After a Republican dominated legislature and newly minted GOP Governor Eric Greitens placed several business-friendly lawsuit measures on the books, corporate attorneys are still not impressed.
The most recent U.S. Chamber of Commerce survey of senior company attorneys shows Missouri dropping from 42nd to 49th place for “lawsuit climate”, the state’s worst ranking ever.
Curt Mercadante with the U.S. Chamber Institute for Legal Reform says the legal climate for business is definitely improving, but he thinks it’ll take a while to sink in.
“You don’t jump from 50 or 49 to 35 right away because a well-worn reputation is going take some time to dust off,” said Mercadante. “But we know that when states do improve their lawsuit climates, they go up in the rankings.”
It’s also possible the legislature’s work may not have sunk in with attorneys responding to the survey because the laws hadn’t yet taken effect. A release by the Chamber says, “Missouri’s 2017 ranking reflects a poor lawsuit climate that developed under the previous governor(Democrat Jay Nixon).”
Brett Emison with the Missouri Association of Trial Attorneys (MATA) dismisses the survey as promotional material meant to serve the interests of the Chamber’s clients.
“They represent big business, they don’t represent small business,” said Emison. “There’s no methodology. There’s no basis in fact. This is a propaganda piece to support the largest of large corporations against regular people like you and me.”
Trial lawyers represent plaintiffs who often bring lawsuits against businesses.
Mercadante admits the survey represents the thinking of big business, but contends those businesses drive the economy. “These are at major employers. And so, this is measuring the reputation (of states) amongst America’s job creators.”
According to Mercadante, the U.S. Chamber is especially happy with three lawsuit measures that were put into practice.
“The passed things to keep junk science out of state courts. They passed reining in, what we call, lawsuits against insurers who tried to pay a claim in good faith. And (they passed a law) allowing juries to know whether a plaintiff already received compensation for the injury over which they are suing.”
The “junk science” measure is a new law the Chamber and other proponents say brings Missouri in line with most other state. It raises the bar for qualifying as an expert witness in order to keep “junk science” from entering a lawsuit.
MATA’s Emison contends it’ll protect businesses because it makes it more time consuming and expensive for individuals to find and hire expert witnesses.
“There’s a lot of added expense for plaintiffs in some of these cases that may, frankly, prevent those cases from being filed, and will act as a de facto immunity for some of these defendants.”
The law the Chamber’s Mercadante says will allow juries to know if a plaintiff has already received compensation for an injury has been referred to as the “collateral source” measure.
The measure altered the collateral source rule, and allowed parties to introduce evidence of the actual cost, rather than the value, of medical care given. MATA’s Emison describes “collateral source” as a gift from a third party in lieu of compensation owed by the party at fault.
“It is literally a giveaway to insurance companies and negligent defendants. This (law) only affects defendants who are actually found negligent and have to pay damages. It gifts them.”
The U.S. Chamber survey continues to single out the city of St. Louis as one of the worst lawsuit jurisdictions nationwide. It ranked St. Louis number 10 among cities or counties with the worst legal environments.
Mercadante calls St. Louis the black eye in Missouri. “Plaintiffs and plaintiff’s attorneys from around the country are seeing St. Louis as a friendly place in which to file their lawsuits.”
He notes St. Louis juries have awarded four separate out of state plaintiffs verdicts totaling more than $307 million, including last year’s well publicized case where Johnson & Johnson was ordered to pay $110 million to a Virginia woman who claimed daily use of the company’s talcum powder gave her ovarian cancer.
MATA’s Emison pointed out that respondents could only choose among 12 cities or counties included in the Chamber’s survey. “What this list says is that St. Louis, Missouri, out of this list of 12, is ranked 10th. It’s ranked almost at the very bottom of this list of bad places that the Chamber doesn’t like its members to have to go in and defend themselves.”
The U.S. Chamber’s survey also found that 85 percent of corporate attorney’s, an all-time high, say a state’s lawsuit environment impacts major decisions, including where to locate or expand.
The Chamber’s Mercadante thinks lawmakers and business leaders should take a hard look at the survey’s finding. “When you have employers saying that lawsuit climate is something they consider when looking to locate or do business, that’s important for a state.
