The Most Frivolous Legislation I’ve Seen in Six Years

In a courtroom, baseless claims are called frivolous. In the legislature, it’s a weekly occurrence. In six years, I’ve seen a lot of polished horse manure, but nothing tops the expert witness bill currently working its way through the General Assembly.

For two years, proponents of changing Missouri’s standards on expert witness testimony have made two claims. First, they say Missouri courts have a “junk science” problem. Second, they argue we should move to the federal standard called Daubert, which they claim is stricter than current law.

The first claim – “junk science” – has no basis in fact. This being the Show-Me State, skeptical legislators have asked for real-world examples. In two years, the proponents have yet to identify a single case where changing the standard would have made any difference.

The second claim – that federal courts have a stricter standard – is demonstrably false. But don’t just take my word for it – go to the primary source documents. The leading case in Missouri on expert witness standards is Healing Arts v. McDonough, where Missouri’s Supreme Court explicitly ruled that our state standard is stricter than Daubert.

Next, read Johnson v. Mead Johnson, the most recent case from the federal appeals court over Missouri federal courts. This case was decided by a conservative panel of judges that included Missouri’s own Judge Duane Benton.[2]  The conservative panel described Daubert as having “greatly liberalized what had been … strict standards for admission of expert scientific testimony.” Under Daubert, the conservative panel explained that judges (1) must “resolve doubts about the usefulness of expert testimony in favor of admissibility,” (2) must allow expert testimony if it “advances the [jury’s] understanding to any degree,” and (3) may only exclude expert testimony “if it is so fundamentally unsupported that it can offer no assistance to the jury.”

Moreover, judges are “not to weigh or assess the correctness of competing expert opinions.” Instead, expert testimony “should be tested by the adversary process with competing expert testimony and cross-examination, rather than excluded by the court at the outset.”

What do you call a claim with no basis in fact or law? Most of the time, we call it frivolous.

If you’ve listened to the proponents and then read the Mead Johnson case, you’d think they were talking about the federal standards as being too liberal. So what gives?

The truth is that expert witness standards bill is not about standards at all. The proponents’ real goal is to provide insurance companies and others with a right to frivolous litigation. Despite the liberalized standard, some courts interpreting Daubert have ruled that it requires an additional evidentiary hearing. In essence, there are two trials: the first to the judge, and the second to the jury.

If insurance companies can convince a few Missouri judges to adopt the same logic about holding an additional hearing, then the lawyers representing alleged wrongdoers will benefit because it will allow them to bury middle-class Missourians who have been harmed with paperwork and additional costs before they can present their claim to a jury of their peers.

In addition, adoption of the federal rule would swamp Missouri courts. Federal judges can handle Daubert hearings because they have fewer cases, more serious cases, and more resources. They employ legal clerks to help with research and drafting opinions. State judges have more cases and no clerks. In fact, for efficiency, prevailing parties often provide the first draft of judicial orders.

Daubert hearings will make it more expensive for all Missourians to resolve their disputes because it will be more difficult to get a trial date. Will proponents pay for the increased resources judges will need for these hearings?

Despite the costs, cases would be rare where expert testimony is excluded. As Benton and his conservative colleagues explained, judges must resolve any doubts in favor of allowing jurors to hear the evidence. This is a fundamentally conservative philosophy. In our country, the “people” make determinations of fact in most trials, not government officials. Our Founders upended the traditional relationship between government and citizens, and they enshrined the right to trial by jury in the Constitution because they had seen the King use colonial courts to further his special interests.

I understand some would prefer that the constitutional right to trial by jury not exist. These special interests and their legislative defenders seek to drive up costs and enact roadblocks before you can exercise this constitutional right. However, the Constitution isn’t some cheap Chinese buffet. I wouldn’t vote to erode your First or Second Amendment rights. Nor will I vote to whittle away your Sixth or Seventh Amendment rights.

Proponents of this legislation want to turn Missouri’s judges from umpires to activists. But Missouri’s judges don’t want to be forced to go along for the ride. The next time you hear someone say this bill has little opposition, ask them to name a single active judge who supports it. In fact, the two statewide associations of judges that takes positions on bills both oppose this change because they see it exactly for what it is.

The courtroom has always been the place in American government where the average citizen could stand on close to equal footing with the government and the powerful. While insurance companies and other powerful interests can influence the legislature and the executive branch in ways that ordinary citizens cannot, they stand on equal ground once a case is submitted to a jury. Insurance lobbyists don’t get to enter the jury room. This bill won’t quite let insurance lobbyists into the jury room. However, it will let them abuse our court system to make it prohibitively expensive for middle class Missourians to take modest meritorious claims to that same jury room.

There’s nothing conservative about passing legislation to increase frivolous litigation. Nor is there anything conservative about attempting to turn judges from umpires to activists. The next time you hear someone claim Missouri courts have a “junk science” problem, ask them to name an actual case where their bill would make a difference. They won’t have an answer. Their silence should tell you all you need to know.

[1] The other judges on the panel were Judge Lavenski Smith, another Bush appointee, and Judge Clarence Beam, a Reagan appointee.