Missouri ‘expert witness’ debate watched closely by health products, pharma industries

Governor Jay Nixon (D-MO)
Governor Jay Nixon (D-MO)

This fall, legislators in Missouri will decide whether or not to attempt to overrule Governor Jay Nixon’s veto of legislation adopting stricter expert witness standards — and that battle could have direct repercussions on the health products and pharmaceutical industries.

State Rep. Rebecca Roeber (R-34), in her July 23 Capitol Report, said the bill would “improve the reliability of expert evidence presented to juries in Missouri state courts.” 

“The bill would implement an established standard for determining when expert-witness testimony is admissible as evidence at trial,” wrote Roeber. “The proposed standard, commonly referred to as the Daubert standard after a 1993 U.S. Supreme Court case, is used in federal courts and more than two-thirds of the states. Under this standard, the trial judge acts as a gatekeeper to ensure that ‘expert’ testimony is based on ‘sufficient facts or data’ and is the product of ‘reliable principles and methods.’” 

In a May 20 op-ed in the St. Louis Post-Dispatch, U.S. Chamber Institute for Legal Reform President Lisa A. Rickard wrote of the impact that this debate could have on the health products industry.

Rickard wrote of a case earlier this year in which a “star witness” testified on the link between talcum powder and ovarian cancer in a case against pharmaceutical company Johnson & Johnson. 

“Only one problem: There has never been a scientifically proven link between talc and cancer — ovarian or otherwise,” wrote Rickard. “But Missouri’s low standard allowed the expert to testify. The jury was persuaded. And health products company Johnson & Johnson paid $55 million to a woman claiming its product caused her ovarian cancer.”

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 procedure.”

The governor’s veto was sharply criticized by the Missouri Chamber of Commerce.

“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,” Brian Bunten, general counsel and director of Legislative Affairs with the Missouri Chamber of Commerce and Industry, told the Madison-St. Clair Record. “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 federal courtrooms.”

Will the state legislature override Governor Nixon’s veto?

One thing’s for sure: In the wake of the large jury verdict against Johnson & Johnson, the health products and pharmaceutical industries will closely be watching the debate this fall.

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Organizations in this story

Johnson & Johnson 325 Paramount Dr Raynham, MA - 02767-5199

U.S. Chamber Institute for Legal Reform (ILR) 1615 H St NW Washington, DC - 20062