Missouri state senators are looking at a proposal to change how expert witnesses are selected in civil court cases.
Missouri capitol
Current law only calls on judges to decide if an expert is qualified to testify. The proposal goes a step further, requiring the judge to determine if the expert’s actual testimony is admissible in court.
The measure’s sponsored Senator Doug Libla (R-Poplar Bluff. He says it would ensure that only true expert witnesses could go in front of a judge and jury.
“It’s important for the plaintiffs, as well as the defense, that who is presenting information in testimony, and representing themselves as an expert, should indeed truly be an expert” said Libla. Republicans, who dominate the legislature, are trying to change the rules in civil court cases, contending that doing so would would stimulate business and job growth.
At a Wednesday Senate committee hearing, Clay Crawford with the Missouri Organization of Defense Lawyers said the current arrangement forces juries to figure out which expert to believe.
“Asking a jury to have to sort through matters when it’s already been determined that it’s somewhat above their ordinary experience as members of the community, and then asking them to try to sort through what is junk and what’s not, that function is better in the hands of a, perhaps more educated in most instances, judge, who can act as gatekeeper” said Crawford.
Joining the group of defense lawyers in testifying in favor of the proposal were the Missouri Association of Prosecuting Attorneys, Associated Industries of Missouri, and a representative of State Farm Insurance and the American Insurance Association. Several other business, medical and insurance organizations lent vocal support without detailing their reasons.
The Missouri Association of Trial Attorneys was the only group speaking against the measure. Jay Benson, the organization’s president, said requiring judges to decide if an expert’s testimony is admissible in court would turn them into amateur scientists.
“Once the witness is qualified to have the skills, training and expertise in that given area, it should be for the jury to decide how that issue should be resolved, not for the court” said Benson.
Crawford with the Organization of Defense Lawyers contends the current arrangement results in frivolous lawsuits by allowing for “forum shopping”, a practice in which litigants to get their cases heard in a particular court which is likely to provide a favorable judgment.
“Plaintiffs are desirous of bringing lawsuits (based) on questionable science” said Crawford. “They know if they can find their way into a Missouri court room that the standard for the admissibility of their expert testimony will be less than it would be in any federal court.”
The proposal would establish the same rule which is currently being used in federal courts and 42 states, known as the Daubert Standard.
Benson with the Association of Trial Attorneys contends the fact that the standard has been adopted in so many states doesn’t make it right.
“I’d like to think that Missouri has good laws to allow litigants to get a fair trial. To deprive that litigant of expert testimony because somebody else is a better expert, to me, doesn’t make sense. The jury ought to get to hear both.”
Opponents of the proposal also say it violates the constitutional 7th amendment guaranteeing a trial by jury.
The measure passed the legislature last year, but was vetoed by former Democratic Governor Jay Nixon. It’s one of the numerous Republican proposals in the current session which seeks to change practices in civil court cases.
