Missouri Republicans split on possible expert witness change

JEFFERSON CITY, Mo. -- Legislation that would impose new requirements for expert testimony in Missouri court cases has run into opposition from two Republican senators who are lawyers and running for statewide office.

Republican Sens. Eric Schmitt, of Glendale, and Kurt Schaefer, of Columbia, have helped Democrats stall the measure, which is backed by business groups. Both said it could cost businesses more in litigation fees because of the higher standard and likely prolonged legal challenges to expert testimony.

"It is an easier threshold for businesses to keep a lid on costs, really, with what we have right now," Schaefer said. "Your universe of people that you can call as an expert witness gets much smaller."

Missouri judges already can decide whether to admit expert testimony, but the standard is primarily based on whether the facts forming the basis of the opinion are "reasonably relied upon by experts in the field." The standard does not apply to the method by which facts are analyzed. Sen. Mike Kehoe's measure would require expert witnesses to base testimony on sufficient facts and data, reliable principles and methods and reliably apply those principles and methods to the facts of the case.

Senators are set to hash out the issues starting next week after their spring break. The measure is one of several business-backed legislative priorities related to all court cases -- including caps on noneconomic damages in medical malpractice cases, caps on punitive damages in civil cases and an allowance for "loser pays" rules.

Several Republican lawmakers are united in backing those proposals, which supporters say will make Missouri's legal environment better for businesses by keeping costs down or reducing frivolous litigation. Kehoe, R-Jefferson City, who sponsored the measure, framed the expert witness change as another pro-business measure.

"Trying to make our state a more business-friendly state and trying to make it a state where we can make it more efficient is a goal of this body," Kehoe said. "This is just another piece that we can add to it."

Schmitt and Schaefer are both running for statewide office, though Schmitt said his run for treasurer has nothing to do with his opposition to the measure. Schaefer is running for attorney general. It's a new issue, Schmitt said, and raises several questions that need to be fully vetted, as it's a sweeping change.

The standard that the legislation is modeled on, referred to as the Daubert standard after a U.S. Supreme Court case, is supported by the Missouri Chamber of Commerce and Industry and sets out more requirements than current state law.

Jay Atkins, the chamber's top lobbyist, said the main benefit of changing testimony standards is ensuring the science presented to juries is from legitimate, widely studied fields. He said that would promote efficiency and could benefit either side of a case.

"When a business is being sued, generally speaking, it is most advantageous for the business to provide -- to be able to present to the jury -- the most reliable and scientifically sound facts available," Atkins said. "And the way you do that is to make sure that any expert witness who testifies is testifying about a field that has been subjected to rigorous scientific scrutiny."

But Kenneth Barnes, a member of the Missouri Association of Trial Attorneys' executive committee, said the proposed standard makes cases more complicated as different judges can interpret the Daubert standard in vastly different ways. He also said it tries to make the judge a "gatekeeper of methodology," which increases circuit courts' workloads and costs for both sides in a lawsuit.

"It actually leads to great confusion both among the judges and the litigants that appear before those judges," he said.

Expert witness bill is SB233.

Online:

Senate: http://www.senate.mo.gov

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