With a Republican now occupying the governor’s office, many Missouri lawmakers hope 2017 will be the year the state sheds its “judicial hellhole” reputation and enacts far-reaching tort reform legislation.
In the wake of Eric Greitens’ gubernatorial win in November, Missouri’s House of Representatives passed legislation last month that would add increased scrutiny to expert witness testimony. House lawmakers also approved a bill that would reveal to jurors the actual cost of medical treatment provided to plaintiffs in certain cases.
Defendants could then deduct that amount from special damages judgments, thereby limiting the size of awards given in personal injury cases.
The two bills—HR 153 by Rep. Kevin Corlew (R-Kansas City) and HR 95 by Rep. Joe Don McGaugh (R-Carrollton)—have both been approved by the Senate Government Reform Committee in recent weeks. Similar bills were vetoed in past years when Jay Nixon, a Democrat, was in the governor’s seat.
St. Louis gained the distinction of being No. 1 on the American Tort Reform Association’s 2016 list of Judicial Hellholes. The plaintiff-friendly St. Louis Circuit Court has been flooded with out-of-state cases involving asbestos claims and class-action lawsuits, according to the association.
The Missouri courts have allowed junk science to sway multimillion-dollar judgments that, among other things, have linked certain uses of talcum powder to ovarian cancer, the association says. Many cases have resulted in multimillion-dollar judgments against companies such as Johnson & Johnson, Monsanto and Abbott Laboratories. Some say this hurts the state's business climate.
Under Corlew’s bills, Missouri would simply adopt the so-called Daubert standard, which is what’s used in 39 states and all the federal courts. That system requires judges to be gatekeepers by ensuring that expert witness testimony is relevant to the issues in the case, is based on solid facts and is backed up by scientific methods, Corlew said.
"Ultimately, the goal is to ensure best practices in the courts and to make sure that jury decisions are based on reliable evidence," Corlew told the St. Louis Record.
Some judges have expressed concerns that the bill would overburden judges by forcing them to be arbiters of scientific knowledge, but Corlew disagreed.
"It has not proven problematic in two-thirds of the states and the federal courts," where it's currently applied, he said.
Judges are not being required to voice agreement with the expert testimony or to choose sides in court, said Corlew, who also expressed optimism that significant tort reforms would be realized in Missouri this year.
"We have a new governor who expressed support for several of the measures we've passed in the past," he said, and these include the expert witnesses bill.
But Jay Benson, president of the Missouri Association of Trial Attorneys, calls the expert witness bill “a solution without a problem.” Those who testified for the bill in the past have failed to identify a single case where a court has allowed so-called “junk science” testimony, Benson said.
“This will create added expense for plaintiffs who don’t have deep pockets,” Benson told the Record.
In turn, it will burden courts in the state with additional work, he said.
If defendants believe that an expert’s testimony about methodology is misleading, that can be brought up during cross-examination, Benson said.
The Missouri Circuit Judges Association is also opposing HB 153.
David Klarich, a lobbyist for the association, said the bill would force judges to become experts on complex scientific subjects. In turn, the court system would bear the brunt of added costs and time requirements, he said.
“Judges say it’s unnecessary and that the courts are working just fine,” Klarich told the Record.
The so-called collateral source bill would add some transparency and balance to the process of establishing damages awards, according to the American Tort Reform Association. Providing juries with the actual cost of a plaintiff’s medical care would allow the defendant to point out that such funds did not come out of the plaintiff’s pocket, supporters of the bill say.
As a result, the plaintiff could deduct such medical payments from special damages judgments under the bill’s provisions.
Benson said the bill’s language would reduce benefits to the aggrieved party and provide a credit to an insurance company or the person at fault for a personal injury.
“Liability insurance companies are being lobbied to take money out of 'Joe Citizen' and put it in the pockets of the insurer,” he said.
The current system holds wrongdoers accountable and provides full compensation to injured people, according to Benson.
The circuit judges have not taken a position on HB 153, but Klarich said the contention by some observers that the current legal system is poisoning Missouri’s business climate is hyperbole.
“There isn’t a business in the United States considering moving to Missouri that will make the decision based on one or both of those issues,” Klarich said, referring to the Daubert standard and the collateral source rule.
Corlew didn't have an exact timeline on when his bill might pass the full Senate but was upbeat about the bill's advance in the legislature. "I hope they bring it up and start the debate before our spring break," he said.