SS SS SCS SB 280 -- TORT REFORM

SPONSOR:  Scott (Byrd)

COMMITTEE ACTION:  Voted "do pass" by the Committee on Judiciary
by a vote of 10 to 8.

This substitute enacts various tort reform measures. In its main
provisions, the substitute:

(1)  Requires state agencies that use a lawyer or law firm to
obtain such services through open and competitive bids and
prohibits state agencies from paying in excess of $1,000 per hour
for legal services (Sections 34.360 to 34.371);

(2)  Adds attorneys practicing pro bono at tax-exempt nonprofit
community social services centers and physicians working in
county jails to coverage from the State Legal Expense Fund
(Section 105.711);

(3)  Expands immunity from civil liability for certain landowners
adjoining public trails from only certain first classification
counties to all political subdivisions (Section 258.100);

(4)  Allows a person's failure to wear a seat belt to be
considered as evidence of comparative negligence in a lawsuit and
to be admitted to mitigate damages of an insurer or party to the
action (Section 307.178);

(5)  Provides that venue will be in the county where the cause of
action accrued or the county where the office of the registered
agent of the nonprofit corporation is maintained (Section
355.176);

(6)  Requires that claims for prejudgment and post-judgment
interest in tort actions be calculated at an interest rate tied
to the auction price of 52 week United States Treasury bills
(Section 408.040);

(7)  Allows liens for health practitioners who provide medical
services to patients injured by tortfeasors (Section 430.225);

(8)  Requires that venue in all tort actions, including torts for
improper health care, but excluding suits against motor carriers,
only be in the county where the cause of action accrued or the
county where the defendant resides.  Residence for a corporation
is either the county where the registered agent is located or, if
no such agent exists, then Cole County.  In suits against
corporations, venue will only be in the county where the cause of
action accrued or the county of the corporation's residence.
Defendants are allowed to move for change of venue upon the
adding of a new defendant if current venue would have been
inappropriate if the new defendant had initially been named
(Sections 508.010, 508.040, and 508.120);

(9)  Requires courts to dismiss or transfer venue for a cause of
action accruing outside the county in which the court is located
if there is another more convenient venue.  The determination of
convenience is based on a number of enumerated factors.  A motion
to transfer venue may be filed within 90 days after the answer is
due.  A party filing a case in a county where none of the
defendants reside or where the cause did not accrue will bear the
burden of establishing that the pending forum is more convenient
than a forum in which the defendants reside or the cause accrued
(Section 508.075);

(10)  Adds convenient forum to the list of objections that may be
raised by motion whether or not that objection appears in the
pleadings (Section 509.290);

(11)  Allows discovery of a defendant's assets in tort actions
only after a judge determines that the plaintiff has a
submissible case on punitive damages, as defined in the
substitute (Section 510.263);

(12)  Allows orders granting or denying class certification and
motions based on a more convenient forum to be appealed (Section
512.020);

(13)  Establishes a $50 million limit on supersedeas bonds if the
appellant proves that it has unencumbered assets that equal or
exceed the amount of the judgement in excess of $50 million.  If
the appellant fails to maintain this level of assets or is
purposely dissipating assets outside the ordinary course of
business to avoid payment of the judgment, then the court may
require a bond equal to the full amount of the judgment (Section
512.099);

(14)  Sets the statute of limitations in actions to recover
damages from injury caused by childhood sexual abuse at 10 years
or the plaintiff turning 21 years of age or within three years of
the date of discovering that the injury was caused by childhood
sexual abuse, whichever occurs later (Section 516.600 and
537.046);

(15)  Provides for joint and several liability for compensatory
and noneconomic damages if a defendant is found to be 10% or more
at fault, but makes defendants liable only for their portion of
fault for punitive damages (Section 537.067);

(16)  Requires mediation for all tort actions unless the court
finds that mediation has no chance of success (Section 537.072);

(17)  Limits liability of paddlesport outfitters for injury or
death caused by inherent risks of paddlesport activities (Section
537.327);

(18)  Requires an affidavit from a similarly-licensed
professional supporting a cause of action for nonmedical claims
of professional negligence (Section 537.530);

(19)  Adds long-term care facilities licensed pursuant to Chapter
198, RSMo, (Convalescent, Nursing and Boarding Homes) to the
definition of "health care provider" as used in Chapter 538 (Tort
Actions Based on Improper Health Care) and modifies the
definition of "punitive damages" to include exemplary damages and
damages for aggravating circumstances (Section 538.205);

(20)  Removes the words "per occurrence" to ensure that there is
a single cap, and not multiple caps, for incidents of medical
malpractice (Section 538.210);

(21)  Makes it mandatory rather than discretionary that a court
dismiss any medical malpractice claim for which the plaintiff
fails to file the required supporting expert affidavit and
limits extensions of time to file the affidavit to 90 days.  The
substitute also requires the expert to be licensed and actively
practicing in substantially the same specialty as the defendant
(Section 538.225);

(22)  Prohibits statements, writings, or benevolent gestures
expressing sympathy from being admissible as evidence of an
admission of liability in a civil action.  Statements of fault,
however, will not be inadmissible (Section 538.227);

(23)  Makes certain records, written proceedings, or documents
produced by or through the activities of any state or federal
agency from being admissible in certain civil, criminal and
administrative proceedings against facilities licensed pursuant
to Chapter 198 (Convalescent, Nursing and Boarding Homes)
(Section 538.301);

(24)  Includes a severability clause (Section 1); and

(25)  Clarifies that the substitute only applies to cases filed
after August 28, 2003 (Section 509.290).

FISCAL NOTE:  Estimated Net Savings to General Revenue Fund of
$752,665 to Unknown in FY 2004, $930,294 to Unknown in FY 2005,
and $958,203 to Unknown in FY 2006.  Estimated Net Savings to
Highway Fund of Unknown in FY 2004, FY 2005, and FY 2006.

PROPONENTS:  Supporters say that tort reform is necessary to help
curb the increasing medical malpractice insurance rates or
Missouri will lose too many doctors.  Also, venue laws need to be
changed to disallow venue-shopping, especially in suits against
corporations.

Testifying for the bill were Senator Scott; Missouri State
Medical Association; Metropolitan Medical Society of Kansas City;
Missouri Chamber of Commerce; Missouri Hospital Association;
Missouri Motor Carriers Association; Missouri Forest Products
Association; St. Louis Area Business Health Coalition; National
Federation of Independent Business; Missouri Association of
Osteopathic Physicians and Surgeons; Missouri Academy of Family
Physicians; and Associated Industries of Missouri.

OPPONENTS:  Those who oppose the substitute say that capping
damage awards to tort victims will not lower doctors' medical
malpractice insurance premiums, and current venue statutes in
Missouri work well.

Testifying against the bill were Kathleen Kalz-Meyer; Francis
Stevich; Missouri Association of Trial Attorneys; and Patrick
Hagerty.

Julie Jinkens McNitt, Legislative Analyst

Missouri House of Representatives
Last Updated July 25, 2003 at 10:13 am