JEFFERSON CITY — Missourians who sue a company, employer or physician will face more obstacles if a slew of bills making their way through the Missouri General Assembly become law.

Bills introduced in both the Missouri House and Senate, if passed, would result in significant changes to how and where class action lawsuits can be filed, the amount of damages a plaintiff may pursue and who could be held liable.

Supporters of the more than two dozen bills (and counting) currently making their way through the legislature said they believe that the legal climate in Missouri, specifically St. Louis, inflates insurance costs and deters businesses from coming to the state. In his State of the State address in January, Gov. Eric Greitens cited lawsuits brought under the Missouri Merchandising Practices Act as an obstacle to economic growth.

“Our judicial system is broken, and the trial lawyers who have broken it, well, their time is up,” Greitens said during the address.

Each of the tort bills introduced so far have been sponsored by Republicans.

Critics of the proposed policies say that the bills would create all but insurmountable barriers for someone bringing a lawsuit in the state of Missouri, making it difficult, if not impossible, for people who have been wronged to seek remuneration in the civil court system.

“I have yet to see solid evidence of any tort reform bill reducing insurance costs,” said Rep. Gina Mitten, D-St. Louis. “Each and every one of these bills are to create barriers for people to sue.”

What is a tort, and why “reform” the law?

The term “tort reform” is mentioned casually by politicians, but it refers to a body of law that is quite complex.

“A tort means any harm. It can be a negligent harm, or it can be intentional harm,” said Genevieve Nichols, a St. Louis trial attorney.

When a tort is committed, the law allows the injured party to sue for recompense from the injuring party, or tortfeasor.

Examples of reasons someone might sue under tort laws would be if they were injured by harmful consumer products, or by a doctor’s malpractice. Suits can be brought individually, but in situations where many people have been injured by the same wrongdoing, class-action suits provide a way for the court to use one set of facts to find resolution for many people.

Proponents of “tort reform,” however, say the current system gives preference to excessive suits brought by profit-motivated trial attorneys, which inflates insurance costs for businesses.

“We want to make sure that we’re putting the pendulum back in the middle, I think, where it’s supposed to be in the tort-consumer relationship,” Sen. Caleb Rowden, R-Columbia, said at a press briefing. Rowden, who has sponsored two tort bills and serves on the Senate Government Reform Committee that hears most of the tort legislation, did not respond to multiple requests for comment.

An annual report produced by the American Tort Reform Association (ATRA), cited by the governor in his State of the State speech and by legislators in a number of bill hearings, identified the Circuit Court for the City of St. Louis as a “judicial hellhole.” ATRA said this designation was earned because when looking at the already-high volume of tort cases in the St. Louis civil justice system, most plaintiffs are not from St. Louis or Missouri. Attorneys from across the country move their lawsuits to St. Louis to “exploit a weak venue law,” said ATRA president Tiger Joyce.

Opponents to the proposed legislation say that restricting a plaintiff’s options in the civil justice system is merely a chance for already-rich corporations to further pad their bottom line by skirting civil responsibility when someone is harmed by the corporations’ actions.

“All of these bills were paid for by elite billionaires,” Mitten said, referring to campaign contributions to lawmakers supporting the measures. “At the end of the day, the folks that actually pay are working Missourians.”

A list of ATRA’s sample members from November 2016, pulled from internet archives, listed many high-profile doctors groups, pharmaceutical companies, insurance companies and automobile manufacturers, but this list is no longer on ATRA’s website. Darren McKinney, communications director for ATRA, said the website was out of date and had been recently upgraded, but declined to provide a list of specific members beyond a founding organization, the American Medical Association, and the National Federation of Independent Business. He noted that, as a nonprofit, ATRA is not required to disclose the list.

What would change?

Republicans’ proposed changes to Missouri tort law have been introduced piece by piece in dozens of bills. These bills could later be grouped together and, if passed, sent to the governor’s desk as one package of legislation. If no significant challenge to these bills materializes, there is a real chance that the Republican supermajority will usher in these changes during the current session.

Missouri Merchandising Practices Act

Among the most controversial tort bills introduced this session is Senate Bill 5, sponsored by Senate President Pro Tem Ron Richard, R-Joplin.

The bill in its original form, if passed, would effectively gut the Missouri Merchandising Practices Act, said David Angle, a Columbia-area trial attorney.

According to the attorney general’s office, the Merchandising Practices Act allows for Missourians to sue if they are sold a product or service under dishonest or deceptive circumstances. The current law says that the suit may be filed either in the county where the seller resides, or in the county where the transaction occurred.

Angle, who works on behalf of clients who say they are victims of fraudulent business practices, said that the Merchandising Practices Act was approved in 1967 as part of a nationwide trend in the growth of state-level unfair or deceptive acts or practices laws, or UDAP laws. Since only the government can sue under the Federal Trade Commission Act, these state-level unfair practices laws were intended to allow consumers the option to sue for wrongdoing, Angle said.

Under the original version of Senate Bill 5, the proposal would change the statute of limitations to further restrict the time during which a claimant may sue, prevent any business that is regulated by any government authority from being sued and require co-plaintiffs in a class action suit to prove their cases individually, rather than as a group.

Angle said that unfair practices laws are intended to be flexible because the types of fraud committed against consumers vary widely, and people who commit fraud are versatile and resourceful.

“The ingenuity of folks who commit fraud is never going to stop,” Angle said.

The bill was on the formal calendar for perfection on the Senate floor, but has since been moved to the informal calendar, said Lauren Hieger, communications director for the Missouri Senate Majority Caucus. Richard is currently working on revising the bill, he said in a news conference on Feb. 9, but has not released further information on any planned changes.

Missouri businessman David Humphreys has contributed hundreds of thousands of dollars to the campaigns of Richard and other lawmakers sponsoring tort legislation. Humphreys is the CEO of TAMKO, a roofing supply company that has been the defendant in extensive tort litigation spanning many years, including allegations of wrongful death, personal injury and asbestos-related injuries. TAMKO is currently facing asbestos-related class action litigation in St. Louis.

Liability

Several of the bills under consideration attempt to redefine who can be held liable for wrongdoing under tort law.

One such bill, Senate Bill 237, introduced by Rowden, revises the law that determines how hospitals may define what they call an employee. During debate on the Senate floor, Rowden said the bill protected health care providers from unnecessary litigation. Currently, Missouri law requires hospitals to be responsible for harm that occurs under their roof, regardless of whether the harm is committed by employees or others who use their facilities.

“(The bill) makes sure that folks who enter into contractual agreements, if there are issues, that the folks who caused the issues are the ones that are held liable, whether it’s a hospital or doctor,” Rowden said during a news conference.

Rowden said that by revising liability and litigation rules, the bill aims to keep health care costs low, which he emphasized is of particular importance to his constituents.

Critics of this bill say that it gives carte blanche to hospitals to avoid taking responsibility for errors committed under their watch.

“What employer in the health-care industry would ever pay a health-care provider directly under this bill? Because all they have to do is set up some sort of artifice of indirect payment, and they’re no longer responsible for what anybody does under their roof,” said Sen. Scott Sifton, D-Affton, during floor debate.

Kansas City trial attorney Brett Emison, who testified in opposition to SB 237, said that doctors could also suffer if this bill becomes law.

“It creates a situation where the hospitals are hanging the doctors out to dry,” Emison said. “If (doctors) haven’t purchased enough medical malpractice insurance, it risks doctors’ personal assets.”

Emison said that hospitals are looking to reduce their liability, but doing so this way is to the detriment of both doctors and patients.

The bill passed the Senate on Feb. 16, and has been sent to the House. House Bill 452, sponsored by Rep. Kevin Austin, R-Springfield, is identical to SB 237.

Venue and Joinders

Among the more technical bills introduced are those that address court rules governing where lawsuits may be filed and whether suits can be joined together.

Venue rules in Missouri currently allow people outside the state to sue in Missouri if the defendant, including a corporation, is based in the state. Joinder rules allow plaintiffs bringing separate lawsuits to join together if the suits are based on the same set of facts against the same defendant.

Rep. Glen Kolkmeyer, R-Odessa, sponsored House Bills 459 through 463, a set of legislation that would change court rules pertaining to venue and joinders. Kolkmeyer said during a Jan. 30 hearing for the House Special Committee on Litigation Reform that the legislature has the authority to change court rules, a task normally reserved for the Missouri Supreme Court.

Kolkmeyer said that by separating plaintiffs by venue, as well as preventing plaintiffs from grouping their lawsuits together (including out-of-state plaintiffs), these bills would distribute cases throughout the state rather than clogging an overburdened court system.

“Trying the cases of all these parties in our state courts causes court congestion, overworked judges, restricted access to courts for our Missouri citizens and huge expenditures of funds to keep the court system functioning,” Kolkmeyer said.

Restricting plaintiffs’ ability to join their lawsuits together in a single venue, thereby forcing them to pursue their suits individually, would prove cost-prohibitive, said Jack Garvey, a trial attorney and former judge in St. Louis who testified in opposition to the bills.

Garvey said that because of the size of the jury pool and the costs involved in trials, St. Louis is better equipped to handle large tort cases, whereas more rural courthouses might be overwhelmed. He also said that St. Louis judges can manage their own dockets without interference from the legislature.

Mitten, who sits on the House Special Committee on Litigation Reform, said that these measures will increase costs to Missouri taxpayers if plaintiffs are prohibited from joining related cases.

If joinders are no longer allowed and if venue rules are restricted, what could be litigated under current law as a single case, such as a class-action suit, would instead be litigated as separate cases for each plaintiff in a different venue.

“You have to pay for a judge in different counties, but it’s all the same facts,” Mitten said.

Sen. Brian Munzlinger, R-Williamstown, sponsored the Senate counterparts to Kolkmeyer’s bills, Senate Bills 258 through 262. The House bills were passed out of committee on Feb. 20, and have not yet been scheduled for floor debate. The Senate bills are through committee and are on the Senate floor calendar for Monday.

Arbitration 

Senate Bill 45, sponsored by Sen. Gary Romine, R-Farmington, proposes to reroute disputes between employers and at-will employees away from the court system and into private arbitration proceedings.

“What this allows is for the business and the employee to come to an agreement that any employee controversies be dealt with through an arbitration process,” Romine said during floor debate.

This bill was especially contentious among its opponents, who said that by forcing disputes into private arbitration, it will allow discrimination and employer retribution to occur without adequate remedy to the victim.

“That bill will effectively deny access to the courts for Missourians who believe that they have had adverse employment actions as a result of sexual harassment complaints, or employment discrimination complaints,” Sifton said. “You’re going to see far fewer sexual harassment victims and victims of racism and sexism and ageism in the workplace have a chance to make their case to a jury.”

Other initiatives 

The scope of the more than two dozen tort bills so far introduced in the General Assembly runs the gamut of tort-specific processes, procedures and judgments. Other bills that have been introduced include measures that potentially reduce judgements, create a distinction between employees of franchisors and franchisees, add time limits to the settlement process and address product liability and asbestos claims.

Summary of bills filed proposing changes to class action lawsuits

A summary of the bills that would make significant changes to how and where class action lawsuits can be brought, the amount of damages a plaintiff may pursue and who could be held liable.

Supervising editor is Mark Horvit.

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