MISSOURI REPUBLICANS’ PUSH TO LIMIT LAWSUITS COULD HAVE UNEXPECTED BENEFICIARIES: THEMSELVES

Compliments of Missouri Association of Trial Attorneys 2/14/2017

By Kevin McDermott St. Louis Post-Dispatch

Missouri State Sen. Gary Romine, sponsor of a bill that seeks to make it harder to sue businesses for racial discrimination, says the measure will improve “Missouri’s legal climate.”

It also could improve Romine’s personal legal climate, making it less likely that his “rent-to-own” furniture business will face any more racial discrimination lawsuits like the one it has been embroiled in for almost two years.

Romine, R-Farmington, isn’t the only lawmaker in Jefferson City who is trying to change the law to protect businesses from lawsuits in ways that could theoretically protect his own bottom line as well.

Another Republican senator, who is a veterinarian, is sponsoring legislation to put new limits on malpractice suits against veterinarians. And the Senate’s top Republican is trying to change a state consumer-protection law that is currently being used to sue one of his biggest campaign contributors.

The proposals are in keeping with the promise Missouri Republicans have been making for years: to rein in what they allege is an out-of-control civil litigation system that hurts the state’s business landscape. With the new Republican control of virtually every lever of state government that went into effect last month, it was a foregone conclusion that bills of this type would start moving through the Legislature.

Still, the pace of it has surprised even statehouse veterans.

“This has been one of the most ambitious agendas we’ve ever seen to limit access to the courts,” said Sen. Scott Sifton, D-Affton. Like many other Democrats, he argues that such limits can infringe on the rights of injured plaintiffs who have legitimate complaints against businesses.

And the appearance of conflict of interest in at least some of the bills is “absolutely concerning,” says Jay Benson, president of the Missouri Association of Trial Attorneys, a group that frequently donates to and supports Democrats.

“This is all being presented with the suggestion that our tort system is bad for business. It’s not bad for business; it’s bad for bad business,” said Benson, who calls the proliferation of such bills “an epidemic.” “The civil justice system is designed to hold people accountable when they do bad things.”

Republicans and pro-business groups counter that what they call frivolous lawsuits create costs not just to individual defendants but to Missouri’s entire business climate.

“My office has already received an exceptionally good response from members of the business community” to the bill putting new restrictions on lawsuits alleging discrimination by businesses, Romine wrote in an online column recently. “It …will go a long way toward reforming Missouri’s legal climate and improving our ability to grow existing businesses and attract new employers.”

Lawmakers — particularly in part-time, term-limited systems like Missouri’s — are expected to bring their private-sector experience and perspective to their lawmaking. There is no one more qualified to write agricultural laws than a farmer, goes the thinking, or to write medical laws than a doctor, and so forth.

“I’m the person pursuing the legislation because I have first-hand experience with the situation,” Romine said in an interview Saturday.  As for concerns that such legislation looks like self-dealing, Romine noted, “I have 33 other senators who have to consider it.”

But others say when a business owner writes laws addressing conflicts between business owners and their employees; it inevitably raises the question of whether the employees are getting fair representation.

“This kind of legislation just adds to the perception that legislators are benefiting themselves and using government to do it,” said Dave Robertson, political scientist at the University of Missouri-St. Louis. “It’s fair to be concerned about the tort system, but the very specific benefits connected to the individual lawmakers really add the perception of corruption.”

‘Do not rent to’

Romine owns the Show-Me Rent-to-Own chain of furniture stores in southeast Missouri. A Scott County lawsuit, filed in 2015 and still pending according to records, alleges that a supervisor at the chain’s Sikeston store routinely used racial epithets against a black account manager.

The account manager’s suit claims the supervisor also circled an African-American neighborhood on a wall map in the store with the notation “Do not rent to” written on it. The suit further claims that the account manager’s complaints about the supervisor went up the chain to Romine, but that he declined to take any action. (A defense filing in the suit denies that and all the other allegations.)

The account manager was later fired, on what the suit alleges was “the pre-textual reason” of using profanity. “White employees routinely use profanity in Defendant’s workplace and are not disciplined,” alleges the suit. It specifically claims that “Plaintiff’s race was a contributing factor” to the account manager’s termination.

That last line is crucial because court precedent in Missouri says a fired employee can invoke the state’s anti-discrimination laws if discrimination was a “contributing factor” in the firing, even if it wasn’t the only factor.

That’s one thing that Romine’s legislation, Senate Bill 43, would specifically change: to win a discrimination case, the plaintiff would have to show that discrimination was the primary cause of his firing, and not just a “contributing factor.”

It would also make it more difficult for plaintiffs to appeal their complaints into the civil court system if the Missouri Commission on Human Rights finds for the employer.

In his recent column, Romine notes his “frustrating” experiences with the current discrimination law. “On three different occasions, I have had to go before the (Missouri Commission on Human Rights) as a business owner. In each instance, they determined the employee’s case had no merit,” he wrote.

But in each case, he added, the plaintiff was allowed to sue in the court system, “which opened the case up all over again.”

“In its current form, this system encourages individuals to pursue a meritless case simply to force a settlement, costing our small businesses time and money they do not have,” Romine wrote. In an interview Saturday, Romine said the Scott County case is “a prime example of what needs to get fixed” in the system.

Aiding a contributor?

Sen. Dan Brown, R-Rolla, who has practiced veterinary medicine for more than 40 years, wants to place a two-year statute of limitations on malpractice or negligence actions against veterinarians.

His legislation, Senate Bill 88, would add vets like himself to the list of providers subject to the statute, including doctors, optometrists and other providers who treat human subjects.

Brown, who has practiced veterinary medicine for more than 40 years, wants to place a two-year statute of limitations on malpractice or negligence actions against veterinarians.

His legislation, Senate Bill 88, would add vets like himself to the list of providers subject to the statute, including doctors, optometrists and other providers who treat human subjects.

Brown acknowledged last week that to have a veterinarian carrying this particular bill “looks terribly self-serving,” but said his profession has been shortchanged in lawmaking because of the rarity of having veterinarians in public office.

The bill would change the statute of limitations for filing a malpractice suit against a veterinarian to two years from the current seven years — a common-sense change, Brown argued, given the limited lifespans of most animals. “If I treat a dog that’s eight years old, and they’re going out to seven years (with the statute of limitations for filing a malpractice suit), most dogs aren’t going to live that long.”

Still, he said, he’s hoping an identical bill in the House — sponsored by a non-veterinarian — will work out instead of his. “I think it’s wise to let someone else” carry it, he said. “I truly am not trying to do anything nefarious here.”

Last week, Senate President Pro Tem Ron Richard had to field questions about whether his legislation to put new limits on use of the state’s consumer-protection law is designed to help out one of his largest campaign contributors: the Humphreys family of Joplin, which has given Richard almost $300,000.

David Humphreys is CEO of TAMKO Building Products Inc., which is facing a class-action lawsuit over allegedly defective roofing shingles it sold. The company is being sued under Missouri’s Merchandising Practices Act, the consumer-protection law that Richard seeks to change with his bill.

Richard’s legislation, Senate Bill 5, would, among other things, impose new requirements on people joining class-action lawsuits of the kind being pursued against TAMKO.

Critics, including the Missouri Association of Trial Attorneys, say the measure would effectively prohibit consumer-protection class-action suits under the statute. Richard told reporters last week that “sounds like a great idea,” but denied his bill has anything to do with protecting the Humphreys business from future litigation.

Kurt Erickson and Stephen Deere of the Post-Dispatch contributed to this report.