“OKLAHOMA LAWSUIT REFORM ACT “2009”

OKLAHOMA LAWSUIT REFORM ACT 2009Presented By: D. Lynn BabbPIERCE COUCH HENDRICKSON BAYSINGER & GREEN, L.L.P1109 N. FrancisOklahoma City, Oklahoma 73106-6813www.piercecouch.comTel: (405) 235-1611Fax: (405) 235-2904

INTRODUCTIONIn the 2009 legislative session, Oklahomas Legislature passed what has uniformly been identified as the most comprehensive lawsuit reform ever attempted in this state. The Act is scheduled to take effect November 1, 2009.

PURPOSE OF PRESENTATIONTo clarify what the Legislature accomplished; What the Legislature did not accomplish; andHow the new law compares with existing law.

Review of Comprehensive Lawsuit Reform Act of 2009

Creates 12 O.S. 19. Applies to actions for professional negligence or malpractice.To comply with this section, a plaintiff must attach to his petition an affidavit attesting:That a qualified expert has reviewed the facts of the plaintiffs claim; That the plaintiff has obtained a written opinion from a qualified expert that, in the experts opinion, a reasonable interpretation of all the facts in the available materials, including medical records, supports a finding of malpractice on the part of the defendant; The claim is meritorious and based on good cause, based on the review and consultation with the qualified expert; andCurrent Oklahoma Law does not require any affidavit or pre-filing expert review.


Written opinion must include:The acts or omissions of the defendant Why such acts or omissions constitute malpracticeWritten opinion is not admissible at trialIf the plaintiff files his petition without the required affidavit and the court does not grant an extension of time, then the court must, upon motion of the defendant, dismiss the action without prejudice to its refiling. Court may grant extensions:Upon motion of the plaintiffFor good cause shownUpon motion of the defendantIf the plaintiff fails to file this affidavit the court must dismiss the action with prejudiceUnless the plaintiff can show good cause


Upon a written request of defendant:A plaintiff must provide, within ten (10) days, a copy of the written report; andAn authorization for the release of medical records for the five (5) years prior to the incident.A plaintiff may request an exemption to the affidavit requirement based on indigency.


Creates 12 O.S. 140.2. Codifies existing Oklahoma case law on forum non conveniens.CriteriaAlternate forum existsAlternate forum provides adequate remedySubstantial hardship in present court Alternate forum can exercise jurisdictionPrivate and public interests support case moving to alternate forumWould stay, transfer or dismiss to prevent duplication or proliferation of litigation.


Creates 12 O.S. 192.The Supreme Court to promulgate rules defining indigency.Determination of indigency made by the Chief Judge of the Judicial District or designee based on the plaintiffs application rules that will be promulgated by Supreme Court.


Creates 12 O.S. 683.Amends when an action may be dismissed without prejudice to a future action by the plaintiff or the court.


Changes plaintiffs ability to dismiss a case under 12 O.S. 684. Prior law plaintiff could dismiss the case at any time prior to the commencement of trial. In the revised section plaintiff can dismiss before pretrial. After the pretrial the action can only be dismissed by agreement of the parties or by the court.If a plaintiff fails to prosecute or comply with the provisions of the law or any order of the court, a defendant may move for dismissal of the action or any claim.

Review of Comprehensive Lawsuit Reform Act of 2009Applies to counterclaims, cross-claims, and third-party claims. May dismiss without court intervention extends to the time any responsive before pleading is served or, if no responsive pleading, then before the introduction of evidence at trial or a hearing.The most significant change:When plaintiff has dismissed an action;Brings another lawsuit with the same claim;Court may order an award of the defendants costs for the previously dismissed action;The court may stay the newly filed proceedings pending payment of costs.


Amends 12 O.S. 727.1. There is no change to postjudgment interest calculation. Amends the calculation of prejudgment interest;Verdicts entered after November 1, 2009;Personal injury;Interest is calculated beginning twenty-four (24) months after commencement of the suit. No prejudgment interest for personal injury cases for the first twenty-four months the case is in progress.Computation of prejudgment interest rate is different:Interest not based on the prime rate plus two percent;Equal to the average U.S. Treasury Bill rate of the preceding calendar year.


Amends12 O.S. 990.4.Amends several procedures regarding appeal bonds. Twenty-five million dollar ($25,000,000) maximum on appeal bonds. If judgment debtor attempts to intentionally dissipate or divert assets court is permitted to enter appropriate orders to prevent from occurring.Can order security in the full amount of judgment without regard to limits.New bond limit for tobacco claims against a signatory or affiliate of the Master Settlement Agreement dated November 23, 1998. New bond is the lesser of the:Amount of the judgment, exclusive of interest and costs;Ten percent (10%) of the net worth of the judgment debtor;Twenty-five million dollars;Whichever is less.For judgments entered after November 1, 2009, no appeal bond will be required for appeals of punitive damages awards.


Amends 12 O.S. 993. Allows for interlocutory appeals of trial court orders.Denying a motion in a class action asserting lack of jurisdiction because an agency of the state has exclusive or primary jurisdiction of the action or a part of the action;Asserting that a party has failed to exhaust administrative remedies;Only if the class is subsequently certified and only as part of the appeal of the order certifying the class action.


Creates 12 O.S. 994.1. Providing a calculation method and authorizes recovery for the Oklahoma Health Care Authority and for Medicaid regarding payments made by third-party payors:Recovery against the party that received payment;Recovery against the third-party payor;Medicaid payments that are less than the judgment or settlement amount;If the Oklahoma Health Care Authority insures procurement costs because of opposition to its recovery;It also includes a Medicaid recovery worksheet, which provides a formula to decide how much a judgment or settlement amount will be in each of the situations.


Amends 12 O.S. 2004.In addition to several grammatical changes, this section provides that failure to have proper service of process within 180 days of filing court will deem the action to have been dismissed without prejudice as to the defendant not yet served, unless the plaintiff can show good cause as to why service was not obtained.


Amends 12 O.S. 2008. Prior law a plaintiff seeking more than $10,000 of damages would simply state they demanded relief in excess of $10,000 without stating an exact amount. Plaintiffs demanding relief in excess of $75,000 shall state they demand relief in excess of $75,000 without stating an exact amount of money. For demands equal to or less than $75,000 plaintiff must specifically state the amount of damages sought.Simplifies the removal process, since the plaintiff will have to allege the amount in controversy requirement in state court pleadings.

Punitive Damages, Frivolous Lawsuits & Class Actions

Amends 12 O.S. 2009. Requires pleadings to specify whether punitive damages, if sought, exceed $75,000.Allows a defendant to file a Motion to Clarify Damages prior to pretrial. Purpose of this motion is to require the plaintiff to show:Preponderance of the evidence;Amount of damages, if awarded, will not exceed $75,000 or more;If the court determines that the damages are the amount required for diversity, then the plaintiff must amend his or her pleadings to reflect that finding.


Amends 12 O.S. 2011.1. New definition of frivolous.Revises the definition of frivolous in the context of a Motion to Dismiss an action or an Motion for Summary Judgment or subsequent to adjudication on the merits.Frivolous means the claim or defense was knowingly asserted in bad faith, or without any rational argument based on law or facts to support the position of the litigant or to change existing law.The section DELETES from the definition that the claim or defense was unsupported by any credible evidence, was not grounded in fact, or was unwarranted by existing law or good faith argument for the extension, modification, or reversal of existing law or the establishment of new law.


Amends 12 O.S. 2023. Requires that trial court orders certifying classes after November 1, 2009 shall define:Class and the class claims;Issues and defenses. Class notices must clearly and concisely state in plain, language:The nature of the case;The definition of the class;How the class member can have separate counsel enter an appearance;How a class member can request to be excluded; Settlement or judgment will include all member of the class, unless they have requested exclusion.

Punitive Damages, Frivolous Lawsuits & Class ActionsFor actions filed after November 1, 2009, class membership in Oklahoma will be limited to people and entities that are residents of Oklahoma.If the action is based on property, then nonresidents can be class members; orIf a significant portion of the nonresidents cause of action arises in Oklahoma, then nonresidents can be class members.There is a new subsection which codifies existing Oklahoma law regarding settlements, voluntary dismissals, and compromises. There is also a codification of existing Oklahoma law regarding the awards of class counsel fees and the award of prevailing party attorney fees and costs.

Expert Witness, Discovery, Indigency of Plaintiff, Joint & Several Liability

Adds to 12 O.S. 2056. Provides for summary judgment practice for both plaintiffs and defendants. Motion for Summary Judgment may be filed at any time after twenty (20) days have passed from commencement of the action or the opposing party serves a Motion for Summary Judgment.A party against whom relief is sought may move at any time for a Motion for Summary Judgment.Motion for Summary Judgment must be served at least (10) days before the day set for the hearing.If Summary Judgment is not rendered on the whole action, the court should determine what material facts are not at issue.A supporting affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affidavit is competent. Also, must be attached if referenced in the Motion for Summary Judgment.


Amends 12 O.S. 2702.Regarding expert witness testimony. Expert Testimony must be:Based upon sufficient facts or data;Product of reliable principles;Principles and methods have been reliably applied to the facts of the case;Codification of generally existing practice and case law.


Adds to 12 O.S. 2703. No part of 2703 is repealed. Adds a probative-value-vs.-prejudicial-effect clause regarding expert opinion testimony based on facts or data which are inadmissible. States: Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the experts opinion substantially outweighs their prejudicial effect.


Adds to 12 O.S. 3226.General provisions governing discovery. Revision does not delete anything from the present 3226, although it renumbers some provisions. The revision adds a new provision entitled Initial Disclosures. Mandates, with exceptions cited below:A party must provide to other parties a computation of any category of damages claimed by the disclosing party;Make available all non-privileged or protected material on which the computation was based. Eight (8) exceptions for the initial disclosure provision. An action for review on an administrative record; An action to enforce or quash an administrative summons or subpoena; A proceeding ancillary to proceedings in other courts; An action to enforce an arbitration award. The other exceptions involve either an action by the United States or criminal convictions/inmate actions.

Expert Witness, Discovery, Indigency of Plaintiff, Joint & Several LiabilityTime for Disclosures provision. Mandates that these disclosures shall be made:At or within sixty (60) days of service;Unless a different time is set by stipulation or court order or unless the party objects that disclosures are not appropriate.Disclosures to be based on information then reasonably available whether or not the party has completed its investigation of the action.


Adds to Oklahoma Uniform Commercial Code 12A O.S. 1-304, regarding obligation of good faith in contracts. Breach of the obligation of good faith imposed by OUCC shall not give rise to a separate tort cause of action.


Creates 20 O.S. 56. Mandates that the Oklahoma Supreme Court, before December 1, 2009, establish qualification for determining indigency of a plaintiff claiming an exemption from providing an affidavit of merit in a civil action for professional negligence.


23 O.S. 15 revises joint and several liability. Combines what is presently Section B and C into one section B. Substantive change to the new section B,;When a joint tortfeasor acted with willful and wanton conductthe liability for damages shall be joint and several as to any such tortfeasor. Section D does not apply to:Actions brought by or on behalf of the state;Actions brought by the state or a political subdivision of the state; orActions in which no comparative negligence is found to be attributable to the plaintiff.

Expert Witness, Discovery, Indigency of Plaintiff, Joint & Several LiabilityProvides that in any civil action based on fault and not arising out of a contract, the liability for damages caused by two or more persons shall be several only;Exception - if a defendants responsibility is determined to be greater than 50%, they shall be jointly and severally liable.Exception - if the tortfeasor acted willfully, wantonly, or with reckless disregard, they will be jointly and severally liable.This section will not apply to actions brought on behalf of the state.Applies to all civil actions based on fault and not arising out of contract that accrue on or after November 1, 2009.


Creates 23 O.S. 61.2. In a civil action for bodily injury, the award for economic loss shall have no limitations.An award for non-economic loss for:Bodily injury claim;Shall not exceed $400,000;Regardless of the number of parties against whom the action is brought; or The number of actions brought. Exceptions to the $400,000 limit: No limitation on the amount of non-economic damages;A bodily injury claim resulting from professional negligence;

Expert Witness, Discovery, Indigency of Plaintiff, Joint & Several LiabilityExceptions to the $400,000 limit continued Against a physician if the judge and jury finds by clear and convincing evidence that:The injured person has suffered permanent and substantial physical abnormality or disfigurement, loss of use of a limb, or loss of, or substantial impairment to, a major body organ; orThe injured person has suffered permanent physical functional injury which prevents them from being able to independently care for themselves and perform life sustaining activities; orThe defendants acts or failures to act were:In reckless disregard for the rights of others,Grossly negligent, Fraudulent, orIntentional or with malice.


Exceptions also apply to bodily injury claims not resulting from professional negligence against a physician. However, the trier of fact is required only to find a preponderance of the evidence (as opposed to clear and convincing evidence) when:The injured person has suffered permanent and substantial physical abnormality or disfigurement, loss of use of a limb, or loss of, or substantial impairment to, a major body organ; orThe injured person has suffered permanent physical functional injury which prevents them from being able to independently care for themselves and perform life sustaining activities; orThe defendants acts or failures to act were:In reckless disregard for the rights of others,Grossly negligent, Fraudulent, orIntentional or with malice.

Expert Witness, Discovery, Indigency of Plaintiff, Joint & Several LiabilityIn a bodily injury claim, the trier of fact shall return a general verdict accompanied by answers to interrogatories, which shall specify all of the following:The total compensatory damages recoverable by the plaintiff;That portion of the total compensatory damages representing the plaintiffs economic loss;That portion of the total compensatory damages representing the plaintiffs non-economic loss;Whether the injuries for which the plaintiff has been awarded compensation include damages for;Permanent and substantial physical abnormality or disfigurement, loss of use of limb, or loss of, or substantial impairment to, a major body organ or system, or

Expert Witness, Discovery, Indigency of Plaintiff, Joint & Several LiabilityPermanent physical functional injury that prevents the injured person from being able to independently care for himself or perform life sustaining activities; and If alleged, whether the conduct of the defendant was or amounted to:Reckless disregard for the rights of othersGross negligenceFraud, orIntentional or malicious conduct. Limitation set shall be applied in a jury trial only after the trier of fact has made its factual findings and determinations as to the amount of the plaintiffs damages. The jury shall not be instructed with respect to the limit on non-economic damages, nor shall counsel or witnesses inform the jury or potential jurors of the limitations. This section does not apply to actions brought under The Governmental Tort Claims Act or actions for wrongful death.

Expert Witness, Discovery, Indigency of Plaintiff, Joint & Several LiabilityUpon establishment of a Health Care Indemnity Fund, any damages awarded that exceed the limitation shall be paid by such fund.Applies only to lawsuits claiming bodily injury due to professional negligence of a physician. Provisions do not apply to any action that accrues before the date of the enactment of the Health Care Indemnity Fund. Fund shall include professional liability insurance coverage requirements in an amount of not less than $1,000,000.00 for physicians, and shall maintain availability of $20,000,000.00 annually.

Child Restraints & Affordable Access to Health Care

36 O.S. 2211. Creates the Health Care Indemnity Fund Task Force which shall study a mechanism for creating a health care indemnity fund for purposes of paying a portion of damages awarded or approved by the court in professional negligence cases against physicians. Mandates this Task Force to study certain issues, mandates that there be eight members and who the members should be, how often the Task Force should meet etc.


Provides a mechanism for creating a health care indemnity fund for purposes of paying a portion of damages awarded by the court or settled and approved by the court in professional negligence cases against physicians. It will study:Funding, expenses and investments;Capping the fund at a rate of twenty million dollars ($20,000,000.00);Limiting damages award payments to:Professional negligence cases against physicians where non-economic damage cap has been removed; andThose damages in excess of $400,000.00 per occurrenceThe purchasing of reinsurance; Professional liability insurance coverage requirements;Qualifications for coverage under the fund;Applicant, compliance, payments and rating procedures; andAny other issues necessary for creating a health care fund.


Amends 47 O.S. 11-1112. Changes admissibility of non-use of child passenger restraint systemA violation is admissible as evidence unless the plaintiff is a child under sixteen years of age. Every driver when transporting a child under six (6) years old, shall provide for the protection of the child by properly using a child passenger restraint system.Prior to this amendment, evidence of a seatbelt use was not admissible


Amends 47 O.S. 12-420. Allows evidence of failure to use seat belts unless the plaintiff is a child under sixteen (16) years of age.Prior to this amendment, evidence of a seatbelt use was not admissible


Amends 63 O.S. 1-1709.1. Affordable Access to Health Care Act. In its definition of Peer review information: Present law specifically excludes credentialing or recredentialing data;Adds credentialing data and recredentialing data as a part of the definition;The present law states that peer review information shall be private, confidential and privileged subject to specified exceptions Exceptions are repealed in the new law.

Child Restraints & Affordable Access to Health CareIn a civil action in which a patient or his/her legal representative has alleged the patient suffered injuries as a result of negligence by a health care provider factual statements;Presented during peer reviewUtilized by the health care facilityRegarding the patients health care From individuals who have personal knowledge of the facts and circumstancesAre not subject to discovery. If it is alleged that the health care facility was independently negligent as a result of permitting the health care professional to provide health care services to the patient in the facility, the credentialing and recredentialing data, and the recommendations and actions taken as a result of peer review utilized in the health care facility are still subject to discovery. This information shall not be admissible as evidence however until a judge or jury have first found the health care professional to have been negligent.

Uniform Emergency Volunteer Act

Amends 63 O.S. 683.9.Regarding the existence of a natural or man-made emergency. The amended provision of the statute regards the activation of the Emergency Operations Plan and the powers of the Governor. The amendment does not appear to be substantive and is essentially a grammatical change to the specific wording of the statute.


Amends 63 O.S. 683.13.Regarding emergency management. Adds the sentence, The term emergency management worker shall not include any volunteer health practitioner subject to the provisions of the Uniform Emergency Volunteer Health Practitioners Act.


Creates 63 O.S. 684.15. Defines the following words in reference to the UEVHP Act: Disaster relief organization; Emergency; Emergency declaration; Emergency management assistance compact; Entity; Health facility; Health practitioner; Health services; Host entity; License; Person; Scope of practice; State; Veterinary services; andVolunteer health practitioner.

Uniform Emergency Volunteer ActCreates 63 O.S. 684.16. UEVHP Act applies to registered volunteer health practitioner. Who provide health or veterinary services;In this state;For a host entity while;An emergency declaration is in effect.


Creates 63 O.S. 684.17. Allows the State Dept. of Health to regulate volunteer health practitioners while an emergency declaration is in effect. Takes effect immediately upon the declaration of an emergency and is not subject to the Administrative Procedures Act. A host entity that uses volunteer health practitioners to provide health or veterinary services in Oklahoma shall consult and coordinate with the Dept. of Health and comply with any other laws relating to the management of emergency health, including the Oklahoma Emergency Management Act of 2003 and the Catastrophic Health Emergency Powers Act.


Creates 63 O.S. 684.18. Qualifications of a volunteer health practitioner registration system. That while an emergency declaration is in effect, the Dept. of Health may confirm whether volunteers are registered with a complying registration system. Limits the confirmation to obtaining identities of volunteer health practitioners and whether they are in good standing and licensed. Mandates that a registration system shall notify the person who made such a confirmation request of the identities of the volunteers and whether they are licensed and in good standing. A host entity is not required to use the services of a volunteer health practitioner.


Creates 63 O.S. 684.19. Authorizes a registered volunteer health practitioner to practice in this state to the extent authorized by the UEVHP Act.Volunteer health practitioner is not entitled to the protections of the UEVHP Act.If the practitioner is licensed in more than one state;Any license is suspended, revoked, or subject to an agency order limiting or restricting practice privileges; or Has been voluntarily terminated under threat of sanction.


Creates 63, 684.20.Defines:For purposes of this section:Credentialing - Obtaining, verifying, and assessing the qualifications of a health practitioner to provide treatment, care, or services in or for a health care facility; andPrivileging - authorizing by an appropriate authorityof a health practitioner to provide specific treatment, care, or services at a health facility subject to list of limits enumerated in this subsection.UEVHPADoes not affect credentialing or privileging standards of a health facility; and Allows a health facility to waive or modify those standards when an emergency declaration is in effect.


Creates new 63 O.S. 684.21.UEVHPA does not authorize volunteer health practitioners to perform services outside the scope which a similarly Oklahoma licensed practitioner would be allowed to provide.UEVHPA doesnt authorize volunteer health practitioner to provide services outside the scope of his or her practice, even if a similarly Oklahoma licensed practitioner would be allowed to provide those services.State Department of Health is allowed to modify or restrict the health/veterinary services which volunteer health practitioners are allowed to provide under the UEVHPA. DOA orders can take effect immediately.Without any prior notice or comment; and Are not considered rules within the meaning of the Administrative Procedure Act.Host entity can restrict the health/veterinary services a volunteer health practitioner can provide under the UEVHPA.

Uniform Emergency Volunteer ActVolunteer health practitioner is not engaging in unauthorized practice unless he or she has reason to know of any limitation, modification, or restriction under this section or that a similarly Oklahoma licensed practitioner would not be permitted to provide those services. He or she has reason to know of a limitation, modification, or restriction or that a similarly Oklahoma licensed practitioner would not be permitted to provide a service if:He or she knows the limitation, modification, or restriction exists or that a similarly Oklahoma licensed practitioner would not be permitted to provide the service; orFrom all facts and circumstances he or she knows at the relevant time, a reasonable person would conclude that the limitation, modification, or restriction exists or that a similarly Oklahoma licensed practitioner would not be permitted to provide the service.

Uniform Emergency Volunteer ActIn addition to authority granted under the UEVHPA to regulate health practitioners, a licensing board or other disciplinary authority in this state: May impose administrative sanctions on an Oklahoma licensed practitioner for conduct outside Oklahoma in response to an out-of-state emergency;May impose administrative sanctions on a non-Oklahoma licensed practitioner for conduct in Oklahoma in response to an in-state emergency; andMust report any such sanctions imposed upon a practitioner licensed in another state to the appropriate licensing board or other disciplinary authority in any state in which he or she is known to be licensed.In order for a licensing board or other disciplinary authority to impose administrative sanctions, it must consider:The circumstances in which the conduct occurred;Any exigent circumstances; and The scope of practice, education, training, experience, and specialized skill of the practitioner.

Uniform Emergency Volunteer ActCreates new 63 O.S. 684.22.UEVHPA does not limit a volunteer health practitioners:Rights;Privileges; or Immunities provided under other laws. UEVHPA does not affect the Emergency Management Assistance Compacts (EMAC) requirements for the use of health practitioners.The State Department of Health, pursuant to EMAC, can incorporate volunteer health practitioners who are not officers or employees of Oklahoma, a political subdivision of Oklahoma, or an Oklahoma municipality or other local government, into Oklahoma emergency forces.


Creates new 63 O.S. 684.23.State Board of Health can promulgate rules to implement the UEVHPA. When promulgating such rules the State Board of Health must:Consult with the entity established to coordinate the implementation of EMAC and shall consider that entitys recommendations; andConsult with similarly empowered agencies in other states and consider their rules, in order to promote uniformity in the application of UEVHPA and to make emergency response systems reasonably compatible among the states.


Creates new 63 O.S. 684.24.When construing and applying UEVHPA Oklahoma must give consideration to the need to promote uniformity of the UEVHPA concerning its subject matter across the states that enact UEVHPA.


Amends 76 O.S. 31 as follows:Deletes where the person does not offer that type of service, care, assistance, advice or other benefit for sale to the public. Adds provided, being legally entitled to receive compensation for the service or undertaking performed shall not preclude a person from being considered a volunteer.

Uniform Emergency Volunteer ActDeletes and does not and inserts where such actions are agreed upon in advance by all involved persons to be provided on a volunteer basis. This section shall not be construedThis section applies to all civil actions filed after August 25, 1995.

The Common Sense Consumption Action

Creates new 76 O.S. 34.CSCAs intent is to prevent frivolous lawsuits against various parties (enumerated in the statute) dealing in food products that comply with applicable statutory and regulatory requirements.


Creates new 76 O.S. 35Defines claim and knowing and willful violation for the same.Claim - any claim by or on behalf of:Natural person;Divertive claim or arising there from asserted by:Any other individual;Corporation;Company;Association;Firm;Partnership;Society;Joint Stock Company;Other entity, including governmental entity, officer or private attorney.


Knowing and willful violation Conduct committed with intent to deceive/injure customers or with actual knowledge the conduct was injurious to customers; and Conduct must not have been required by state, federal, or local government agency regulations, orders, rules, or other pronouncements.

The Common Sense Consumption ActionCreates new 76 O.S. 36Following parties are not subject to civil liability for any claim arising out of weight gain, obesity, or health conditions associated there with:Manufacturer;Packer;Distributor;Holder;Seller;Marketer; andAdvertiser.Doesnt preclude liability for the above mentioned where it is based on:(B)(1)(B) (2) Material violation of adulteration or misbranding requirement prescribed by Oklahoma or Federal Government and this proximately caused the claimed injury; or Any other material violation of federal/state law concerning manufacturing/marketing/distributing/advertising/labeling/sale of food, if that violation was knowing and willful, and proximately caused the claimed injury.

The Common Sense Consumption ActionIn any action exempted under (B)(1), the complaint in the action must particularly state: The statute;Regulation;Other law of Oklahoma or the United States that was allegedly violated;The facts alleged which constitute a material violation of that statute or regulation; and The alleged facts demonstrating the violation proximately caused the claimed injury.In any action exempted under (B)(2), in addition to the above pleading requirements, the complaint in the action must particularly state:Sufficient facts to support a reasonable inference that the violation was committed with the intent to deceive or injure consumers or with actual knowledge that the violation was injurious to consumers.In applying the Common Sense Consumption Act above pleading requirements are deemed part of Oklahoma substantive law, and not merely procedural requirements.

The Common Sense Consumption ActionIn any exempted actions all discovery and other proceedings must be stayed during the pendency of a Motion to Dismiss, unless, upon a motion, the court finds that particularized discovery is necessary to:Preserve evidence; or Prevent undue prejudice to the movant.During the pendency of any stay of discovery unless the court orders otherwise, any party to the action with actual notice of the complaints allegations must treat all documents/data compilations (including electronically recorded or stored data)/tangible objects in that partys custody or control and that are relevant to the complaints allegations, as if they were subject to a continuing request for production of documents made by an opposing party under Oklahoma Discovery Code.Common Sense Consumption Act must apply to all covered claims pending on November 1, 2009, and all claims filed thereafter, regardless of when the claim arose.

Livestock Activities Liability Act

Amends 76 O.S. 50.2.Adds to the definition of engages in a livestock activity by adding engaging in any agritourism activity involving livestock or on a location where livestock are displayed or raised.Agritourism activity which includes any activity carried out on a recreational, entertainment or educational purposes to review or enjoy rural activities, including:Farming;Ranching;Historic;Cultural;Harvest-your-own activities; or Natural activities and attractions.

Livestock Activities Liability ActAn activity is an agritourism activity whether or not the participant pays to participate in the activity Adds to the definition of livestock activity. It adds agritourism activities involving the viewing of, handling of, riding of, showing of or otherwise interactive activities with livestock.

Firearms Products Liability

Creates new 76 O.S. 51. Unlawful use of firearms, rather than their lawful manufacture, distribution, or sale, is the proximate cause of any injury arising from their unlawful use.


Creates new 76 O.S. 52.Absolves firearm manufacturers, distributors, or sellers from any liability for injuries suffered due to the use of firearms by another.


Creates 76 O.S. 53.No association of persons licensed under 18 U.S.C. 923, as in effect on 1/1/1999, can be liable to anyone for any injury suffered because of the use of a firearm sold or manufactured by any licensee who is a member of such an association.


Creates 76 O.S. 54.Excludes protections of 76 O.S. 51-53.From actions for deceit, breach of contract, or expressed or implied warranties, or for injuries resulting from firearms failing to operate in a normal or usual manner due to design defects or negligence in manufacturing.76 O.S. 51-53 do not apply to actions arising from unlawful sale or transfer of firearms, or when the transferor knew, or should have known, the recipient would engage in the unlawful sale or transfer of the firearm, or would use or purposefully allow the use of, the firearm in an unlawful, negligent, or improper fashion.Potential of firearm to cause serious injury, damage, or death as a result of its normal function does not constitute a defective condition.A firearm is not defective because it has the potential to cause serious injury, damage, or death when discharged.


Creates 76 O.S. 57.A manufacturer or seller shall not be liable if the product is inherently unsafe and known to be unsafe by the ordinary consumer who consumes the product with the ordinary knowledge common to the community.The claim that a product is inherently unsafe shall be an affirmative defense and shall be pled in accordance with the requirements of the Oklahoma Pleading code.

Products Liability

In Order for the defense to apply, all of the following shall be shown:The product was common consumer product intended for personal consumption;The products utility outweighs the risk created by it use;The risk posed by the product was known by ordinary consumer;Product was properly prepared and reached consumer without substantial change;Adequate warnings of risk were given by manufacturer or seller.Codifies current case law regarding Oklahoma Consumers Expectation Test.

Products Liability

Creates 76 O.S. 58.Statutorily mandates that evidence of subsequent remedial measures taken after any injury or harm allegedly caused by an event is not admissible at trial to prove negligence, culpable conduct, defect in product, defective product design, or a need for warning or instruction.However, evidence of subsequent remedial measures is still admissible for other purposes:Such as proving ownership;Control; Feasibility of precautionary measures, if challenged; orImpeachment.

Asbestos Silica Claims Priorities Act

Creates 76 O.S. 61.Relates to asbestos claims and silica claims.Purpose of the chapter:To provide a remedy to allow judicial supervision;Control over asbestos and silica litigation; andPreserves a claimants legal right where they have been exposed, but are unable to demonstrate impairment.


Creates 62 O.S. 76.Provides definitions for the Asbestos and Silica Claims Priorities Act.


Creates 76 O.S. 63.Qualifications a physician must have to perform pulmonary function testing:Licensed in this state or another state;Board certified in:Pulmonary medicine;Occupational medicine;Oncology; or Pathology at the time of issuing the relevant medical report.


Creates 76 O.S. 64.Provides that a prima facie showing must be made to have a valid asbestos claim:To be placed on a trial roster.Brought to trial; or To conduct discovery. Provides what is required of detailed occupational and exposure history. Provides the standards for any evidence and reports used in presenting the prima facie showing.


Creates 76 O.S. 65.Provides that a prima facie showing must be made to have a valid silica-related claim:To be placed on a trial roster.Brought to trial; or To conduct discovery. Provides what is required of physicians who are issuing medical reports, as well as what the medical report must contain. Provides the standards for any evidence and reports used in presenting the prima facie showing.


Creates 76 O.S. 66.Provides that for an individual to have an asbestos or silica claim:Brought to trial;Placed on a trial docket;Conduct discovery;A prima facie showing of evidence must be made. A case may not be allowed to proceed to trial until 90 days after a report has been served on each defendant. The purpose of the act is to set the procedure for trial settings for all asbestos and or silica-related claims.


Creates 76 O.S. 67.Plaintiff must file with Complaint:Written report;Supporting test results;Establishing prima facie evidence of disease.

Asbestos Silica Claims Priorities ActIf plaintiff fails to provide evidence or evidence is inadequate:Defendant may file Notice of Appearance;Doesnt waive defenses;Plaintiff must within 90 days prima facie evidence.Defendant may challenge adequacy of evidence.Given reasonable time to do so.

Asbestos Silica Claims Priorities ActIf court finds evidence inadequate:Case may not be placed on trial docket;Discovery allowed only on issue of prima facie evidence of impairment.If prima facie evidence is foundDefendant may not challenge, absent:FraudMisrepresentationGood cause


Creates 76 O.S. 68.Provides that the act should not be interpreted.To affect the rights of any party in a bankruptcy proceeding; orTo affect the ability of any person who is able to make a showing that the person satisfies the claim criteria for compensable claims of the Bankruptcy Code.


Creates 76 O.S. 69.An entity which offers health benefits, annuities, or life insurance policies may not use the fact that a person has met the procedural requirements of this act to make a decision that would adversely affect the persons eligibility for or coverage under the policy or contract.


Creates 76 O.S. 70.Limitations period shall not run until the claimant discovers or should have reasonably discovered that he/she is physically impaired from a silica or asbestos-related condition. An asbestos or silica claim arising out of a nonmalignant condition shall be a separate cause of action from a claim arising from a silica or asbestos-related cancer.


Creates 76 O.S. 71.Asbestos and Silica Claims Act should be effective for claims filed on or after November 1, 2009.

Innocent Successor Asbestos Related Liability Fairness Act

Creates 76 O.S. 73.Provides definitions pertaining to words used in the Innocent Successor Asbestos-Related Liability Fairness Act.


Creates 76 O.S. 74.The limitations provided in 76 O.S. 75 shall apply to any innocent successor corporation. The limitations in 76 O.S. 75 shall not apply to:Workers compensation benefits paid to an employee;A claim against a corporation that does not constitute a successor asbestos-related liability; orAny obligations under the National Labor Relations Act.


Creates 76 O.S. 75.Limitations on successor asbestos-related liabilities.Cumulative successor of asbestos liabilities.Of an innocent successor corporation;Limited to the fair market value of the transferor;Determined at the time of consolidation or merger. If the transferor had assumed or incurred successor asbestos-related liabilities in connection with a prior merger or consolidation then the fair market value shall be substituted for the limitation set forth.


Creates 76 O.S. 76.Standards to establish the fair market value of total gross assets. How an innocent successor corporation may establish the fair market value (FMV) of total gross assets for the purpose of the limitations of the Innocent Successor Asbestos related Liability Fairness Act. By reference to the going concern value of the assets or to the purchase price attributable to or paid for the assets in an arms-length transaction; orIn the absence of readily available information from which FMV can determined, by reference to the value of the assts recorded on a balance sheet.

Innocent Successor Asbestos Related Liability Fairness ActTotal gross assets include intangible assets.The applicability, terms, etc, of any liability insurance issued to the transferor whose assets are being valued for this section will not be affected by this Act.Act does not affect the right and obligations of a transferor, successor, or insurer under any insurance contract.To the extent total gross assets include any liability insurance, a settlement of a dispute concerning any such liability insurance coverage entered into by a transferor or successor with the insurers of the transferor before the effective date of this Act shall be determinative of the total coverage of such liability insurance to be included in the calculation of the transferors total gross assets.


Creates 76 O.S. 77.Fair market value of total gross assets at the time of a merger or consolidation increases annually at a rate equal to the sum of:The prime rate as listed in the first edition of The Wall Street Journal for each calendar year, if the prime rate is not published in the edition on the first day of the year, one percent (1%) may be used.The adjustment of fair market value of total gross assets continues until the date the adjusted value is first exceed by the cumulative amount paid by or on behalf of the innocent successor corporation or a predecessor, or by or on behalf of a transferor, after the time of the merger or consolidation for which the fair market value of total gross assts is determined. No adjustment of the fair market value of total gross assets shall be applied to any liability insurance that may be included in the definition of total gross assets.


Creates 76 O.S. 78.The Act should be construed liberally with regard to innocent successors.


Creates 76 O.S. 79. Innocent Successor Asbestos-Related Liability Fairness Act (ISARLFA) applies to:All asbestos claims;Filed against an innocent successor;On or after the effective date of this act;As well as to any pending claims against an innocent successor;Where trial has not commenced as of the effective date of this act; Except that any provisions of these sections which would be unconstitutional if applied retroactively shall be applied prospectively.

School Protection Act

Creates 70 O.S. 6-101.7.An attorney, representative, or other designee of the school district who represented or represents a school district or the administration at a hearing as provided for in 6-101.13, 6-101.26, 6-101.46, or who has been involved with any prehearing actions with respect to a recommendation or termination of employment or nonreemployment of an administrator, teacher, or support employee shall not:Conduct or preside as the hearing officer or judge at a due process hearing or hearings; andAttend, advise at, or in any way influence an executive session of the school district board that is held in conjunction with a due process hearing or hearings if the attorney, representative, or other designee of the school district, conducted or presided over the due process hearing.


Creates 70 O.S. 6-1414.The purpose of the School Protection Act (SPA) is to provide teachers, principals, and other school professionals the tools they need to undertake reasonable actions to:Maintain order;Discipline; andAn appropriate educational environment.


Creates 70 O.S. 6-142Contains the definitions of education employee and school in the SPA.Education employee means any individual who is an employee of a school;School means a public school district, government entity that employs teachers (as defined below), or private kindergarten, elementary, or secondary school.Teacher means any person who is employed to serve as district superintendent, principal, supervisor, counselor, librarian, school nurse, or classroom teacher, or in any other instructional, supervisory, or administrative capacity.


Creates 70 O.S. 6-143.A person eighteen (18) and older who makes a false accusation against an education employee to law enforcement or school district officials will be guilty of a misdemeanor, punished by a fine no more than $2,000.00.Any student between seven (7) and seventeen (17) who does what is described above as being subject to any of the following:Community service for as long as the court thinks.Any other sanction within the courts discretion.Provisions of this section will not apply to statements regarding individuals elected or appointed to an educational entity.This section does not limit the civil or criminal liability of a person who makes false statements alleging criminal activity by another.


Creates 70 O.S. 6-144Permits the court to award costs and attorney fees to prevailing party of a civil action against a school or an education employee;Fees which may be awarded in a civil action against a school includes, expert witness fees.Does not apply in an action between an education employee and a school or other education employee.


Creates 70 O.S. 6-145. The existence of a policy indemnifying a school or an educational employee against liability for damages is not a waiver of any defense otherwise available to the educational entity or its employees in the defense of the claim.


Creates 70 O.S. 6-146.No student enrolled in school can assault, attempt to cause physical injury, or act in a manner which could cause physical injury to an education employee or a person who is volunteering for the school. Any student in grades six (6) through twelve (12)who violate this section will be subject to out of school suspension as provided for in 70 O.S. 24-101.3.


Creates 70 O.S. 6-147.An educational employee who is injured resulting from an assault or battery upon the employee while he/she is in performance of any duties as an education employee shall be entitled to a leave of absence from employment with the school without a loss of leave benefits.


Creates 70 O.S. 6-148. The SPA shall be additional to and will not limit or amend the Governmental Tort Claims Act or any other applicable law.

Suspension of StudentsAmends 70 O.S. 24-101.3 to read as follows:Any student guilty of an act under subsection C of this section may be suspended out of school. Each districts board of education will adopt a policy with procedures which provides for out of school suspension of students. The policy will address:the term of the out of school suspension;Provide an appeals process;Provide that before a student is suspended the school shall consider and apply alternative in-school placement options that are not considered suspension. The policy will address education for students subject to the provisions of subsection D of this section and whether participation in extracurricular activities shall be permitted.

Suspension of StudentsStudents suspended out of school for ten (10) or fewer days shall have the right to appeal. The policy will decide to whom the appeals will be made.Upon full investigation of the matter, the committee or board shall determine the guilt or innocence of the student and the reasonableness of the term of suspension. Policy requires appeals for short term suspensions to a committee, the policy adopted by the board may, but is not required to, provide for appeal of the committees decision to the board.

Suspension of StudentsStudents suspended out of school for more than ten (10) days, and students suspended because they had a firearm on school property or in a school vehicle may request a review of the suspension with the administration of the district. If the administration chooses not to withdraw the suspension, the student shall have the right to appeal the decision of the administration to the district board of education. No out of school suspension will last longer than the current semester and the succeeding semester. Upon full investigation, the board shall determine the guilt of the student and the reasonableness of the punishment. A board of education may conduct a hearing and declare the final decision or may appoint a hearing officer to do it. The decision of the district board or the hearing officer will be final.

Suspension of StudentsActs which may get student suspended:Violation of school regulation:Immorality,Adjudication as a delinquent for an offense that is not violent, and defines that as including those offenses specified in 571 of Title 57 of the Oklahoma statutes. Violent offense includes the offense of assault with a dangerous weapon but shall not include the offense of assault,Possession of an intoxicating beverage, as defined by 163.2 of title 37 of Oklahoma Statutes, or missing or stolen property if the property is reasonably suspected to have been taken, andPossession of a dangerous weapon or a controlled dangerous substance, as defined in the Uniform Controlled Dangerous Substances Act. Possession of a firearm shall result in out of school suspension as provided in 2 of this subsection.

Suspension of StudentsStudents in possession of a firearm while on school property or a vehicle used for transportation of students or teachers shall be suspended out of school for no less than one (1) year, to be determined by the district board of education pursuant to this section. The term may be modified by the district superintendent on a case-by-case basis. Firearm is defined by 18 U.S.C., 921.Any student in grades six (6) through twelve (12) found to have assaulted, attempted to assault, or acted in a manner that could reasonably cause bodily injury to a school employee or volunteer as prohibited by 81 of this act shall be suspended for the remainder of the current semester and the next consecutive semester, to be determined by the board of education pursuant to the provision of this section. The term, again, can be modified by the district superintendent on a case-by-case basis.

Suspension of StudentsAt its discretion a school district may provide an education plan for students suspended out of school for five or fewer days. If a student is suspended out of school for more than five days this is the parent or guardians responsibilities, as well as what the school administration's responsibilities. For the purposes of this section, the core units shall consist of the minimum English, mathematics, science, social studies and art units required by the State for grade competition in grades kindergarten thought eight and for high school graduation in grades nine through twelve. The plan shall set out the procedure for education and shall address academic credit for work satisfactorily completed. A student suspended from an Oklahoma or an out of state public or private school for a violent act or an act showing deliberate or reckless disregard for the health or safety of faculty or other students will not be able to enroll the student, until the suspension terms have expired or have been met.

Suspension of StudentsNo public school in this state is required to provide education services in a regular school setting to any student who was been adjudicated as a delinquent for an offense defined in Section 571 of Title 57 as an exception to a nonviolent offense or convicted as an adult of an offense defined in 571 of title 57 as an exception to a nonviolent offense, who has been removed from a public or private school in Oklahoma or another state by an administrative or judicial process for a violet act or an act showing deliberate or reckless disregard for the health of safety of faculty or other students, or who has been suspended as provided for in 3 of subsection C until the school where the student attends determines the student is no longer a threat to themselves or other. Until that determination is made, the school may provide education services through an alternative school setting. If the school provides education services to the student at a district school facility, the school shall notify any student or school district faculty OR employee victims of such student and will ensure that the student will not be allowed in the general vicinity of the victim or will allow contact with that victim, provided that the victim notifies the school of the victims desire to refrain from contact with the offending student.

Suspension of StudentsStudents suspended out of school who are on an individualized education plan pursuant to the Individuals with Disabilities Education Act, P.L. No. 101-476, or those subject to provisions shall be provided the education and related services in accordance with the students individualized education plan.A student who is suspended for a violent offense which is directed towards a classroom teacher shall not be allowed to return to that teachers classroom without the approval of that teacher.No school board, administration, or teacher may be held civilly liable for any action taken in good faith which is authorized by this section.

Political Subdivision Tort Claims ActAmends 51 O.S. 155.Adds as excluded acts:The use of necessary and reasonable force by a school district employee to control and discipline a student during the time the student is in attendance or in transit to and from the school, or any other function authorized by the school district; or Actions taken in good faith by a school district employee for the out of state suspension of a student pursuant to applicable Oklahoma Statutes.

UNINSURED/UNDERINSURED MOTORIST COVERAGE

Amends 36 O S 3636Changes requirements for declining UM/UIM coverageWhen an insured initially rejects UM/UIM coverage or selects lower limitsInitial decision remains valid for life of the policyCompletion of new form not required when policy is:RenewedReinstatedSubstitutedReplacedAmendedTo same named insuredBy same insurer or any of its affiliates


Any changes to existing policy DO NOT create a new policyRegardless of whether new coverage's are createdNew form does not need to be completedOnce selection to accept, reject or limit UM/UIM coverageBy named insured; orApplicantInsurer is not required to notify any insured of availabilityUM/UIM coverage; orOptional limitsWhen policy isRenewedReinstatedSubstitutedAmendedReplaced


Decision by named insured or applicant concerning UM/UIM coverage is valid for all insuredsContinues in effect Until named insured requestsIn writingUM/UIM coverage be addedTo existing or future policy of insurance

Documents

“OKLAHOMA LAWSUIT REFORM ACT “2009”