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Missouri Marches Toward Daubert

Missouri, declared one of the nation’s “Judicial Hellholes®” by the American Tort Reform Foundation, soon will join the federal courts and 39 other states in applying the Daubert standard for the admissibility of expert testimony after enacting H.B. 153. Under Missouri’s current statute, expert opinion testimony is deemed admissible if the expert was duly qualified and the facts or data were of the type “reasonably relied upon by experts in the field.”

It is widely believed that this standard, along with weak venue law, contributed to Missouri’s emergence as a leader in litigation tourism in recent years. Last year, for example, four out of the six top product liability verdicts came out of St. Louis County Circuit Court.

Proponents of H.B. 153, which goes into effect Aug. 28, claimed that the current standard was inappropriately applied in Missouri courtrooms, permitting experts to offer opinions with little basis. The Missouri governor stated at the bill-signing ceremony that this lax standard allowed “trial lawyers [to] bring in shady witnesses who act as experts while peddling junk science.”

H.B. 153 establishes four criteria for an expert witness’s testimony:

  • The expert’s specialized knowledge will assist the jury to understand the evidence or to determine a fact in issue

  • The testimony is based on sufficient facts or data

  • The testimony is the product of reliable principles and methods

  • The expert has reliably applied the principles and methods to the facts of the case

Revisions to the statute remove the “reasonably relied upon” criteria and replace it with heightened requirements, mirroring Federal Rule of Evidence 702 and the Daubert standard. Although it will take years for binding authority to develop from the Missouri appellate courts, the large body of federal law will be instructive in interpreting and applying the new rules.

With this latest move in Missouri, the Daubert standard continues its march, rendering a less restrictive standard an anachronism in yet another jurisdiction. But the progression has not been linear. In fact, the Missouri Senate had previously approved legislation in 2016 adopting Daubert, but it was vetoed by then-Gov. Jay Nixon. Also, the Florida Supreme Court recently rejected an attempt to impose Daubert in Florida courts.  Expert witnesses are an important and oftentimes crucial part of establishing a claim or defense in product liability litigation.  Therefore, understanding the specifics of expert witness standards in a given jurisdiction is critical.

© 2017 BARNES & THORNBURG LLP

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About this Author

Oni N. Harton, Barnes Thornburg, Medical Device attorney, Toxic Tort Practice lawyer
Associate

Oni N. Harton is an associate in Barnes & Thornburg LLP's Indianapolis office where she is a member of the firm's Litigation Department as well as the Drug and Medical Device and Toxic Tort Practice Groups.

Ms. Harton's practice focuses on commercial disputes, product liability defense, and toxic torts. She has also defended financial institutions against alleged violations of state and federal consumer protection statutes including the Fair Credit Reporting Act, Truth In Lending Act, Telephone Consumer Protection Act, and Real Estate...

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