Will certificate of merit hold up to the state constitution?

One of the most hotly debated bills passed during the recently concluded special session dealt with certificate of merit. The law has been struck down by the Oklahoma Supreme Court twice already. Is the third time the charm?
By Graham Lee Brewer gbrewer@opubco.com Published: September 11, 2013
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Gov. Mary Fallin signed into law Tuesday all 23 lawsuit reform bills approved by the Oklahoma Legislature in special session, restoring civil justice changes that had been thrown out by the state Supreme Court.

The most controversial of those bills returns the requirement that a third-party expert approve the merits of certain cases before they can be heard in court.

Legal experts questioned whether this measure would stand up to challenge.

“This bill appears to repeat that discrimination problem, imposing additional barriers to sue only on plaintiffs who would require an expert witness at trial,” said Joseph Thai, a law professor at the University of Oklahoma. “One has to wonder whether a special session of the state Legislature to pass a law that will likely be struck down is worth the cost to taxpayers.”

Fallin called the Legislature into special session at a cost of $30,000 a day, saying it was important for the state's economy and medical professionals to quickly restore laws intended to cut down on frivolous lawsuits. The Legislature's regular session begins in February.

“I am proud to say this Legislature, after a short five-day special session, has undone the damage a handful of activist judges, or some might even call a ‘super legislature of judges,' attempted to do to this state,” said House Speaker T.W. Shannon, R-Lawton.

The requirement for a certificate of merit was a revised version of previous laws that were struck down by the Oklahoma Supreme Court in 2006 and again in June.

In the more recent ruling, the court found that the requirement created a financial barrier between citizens and the court and created a special class by requiring the certificate only for cases involving professional negligence.

The latest version of the law broadens that requirement by placing it on all negligence cases where an expert witness is required.

Andrew Spiropoulos, professor of law at Oklahoma City University, said this creates another constitutional issue.

“What's happening is the court continues to say that it is too narrow, so the Legislature is forced to broaden the category, which of course creates a bigger barrier, which of course the court doesn't like either,” said Spiropoulos, the university's director of the Center for the Study of State Constitutional Law and Government.