Justice and Jobs — Missouri Courts Need a Higher Standard


By Lisa Rickard

There are places in this world where one wants, and expects, adherence to the highest standards. From hospitals to restaurant kitchens, from banks to our children’s schools – we have the highest expectations of these institutions.

Let us add to that list, the courtroom. In the place where justice is supposed to be served, we set the bar high.

Unfortunately, when it comes to the standards for scientific studies, data, and expert testimony allowed in a court trial, the Show Me State is one of the weakest in the nation.

Lisa Rickard

Lisa Rickard is the president of the U.S. Chamber Institute for Legal Reform

But Missouri has a chance to change all of this. This year, the legislature passed Senate Bill 591, a measure that would require Missouri courts to adopt a higher expert evidence standard known as Daubert.

The Daubert standard is the law in forty other states and U.S. federal courts. It measures scientific expertise on common-sense factors, such as: Is the evidence being admitted in court relevant to the facts of the case at hand? Are the conclusions of a scientific study seen as reliable by scientists other than those who conducted the study? And, were the study’s findings reached using broadly accepted scientific methods?

We’ve all seen the headlines of supposedly scientific studies that turned out to be less than accurate. The controversy over whether vaccinations cause autism in children, for example, started after a single research paper was published in a British medical journal. That research, later proven to be false, was paid for by plaintiffs’ lawyers wanting to sue vaccine makers.

Recently, a St. Louis jury heard a “star witness” testify on the link between talcum powder and ovarian cancer.

Only one problem: there has never been a scientifically proven link between talc and cancer – ovarian or otherwise. The American Cancer Society has looked but found no definitive link. Two years ago, the Food and Drug Administration denied a petition to put a warning label on talcum powder because of a lack of evidence.

A connection between talc and ovarian cancer is, even in its most forward-leaning interpretation, merely a hypothesis.

But Missouri’s low standard allowed the expert to testify. The jury was persuaded. And health products company Johnson & Johnson paid $55 million to a woman claiming their product caused her ovarian cancer.

This verdict is the second against J&J this year over talc and cancer. And the star witness in both cases? The very same scientific “expert.”

But in the broader scientific community, there is doubt. And with doubt, there can be no sense of justice. And without a confidence in justice, Missouri is not a good place to do business.

This is why, in a national survey of some of the nation’s largest employers, Missouri’s judicial system ranked 42nd out of 50. Specifically on the issue of scientific and technical evidence, respondents ranked Missouri 43rd in the country.

In this survey, employers said they are less likely to build facilities or create jobs in states with weaker lawsuit systems, like Missouri.

Missourians themselves get it. In a different survey – of Missouri voters – conducted by Public Opinion Strategies last fall, 79 percent said the number of lawsuits in Missouri is a serious problem; 66 percent said Missouri’s lawsuit system benefits plaintiffs’ lawyers most, while only six percent said the system helps victims.

Changing Missouri’s standard of scientific evidence isn’t just good for civil justice, but wrongful criminal convictions as well, where innocent people are put in jail based on shoddy evidence.

For Governor Nixon, improving Missouri’s courts should be a simple decision. Instead, he has said he will veto the bill. Why?

We know that the governor is under tremendous pressure from the Missouri plaintiffs’ bar. They’ve lobbied hard against this bill, because heightened expert standards mean some of their high-dollar cases that hinge on questionable evidence may no longer reap a huge payout.

Governor Nixon should set politics aside and do what is right for Missouri. For both justice and jobs, Missouri needs a higher expert evidence standard.

To learn more, visit www.instituteforlegalreform.com.

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