Tort reform, particularly joinder and venue, is a subject that does not stir the same outright passion in average Missourians as abortion or guns, yet it is an important issue that could have a resounding impact on the legal system.
Even some of the most passionate advocates on tort reform call it “one of the most complicated issues and tedious.”
And complicated it is.
From a legal standpoint, venue is the county or district where a criminal or civil case can be heard while joinder is the action of bringing parties together in cases. Jurisdiction is which system of courts has the official power in the case — state or federal. A tort is a wrongful act or an infringement of a right (other than under contract) leading to civil legal liability.
In the simplest of terms, some lawmakers are trying to change the rules on who can bring a tort claim and where they can do it. To be more specific, some lawmakers are trying to codify that plaintiffs can not use joinder to establish venue and modify which cases can be brought together along with carving out a venue exception for insurance agents.
“It is economic development, which involves taxation, regulation, and litigation. If any one of those factors is out of whack or too high, businesses don’t want to come here, don’t want to expand, or will move out,” Rep. Glen Kolkmeyer told the Missouri Times. “Right now, litigation, in my opinion, is out of whack.”
Changes to Missouri’s joinder and venue regulatory scheme, which have been proposed the last several years but made no headway in the Senate, tends to ignite debate from lawmakers whenever brought up — as do most tort reform proposals. Back in 2005, it was also a hotly-debated topic among lawmakers when they passed the “strictest venue law in the United States.”
The effort to make changes in the law got a boost this year when the Missouri high court ruled that those wishing to bring a tort claim can not use joinder to establish venue. In other words, a plaintiff must be able to independently establish venue to be joined together in a case.
“These aren’t just legal issues. They are issues of justice,” Sen. Ed Emery told the Missouri Times. He was a member of the Missouri House when Rep. Richard Byrd’s HB 393, which was pushed by Sen. Delbert Scott, was signed into law in 2005.
“They are trying to make it harder to file lawsuits for wrongdoing,” Rep. Gina Mitten told the Missouri Times. “The main goal is to help insurance companies and hurt everyday Missourians when it comes to filing lawsuits for personal injury…these bills hurt working folks.”
Currently, the two joinder and venue proposals moving through the Missouri General Assembly are Emery’s SB 7 and Kolkmeyer’s HB 231. The Senate version has gotten Senate approval, the chamber where these bills typically stall, and is set to be voted on by the House Judiciary Community on March 26, 2019. The House version sits on the House informal perfection calendar.
The bills started out the same but after an all-night filibuster, several modifications were made to Emery’s bill that, in the eye of the opposition, “made the bill better” — though Mitten notes she still cannot support the measure.
Emery’s bill allows cases with scheduled trials to be grandfathered in under the old rules. The savings clause was part of the compromise between the two sides in the Senate.
It also specifically references the February 13, 2019, Missouri Supreme Court ruling. The ruling propelled this year’s effort forward. Emery’s bill codifies that decision in Missouri’s statue. Kolkmeyer noted his bill was filed before the ruling and would need alterations to be in line with that decision.
“[The court ruling] almost did the whole job for us,” said Emery. “We felt like it didn’t address every one of the issues and we wanted to put it in statute.”
Both bills changes that go beyond the high court’s ruling.
The measures would require individuals to bring a claim where they live, where they were injured or the principal place of business of the defendant. It would require those looking to join cases to have been injured in the same instance or with the same set of circumstance. The legislation would also carve of specific venue regulations for insurance companies — agents, those who sell policies, would not be classified as a business location.
Opponents argue that the purpose of the bill is to make it more difficult for people who are hurt to sue.
“One of the big issues I have with all of these bills is that there is an assumption that people who are harmed are malingerers, are just trying to make a buck. I can tell you right now, if your loved one is killed because someone [messed] up, you don’t want money, you want your loved one back,” said Mitten.
Proponents claim that the purpose of the bills is to “unclog” the court system in Missouri and to stop Missourians from footing the bill for out-of-state defendants.
“St. Louis has become the nation’s courtroom,” said Kolkmeyer.
Kolkmeyer and Emery both cited the statistic that only 1,035 out the 13,252 mass tort plaintiffs with cases in St. Louis City are from Missouri, with only 242 of those are from St. Louis City. Emery said that it is Missouri taxpayers footing the bill for those 12,000 people not from Missouri.
“They venue shop and pick where they think they would be likely to get a higher reward or the jury would be more sympathetic to a case, which was not the intention of how our court system was set up,” Emery said.
But that perception is not born out by facts, according to Sharon Jones, deputy director of the Missouri Association of Trial Attorneys. She said that people are not looking to St. Louis for a higher payout but rather a speedier resolution.
Cities have more judges, more courtrooms, and more staff which correlates into getting into court in less time and the actual trial being able to go on consecutively. In contrast, less populated counties may have one judge for three to five jurisdictions, correlating to a judge only being in a specific county one or two days a week. Which, according to Jones, means a typical two-week trial in a big city will be spread out over months in a smaller county.
“I think what we will see in the next couple of years, as people start filing lawsuits under the new law, is rural courthouses coming to the legislature and saying ‘We need extra judges, we need resources for improvements, we need money for staff,’” Jones predicted.
And that’s because of the increase of tort claims in the smaller counties. Provided that the new regulations do not deter those who have been harmed from filing a lawsuit.
She pointed to the case where a man’s daughter was killed by a defective guardrail in Phelps County. He and a couple of other people joined a lawsuit in St. Louis City that was already going on against the manufacturer for the same defect.
Since the injury took place in Phelps County, that’s where venue would have been established under the legislation and the man would have had to fund discovery completely by himself and start the process from the beginning, Jones noted. She went on to add that the daunting task of paying for the full cost of a tort lawsuit, instead of spreading it out over several people, could deter those who have a valid claim.
“Reasonable people can paint trial lawyers as being the bad guys from now until Tuesday. The bottom line is, that person doesn’t seem like such a bad guy when your child is born with cerebral palsy because your obstetrician was intoxicated or when a drunk driver kills an entire family. That is when you need a lawyer to pursue your claim,” said Mitten. “These changes are designed to make that process more difficult and less available to everyday folks.”