JEFFERSON CITY, Mo. – Two House tort reform bills are now making their way through the Senate, passing out of the Senate Committee on Government Reform on Wednesday.
With two votes of 5-2 each, the committee signed off both HB 1645, Rep. Bruce DeGroot’s measure dealing with asbestos claims, and HB 1578, Rep. Glen Kolkmeyer’s venue and joinder legislation. Both bills passed the House in March and now look to the Senate for approval.
DeGroot’s bill would require plaintiffs to file claims against every potentially liable company or bankrupt company’s trust fund at once. Under current law, those injured by asbestos could potentially win compensation from one company and then at a later time pursue a separate claim against a different defendant. DeGroot says the intent of his bill is to prevent “double-dipping.” DeGroot says his legislation would require plaintiffs claiming damages to disclose all trust claims they’ve made so that juries may be fully informed before awarding any damages. Under the current law, juries award money from a solvent defendant, but the plaintiff can then seek and receive further compensation from a trust fund for the same harm.
Opponents, however, say the bill makes it easier for the defendants to seek delays in a situation when those afflicted with mesothelioma only have a finite amount of time in which to deal with such matters. As Rep. Jay Barnes told his fellow House members as they passed the bill, mesothelioma is basically a death sentence, and when the plaintiff dies, so does the best source of evidence in the case.
Kolkmeyer’s bill looks to change the state’s laws regarding venue and joinder, seeking to limit how and where plaintiffs can join together in certain civil cases. The intent is to prevent what some legislators are calling “venue shopping” by plaintiffs attorneys.
Both bills are major pieces of the tort reform package that Republicans have been pushing an attempt to change the legal system in an effort to make the state “more business friendly” for companies.
The committee heard DeGroot’s bill in the prior week, but Kolkmeyer’s bill was brought before the committee for the first time. However, it was not the first time the senators had been exposed to that kind of legislation. As noted by Sen. Scott Sifton, the issue of venue and joinder has been heard on the Senate floor three times now during the legislative session, in the form of Sen. Brian Munzlinger’s SB 546. Munzlinger sits on the committee that heard the bill, as well.
A number of supporters appeared to testify on the bill, while the Missouri Association of Trial Attorneys stood once again in opposition of the legislation. But, unlike past hearings on the issue of venue joinder, nearly everyone in attendance simply made themselves available for the committee’s questions, as the bill is nearly identical to Munzlinger’s, excepting an effective date contained in the House version.
The only opposing votes cast against the two bills on Wednesday morning were those of Sen. John Rizzo and Sen. Scott Sifton, the two Democrats on the committee.
The committee also heard two other bills in the hearing: Sen. Dan Hegeman’s SB 1079 and Sen. Mike Kehoe’s SB 1102.
Hegeman’s bill, titled the “Silica Claims Priority Act” would stop a plaintiff from bringing an injury claim caused by silica forward unless they can present certain evidence, proving a prima facie showing physical impairment.
The prima facie showing would include:
1) evidence verifying the physician has taken occupational, exposure, medical, and smoking history from the exposed person
2) evidence verifying that the exposed person has silicosis
3) evidence verifying there has been a sufficient latency period
4) a determination that the exposed person had a permanent respiratory impairment rating of at least Class 2
5) evidence verifying that the exposed person’s impairment was not more probably caused by something other than silica exposure.
Sifton shared his concerns about the language of the bill in regard to latency periods, pointing to the asbestos cases as a similar example, saying that some cases do not manifest until decades later.
Speaking on behalf of MATA, President David Zevan noted that a physician could use a number of ways to test for silicosis – a lung fibrosis caused by the inhalation of dust containing silica- saying that the provision in the bill called for invasive procedures, requiring radiological and pathological evidence. Zevan questioned the need for that and told the committee that while researching this legislation, he encountered very few trial attorneys in Missouri dealing with these types of cases.
Questioning Zevan, Sen. Dave Schatz predicted that as mesothelioma cases eventually come to an end, the silica cases could potentially replace those suits as a source of revenue for plaintiffs attorneys.
Kehoe’s SB 1102, a Christmas tree of tort reform measures packed into one bill, was also heard, with tort reform supporters calling it an “all-star lineup.”
The bill addressed a plethora of issues, from contingency fee contracts, unlawful merchandising practices, arbitration agreements, interpleader actions, venue and joinder, punitive damages, products liability and time limitations for filing certain claims, to name a few.
Citing the need for tort reform legislation, several of those testifying in favor of the bill stated that businesses “do not feel like they get a fair shake when they to court, especially in St. Louis.
As the senators and Zevan boiled the bill down to the issue of venue and joinder, Sen. Munzlinger stated that MATA had been “extremely difficult” in working on his bill. Both sides have been at an impasse on the bill, particularly because of the clause about retroactivity.
But as the only opponent of the bill in committee, telling the senators that the bill wasn’t balanced.
He argued that the corporations do not represent people who have been injured but instead do not want to be held accountable in those instances.
“When there’s not balance, that’s when we have to stand up and say that’s not fair,” Zevan told the committee. “All claims are frivolous until it happens to someone you love.”
Benjamin Peters is a reporter for the Missouri Times and Missouri Times Magazine, and also produces the #MoLeg Podcast. He joined the Missouri Times in 2016 after working as a sports editor and TV news producer in mid-Missouri. Benjamin is a graduate of Missouri State University in Springfield. To contact Benjamin, email firstname.lastname@example.org or follow him on Twitter @BenjaminDPeters.