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Keep Reforming Missouri Lawsuit Abuse in 2018

Governance Civil Justice

What comes to mind when you think of St. Louis? The Gateway Arch? The Cardinals? A Budweiser quenching your thirst on a warm day? Unfortunately, in the business and legal communities, the city of St. Louis — and by extension the whole of the Show Me State — have become synonymous with frivolous lawsuits and outrageous verdicts.

In 2017 Harris Interactive surveyed 1,300 corporate litigators and senior executives for the U.S. Chamber of Commerce’s Institute for Legal Reform. Missouri’s overall state liability system ranked 49th out of 50. That translates into lost jobs and economic growth: 85 percent of the executives surveyed said that a state’s litigation climate “is likely to impact their company’s decisions about where to locate or expand.”

Class-action lawyers have grown quite fond of Missouri’s Merchandising Practices Act, which prohibits “deception, fraud, false pretense, false promise, misrepresentation, [or] unfair practice” in “trade or commerce.” Boosted by a 2016 Missouri judicial decision that articulated a sweeping definition of false claims under the act, lawyers have filed class-action lawsuits against the manufacturers of movie-theater and Halloween candy favorites, including Skittles, Reese’s Pieces, Junior Mints and Bit-O-Honey. These lawsuits claim that the candy makers were engaged in “deceptive marketing” because their boxes weren’t filled to the brim with candy — notwithstanding that content weights clearly appeared on packaging.

Owing to favorable juries, lax evidentiary standards and loose venue rules, St. Louis has become ground zero for lawsuits claiming that baby powder causes ovarian cancer — a link broadly rejected by the American Cancer Society and federal Food and Drug Administration. By the summer of 2016, two-thirds of the 2,100 baby-powder-ovarian-cancer lawsuits filed in the U.S. were situated in the City of St. Louis Circuit Court. In 2016 and 2017, St. Louis juries considering these baby powder cases returned four verdicts totaling $307 million against the New Jersey-based Johnson & Johnson on behalf of plaintiffs from Alabama, California, South Dakota and Virginia.

Fortunately, after years of failed political efforts to reform Missouri’s litigation-friendly courts, there is finally some positive momentum. In 2017, Governor Greitens made tort reform a central focus of his first year in office. The legislature passed a law adopting federal evidentiary standards, which should help defendants fend off lawsuits predicated on junk science. Among other salutary reforms was a new rule requiring that jurors be presented with evidence of costs actually incurred by plaintiffs, as opposed to aggregate damages, including those recouped from their insurance providers.

However, much work remains to be done. Missouri’s procedural rules still make it far too easy for lawyers to “join” multiple similar, but factually distinct, cases into single “mega-suits” that involve mostly non-local plaintiffs. For example, in a case filed in St. Louis involving the pharmaceutical drug Lipitor, only one of 91 plaintiffs is from St. Louis. Bills to tighten these procedures were introduced in 2017, and hopefully they can gain traction in the year ahead.

Another 2017 bill would have tightened the Merchandising Practices Act — the progenitor of those “slack fill” candy suits — by requiring a showing of actual injuries in deceptive-practice claims and modifying class-action procedures. Yet another bill introduced but not enacted in 2017 would have required plaintiffs to turn over evidence of claims they have submitted to recover from asbestos trusts when involved in lawsuits, to prevent “double dipping” abuses in which plaintiffs recover from multiple sources for the same injuries.

If Missouri’s leaders get really ambitious, they can seek to amend the state’s system for picking judges, which, unlike the federal system, relies on an Appellate Judicial Commission that bears ultimate authority for picking who wears robes in Missouri courts. The commission is typically stacked with members or allies of the plaintiffs’ bar — including reserved slots for three of seven commission seats.

For far too long, the state of Missouri and the city of St. Louis have been deemed “Judicial Hellholes” by the American Tort Reform Association. The trial bar is sure to continue fighting common-sense reforms, but if state legislators in 2018 can build on last year’s successes, it would go a long way to helping Missouri shed its “Sue Me State” reputation.

This piece originally appeared in the Springfield News-Leaders


James R. Copland is a senior fellow, director of legal policy at the Manhattan Institute, and author of Trial Lawyers, Inc.: Missouri Update.

Rafael A. Mangual is the deputy director for legal policy at the Manhattan Institute.

This piece originally appeared in Springfield News-Leader