On July 10, 2019, Missouri Governor Michael Parson signed significant pieces of legislation that confirmed his emphasis on tort reform in Missouri. The Governor previously highlighted tort reform in his State of the State address in January 2019. In that address, Parson referenced the need for increased regulatory and venue reform in the Show-Me State. The legislation signed in this month’s slate achieved the goals outlined in that speech and more. The relevant bills will significantly impact litigation and trial practice in Missouri’s courts via considerations to venue, joinder, and discovery issues. Additionally, the legislation changes the long-time approach towards seat belt use and how facts regarding non-use may be used at trial.
Senate Bill 7’s changes restrict the ability of plaintiffs with no connection to Missouri from bringing mass and class action suits to the state. First, it modifies provisions of the Missouri Rules of Civil Procedure regarding joinder and venue by amending Mo. Rev. Stat. §507.040 to disallow joinder of “claims arising out of separate purchases of the same product or service, or separate incidents involving the same product or services….” In those cases, even if there are questions of law or fact common to all the claims in the action that could arise during the course of the litigation, joinder would still be precluded. If a party is improperly joined, they can be removed or severed from the action at any time either by the Court itself or upon a motion filed by any party per Mo. Rev. Stat. §507.050.
Furthermore, Senate Bill 7 changed two venue laws in Missouri to make it more difficult for plaintiffs to file in an inappropriate venue in Missouri. Mo. Rev. Stat. §508.010.15 now provides that if a claim is filed in an improper venue, the plaintiff must be transferred to a county venue where venue can be established or, if no such venue exists, the claim is to be dismissed without prejudice. Erroneous venue transfer denials must also be reversed without any need for a finding of prejudice as otherwise required under Mo. R. Civ. P. 84.13(b) (“…[n]o appellate court shall reverse any judgment unless it finds that error was committed by the trial court…”) per changes to Mo. Rev Stat. §508.010.16. Mo. Rev. Stat. §508.012 was also changed, providing an additional opportunity for a party to challenge venue upon application to the court. This application can happen if a party is added to the litigation or a party is removed, but now can also happen if a party is severed. If the parties in the new configuration would have caused a different venue determination under §508.010, the court must transfer the case to the proper venue as long as the application is made prior to trial.
The new law blocks the ability of filing parties to join multiple, sometimes hundreds, of plaintiffs to lawsuits when those same plaintiffs would not have otherwise been able to file suit in that venue. Missouri was often the home to mass tort claims wherein just a few plaintiffs may be residents of the venue in which the case was filed, with far more plaintiffs not residing in that venue or even outside Missouri. This process of plaintiffs who could not independently maintain a case in a particular venue without joining a party who could maintain venue is precluded under the new legislation. Parson commented that the bill would improve the business climate for Missouri, including “bringing fairness to our courts.” The provisions of Senate Bill 7 as they relate to joinder issues are applicable to cases filed after February 13, 2019. For actions pending as of that date, a plaintiff whose claim has been found to have no Missouri county in which venue exists may proceed in a Missouri venue where the claim was dismissed without prejudice if the court finds that the claim was filed within the statute of limitations applicable to the claim, has no proper venue in Missouri, and cannot otherwise be maintained–as of August 28, 2019–in any other state where the claim may be brought because of applicable statutes of limitations and lack of a savings statute or similar law.
Senate Bill 224 makes significant changes to various Rules of Civil Procedure relating to discovery. The prevailing theme of these changes—specifically applicable to scope of discovery, quantities of discovery, the discoverability of electronically stored information (also known as “ESI”), and the ability to recall materials previously produced that should have been considered work product or privileged information—bring the Missouri rules more in line with the Federal Rules of Civil Procedures as generally found in Fed. R. Civ. P. 26(b)(1). While Mo. R. Civ. P. 56.01(b)(1) will retain its general definition of relevance (“…[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party…”), it will also now implement a “proportionality” framework for evaluation of the necessary scope of discovery using six factors. Those factors include the importance of issues at stake, the amount in controversy, the parties’ access to relevant information, the parties’ resources, the importance of the requested discovery to the resolution of the issues in the case, and the burden and expense compared to the benefit of the proposed discovery. Mo. R. Civ. P. 56.01(b)(2) is also revised regarding court-imposed discovery limitations and will now direct the applicable court to look at proposed discovery and determine if it is cumulative or duplicative, or could be found in a less expensive or more convenient source. The court will also review if the party seeking the discovery has had the opportunity to obtain the information from other discovery that has either already happened or is in process, and whether or not the proposed discovery is within the scope now permitted by the revised Rule 56.01(b)(1). If the court determines any of these circumstances are applicable, it must impose limits on discovery either on its own initiative or upon motion by a party.
The new rules also limit the quantity of discovery allowed. Senate Bill 224 implements presumptive caps as to the amount of interrogatories (including subparts) and requests for admission that can be issued to a party to 25 apiece, with an exception for requests for admission that seek confirmation of the genuineness of documents. These changes are in Mo. R. Civ. P. 57.01(a) and are a significant change from its former form, which previously had no such limitations. The changes also limit the number of depositions that can be taken in the case absent leave of court or stipulation by the parties; where there was no such previous restriction, the most significant change to the new Mo. R. Civ. P. 57.03(a) now generally allows only 10 depositions by a party. The duration of depositions is also now definitively limited, allowing only one day of 7 hours, absent leave of court or stipulation by the parties. The new Mo. R. Civ. P. 57.03(b)(5), which now contains that limitation, provides that upon request for leave for longer time, the court should consider the new framework of Rule 56.01 and whether or not there has been some other delay or impediment to the deposition(s); sanctions are imposable if a party creates that delay or impedes the deposition.
Senate Bill 224 also addresses ESI and changes regarding its discoverability. In the new Mo. R. Civ. P. 56.01(b)(3), a party is not required to produce ESI from sources that the party identifies as not reasonably accessible because of cost considerations or undue burden; however, if the requesting party can show good cause, the court can order discovery from those sources anyway. The new Mo. R. Civ. P. 58.01(b)(1)(c) allows a party to specifically request that any ESI that is produced be done so in its “native format,” and ESI is now expressly included in the kinds of documents to be discoverable in Mo. R. Civ. P. 56.01(a). Lastly, the bill implements a new procedure for instances where documents or information may have been inadvertently or otherwise produced when they should have been withheld and/or identified as subject to the attorney-client or work product privileges. The new Mo. R. Civ. P. 56.01(b)(9) specifically provides that such production does not waive the applicable privileges; instead, the party who produced the information must notify the receiving party and the basis for its request. The rule also places an affirmative duty on the receiver of information who has reasonable cause to believe that they should not have received it, requiring them to refrain from reading the information and promptly notify the producing attorney and return, delete, or otherwise reasonably make inaccessible the information and/or documents.
These changes to the Rules of Civil Procedure will undoubtedly change the landscape of civil discovery practice. Attorneys can breathe easier in the event privileged information is mistakenly produced. Parties must now more carefully consider the most important issues to cover within the precious limitations on number, scope, and duration now afforded to them for both written discovery and depositions. In all, the changes are designed to bring more efficiency to the discovery process and will be welcomed by parties that see them as cost- and time-saving tools. The changes will go into effect on August 28, 2019.
Finally, while not technically a discovery or venue-oriented change to the Missouri trial practice landscape, Senate Bill 30’s changes are nevertheless significant in cases filed involving automobile-related injuries. Missouri will now allow evidence of a party’s failure to wear a seatbelt to be introduced and used in cases dealing with the design, construction, manufacture, distribution, or sale of a motor vehicle. Specifically, Mo. Rev. Stat. §307.178.4 will allow a party to introduce evidence of a plaintiff’s failure to wear a properly adjusted and fastened safety belt to show comparative negligence, injury and damages causation, the absence of defect in an alleged vehicle or component, and for failure to mitigate damages. The statute’s previous limitation of plaintiff’s recovery reduction by just 1%, in instances where a party has introduced expert evidence proving that failure to wear a safety belt contributed to cause plaintiff’s injuries, remains unchanged. The changes have an effective date of January 1, 2020.