Missouri is poised for success on tort reform legislation. A Republican Governor and Republican controlled House and Senate contribute to a legislature open to passing tort reform priorities. There will also be focused opposition however and the Missouri Association of Trial Attorneys is a formidable opponent in the legislative and political arena.
Venue and Joinder Reform
The City of St. Louis is the venue of chose for those plaintiffs seeking recovery on claims of injury from defective products. These cases are brought by a number of plaintiffs in the same case, most of whom have no connection with the City of St. Louis. No tort actions involving more than one plaintiff should be joined unless venue is proper as to each plaintiff. This issue alone has caused Missouri to be on the American Tort Reform Association’s Judicial Hellhole list several years running.
Residence of Insurance Companies for Venue Purposes in Non-tort Actions - In State ex rel. Auto Owners Insurance Company v. Messina, 333 S.W.3d 662, (Mo. banc 2011), the Missouri Supreme Court ruled that the 2005 amendments to Missouri’s venue statutes did not change the common law venue rules that apply to insurance companies in non-tort actions. Accordingly, in non-tort actions, insurance corporations may be sued in any county where they have an agent or office for the transaction of their usual and customary business.
Missouri has no cap on punitive damages. Anything that can be done to limit the role punitive damages play in litigation will be helpful in Missouri. There are multiple proposals discussed. One reform proposed would bifurcate the trial. Another proposed reform would not allow punitive damages to be requested in the initial petition but require leave of court to amend should facts be discovered that would lead to a claim for punitive damages. Another reform proposed would abrogate the common law cause of action, then reinstate a statutory cause of action for punitive damages along with a cap.
Asbestos Trust Transparency
Plaintiffs with asbestos related tort claims first file against a solvent company for their injury. A judgment in their favor will enable them to obtain a full recovery from the company. Far too often these same asbestos plaintiffs also seek recovery from one or more bankruptcy trust funds created on behalf of many companies who made asbestos products which also might have caused plaintiffs injuries, but which companies cannot be called before a jury because of their bankruptcy which resulted in the insolvent companies establishing a bankruptcy trust to pay future plaintiffs. Due to problems with the way these bankruptcy trusts are managed, the plaintiff can double dip on the alleged asbestos injury by seeking more funds from the trust(s) without disclosing to the trust(s) that he has already been fully compensated for his injury from the solvent defendant. Because this asbestos bankruptcy process is not transparent, the solvent defendant cannot insist on its right to have other responsible companies share in plaintiffs’ recovery as is the law in all other litigation. While this secret process causes harm to the solvent company, it is just as important, if not more important, to end double dipping to protect current and future plaintiffs who can only claim against the bankruptcy trust because their harm was solely caused by insolvent companies. Unnecessary depletion of trusts means future injured plaintiffs will have nowhere to turn for recovery for their injuries.
Missouri Merchandising Practices Act Reforms
The Merchandising Practices Reform Act makes several modifications to the law. As a very brief background, the consumer protection laws were first enforced by the FTC in the early 1900’s, then transferred to the State’s AG’s and then each state began to allow broader tort actions, with Missouri now being one of the most liberal with respect to MMPA actions by private parties.
The MMPA reform does several things; First, it more closely aligns state law to the FTC law, which has a higher standard for plaintiffs to prove damages, specifically they have to show in some fashion real damages. The act also aligns awards more closely with actual damages. The bill moves a class action suit from a strict liability standard to one requiring the plaintiff to show they relied on the “misinformation” to purchase the product, and for each of the recipients of money to show real damage.
The bill also modifies product defect cases. It establishes certain standards for plaintiffs to meet and precludes joinder in product liability suits if the plaintiffs’ claims are based on separate occurrences.
Finally the bill extinguishes venue when the defendant in such venue is dismissed from the case. Missouri is the ONLY state in the nation to allow venue to survive after the defendant is dismissed.
Courts are not enforcing arbitration agreements resulting in increased costs of defense, judgments and the public court fights on sensitive issues that the arbitration agreements are intended to avoid.
Statute of Limitations Reduction
Missouri has a five year statute of limitations for personal injury matters. Our goal is to reduce that time period. The trend in other states is toward a two year statute of limitations period for personal injury. The goal is to implement a two year statute of limitation in Missouri.
Statute of Repose
Currently there is a statute of repose for buildings in Missouri of ten years. For products placed into the stream of commerce, which can last as long as buildings, there is no statute of repose. A repose statute would create a hard and fast date by which claims could not be filed against the manufacturer for the use and or injury beyond the date of repose.
Joint and Several
Missouri currently has a modified joint and several system. Pure several liability for damages attaches for defendants until a defendant is found to be 51% or more liable for the damages. If a defendant is determined to be 51% or more responsible for the damages then that one defendant can be jointly liable for any other defendant’s portion of the total judgment as well.
Litigation Lawsuit Lending
Some lenders provide loans to litigants. In some states the loan transaction is regulated but not in Missouri. Some in the business community would like to end the practice entirely. Others want to regulate. Multiple versions of the bill have been working through the legislature for years.
Seat Belt Litigation
Current law does not make it contributory negligence to not wear a seat belt in a vehicle when the occupant is injured in a car wreck. Current law allows for a 1% reduction of the award for failure to wear a seatbelt. This small reduction is a very poor deterrent for such an important safety device on a vehicle. Missouri seeks reforms over seat belt evidence to promote seat belt use.