Author: Tracy Kersey
Last saved by: shannon
Company: Senate

STATE OF OKLAHOMA

2nd Session of the 50th Legislature (2006)

COMMITTEE SUBSTITUTE
FOR
SENATE BILL 1874	By:	Laster

AS INTRODUCED

An Act relating to civil procedure; creating the Lawsuit Responsibility Act of 2006; providing short title; requiring scheduling of trial within specified time period; providing exceptions; requiring certain conferences; requiring certain signatures on specified requests; authorizing court to require participation in certain programs; defining term; authorizing certain sanctions; establishing procedures for summary judgment; requiring court to prepare certain plan; authorizing certain sanctions; urging Supreme Court to promulgate certain rules; exempting certain persons from personal liability under specified circumstances; providing exception; limiting liability of physicians under specified circumstances; providing exception; defining terms; providing immunity from civil liability for certain claims; providing exceptions; providing pleading requirements; providing for stay of discovery and other proceedings in certain circumstances; amending 28 O.S. 2001, Section 152.1, as last amended by Section 21, Chapter 5, O.S.L. 2004 (28 O.S. Supp. 2005, Section 152.1), which relates to civil actions; prohibiting court from requiring payment of certain fee at specified time; providing for codification; providing for noncodification; and providing an effective date.

BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1.     NEW LAW     A new section of law not to be codified in the Oklahoma Statutes reads as follows:
This act shall be known and may be cited as the “Lawsuit Responsibility Act of 2006”.
SECTION 2.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 2005.3 of Title 12, unless there is created a duplication in numbering, reads as follows:
A.  The court shall schedule a trial on the merits within six (6) months after service of process or entry of appearance by the defendant, whichever occurs first, unless the court determines that the demands of the case and its complexity make such a trial date incompatible with serving the ends of justice, or that the trial cannot reasonably be held within such time frame because of the number or complexity of pending cases.
B.  The court shall monitor the progress of a case through a case management conference or a series of such conferences at which the court shall:
1.  Explore the parties’ receptivity to, and the propriety of, settlement or proceeding with the litigation;
2.  Monitor the progress of the parties with respect to the discovery schedule established pursuant to Section 4 of this act; and
3.  Set, at the earliest practicable time, deadlines for filing motions and a time framework for their disposition.
C.  All requests for extensions of deadlines for completion of discovery or for postponement of any trial shall be signed by both the attorney and the party making the request.
D.  The court shall have the authority to require parties to participate in alternative dispute resolution programs that have been designated for use by the court including, but not limited to, mediation, minitrial, or early neutral evaluation.  For purposes of this section, an “early neutral evaluation” is a program for the presentation of the legal and factual basis of a case to a neutral person selected by the court at a nonbinding conference conducted early in the litigation.  The court shall also have the authority to sanction any party or attorney for failing to obey the court’s order to participate in good faith in alternative dispute resolution. 
SECTION 3.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 682.1 of Title 12, unless there is created a duplication in numbering, reads as follows:
A.  1.  A party may move for summary judgment on any cause of action or summary disposition on any claim or defense or, in a civil action for personal injury, on the issue of the liability of one or more defendants, on the ground that the evidentiary material filed with the motion or subsequently filed with leave of court show that there is no substantial controversy as to any material fact.
2.  The motion shall be accompanied by a concise written statement of the material facts as to which the movant contends no genuine issue exists and a statement of argument and authority demonstrating that summary judgment or summary disposition of any issues should be granted.  Reference shall be made in the statement to the pages and paragraphs or lines of the evidentiary materials that are pertinent to the motion.  Unless otherwise ordered by the court, a copy of the material relied on shall be attached to the statement.
3.  The motion may be served at any time after the filing of the action, except that, if the action has been set for trial, the motion shall be served at least twenty (20) days before the trial date unless an applicable scheduling order establishes an earlier deadline.  The motion shall be served on all parties and filed with the court clerk.
B.  Any party opposing summary judgment or summary disposition of issues shall file with the court clerk within twenty-one (21) days after service of the motion a concise written statement of the material facts as to which a genuine issue exists and the reasons for denying the motion; provided, however, that a responsive statement shall not be due from a party earlier than forty-five (45) days after service of the first summons by, or upon, that party.  Unless otherwise ordered by the court, the adverse party shall attach to the statement evidentiary material justifying the opposition to the motion, but may incorporate by reference material attached to the papers of another party.  In the statement, the adverse party or parties shall set forth and number each specific material fact which is claimed to be in controversy and reference shall be made to the pages and paragraphs or lines of the evidentiary materials.  All material facts set forth in the statement of the movant which are supported by acceptable evidentiary material shall be deemed admitted for the purpose of summary judgment or summary disposition unless specifically controverted by the statement of the adverse party which is supported by acceptable evidentiary material.  If the motion for summary judgment or summary disposition is granted, the party or parties opposing the motion cannot on appeal rely on any fact or material that is not referred to or included in the statement in order to show that a substantial controversy exists.
C.  1.  The affidavits that are filed by either party shall be made on personal knowledge, shall show that the affiant is competent to testify as to the matters stated therein, and shall set forth matters that would be admissible in evidence at trial.  The admissibility of other evidentiary material filed by either party shall be governed by the rules of evidence.
2.  If there is a dispute regarding the authenticity of a document or admissibility of any submitted evidentiary material, the court may rule on the admissibility of the challenged material before disposing of the motion for summary judgment or summary disposition.  A party challenging the admissibility of any evidentiary material submitted by another party may raise the issue expressly by written objection or motion to strike such material.  Evidentiary material that does not appear to be convertible to admissible evidence at trial shall be challenged by objection or motion to strike, or the objection shall be deemed waived for the purpose of the decision on the motion for summary judgment or summary disposition.  If a trial of factual issues is required after proceedings on a motion for summary judgment or summary disposition, evidentiary rulings in the context of the summary procedure shall be treated as rulings in limine.
D.  Should it appear from an affidavit of a party opposing the motion that for reasons stated the party cannot present evidentiary material sufficient to support the opposition, the court may deny the motion for summary judgment or summary disposition without prejudice or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.  A motion filed pursuant to this subsection shall not be deemed a consent to the exercise by the court of jurisdiction over the party, or a waiver of the right to file a motion to dismiss the action.
E.  1.  In determining whether a substantial controversy as to the material facts exist, the court shall accept the evidence presented by the non-movant, and all reasonable inferences which may be drawn therefrom, as true and shall disregard all conflicting evidence presented by the movant.
2.  If the court finds that the admissible evidence shows that there is no substantial controversy as to the material facts and that the moving party is entitled to a judgment as a matter of law, the court shall render judgment for the movant.
3.  If the court finds that the admissible evidence shows that there is no substantial controversy as to certain facts or claims and that the moving party is entitled as a matter of law to partial adjudication on such facts or claims, the court may enter an order granting partial adjudication on such claims or specifying the facts which are not in controversy and direct that the action proceed for a determination of the remaining facts or claims.
4.  An order denying either summary judgment or summary disposition is interlocutory and is not reviewable on appeal prior to final judgment.
F.  The serving of a motion for either a summary judgment or summary disposition of issues before a responsive pleading is served where a responsive pleading is permitted does not preclude the opposing party from amending the pleading without leave of court.  If a motion for either a summary judgment or summary disposition is served after the case is at issue, the hearing on the motion and the pretrial conference may, at the discretion of the court, be held at one time.  A court may decide a motion for either a summary judgment or summary disposition without a hearing, and where this is done, the court shall notify the parties of its ruling by mail.
G.  The pleadings or the pretrial conference order may be amended either before or during the hearing on a motion for either summary judgment or summary disposition under this rule, and the court may continue the hearing to a subsequent time.  After a court grants a judgment under this rule, neither the pleadings nor the pretrial conference order may be amended by the addition of allegations in regard to any fact which was known to the party and which could have been presented at the hearing on the motion, and a motion for a rehearing or for a new trial on the ground of newly discovered evidence must comply with the provisions of Section 655 of this title.
H.  Judgments entered on motion for summary judgment or appealable summary disposition are subject to accelerated appellate review pursuant to Rule 1.36 of the Oklahoma Supreme Court Rules.  The record on appeal will be limited to:
1.  The memorialized entry of judgment; in multi-party or multi-claim cases the judgment or dismissal order must either (a) dispose of all claims and all parties, or (b) entirely dispose of at least one claim or one party and contain the express determination that there is no just reason for delay with the express direction by the trial judge that the judgment be filed;
2.  Pleadings proper as defined pursuant to subsection A of Section 2007 of this title;
3.  Applicable instruments on file, including the motion and response with supporting briefs and materials filed by the parties pursuant to subsections A and B of this section;
4.  Any other item on file, which, according to some recitation in the trial court’s written journal entry or in some other order, was considered in its decision;
5.  Any other order dismissing the claim or determining the issues as to some but not all parties or claims;
6.  Any transcripts of the hearing on the motion; and
7.  Any motions, along with supporting and responsive briefs, for new trial (reexamination) of summary judgment or appealable summary disposition process.
I.  If the court denies all or part of a motion for either summary judgment or summary disposition, the court shall grant the party opposing the motion the reasonable attorney fees and costs, pursuant to Section 942 of this title, which are shown to have been incurred in opposing the motion, or in opposing the portion thereof upon which the party prevailed.
SECTION 4.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 3225.1 of Title 12, unless there is created a duplication in numbering, reads as follows:
As soon as is practicable after setting a trial date pursuant to Section 2 of this act, the court shall prepare a discovery schedule and plan consistent with any time limits that the court may set for the completion of discovery.  Such discovery plan shall require cost-effective discovery through good faith exchange of information among litigants and their attorneys and through the use of cooperative discovery devices and shall conserve judicial resources by prohibiting the consideration of discovery motions unless accompanied by a certification that the moving party has made a reasonable and good faith effort to reach agreement with opposing counsel on the matters set forth in the motion.  The court may also implement procedures to identify and limit the volume of discovery available to avoid unnecessary or unduly burdensome or expensive discovery and to phase discovery into two or more phases.  The court may sanction any party not participating in good faith with the discovery schedule and plan; such sanctions may include sanctioning of the offending lawyer or law firm and the granting of default judgment.
SECTION 5.     NEW LAW     A new section of law not to be codified in the Oklahoma Statutes reads as follows:
Advertising related to the professional services of attorneys should be motivated by a desire to educate the public to an awareness of legal needs and to provide information relevant to the selection of appropriate counsel.  Information communicated in such advertising should be disseminated in an objective and understandable fashion and should be relevant to a prospective client’s ability to choose a lawyer, without enticing the public to engage in non-meritorious litigation.  The Oklahoma Legislature urges the Supreme Court to promulgate rules requiring all attorney advertising to uphold the dignity and integrity of the legal profession to the fullest extent allowed under the constitution of this state and the United States.  
SECTION 6.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 1-1708.1F-2 of Title 63, unless there is created a duplication in numbering, reads as follows:
A.  No physician shall be personally liable for any amount over Two Million Dollars ($2,000,000.00) of a judgment in excess of such amount if, in a subsequent proceeding, the court finds:
1.  In the twelve (12) months prior to the act or acts that gave rise to the medical liability action, fifty percent (50%) or more of the physician’s gross income from his or her medical practice came from Medicaid, Medicare, or a combination of both; and
2.  The physician carries a minimum of Two Million Dollars ($2,000,000.00) in malpractice coverage that will apply and be payable on such judgment if the judgment becomes final.
B.  For the provisions of this section to apply, the physician shall plead entitlement to the benefits provided for in subsection A of this section in accordance with the Oklahoma Pleading Code.
C.  The provisions of this section shall not apply in a medical liability action if it is adjudicated in such action that the physician caused the damages by his or her intentional, willful or wanton conduct.
SECTION 7.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 42 of Title 76, unless there is created a duplication in numbering, reads as follows:
In a product liability action alleging that an injury was caused by a defective pharmaceutical product, a physician shall not be liable solely for prescribing the product if, at the time of the prescription, the product was approved by the United States Food and Drug Administration for the specific purpose for which the product was prescribed.  Nothing contained in this section shall limit a physician’s liability for his or her negligent conduct.
SECTION 8.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 41 of Title 76, unless there is created a duplication in numbering, reads as follows:
A.  As used in this section:
1.  “Claim” means any claim by or on behalf of a natural person, as well as any derivative or other claim arising therefrom asserted by or on behalf of any other individual, corporation, company, association, firm, partnership, society, joint-stock company, or any other entity, including any governmental entity or governmental officer, or private attorney;
2.  “Generally known condition allegedly caused by or allegedly likely to result from long-term consumption” means a condition generally known to result or to likely result from the cumulative effect of consumption, and not from a single instance of consumption; and
3.  “Knowing and willful” violation means that:
a.	the conduct constituting the violation was committed with the intent to deceive or injure consumers or with actual knowledge that such conduct was injurious to consumers, and
b.	the conduct constituting the violation was not required by regulations, orders, rules or other pronouncement of, or any statute administered by, a federal, state, or local government agency.
B.  Except as provided in subsection C of this section, a manufacturer, packer, distributor, carrier, holder, seller, marketer or advertiser of a food, as defined in Section 201(f) of the Federal Food, Drug and Cosmetic Act (21 U.S.C. 321(f)), or an association of one or more such entities, shall not be subject to civil liability arising under any law of this state, including all statutes, regulations, rules, common law, public policies, court or administrative decisions or decrees, or other state action having the effect of law, for any claim arising out of weight gain, obesity, a health condition associated with weight gain or obesity, or other generally known condition allegedly caused by or allegedly likely to result from long-term consumption of food.
C.  Subsection B of this section shall not preclude civil liability if the claim of weight gain, obesity, health condition associated with weight gain or obesity, or other generally known condition allegedly caused by or allegedly likely to result from long-term consumption of food is based on:
1.  A material violation of an adulteration or misbranding requirement prescribed by statute or regulation of this state or the United States of America and the claimed injury was proximately caused by such violation; or
2.  Any other material violation of federal or state law applicable to the manufacturing, marketing, distribution, advertising, labeling, or sale of food, provided that such violation is knowing and willful, and the claimed injury was proximately caused by such violation.
D.  In any action exempted under paragraph 1 of subsection C of this section, the complaint initiating such action shall state with particularity the following:  the statute, regulation or other law of this state or of the United States that was allegedly violated; the facts that are alleged to constitute a material violation of such statute or regulation; and the facts alleged to demonstrate that such violation proximately caused actual injury to the plaintiff.  In any action exempted under paragraph 2 of subsection C of this section, in addition to the foregoing pleading requirements, the complaint initiating such action shall state with particularity facts sufficient to support a reasonable inference that the violation was with intent to deceive or injure consumers or with the actual knowledge that such violation was injurious to consumers.
E.  In any action exempted under subsection C of this section, all discovery and other proceedings shall be stayed, upon request of the defendant, during the pendency of the defendant’s initial motion to dismiss, if any, unless the court finds upon the motion of any party that particularized discovery is necessary to preserve evidence or to prevent undue prejudice to that party.  During the pendency of any stay of discovery pursuant to this subsection, unless otherwise ordered by the court, any party to the action with actual notice of the allegations contained in the complaint shall treat all documents, data compilations, including electronically recorded or stored data, and tangible objects that are in the custody or control of such party and that are relevant to the allegations, as if they were the subject of a continuing request for production of documents from an opposing party under Section 3234 of Title 12 of the Oklahoma Statutes.
SECTION 9.     AMENDATORY     28 O.S. 2001, Section 152.1, as last amended by Section 21, Chapter 5, O.S.L. 2004 (28 O.S. Supp. 2005, Section 152.1), is amended to read as follows:
Section 152.1  A.  In civil cases, the court clerk shall collect and deposit in the court fund the following charges in addition to the flat fee:
1.  For posting notices and filing certificates required by statute	$30.00
2.  For the filing of any counterclaim or setoff pursuant to Section 1758 of Title 12 of the Oklahoma Statutes	$20.00
3.  For mailing by any type of mail writs, warrants, orders, process, command, or notice for each person	$10.00
4.  For the actual cost of all postage in each case in excess of 	$10.00
5.  For serving or endeavoring to serve each writ, warrant, order, process, command, or notice for each person in one or more counties.	$50.00
	provided that if more than one person is served at the same address, one flat fee of Fifty Dollars ($50.00) may be charged
6.  For sheriff's fees on court-ordered sales of real or personal property	$75.00
7.  When a jury is requested	$349.00
8.  For issuing each summons for each person	$ 5.00
9.  For services of a court reporter at each trial held in the case	$20.00
10.  For filing a motion for summary judgment or summary disposition of issue(s)	$50.00 
The fees prescribed in paragraphs 5 and 6 of ~~subsection A of~~ this ~~section~~ subsection shall be paid by the court clerk into the Sheriff's Service Fee Account, created pursuant to the provisions of Section 514.1 of Title 19 of the Oklahoma Statutes, of the sheriff in the county where service is made or attempted or where the sheriff's sale occurs.  The court shall not require the fee prescribed in paragraph 7 of this subsection to be paid more than fourteen (14) days prior to trial.  All other fees shall be deposited into the local court fund in the county where collected.
B.  Of the amounts collected pursuant to the provisions of paragraphs 1, 2 and 7 of subsection A of this section, the sum of Ten Dollars ($10.00) shall be deposited to the credit of the Child Abuse Multidisciplinary Account.
SECTION 10.  This act shall become effective November 1, 2006.

50-2-3456	TEK	8/10/2006 3:32:02 PM

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