Missouri may follow in the footsteps of Iowa, West Virginia and other states as tort reform-minded lawmakers seek to pass legislation that would curb the practice of "over-naming" defendants in asbestos litigation.
HB 363 would require plaintiffs to provide the court and parties with a signed and sworn statement identifying evidence and its basis for asbestos claims against each defendant, while SB 331 would allow a court to dismiss a plaintiff’s asbestos action without prejudice when a defendant’s products or premises are not identified in required disclosures.
“This is a piece of litigation legislation that is attempting to cut down on some of the abuses that are seen in asbestos litigation where you have multiple parties who have nothing whatsoever to do with the litigation that is part of a package that has been filed in the past where multiple defendants have been listed and those names just get recycled,” said Rich AuBuchon, executive director of the Missouri Civil Justice Reform Coalition.
HB 363 is sponsored by Rep. David Gregory (R-Sunset Hills) and SB 331 was introduced by Sen. Eric Burlison (R-Battlefield).
“A greater majority of cases are being filed in Missouri than they ever have been and that’s mainly St. Louis City Circuit Court, which is seeing the lion's share of asbestos litigation,” AuBuchon told the St. Louis Record. “It has exploded over the last few years.”
It’s not unusual for some 50 or more defendants to be named in asbestos litigation, according to AuBuchon.
“They're very difficult cases with respect to having the ability to ascertain who is a proper defendant when you have so many listed and many of the defendants may have absolutely nothing to do at all with the plaintiff that has been named on the case,” he said.
In July 2018, a group of 22 women was awarded $550 million actual damages and $4.14 billion in punitive damages by a City of St. Louis jury after claiming exposure to asbestos in Johnson & Johnson’s baby powder caused them to develop ovarian cancer, according to the American Tort Reform Association (ATRA)’s annual Judicial Hellholes report.
The type of asbestos litigation the reform measures are intended to address, however, are workplace exposure claims.
“After simply naming a defendant in litigation, it's not so easy as apologizing and removing them,” AuBuchon said. “They spend thousands of dollars on attorneys, time and effort, and months of time to get themselves dismissed from the case. The legislation has targeted this just to make sure that those parties who are named are actual defendants that are the real parties of interest.”
Approving the asbestos litigation reform legislation in Missouri may take some time, according to AuBuchon.
“The legislation that you saw this year in Missouri was its first year,” AuBuchon said. “Missouri takes on average three years for legislation to pass from its initial filing to a successful bill being sent to the governor. It could take longer, of course.”
The trial bar is opposed to the legislation.
“As of today, the bills are nowhere near passage, and the reason being is that, while they've come out of committee, they haven't passed their chambers and been put in a position to be able to be passed in the opposite chamber in two weeks time,” AuBuchon added.