Judges will have a major say over whether to allow a lawsuit to include punitive damages, but they must follow the guidelines laid down by new legislation, according to one industry representative.
Business leaders have welcomed the passage of SB 591, which bars plaintiffs from including a punitive damages claim in an initial filing and sets a higher standard of evidence before they can be sought.
Concern has been expressed over how judges will interpret the legislation, with one commentator stating that Missourians should expect judges to fulfill their new role as "gatekeeper" against unsound punitive damage claims.
The standard laid down by the bill, not yet signed by Gov. Mike Parson, is that the plaintiff must show “clear and convincing evidence that the defendant intentionally harmed the plaintiff without just cause or acted with a deliberate and flagrant disregard for the safety of others.”
Further, the plaintiff will have to add the punitive damage claim after the initial pleading wtih details on how it is backed by evidence.
"We were very supportive of the legislation...believe that the process that is in put in place provides guidance to the courts," said Ray McCarty, president and chief executive of Associated Industries of Missouri. "While it is true that it will depend on the judges' enforcement, in law they must support it."
McCarty believes the legislation was "required, necessary, and appropriate."
The situation today, he said, is that the punitive damage claim is near automatic initially, which then becomes part of negotiations from the very beginning, and can leads to higher settlements.
"The whole thing is ridiculous. It should be reserved for those cases where you are trying to change behavior," McCarty argued.
In an opinion piece for the St. Louis Record, defense lawyer Victor E. Schwartz who co-chairs the Public Policy Group of Shook, Hardy & Bacon, wrote, "Missouri’s trial judges have the important responsibility for ensuring that these reforms have the positive effect intended by policymakers."
He added, "If judges ignore the sound and fair reforms in the new law, and predictability is lost again in Missouri, the result will be unfair punishment inflicted on many businesses and other entities in the state."