THE LEGISLATURE FAILED TO PASS NEEDED LEGAL REFORM
Republican leadership introduced a strong, desperately-needed legal reform agenda for Missouri’s 2018 legislative session, but when it came time to deliver, legislators failed miserably. Trial lawyers were able to infiltrate the legisla- ture and affectively stymy the efforts.
Among the reforms considered were venue reform, amendments to the Missouri Merchandising Practices Act (MMPA), legislation to allow evidence of seatbelt non-use, punitive damages reform, and an asbestos trust transparency bill.
First introduced eight years ago, venue reform legislation is arguably the reform that is most desperately needed to address lawsuit abuse in St. Louis. As discussed earler, plaintiffs are flocking to St. Louis from all over the country because of the lax venue rules and the potential for large awards. S.B. 546/H.B. 1578 would have restricted the ability of plaintiffs’ lawyers to combine the claims of out-of-state clients with those of Missouri residents. The bill was in line with the U.S. Supreme Court’s monumental 2017 Bristol Myers Squibb decision, which unfortunately, St. Louis judges have been slow to apply.
MISSOURI MERCHANDISING PRACTICES ACT REFORM
Another proposal that the Missouri legislature has considered over multiple sessions and failed once again is legislation to amend the state’s lawsuit-generating consumer law, the MMPA, discussed above.
The 2018 legislation, S.B. 832, would have reduced the opportunity for “no-injury” lawsuits and attorney-generated litigation. Claims that a business practice is misleading would be evaulated from the perspective of a “reasonable consumer” and there would be no award of damages unless consumers have actually lost money. The bill also would have required any fees awarded to lawyers who bring these class actions to have a reasonable relationship to the amount of the judgment—making more likely that these lawsuits provide a benefit to consumers, not just the lawyers who file them.
EVIDENCE OF SEATBELT NONUSE
Everyone knows that wearing a seatbelt significantly reduces the chance of being seriously injured or killed in a car accident. For that reason, the law requires wearing seatbelts. In Missouri, however, an outdated law allows courts to reduce the damages of a person who did not wear a seatbelt—but only by 1%.
Legislation introduced in 2018, S.B. 822, would have allowed a jury to consider evidence of a plaintiff ‘s failure to wear a seatbelt when deciding who is at fault for injuries resulting from auto accidents. The bill appropriately would have allowed a jury to place some of the responsibility on the plaintiff for actively choosing not to wear his or her seatbelt. Even after the bill was significantly narrowed to apply only in product liability actions, it did not receive a floor vote.
PUNITIVE DAMAGES REFORM
The legislature had the opportunity to restore punitive damages to their intentional tort roots to provide clear notice of conduct that may result in punishment, like a speed limit sign on the highway. H.B. 2119 provided that punitive damages should be available based only on 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. As with the other bills, it did not receive a floor vote in the Senate.
ASBESTOS TRUST TRANSPARENCY REFORM
The legislature also failed to enact asbestos trust transparency reform. This legislation would have prevented plaintiffs’ lawyers from alleging that insolvent companies are responsible for their clients’ exposure to asbestos in order to obtain compensation from trusts set up by those companies, then hide this information when suing solvent companies in court.
St. Louis had the 6th most asbestos lawsuit filings of any jurisdiction in the country in 2017, according to evaluated firm KCIC. St. Louis held this rank despite a 40% decrease in filings. This drop occurred primarily due to weak cases alleging asbestos caused lung cancer flowing to neighboring Judicial Hellhole, St. Clair County, Illinois. This shift likely is a positive result of Missouri’s adoption of a stronger standard for expert testimony in 2017.
GOVERNOR GREITENS’ SCANDAL
While the legislature bears much of the blame for the lack of progress in 2018, the disgraced governor and the multitude of scandals surrounding his office certainly did not help. After being indicted on felony charges of invasion of privacy and accused by prosecutors of misusing his charity’s donor list for political purposes, Governor Eric Greitens (R) resigned on May 29, 2018. Prior to his resignation, the legislature launched a bipartisan investigation that produced an extremely disturbing report detailing a coercive extramarital affair and threats of blackmail. Governor Greitens was replaced by his Lieutenant Governor, Michael Parson, who by all accounts is open to addressing legal reform in the future.
ONE PIECE OF GOOD NEWS
In the midst of all of the chaos surrounding the Missouri capitol, the legislature enacted one significant piece of reform legislation. H.B. 1531 builds on earlier reforms that increase transparency and protects the public purse when the state hires private attorneys on a contingency fee basis.
State hiring of private contingency fee lawyers has too often led to pay-to-play corruption of the civil justice system. In 2011, Missouri adopted a law to reduce such abuse by providing an open process for the state to hire outside counsel. This process includes explaining the need for hiring private attorneys, soliciting written proposals from firms interested in doing the work, and posting the resulting contract and payments on a public website. The law requires government lawyers who serve the public, not private lawyers motivated by profit, to control the course of the litigation and approve any settlement.
The new law strengthens this system. Like many other states that have adopted similar reforms, H.B. 1531 protects taxpayers by ensuring that a few private lawyers do not siphon an excessive portion of the state’s recovery. The new law provides a sliding scale for attorneys’ fees that is based on the amount recovered and does not allow a fee above $10 million. It also protects due process by providing that lawyers may not receive a percentage of the civil penalties or fines imposed—reducing the incentive to inflict the greatest punishment for the highest profit.