News & Events
| Jennifer Maloney has joined the St. Louis office of the law firm of Baker Sterchi Cowden & Rice LLC as a Member. Maloney's practice is focused on civil litigation defense, primarily in the areas of premises liability, product liability, personal injury and transportation.
| Elizabeth "Betsy" Miller joins the firm's Kansas City office as a civil defense litigation associate, with an emphasis in the areas of personal injury, products liability, and class action and multidistrict litigation.
| Baker Sterchi Cowden & Rice LLC, has added Laura K. Beasley to the firm's Belleville, Illinois office. Beasley, who joined the firm as a Member, practices in the areas of civil litigation defense, general liability, class action/mass torts, insurance coverage, personal injury, and product liability
| Baker Sterchi Cowden & Rice is pleased to welcome Kehl Friesen as an attorney in the firm's Kansas City office. Friesen's practice with the firm will focus on civil litigation with an emphasis on ...
| Baker Sterchi Cowden & Rice is pleased to welcome Dylan Murray as an attorney in the firm's Kansas City office. Murray has represented U.S. and international corporate clients in both federal and state courts in a variety of practice areas for more than 20 years, including commercial, tort, product liability, pharmaceutical, medical device, and construction litigation.
| Baker Sterchi Cowden & Rice is pleased to welcome Douglas Hill as an attorney with the firm's Kansas City office. Hill is an experienced litigator, managing a diverse civil defense practice that includes professional negligence, product liability, industrial and job site injuries, and general business litigation. He has extensive experience representing ...
| The April 2018 edition of DRI's monthly magazine "For the Defense" includes an article written by Baker Sterchi Cowden & Rice Member Angela Higgins titled, "A Possible Perfect Storm: The Reanimated Innovator-Liability Theory."
| Baker Sterchi Cowden & Rice is pleased to announce the promotion of John Patterson to Member effective January 1, 2018. Patterson practices in the areas of product liability, employment, construction/fidelity and surety, financial services litigation, premises liability...
| Join attorneys from Baker Sterchi Cowden & Rice's Drug and Medical Device Practice Group, including DRI Drug and Medical Device Steering Committee Member Jeffrey Kruse, at DRI's Annual Drug and Medical Device Seminar being held May 11-12, 2017 at the...
| Join DRI Drug and Medical Device Steering Committee Member, Jeffrey Kruse, and other Baker Sterchi Cowden & Rice attorneys practicing in the firm's Drug and Medical Device Practice Group, at DRI's upcoming Drug and Medical Device Seminar being held May 19-20 at the...
| 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. . .
| BSCR Members Kara Stubbs and Caroline Tinsley's article entitled "A New Argument Against Preemption Under Mensing: The Different Manufacturers Exception" was published in the May 2013 issue of the International Association of Defense Counsel's Drug, Device and Biotechnology Committee Newsletter.
| Kara Stubbs has been selected to serve as the Co-Chair of the Medical Device Subcommittee of the ABA's Section of Litigation, Products Liability Committee. The Section of Litigation is the largest specialty section of the American Bar Association.
| Baker Sterchi Cowden & Rice was a law firm sponsor of the ABA Current Issues in Pharmaceutical and Medical Device Litigation meeting held at Boston Scientific in Natick, Massachusetts on November 16, 2012. Co-sponsored by
| BSCR attorney Kara Stubbs will be moderating a panel at Medmarc's Annual Meeting in June. Stubbs' panel will address practical issues related to the discovery of social media, including how to effectively discover valuable information from social media sources and how to effectively use the information that is located. . .
| Baker Sterchi Cowden & Rice Member Kara Trouslot Stubbs served as a co-chair of the Pharmaceuticals Subcommittee of the ABA Products Liability Committee, which recenty partnered with the Medical Device Subcommittee to sponsor the Annual Pharmaceutical and Medical Device CLE Workshop held at GlaxoSmithKline in Philadelphia in November.
| Kara Stubbs is co-chairing the annual CLE event of the Pharmaceutical and Medical Device Committees of the ABA Section of Litigation. The CLE event will take place on November 11 at Johnson & Johnson.
| The Appellate Court overturned the verdict for an out of state plaintiff for lack of personal jurisdiction against defendants. Key to the determination was whether the original judgment entered by the trial court was a final appealable judgment.
| Though seemingly obvious, the Eighth Circuit affirmed arbitration agreements are not immune to contract law basics when it denied an employer's motion to compel arbitration for lack of acceptance.
| SECOND UPDATE: Missouri Governor Mike Parson signs Senate Bill 7, which amends venue and joinder laws, to prevent out of state plaintiffs from litigating their cases in an inappropriate venue.
| With great power comes great responsibility; how the recent SCOTUS decision requiring prescription-drug manufacturers to prove the FDA rejected sufficient additional warnings will affect your impossibility preemption defense.
| A seismic shift in Kansas personal injury litigation may be on the horizon, as the Kansas Supreme Court rules that the state's cap on noneconomic damages violates the constitutional right to a jury trial.
| UPDATE: House Passes Senate Bill 7, in which the Missouri legislature seeks to amend venue and joinder laws, to prevent out of state plaintiffs from litigating their cases in an inappropriate venue.
| The Supreme Court has issued another ruling limiting class-action claims, in favor of individual arbitration, this time finding that contractual ambiguity is no substitute for a clear expression of consent to class-wide arbitration.
| In Senate Bill 7, the Missouri legislature seeks to amend venue and joinder laws, to prevent out of state plaintiffs from litigating their cases in an inappropriate venue.
| In State ex rel. Mylan Bertek Pharmaceuticals, Inc. v. Vincent, the Missouri Court of Appeals, Eastern District, held that, in a case alleging wrongful death, medical malpractice, and pharmaceutical liability, venue was proper only in the county where the decedent first ingested opioid pain medication, rather than the county where a defendant prescribed it.
| Applying Missouri Law, the Eighth Circuit confirms that when a company guarantees customer satisfaction, only to leave the customer unsatisfied, it risks not only its business reputation, but also its legal right to collect payment.
| Defense attorneys beware. The 2018-2019 American Tort Reform Foundation's (ATRF) Judicial Hellholes Report is out, and the City of St. Louis landed fourth on this list because of its massive verdicts, forum shopping, and legislative failures.
| In an October 1, 2018 statement issued from FDA Commissioner Scott Gottlieb, M.D., the FDA not only announced its efforts to strengthen its medical device cybersecurity program, but also unveiled its collaborative effort with MITRE, producing a cybersecurity "playbook" in order to assist entities in preparing for and responding to cybersecurity attacks.
| In an October 2, 2018 statement issued from FDA Commissioner Scott Gottlieb, M.D., the FDA announced its efforts to strengthen its medical device cybersecurity program in order to protect patients from medical device vulnerabilities and emerging threats to those devices.
| The Missouri Legislature introduced bills during its most recent legislative session to curtail forum shopping of class action plaintiffs in Missouri. This anti-forum shopping legislation, while not ultimately enacted into law, would have limited out-of-state plaintiffs from joining lawsuits involving local claims against out-of-state defendants.
| "Impossibility preemption" applies to bar tort claims where it is impossible for a party to comply with both state and federal law. In the recent opinion of Raskas v. Teva Pharms. USA, Inc., No. 4:17-CV-2261 RLW, 2018 U.S. Dist. LEXIS 3507 (E.D. Mo. January 8, 2018), the Eastern District of Missouri reaffirmed application of,,,
| In dismissing non-Missouri Plaintiffs from a product liability lawsuit, the United States District Court for the Eastern District of Missouri adds to split in authority between two of Plaintiffs' favorite forums in Missouri and California, testing the limits of Bristol-Myers Squibb.
| Despite an uptick in advocacy, support, and inclusion of the LGTBQ community over the past several decades, as of today, discrimination based on sexual orientation remains an invalid claim under the Missouri Human Rights Act (“MHRA”). However, in a recent decision by the Western District of the Missouri Court of Appeals...
| The Missouri Court of Appeals for the Southern District upholds denial of an employer's motion to compel arbitration ruling that at-will employment is insufficient consideration to support an arbitration agreement and denying employer's request to find that, in accordance with federal policy, at-will employment should be sufficient consideration for an arbitration agreement.
| 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 Redd v. DePuy Orthopaedics, Inc., the Eighth Circuit Court of Appeals has reminded litigators of the importance of ensuring expert witnesses perform a thorough review of a matter, including apparent alternative causal explanations, prior to issuing their opinions.
| 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.
| It seems almost impossible in today's world to escape our dependence on technology. From the minute we wake-up in the morning, we access news reports on our tablets, keep track of our health with fitness trackers, receive and respond to e-mails on our mobile phones, and many of us rely upon interconnected medical devices, such as insulin pumps, to safely navigate through a typical day. But such convenience is not without risk.
| The United States Supreme Court ruled on May 22, 2017, that the Hague Convention, on the service of judicial documents abroad, permits service by mail if the receiving country has not objected to service by mail and service by mail is authorized under otherwise-applicable law.
| A federal judge in North Carolina agreed with Bayer that federal law preempts all of plaintiff's claims against Bayer in a medical device case. The judge then declined to exercise supplemental jurisdiction over the medical malpractice claims against the healthcare providers and dismissed those claims as well.
| A federal judge in Indiana relied on the Seventh Circuit's decision in Bausch v. Stryker Corp., 630 F.3d 546 (7th Cir. 2010) to reject a medical device maker's argument that federal law preempts plaintiff's claims, including plaintiff's negligence per se claim.
| The Florida Supreme Court recently ruled that the attorney-client privilege protects a party from being required to disclose that her attorney referred her to treating doctors.
| Earlier this week, Governor Eric Greitens signed Missouri HB 153 into law. HB 153, which supplants Missouri's existing expert witness standard with that set forth in Federal Rules of Evidence 702, 703, 704 and 705, effectively submits expert testimony in most civil and criminal case to the analysis set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
| Within a two-week period, two federal judges issued strongly worded orders denouncing the common practice of asserting boilerplate objections to written discovery.
| The Missouri Court of Appeals rules that a worker may owe an independent duty of care to a co-worker, which is separate and distinct from her employer's non-delegable duties.
| 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...
| Continuing from our two prior posts in this three-part series on effectively addressing cybersecurity breaches in medical devices, this third and final post will focus on best practices to prepare, mitigate and otherwise manage vulnerabilities and potential cyber-attacks.
| Continuing from our prior post in a three-part series on effectively addressing cybersecurity breaches in medical devices, this second post will focus on specific examples of cybersecurity attacks on medical devices.
| We will explore in a series of three blog posts: (1) the specific vulnerabilities and risks inherent with embedded and interconnected medical devices, (2) cybersecurity and attacks on medical devices, and (3) practical approaches companies may employ both before and after a device is marketed. This first post in the series serves as an introduction to navigating the medical device field...
| A Missouri plaintiff did not irrevocably waive the protections of the work product doctrine simply by designating an expert witness and then withdrawing the designation without disclosing the expert’s analysis or conclusions.
| One week before Halloween 2016 and the FDA just launched a new webpage titled "Reporting Allegations of Regulatory Misconduct" which allows anyone to report alleged misconduct on the part of medical device manufacturers or individuals marketing medical devices.
| In civil litigation, the practice of "forum shopping" refers to the deliberate examination of multiple courts or jurisdictions in order to file or transfer the case to one that is most likely to treat that party's claims most favorably. Often, this forum shopping is blatant – where plaintiffs deliberately attempt to...
| On May 23, 2016, the U.S. Supreme Court decided the case of Green v. Brennan in order to resolve a split among the Circuits on whether, in an action for constructive discharge, the 45-day limitation period for the employee to initiate contact with the EEOC begins to run after the employer's last discriminatory act, or at the time of the employee's resignation.
| On February 12, 2016, a panel of the U.S. Court of Appeals for the Third Circuit affirmed dismissal of a lawsuit accusing GlaxoSmithKline ("GSK") of violating the Missouri Merchandising Practices Act ("MMPA") by failing to adequately warn of the risks associated with the use of a prescription drug, Avandia.
| The Proper Elements of an Effective Postmarketing Cybersecurity Program - The most practical portion of the FDA's proposed guidelines is found in the Appendix. In this Section, the agency attempts to bring together all of the concepts from their recommendations into a cohesive summary of the necessary components of a proper cybersecurity program. The section discusses five broad concepts drawn from the NIST Framework...
| Remediating and Reporting Cybersecurity Vulnerabilities - Manufacturers are required to determine if the residual risk of a cybersecurity vulnerability is "controlled" (acceptable) or "uncontrolled" (unacceptable). Following this initial determination of the seriousness of the risk to "essential clinical performance", the FDA has recommended a variety of both remediation and reporting requirements...
| Risk Assessment and Management in a Dangerous World - Manufacturers of medical devices are faced with ever-increasing cyberattacks that could impact patient safety and the efficacy of useful devices. One insurance group identified cyberthreats to medical devices as "open and growing", describing a difficult "real world" scenario involving implantable defibrillators.
| Background and Overview of Essential Concepts - As part of the increase in cybersecurity issues in an increasingly networked society, the FDA has decided to provide medical device manufacturers with structure and specificity in its quest to counter threats to patient safety. Although most of the recommendations offer industry a chance to self-police relatively minor security issues, the agency has proposed that a small subset of vulnerabilities...
| While a Kansas court may grant relief from a final judgment based on excusable neglect, it is an abuse of discretion to grant that relief when the party seeking that relief has failed either to explain what facts constituted excusable neglect or to provide any evidence to support that claim.
| In October, the Department of Justice's special health care fraud prevention team announced settlements of more than $719 million. The settlements involved allegations of illegal kickbacks, unnecessary medical treatments and premature implantations of medical devices.
| On October 14, 2015, the FDA issued a draft guidance to the medical device industry in which the FDA is expanding the scope of its guidance about animal testing and making some strong recommendations to industry.
| Manufacturers of Generic Pharmaceuticals bask in uncertainty after the United States Supreme Court denied certiorari in Pliva, Inc. v. Huck, leaving all to wonder whether or not state law "failure to update labeling" are preempted.
| The Eighth Circuit recently analyzed the application of the “outside sales” and “administrative” exemptions under the Fair Labor Standards Act in the context of promotional workers. Also, the Court was asked to decide, for the first time, what constitutes a valid waiver of an employee’s rights under the FLSA.
| Kansas has joined a short, but growing, list of states introducing legislation purporting to give terminally ill patients the option to try drug treatments not yet approved by the FDA, but which have passed Phase One FDA testing. However, the legislation does not incentivize any manufacturer to provide such drugs and in fact potentially exposes a manufacturer who does provide access to additional risk of lawsuits.
| A defendant removing a case to federal court under the Class Action Fairness Act need not provide evidence proving the jurisdictional amount in controversy in the notice of removal. A "short and plain statement of the grounds for removal" is sufficient.
| In Franzman v. Wyeth, Inc., et al., the Missouri Court of Appeals for the Eastern District recently reversed the trial court's judgment in favor of the manufacturers of the generic form of Reglan (the "Generic Defendants") on the portion of Franzman's failure-to-warn claim relating to the Generic Defendants' failure to update their warning labels to reflect the 2004 brand-name label revision.
| On August 15th, the Alabama Supreme Court endorsed the theory of "innovator liability" and held for the second time in Wyeth, Inc. v. Weeks, 2014 Ala. LEXIS 109 (Ala. Aug. 15, 2014) that a plaintiff who took only the generic version of a medication could still make a claim against the brand-name manufacturers. While this position remains the minority view, the Weeks case demonstrates that the innovator-liability theory remains an important and contested issue for brand and generic drug manufacturers.
| The Food and Drug Administration (FDA) announced its intention to expand the regulation of laboratory developed tests (LDTs). LDTs identify patients' individual reactions to pharmaceutical treatments, so medical providers can prescribe the best treatment for the particular patient.
| K.S.A. 60-19a02 has been amended, increasing Kansas's long-standing cap on non-economic damages (pain and suffering) recoverable in personal injury. K.S.A. 60-456(b) has also been amended to mirror the requirements for the admissibility of expert testimony set forth in Fed. R. Evid. 702.
| In a draft guidance issued on June 17, 2014, the FDA proposed that pharmaceutical and medical device companies must be sure to disclose the benefits and main risks associated with a product when posting on social media platforms with character space limitations. The FDA also proposed guidelines for companies seeking to correct misinformation posted about their products on social media by third-parties.
| Experts are not required to rule out all possible causes when performing the differential etiology analysis if the experts have properly ruled in the alleged cause.
| A Kansas plaintiff may amend their pleadings to assert punitive damages up until the day of the pretrial conference.
| Based on its adoption of a statutory scheme of comparative negligence, Kansas has abolished common law assumption of the risk as a bar to recovery. Simmons v. Porter, 298 Kan. 299, 312 P3d 345, 355 (Kan. 2013).
| The plaintiff has the burden of proving standing, which is a jurisdictional issue that can be raised at any time.
| In Kansas, the parties bind themselves to an enforceable settlement, even though the parties contemplate subsequent execution of a formal instrument. However, when the parties specifically condition a contract on it being reduced to writing and signed, there is no enforceable contract until such act is accomplished.
| 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.
| In Poll v. Stryker Sustainability Solutions, Inc., et al., the U.S. District Court for the District of Arizona notably held that courts may take judicial notice of documents on the FDA's website when considering a motion to dismiss. 2014 U.S. Dist. LEXIS 6309 (D. Az. Jan. 17, 2014).
| On December 9, 2013, the Food and Drug Administration (FDA) released a draft guidance recommending that the size, shape, and physical attributes of generic drugs be of a similar size to the corresponding Reference Listed Drugs (RLD) .
| The U.S. Food and Drug Administration (FDA) ordered Google-backed home genetic test maker 23andMe to "immediately discontinue" its Personal Genome Service (PGS) after failing to undergo proper agency approval for its marketing claims.
| The Eighth Circuit's recent opinion in Atwell v. Boston Scientific Corporation is bound to have an impact on mass action litigation nationwide. Atwell involves the interpretation of the Class Action Fairness Act of 2005 ("CAFA"), which provides for the removal from state to federal court of certain actions, including mass actions.
| On November 13, 2013, the U.S. Food and Drug Administration proposed a new rule allowing generic drug manufacturers to independently change their product's labeling to reflect newly discovered safety information.
| 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.
| 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?
| In an attempt to insulate drug and device manufacturers from the flood of tort liability in the latter half of the twentieth century, many states adopted "safe-harbor" statutes. These safe-harbor provisions created the presumption that a drug or device manufacturer was not liable for injuries in tort if the FDA approved the drug or device as "safe and effective" and the drug or device and labeling complied with the FDA's approval. . .
| More plaintiffs' attorneys have adopted the recent trend of alleging that pharmaceutical companies must distribute "Dear Doctor" letters or otherwise affirmatively call attention to label changes to satisfy their duty to warn prescribers besides merely updating the package insert with new warnings. . .
| The FDA has historically prohibited pharmaceutical companies from engaging in "off-label" promotion of its products. The Food, Drug, & Cosmetic Act also criminalizes misbranding by pharmaceutical companies. . .
| Plaintiff Karen Bartlett was prescribed the generic drug, sulindac, to treat shoulder pain. In 2005, Ms. Bartlett developed a sever skin reaction knows as Stevens Johnson Syndrome or Toxic Expidermal Necrolysis. . .