Missouri’s Legislature is deciding whether to change its current standard governing the admissibility of expert witness testimony to the Daubert standard. The bill to make this change has passed the Senate and is now being considered by the House. Proponents of the bill argue that it is time Missouri adopted the same standard followed by federal courts and approximately 40 other states. This change is supported by many of the pro-business associations in Missouri: the National Federation of Independent Business, the Missouri Chamber of Commerce, the Associated Industries of Missouri, Missouri Organization of Defense Lawyers, Missouri Prosecuting Attorneys Association, Missouri Petroleum Council, MSCPA, and Missouri Retailers Association. The Missouri Association of Trial Attorneys, state court judges and labor have voiced opposition to the change.

The proposed legislation comes on the heels of a U.S. Chamber of Commerce report ranking Missouri’s judicial system as 42^nd out of 50, and the American Tort Reform Association ranking Missouri’s judicial system the fourth worst “judicial hellhole,” based primarily on its failure to adopt the Daubert standard. Some Missouri legislators hope to change the climate for companies that do business in Missouri.

Most states follow either the Daubert standard or the Frye standard. Missouri is unique in that it follows neither of these tests. Instead, the standard for admissibility is governed by statute enacted in 1989 (Mo. Rev. Stat. Section 490.065.1) and specifically endorsed by the Missouri Supreme Court in 2003 in civil cases. See State Board of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146, 155 (Mo. 2003) (en banc). Missouri’s standard requires the following:

• The judge must determine that scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence, or determine a fact in issue.
• The witness must be qualified as an expert by knowledge, skill, experience, training or education.
• The facts or data in a particular case upon which the expert bases an opinion or inference must be of a type reasonably relied upon by experts in the field, and must otherwise be reasonably reliable.

It is a flexible standard that focuses primarily on an expert’s credentials and less on his or her methodologies. It has been described as a hybrid of Frye and Daubert principles. The Frye standard simply requires general acceptance by the scientific community of the methodologies used by the expert, while the Daubert standard requires the judge to serve as a gatekeeper to make an initial determination as to whether the expert is qualified, and whether the methodologies relied upon are sound. The Missouri standard has elements of both of these tests.

Proponents of the bill argue that it will reduce the costs associated with frivolous litigation and result in quicker resolution of claims because judges will determine whether a claim survives at an earlier stage in the proceeding. Opponents of the bill argue that it will have just the opposite effect—that it will increase costs and result in delays because judges will be required to hold a preliminary hearing to determine the admissibility of expert testimony, adding another lengthy proceeding to the litigation. Opponents also argue that state court judges have fewer resources than federal judges, increasing the potential for further backlog in resolution of cases.

Regardless of whether the application of the Daubert standard would result in delay or cost, defendants perceive this change as an effort to level the playing field, with the added benefit of promoting consistency across the country and perhaps more predictability as to whether the expert is qualified to offer the proffered opinions. Many companies face similar litigation in several states, and the same experts generally appear in those cases. If one court has examined an expert’s credentials and methodologies under the Daubert standard, it could provide some predictability as to the outcome in other states. This may result in reduced forum shopping and consistent rulings on the admissibility of expert testimony.

The Missouri Legislature’ s current session ends on May 13, 2016. If the legislation passes both houses, the Governor could veto the bill and the Legislature would consider any veto in September.