When an Outdated Design Finally Needs to be Put to Bed:
The Government’s “State of the Art” Defense in Road Design Cases

IV. Strategies for Addressing the “State of the Art” Defense
F. Binding Arbitration

One overarching issue that counsel for plaintiff must keep in mind while drafting a discovery plan to overcome the “state of the art” defense is that the case may be decided by a panel of three arbiters and not a jury.61 Missouri Statute 226.09 gives a plaintiff suing MHTC for negligent design the ability to force MHTC into binding arbitration.62 Arbitration is a logical choice for all parties involved because it avoids the costs of a lengthy trial. Avoiding a lengthy trial is also beneficial in light of the cap on damages based on sovereign immunity.63 However, the choice of arbitration will also limit the amount of evidence that will be presented and the use of live witnesses. The fate of the case will be placed in the hands of three arbiters, which will be comprised of retired judges and lawyers from both the plaintiff and defense bar. Counsel for plaintiff should prepare the case as if it were going to trial, but counsel should also keep an eye towards the arbitration. For instance, while deposing an engineer from MHTC, counsel for plaintiff should remember that it may very well be the last time he will see that witness, and he should attempt to get all the testimony he would need to overcome the “state of the art” defense at that time.

61 226.095, RSMo. 
62 Id.; see also Murray v. MHTC, 37 S.W.3d 228 (Mo. banc 2001) (holding mandatory arbitration under 226.095 is constitutional). 
63 537.610(2), RSMo.


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V. Legislative Solution

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