Expert witness bill receives first round approval in Senate

Senate Bill 591, sponsored by Sen. Mike Parson, received first round approval by the Missouri Senate about 7:30 p.m. last evening. The bill would adopt the same standard for evaluating expert witnesses that is used in federal courts and more than 40 states.

Here is the vote on “perfection” of the bill 19-12 with one absent:

YEAS—Senators voting with the AIM position:
Senators Brown, Cunningham, Dixon, Emery, Hegeman, Kehoe, Kraus,
Libla, Munzlinger, Onder, Parson, Richard, Riddle, Sater,
Schaefer, Schatz, Wallingford, Wasson, and Wieland—19

NAYS—Senators
Senators Chappelle-Nadal, Curls, Holsman, Keaveny, Nasheed, Romine, Schaaf,
Schmitt, Schupp, Sifton, Silvey, and Walsh—12

Absent with leave—Senator Pearce—1

During debate, two amendments were added to the bill.

Senate Amendment 1 (Munzlinger) says homeowners can still be experts with regard to their own property. ADOPTED

Senate Amendment 2 (Keaveny) removes probate cases from the expert witness provisions. ADOPTED

Senate Amendment 3 (Keaveny) assesses costs for frivolous expert witness motions. Sen. Rob Schaaf said he will vote for bill with this amendment. Schaaf said Senate staff attorneys had told him the bill would increase costs. He said he believes the bill will increase costs for the “average guy” to get experts to testify. Sen. Parson said he believed judges currently are able to handle frivolous motions and the amendment was not necessary. Sen. Ryan Silvey  said one of the arguments against the bill is that the bill increases costs of litigation, and SA3 would require a person that uses the provisions of the bill as a delay tactic to pay the increased costs that would result. Silvey cited a filibuster on the bill last session by Sen. Eric Schmitt and Sen. Kurt Schaefer that began with a discussion about increased costs for small businesses. Silvey thinks SA 3 helps small businesses by assessing costs against a person making a frivolous lawsuit. Silvey said he believes the ones most likely to use the provisions of the bill as a delay tactic are those with deep pockets. Schaaf and Silvey said if SA 3 were not adopted, they would not vote for bill. Silvey thinks without it the legislature would be helping big businesses against small businesses. Sen. Keaveny says the amendment helps with an argument that is being used against the bill, that a defense lawyer could file sequential Daubert motions (regarding the qualifications of the expert witness) without ever getting to trial and it could be used as a delay tactic. Dixon supports the amendment says there is a basic principle that we are all equal under the law and he looks at this as a “gander” amendment – “what’s good for the goose is good for the gander.”  NOTE: Associated Industries of Missouri and two other business groups drafted a letter to the sponsor of this bill last year stating the bill would NOT increase costs for small businesses as it would only establish the standards that must be used for expert witnesses. The amendment FAILED on a 12-19 vote.

A roll call was requested by Sen. Holsman on perfection of the bill and it was granted.

The bill now faces one final vote in the Senate before moving to the House.