By Mark A. Behrens, co-chair of Shook, Hardy & Bacon L.L.P.’s Washington, D.C.-based Public Policy Group, and Jennifer J. Artman, a Partner in the firm’s Kansas City, MO office. Mr. Behrens is a member of WLF’s Legal Policy Advisory Board. Both attorneys testified for the American Tort Reform Association in support of the legislation during the multi-year effort toward enactment.

The Missouri legislature has passed sweeping changes to the state’s punitive damages law and its consumer protection statute, the Missouri Merchandising Practices Act (“MMPA”). Governor Mike Parson is expected to sign the legislation, S.B. 591. The new law will apply to all cases filed on or after August 28, 2020. The changes add to other recent reforms passed by the legislature that have improved the legal climate in a state that has consistently been positioned near the bottom of businesses’ rankings of state legal systems in recent years.

Burden of proof and heightened standard for punitive damages defined

Concern about punitive damages that “run wild” has existed in Missouri since the state’s supreme court struck down a cap on such damages in 2014 for tort actions that existed at common law. See Lewellen v. Franklin, 441 S.W.3d 136 (Mo. banc 2014). The legislature enacted the cap after years of state court decisions had diluted the standard for punitive damages and created untenable unpredictability for defendants. Courts had blurred the line between ordinary negligence and the type of conduct that should be required for punitive damages.

The new law codifies a clear standard of liability for punitive damages. Punitive damages will now be limited to egregious cases where a “defendant intentionally harmed the plaintiff without just cause or acted with a deliberate and flagrant disregard for the safety of others.” The standard returns punitive damages to their intentional tort roots. See Klingman v. Holmes, 54 Mo. 304, 308 (1873) (exemplary damages “where an evil intent has manifested itself”). A separate but similar standard is provided for personal injury claims against healthcare providers.

The new law also codifies the “clear and convincing evidence” burden of proof standard for punitive damages that has been applied by Missouri courts. This standard reflects the quasi-criminal nature of punitive damages by taking a middle ground between the ordinary civil standard (“preponderance of the evidence”) and the criminal law standard (“beyond a reasonable doubt”).