At the beginning of Gov. Mary Fallin's administration, the Oklahoma Legislature passed a law capping “noneconomic damages” at $350,000 for personal injury cases that did not result in a death. Noneconomic damages compensate a tort victim for things like pain and suffering, loss of companionship, and other “intangible loss.” 

At the time, Professor Andrew Spiropoulos of the Oklahoma City University School of Law wrote that the law would “improve the lives of most Oklahomans by reducing insurance costs, thus producing increased access to medical care, lower prices for products and services, and an improved economic climate.” He also predicted the Oklahoma Supreme Court was likely to invalidate the law.

For almost a decade, it looked like the Oklahoma Supreme Court would prove Spiropoulos wrong. But in 2019, the Court, in Beason v. I. E. Miller Services, Inc., held the 2011 law was “wrought with an irremediable constitutional infirmity.” What flaw could be so obvious? 

The Court turned to one of its favorite tools for invalidating lawsuit reforms, holding that the cap on noneconomic damages was a “special law” prohibited by the Oklahoma Constitution. A special law is a law that singles out a small group—usually a well-connected special interest group—for special treatment. Many state constitutions contain a version of this provision, and their interpretation has sparked much debate. If you want to know more about special laws and how the Oklahoma Supreme Court has used their prohibition to invalidate laws it doesn’t like, you can read more from attorney Ben Lepak here. 

In Beason, the Court’s majority opinion began promisingly by recognizing “the Legislature has a wide latitude to create statutory classifications, but they must be reasonable.” In other words, the prohibition on special laws doesn’t prohibit the Legislature from creating different classes per se, but the class must bear some reasonable relationship to the object of the law. The Court determined “no good reason exists” to treat personal injury cases resulting in death differently from those in which the injured survives.

There are any number of reasons justifying why a Legislature would choose to treat remedies in a non-fatality case differently than a case involving a death. Remember that, for the law to be upheld, the Legislature doesn’t have to be right—it just has to be reasonable. In addition, as both dissenting opinions pointed out—without being answered by the majority—the Oklahoma Constitution, on its face, provides sufficient reason to treat the two kinds of cases differently. As Justice Winchester noted, “the Legislature is constitutionally forbidden to restrict non-economic damages in wrongful death cases.” This facial prohibition alone provides a “good reason” for the Legislature to only cap noneconomic damages in personal injury cases not resulting in death. 

Why would the Court ignore this obvious evidence of legislative reasonableness? Because, as the dissent pointed out, the majority’s real agenda was to impose a “restriction on the Legislature’s general powers when creating, abolishing, and defining a cause of action.” In other words, the Court won’t let the Legislature cap noneconomic damages at all because it believes the Constitution—whether a specific provision as in wrongful death cases, or through the more general special law provision—does not allow the limitation of plaintiffs’ cause of action.

I agree with the policy of capping noneconomic damages in personal injury cases. In my opinion, they’re harder to quantify and they lead to absurd verdicts and jackpot justice. But that’s not the point. The point is that setting policy is not the job of the judicial branch. But, through this prohibition on special laws as well as a handful of other tools, the Oklahoma Supreme Court continues to inject itself into the policymaking process. It needs to stop.