SECOND REGULAR SESSION
94TH GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVE STEVENSON.
Read 1st time February 21, 2008 and copies ordered printed.
D. ADAM CRUMBLISS, Chief Clerk
AN ACT
To repeal sections 407.025, 490.065, and 538.225, RSMo, and to enact in lieu thereof four new sections relating to court procedure.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 407.025, 490.065, and 538.225, RSMo, are repealed and four new sections enacted in lieu thereof, to be known as sections 407.025, 407.026, 490.065, and 538.225, to read as follows:
407.025. 1. Any person who purchases or leases merchandise primarily for personal, family or household purposes and thereby suffers an ascertainable loss of money or property, real or personal, as a result of the use or employment by another person of a method, act or practice declared unlawful by section 407.020, may bring a private civil action in either the circuit court of the county in which the seller or lessor resides or in which the transaction complained of took place, to recover actual [damages] out-of-pocket loss. As used in this section, "out-of-pocket loss" means an amount of money equal to the difference between the amount paid by the consumer for the good or service and the actual market value of the good or service that the consumer actually received. In order to recover damages in an individual action under this section, each person shall be required to prove that the method, act, or practice declared unlawful by section 407.020 caused such person to enter into the transaction that resulted in such person's damages. The court may, in its discretion, award punitive damages [and] . The court may, in its discretion, award to the prevailing party attorney's fees, based on the amount of time reasonably expended, and may provide such [equitable] injunctive relief as it deems necessary or proper to protect the prevailing party from the methods, acts, or practices declared unlawful by section 407.020.
2. Persons entitled to bring an action pursuant to subsection 1 of this section may, if the unlawful method, act or practice has caused similar injury to numerous other persons, institute an action as representative or representatives of a class against one or more defendants as representatives of a class, and the petition shall allege such facts as will show that these persons or the named defendants specifically named and served with process have been fairly chosen and adequately and fairly represent the whole class, to recover damages as provided for in subsection 1 of this section. The plaintiff shall be required to prove such allegations, unless all of the members of the class have entered their appearance, and it shall not be sufficient to prove such facts by the admission or admissions of the defendants who have entered their appearance. In order to recover damages in a class action under this section, each class member shall be required to prove that the method, act, or practice declared unlawful by section 407.020 caused the class member to enter into the transaction that resulted in such class member's damages. In any action brought pursuant to this section, the court may in its discretion [order, in addition to damages, injunction or other equitable relief and reasonable attorney's fees] enjoin the methods, acts, or practices declared unlawful by section 407.020. The court may also determine a proposed award of reasonable attorney's fees for the counsel to the class.
3. An action may be maintained as a class action in a manner consistent with Rule 23 of the Federal Rules of Civil Procedure and Missouri rule of civil procedure 52.08 to the extent such state rule is not inconsistent with the federal rule if:
(1) The class is so numerous that joinder of all members is impracticable;
(2) There are questions of law or fact common to the class;
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) The representative parties will fairly and adequately protect the interests of the class; and, in addition
(5) The prosecution of separate action by or against individual members of the class would create a risk of:
(a) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or
(b) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(6) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(7) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:
(a) The interest of members of the class in individually controlling the prosecution or defense of separate actions;
(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation of the claims in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action.
4. (1) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order pursuant to this subdivision may be conditional, and may be altered or amended before the decision on the merits. An order permitting a class action shall specifically state how the class claims and any issues affecting only individual members, raised by the claims or defenses asserted in the pleadings, shall be tried in a manageable time-efficient manner.
(2) In any class action maintained pursuant to subdivision (7) of subsection 3 of this section, the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that:
(a) The court will exclude such member from the class if such member so requests by a specified date;
(b) The judgment, whether favorable or not, will include all members who do not request exclusion; and
(c) Any member who does request exclusion may, if such member desires, enter an appearance through such member's counsel.
(3) Prior to the entry of a judgment against a defendant in an action maintained as a class action under subsection 3 of this section, the court shall require each member of the class who claims to be entitled to monetary relief to submit a statement in a form prescribed by the court requesting a specific dollar amount and providing information regarding the nature of the class member's loss, injury, claim, or damage. No award of damages under this section shall be made without proof that the person or persons seeking damages suffered an actual out-of-pocket loss. No judgment shall be entered until the trier of fact has determined the amount of money, if any, owed to each class member based upon the class member's individual proof. The amount of judgment shall not exceed the sum of money owed to each class member. The judgment shall identify each member of the class and each member's individual monetary award. The judgment in an action maintained as a class action pursuant to subdivision (5) of subsection 3 of this section or subdivision (6) of subsection 3 of this section, whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action pursuant to subdivision (7) of subsection 3 of this section, whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subdivision (2) of this subsection was directed, and who have requested exclusion, and whom the court finds to be members of the class.
(4) When appropriate in a case that otherwise meets the class action requirements of subsection 3 of this section, an action may be brought or maintained as a class action with respect to particular issues, or a class may be divided into subclasses and each subclass treated as a class, and the provisions of this section shall then be construed and applied accordingly.
5. In the conduct of actions to which this section applies, the court may make appropriate orders:
(1) Determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument;
(2) Requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action;
(3) Imposing conditions on the representative parties or on intervenors;
(4) Requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly;
(5) Dealing with similar procedural matters.
6. A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.
7. Upon commencement of any action brought pursuant to subsection 1 of this section, the plaintiff or plaintiffs shall inform the clerk of the court in which such action is brought, on forms to be provided by such clerk, that the action is brought pursuant to this section. The clerk of the court shall forthwith inform the attorney general of the commencement of such action, together with a copy of the complaint or other initial pleading, and, upon entry of any judgment or decree in the action, the clerk shall mail a copy of such judgment or decree to the attorney general.
8. Any permanent injunction, judgment or order of the court made pursuant to section 407.100 shall be prima facie evidence in an action brought pursuant to this section that the respondent used or employed a method, act or practice declared unlawful by section 407.020.
407.026. 1. In any civil action brought under section 407.025, the courts shall be guided by the policies of the Federal Trade Commission and interpretations given by the Federal Trade Commission and the federal courts to Section 5(a)(1) of the Federal Trade Commission Act, 15 U.S.C. Section 45(a)(1), as amended.
2. Section 407.025 shall not apply to actions or transactions otherwise permitted, approved, or regulated by the Federal Trade Commission or any other regulatory body or officer acting under statutory authority of this state or the United States.
490.065. 1. [In any civil action,] The provisions of this section shall apply in all civil actions. The opinion of a witness qualified as an expert under this section may be given on the facts as proved by other witnesses. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing or trial. If such facts or data are of a type reasonably relied upon by experts in a particular field in forming opinions or inferences upon the subject, the facts or data do not have to be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that the probative value in assisting the jury to evaluate the expert's opinion substantially outweighs the prejudicial effect.
2. If scientific, technical or other specialized knowledge will assist the trier of fact in any cause of action to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise[.] if:
(1) The testimony is based upon sufficient facts or data which are or will be admitted into evidence at the hearing or trial;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.
3. Notwithstanding the provisions of subsection 2 of this section or any other provision of law to the contrary, in professional malpractice actions, the opinions of an expert who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert:
(1) Was licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time; and
(2) In the case of a medical malpractice action:
(a) Had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:
a. The active practice of such area of specialty of his or her profession for at least three of the last five years and with sufficient frequency to establish an appropriate level of knowledge, as determined by the court, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; or
b. The teaching of his or her profession for at least three of the last five years as an employed member of the faculty of an educational institution accredited in the teaching of such profession and with sufficient frequency to establish an appropriate level of knowledge, as determined by the court, in teaching others how to perform the procedure, diagnose the condition, or render the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; and
c. Except as provided in paragraph (b) of this subdivision:
(i) Is a member of the same profession;
(ii) Is a medical doctor testifying as to the standard of care of a defendant who is a doctor of osteopathy; or
(iii) Is a doctor of osteopathy testifying as to the standard of care of a defendant who is a medical doctor; and
(b) Notwithstanding any other provision of this section, an expert who is a physician and as a result of having supervised, taught, or instructed nurses, nurse practitioners, certified registered nurse anesthetists, nurse midwives, physician assistants, physical therapists, occupational therapists, or medical support staff during at least three of the last five years immediately preceding the time the act or omission is alleged to have occurred has knowledge of the standard of care of such health care provider under the circumstances at issue shall be competent to testify as to the standard of such health care provider. However, a nurse, nurse practitioner, certified registered nurse anesthetist, nurse midwife, physician assistant, physical therapist, occupational therapist, or medical support staff shall not be competent to testify as to the standard of care of a physician.
[2.] 4. Testimony by such an expert witness in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
[3. The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable.
4.] 5. If a reasonable foundation is laid, an expert may testify in terms of opinion or inference and give the reasons therefor without the use of hypothetical questions, unless the court believes the use of a hypothetical question will make the expert's opinion more understandable or of greater assistance to the jury due to the particular facts of the case.
6. It is the intent of the general assembly that, in all civil cases, the courts of the state of Missouri not be viewed as open to expert evidence that would not be admissible in other states. Therefore, in interpreting and applying this section, the courts of this state may draw from the opinions of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579; General Electric Co. v. Joiner, 522 U.S. 136; Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137; and other cases in federal court applying the standards announced by the United States Supreme Court in such cases.
538.225. 1. In any action against a health care provider for damages for personal injury or death on account of the rendering of or failure to render health care services, the plaintiff or the plaintiff's attorney shall file an affidavit with the court stating that he or she has obtained the written opinion of a legally qualified health care provider which states that the defendant health care provider failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances and that such failure to use such reasonable care directly caused or directly contributed to cause the damages claimed in the petition.
2. As used in this section, the term "legally qualified health care provider" [shall mean a health care provider licensed in this state or any other state in the same profession as the defendant and either actively practicing or within five years of retirement from actively practicing substantially the same specialty as the defendant] means a person qualified to testify as an expert under subsection 3 of section 490.065, RSMo.
3. The affidavit shall state the name, address, and qualifications of such health care providers to offer such opinion.
4. A separate affidavit shall be filed for each defendant named in the petition.
5. Such affidavit shall be filed no later than ninety days after the filing of the petition unless the court, for good cause shown, orders that such time be extended for a period of time not to exceed an additional ninety days.
6. If the plaintiff or his attorney fails to file such affidavit the court shall, upon motion of any party, dismiss the action against such moving party without prejudice.
7. Within one hundred eighty days after the filing of the petition, any defendant may file a motion to have the court examine in camera the aforesaid opinion and if the court determines that the opinion fails to meet the requirements of this section, then the court shall conduct a hearing within thirty days to determine whether there is probable cause to believe that one or more qualified and competent health care providers will testify that the plaintiff was injured due to medical negligence by a defendant. If the court finds that there is no such probable cause, the court shall dismiss the petition and hold the plaintiff responsible for the payment of the defendant's reasonable attorney fees and costs.
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