A bill backed
by the Associated General Contractors (AGC) of Missouri that would raise the standard for expert-witness testimony that is admissible as trial evidence in
Missouri courts passed the state’s General Assembly this week by a 85-68 House vote and has been sent to Gov. Jay Nixon’s desk.
Under the bill, SB 591, Missouri would adopt the same
standards required in federal courts and about 40
other states, known as the Daubert Standard, which ensures
that only evidence proven to be relevant and reliable, and that was provided by qualified
individuals, can be admitted as expert testimony.
“We feel like it is a better way than
Missouri’s current standard for admitting expert witness testimony; it is a lot
more rigorous and … you have the best possible testimony when you are
in a lawsuit,” Brian Bunten, general counsel for the Missouri Chamber, told TI
Daily News. “As a sort of macro view of this, the Americans for Tort Reform
Association puts out a Judicial Hellholes list; they don’t mince their words
there.”
Missouri was No. 4 on the
Judicial Hellholes 2015-2016 list, with Florida, New York Asbestos Litigation
(NYAL) and California rounding out the top four states with the worst judicial
climates.
“They citied explicitly our lack of the
Daubert Standard as a reason why we were so high up on that list of Judicial
Hellholes for business, so that was another huge part of this — let’s get this
testimony in,” Bunten said. “This is not some avant-garde, wild-eyed idea; this
is something that is acceptable and used in the federal court system and a vast
majority of other states, and that is why we supported it.”
The Daubert Standard requires an
expert’s testimony during trial to be based on sufficient facts or data, a
product of reliable principles and methods, and based on the expert’s reliable
application of the principles and methods.
“This thing isn’t law yet, but in the
Daubert Standard, the judge is a gatekeeper for that type of information and rules
on those types of motions,” Bunten said.
Many states have adopted the Daubert
Standard and replaced the Frye Standard, which gives courts some leeway on
admissible testimony.
The federal court system adopted the
Daubert Standard more than 20 years ago.
Bunten said the current standard in
Missouri is not the Fyre Standard, but a hybrid of it.
But not everyone is in favor of the Daubert Standard becoming law in Missouri.
“The trial bar has opposed this and a multitude of other proposals that have
come from the Missouri Chamber this year,” Bunten said. “They were in opposition
to it. They had a group of circuit judges, the Circuit Judges Association in
Missouri, that voiced their opposition to it.”
Nonetheless, Bunten said the chamber
believes it did a good job explaining to the members of the General Assembly how
a more stringent standard for expert-witness testimony benefits Missouri
businesses and plaintiffs.
Now the chamber awaits word from Nixon’s
office.
“We anticipate he will veto it, and we’ll go from there,” Bunten said. “Anything
past that is purely speculation at this point.”
Bunten said he was unsure whether any Democrats voted for the bill, but several
Republicans voted against it, many of whom are private attorneys and members of
the trial bar themselves.
“The governor has the support of the trial bar and labor, and has in his entire
nearly-30-year career,” Bunten said. “So a veto of this bill is not only not surprising,
it is almost expected.”
