Missouri’s New Expert Witness Standards Take Effect

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By Bruce Kaufman

A new business-friendly law took effect in Missouri Aug. 28 that requires expert witnesses to meet a heightened standard of judicial scrutiny before offering courtroom opinions.

The law’s backers cite a state out-of-step with modern expert requirements and one that relied on unsupported scientific evidence as reason for the changes.

But plaintiffs’ attorneys say the now-adopted federal standard puts up another barrier to litigating their clients’ claims in court, and that supporters wrongly cited recent multi-million-dollar verdicts in product liability cases as a justification for the law.

The new guidelines closely follow the test set by the U.S. Supreme Court in Daubert v. Merrell Dow Pharms., which governs expert testimony in federal court proceedings. The Daubert reliability test requires trial judges to ensure that all scientific testimony is the product of a sound methodology before being admitted for trial.

“Missouri was an outlier in not applying the Daubert expert evidence standard in state court,” defense attorney Mark A. Behrens, a partner at Shook, Hardy & Bacon in Washington, told Bloomberg BNA.

Behrens, a leading proponent for “legal reform” efforts in state legislatures, said the new law will “keep Missouri courts from being viewed as a place to file lawsuits that are based on junk science.”

But plaintiff’s attorney Ken Barnes, an opponent, said the new law will “ultimately just serve as an economic barrier” for some plaintiffs.

“The costs associated with Daubert style challenges can be extraordinary resulting in delay and unnecessary taxing of judicial resources,” Barnes, a partner at the Barnes Law Firm in Kansas City.

Missouri has been home to many high-profile product liability awards in recent years. They include a $46.5 million verdict in a PCB toxic tort case against Monsanto Co., a $38 million award in a Depakote drug case against AbbVie Inc., and four verdicts in talc injury cases against Johnson & Johnson that awarded plaintiffs a combined $300 million.

Barnes said supporters of the new law publicly cited some of those verdicts in their efforts, but the push for this change began before those verdicts came down.

“In reality, it remains unclear if the new standard would have impacted those verdicts at all,” he said.

Most States Follow Daubert

Most states follow Daubert, according to a 2016 Bloomberg BNA review. Prominent holdouts include California, New York, New Jersey, Illinois, Maryland, and Washington–all jurisdictions where Democrats are largely in control.

Prior to the change, Missouri was one of a handful of states that adopted a hybrid position for experts. It embraced aspects of Daubert as well as that of a rival test for novel evidence, which asks whether an expert’s testimony is generally accepted in the relevant scientific community.

The leading opponent of the new law, the Missouri Association of Trial Attorneys, argued that the old admissibility standard allowed courts to determine if an expert witness was qualified and let the jury determine if the science was convincing. “The federal standard puts all the decisions in the hands of the judge,” MATA, a plaintiffs’ lawyers group, said.

Barnes, who serves on MATA’s board of governors, said the “tort reform movement seemed almost obsessed with their perception that Missouri should parrot the current federal standard.”

The “rhetoric for this movement suggested some lack of quality in terms of admitted expert testimony under the previous statutory scheme,” Barnes said. “This is purely a solution in search of a problem,” he said.

Behrens, however, welcomed the change.

“Missouri’s adoption of the Daubert standard for expert evidence empowers trial judges to be gatekeepers to ensure the reliability of scientific and technical evidence in Missouri state courts,” Behrens said.

The newly effective measure, H.B. 153, was signed into law March 28 by Governor Eric Greitens (R). The previous governor, Jay Nixon (D), vetoed an earlier version that was also championed by business groups and opposed by consumer organizations and plaintiffs’ lawyers.

To contact the reporter on this story: Bruce Kaufman in Washington at bkaufman@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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