A ‘special law’ cannot stand (Capitol Update)

A long-awaited ruling by the Oklahoma Supreme Court was issued last week dealing with the Legislature’s ability to place a limit or “cap” on the recovery of non-economic damages by persons injured through the fault of another party. There’s no limit on economic damages like doctor and hospital bills and lost earnings, but the Legislature in 2011 placed a $350,000 cap on non-economic damages which consist of kinds of damages usually called “pain and suffering.”

In this case a 41- year old man was injured when the arm of an 80-foot crane crashed down on him causing him to have his arm amputated and to live with severe daily nerve pain and several other health complications. The man and his wife were awarded $6 million in non-economic damages. Because of the Legislature’s action, the $6 million was cut to $350,000 each for the man and his wife, or $700,000 total instead of $6 million. They appealed, and after 7 years from the injury the Supreme Court ruled that the Legislature overstepped its constitutional authority by passing a “special law.”

Article 5, Section 46 of the Oklahoma Constitution limits the Legislature from passing “local or special laws” authorizing such things as granting divorces, fixing the rate of interest, exempting property from taxation, and several other types of laws. Important here, one of those prohibitions is a limitation of civil or criminal actions. The Legislature can pass general laws on these topics meant to apply to everyone, but they cannot pass laws on these subjects meant to apply to only one person or class of persons. The court found this section had been violated.

The $350,000 cap was passed during Governor Fallin’s first year in office under the general rubric of “tort reform.” The cap had the strong support of the governor, the State Chamber, and many of the state’s business elite, and to be fair, others in the business community. They claim catastrophic cases, though few, cause higher insurance rates. Doctors, subject to liability for negligent medical treatment, were also strong backers. Even so, the bill failed its first vote in the House by a substantial margin. But overnight a flurry of calls from prominent voices in business leadership switched enough votes to pass the cap.

The other side of the story is that a cap on damages penalizes only the most egregiously injured, people who suffer severe burns, lost or mangled limbs and organs, brain injuries, and other painful, life changing injuries. Some argue that no amount of money can truly compensate them, so why not set an arbitrary number. But the Supreme Court ruled that under our constitution, that’s what juries in individual cases are for, not legislators. Each case has its own individual facts and amount of suffering. Just as the Legislature cannot grant a divorce, it cannot decide a civil lawsuit by creating a class and ruling that everyone in the class gets no more than a certain amount.

You can look for the same forces who got this measure passed in the first place to begin looking for ways to defeat the Court’s ruling. A couple of possibilities are amending the constitution to change the “special laws” rule or to put a damage cap directly into the constitution. Another might be to populate the Court with Justices more likely to uphold a cap.


Steve Lewis served as Speaker of the Oklahoma House of Representatives from 1989-1990. He currently practices law in Tulsa and represents clients at the Capitol.

One thought on “A ‘special law’ cannot stand (Capitol Update)

  1. What do you think about HB 2373 that was just signed by the governor earlier this month? It sets punitive damages at the lower of $250,000 or 3 times actual damages for nuisance claims against agriculture. Any chance this is unconstitutional as well?

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