Punitive damages bill passes under cover of filibuster

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A 20-hour filibuster halted an asbestos bill in the Missouri Senate, but senators have advanced separate legislation that changes punitive damages.

Following a debate that ran from mid-afternoon on Feb. 25 until 10:30 the following morning, lawmakers put aside the asbestos bill. The Senate then immediately turned to the punitive damages bill, which lawmakers and interest groups had negotiated while the debate went on.

“We’ve made concessions on both sides,” said the bill’s sponsor, Sen. Bill White, R-Joplin and an attorney.

Sen. Scott Sifton, D-Affton and an attorney, helped fellow Democratic senators keep the filibuster going. Speaking with White just before the punitive damages bill was approved, he said the final bill was broadly acceptable to all sides, though he remained opposed.

The punitive damages bill needs another vote in the Senate before it moves to the House. David Klarich, a lobbyist for the Missouri Association of Trial Attorneys who took part in the negotiations, said that, while opponents would continue to seek to tweak the bill’s language during House proceedings, the version that passed in the Senate is effectively the final bill.

“It’s more about what’s not in the bill than what’s in the bill at this point,” he said.

Under current law, punitive damages can be awarded to deter “willful, wanton or malicious misconduct.” The bill would change that standard to “malicious misconduct or conduct that intentionally caused damage to the plaintiff.”

In addition, the proposed legislation would bar attorneys from seeking punitive damages in the initial petition. Instead, they would have to conduct discovery to demonstrate a basis for such an award and could add them to the suit only with the court’s permission. A jury would have to find the damages were warranted by clear and convincing evidence.

The bill also includes language from a separate piece of legislation that would overhaul aspects of the Merchandising Practices Act. It would require the plaintiff to prove that he or she acted as a “reasonable consumer” and that any damages be reasonably related to the harm caused.

Daniel P. Mehan, president and CEO of the Missouri Chamber of Commerce and Industry, said in a statement that the bill would “help staunch the flood of frivolous, job-crushing lawsuits in Missouri that are stifling our economic growth.” Punitive damages and MMPA are among the top tort-related goals the legislature’s Republican majority named this year.

Sifton said that while he won’t vote for the bill, it is better than it was in earlier drafts. For instance, the version approved by the Senate would apply only to suits filed after the bill’s Aug. 28 effective date, so lawsuits already underway wouldn’t be affected.

Sifton added that even under the higher standard, juries can hold bad actors accountable.

“If a jury is ticked off enough, they’ll find a way to award punitive damages under that standard,” Sifton said.

Meanwhile, the now-paused asbestos bill would require plaintiffs in asbestos suits to disclose the existence of any claims that have been or could be made against asbestos trusts. Such trusts are created by courts to handle asbestos claims against companies that have gone bankrupt.

Backers say the measure would bring more transparency to asbestos litigation and preserve resources for victims. The sponsor, Sen. Bill Eigel, R-Weldon Spring, said his bill “attempts to fix a broken system.”

Opponents, however, argued that the bill’s provisions would have delayed trials for victims. In a statement following the filibuster, Senate Minority Leader Gina Walsh said the asbestos bill would have helped manufacturers and insurance companies while “running out the clock on dying mesothelioma victims.”

Democrats kept the debate alive both by trying to amend the bill and by continuing to hold the floor. While the negotiators worked behind closed doors into the early morning, the filibustering senators’ discussion of the merits of the bill slowly gave way to inanities, ranging from the quality of the food at Cracker Barrel to favorite characters on the TV show “Full House.”

It’s not clear if the asbestos bill will be brought back this session, which ends May 15. The filibuster marked the second time the bill has come to the Senate floor only to be set aside.

The punitive damages bill is SB 591. The asbestos bill is SB 575.

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