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ARTICLES:

In 2005 Missouri passed a major “tort reform” law, HB 393. Here’s a little bit about that law and its effect on employment law.

HB 393 was not a major overhaul of employment law, so I didn’t bother to write about it. But thanks to some notes I’ve received from readers of this website, I came to realize that people are more interested in this topic than I expected. So here goes …

First, here’s a link to the actual law that got passed: Missouri Tort Reform Law HB 393.

Please keep in mind that HB 393 is a catch-all tort reform bill that took a pretty comprehensive look at the Missouri legal system and changed everything that could reasonably be changed, in order to make it harder for Plaintiffs to win big victories. And just in case a Plaintiff wins a big victory, the law reduces the damage award in accordance with damage caps.

The changes were designed mostly to reduce big victories and settlements in tort cases like medical malpractice and negligence cases. HB 393 is full of “technical” changes that can have a big effect on cases. There are substantive changes as well.

The run of the mill small personal injury or employment case will probably not be materially affected by the reforms, except the Venue changes (see below). In the rare case that involves a chance for huge punitive damages, the reforms strip those chances away and limit your ability to get big punitives.

Big Tort and Medical Malpractice cases will be pretty substantially affected by all these changes. I’m not going to cover the nitpicky details in this article. I’m not going to address the Medical Malpractice Reforms at all.

I’m going to introduce you, the layman, to some of the changes, in a summary overview-type fashion. You can then read the law for yourself and be able to make more sense out of the legislative language.

Alright, if you clicked the link and read the law, I expect your eyes glazed over. Here’s a summary of some of the bigger stuff from the tort reform law.

For employment law, the main changes will only affect cases where the lawsuit contains, as one of the “Counts”, an alleged violation of Missouri law.

Many employment lawsuits contain both Federal and State law violations as separate “Counts” , and are heard in Federal Court. HB 393 can only affect the Missouri Counts, not the Federal Counts. Some of the technical court procedural changes in HB 393 cannot apply in Federal Court, but the damage caps will apply to the Missouri Counts.

For those cases brought solely under Missouri law, in Missouri’s state courts, then the full weight of the Tort Reform will apply.

Summary of some of the big tort reforms in HB 393

DAMAGES

The Bill limits punitive damages to the GREATER OF: 1) Five hundred thousand dollars; or (2) Five times the “net amount of the judgment” awarded to the plaintiff against the defendant [this means net amount of non-punitive damages, such as loss of income, pain and suffering, etc].

There are a couple of rare occasions when the punitive damage limits don’t apply. The great majority of cases will be unaffected by the damage caps, because the cases just don’t have the facts to support huge punitive damage awards.

Hmmm. If the great majority of cases are smaller then the caps, then why the caps? Politics, mostly. The rare huge verdict becomes news, and then the media and the politicans scream about runaway juries and evil trial lawyers – At some point those politicans have to take “action” to back up their screaming. In Missouri, the “action” consists of HB 393.

More about damages: Gotta comment on how Missouri’s legislators and lobbyists and business interests protected the value of THEIR children as opposed to the value of YOUR children

Look at the value of a dead child established in RSMo 537.090. The value of a dead child is directly tied to the parents’ annual income. The tort reform law changes RSMO 537.090 to add “If the deceased is under the age of eighteen, there shall be a rebuttable presumption that the annual pecuniary losses suffered by reason of the death shall be calculated based on the annual income of the deceased’s parents, provided that if the deceased has only one parent earning income, then the calculation shall be based on such income, but if the deceased had two parents earning income, then the calculation shall be based on the average of the two incomes.”

By the way, the term “rebuttable presumption” in the above context means that the court starts the analysis of the child’s value at the level that is “presumed”. The value can be adjusted based on evidence.

UnDemocratic effect of the provision about valuing a dead child: Naturally, the dead children of legislators and lobbyists and the wealthy business interests that pushed for the Tort Reform law will be assumed to have high value, because such people tend to earn high incomes. The children of the common folk are assumed to be worth must less. Wouldn’t it have been nice for Democracy and fairness if the value of all wrongfully-killed Missouri children had been “rebuttably presumed” to be an equal set annual amount? Name the amount, and apply it equally to all wrongfully killed children, such as $100,000 indexed to inflation, as a rebuttable presumption that can be increased with evidence that “this child” was an especially high achiever?

Evidence of Defendant’s wealth

It’s harder now to acquire and use evidence of your Defendant’s wealth. It’s still possible, but it’s harder in technical ways important to big cases. I won’t go into the details. The theory in the reform movement is that the richer the jury thinks the Defendant is, the more likely the jury will award higher damages. Therefore, if you limit evidence of net worth, you limit the damage award.

Venue

The legislators wanted to prevent Plaintiffs from being able to file lawsuits in jurisdictions that are reputed to be especially friendly to injury cases.

While it’s true that some areas of the state tend to contain people who, when they sit on a jury, are more likely to be Plaintiff-friendly than in other areas, it’s also true that there are areas (most of the state in fact, I think) where people are hostile to Plaintiffs. This Bill was designed to make it much more likely that personal injury cases will be tried in a less Plaintiff-friendly area.

In truth, the Venue changes were designed primarily to try to limit the ability of Plaintiffs to sue in St. Louis City.

Appeal bonds, joint and several liability, evidence, pre-judgment interest, etc

Without going into boring detail, please keep in mind that HB 393 is a catch-all tort reform bill. Being designed to make it easier on Defendants, it’s now cheaper for some Defendants to appeal their cases (in huge cases). It’s harder to get evidence of malpractice. It’s harder to get interest on the damages awarded. It’s harder to hold multiple Defendant’s equally liable (so that if one Defendant can’t pay its damage award, the co-defendants might not be liable for the other’s share of the damages).

Conclusion: For most employment cases, the tort reforms will not change much

In most employment cases, venue isn’t much in dispute, punitive damage awards are not in excess of the caps (if there’s any punitives at all), you don’t have huge issues with joint and several liability, and the type of evidence you require is not much affected by the major reforms

And so, try not to worry too much about the tort reform law for employment cases. It’s pretty much business as usual for the great majority of employment cases.


***** END OF ARTICLE *****

Timslaw.com Missouri Employment Law

Maintained by Attorney Phil Willoughby
Founded by Tim Willoughby, Esq. (1959-2013)

Phil is a Missouri employment lawyer who is licensed to practice in Kansas and Missouri, and primarily takes cases in Saint Louis and Kansas City. He is a member of the Missouri Bar Association and Kansas Bar Association. Additionally, he has practiced in the United States Federal Courts of Missouri in St. Louis and Kansas City. He has also practiced in the Kansas Federal District Court in Kansas City, Kansas.

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