Missouri State Capitol in Jefferson City
JEFFERSON CITY, Mo. – An update to what expert testimony can be told to juries is ideal for both personal-injury plaintiffs and corporate defendants, Missouri lawmakers have been told as they decide whether to change state rules.
The Senate General Laws Committee has sent SB 918 to the full Senate, where it awaits action. The bill would require a little bit extra out of state-court judges when deciding if the opinions of experts hired to testify in courts are reliable and mirrors the guidelines for federal judges, which were updated in 2023.
That change told judges to let experts tell their theories to juries if it is “more likely than not” they were based on sufficient facts and the product of reliable methods. The expert must have “specialized knowledge” to be eligible to testify.
Besides standard injury cases - in which experts tell juries a product was faulty, injuries were caused by a car wreck or slip-and-fall and other various opinions – the gatekeeping function of judges has been highlighted by high-dollar mass torts like allegedly cancer-causing talc and pharmaceuticals. Lawyers hired experts to tell jurors Tylenol causes autism, but a federal judge disqualified them – dooming those cases.
Defendants have labeled sketchy testimony “junk science.” Some judges have let juries hear it, others have not. But SB 918 applies to both sides evenly, lawmakers heard.
Mark Dunn of Osburn Hine & Yates in Cape Girardeau said 30% of his work is on the plaintiffs’ side but still testified in support of the bill, which is an update to evidentiary changes the state made in 2017.
“Last time we were here, one of the complaints was that this is going to create more work for the judges,” Dunn told the committee earlier this year.
“This is not going to create any more work for the judges than they already have. They’re already obligated under our current statute to perform this gatekeeping function.
“We also heard that this was going to hurt plaintiffs lawyers. As Mr. (Jamie) Burger pointed out, this is neither a plaintiff nor a defendant bill. Really, the rules relating to expert witnesses apply to all of us evenly.”
Burger is the bill’s sponsor and says it is neither “pro-plaintiff nor pro-defense.” Instead, it allows juries to deliver “just verdicts.” Cited by proponents was a 2023 ruling by the state Court of Appeals, which overruled a trial judge who allowed a biomechanical engineer to testify on behalf of defendant medical care providers in a malpractice case.
The Court of Appeals overturned the defense verdict because that expert was not qualified to speak to medical causation, ordering an entirely new trial. The case was used as an example of judicial gatekeeping being in the interests of both plaintiffs and defendants.
Kentucky, Louisiana, Ohio and Arizona have already aligned their state law with federal Rule 703. There are proposals to do the same pending in 10 other states. Missouri’s plaintiff lawyer group, the Missouri Association of Trial Attorneys, is hoping against its passage, with Michael Sudekum telling the committee the existing rules are good enough.
The biomechanical engineer case showed Missouri’s rules are already working, and changes pose a problem, he says.
“The judge is now making a threshold factual determination by adding this language to the case,” he said.
“And that, without question, is a harder call and an inappropriate call given that factual determination should be in the province of a jury and will require more work for judges, slow our litigation dockets, slow trials, and you know, I heard earlier that our courts are already backed up.”
