Tort reform measure would alter punitive damage cases to use a two-jury system

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JEFFERSON CITY, Mo. — House Republicans continued their relentless tort reform efforts with a bill in the House Litigation Reform Committee Monday that would affect the way punitive damages are handled in the state.

After hearings on topics as big as the collateral source rule change bill, the adoption of the Daubert witness standards and a bill that would change the state’s discrimination statutes in its Human Rights Act, Rep. Kirk Mathews, R-Pacific, presented HB 890, which could join that collection of bills as another noteworthy piece of legislation.

First, Mathews’ bill would require that the party punitive damages are sought after would be the clear cause of negligence, fault or violation. That means a lower employee committing some form of violation may not necessarily make a company liable for punitive damages, especially not if someone in an executive position had no knowledge of such a violation. Punitive damages can also only be granted if actual damages are awarded.

Second, HB 890 would change the jury process by which a bill is heard. The current bifurcated process would remain intact with different trials for the trial itself and the “sentencing” of punitive damages, but the bill would make it so there are two entirely separate juries.

Mathews said the intent of those two changes was to make rulings more objective by removing the “emotion” out of these kinds of lawsuits.

“The discussion about the emotion of the case, I think that swings both ways,” he said. “When we see punitive damages in the crazy, crazy numbers, clearly, the emotion was unchecked and led to these numbers that were just astronomical.”

David Zevan, the president-elect of the Missouri Association of Trial Attorneys, however, said the organization has taken to calling the piece of legislation the “Immunity from Punitive Damages” bill. MATA has opposed all of the new tort reform measures presented by House Republicans.

“Companies who have been found to be egregious have already shown to be a bad actor,” he said. “Now they want to do what they can to limit their damages and exposure by an entirely different jury.”

Mathews said he believed the bill would still uphold the ideals of punitive damages.

Rep. Bill White, R-Joplin, feared removing those subjective emotions from the actual awarding of damages from cases because that testimony gives credence to exactly the egregiousness of the act a defendant committed if they are indeed found guilty.

“Punitives meant to be punishment and deterrence,” White said. “I think this is going to diminish why punitives are there.”

Democrats also expressed their concerns. Rep. Gina Mitten, D-St. Louis, noted one section of the bill would put the jurisdiction of pursuing punitive damages in the hands of the attorney general. She alluded to Joplin Republican donor David Humphreys giving millions in campaign contributions to Attorney General Josh Hawley and the fact that Humphreys is currently in the middle of a class-action lawsuit regarding potentially misleading claims about the effectiveness and longevity of his company’s shingles. Mitten feared Hawley could have the authority to not seek punitive damages if he so chose.

Rich Ahrens, a lawyer with Lewis Rice in St. Louis, said regardless of any perceived conflict of interest, the attorney general should have control over those punitive damage suits.

“The reason the attorney general is asked to become involved is because issues of punishment and deterrence are singularly the province of the state’s law enforcement agent, the attorney general,” he said. “Issues of punishment are primarily issues for the state rather than windfalls for the private plaintiffs that can happen under current law.”

The bills will likely be voted on in the committee’s next executive session.

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