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The City of St. Louis, Missouri

The City of St. Louis Circuit Court is notorious for allowing blatant forum shopping and awarding excessive punitive damage awards. The court also fails to ensure that cases are guided by sound science.

In 2020, the Missouri Legislature took great strides toward addressing lawsuit abuse that has plagued the “Show-Me-Your-Lawsuit” state for years.A recent study released by The Perryman Group estimates that excessive tort costs to the Missouri economy result in $2.0 billion in annual direct costs and $3.1 billion in annual output (gross product). Ultimately, this costs the state an estimated 32,205 jobs.

While the enactment of several reforms is encouraging for Missouri’s future, the success is contingent on the St. Louis court’s proper application of the new statutes. Some St. Louis judges have a history of ignoring both state law and U.S. Supreme Court precedent regarding expert evidence standards, personal jurisdiction and venue, and damage awards.

ST. LOUIS IS THE PREMIER JURISDICTION FOR PLAINTIFFS' BAR

Personal injury lawyers flock to St. Louis to file their lawsuits to take advantage of the plaintiff-friendly judges. These “out-of-state” plaintiffs clog the city’s courts, drain court resources, and drive businesses out of the state leading to job loss.

MISSOURI HIGH COURT ALLOWS OUTRAGEOUS ST. LOUIS TALC VERDICT TO STAND

St. Louis is home to the largest talc verdict to date. In July 2018, a City of St. Louis jury awarded $550 million in actual damages and $4.14 billion in punitive damages to a group of 22 plaintiffs. The women claimed that their ovarian cancer was caused by exposure to asbestos allegedly found in Johnson & Johnson’s baby powder. Of the 22 women involved in the lawsuit, 17 had no connection to Missouri. Each was awarded the same amount of money, despite there being different facts for each, and differences in relevant law. After a six-week trial, jurors deliberated for less than a full day before reaching this astounding result.

In June 2020, an appellate court upheld the verdict but reduced the damages award from $4.69 billion to $2.12 billion – $500 million in actual damages and $1.62 billion in punitive damages.

In a very disappointing order in November 2020, the Missouri Supreme Court refused to review the verdict. ATRA had urged the state’s high court to review the case and (1) limit the exercise of personal jurisdiction where the defendant and many plaintiffs have little to no connection to the forum state, (2) not allow the joinder of claims whose only commonality is alleging injury by the same product, and (3) address the constitutionality of the massive punitive damages award. The punitive damages award exceeds the level permissible under the guideposts set out by the United States Supreme Court. Johnson & Johnson plans to petition the high court for review.

JUNK SCIENCE IN THE COURTROOMS

Despite the legislature enacting expert evidence reform in 2017, St. Louis judges have allowed junk science to be heard in their courtrooms. Plaintiffs’ experts, whose testimony has been determined to not be based in science by other state courts, have been permitted to testify in St. Louis courts.

TALC LITIGATION

Expert testimony plays a crucial role in talc cases. Plaintiffs’ “experts” tell jurors that talcum powder causes ovarian cancer, even though the American Cancer Society has found that research regarding this link is “mixed” and potentially “biased,” and that if there is an increased risk, the risk “is likely to be very small.”

Nevertheless, defendants’ pleas to have those so-called experts excluded from St. Louis trials have largely fallen on deaf ears.

ROUNDUP LITIGATION

St. Louis, along with fellow Judicial Hellhole California, is home to tens of thousands of lawsuits against Bayer AG involving Roundup® weedkiller. Facing mounting lawsuits generated by a barrage of lawsuit advertising, the cost and risk of trials, and harm to its business, in June 2020, Bayer proposed an $11 billion settlement to resolve about 75 percent of the 125,000 Roundup cases nationwide. Not surprisingly, plaintiffs’ lawyers will walk away with about one third of each individual plaintiff’s settlement in contingency fees, or about $3-4 billion.

Although the settlement is proceeding in the Northern District of California, much of the litigation is located in St. Louis. James Onder, a plaintiff’s attorney in St. Louis, opted to keep his 24,000 cases out of the settlement after finding the settlement offer “insultingly low.”

St. Louis Roundup trials have been delayed due to the settlement discussions; however, all one has to do is examine the trials in California to understand the plaintiffs’ lawyers’ playbook. The foundation of the litigation is a “junk science” report by the International Agency for Research on Cancer (IARC) that classified glyphosate, the active ingredient in the herbicide Roundup®, as “probably carcinogenic.” IARC is a specialized cancer agency of the World Health Organization, known to be outmoded, heavily politicized, and sub-standard in the quality of its science. The IARC report was the basis for a San Francisco jury to enter a jury award of more than $289 million against Monsanto. IARC’s classification is in stark contrast to more than 800 scientific studies as well as analyses by the U.S. Environmental Protection Agency, Health Canada, and the National Institutes of Health.

SIGNIFICANT REFORMS PASSED BY LEGISLATURE

The Missouri legislature took great strides toward addressing lawsuit abuse during the 2020 legislative session, following progress in adopting laws intended to prevent unreliable expert testimony and reduce litigation tourism. It remains to be seen whether these reforms will move the state off of the Judicial Hellholes list once and for all, but the ATRF remains hopeful and will keep a close eye on the state.

MISSOURI MERCHANDISING PRACTICES ACT (MMPA)

Lawyers have long abused the state’s consumer law, the Missouri Merchandising Practices Act (MMPA). They generate shakedown class action lawsuits alleging that product labels, advertisements, or other business practices are misleading where no reasonable consumer has been misled or lost money. They take advantage of a 2016 Missouri Court of Appeals decision that subjects companies to lengthy and expensive litigation, even for the most ridiculous of claims. The statute has become overstretched and expanded well beyond the intent of the drafters.

The MMPA is a popular vehicle for lawsuits because it provides for attorney’s fees and punitive damages. This incentivizes the trial bar to include an MMPA claim when filing personal injury and other lawsuits. This poses a real threat, particularly for small businesses, because punitive damages are not covered by insurance policies. Businesses faced with MMPA claims often settle given the unwillingness of Missouri courts to dismiss meritless cases, the cost of lengthy litigation, and the liability exposure if the case goes to trial.

In July 2020, Governor Mike Parson (R) signed S.B. 591 into law to help curb the significant lawsuit abuse occurring under the MMPA. Under this legislation, judges may dismiss a claim when no reasonable consumer would be misled by the advertising, labeling, or other practice challenged in the lawsuit, and there are defined requirements for class action proceedings. The legislation also clarifies that plaintiffs must establish that they have experienced a loss and its amount through objective evidence, including in class action litigation. The reform also should prevent plaintiffs’ lawyers from misusing MMPA claims in personal injury lawsuits.

PUNITIVE DAMAGES REFORM

Missouri courts also have a history of awarding unwarranted and excessive punitive damage awards. S.B. 591 addresses this abusive practice. The legislation provides that juries may award punitive damages when there is clear and convincing evidence that a defendant intentionally harmed a plaintiff or acted with a deliberate and flagrant disregard for the safety of others. It also specifies when punitive damages may be awarded against an entity for the acts of an agent, and lays out a process to determine that the burden of proof and standard of liability for punitive damages have been met.