Lawmakers’ 2020 tort priorities draw on past sessions’ work

As lawmakers returned to Jefferson City on Jan. 8, the Republican majority appeared ready to pick up where last year’s efforts to change the state’s tort laws left off.

Among the bills expected to get a major push this year is an overhaul of the rules for awarding punitive damages.

“Punitives seems to be at the top of most tort reformers’ lists,” said Rep. Bruce DeGroot, R-Ellisville, and of-counsel with Brown & James.

DeGroot, who chairs the House Subcommittee on Litigation Reform, is sponsoring HB 1553, which would require plaintiffs to prove by clear and convincing evidence that the defendant “intentionally harmed the plaintiff without just cause or acted with a deliberate and flagrant disregard for the safety of others.”

The bill tracks the language of legislation DeGroot sponsored last year that passed the House but stalled in the Senate.

The Senate has its own version of the bill, SB 591 by Sen. Bill White, R-Joplin and an attorney.

Sen.  Tony Luetkemeyer, R-Parkville, an attorney who chairs the Senate Judiciary Committee, agreed that punitive damages will be a priority this year. He argued that claims for such damages often serve to prod defendants into settling, as most insurance policies don’t cover punitives.

“That’s been a big point of emphasis among the business community that we’ve gotten a lot of feedback on during the off-session,” Luetkemeyer said.

Among other things, the proposed legislation would bar attorneys from seeking punitives in the initial petition. Instead, they would have to conduct discovery to demonstrate a basis for such an award.

DeGroot said he is not trying to do away with punitive damages, only to “raise the standard a bit.”

“I believe they play a big part in our legal system and ought to remain substantially intact,” he said.

The Missouri Association of Trial Attorneys, however, said in an email to members ahead of the start of the session that the proposed standard would be at “an unattainable level.”

MATA’s vice president, Ken Barnes of the Barnes Law Firm in Kansas City, said in an interview that awards of punitive damages are rare but sometimes necessary.

“To me, all you’re doing is giving companies a free pass to be unsafe,” he said.

Statutes of repose, limitations

Another bill that passed the House in 2019 but died in the Senate would overhaul the so-called statute of repose. SB 555 by Sen. Jeanie Riddle, R-Mokane, and HB 1596 by Rep. Curtis Trent, R-Springfield, would require product liability suits to be brought within 15 years of when the product is first placed in the stream of commerce.

The proponents argued that such a limit would give more certainty to retailers and manufacturers about how long they might face a lawsuit stemming from a flaw in a product. But Barnes said such a limit would play into all kinds of litigation, from someone injured by old farm equipment to the recent suits involving the fatal sinking of a World War II-era duck boat.

“This is something that affects everybody,” Barnes said.

In a similar vein, SB 633 by Sen. Dan Hegeman, R-Cosby, would reduce the general statute of limitations for personal injury suits to two years from the date of injury. Currently, the deadline is five years.

A similar bill went nowhere last year, but in its email MATA predicted it is “likely to be a real issue in the 2020 legislative session.”

Other bills that could get traction this year include a variety of proposals to change the Missouri Merchandising Practices Act; put additional requirements on suits stemming from asbestos-related diseases; and requiring set terms and retention votes for administrative law judges.

Missouri Lawyers Media will follow the weekly progress of those bills through its annual Tort Tracker, both in print and online.

While many of this year’s bills are repeats from previous sessions, one new proposal could have wide-ranging effects on lawyers. Sen. Cindy O’Laughlin, R-Shelbina, filed SB 679, which would modify Supreme Court rules relating to lawyer advertising through electronic media.

Barnes said the written disclosures the rules currently require for print advertising would be unwieldy on social media and could raise First Amendment issues.

Luetkemeyer isn’t generally opposed to legislative amendments of court rules — just last year, he passed a bill altering the Supreme Court rules on electronic discovery. But he said he worried the bill could violate the separation of powers, as the judiciary is the branch of government that regulates the practice of law.

“I query whether or not some of the proposals that are out there potentially cross some constitutional lines,” Luetkemeyer said. “I don’t know the answer to that question. I don’t know if the court has ever dealt with that before.”