By Ketajh Brown and Jen Dlugosz on April 13, 2018

The stage is set for a heated showdown between GOP leaders and bipartisan critics over implementation of HB 1645. If adopted by the Senate, the bill would alter several provisions related to a plaintiff’s ability to bring asbestos tort claims. The main contention sparked by HB 1645 requires plaintiff-side attorneys to identify and file claims against all potentially liable defendants or bankruptcy trusts at the onset of lawsuits alleging injury from asbestos exposure. The idea behind this segment of the bill is twofold: (1) to embed built-in transparency preconditions allowing asbestos claim resolution with minimal delay; and (2) thwart the practice of “double-dipping” by granting injured plaintiffs compensation from one defendant at a time—before pursuing claims against additional defendants. As an added benefit to defendants, the bill currently includes provisions expressing that trust applications “may be sufficient” for jury findings which deduce that products for which the trusts were established constituted a “substantial contributing factor” in causing alleged injuries; and also, that trust claim materials may be used to prove alternative causation for alleged injuries. These provisions suggest that trust materials can be used to off-set liability by viable defendants without any additional burden of causation.

The lines of demarcation are clearly drawn. On one side stands the bill’s proponents, led by Rep. Bruce DeGroot, who argue that historically asbestos litigation in Missouri has been blemished by mass exploitation, which in turn diminishes availability of trust fund capital for future claimants. DeGroot explains HB 1645 “is designed to keep [Missouri] from being called the ‘sue-me state’ instead of the Show-me State[.]”  On the other side stand the bill’s bipartisan critics who contend the proposed reform adds additional roadblocks, effectively hampering victims of asbestos related illnesses—such as firefighters, laborers, and military veterans—by demanding identification of every source of possible asbestos exposure in initial filings.  Moreover, critics believe added measures would prolong the adjudicative process by placing claimants with declining health in a position where death may arrive well before the opportunity to confront defendants in court.

If HB 1645 becomes law, Missouri would be the thirteenth state to increase transparency in the somewhat murky and convoluted world of asbestos litigation. However, the bill’s adversaries question its true intent: whether HB 1645 is being pushed to protect Missouri’s corporate base from distribution of just damages to aggrieved victims; or whether the bill’s enactment is fueled by a notion of “fair litigation,” which would ensure trust companies are aware of, and are able to, unimpededly defend against multiple exposure allegations under equitable circumstances.

HB 1645, along with HB 1512 (changes to the Uniform Arbitration Act) and HB 1531 (modification to interpleading in civil proceedings) are components of contemporary tort reform. Experts surmise HB 1645 has a 50/50 chance of going the distance and converting into law due to developing agenda being promoted by an overwhelmingly Republican majority General Assembly.  Based on sheer numbers alone, both house Republicans have the votes to pass the bill in the Senate, nevertheless, the tactical warfare of filibuster could be a cause for concern.

The current session of the General Assembly ends mid-May, leaving approximately seven weeks left for negotiations. On April 4, HB 1645 was voted out of committee in the Senate; next, it will be placed on the calendar by the Senate Floor Leader and then presented to the Senate for a final show of hands.  In short, the process mimics the all too familiar cycle of life—some proposed legislation will survive at the expense of others that will parish. Either way, the struggle for control of procedures governing asbestos litigation in Missouri is well and alive in the political streets of Jefferson City. Only time will tell whether Missouri’s true mantra will be the “Sue-me State” or the “Show-me State.”