Legal experts in Missouri are divided on the governor's veto last month of a bill that would have enacted new guidelines for
judges when approving expert witnesses.
Senate Bill 591 would have required the state to adopt
federal guidelines for admissibility of expert witnesses. Those federal
guidelines – commonly referred to as the Daubert standard – are a list of
enumerated rules designed to guide a judge evaluating the admissibility of
an expert witness.
In his veto, Gov. Jay Nixon wrote that Missouri already had
“well-established” criteria to guide judges in admitting expert testimony
and that SB 591 would replace that criteria with a “complicated and costly
“Senate Bill No. 591 would not improve upon this existing model but
rather would abandon our current approach for the purpose of targeting injured
litigants, whether individuals, small businesses or others, by making it more
expensive – and perhaps cost prohibitive – to bring forward their claims,” Nixon
Though 46 states follow either the Daubert or the Frye standard when
assessing admissibility of expert witnesses, Missouri – along with Nevada,
North Dakota and Virginia – have neither.
Missouri follows state statute 490.065. While similar to Daubert, the statute weighs not only the expert’s
knowledge, skill, experience, training and education, but also the expert’s
“reasonably reliable” opinion.
The Frye standard asks judges one question: whether the method used to
obtain evidence is generally accepted by experts in the field.
The Daubert standard is a five-part test. According to the Cornell
University Law School, it asks:
the theory or technique in question can be and has been tested; (2) whether
it has been subjected to peer review and publication; (3) its known or potential
error rate; (4) the existence and maintenance of standards controlling its
operation; and (5) whether it has attracted widespread acceptance within a
relevant scientific community.
Experts in Missouri disagree on the importance of Nixon's veto. Some claim without Daubert, judges hold too much power in
determining the admissibility of an expert witness, leaving too much uncertainty for big businesses which thrive on certainty. These experts say that could be a deterrent for businesses and the jobs they create and deter their interest in that state. Still, others say the statute in place is sufficient and that
Missouri judges already adhere to a strict standard.
Attorney Andrew Blackwell with Capes Sokol in St. Louis said he does
not believe adopting the Daubert standard would have made much of a difference
in the decisions being made.
“I know there’s been people who believe that this is a greater hurdle
than what Missouri already had in place; I don’t personally believe that,”
Blackwell told the Record. “I think Missouri judges
already had to weigh the credibility of experts under the existing statute. I
just think this (would have) provided a little more clarity and direction they have to take
when assessing the reliability and credibility of experts.”
That extra direction, however, could be good for new and developing
methodology in providing evidence. Through Daubert, Blackwell explained,
there’s not one specific factor a judge has to consider.
Blackwell said he’s worked with experts before in court who have
developed new processes and theories that aren’t yet widely used, but could be
tested. Under the Frye standard, they
wouldn’t hold up, he said.
“Those individuals perhaps can be precluded under our existing
statute, whereas here there’s a little more room to find someone who’s a leader
in their field or industry,” Blackwell said. “Someone who’s doing something a
little different, but maybe helpful for you if you’re in a specific type of
case that warrants that.”
A state business leader, however, has a different opinion on the veto, saying the
governor does a disservice to the people of Missouri by sending out a red
flag warning to businesses interested in coming to the state.
“The Governor is ignoring the pleas of the
business community by rejecting the common-sense standard already in effect in
the federal courts and the vast majority of state courts,” said Brian Bunten, general counsel and director of Legislative Affairs with the Missouri Chamber
of Commerce and Industry. “Our
members are simply asking for uniformity of the standard an expert witness must
meet in order to be allowed to testify as an expert in our courtrooms and
The Daubert standard is employed by 39 states; Frye by eight. The lack
of federal regulation in terms of expert witnesses doesn’t make Missouri the
most welcoming state, according to Bunten.
“Our lack of the Daubert standard is explicitly
cited as a reason why Missouri lags behind the rest of the nation when it comes
to a fair business climate in our courts,” Bunten said. “These distinctions are
nothing to be proud of and Missouri’s economy continues to suffer until we
enact bold legal reforms.”
Statements like those, Blackwell believes, are hyperbolic.
“There’s this belief that by adopting this language it will make it
harder to qualify an expert. And I think I’ve kind of said, I don’t think
that’s necessarily true,” Blackwell said.
The Missouri Chamber of Commerce and Industry resolves to continue the
fight to make the state a more attractive place to do business. According to
Bunten, vetoing Daubert only emboldens their cause.
“We are certainly disappointed in Governor
Nixon’s veto, but it’s par-for-the-course for the Governor,” Bunten said.”Nixon has done the bidding of the plaintiff’s bar — his
campaign’s most prolific contributors – his entire 30 year career. It
has left a profoundly negative mark on Missouri’s business image.”
Gov. Jay Nixon vetoed Senate Bill 591 June 28. The bill was passed by
the house April 27 and passed on to Gov. Nixon May 25.