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Brett Emison
Brett Emison
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Missouri Governor Vetoes Tort Reform Bills

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7th Amendment

The 7th Amendment to the United States Constitution provides for the right of citizens to have their disputes tried to a jury of their peers.  Under the Missouri Constitution, “the right to trial by jury as heretofore enjoyed shall remain inviolate“.

Inviolate.  That is not a word used very often in today’s language.  “Inviolate” means “free from violation, injury, or outrage” and, alternatively, as “not infringed.”

And yet, our constitutional right to jury trial is under attack nearly constantly in legislatures across the country.  Yesterday, Governor Jay Nixon vetoed two attempts to violate, injure, and infringe upon Missourian’s right to jury trial.

SB 847 – Collateral Source Rule

medical-billSB 847 would give a negligent defendant a discount on paying damages based on insurance or benefits purchased or obtained by the injured victim.  This bill would have taken the insurance paid for by the victim and given those benefits to the defendant.


When an injured victim receives medical treatment, she is seen by the doctor and is then invoiced for the full value of her medical care (the provider’s customary charges).  If the victim has purchased and paid for medical insurance, her insurer has negotiated a special, discounted rate for her medical care (as a benefit of having purchased insurance) and the doctor’s customary charge is “written down” to the negotiated rate between the doctor and the health care insurance company. (Think about the difference in out-of-pocket costs for treatment by an “in-network” provider versus an “out-of-network” provider.  The insurance company has negotiated special rates with the in-network provider as a benefit from your premium dollar.)

Many readers will be familiar with this process through Explanation of Benefits letters received from your health care insurance company.  And therein lies the rub with SB 847 – that EOB letter.

The EOB letter sets forth the doctor’s customary charges.  That’s the large number you see on the EOB.  It’s the number you would be charged if you paid in cash (or received “out-of-network” care) without the benefit of your health insurance negotiating a discounted rate in exchange for your premium dollars.

SB 847 would give the negligent defendant the benefit of the injured victim’s health care insurance.

Let that sink in for a moment.

The defendant never purchased this insurance.  The defendant never paid a penny of the insurance premiums.  Even if the injured victim paid tens of thousands of dollars for this insurance over many, many years – the defendant never reimburses the injured victim for the cost of those premiums.

The negligent defendant gets the benefit of the victim’s insurance without ever having contributed a penny to the cost.

The unfair effect of this is easily shown by a simple example:

Victims A and B are injured in a car crash by Defendant D (who ran a red light).  Victims A and B suffer identical injuries (say a broken leg).  Victim A has health insurance, but Victim B does not.  The customary charges for treatment are the same for each (say $1500).  However, Victim A’s insurance company has used her premium dollars to negotiate a discounted rate for her treatment and her bill is “written down” to $500.

Under SB 847, Defendant owes Victim B $1500, but only owes Victim A $500 … for the exact same injury.  Victim A did the right thing and purchased health care insurance, but is being punished by having to give the negligent driver her broke her leg the benefit of the insurance that Victim A paid for.

While Senate Bill No. 847 would be unfair to all injured individuals, it would be particularly unjust to those injured people who had the foresight and means to acquire insurance.  It is those individuals with insurance who would have the value of their medical care or treatment most significantly reduced by contract or otherwise….  As a result, this legislation would irrationally punish individuals with insurance and would do so to the benefit of the wrongdoer….

Senate Substitute No. 2 for Senate Bill 847 is misguided public policy designed to benefit a wrongdoer at the expense of their victim and will not receive my approval.

– Governor Jeremiah W (Jay) Nixon, Veto Letter

Governor Nixon was correct to veto this bill.

SB 591 – Expert Witness Standard

Expert WitnessAttempting to craft a solution in need of a problem, the Missouri legislature passed SB 591, a bill ceding Missouri’s 10th Amendment right to govern itself by disposing of Missouri’s statute on the admissibility of expert testimony and replacing it with a standard adopted by the federal courts.

Supporters of SB 591 tasked to identify an instance where a trial court admitted expert testimony under current law that would have been excluded under SB 591 could not identify a single one.  Yet, this bill would forsake Missouri’s authority to craft its own rules of evidence in favor of rules mandated by the federal government.

Missouri’s expert witness statute has the benefit of being simple to articulate while preserving the court’s role as gatekeeper in keeping out irrelevant or unsupported evidence.  Section 490.065 sets forth Missouri’s standard for admitting expert testimony:

1. In any civil action, if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.


3. The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field forming opinions or inferences upon the subject and must otherwise be reliable.

Under Missouri law, there are several levels at which the Court must act as gatekeeper to prevent the admission of irrelevant or unsupported evidence:

  • Expert testimony must be based on scientific, technical or other specialized knowledge
  • Expert testimony must assist the jury to understand facts in issue
  • Expert testimony must be based on facts or data reasonably relied on by others in the expert’s field
  • Expert testimony must otherwise be reliable.

Not only would SB 591 not cure any problem, it would dramatically increase the expense and time in getting a case to trial.  This additional time and expense would affect not just the parties, but also the courts, which is why Missouri trial judges opposed this legislation.

The new requirements contained in Senate Bill No. 591 would needlessly strain judicial resources, require trial judges to conduct unnecessary hearings and become quasi-experts on complex subjects, and, in many cases, would impose a substantial financial burden on litigants.  The current, long-standing procedure governing the admissibility of expert testimony has served our state court system well.  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.

– Governor Jeremiah W (Jay) Nixon, Veto Letter

Governor Nixon also noted the proposed change in expert standard was a targeted attack on injured victims as Missouri’s current standard would remain for probate, juvenile, and family court cases.

Missouri’s constitution provides that “the right to trial by jury as heretofore enjoyed shall remain inviolate.”  The 10th Amendment to the United States Constitution protects states’ rights by reserving to the states powers not delegated to the federal government.  Please give Governor Nixon your thanks in standing up for the constitution and for protecting these fundamental liberties.

© Copyright 2016 Brett A. Emison

Follow @BrettEmison on Twitter.

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