Tomorrow (November 1, 2009), a lot of the protections offered to Oklahoma’s injured parties and consumers will disappear. During this past legislative session, several of the laws related to personal injuries and consumer rights changed. I believe many of them are bad changes, and will lessen the access many people have to redressing their injuries.
Here’s a list of the most pervasive ones, and their effect on the legal system, and your ability to address your issues:
Expert Affidavit
Right now, if you’re injured by someone’s "professional negligence," you can sue the doctor, lawyer, or other professional for malpractice. On November 1, anytime you’re wanting to sue for medical or professional negligence, you’ll need to get an affidavit from another professional linking your injuries to the professional negligence. This requirement will hinder a lot of people from seeking compensation for their injuries. There will be some problems finding another professional expert to testify and affirm that the actions of the negligent party caused serious injuries. Certainly clearly negligent cases will meet the threshold, but other cases that depend on additional discovery and testimony won’t.
Cap on Non-Economic Damages
The legislature opted to cap non-economic damages (those damages not related to medical bills, car repairs, or your paycheck) at $400,000.00, unless you can "bust-the-cap" by showing egregious conduct (my words, not the statute’s). This conduct must be so heinous, that would justify making the change.
Jurors evaluating these cases won’t be told about the non-economic damages cap, but rather will answer a series of questions designed to "evaluate" the severity of the plaintiff’s injuries.
Oklahoma’s Lemon Law
I like most of the changes to Oklahoma Lemon Law, minus a few, nit-picky items.
The old law provided some ambiguity about the enforcement and remedies available to consumers who purchased "lemons."
The revised law implements an exclusive time period to sue for the lemon law statute to apply (1 year – the same as before), but outlines many of the remedies available for consumers (see subsection C).
As for some nit-picks about the revision (which is basically the same statute as before):
Before using the statutory provisions, you must notify the manufacturer (or it’s agent/authorized party) in writing of the manufacturing problem. "Well, duh," you say. "The dealer or manufacturer should know about the problem because they’re fixing it." I know, I agree it’s a stupid provision, and an easy way for the auto maker/dealer to relieve itself of liability. Most people won’t know about the provision, and therefore, they can’t claim the applicable violations.
Secondly, you have basically a 1 year after purchase window (although the statute allows an "express warranty" time period) to notify the dealer or manufacturer that your car is a lemon.
Product Liability
Manufacturers of inherently dangerous products will have a complete defense against claims for injuries where the manufacturer can show:
- The product is a common consumer product;
- The product’s utility outweighs the risk created by its use;
- The risk is known by the consumer and the community;
- The product wasn’t substantially changed when it reached the consumer; and
- The product contained adequate warnings.
Fortunately, the new statute does not apply to claims alleging manufacturing defects or breach of warranty.
Joint and Several Liability
The new statute (23 O.S. § 15) removes the current (and plaintiff-friendly) allowance for a fault-free plaintiff.
Joint tortfeasors (defendants) will remain severally liable for torts, unless one defendant is greater than 50% responsible, or a joint tortfeasor acted willfully and wantonly or with reckless disregard.
See this Wikipedia post about joint and several liability.
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