News & Events
| On February 28, 2017, Angela Higgins testified before the Missouri House Committee on Insurance Policy in support of House Bill 784, to repeal Missouri's equitable garnishment statute, Mo. Rev. Stat. 379.200.
| Angela Higgins' commentary on the significance of the U.S. Supreme Court's June 24 ruling in Mutual Pharmaceutical Co. Inc. v. Bartlett was included in a Law 360 article (Lawyers React To High Court's Generic-Drug Liability Ruling) regarding the significance of the ruling, which prohibits a user of a generic drug from bringing a state-law design defect claim against the manufacturer because the manufacturer cannot change a generic drug's design under federal law. . .
| Angela Higgins has written an article on severance of multiple claims in a complex tort case and removal to federal court, which will be published in the Summer 2010 edition of the ABA Tort and Insurance Practice Section Newsletter.
| At the request of the Product Liability Advisory Council (PLAC), Tom Rice, Angela Higgins and Bryan Mouber prepared and filed with the Missouri Supreme Court an amicus brief on behalf of Ford Motor Company. The primary focus of the amicus brief addressed whether Missouri law on proximate cause allows a plaintiff to argue in a product liability case that she would not have purchased the product in question (five years before her accident) had the manufacturer provided her with "adequate" warnings about the product's safety performance during an accident.
| The firm congratulates Angela Higgins who became a Member of the firm effective January 1, 2010. Angela has been practicing law since 2002, after earning her law degree from the University of Missouri-Kansas City School of Law. . .
BSCR obtained summary judgment in a pharmaceutical product liability case pending in Kansas federal court. Plaintiff filed suit against our clients alleging...
BSCR obtained a favorable appellate ruling affirming summary judgment for our insurer client in an uninsured motorist coverage case. In that case, an employee’s claim against his co-employee was excluded from the liability policy’s coverage.
BSCR obtained summary judgment in a medical device product liability case filed in Tenth Judicial District of Kansas (Johnson County). Plaintiff brought suit against our clients, the entities that designed, manufactured and sold the medical device implanted during plaintiff’s gastric bypass procedure, and...
BSCR obtained an appellate victory in the Missouri Court of Appeals for the Southern District, enforcing plaintiffs’ agreement to settle after they had refused to sign settlement papers. . .
BSCR obtained a jury verdict in favor of our client, Northwest Fertilizer, Inc. after a week-long trial. The case involved a misapplication of an herbicide on corn crops that damaged a portion of plaintiffs' corn crop. Plaintiffs claimed that damage from the herbicide was widespread throughout a substantial portion of the farm while Northwest Fertilizer claimed the damage was isolated and any remaining damage was the result of other causes for which it was not responsible. . .
BSCR obtained summary judgment on behalf of an electric match manufacturer, in three related product liability cases. The cases arose out of a 2005 explosion at a fireworks plant in Crestline, Kansas. . .
| The Missouri Supreme Court has recently issued a preliminary writ of prohibition regarding a City of St. Louis trial court’s refusal to formally sever one of dozens of product liability cases that the court has ordered be separately tried. The preliminary writ may provide hope of a reversal in course on recent jurisprudence related to misjoinder of claims.
| In the wake of Bristol-Myers-Squibb and other game-changing personal jurisdiction decisions from the U.S. Supreme Court and the Missouri courts this year, plaintiffs are chanting “jurisdictional discovery” as if it is a magical incantation to ward off the timely and necessary dismissal of claims improperly filed in the wrong forum. Definitive rulings in BMS, BNSF v. Tyrrell, and Dolan should not permit months of pointless discovery in cases that must, under the law, be dismissed for lack of personal jurisdiction.
| On July 5, 2017, Missouri Governor Greitens signed legislation that substantially reforms insurance bad faith litigation by amending Mo. Rev. Stat. § 537.065, and enacting a new statute, Mo. Rev. Stat. § 537.068. This article addresses the specific changes and their effective dates.
| Although the 2017 session of the Missouri legislature was not geared to comprehensive tort reform, several key bills were passed that will bring significant changes to civil litigation in Missouri. These include changes to the collateral source rule and evidence of discounted medical bills, the adoption of the Daubert standard, and restraints on insurance bad faith claims.
| The Missouri legislature has recently voted to overhaul Mo. Rev. Stat. § 537.065, in legislation that Governor Greitens is expected to sign. Sweeping changes that should significantly reform bad faith litigation are in store.
| A recent Missouri Supreme Court decision is good news for out-of-state defendants, rejecting the theory that appointing a registered agent in the state to accept service of process equated to consent to personal jurisdiction, and explicitly adopting Daimler and Goodyear. The decision probably creates more turmoil than it resolves on the “general jurisdiction” front, however, and does not directly stamp out the multi-plaintiff litigation tourism that is presently bedeviling the state.
| The U.S. Supreme Court has accepted certiorari in Bristol-Myers Squibb Co. v. Superior Court of California, a pharmaceutical product liability case in which some 600 out-of-state plaintiffs sued in a California court, arguing that the defendant had “contacts” with the state even though their individual claims did not arise out of those contacts. Because Missouri’s long-arm personal jurisdiction test...
| A recent order of the U.S. District Court for the District of Kansas may be beneficial to defense practitioners fighting the so-called "reptile theory" of plaintiff’s litigation, frequently aimed at trucking companies, which attempts to put the company on trial rather than litigating the circumstances of a particular accident. A targeted motion to dismiss and strike, focused upon the broad, boilerplate complaints that allege hiring, training, qualification, and supervision practices by the company and alleged violations of the FMCSA and FMSCR, may help to limit the scope of discovery and evidence sought in furtherance of the “reptile theory.”
| The bad faith environment in Missouri is generally hostile to carriers, with marked movement toward plaintiffs in the last ten years. The Missouri Supreme Court has now issued a ruling in Scottsdale Ins. v. Addison Ins. Co., Case No. SC93792 (on transfer from the Western District Court of Appeals) which will have a significant, and generally negative, impact on the landscape of bad faith liability in Missouri.
| Drager is a well-reasoned opinion on preemption issues. The opinion also presents a clearly-articulated analysis of the implications of plaintiffs' claims against generic manufacturers, correctly noting that the essence of these claims is that the manufacturer should exit the market, an argument that the court emphatically rejected.
| The U.S. District Court for the Eastern District of Missouri has recently issued an opinion, relying on Mutual Pharmaceutical Co. Inc. v. Bartlett, that arguably takes us a step closer to the eradication of "alternative design" claims directed at branded drugs.
| Kansas has joined a majority of states in passing the Uniform Interstate Depositions and Discovery Act ("UIDDA"), which is codified at K.S.A. 60-228a. The UIDDA replaces the arcane practices of commissions and letters rogatory with a more straightforward approach to obtaining discovery from third parties in states outside the jurisdiction of the court where your case is pending.
| Asahi and Nicastro provided no clear guidance regarding the scope and application of the "stream of commerce" theory of personal jurisdiction, leaving a conflict of decisions amongst the many different federal and state courts decisions.
| While Bartlett is expressly limited to the generic drug context, it presents a tantalizing glimpse of the Court's potential receptiveness to similar arguments regarding supposed feasible safer alternative design in the context of branded pharmaceuticals.
| A reservation of rights letter informs the insured of the carrier's potential defenses to coverage under the policy. The following is a brief overview of some of the requirements for ROR letters in Kansas.
| Recalls (and manufacturers' unwillingness to issue them) are frequently in the news these days. We are often asked to analyze the effect of a product recall upon claims and liability. It is apparent that a recall (or, perhaps, a refusal to conduct one) tends to lead to increased litigation. But does a recall result in increased liability?
| New Missouri laws taking effect on August 28, 2013 will allow the creation of "rent-a-captive" insurers and revise existing captive insurance laws to be more favorable to captive formation. This marks an aggressive move by Missouri to muscle in on the captive insurance market.
| A reservation of rights letter informs the insured of the carrier's potential defenses to coverage under the policy. The following is a brief overview of some of the requirements for ROR letters in Missouri. As always, please contact a licensed and qualified attorney for recommendations specific to your circumstances. . .
| On April 16, the Missouri Court of Appeals for the Eastern District reinstated a jury verdict against Certain Underwriters at Lloyd's of London for $62.5 million under various excess liability policies issued to Doe Run Resources Corporation ("Doe Run"), a lead mining and smelting company operating in St. Francois County, Missouri, related to environmental remediation efforts by the company.
| The necessity of product identification is one area where there is a scarcity of reported case law, but clear indications that Kansas requires plaintiffs to identify the specific product that caused their alleged harm. No reported Kansas case has ever adopted a "collective liability" theory like enterprise liability, alternate liability, or market share liability.
| Although our blog's primary focus is on recent developments in the law, the issue of whether an "empty chair" defense is available comes up often enough that we believe a brief primer on the issue is worth posting for our readers' general reference. Missouri does not allow a jury to make a finding of the comparative fault of persons or entities that are not defending at trial, including settling defendants.
| Auto liability carriers often field claims by one employee of an insured policyholder against another employee. It has long been a rule in Missouri that one employee is not liable to the other except for intentional conduct or. . .
| This is the fourth and final post in our series about Missouri's equitable garnishment statute. As discussed in our prior posts on this topic, § 379.200 is currently applied in circumstances never intended by the legislature or the early case law, contrary to well-established fundamentals of equity jurisprudence, and with tremendous burdens falling primarily upon auto liability insurers who operate in the state. . .
| Aside from the technical and traditional objections to allowing a proceeding in equity where garnishment at law is appropriate, Missouri's equitable garnishment statute imposes a number of burdens upon insurers and insureds alike. As discussed in our prior posts on this topic, the current state of practice with respect to Missouri's equitable garnishment statute is inconsistent with both the legislative intent and the early history of opinions construing the statute, and today we will explore some of the unnecessary harm that results from more recent jurisprudence. . .
| Equity is a jurisprudential concept brought to America by the English colonists, and traces its roots and defining principles back centuries to the time when the King or Queen of England ruled over the courts at law, and the church administered justice in equity. The fundamental premise of equity is that an equitable remedy will not be available if the plaintiff has a cause of action at law. . .
| Imagine the intrepid archaeologist who reaches through a century's worth of cobwebs to grab a long-sought relic, only to be chased from the temple by a rolling stone ball of doom. You will have some appreciation for the absurdity of Missouri's equitable garnishment action, a curious relic of an era that predates modern insurance law, and which is fraught with peril for insurers. . .