JEFFERSON CITY, Mo. — A proposal to change the standard of proof in Missouri for punitive damage lawsuits drew opposition from trial attorneys in a state legislative committee hearing Tuesday morning, but it had support from some business and health care groups.
Sen. Bill White, R-Joplin, filed the bill requiring plaintiffs to prove the defendant intentionally harmed them.
The bill also would give the state sovereign immunity from punitive judgments.
The Senate Government Reform Committee heard testimony on the bill, which White said has been a priority of his for several years.
Testimony was about evenly split, with business and health care groups as supporters and trial attorneys as the main opposition.
Two types of damages can be assessed in a civil lawsuit. The main one is compensatory, which is meant to make plaintiffs whole for their loss. Punitive damages are meant to punish defendants.
In Missouri, half of all punitive damage awards are put into the state’s Tort Victims Compensation Fund, which pays out to plaintiffs who win judgments in a lawsuit but aren’t paid the full amount.
White said more Missouri attorneys have been filing for punitive damages, using it as leverage in their push for compensatory damages because punitive damages are often not covered by insurance.
White’s bill would keep plaintiffs from filing for punitive damages at the beginning of a case. The court would only allow victims to file if it decides there is enough evidence to meet the standards for a punitive damage award — that a jury could find "clear and convincing evidence" it’s warranted. White previously told the Globe his bill would put into state statutes a standard that is already being used in case law.
Dana Freese, counsel for Healthcare Services Group, which provides insurance to hospitals and doctors, said punitive damage filings pit a hospital against its insurance provider in medical malpractice lawsuits. Lawyers file them as a form of intimidation, he testified.
Since 2014, 94 punitive damage lawsuits have been filed in Missouri for medical malpractice cases, which White said shows seeking the damages is a widespread practice. The effect is increased insurance rates, which are passed on to Missourians in the form of higher health care costs, Freese said.
Brett Emison, president of the Missouri Association of Trial Attorneys, said the law could stop legitimate attempts to seek punitive damages. He cited a lawsuit against a Hy-Vee in St. Joseph that gave a woman the wrong prescription, leading to her death.
The employee at fault was a florist who had recently been promoted to pharmacy technician without proper training. The technician didn’t intend to kill the woman and didn't act with deliberate disregard for her safety, Emison said, arguing that the death was the result of systemic failures within the company that set the technician up to fail.
The way White’s bill is written, Emison said, a plaintiff couldn't sue the technician or the chain. The technician would have had to have killed the woman intentionally, he argued — and that would be a criminal issue rather than a civil issue.
Emison also criticized a portion of While's bill that wouldn’t allow a court to impose punitive damages against employers for the actions of an employee unless they knew about and authorized the action or knew the employee wasn’t fit to do the job.
“We would have to find an email or memo instructing that employee to do that, or a memo or something after the fact ratifying the conduct, and that’s just not going to happen,” Emison said.
White said that the Hy-Vee case would qualify for punitive damages under his bill. By having someone do a job without training, Hy-Vee knew the employee wasn’t fit for it, he said. He said the company also endorsed the technician's actions by allowing that person to do the job, satisfying at least two of the four requirements for punitive damages.
White also said he has worked with the trial attorneys on the issue before and that he’ll continue to work with them if they have specific proposals to change the bill.
White also proposed granting the state sovereign immunity against punitive damages at Gov. Mike Parson’s request. That language might be split off into another bill and added back if it passes a committee on its own, White said. Eliminating punitive damages against the state could reduce costs to its legal expense fund by up to $2.38 million in its first year and $2.86 million in subsequent years, according to the Committee on Legislative Research.
Over the past five years, the state has paid nearly $11.5 million in punitive damages out of its legal expense funds in 10 judgments — ranging from $1,000 for prison guards performing unreasonable strip searches on an inmate in Potosi to $3.5 million for a racial discrimination lawsuit brought by a white professor who was fired from the historically black Harris Stowe State University.
Lawsuits against the Missouri Department of Corrections and its employees account for half of those judgments, amounting to $2.12 million in punitive damages, including two judgments from 2018 that cost the state $1 million each.