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     The Civil Justice Reform Act of 2003,¹ aimed at restraining legislatively perceived excesses in tort litigation, did not transform Arkansas tort law beyond recognition. The fundamentals of most tort cases remain the same. However, the law does make significant changes regarding (1) allocation of responsibility among parties and nonparties in personal injury and property damage cases, (2) punitive damages, and (3) medical injury actions. Attorneys handling cases involving any of these areas must familiarize themselves with the new law and its implications. Additionally, venue requirements are altered for many types of claims.

I. Joint and Several Liability Almost Erased
     Probably the single most important feature of the new statute is that in personal injury and property damage cases, traditional joint and several tortfeasor liability is replaced by a new system in which defendants typically are liable for only their own share of responsibility for a plaintiff's harm as determined by the trier of fact.² Moreover, as explained more fully in a forthcoming article,³ in a historic shift from previous law, the trier of fact is now required to "consider the fault of all persons or entities who contributed to the alleged injury . . . regardless of whether the person or entity was, or could have been, named as a party to the suit."⁴
     Under this new provision, the fact finder must divide responsibility for a plaintiff's injuries not only among the plaintiff and the named defendants, but also among persons foreign to the action, if a defendant gives notice at least 120 days before trial briefly setting out the basis for believing the nonparties to be at fault.⁵ These nonparties to whom fault could be assigned might include out-of-state or foreign firms that cannot be sued for lack of personal jurisdiction; persons or entities protected by sovereign, charitable, or intrafamily immunities; employers whose negligence was one cause of injury to an employee suing a third party such as a product manufacturer; persons or entities without assets, "not worth suing"; and persons whose location and perhaps even identity is unknown.⁶ Since under the new law defendants' fault "shall be several only and shall not be joint,"⁷ this "empty chair" provision creates powerful incentives for defendants to dilute their own liability by contending that nonparties are at least partially responsible for the plaintiff's injury.
     Joint and several liability is preserved, however, in two situations. The first is when a person at fault is "acting as an agent or servant" of a party defendant.⁸ Thus a non-negligent employer could still be held vicariously liable for a plaintiff's injury caused by the negligent driving of an employee on company business. The second is where a party defendant was "acting in concert" with a person injuring the plaintiff. "Acting in concert," however, is defined more strictly than at common law, as "entering into a conscious agreement to pursue a common plan or design to commit an intentional tort and actively taking part in that intentional tort."⁹ A defendant engaged in a merely reckless or negligent joint enterprise with a harm-causing actor can no longer be held jointly liable for that harm, and would be severally liable for a portion of it only if the defendant's own act itself was also a proximate cause of the harm.
     If one defendant's several share of liability is not reasonably collectible, the new law provides for at least a partial reallocation of that share to other tortfeasor defendants. In such a case the court will increase the share of a defendant found at least 50% at fault by up to 20%, and the share of a defendant found to be 10-50% at fault by up to 10%.¹⁰ A defendant receives no increase in its fault share allocation if it is 10% or less at fault. Nor does the law provide for any reallocation to defendants of fault assigned to nonparties. Nonparties' fault shares in effect are assigned to plaintiffs.

II. Punitive Damages Restricted
     Responding to concerns about large punitive damage verdicts in Arkansas¹¹ and elsewhere, the General Assembly tightened the standard of proof necessary to support a punitive damage award, limited the amounts awardable, and created a bifurcated proceeding for considering punitive damage claims. Unlike the new law's fault allocation provisions discussed above, which apply only to personal injury and property damage cases, the new law's punitive damage provisions appear to apply to all tort cases.¹² This is significant because most punitive damage awards occur in business tort cases rather than personal injury cases.
     The new law codifies existing precedent¹³ holding that to recover punitive damages plaintiff must show defendant engaged in either of two classes of conduct: "(1) the defendant knew or ought to have known, in light of the surrounding circumstances, that his or her conduct would naturally and probably result in injury or damage and that he or she continued the conduct with malice or in reckless disregard of the consequences from which malice may be inferred," or (2) "the defendant intentionally pursued a course of conduct for the purpose of causing injury or damage."¹⁴ Going beyond mere codification, the law increases the quantum of evidence required to support this showing. It replaces "substantial evidence," the prior standard for purposes of appellate review,¹⁵ with "clear and convincing evidence."¹⁶
     The Civil Justice Reform Act limits the amount of punitive damages in cases in which the defendant's conduct was malicious or reckless (the first class of conduct above), but not in cases in which defendant's conduct was intentional (the second class of conduct). The punitive damage recovery limit for each plaintiff harmed by a defendant's malicious or reckless conduct is the greater of $250,000 or three times the amount of compensatory damages up to $1 million, adjusted triennially for inflation.¹⁷
     Trials involving punitive damage claims must be bifurcated at the request of any party. The first part of the trial focuses solely on liability for compensatory damages. Only if compensatory damages are awarded may the trial proceed to consideration of punitive damages, and only during this second stage can "evidence of the financial condition of the defendant and other evidence relevant only to punitive damages" be admitted.¹⁸

III. New Rules for Medical Injury Actions
     Among the major proponents of the Civil Justice Reform Act were the Arkansas Medical Society and the Arkansas Hospital Association, both concerned about increases in liability insurance premiums. Several provisions of the new law created rules specifically benefitting health care providers in medical injury actions. Among these provisions are requirements that (a) plaintiff file a medical expert's affidavit of reasonable cause at the outset of an action; (b) the action be filed where the allegedly negligent acts occurred, typically in the defendant's home county; and (c) plaintiff's expert witnesses be of the same specialty as the defendant(s). The new law also rules out vicarious liability theories adopted in other states shifting some physician liability to hospitals. It precludes the admissibility of certain surveys and inspections as part of the plaintiff's, but not the defendant's, case. It restricts the operation of the collateral source rule regarding plaintiff's entitlement to damages reflecting full rather than discounted costs of medical services. Finally, it requires periodic rather than lump sum payment of future damages exceeding $100,000.
     Expert Medical Affidavit Requirement: The General Assembly, concerned about allegations of frivolous medical malpractice actions, beefed up existing deterrents against "false and unreasonable pleadings." The new law provides that in medical negligence cases in which expert testimony is required, reasonable cause for the action "shall only be established by the filing of an affidavit that shall be signed by an expert engaged in the same type of medical care as is each medical care provider defendant."¹⁹ The affidavit must state with particularity the basis for the expert's opinion that the applicable standard of care was breached, causing harm. The affidavit must be filed within 30 days after the filing of the complaint, or the action will be dismissed.²⁰
     Venue Limitation: The new law provides that actions for medical injury "shall be filed in the county in which the alleged act or omission occurred."²¹ This will generally be in the defendants' home county. The law does not specify where the action should be filed if a course of treatment takes place in more than one county, as in a case where a patient alleges misdiagnosis by a practitioner in one county, referral to a specialist or hospital in another county, and injury resulting from negligent treatment there and from negligence in the operation of the managed care plan, headquartered in a third county, with which all the individual providers are affiliated.²²
     Expert Witness Limitations: Under the new law, except for cases in which the asserted negligence can be understood as a matter of common knowledge, plaintiffs are required to prove the standard of care and breach of that standard through expert witnesses "of the same specialty as the defendant."²³ This provision is partly a response to concern about "hired gun" plaintiffs' experts testifying in areas in which they do not practice. The provision overturns prior case law allowing a general practitioner, in the trial judge's discretion, to testify about the standard of skill of a specialist if the issue relates to a question within the general practitioner's area of expertise.²⁴ The provision might also be read to prevent a specialist from testifying about the standard of care for a general practitioner defendant. Plaintiff's expert on causation issues, by contrast, does not have to be within the defendant's specialty.²⁵
     Restriction on Vicarious Liability Theories: Many jurisdictions have adopted theories permitting vicarious liability actions against a hospital for negligence committed at the hospital by non-employee physicians with staff privileges to use the hospital's facilities and personnel in treating their patients. These theories limit or reject the hospital's traditional defense that the negligent physician is an independent contractor for whose acts the hospital has no responsibility. The theories are typically based on the contention that the physician is an apparent agent of the hospital, on the hospital's right to control key aspects of the physician's work, or on the premise that the work negligently performed (for example, in the emergency room) is an "inherent function" of the hospital.²⁶ Proponents of these theories argue that they reflect the reality that medical care is team care, and that focusing liability on the organization rather than blaming the individual physician promotes a more coordinated approach to error prevention and higher quality health care overall.
     The Civil Justice Reform Act, in contrast, attempts to restrict vicarious liability of hospitals to situations in which the plaintiff proves the allegedly negligent medical care provider is an employee of the hospital, when "the only reason for naming the facility as a defendant is that the defendant medical care provider practices in the facility."²⁷ This language does not apply to claims against the hospital based on the hospital's own institutional negligence, for example in credentialing or infection control.
     Inspection Report Admissibility: The Civil Justice Reform Act includes a provision limiting admissibility of surveys and inspections by state and federal regulators and by accrediting bodies such as the Joint Commission on Accreditation of Healthcare Organizations. The new law makes such materials admissible only if "relevant to the plaintiff's injury"²⁸ (as opposed, perhaps, to other issues in the case such as the standard of care or the propriety of punitive damages). The provision applies only to surveys and inspections offered by plaintiffs. Defendants' use of such materials is unaffected.
     Collateral Source Rule Restriction: The new law provides that damages for the cost of a plaintiff's medical care are limited to "costs actually paid" and costs "which remain unpaid and for which the plaintiff or any third party shall be legally responsible."²⁹ This provision reverses prior case law holding that the amount by which medical services are discounted constitutes a benefit from a collateral source, similar to an expense covered by an insurance policy, which under the collateral source rule is not taken into account to diminish plaintiff's damages.³⁰
     Periodic Payment of Future Damages: The new law requires the court, at the request of either party, to order that future damages exceeding $100,000 be paid in whole or in part by periodic payments rather than in a lump sum.³¹ This changes the prior statute giving the court discretion in the matter.

IV. Conclusion
     The provisions of the Civil Justice Reform Act outlined above, and a few others discussion of which is precluded by space limitations,³² together constitute a set of significant changes but not a revolution in Arkansas tort law. As proponents of the new law have pointed out, recent tort legislation in some other states has been considerably more radical. The overall impact of the new law will certainly favor defendants and their liability insurers as a class. Instances of injustice likely to arise under the law are not hard to imagine,³³ and one can expect challenges to some of its provisions on separation of powers and other constitutional grounds. While the courts work through these issues, attorneys handling Arkansas tort cases are well advised to give close attention to the new law's language and structure.•

Endnotes
   1. 2003 Ark. Acts 649 (effective March 25, 2003). The new law is codified in Ark.      Code Ann. §§ 16-55-201 to -220, 16-114-206, and 16-114 208 to -212 (Michie      Supp. 2003).
   2. Ark. Code Ann. § 16-55-201. These provisions concerning fault allocation do      not apply to actions not involving personal injury or property damage, for      example, actions based on theories of defamation, privacy violation, trespass,      nuisance, interference with contractual relationships, malicious prosecution,      deceit, conversion, nonmedical professional malpractice, or unfair competition.      See id. § 16-55-201(a).Whether the new provisions on fault allocation apply to      claims of outrage, breach of warranty, false imprisonment, and other theories      bordering on personal injury may depend on the facts of individual cases and      will require judicial interpretation.
   3. Robert B Leflar, The Civil Justice Reform Act and the Empty Chair, 2003 Ark.      L. Notes 67.
   4. Ark. Code Ann. § 16-55-202(a).
   5. Id. § 16-55-202(b).
   6. Defendants settling out before trial could also receive fault allocations, as      allowed under current Arkansas practice. See id. § 16-55 202(b)(1); Henry      Woods & Beth Deere, Comparative Fault § 13:15 at 285 86, § 13:19 at 300-01      (3d ed. 1996).
   7. Ark. Code Ann. § 16-55-201(a).
   8. Id. § 16-55-205(a).
   9. Id. § 16-55-16-55-205(b)(1) (emphasis added).
   10. Id. § 16-55-203. These reallocations apply only to compensatory, not      punitive, damages. Id. § 16-55-203(f).
   11. See, e.g., Advocat, Inc. v. Sauer, ___ Ark. ___, 111 S.W.3d 346 (Ark. 2003)      ($63 million punitive award against corporate owner of Mena nursing home,      reduced by two-thirds by Supreme Court shortly after conclusion of legislative      session).
   12. Unlike other sections of the new law, which contain explicit limitations on      their scope of application, see Ark. Code Ann. § 16-55-201 (virtually abolishing      joint liability in personal injury and property damage cases only) and § 16-55-     213 (restricting venue in specified classes of cases, not limited to personal      injury and property damage cases), the punitive damage sections contain no      such limitations. See §§ 16-55-206 to 211.
   13. See Ark. Model Jury Instructions (Civil) 2218 (4th ed. 1999) (formerly AMI      2217); National By-Products v. Searcy House Moving Co., 292 Ark. 491, 731      S.W.2d 194 (1987).
   14. Ark. Code Ann. § 16-55-206.
   15. See Stein v. Lucas, 308 Ark. 74, 78-79, 823 S.W.2d 832, 834 (1992); Renfro      v. Swift Eckrich, Inc., 53 F.3d 1460, 1465 (8th Cir. 1995).
   16. Ark. Code Ann. § 16-55-207.
   17. Id. § 16-55-208.
   18. Id. § 16-55-211.
   19. Id. § 16-114-209(b)(1). The experts signing the affidavits do not have to be      within the same specialties as the medical care defendants. Compare id. §
     16-114-206(a)(1) & (2).
   20. Id. § 16-114-209(b)(2) & (3).
   21. Id. § 16-55-213(e).
   22. The law provides new venue rules for other types of actions, including tort      actions, and these rules permit claims to be brought where the plaintiff resides,      where an defendant individual resides or where a defendant entity has its      principal place of business, or where "a substantial part of the events or      omissions giving rise to the claim occurs." Id. § 16-55-213(a). However, actions      for medical injury are explicitly excluded from the operation of this provision.
   23. Id. § 16-114-206(a)(1) & (2).
   24. Cathey v. Williams, 290 Ark. 189, 718 S.W.2d 98 (1986).
   25. See Ark. Code Ann. § 16-114-206(a)(3).
   26. See generally Barry R. Furrow et al., Health Law § 7-2 (2d ed. 2000).
   27. Ark. Code Ann. § 16-114-210.
   28. Id. § 16-114-211.
   29. Id. § 16-114-208(a)(1)(B) (emphasis added).
   30. Montgomery Ward & Co. v. Anderson, 334 Ark. 561, 976 S.W.2d 382      (1998).
   31. Ark. Code Ann. § 16-114-208(c)(1).
   32. Among the law's other provisions are changes in venue rules, id. §
     16-55-213, see supra note 22; protection for medical directors of nursing      homes against liability reallocations, § 16-55-204; and tolling of the statute of      limitations under certain conditions in medical injury actions, § 16-114 212.
   33. See, e.g., Leflar, supra note 3.