April 3, 2017

Last week, Missouri joined the United States federal courts, as well as the majority of other state courts, in adopting a heightened standard for the admissibility of expert opinions commonly known as the “Daubert standard.”  The Daubert standard comes from the landmark Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and is generally considered to increase the reliability of expert witness testimony by requiring the trial court serve as the gatekeeper of evidence and opinions provided by expert witnesses.

Aligning with Daubert, the new Missouri standard requires that in order for an expert to testify, the Court must find (1) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) The testimony is based on sufficient facts or data; (c) The testimony is the product of reliable principles and methods; and, (d) The expert has reliably applied the principles and methods to the facts of the case.  § 490.065, RSMo (2017). The first element of the test is nothing new for Missouri cases.  The other three, analyzed together, are what could create a change in the type, and quality, of lawsuits permitted to proceed in Missouri.

Under the old standard, which had been the law in Missouri since before the Supreme Court issued the Daubert opinion, “the facts or data in a particular case… must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable.” § 490.065, RSMo (amended 2017).  Expert testimony provided under this standard was sometimes criticized and argued to be “junk science.”  Supporters of the change, who are often businesses that feel  unfairly targeted by lawsuits , argued the now-repealed Missouri rule had been setting the bar too low and allowing questionable cases to proceed with the support of dubious expert opinions. Those opposed to the new heightened standard, often the plaintiffs who carry the burden of proof in a case, argue a change will merely cause undue delay and increase court costs.  

By repealing the older version of Section 490.065, Missouri Governor Eric Greitens hoped to improve the state’s civil justice system and business climate through tort reform.  For the first time in eight years, Republicans control both the executive and legislative branch, and it is expected that they will put forth many other changes and initiatives with the same objectives.  Whether the new standard for the admissibility of expert witness testimony will make a measurable impact is yet to be seen.  Neighboring Illinois, parts of which are haunted by a similar reputation as “judicial hellholes,” has yet to adopt Daubert.  Instead, it utilizes the Frye test, which only requires that the scientific technique on which an opinion is based  be generally accepted as reliable in the relevant scientific community. Frye v. United States293 F. 1013 (D.C. Cir. 1923); ll. R. Evid. 702.


For more information, contact Mandy Williams in Foley & Mansfield’s St. Louis office at 314.925.5701 or mwilliams@foleymansfield.com.


Mandy Williams