By Michelle R. Scheiffele
9/3/2009

Oklahoma recently passed sweeping tort reform legislation, entitled the Comprehensive Lawsuit Reform Act of 2009, aimed at protecting state courts from frivolous lawsuits.

I. Asbestos and Silica Claims Priorities Act: Prima Facie Evidence Required to Proceed to Trial

The new law establishes the Asbestos and Silica Claims Priorities Act.[1] Under the Act, plaintiffs claiming asbestos-related or silica-related injuries will now have to present prima facie evidence of asbestos-related or silica-related impairment before the case proceeds to trial.

For cases filed after November 1, 2009, a plaintiff will be required to provide to each defendant, within 90 days of receipt of the defendant’s Answer or Notice of Appearance, the prima facie evidence required under the Act.[2] The defendant will then have a reasonable time to challenge the adequacy of that evidence.[3] If the Court finds that the plaintiff has failed to present prima facie evidence of impairment, the case will not be placed on the trial docket nor be the subject of any discovery other than discovery on the issue of impairment.[4] For cases pending on November 1, 2009, the case cannot proceed to trial until 90 days after a report containing the prima facie evidence is served on each defendant.[5]

According to the Act, a prima facie showing of an asbestos-related malignancy requires a report by a physician board certified in pulmonary medicine, occupational medicine, internal medicine, oncology or pathology concluding that the exposed person has been diagnosed with mesothelioma or other asbestos-related malignancy and that, to a reasonable degree of medical certainty, exposure to asbestos was a proximate cause of the malignancy.[6] The report must also include a conclusion that the exposed person’s medical findings were not more probably the result of other causes revealed by the exposed person’s employment and medical history.[7] If the exposed person claims a malignant asbestos-related condition other than mesothelioma, the physician must state that the exposed person has an underlying non-malignant asbestos-related condition and at least 15 years have elapsed between the date of the first exposure to asbestos and the date of the diagnosis of the malignancy.[8] If a plaintiff alleges a non-malignant condition from asbestos or silica exposure, the prima facie showing includes a report with stringent requirements.[9]

Moreover, for any claim not barred as of November 1, 2009, the Act specifies that the statute of limitations will not begin to run until the plaintiff discovers, or through the exercise of reasonable diligence should have discovered that the plaintiff is physically impaired as set forth in the Act.[10]

The Act further provides that if a plaintiff has a prima facie showing of a right to recover from mesothelioma, the plaintiff can petition the court to request an expedited trial setting. The court, upon plaintiff’s showing of good cause and no prejudice to the defendants, may order an expedited trial setting of not less than 120 days from the court’s order, but the trial setting must be more than six months after the initial filing of the case.[11]

II. Innocent Successor Asbestos-Related Liability Fairness Act

The new law also created the Innocent Successor Asbestos-Related Liability Fairness Act.[12] This Act applies to any successor corporation that acquired asbestos-related liabilities but did not continue in the asbestos business.[13] It will apply to all asbestos claims against an innocent successor filed on or after November 1, 2009 and those in which trial has not commenced as of November 1, 2009.[14]

Under this Act, any damages assessed against the innocent successor are limited to the fair market value of the total gross assets of the transferor, determined at the time of the merger or consolidation. However, if the transferor had assumed or incurred successor asbestos-related liabilities from a prior merger or consolidation with a prior transferor, then the cumulative asbestos-related liabilities are limited to the fair market value of the total assets of the prior transferor, determined as of the time of such earlier merger or consolidation.[15]

III. Damages

Non-economic damages for cases involving a claimed bodily injury will now be limited to $400,000.00, except in exceptional circumstances.[16] This limit on non-economic damages does not apply to cases for wrongful death.[17] There will be no limit to economic damages in wrongful death cases.

The new law also modifies joint and several liability rules. As of November 1, 2009, if a joint tortfeasor acted with willful and wanton conduct or with reckless disregard of the consequences of the conduct and such conduct proximately caused the injury, an injured party may recover all damages from any such tortfeasor.[18]