Expert witnesses and the rules that govern admittance of their testimony in Missouri state courts is making mainstream news via legislative watchdogs. On April 27, the Missouri legislature passed a bill on to Governor Jay Nixon for his consideration. Here are 10 things you need to know about the expert witness rules, and potential changes, in Missouri.
- Missouri is one of ten US states that currently does not evaluate expert witness testimony under the federally accepted (of 20+ years ago) Daubert Standard.
- According to the American Tort Reform Foundation and their beloved “Judicial Hellholes 2015-2016” list, the top four states with the worst judicial climates were Florida, New York Asbestos Litigation, California, and Missouri. One of the considerations of a state’s judicial climate was a state’s admissibility standard for expert witness testimony.
- Missouri courts currently permit expert witness testimony so long as it is “reasonably relied upon by experts in the field,” which follows the guidance of the general acceptance test aka the Fyre Standard (or Fyre Test). This is a test to determine the admissibility of scientific evidence. The Fyre Test provides that expert opinion based on a scientific technique is admissible only where the technique is generally accepted as reliable in the relevant scientific community. Under the Frye standard, courts, “in admitting expert testimony deduced from a well-recognized scientific principle or discovery,” must ensure that “the thing from which the deduction is made [is] sufficiently established to have gained general acceptance in the particular field in which it belongs.”
- Under the bill, SB 591, Missouri would adopt the same standards required in federal courts and about 40 other states, known as the Daubert Standard, which ensures that only evidence proven to be based on “sufficient facts” and “reliable principles and methods” can be admitted as expert testimony.
- In courts already operating under the Daubert Standard, judges operate as a gatekeeper to expert witness testimony and may consider:
- Whether the theory or technique can, or has been, tested;
- Whether the theory or technique has been subjected to peer review and publication;
- The known or potential rate of error for a particular scientific technique; and
- Whether the theory or technique is generally accepted in the relevant scientific community.
(Note that these are considerations that the court may consider. In the Daubert case, the court specifically chose the word may to emphasize that the standard is a “flexible one.”)
- Divorce, adoption, and other cases in juvenile and family court would not be subject to these rule changes; however, the adoption of this bill in Missouri would also bar expert witnesses in criminal cases from attributing a defendant’s actions to his or her mental state.
- Missouri House members approved the measure by a very narrow margin of three votes needed to pass the bill: 85-68.
- Proponents of the bill included the Missouri state prosecutors association, business organizations, insurance organizations, and others. Representative Kevin Corlew (R-Kansas City) sponsored the bill and said it would help ensure that a jury can rely on people presented as experts. Corlew argued: “That the jury can rely upon the expert evidence that’s being presented to them, that it’s trustworthy, reliable.”
- Opponents of the bill included the Missouri circuit judges association, among others, and Representative Mike Colona (D-St. Louis), who said it would drive up the cost of qualifying an expert witness, thereby making it more expensive for injured parties to filed lawsuits. Colona noted: “Insurance companies save money and your constituents lose their rights in court. Also insurance companies can make more money.”
- The bill now moves on to Missouri Governor Jay Nixon whereby he can sign the bill into law, veto it, or let it become law without taking action. If he vetoes it, the House and Senate cannot override the Governor’s vote, as their approval numbers did not meet the requirements for overriding the Governor’s action.