Missouri, the home of Mark Twain and Harry S Truman, has in recent years become one of the most deeply red states politically. Yet it has also acquired a reputation as of one of the most plaintiff friendly forums nationally, thanks to its substantive law and to juries in the City of St. Louis (dubbed the Number 1 “Judicial Hellhole” by the defense-oriented American Tort Reform Association for 2017).
Some of that may be about to change following the 2016 election of Republican former Navy Seal Eric Greitens as Governor and heavy Republican majorities in the Missouri House and Senate. Several bills are now pending in the Legislature which could bring about significant changes in Missouri product liability law and practice.
One such measure (HB 153) would impose a more rigorous standard for admission of expert opinion testimony comparable to the Federal Daubert test. The recent multimillion dollar care talc verdicts against Johnson & Johnson and spike in health litigation have been attributed to the current less than stringent expert witness requirements in Missouri. Adopting a Daubert standard could help to ensure that science in the courtroom is not speculative, weak, or lacking reliable testing by experts. Jurors should have sound expert testimony to guide them, and cases should not be decided based upon “junk science.”
Another significant change could come about under SB 5, which would amend Chapter 537 of the Missouri Revised Statutes to require a plaintiff alleging a product defect to offer evidence of a “reasonable, safer alternative design” for the product at the time of manufacture. This requirement, found in the Third Restatement of Torts: Product Liability, would impose a burden of proof to show such an alternative design rather than allowing jurors to evaluate whether a product is or is not defective and unreasonably dangerous without any guidance, as allowed by current Missouri law.
Additionally, SB 5 would exempt products that are regulated by the Federal Trade Commission or any other State of Federal regulatory agency. A plaintiff would thus be precluded from suing in Missouri over a product that met such a safety standard.
A third change could arise from SB 31, which would limit the amount of medical expenses a plaintiff can introduce at trial to the amount actually paid by insurance. Currently Missouri allows a defendant to submit the amounts paid by insurance, while also allowing the plaintiff to submit the total medical expense billings, which can cause jury confusion. Enacting SB 31 would create more certainty about the value of a case by allowing jurors to know only what medical bills were actually paid and not the total amount billed.
Will Missouri continue to be a favored “litigation tourism” destination? Perhaps not if the Legislature enacts and Governor Greitens signs these measures into law. We’ll have to watch and see.