Votes for Issue 1, as it stands today, will not be counted in November's election as a result of a judge's ruling, but the Arkansas Supreme Court could easily change that. Expecting this, supporters and opponents of Issue 1 are continuing their campaigns.
It's still important to understand how Issue 1 will affect Arkansans.
Issue 1 includes a cap on the recovery of damages in tort lawsuits, those in which injured victims sue their injurers. Injurers are liable only if at fault, either having acted intentionally or unreasonably. This cap will limit what damages injurers will pay injured victims. Victims will still recover all of their economic damages, like lost wages and medical expenses. But recovery of noneconomic damages -- like pain and suffering, mental anguish, emotional distress, grief, loss of relationship -- will be capped at $500,000.
Because many other states have noneconomic damages caps, we know the likely effects of Arkansas' cap if passed. In short, it will most harshly affect cases where the injured victim has little in economic damages but extensive noneconomic damages. These victims include children, living and unborn, the elderly and victims of sexual abuse or assault.
If a child is killed, Arkansas law allows the parents to bring a wrongful death tort claim. The claim also exists for the deaths of an unborn child still in his mother's womb. Both economic and noneconomic damages are available. A parent's economic damages after the death of a child, however, are based on the economic contributions the parent expected from the child minus the costs of raising the child. In today's world, the result of that calculation is negative; the child's death saved the parent money. No economic damages exist.
A parent's only significant damages will be noneconomic -- damages for the lost child-parent relationship, the mental anguish and grief. These parents had to bury their child. If the child died before birth, the mother also had to still deliver her child knowing she wouldn't hear him cry in the delivery room. Their child's death is the absolute worst thing parents can experience; things will never go back to the way they were. But, if the damage cap passes, parents' legal recourse from the person who killed their child will be limited to $500,000.
The cap will have a similarly harsh effect in wrongful death of the elderly cases. Allegations of nursing home abuse or misconduct are a common subject of lawsuits currently, but likely not so if the cap passes. A spouse or child has little economic damages after the death of an elderly person because the elderly person was likely not a source of income. Instead, the spouse's or child's only significant damages for the death of their partner or parent are noneconomic, capped at $500,000 under Issue 1.
Victims of sexual abuse and assault, both adults and children, will also feel the harsh effects of the noneconomic damage cap. Exceptions exist, but victims of sexual abuse and assault usually lack extensive economic damages -- they are able to work and lack extensive medical expenses. These victims do, however, have extensive emotional distress and mental anguish, injuries unlikely to ever completely fade. But their recovery of damages against their abusers will be limited to $500,000.
That is still a lot of money. But it is only a small amount compared to the uncapped recovery of economic damages like lost wages and medical expenses injurers will still have to pay in Arkansas.
Plus, these injured victims will likely be left with much less than $500,000. Caps do more than reduce damages; they also reduce or eliminate the incentive for lawyers to take cases in the first place. A plaintiff's attorney's payment is based on a portion of the damages the plaintiff recovers. If the attorney knows ahead of time that the damages will be no larger than $500,000, the attorney is likely to instead choose another case where recovery will be larger, like cases with large, uncapped, economic damage awards.
It's important to realize Arkansas' proposed cap differs from other states' caps. Many states apply the cap only to non-fatal injuries or have different and higher caps for wrongful death claims. Many states have specific exceptions when the cap does not apply, like how Oklahoma's and North Carolina's caps do not apply if the jury finds the defendant acted intentionally, like in cases involving sexual abuse or assault.
If a damage cap is necessary, Arkansas could craft one with exceptions for cases where economic damages are minimal and noneconomic damages are significant. The version potentially on the ballot in November does not do so.
Commentary on 09/20/2018