The State of Oklahoma recently passed sweeping tort reform legislation, which according to Gov. Brad Henry (D), “[e]nacts reasonable and responsible reforms that improve the civil justice system without impairing a citizen’s constitutional right to have his or her legitimate grievances appropriately addressed in court.” The law entitled, The Comprehensive Lawsuit Reform Act of 2009, will, according to many Oklahomans, create jobs, increase health care accessibility in all corners of the state and show companies that Oklahoma is “open for business.” 

The new law contains strong improvements to a variety of tort reform principles, including class action reforms, product liability reforms, a cap on non-economic damages and asbestos/silica reforms.

One important feature of the new Oklahoma law is the establishment of the Asbestos and Silica Claims Priorities Act (hereinafter “Asbestos Act”). The Asbestos Act gives trial preference and priority to all asbestos and silica claims with the most severe physical impairments caused by exposures to asbestos or silica. In essence, this feature sets up an in extremis trial docket for such claims.

Second, the Asbestos Act provides a tolling provision to the applicable statute of limitations period to those who were exposed to asbestos and silica, but who are not manifesting any physical impairments. The tolling provision provides specific instruction and direction to those claimants for the filing of a lawsuit when they can demonstrate physical impairments that meet specific medical guidelines.

Third, the law sets out certain medical evidence requirements for claimants to meet before they are able to file suit in Oklahoma. A plaintiff suffering from mesothelioma or other related malignancy must first produce a report from a board certified expert in pulmonary medicine, oncology, occupational medicine or pathology showing that his or her condition, to a reasonable degree of medical certainty, was caused by asbestos exposure. For a plaintiff suffering from a non-malignancy, such as asbestosis or pleural plaques, the law requires the existence of an established doctor/patient relationship, a physical exam, a detailed occupational exposure history, and pathological evidence supporting the asbestos-related diagnosis. The law also provides an explanation of the types of non-malignancies recognized in Oklahoma. Similar standards apply to silica claims.

Finally, the Asbestos Act provides absolute protection to any successor corporation that acquired a manufacturer of asbestos but did not continue in the asbestos business. Any damages assessed against such “innocent successor corporations” are limited to the fair market value of the acquired company at the time of the merger or consolidation. The new law also limits non-economic damages for claims like pain and suffering in all personal injury cases to $400,000, except in exceptional circumstances. Such circumstances would include cases where a judge or jury, as fact finder, concludes “that a plaintiff has suffered permanent and substantial physical abnormality or disfigurement” . . . or that a defendant acted in “reckless disregard for the rights of others,” or was grossly negligent, acted fraudulently or acted intentionally or with malice.

The Asbestos Act does not take effect until November 1, 2009, and it will apply to any pending asbestos or silica case as long as trial has not yet begun.

Click on "Download PDF" to view a copy of the Comprehensive Lawsuit Reform Act of 2009 in paraphrased format.

For further information, please contact Craig T. Liljestrand, Paul M. Markese or your regular Hinshaw attorney.

This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.