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Collateral source, Daubert standard bills voted out of committee

   

JEFFERSON CITY, Mo. – The House Special Committee on Litigation Reform recommended the passage of two priority tort reform bills Monday, advancing Rep. Joe Don McGaugh’s collateral source rule bill and Rep. Kevin Corlew’s bill to adopt the Daubert standard for expert witnesses. The 9-3 votes for both bills went along party lines, Republicans voting in favor and the committee’s Democrats voting in opposition.

The hearing Monday was carried over from a hearing last week to accommodate for testimony in opposition to Corlew’s bill that was not heard because of time constraints.

Missouri is one of four states – alongside Virginia, North Dakota, and Nevada – that do not follow the Daubert or Frye standards for expert witnesses. The Daubert standard is the current basis for the federal standard of expert witnesses in court. It deems an expert witness has expertise in the field, like Missouri’s current model based on statute (specifically section 490.065). However, Daubert adds the provision where a judge may rule on whether or not the testimony provided by those experts is based on reliable scientific facts and data.

Corlew, the Republican majority, and the state’s business community have promoted this legislation for years-, especially in light of surveys by groups like the American Tort Reform Association calling the state of Missouri and the City of St. Louis’ court systems “judicial hellholes.” Trial attorney organizations at both the state and national level have rejected that moniker, but Corlew argues the bill is essential to creating an environment that does not dissuade businesses from coming to the state of Missouri.

“My goal is to make our courts as favorable as possible to all parties whether you’re a corporate defendant or a plaintiff,” Corlew said. “Right now we have one group, corporate defendants, that in survey after survey, rate us as having some of the worst courts in America. We need to improve that.”

Jay Benson, the president of the Missouri Association of Trial Attorneys (MATA), testified last week that he supported the system the state currently has – sometimes called the McDonagh standard – for the decision reached by the Missouri Supreme Court in the State Board of Registration for the Healing Arts v. McDonagh case in 2003.

“What we have right now as far as the system of what a jury gets to hear… it’s a system we understand and a system that keeps garbage away from the jury,” he said, calling the bill “a solution without a problem.”

Ken Barnes, an attorney and member of MATA testified the bill could create confusion in the court systems because the Daubert standard relies much more on a judge’s discretion. He argued this discretion caused some fact witnesses to be treated like expert witnesses. Fact witnesses are not allowed to offer opinion, only to testify as to what they have seen or experienced. Expert witnesses give opinions meant to help inform a judge or jury about technical knowledge that could be pertinent to a case.

“On the same floor of the same building, they apply this rule differently,” Barnes said.

Barnes also warned the new standard could increase costs to the state with more litigation and challenges to witnesses offered by either side of a case.

Corlew countered Barnes’ testimony was an attempt to “muddy the waters” because his concerns applied to fact witnesses and not expert witnesses.

The expert witness bill now moves along to the House along with the collateral source bill. Speaker Todd Richardson has made tort reform a top priority for the session, and it is likely the bills will be debated on the floor sometime before the end of the month.