By Theresa Mullineaux on December 4, 2017
In March 2017, Missouri Governor Eric Greitens signed House Bill 153, which amended Mo. Rev. Stat. § 490.065, and effectively adopted Daubert standards for Missouri cases, effective in August 2017. As a result, Missouri now follows similar standards to those applied in Federal courts and the majority of other state courts for expert evidence.[1] HB 153 establishes a four factor standard:
- The expert’s scientific, technical, or specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
- The testimony is based on sufficient facts or data;
- The testimony is the product of reliable principles and methods; and
- The expert has reliably applied the principles and methods to the facts of the case.
What does this mean in product cases?
Expert opinion plays a critical role in product liability litigation on issues relating to design defects, failure to warn and related matters. Henceforth Missouri judges must act as gatekeepers by more rigorously policing the relevance and admissibility of expert opinion in product cases, assessing the data relied on and the methodology used to determine its basis in science and its reliability.
Under the new standards, experts may base their opinions on facts or data in the case that the expert has been made aware of or personally observed. As in Federal practice, if experts in the field reasonably rely on facts or data in forming an opinion on the subject matter, the facts or data relied on need not be admissible in evidence for the opinion to be received. If the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose the facts or data to the trier of fact only if the probative value of the facts or data would help the jury in evaluating the expert’s opinion substantially outweighs their prejudicial effect. An expert may state an opinion and give the rationale for the opinion before testifying to the underlying facts or data. When it comes to objections under Daubert, an expert opinion is not objectionable simply because it embraces an ultimate issue. The expert may be required to disclose those facts or data on cross-examination.
The statutory adoption of Daubert standards should help to reduce the incidence of unreliable junk science in Missouri courts and allowing only reliable, well-tested science to be considered by Missouri juries. Expert opinion should only be admitted if it will help the trier of fact. While HB 153 did not change the qualifications necessary to be an expert, experts can now only testify if the expert’s theory aligns with the facts of the case. This means that experts can only testify about theories relating to what the plaintiff was exposed to—for example, only the products or drugs that the plaintiff used.
Why is this important?
The critical importance of expert opinion in Missouri product litigation is highlighted by the nine figure jury verdicts returned in the Circuit Court of the City of St. Louis in Johnson & Johnson talc cases. The expert opinions relied on by the plaintiffs and admitted in those cases were rejected by a New Jersey court after a nine-day evidentiary hearing. The New Jersey court concluded that the experts were unable to provide a plausible biologic explanation for how talc could cause ovarian cancer, and made no effort to address studies showing that talc inhibits blood vessel growth, which is an anti-cancer property, or to respond to a Food and Drug Administration finding of no “cogent biological mechanism by which talc might lead to ovarian cancer.”[2]
Future Questions
Questions remain about how the new Missouri standards will be applied in products litigation. In particular, how will Missouri appellate courts determine if there was an abuse of discretion in admitting or excluding evidence under them? However, their adoption will align Missouri more closely with practice in Federal courts and in the majority of other states. Similar rigor in examining scientific opinion will surely improve the quality of product liability litigation in Missouri.
[1] Missouri is the 40th state to adopt Daubert standards.
[2] Brandi Carl v. Johnson & Johnson, et al. and Diana Balderrama v. Johnson & Johnson, et al., Superior Court of New Jersey, Law Division: Atlantic County, Civil Action No.: 300 (MCL), Talc-Based Powder Litigation, Order entered September 2, 2016 (currently on appeal).