JEFFERSON CITY – Speaking for the Missouri Association of Trial Lawyers in opposing a bill that would tighten jurisdiction over civil suits, injury attorney Brett Emison argued that cities produce better trials because jurors have time and resources to sit for weeks, whereas jury prospects in rural counties have to get their crops in.
The House Judiciary Committee on Feb. 12 heard arguments over House Bill 231, a proposal that would effectively place restrictions on who can sue and be sued in St. Louis, a court system where fewer than 10 percent of the thousands of mass tort litigants are residents of the state.
Rep. Bruce DeGroot, a Republican from Chesterfield, said, “I’m not sure I follow. Getting crops in is more important than sitting on a jury?”
Emison said, “I’m talking about the number you start with.”
A major proponent of the bill, the Missouri Civil Justice Reform Coalition, argues that plaintiff lawyers are abusing a legal procedure known as “joinder” to get around venue reforms the Missouri legislature passed in 2005. The group claims that plaintiff lawyers prefer to file lawsuits in St. Louis where they can get bigger judgments by friendly juries.
In recent years, St. Louis city circuit court has seen massive talcum powder verdicts against manufacturer Johnson & Johnson, with one of the biggest - $4.69 billion - coming last July.
At Tuesday’s hearing, coalition executive director Richard AuBuchon said there is a “real crisis” in St. Louis city circuit court.
His group says that of 13,252 plaintiffs in mass tort litigation in St. Louis, only 1,035 are from Missouri and only 242 are from St. Louis.
By joining plaintiffs and defendants who may have no connection to the city into the St. Louis court system, the state’s pro-business environment is being ruined, the group maintains.
At the hearing, AuBuchon called joinder “a game” employed by the plaintiffs’ bar.
“I didn’t hear anyone defending out of state joinders,” he said. “It’s a game, one plaintiff to keep away from removal (to federal court)."
Provisions of House Bill 231:
-Would allow joinder of two or more plaintiffs in an action only if each one could have filed an action in that venue independently of any other.
-Would allow a plaintiff in a county with fewer than 75,000 inhabitants to join a pending action in another county with fewer than 75,000 inhabitants.
-Would allow joinder across a county line, if the adjoining county has fewer than 150,000 inhabitants.
-Would allow joinder of defendants only if personal jurisdiction is proper for each one and plaintiff can establish proper venue against each one.
-Would allow any party to sever all claims brought by a misjoined plaintiff and transfer them where venue exists.
-Would require no finding of prejudice to reverse a denial of transfer.
Rep. Glen Kolkmeyer, a Republican from Odessa, sponsors the bill.
At the hearing before about 40 observers, Kolkmeyer said that in 2005, legislators curbed plaintiff attorneys in shopping for sympathetic judges.
But now, he said they abuse joinder to get around the law.
Rep. Mark Ellebracht, a Democrat from Liberty, said a Missouri Supreme Court decision from 2017 solved the problem that the bill purports to prevent.
Rep. Gina Mitten, a Democrat from Richmond Heights, quoted the population limit and asked why joinder is okay for rural counties but not for cities.
Kolkmeyer said that came from other cases and rulings.
Lou Leonotti of Mexico, speaking for Missouri Organization of Defense Lawyers, said that in rural counties, “You might know everybody and I usually do…What we have going on is venue shopping. Lawyers are very good at that.”
He said jury trials are becoming less and less available, and that a partner told him long ago that if you can, take your case to St. Louis.
“Your case will be worth more if you have a good case,” Leonotti said.
Potential recovery is higher in St. Louis, Leonotti said, to which Ellebracht responded, “If you want to be made whole, isn’t that fair?”
Rep. Justin Hill, a Republican from Lake St. Louis, called the statement absurd.
“Isn’t being made whole relative to the whole situation?” Hill said.
Rep. Steven Roberts, a Democrat from St. Louis, asked Leonotti why it’s better to try a case in the city.
Leonotti said the jury pool and the selection are different.
“(In) Audrain (County), I know who they are,” Leonotti said.
Emison stepped forward as the only speaker against the bill.
He said the bill would go farther than the Supreme Court decision.
He said he has a client from Rolla whose daughter died because Texas guardrail maker Trinity Industries changed the design of its guardrails.
“We have eight other clients it happened to, and we joined them into one,” he said. “If this bill passes, they’ll send these cases to the counties where the crashes occurred and we’ll have to start over.”
Rep. Robert Sauls, a Democrat from Independence, asked about consequences.
Emison said there would be multiple treatments.
“You might have one judge that lets evidence in and one that doesn’t,” he said. “You have completely different outcomes.”
Rep. Phil Christofanelli, a Republican from St. Peters, asked whether, under the Supreme Court decision, a defendant could find himself where he never expected.
Emison said a plaintiff could join a defendant where he doesn’t do business.
Christofanelli said, “It sounds like what the Supreme Court tried to protect.”
Representatives of General Motors, Enterprise Leasing, Emerson, Doe Run Company, and Pfizer favor the bill.
So do representatives of Missouri Hospital Association, National Federation of independent Business, Missouri Chamber of Commerce and Industry, and Missouri Railroad Association.
At the hearing, Aubuchon also represented Burlington Northern Santa Fe Railroad, Doctors Company, and Property Casualty Insurers Association of America.