Legislature(1995 - 1996)

02/28/1996 01:30 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                   SENATE JUDICIARY COMMITTEE                                  
                       February 28, 1996                                       
                           1:30 p.m.                                           
                                                                               
  MEMBERS PRESENT                                                              
                                                                               
 Senator Robin Taylor, Chairman                                                
 Senator Lyda Green, Vice-Chairman                                             
 Senator Mike Miller                                                           
 Senator Al Adams                                                              
                                                                               
  MEMBERS ABSENT                                                               
                                                                               
 Senator Johnny Ellis                                                          
                                                                               
  COMMITTEE CALENDAR                                                           
                                                                               
 CS FOR HOUSE BILL NO. 158(FIN) am(ct rls pfld)(efd fld)                       
 "An Act relating to civil actions; amending Alaska Rule of Civil              
 Procedure 95."                                                                
                                                                               
 SENATE BILL NO. 289                                                           
 "An Act relating to runaway minors and their families or legal                
 custodians."                                                                  
                                                                               
 SENATE BILL NO. 194                                                           
 "An Act relating to offenses associated with criminal street gangs,           
 and to sentencing for those offenses; and amending Rule 702(a),               
 Alaska Rules of Evidence."                                                    
                                                                               
  PREVIOUS SENATE COMMITTEE ACTION                                             
                                                                               
 HB 158 - See Judiciary minutes dated 5/3/95, 8/21/95,                         
          8/23/95, 8/24/95, 8/25/95, 2/9/96, and 2/19/96.                      
                                                                               
 SB 289 - See Judiciary minutes dated 2/26/96.                                 
                                                                               
 SB 194 -  See Senate Judiciary minutes dated 1/19/96 and 2/23/96.             
                                                                               
  WITNESS REGISTER                                                             
                                                                               
 Anne Carpeneti                                                                
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, Alaska  99811-0300                                                    
  POSITION STATEMENT:  Commented on SB 194                                     
                                                                               
 Dennis Mestes                                                                 
 Alaska Action Trust                                                           
 P.O. Box 102323                                                               
 Anchorage, AK  99510                                                          
  POSITION STATEMENT:  Commented on SCS CSHB 158(JUD)                          
 Jeff Bush                                                                     
 Dept. of Commerce & Economic Development                                      
 P.O. Box 110800                                                               
 Juneau, AK  99811-0800                                                        
  POSITION STATEMENT:  Commented on SCS CSHB 158(JUD)                          
                                                                               
 ACTION NARRATIVE                                                              
                                                                               
 TAPE 96-18, SIDE A                                                            
 Number 001                                                                    
         SB 289 MISC. LAWS RELATING TO RUNAWAY MINORS                         
                                                                              
  CHAIRMAN ROBIN TAYLOR  called the Judiciary Committee meeting to             
 order at 1:35 p.m.  All committee members were present except                 
 Senator Ellis.  The first matter of business was SB 289.                      
                                                                               
 SENATOR TAYLOR informed committee members an amendment (amendment             
 modifies Section 1(4) on page 2, line 2, by removing the words                
 "just cause" and inserting the words "the knowledge or permission             
 of the parent, guardian, or custodian," and changes lines 5 through           
 17 to read:                                                                   
  ; it is an affirmative defense to a prosecution under this                   
 paragraph that, at the time of the alleged offense, the                      
 defendant                                                                     
 (A)  reasonably believed that the child was in danger of                    
 physical injury or in need of temporary shelter; and                          
 (B)  within eight hours after taking the actions                            
 comprising the alleged offense, notified a peace officer,                     
 a law enforcement agency, or the Department of Health and                     
 Social Services of the name of the child and the child's                      
 location.                                                                     
                                                                               
 SENATOR TAYLOR stated the original bill required a 12 hour                    
 notification requirement.  He moved adoption of amendment #1, as              
 modified, changing the eight hour time limit to 12 hours.   There             
 being no objection, the motion carried.                                       
                                                                               
 SENATOR ADAMS noted the committee debated the removal of the "just            
 cause" term on page 1, line 15, at its previous meeting as well as            
 changing the word "suspect" to "believe."  He asked for                       
 clarification of any action taken on those changes.  SENATOR TAYLOR           
 explained the committee removed the terms "without just cause" and            
 "within 12 hours" in a prior amendment.                                       
                                                                               
 ANNE CARPENETI, representing the Department of Law, advised                   
 retaining the phrase "without just cause" on page 1, lines 14 and             
 15, because without it a parent could be acting illegally for                 
 keeping a child home sick for two consecutive days, or for taking             
 the child out of school for a family vacation.                                
                                                                               
 SENATOR TAYLOR stated that if one follows through to Section                  
 1(a)(4)(A), it is considered an affirmative defense if the parent             
 reasonably believed the child's health or welfare was in imminent             
 danger.                                                                       
                                                                               
 MS. CARPENETI explained the word "or" at the end of line 15, page             
 1, makes paragraphs (1) through (4) exclusive of each other.                  
 SENATOR TAYLOR agreed but questioned whether this language is                 
 problematic for truancy officers because the term "just cause" can            
 be used to justify differing beliefs.  MS. CARPENETI felt removal             
 of that term would cause more problems than it would solve.                   
                                                                               
 SENATOR TAYLOR asked Senator Frank his opinion.   SENATOR FRANK               
 replied he was under the impression that truancy laws are not well            
 enforced, but felt the language could be drafted to address truancy           
 problems yet allow parents to remove children from schools for a              
 vacation.                                                                     
                                                                               
 SENATOR MILLER commented he understood Senator Frank's desire to              
 address truancy problems, but expressed concern that a school                 
 district that might consider homeschooled children truant.                    
                                                                               
 SENATOR TAYLOR believed amendment #1, adopted at a previous                   
 meeting, removed the "just cause" term from page 1, lines 14 and              
 15.                                                                           
                                                                               
 SENATOR ADAMS moved reinsertion of the term "without just cause" on           
 page 1, lines 14 and 15.  There being no objection, the motion                
 carried.                                                                      
                                                                               
 SENATOR TAYLOR discussed changing the word "suspect" to "believe"             
 on page 2, line 29 and on page 3, line 3.  MS. CARPENETI noted the            
 Department of Law maintains the better standard to require is                 
 "suspect" because reasonable cause to believe is close to the, if             
 not the same, standard of evidence required to justify an arrest.             
                                                                               
 Number 187                                                                    
                                                                               
 SENATOR TAYLOR moved to delete the word "suspect" on page 2, line             
 29, and page 3, line 3, and to insert the word "believe."  SENATOR            
 ADAMS objected to the motion.                                                 
                                                                               
 SENATOR FRANK questioned whether the court would hold a police                
 officer to the same standard as it would hold a prosecutor.  The              
 intent of the language is to expect the police officer to sincerely           
 believe a problem in the home exists, not that a problem might                
 exist.                                                                        
                                                                               
 SENATOR ADAMS felt the word "suspect" would better address that               
 situation, because if the officer was required to believe a problem           
 exists, he/she would need to find evidence.                                   
                                                                               
 SENATOR TAYLOR stated the suspect standard is existing law, and has           
 created a tremendous amount of parental frustration because police            
 officers tend to believe the child.  He felt the officer should be            
 required to have more than a slight suspicion when deciding whether           
 to return a child to the home.  He expressed concern that in the              
 state's zeal to protect the child, it is destroying the family                
 system.  He discussed problems created for families by manipulative           
 adolescents.                                                                  
                                                                               
 MS. CARPENETI pointed out an officer would need more than a                   
 scintilla of evidence to meet the current reason to suspect                   
 standard; the suspicion must be based on reason.                              
                                                                               
 SENATOR TAYLOR discussed a case in which a 13 year old girl flew to           
 California with her 20 year old boyfriend but the police would not            
 intervene at the Juneau airport because she stated her father had             
 hit her which is considered physical punishment.                              
                                                                               
 SENATOR ADAMS called for the question on the motion, as this issue            
 will be debated on the Senate floor, and then voiced his objection            
 to adoption of the amendment.  The motion carried with Senators               
 Taylor, Green, and Miller voting "yea," and Senator Adams voting              
 "nay."                                                                        
                                                                               
 SENATOR MILLER moved SB 289 as amended out of committee with                  
 individual recommendations.  The motion carried with Senators                 
 Taylor, Green and Miller voting "yea," and Senator Adams voting               
 "nay."                                                                        
                  SB 194 GANG RELATED CRIMES                                 
                                                                               
 SENATOR TAYLOR moved and asked unanimous consent that CSSB 194                
 (2/23/96, Chenoweth) be adopted.  SENATOR ADAMS objected, noting              
 his opposition to the dress code contained in the definition in               
 CSSB 194.  He questioned how a group, such as girl scouts, would be           
 treated under this bill if the group committed a misdemeanor.                 
                                                                               
 Number 294                                                                    
                                                                               
 SENATOR TAYLOR commented the committee has anguished over the                 
 definition of a gang, and asked Ms. Carpeneti to respond to Senator           
 Adams' concerns.  MS. CARPENETI agreed the "or" in between the                
 identifying markers in the definition does provide that any one of            
 those markers can be used, however the word "and" at the end of               
 line 16 requires that the group must have committed two or more               
 specific offenses in the past.  The definition has been tested and            
 upheld by the California courts and is considered to be the best              
 definition found so far.  Additionally, participation in a gang is            
 not a criminal act under CSSB 194; participation in a crime in                
 connection with a gang is.                                                    
                                                                               
 SENATOR TAYLOR commented the girl scouts in Senator Adams' analogy            
 would receive an enhanced penalty under CSSB 194 if they had                  
 committed two or more other offenses while dressed as girl scouts             
 during the past three years.  MS. CARPENETI noted the sentence                
 enhancement under CSSB 194 would apply when they committed the                
 third offense.                                                                
                                                                               
 SENATOR ADAMS removed his objection to the motion to adopt CSSB
 194, therefore the motion carried.  For purposes of clarification,            
 SENATOR TAYLOR moved adoption of Version W (Chenoweth) of CSSB 194.           
 SENATOR ADAMS objected and requested additional time to review                
 Version W.                                                                    
                                                                               
 SHERMAN ERNOUF, legislative aide to Senator Kelly, sponsor of SB
 194, explained the only change to Version W was the addition of               
 (JUD) after CS for SENATE BILL 194, to identify the committee's               
 sponsorship.  Otherwise Version W is identical to Version U which             
 was previously adopted.                                                       
                                                                               
 SENATOR GREEN moved Version W of CSSB 194 out of committee with               
 individual recommendations.  SENATOR ADAMS objected.  The motion              
 carried with Senators Taylor, Green, and Miller voting "yea," and             
 Senator Adams voting "nay."                                                   
                    HB 158 CIVIL LIABILITY                                    
                                                                              
 SENATOR TAYLOR announced many tort reform hearings, including                 
 hearings in Fairbanks, Anchorage, and Sitka, have been held, and              
 several amendments have been considered by the committee.  A                  
 proposed committee substitute has been drafted, which incorporates            
 many suggested changes.                                                       
                                                                               
 SENATOR TAYLOR moved, and asked unanimous consent, that the                   
 proposed committee substitute be adopted for purposes of                      
 discussion.  SENATOR ADAMS objected, and asked if the proposed                
 committee substitute incorporates the amendments submitted by                 
 committee members.  SENATOR TAYLOR replied it does, and noted                 
 Senator Adams' amendment was incorporated as Section 27.                      
                                                                               
 SENATOR ADAMS removed his objection to the motion, therefore SCS              
 CSHB 158(JUD) was adopted.                                                    
                                                                               
 DENNIS MESTES, representing Alaska Action Trust, gave the following           
 sectional analysis of the differences between the SCS CSHB 158(JUD)           
 and the House version.                                                        
                                                                               
 Section 1 of SCS CSHB 158(JUD) does not contain one of the purposes           
 listed in the House version.  That purpose was designed to ensure             
 liable parties equitably share fault in accordance with the amount            
 of damage caused by each party.  The elimination is appropriate               
 since the bill did not provide for equitable sharing of fault; it             
 provided for consideration of people who are out of the                       
 jurisdiction of the court for various reasons.                                
                                                                               
 The time limit in the statute of repose in Section 2 was increased            
 from eight years to 15 years.  Section 2 is broader in scope in               
 that subsection (1) refers to construction and subsection (b)                 
 refers to personal injury, death, or property damage.  Subsection             
 (b)(3) is problematic, however, because it provides for a 15 year             
 statute of repose, unless there is a shorter period of time imposed           
 under another provision of law.  Section 4 imposes a two year time            
 limit for action.   MR. MESTES stated if the committee desires to             
 grant a longer statute of repose for construction, medical care, or           
 anything else, that intent needs to be stated in Section 2 and                
 differentiation needs to be made between what Sections 2 and 4                
 apply to.                                                                     
                                                                               
 Section 3 does not differ from the House version.  Section 4 links            
 with Section 2 but is unclear as previously stated.                           
                                                                               
 SENATOR TAYLOR stated the committee has questioned the Department             
 of Law and others about how those two sections coordinate, as well            
 as the definitional change regarding minors.  The Department of Law           
 has not provided clarification of either.  He agreed the                      
 differentiation of minors and mentally incompetent individuals is             
 a fallacy, however major constitutional research concerning due               
 process would be necessary to correct the definition, and perhaps             
 the legislature wishes to not bound mentally incompetent                      
 individuals by the statute of repose.                                         
                                                                               
 MR. MESTES responded Section 4 eliminates the language, "not                  
 withstanding the disability of minority ..." but the same language            
 is retained in the 15 year statute of repose.  The Attorney                   
 General's Office believed it to be unconstitutional to discriminate           
 against some children versus others.  Alaska Action Trust does not            
 believe this differentiation can be fixed, because children should            
 not be discriminated against since they have no legal rights to               
 contract or manage their own affairs until the age of majority.               
 This legislation victimizes them.                                             
                                                                               
 SENATOR TAYLOR commented the medical community supports that                  
 provision because it does not believe it should have to continue to           
 carry malpractice coverage for 23 years to cover undiscovered birth           
 problems since most problems are discovered within 18 years.  He              
 discussed the story about the teenage child who has been                      
 misdiagnosed until recently, whose family cannot sue under the                
 eight year statute of repose.  MR. MESTES agreed the 15 year limit            
 is better, but repeated his concern that the linkage between                  
 Sections 2 and 4 is unclear.                                                  
                                                                               
 MR. MESTES explained Section 5 of the House version pertained to              
 non-economic damages, and has been removed from the Senate                    
 Judiciary version.  Alaska Action Trust approves of its removal,              
 since juries would have to differentiate how damaged a person was             
 in terms of permanency.  It used a "Mr. Potatohead" concept since             
 a person would have to be completely incapacitated before the                 
 larger cap of $500,000 would apply.  The fixed amounts provided in            
 that section were arbitrary and most likely unconstitutional.                 
 Section 5 of the Senate Judiciary version defines punitive damages,           
 and is identical to Section 6 of the House version.                           
                                                                               
 SENATOR TAYLOR indicated the definition of punitive damages was               
 determined by the Alaska Supreme Court, and probably does not need            
 to be restated.  Including the definition in the bill may lock the            
 Supreme Court into using it when it may prefer a harsher                      
 definition.  MR. MESTES explained it is the definition contained in           
 jury instructions.                                                            
                                                                               
 Regarding the removal of the non-economic section, SENATOR TAYLOR             
 drew the committee's attention to a letter received from the United           
 Fishermen of Alaska (UFA) in response to the committee's request              
 for suggestions to the Cordova Fishermen's Union (CDFU) dilemma.              
 The CDFU believed the non-economic damages cap of $300,000,                   
 contained in the House version, would allow an Exxon Valdez                   
 bailout.  Environmental damages would be considered non-economic              
 because one cannot speculate the monetary value of a damaged                  
 portion of the environment.  If a small community brought an action           
 against a company that spilled oil over the surrounding coastline,            
 the company would only be required to pay $300,000.  When                     
 attempting to separate environmental non-economic damages from pain           
 and suffering as an economic damage, definitional difficulties                
 arise that violate due process of law.  Input was solicited on this           
 problem from all interested parties, however the committee has                
 received no response or suggested solutions which is why that                 
 provision was removed from the bill.                                          
                                                                               
 MR. MESTES explained Section 6 of the Senate Judiciary version                
 defines the cap on punitive damages, which is three times the                 
 amount of compensatory damages or $300,000, whichever is greater.             
 He submitted there are instances in which this limit is completely            
 inappropriate, such as fraudulent schemes used to deceive                     
 consumers.  Because the compensatory damages may be relatively                
 small, but the scheme is nationwide, the company may be making                
 hundreds of millions of dollars in profits.  The Consumer                     
 Protection Division can verify it is one of its major concerns.               
 Alaska Action Trust believes this provision is not appropriate in             
 that it makes no exception for such schemes.                                  
                                                                               
 SENATOR TAYLOR commented the punitive damage award against Exxon              
 was $5 billion.  He felt if support for that provision continues,             
 other committees can choose to keep it in the bill.  MR. MESTES               
 pointed out the last of the Exxon Valdez Phase Four trial has been            
 proposed to be settled.  The $284 million award has been reduced by           
 the courts to $26 million because of payments under the TAPS fund             
 and settlements made by Exxon.  If this provision was in effect,              
 the punitive damage award would have been under $90 million, which            
 is less than Exxon probably pays per year for coffee.  It would               
 provide no disincentive whatsoever.                                           
                                                                               
 TAPE 96-18, SIDE B                                                            
 Number 000                                                                    
                                                                               
 MR. MESTES noted Section 7 of the Senate Judiciary version contains           
 two minor changes: a state or self-insured municipality was removed           
 from the list of entities that do not have to post security when              
 periodic payments are required; and the reference to when periodic            
 payments become due was deleted.                                              
                                                                               
 Section 9 prohibits fault from being allocated to a person who                
 cannot be a party to the suit under the statute of repose.  The               
 House version allowed anyone, anywhere, anytime to be considered as           
 a person at fault in the suit, regardless of factors such as                  
 whether that person was a minor.  The Senate version rectifies and            
 limits who may be considered at fault.  SENATOR TAYLOR clarified              
 this section removes the "empty chair" provision.                             
                                                                               
 The collateral benefits provision of the House version (Sec.10) was           
 eliminated in the Senate Judiciary version.  Alaska Action Trust              
 supports that elimination as there is no double recovery problem              
 because subrogation provisions exist among carriers, and it is                
 confusing and unfair to disclose the plaintiff's insurance benefits           
 and payments to a jury, but not provide similar information about             
 the defendant.  SENATOR TAYLOR felt that provision penalized people           
 conscientious enough to purchase insurance.                                   
                                                                               
 MR. MESTES stated Section 10 of the Senate Judiciary version is               
 very confusing and removes any incentive for the wealthy defendant            
 to settle because it only requires that costs and attorneys' fees             
 be paid, which is required under Rule 82 anyway.  SENATOR TAYLOR              
 remarked the language in Section 10 is from the House version                 
 except for the addition of the sentence on lines 15-17.  He                   
 explained that sentence was included so that in a case with                   
 multiple defendants, all defendants must come forward as a group              
 when making offers of judgment.  This would eliminate the guesswork           
 on the part of the plaintiff in trying to determine whether one               
 offer of judgment is the true portion of liability for that party.            
                                                                               
 Section 10 in the Senate Judiciary version eliminates the provision           
 allowing the jury to consider all parties for allocation of fault,            
 whether each party is capable of being served or is beyond the                
 jurisdiction of the court.  MR. MESTES asserted Alaska Action Trust           
 supports the elimination of that provision as it is unfair and                
 confusing.                                                                    
                                                                               
 SENATOR TAYLOR explained Section 11 of the Senate Judiciary version           
 sets the rate on judgments, including prejudgment interest, at                
 three percent above the interest rate set by the United States                
 Bureau of the Public Debt for five-year treasury notes to better              
 reflect the true market rate, rather than on the 12th Federal                 
 Reserve discount rate.  The floating interest rate will eliminate             
 the need for legislative action every few years to readjust the               
 interest rate.                                                                
                                                                               
 SENATOR TAYLOR discussed Section 12, which provides for mandatory             
 arbitration.  MR. MESTES believed this provision to be marvelous as           
 it will have a major effect upon the legal system and should affect           
 insurance rates.  Alternate dispute resolution is happening across            
 the country and cuts down on litigation costs as well as the number           
 of cases filed and amount of time spent on each case.  SENATOR                
 TAYLOR mentioned that this provision has had universal support from           
 all people testifying on this bill.                                           
                                                                               
 MR. MESTES noted Section 15 of the House version was not included             
 in the Senate Judiciary version, and wisely so because present law            
 disallows interest on punitive damages but does allow prejudgment             
 interest for future damages in order to compensate for the loss of            
 use of the money after awards have been reduced to present value.             
 Therefore, the present system will be left intact.                            
                                                                               
 SENATOR TAYLOR believed no one would ever want to settle a case if            
 no interest had to be paid on the settlement until the case was               
 decided, as he/she could earn a large sum off of investments in the           
 meantime.   MR. MESTES remarked Alaska Action Trust supports the              
 elimination of that section.  He added federal and state                      
 governments charge interest and penalties on money owed during a              
 dispute.                                                                      
                                                                               
 Regarding Section 13 of the Senate Judiciary version, SENATOR GREEN           
 asked if health care providers were intentionally dropped from that           
 section.  SENATOR TAYLOR replied the reference to medical                     
 professionals was removed to broaden the expert witness                       
 qualification provision to apply to all professionals.  He                    
 expressed concern about this requirement because in professions               
 with a limited number of practicing individuals, such as                      
 neurosurgery, conflicts of interest may arise among those                     
 individuals when asked to testify against each other.                         
                                                                               
 Alaska Action Trust supported the change made to Section 15 as it             
 requires independent contractors to carry a minimum of $2,500,000             
 per incident of malpractice insurance before a hospital can claim             
 immunity from liability for that contractor's conduct.  SENATOR               
 TAYLOR noted Harlan Knudson responded to the committee's request              
 for information which was provided to committee members. He felt              
 the amount may need to be revisited as it may be high for some                
 specializations, and low for others.                                          
                                                                               
 MR. MESTES indicated Section 18 contains several repeals, the                 
 affects of which he was unaware.  One repealer allows a physician             
 to refuse to treat a patient who will not agree to participate in             
 mandatory arbitration if a dispute arises.  A second repealer                 
 disbands the Medical Advisory Board, which screens all malpractice            
 cases.                                                                        
                                                                               
 Alaska Action Trust supports Section 27 which activates the                   
 legislation only when insurance rates are reduced by 10 percent.              
 MR. MESTES noted Alaska Action Trust provided a three page document           
 to committee members which outlines court system statistics that do           
 not reveal an avalanche of tort cases being heard by the court                
 system.   In 1995, 43 civil jury trials took place in Alaska.                 
 Alaskans are three times more likely to be indicted for a felony              
 and four times more likely to be divorced than they are to be                 
 involved in a personal injury accident.  SENATOR TAYLOR commented             
 the 43 civil cases include contract suits, appeals on decisions by            
 administrative bodies, and other civil actions.  The personal                 
 injury suits probably account for 25 percent of those trials.                 
                                                                               
 JEFF BUSH, Deputy Commissioner of the Department of Commerce and              
 Economic Development, testified on behalf of the Governor's Office.           
 The Governor has stated that any tort reform legislation that                 
 appears on his desk must contain three essential elements.  First,            
 the bill must effectively lower insurance rates.  He believed the             
 Governor would support Section 27.   Second, the Governor strongly            
 supports efforts to reduce frivolous lawsuits and the workload of             
 the Court System therefore strongly supports mandatory arbitration            
 and mediation efforts.  He suspected the Governor would also                  
 support the provision in the bill relating to reduction of                    
 frivolous lawsuits through enhancement of the offers of judgment.             
 Third, the Governor has stated that any tort reform legislation               
 that passes must be "clean" as far as the Attorney General's Office           
 is concerned, therefore legal and constitutional issues have to be            
 resolved.  He noted that although constitutional issues related to            
 the statute of repose still remain, the Senate Judiciary version is           
 cleaner than existing statute.                                                
                                                                               
 MR. BUSH pointed out three technical errors in the bill: on page 3,           
 line 22, the word "or" should be moved to the end of line 24; on              
 page 5, line 7 the language, "Except as provided in this                      
 subsection," should be deleted; and on page 10, line 19 a comma               
 needs to be inserted after the word "felony."                                 
                                                                               
 MR. BUSH explained the repealers are all in reference to the                  
 medical malpractice arbitration provisions which will no longer be            
 necessary if mandatory arbitration is adopted.                                
                                                                               
 SENATOR TAYLOR believed one of the provisions may still be                    
 necessary if a physician can require a patient to sign a more                 
 binding arbitration agreement before services are provided.  He               
 also questioned why two separate sections are contained in the bill           
 dealing with the statute of limitations, and noted the board                  
 certification requirement for expert witnesses poses problems                 
 because certification procedures do not exist for all professions.            
 There are a limited number of practitioners in certain professions            
 in the state, and the licensure requirement may prevent anyone from           
 testifying.  He stated that section was drafted to be as broad as             
 possible yet address some the of medical community's concerns.                
                                                                               
 SENATOR TAYLOR moved to amend SCS CSHB 158 (JUD) with the technical           
 corrections identified by Mr. Bush.  There being no objection, the            
 motion carried.                                                               
                                                                               
 There being no further discussion on SCS CSHB 158 (JUD), SENATOR              
 MILLER moved the measure out of committee with individual                     
 recommendations.  SENATOR ADAMS objected to the motion.                       
                                                                               
 SENATOR ADAMS objected on the basis that the legislation benefits             
 the wrongdoer, attempts to keep victims out of court, and prevents            
 adequate compensation for injuries from being awarded.  He also               
 discussed drafting problems with the bill, particularly Sections 2            
 and 4, and expressed concern that this bill is unconstitutional               
 because it discriminates among a class of plaintiffs by violating             
 equal protection and due process rights.  He thanked committee                
 members for the hard work it did on this bill.                                
                                                                               
 SENATOR TAYLOR also thanked committee members for the considerable            
 amount of time and effort put into this legislation.  He also                 
 thanked members of the tort reform movement who have worked on the            
 bill.                                                                         
                                                                               
 The motion carried with Senators Taylor, Green and Miller voting              
 "yea," and Senator Adams voting "nay."  Senator Taylor adjourned              
 the meeting at 3:05 p.m.                                                      
                                                                               

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