Missouri is central to America – geographically, culturally, and politically. Some of our greatest literature came from Missouri authors (Twain, Eliot, Angelou). Media figures as unifying as Walter Cronkite and as divisive as Rush Limbaugh at one time called Missouri home. American music wouldn’t be the same without tenor saxophonist Coleman Hawkins (listen to the 1939 version of “Body and Soul” to hear the essence of Jazz improvisation) and Chuck Berry (who invented rock and roll without any help from Marty McFly). Two of the country’s deepest philosophers, Reinhold Niebuhr and Yogi Berra, hailed from the Show Me state. We are grateful for Kansas City barbecue, especially accompanied by the best selling beer in the country, brewed on the other side of the state. (Don’t sneer; superchef David Chang says that Bud Light is his favorite beer to accompany food). We also would have found these last few weeks of the Coronoavirus lockdown much more difficult to get through without binge-watching Ozark, the Netflix series about a Chicago family relocating to a lovely part of Missouri to engage in some very unlovely money-laundering and mayhem. (Query why the local authorities in the Lake of the Ozark area don’t pay more attention when their resort area suddenly becomes a lot more explosive and murdery. Season 3 ended recently and – semi-spoiler alert – it didn’t turn out great for a certain holder of a law degree.)
In politics, Missouri has long occupied the crucial middle. The Missouri Compromise put off the Civil War … for a while. Harry Truman was a consequential President in the middle of the 20th Century. Currently, Missouri has a colorable claim to be one of the few genuinely purple states in a land too often split into red and blue. (But recently it does seem to be getting redder. The 538.com website plants Missouri firmly in the pro-Trump column.)
Missouri is also at the center of things in the legal arena. Border areas on both sides of the state harbor predatory plaintiff firms. At the same time, some of the fellow defense hacks we admire most have Kansas City and St. Louis addresses. But if we had to choose where to visit, we’d pick Kansas City, and not just because of Arthur Bryant’s. The courts in Kansas City are not bad, though not quite as good (yeah, we mean pro-defense) as the ones across the river in Kansas. But the courts in St. Louis (we mean the city, not the county), are just about the worst in America. (And by worst we mean pro-plaintiff; we mean unfair; we mean crazy.)
Did you ever watch the old Rumpole of the Bailey series, written by former barrister John Mortimer, and played on tv by the masterful Leo McKern? It should be mandatory viewing by put-upon lawyers everywhere. In one of his tougher cases, Rumpole, after a series of adverse rulings, invites the presiding judge to climb down from the bench and take a seat at his opponent’s table, since the judge’s bias was so palpable. Well, we heard a story about something like that actually happening in St. Louis. In the midst of a product liability litigation, a judge retired, and then went to work for the plaintiff firm. At that point, we would have a very depressing conversation with the client, and then commence dreaming of a retirement filled with watercolor painting and vodka gimlets.
Missouri for a while had a reputation as one of the big litigation tourist jurisdictions. Plaintiff firms would gin up consolidated cases, joining one or two Missouri plaintiffs with riverboatloads of non-Missourians, file them in St. Louis, and then let the madness begin. St. Louis juries doled out several multi-million and even multi-billion-dolar awards in cases that, under any set of dispassionate eyes, did not come close to warranting such, er, generosity. Research by Citizens Against Lawsuit Abuse demonstrated that excessive tort litigation in Missouri resulted in a loss of $2 billion in personal income annually and a loss of 32,205 jobs. That “tort tax” cost $505.21 per person. Thankfully, the SCOTUS opinions in Bauman and BMS made litigation tourism in Missouri more difficult, and Missouri courts have actually done a pretty good job of changing their ways. We’ve written about that evolution frequently, including here. Personal jurisdiction doctrine now permits corporate plaintiffs to face jurors at home or where the alleged injury occurred, rather than alwaysalwaysalways in the shadow of the Gateway Arch. It’s an improvement.
Anyway, putting aside the upside-down world of St. Louis city courts, Missouri seems to be heading back toward the center of Anglo-American jurisprudence. Maybe some of that is due to the state’s reddening, which we alluded to earlier. We have no desire to dive into the mud pit of politics. We’d be out of our league. But having once occupied the position of federal prosecutor and now working in an AmLaw 100 office (if we are ever allowed to return to the actual office), we are a bit sensitive about everyone assuming that we are a hard-core, atavistic right-winger. That assumption would be wide of the mark. One can be a social liberal but still believe corporate defendants deserve a fair shake. More to the point, one can occasionally color in the dots next to Democrat candidates while still favoring tort reform.
Missouri has recently hopped aboard the tort reform bandwagon. 2019 was a good year in that respect. 2020 looks good, too. Last week, the Missouri General Assembly enacted Senate Bill 591, which does a couple of things that restore rationality and fairness to lawsuits that can involve our drug and device clients. First, it reins in the much abused Missouri consumer fraud statute. It imposes a “reasonable consumer” standard on plaintiffs and requires “definitive and objective evidence” of “individual” damages. Think how different this damages proof would be as compared to plaintiff economic experts offering counterfactual scenarios containing the scientific rigor of a Rick and Morty episode. These requirements are also added to the class action section. Medical malpractice (chapter 538) claims are exempted. In addition, consumer fraud actions accrue on the date of purchase. The bill also limits class action attorney fees. The result is that consumer class actions now have a clear, concrete time-frame and are less likely to look like a potential jackpot to enterprising plaintiff lawyers. For corporate defendants, there is now less uncertainty, less overall exposure, and more predictability.
Second, the bill reforms punitive damages in a number of enlightened ways. Missouri law will require 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 confusing, prejudicial, and ultimately useless “willful and wanton standard” is now gone. Here is the kicker: “Evidence of negligence including, but not limited to, indifference to or conscious disregard for the safety of others shall not constitute intentional conduct.” That’s potentially a game-changer. Let’s face it: against all original intention and sound jurisprudence, plaintiff attorneys have hoodwinked courts into turning straight-on negligence claims into cases with potential punitive damages. That doctrinal detour has increased exposure and uncertainty, placed a premium on plaintiff efforts to ramp up jury anger, and turned litigation from an engine of truth into a settlement meat-grinder.
But the goodies in the new Missouri tort reform bill do not stop there. Punitive damages cannot be based on nominal damages in the kind of cases we defend. Further, the bill limits vicarious punitive damages. Conduct must have been authorized by the principal. Oh, discovery on punitive damages is now limited. Punitive damages cannot be sought in the initial complaint, and there will no punitive damages discovery, except on amendment supported by evidence, which would be needed to secure leave of the court. If plaintiffs do manage to inject punitive damages into the case, trial will be bifurcated. Punitive damages cannot be based in any way on harm to non-parties.
All these excellent amendments are prospective only, applying to claims filed on or after August 8, 2020. Perhaps we will see a rush to the courthouse before then. But afterwards, a new litigation day will dawn in Missouri.