could consider the plaintiffs’ appeals.

Given this mandate from the High Court, the appellate court proceeded to analyze the Act and its cap provisions in light of the history of those provisions and the evidence adduced at the district court level. In holding the statute to be unconstitutional, the court stated:

In the case sub judice, the plaintiffs argue that the Louisiana Medical Malpractice Act cap provision violates a number of provisions of the Louisiana Constitution of 1974:

 

(1) the “due process” and “adequate remedy” provisions of La. Const. art. 1, 22;

(2) the “separation of powers” provision of La. Const. art. 2, 2;

(3) the provisions of La. Const. art. 3, 2 and 12, in that it is a “special law” granting privileges and immunities and changes the method of collecting debts and enforcing judgments; and

(4) the provisions of La. Const. art. 5, 16, in that no amendment to the constitution was ever adopted changing the original jurisdiction of the district courts. Inasmuch as we find merit to the plaintiffs’ “adequate remedy” argument, we pretermit discussion of all other arguments…….

The trial judge found that because of the depreciation of the dollar, the $500,000.00 cap imposed in 1975 is worth only about $160,000.00 today. That conclusion is supported by the evidence. The defendant argues that the passage of time, the devaluation of the dollar, and other relevant economic factors are irrelevant in determining whether an adequate remedy in law exists. We disagree.   As we noted earlier, Dr. Kurth, in his affidavit, valued the 1975 cap at only $146,435.00 in today’s dollars. Using those values one can calculate that in order to grant today’s plaintiff the same relief the legislature granted to plaintiffs in 1975, the cap would have to be raised to $1,562,500.00 using the $160,000.00 value and $1,707,242.00 using Dr. Kurth’s value. In either case, we find the current $500,000.00 cap fails to provide an adequate remedy to today’s severely injured plaintiffs and thus, is unconstitutional under the provisions of La. Const. art. 1, 22.

Plaintiffs success was not to last, however, when the Supreme Court granted writs to consider the issue presented to it earlier as a certified question. The Court remanded the case to the appellate level:

The judgment of the court of appeal declaring La. R.S. 40:1299.42(B) to be unconstitutional in violation of La. Const. Art. I, 22 is vacated and set aside. The case is remanded to the court of appeal to consider the remaining issues in the appeal.

In so holding, the Court found that the issue of constitutionality was not properly pled or considered at the trial court level. Importantly, the Court kept plaintiffs efforts alive by requiring the court of appeal to consider the remaining issues. These included the additional constitutional issues pretermitted by the intermediate court.

The most recent reported chapter in the Arrington saga is authored by the Third Circuit. Having received the cases back from the Supreme Court, the court promptly sent them down to the trial court with instructions:

 

DECREE

We vacate the judgment of the district court. The case is remanded to the district court to allow the Plaintiffs to specially plead the unconstitutionality of La.R.S. 40:1299.42(B) and for full litigation of the issues at a contradictory hearing in a manner consistent with this opinion.

 

VACATED AND REMANDED WITH INSTRUCTIONS. (970 So. 2d 540)

At this writing, the parties are preparing for a new showdown on the issue of constitutionality of the cap. Amendments have been filed, expert witnesses are being added and deposed and new hearings are on the horizon. What will the future hold? Stay tuned.