BSCR Firm News/Blogs Feed Jul 2022 00:00:00 -0800firmwise Motion for Change of Judge Strips a Judge's Authority to Rule on Subsequent Motions Jun 2022Missouri Law Blog<p>In <i>Worth v. Roden</i>, the Eastern District Missouri Court of Appeals, <a href="">held</a>&nbsp;that when a timely motion for change of judge under Missouri Supreme Court Rule 51.05 is filed, the trial judge is &ldquo;divested of authority to take any action other than ruling on motions already under submission and granting the change.&rdquo;</p> <p>Missouri Supreme Court Rule 51.05 provides in relevant part:</p> <p style="margin-left: 40px;">(a) A change <u>shall be ordered</u> in any civil action upon the timely filing of a written application therefore by a party&hellip;<u>The application need not allege or prove any cause for such change of judge and need not be verified</u>. (b) &hellip;the application must be filed within 60 days from service of process or 30 days from the designation of the trial judge, whichever time is longer.</p> <p>Shannon Roden appealed following the circuit court&rsquo;s judgment disqualifying her as a candidate in the primary election for the Jefferson County Collector of Revenue&rsquo;s officer. At the circuit court level, Michelle Worth filed a petition seeking to disqualify Roden as a candidate on the August primary ballot for two reasons: (1) Worth alleged Roden failed to timely file an affidavit of bondability; and (2) Roden has unpaid personal property taxes. Upon the filing of the petition and other pleadings, Roden timely filed a motion for change of judge under Missouri Supreme Court Rule 51.05. However, the circuit court judge denied the requested change.</p> <p>After the circuit court denied the request to change judge, the court went forward with the case. A trial on the merits was conducted and the court entered its judgment. The circuit court ruled Worth failed to present sufficient evidence to support Roden&rsquo;s personal property tax delinquency. However, the circuit court found that Roden failed to timely file her affidavit of bondability and ordered her name be stricken from the August primary ballot.</p> <p>Roden filed an expedited appeal the very next day pursuant to RsMo &sect; 115.551 allowing the court of appeals to take appropriate action in considering time-sensitive election challenges such as this. Roden raised three points on appeal: (1) the circuit court erred in disqualifying her from the ballot (2) Worth failed to prove she had standing to challenge Roden&rsquo;s qualifications (3) <i>the circuit court erroneously denied her motion for change of judge. </i>The substantive issues (points 1 and 2) were not reached because the court of appeals agreed with Roden&rsquo;s third point.</p> <p>Regarding the request for change of judge, Worth argued the circuit court judge properly denied the request. The court of appeals, however, rejected Worth&rsquo;s arguments holding that prior decisions did not support the judge&rsquo;s decision to deny the timely motion for change. &ldquo;Once Roden submitted her timely filed Rule 51.05 motion, the trial judge only had authority to rule on the previously submitted motion to dismiss and then grant the change of judge&hellip;the trial judge lacked authority to conduct the trial and enter judgment.&rdquo;</p> <p>At the end of the day, this decision by the Court of Appeals reaffirms the right of parties to disqualify a judge in Missouri courts without any reason or cause, if timely performed. The only motions a circuit court judge has the power to rule on after a timely filed request to change judge under Rule 51.05 are ones which were filed <i>prior</i> to the timely request for change of judge.</p> * <em>Garrett Hurst, Summer Law Clerk, assisted in the research and drafting of this post. Hurst is a rising 3L student at Saint Louis University School of Law.</em> of an Affirmative Defense: Missouri Supreme Court holds physician-patient privilege not waived by having asserted certain affirmative defenses May 2022Missouri Law Blog<p>At issue before the Missouri Supreme Court was whether a party&rsquo;s assertion of an &ldquo;assumption of the risk&rdquo; affirmative defense &ndash; i.e., that the plaintiff-passenger knew that defendant driving a golf cart was intoxicated and rode with her anyway - waived the driver&rsquo;s physician-patient privilege.</p> <p><b>Background Facts and Procedural Posture </b></p> <p>A golf cart driven by the defendant was involved in an accident with the plaintiff as a passenger.&nbsp; The passenger sustained personal injuries and sued the driver alleging she was negligent in operating the vehicle because, among other reasons, the driver was intoxicated.&nbsp; The driver denied the allegations, including that she operated the golf car intoxicated.&nbsp; The driver also asserted several affirmative defenses including comparative fault, implied primary assumption of risk, and implied secondary assumption of risk.&nbsp; Specifically, the driver claimed that the passenger &ldquo;assumed the risk of injury and accident by entering and continuing to ride in the golf cart if the driver of said vehicle was under the influence&rdquo;, and accordingly, the passenger could not recover against the driver, and/or the passenger&rsquo;s fault should also be considered.</p> <p>In discovery, the passenger sought the medical records of the driver from the night of the accident through the following morning.&nbsp; The driver objected and asserted the physician-patient privilege.&nbsp; The passenger filed a motion to compel production of the requested medical records or alternatively to strike the driver&rsquo;s affirmative defenses.&nbsp; The passenger argued that the driver had waived the physician-patient privilege by &ldquo;affirmatively interjecting her intoxication into the case via her affirmative defenses.&rdquo;&nbsp;</p> <p>The circuit court sustained the motion to compel and ordered the production of the medical records related to her &ldquo;alleged intoxication on the date of the incident and the following day.&rdquo;&nbsp; The driver filed a petition for writ of mandamus or prohibition in the court of appeals, where she sought to prevent the disclosure of her medical records.&nbsp; The court of appeals denied the petition and the driver informed the circuit court of her intention to petition the Missouri Supreme Court for relief.&nbsp; The circuit court ordered the driver to produce the medical records within twenty days, unless the petition to the Supreme Court was still pending.&nbsp; The next day, the driver filed a petition for writ of prohibition or mandamus with the Supreme Court and a preliminary writ of prohibition was issued, commanding the circuit court to take no further action, other than setting aside the order compelling the medical records or show cause why the writ should not issue.</p> <p><b>Missouri Authority on the Physician-Patient Privilege </b></p> <p>The Supreme Court <a href="">held</a> unanimously that defendant had not waived the physician-patient privilege and reviewed both the statutory and case law authority underlying that privilege.&nbsp; R.S. Mo. Section 491.060(5) provides:</p> <p style="margin-left: 40px;">&ldquo;The following persons shall be incompetent to testify: &hellip;</p> <p style="margin-left: 40px;">(5) A physician licensed pursuant to chapter 334, a chiropractor licensed pursuant to chapter 331, a licensed psychologist or a dentist licensed pursuant to chapter 332, concerning any information which he or she may have acquired from any patient while attending the patient in a professional character, and which information was necessary to enable him or her to prescribe and provide treatment for such patient as a physician, chiropractor, psychologist, or dentist.</p> <p>&ldquo;Any information a physician acquires from a patient while attending the patient and which is necessary to enable the physician to provide treatment is privileged.&rdquo; <i>State ex rel. Jones v. Syler</i>, 936 S.W.2d 805, 807 (Mo. banc 1997).&nbsp; Additionally, the physician-patient privilege applies to medical records. <i>State ex rel. Dean v. Cunningham, </i>182 S.W.3d 561, 567 (Mo. banc 2006).&nbsp; The privilege is for the patient&rsquo;s benefit and belongs to the patient, not the physician. <i>Id.</i> at 566 n.5. Therefore, even when medical records are directly relevant to a party&rsquo;s claims, if they are protected by the privilege, they are not discoverable.<i>&rdquo;</i> <i>State ex rel. Stinson v. House</i>, 316 S.W.3d 915, 919 (Mo. banc 2010)</p> <p><b>Affirmative Defenses do not Waive the Physician-Patient Privilege</b></p> <p>The passenger argued that the affirmative defenses constituted a waiver because it brought the driver&rsquo;s physical condition into issue.&nbsp; The Missouri Supreme Court held the medical records were protected by the physician-patient privilege, thus not discoverable.&nbsp; The Court reasoned that the driver had not sought any damages for injury, and her claims of comparative fault and assumption of risk were purely defenses.&nbsp; Thus, the driver&rsquo;s assertion of affirmative defenses of comparative fault and assumption of risk remains involuntary because she would have waived those defenses if she did not.</p> <p>The passenger argued that the case was distinguishable from previous Missouri cases and the driver&rsquo;s affirmative defense must waive the privilege because it places<i> her intoxication </i>at issue.&nbsp; In other words, for the driver to succeed on her affirmative defenses, she must prove the fact of her intoxication.&nbsp; However, the Missouri Supreme Court reasoned that the driver&rsquo;s affirmative defenses as plead are of a nature that are relevant only if the passenger establishes the driver&rsquo;s intoxication as alleged in the petition. Thus, if the passenger introduces evidence at trial that establishes the driver&rsquo;s intoxication, then the driver may rely on the passenger&rsquo;s evidence to pursue and establish her affirmative defense and will not have waived her physician-patient privilege.</p> <p>Further, while the medical records could establish quickly and definitively whether the driver was intoxicated, simply because the privileged records were relevant did not make them discoverable.&nbsp; Finally, the passenger asserted that the assertion of the privilege in this situation was unfair.&nbsp; The Missouri Supreme Court recognized that the physician-patient privilege is always invoked at the expense of truth-seeking and the equities supporting the privilege are not great in all cases.&nbsp; However, the privilege is set by statute and any challenges to the propriety of the physician-patient privilege is for the legislature.</p> <p><b>Conclusion</b></p> <p>This case reinforces the importance of the physician-patient privilege, even in the assertion of affirmative defenses.<br /> <br /> <i>State ex rel. Kimberly Barks v. The Honorable Daniel Pelikan</i>, No. SCR99024</p> Court of Appeals Finds Conduct Resulting in Punitive Damages Triggers Policy Exclusion for Intentional Acts May 2022Missouri Law Blog<p>Missouri insurers can breathe a sigh of relief as the Missouri Court of Appeals, Western District, finds an insured&rsquo;s fraudulent conduct precludes indemnity obligations under an &ldquo;intentional acts&rdquo; exclusion. The Court of Appeals found the claimant could not prove coverage applied to an underlying punitive judgment resulting from fraudulent sales tactics.</p> <p><a href="">Estate of Max Overbey v. Universal</a> is the latest chapter in the seemingly endless saga of litigation surrounding the Chad Franklin auto dealerships, and a deceptive marketing program that violated the Missouri Merchandising Practices Act. Here, the Court of Appeals reversed a lower court&rsquo;s equitable garnishment judgment against Universal Underwriters Insurance Company and Zurich American Insurance Company (collectively &ldquo;Universal&rdquo;). The Court of Appeals found the legal principles and evidence that established the right to submit the punitive damages to a jury also established that the insured acted with purpose, triggering the policy&rsquo;s intentional conduct exclusions.</p> <p>In the underlying litigation Overbey sought equitable garnishment on a verdict awarding punitive damages on a claim. An equitable garnishment claim requires the judgment creditor to prove three elements: (1) the claimant obtained a judgment against an insured; (2) the policy was in effect when the incident occurred; and (3) the insurer&rsquo;s policies covered the damages awarded in the underlying judgment.&nbsp; Here those damages centered on Overbey&rsquo;s MMPA claim against Chad Franklin and his used car dealership Chad Franklin National Auto Sales North, LLC (&ldquo;NAS&rdquo;). The claim arose from a vehicle purchased as part of NAS&rsquo; &ldquo;drive for life&rdquo; program, which promised low monthly payments and the ability to exchange vehicles every six months but failed to disclose various purchase and finance fees and failed to deliver the promised $43 monthly payments.</p> <p>Overbey prevailed at the initial trial by introducing evidence that Franklin falsely inflated the price of the car purchased; Franklin charged the $34,000 for a car worth only $20,000; Franklin added $3,000 in hidden fees to purchase; Franklin repeatedly dismissed concerns raised by Overbey; and Franklin disavowed knowledge of the drive for life program. Overbey also introduced testimony from the Attorney General&rsquo;s office regard 70 plus other complaints about similar conduct by Franklin, and the testimony of four other aggrieved customers of Franklin.&nbsp; The evidence demonstrated Franklin repeatedly and intentionally used deceptive business practices in furtherance of a fraudulent scheme.</p> <p>The approved jury instruction provided in relevant part, &ldquo;if you believe the conduct of defendant was outrageous because of defendant&rsquo;s evil motive or reckless indifference to the rights of others, then you may award punitive damages to punish defendant and to deter defendant and others from like conduct.&rdquo;</p> <p>The pertinent policy provisions provided coverage for &ldquo;all sums the INSURED legally must pay as DAMAGES because of INJURY to which this insurance applies &hellip; caused by an OCCURRENCE.&rdquo; &ldquo;Occurrence&rdquo; was defined as an accident resulting in injury not intended nor expected from the standpoint of a reasonably prudent person.&nbsp;</p> <p>The Court of Appeals reversed the trial court decision, emphasizing the inconsistency in allowing a party to assert on one hand that the insured acted fraudulently to merit the imposition of punitive damages, and to simultaneously assert the same conduct did not establish intentional conduct. Because the policy&rsquo;s definition of &ldquo;occurrence&rdquo; excluded intentional conduct that foreseeably caused financial injury, and because the evidence presented in the MMPA action showed the insured&rsquo;s actions were intentional and the harm was reasonably foreseeable, coverage did not apply and Overbey failed to meet his burden of demonstrating coverage for the underlying judgment.</p> <p>The Court of Appeals stopped just short of creating a bright line rule that would establish the assessment of punitive damages as equivalent to a jury finding of intent in all cases. But the Court did state that where the evidence and sole legal theory enabling the grant of a punitive award was that the defendant engaged in a pattern of intentionally fraudulent misconduct, the imposition of liability established the insured&rsquo;s actions were intentional.</p> <p>The Court&rsquo;s decision reinforces an insurer&rsquo;s ability to define coverage in a manner that excludes intentional misfeasance by its insured.</p> Debates Shortening its Personal Injury Statute of Limitations May 2022Missouri Law Blog<p>At five years, Missouri currently has one of the longest personal injury statute of limitations of any state. In fact, only two states, Maine and North Dakota have longer statute of limitations periods (6 years), while forty-seven states currently have a shorter period. The Missouri General Assembly, through House Bill 2206 and Senate Bill 631, is currently debating reducing the statute of limitations period for personal injury claims from five years to two years.&nbsp;</p> <p>Five years is a long time &ndash; long enough for even the most vivid of memories to fade. This presents practical obstacles to personal injury litigation in Missouri.&nbsp;After five years parties and witnesses may have only a faint memory of an accident or may even misremember key details.&nbsp;They may even struggle to remember whether the light was red or green.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p>In addition to fading memories, the problem presented with a five-year statute of limitations period is that key pieces of physical evidence could become misplaced or inadvertently destroyed.&nbsp;Employees and witnesses may no longer have the same job or live at the same address, which can make them difficult to locate.&nbsp;The problem with five years is that a lot can happen that makes the jury&rsquo;s job that much harder.&nbsp;&nbsp;</p> <p>Consider this scenario:&nbsp;Plaintiff falls at Defendant&rsquo;s business.&nbsp;Plaintiff never tells Defendant or its employees about the fall and suddenly files suit just before the five-year statute of limitations expires.&nbsp;Because Defendant did not know of the incident, they did not preserve any evidence.&nbsp;They now face a blind lawsuit which puts them at a distinct disadvantage and Defendant may not be able to refute Plaintiff&rsquo;s evidence.&nbsp;Taking this example a step further, what if Plaintiff claims one of Defendant&rsquo;s employees admitted they knew of the condition that caused Plaintiff to fall and did nothing about it?&nbsp;Due to the passage of time, Defendant may not be able to identify this employee or, even if they do, the employee, who may no longer even be an employee, may not remember whether or not she made the admission.&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;</p> <p>Now, let&rsquo;s assume that Plaintiff did report the fall to Defendant and that Defendant&rsquo;s security cameras had captured video footage of the incident.&nbsp;However, after the passage of five years Defendant can no longer locate the video.&nbsp;In addition, employees of Defendant at the time of the fall may no longer be employees, making them difficult or impossible to locate, and their memory of the incident (if any), has likely faded.&nbsp;Defendant remains at a disadvantage and now has the added obstacle of having to explain to a jury why they no longer have the video.</p> <p>The majority of states (24) have a two-year statute of limitations period.&nbsp;Sixteen states have a three-year period.&nbsp;Missouri through House Bill 2206 and Senate Bill 631 looks to join the majority at two years.&nbsp;Both House Bill 2206 and Senate Bill 631 were introduced on January 5, 2022 and both have made it through committee revisions.&nbsp;House Bill 2206 has progressed though the Special Committee on Litigation Reform and the Legislative Oversight Committee.&nbsp;Senate Bill 631 has made it through the Judiciary and Civil and Criminal Jurisprudence Committee.&nbsp;Both bills are being scheduled for debate on the on their respective floors.&nbsp;Each bill currently contains additional provisions which do not relate specifically to the reduction of the statute of limitations period from five years to two years.&nbsp;If either bill passes through a full vote, it will be sent to the other chamber for possible amendment.&nbsp;If either bill is passed by both chambers, it will be sent to the governor for signature.&nbsp;&nbsp;</p> <p>There are several benefits to reducing the statute of limitations period from five years to two years.&nbsp;First and foremost, it would give a potential defending party assurance that any lawsuit could only be brought against them for a short time. &nbsp;It also requires a potential plaintiff to pursue a claim or lawsuit in a timely manner, which has the added benefit of allowing for the defending party to assess the validity of claims earlier as opposed to potentially many years after an alleged accident. &nbsp;Evidence is also less likely to be lost or misplaced and witness recollections will likely be clearer and more reliable.&nbsp;Moreover, each side would have an equal opportunity to gather evidence while the facts are still fresh.</p> <p>Should either House Bill 2206 or Senate Bill 631 be passed, the effective date would be August 28, 2022, meaning that only claims for personal injury accruing after that date would be subject to the two-year statute of limitations period.&nbsp;We will continue to monitor each bill&rsquo;s progress and provide updates.&nbsp;</p> Supreme Court Upholds the Constitutionality of the Statutory Punitive Damages Cap, as Applied to Claims for Breach of the Duty of Loyalty and Tortious Interference Apr 2022Missouri Law Blog<p>Several months ago, when the Missouri Supreme Court agreed to review the case of <i>All Star Awards v. HALO Branded Solutions</i>, <a href="/?t=40&amp;an=119517&amp;format=xml&amp;stylesheet=blog&amp;p=5258">we wrote</a> that &ldquo;we believe that in accepting this case&hellip;the Supreme Court, at minimum, is thinking that the case bears some resemblance to <i>Dodson</i>.&rdquo; And that is indeed what was troubling the Court.</p> <p>In <i>Dodson v. Ferrara</i>, the Supreme Court held that R.S. Mo. 510.265&rsquo;s damages cap on noneconomic and punitive damages applied to the plaintiff&rsquo;s wrongful death claim, because at the time the Missouri Constitution was enacted in 1820, there was no such thing as a wrongful death claim. The legal principle is as follows: if the claim presently being asserted is the same or is closely analogous to a claim that existed in 1820 and was both triable by jury and eligible for punitive damages way-back-when, then the modern day statutory damages cap infringes the Missouri Constitution&rsquo;s right to trial by jury and cannot be enforced.&nbsp;In our earlier post, we noted that <i>Dodson </i>directed that the claims truly be the same or very closely analogous, and that &ldquo;broad generalizations will not carry the day for a plaintiff.&rdquo;&nbsp;In <i>Dodson, </i>the Court rejected the plaintiff&rsquo;s claim that the 1820 cause of action for loss of services of a child was closely analogous to a wrongful death claim.</p> <p>In <i>All Star Awards, </i>HALO Branding hired an executive away from its competitor All Star Awards, and the trial court record showed that even before the executive changed companies, he had begun diverting business to HALO, providing it with proprietary information about All Star customers, and engaging in other improper activities.&nbsp;All Star sued for breach of the duty of loyalty, conspiracy to breach that duty, and tortious interference with a business contract.&nbsp;The trial court found in All Star&rsquo;s favor, awarding over $500,000 in actual damages, and the jury entered a verdict for $5.5 million in punitive damages against HALO. &nbsp;Circuit Judge Torrance applied the statutory damages cap and reduced the punitive damages award to five times All Star&rsquo;s actual damages, or $2,627,709.40.&nbsp;But the Western District Court of Appeals disagreed and reversed the trial court&rsquo;s application of the damages cap, holding that plaintiff&rsquo;s claims would have been cognizable, triable by jury and eligible for punitive damages in 1820, on the broad and generalized theory that the claims involved &ldquo;wrongs to the person or property for which money damages are claimed.&rdquo;&nbsp;In a 6-1 <a href="">ruling</a>, the Supreme Court disagreed, finding that All Star's causes of action did not exist under Missouri law until long after 1820, reinstating the reduced punitive damages award, and affirming the Circuit Court judgment.</p> <p>The Supreme Court also reviewed and rejected HALO&rsquo;s claim that even at the reduced ratio of 5:1, the punitive damages award was grossly excessive and violative of its due process rights.&nbsp;The Court reviewed the Circuit Court record and found ample evidence that HALO&rsquo;s actions were reprehensible; that the award fell well within the 10:1 ratio beyond which punitive damages awards are subject to higher scrutiny; and that prior Missouri appellate case law provided HALO with notice that punitive damages in approximately this ratio could be awarded for tortious interference.</p> <p>The Supreme Court ruling also contains an important admonition to appellate practitioners in Missouri, which has appeared countless times in Missouri appellate rulings: if your appellate brief does not comply with the stringent requirements of Missouri Rule of Civil Procedure 84.04, the appellate court can and will decline to review those parts of your argument that infringe the Rule.&nbsp;</p> <p>When we have worked with a client&rsquo;s national counsel on briefs to the Missouri Court of Appeals or Supreme Court, those out-of-state lawyers have been amazed and usually somewhat aghast at the multifaceted and highly technical requirements of this Rule.&nbsp;One aspect of Rule 84.04 is that each Point in your argument must be framed in substantially the following form: &nbsp;&quot;The trial court erred in [<i>identify the challenged ruling or action</i>], because [<i>state the legal reasons for the claim of reversible error</i>], in that [<i>explain why the legal reasons, in the context of the case, support the claim of reversible error</i>].&rdquo; &nbsp;Similarly, the Supreme Court has cautioned that &ldquo;multifarious&rdquo; points containing multiple, divisible claims &ldquo;are noncompliant with Rule 84.04(d) and preserve nothing for review&rdquo;, and this caused some problems for appellant All Star.</p> <p>In <i>All Star Awards</i>, the Supreme Court examined the way All Star presented its points on appeal, raising some seven different alleged errors, combined into three points on appeal, and ruled that every argument raised by All Star - except for the need to apply the statutory damages cap - was noncompliant and could be disregarded by the Court.&nbsp;Thus, the Court refused to review several points of error All Star was attempting to assert (mainly involving alleged erroneous rulings during the trial), agreeing only to review as a matter of the Court&rsquo;s &ldquo;cautious&rdquo; exercise of discretion, the &ldquo;noncompliant&rdquo; point about whether the reduced punitive damages award was still excessive and violative of due process.&nbsp;<a href="/?t=40&amp;an=16422&amp;format=xml&amp;stylesheet=blog&amp;p=5258">As we observed several years ago</a>, a failure to follow Missouri&rsquo;s appellate briefing rules can lead to draconian consequences.&nbsp;</p> <p>So, does this mean that Missouri&rsquo;s appellate courts have some sort of mean streak and are looking to holler &ldquo;gotcha&rdquo;, and kick you and your brief out of court for failure to abide by Rule 84.04?&nbsp;No &ndash; actually, the exact opposite is true.&nbsp;They want your brief to be compliant, and Clerk&rsquo;s office in the appellate court will typically bend over backwards to ensure that your brief is in the correct form.&nbsp;If you have a brief due at the Court of Appeals or Supreme Court, it always makes sense to call the Clerk&rsquo;s office well in advance of the due date and ask the following question: &ldquo;Our brief is due on [date].&nbsp;May we submit our brief to you to review as to form, and if so, how much advance notice do you need?&rdquo;&nbsp;The reply is likely to be along the following lines: &ldquo;we&rsquo;ll be happy to do so.&nbsp;Please get it to us in essentially final form, five business days before the due date.&rdquo; &nbsp;And they will flag for you any matters that need additional work.&nbsp;This procedure requires advance planning but can spare an appellant some potential headaches and embarrassment.</p> Pandemic Continues to Impact Kansas City Area Trials and Verdicts Feb 2022Missouri Law Blog<p>As we move to 2022 and look back on 2021, COVID continues to control the litigation landscape for the Kansas City metropolitan area. Data released by the Greater Kansas City Jury Verdict Service shows that the total number of jury trials in the Kansas City area rose more than 80% from 2020, but remains down more than 40% from pre-pandemic levels</p> <p>In 2021, 54 trials were reported, compared to 29 trials in 2020, 86 in 2019, and 104 in 2018. The numbers appear to reflect both COVID&rsquo;s ongoing impact on postponing civil jury trials and the Court&rsquo;s attempt to push through the backlog of cases created by the Pandemic.<br /> <br /> <img src="" hspace="0" vspace="0" align="absmiddle" alt="" border="0" width="471" height="284" /></p> <p><b>The Percentage of Jury Verdicts Favoring Defendants Remained Constant in 2021</b></p> <p>In the Kansas City area, juries decided a total of 54 cases in 2021. Within those 54 cases, the Jury Verdict Service reports on the number of claims in each case which totaled 108 overall verdicts. Of the verdicts reported on the 108 claims, 41% (44 out of 108 claims) resulted in recovery for the plaintiff(s), while 59% (64 out of 108 claims) were decisions in favor of the defendant(s).&nbsp;Similarly, in both 2019 (75 out of 181 claims) and 2020 (30 out of 73 claims) 41% of claims resulted in recovery for the plaintiff, while 59% were decisions favoring defendants.&nbsp;The consistency over the last three years may reflect a plateau of the upward trend favoring defense verdicts, from 51% in 2017, to 52% in 2018, to 59% over the last three years.&nbsp;<br /> <br /> <img src="" hspace="0" vspace="0" align="absmiddle" alt="" border="0" width="471" height="284" /></p> <p><b>Overall Average Monetary Award in Plaintiff Verdicts Skyrocketed</b></p> <p>Verdict amounts favoring plaintiffs dwarfed those in 2020. The overall average of plaintiff verdicts in the Kansas City area in 2021 was $1,956,489, which included two eight-figure verdicts of $41.4 million and $18 million.&nbsp;In 2020 jurors favoring plaintiffs awarded, on average, just over $500,000 with no eight figure verdict awards.&nbsp;</p> <p>Nearly one-third of the 2021 verdicts favoring plaintiffs (14 of 44) exceeded $1,000,000 in the Kansas City area, with 10 of 14 seven figure verdicts coming from State Courts and 4 of 14 coming from local Federal Courts.&nbsp;Additionally, more than a third of verdicts favoring plaintiffs (15 of 44) awarded damages between $100,000 and $999,999, with 13 of 15 coming from State Courts and only 2 coming from local Federal Courts.</p> <p>In 2021, the two highest-dollar verdicts accounted for 69% of the total damages awards to plaintiffs ($59.4 million of $86 million total verdict awards), compared to 2020&rsquo;s two highest-dollar verdicts accounting for 78.8% of the total damages awards to plaintiffs.&nbsp;Factoring out the two high-dollar &ldquo;outlier&rdquo; cases, from both years, verdicts favoring plaintiffs increased by more than 14x compared to 2020 verdicts.&nbsp;Taking a longer view, however, the average value of verdicts favoring plaintiffs in 2021, without outliers, remains below the average value in 2018 and 2019.&nbsp;In 2021, 35% of jury awards were below $100,000.<br /> <br /> <img src="" hspace="0" vspace="0" align="absmiddle" alt="" border="0" width="471" height="284" /><br /> <br /> <b>Missouri Proves More Defendant Friendly than Kansas in 2021</b></p> <p>Missouri juries reached a verdict favoring defendants nearly 60% (57 of 96 claims) of the time. Whereas, Kansas juries reached verdicts favoring defendants only 42% (5 of 12 claims) of the time.&nbsp;Clay County was the only Missouri State Court in the Kansas City area, where the percentage of verdicts favoring plaintiffs (60% or 15 of 25 claims) exceeded verdicts favoring defendants.&nbsp;Similarly, Missouri juries in Federal Court reached verdicts favoring defendants 60% (3 of 5 claims) of the time.</p> <p>Kansas State juries equally found in favor of plaintiffs and defendants.&nbsp;Whereas, Kansas Federal juries reached verdicts favoring plaintiffs in two-thirds of cases.<br /> <br /> <img src="" hspace="0" vspace="0" align="absmiddle" alt="" border="0" width="471" height="284" /></p> <p><b>Trial Returns to State Courts</b></p> <p>The number of state court trials and the percentage of total cases tried in state court rose dramatically.&nbsp;&nbsp;In 2021 state court verdicts accounted for nearly 90% of claims, whereas federal court verdicts accounted for only 10.2% of claims.&nbsp;&nbsp;This was a stark change from 2020, where federal and state courts both accounted for nearly 50% of claims, but a return to normalcy compared to 2018 and 2019, when state court claims accounted for more than 80% of verdicts.<br /> <br /> <img src="" hspace="0" vspace="0" align="absmiddle" alt="" border="0" width="471" height="284" /></p>"Judicial Hellholes" - A trio of Illinois Counties Move Up the List while the City of St. Louis Remains an Honoree Dec 2021Missouri Law Blog<p>Yet again, Cook, Madison and St. Clair Counties in Illinois and the City of St. Louis are included in the 2021/2022 &ldquo;Judicial Hellholes Report&rdquo; from the American Tort Reform Foundation. This year, the trio of Illinois counties moves up from 8<sup>th</sup> place on last year&rsquo;s list to 5<sup>th</sup> place, and the City of St. Louis remains in 7<sup>th</sup> place.&nbsp;The list is rounded out with California (#1), New York (#2), the Georgia Supreme Court (#3), the Philadelphia Court of Common Pleas &amp; the Supreme Court of Pennsylvania (#4), Louisiana (#6), and South Carolina asbestos litigation (#8).&nbsp;The trio of Illinois Counties lay across the Mississippi River from the City of St. Louis and are all plaintiff-friendly venues, with a mass influx of product liability litigation (including talc and asbestos lawsuits), highlighting the need for liability reform.</p> <p>While asbestos cases decreased nationwide by 11% in 2020, both Madison and St. Clair Counties in Illinois have seen an increase in filings in asbestos litigation in the last year.&nbsp;Plaintiffs&rsquo; firms continue to seek out these venues for their overall low evidentiary standards, plaintiff-friendly judges, and persistent ability to find new and unique defendants, despite the increase in defendant bankruptcy filings over the last few years.&nbsp;Additionally, Cook County remains a hotbed for asbestos litigation.&nbsp;Despite limited resources due to the Covid-19 pandemic, Cook County has hosted 3 asbestos trials to verdict since October 2021, with more on the horizon for early 2022.</p> <p>Illinois is also flooded with &ldquo;no-injury&rdquo; Biometric Information Privacy Act (&ldquo;BIPA&rdquo;) lawsuits, a majority of which are brought by employees against their employers, due to the fact that a 2019 Illinois Supreme Court decision held that a plaintiff does not need to show any harm in order to collect damages under the Act, which requires companies to inform an individual in writing and receive a written release prior to obtaining or retaining his or her biometric data.&nbsp;This has triggered a slew of litigation for any company that uses fingerprints, voiceprints, hand or facial scanning as identifiers for specific access to its systems or for clocking in and clocking out.&nbsp;Unsurprisingly, this has been further complicated by a September 2021 Illinois appellate court decision that found that a five-year statute of limitations applies to most BIPA claims, so long as there is no dispute that the person&rsquo;s information was publicized (in which case a one-year statute of limitations would apply).</p> <p>Other factors pushing Illinois Counties back up in the rankings include various legislative enactments, including the Prejudgment Interest Act and S.B. 2406 which will break up the 20<sup>th</sup> Judicial Circuit Court and redraw the supreme court districts for the first time since 1964.</p> <p>The City of St. Louis, similar to the Illinois Counties described above, continues to draw a product liability litigation crowd, including in cases involving talc, Roundup&reg; weed killer, and asbestos.&nbsp;This summer, the United States Supreme Court got in on the action, when in June 2021, it announced that it would not review a landmark Johnson &amp; Johnson cosmetic talcum powder case which resulted in a $4.69 billion verdict ($550 million in actual damages and $4.14 billion in punitive damages) in the St. Louis Circuit Court but was reduced by the Missouri Court of Appeals for the Eastern District to $2.12 billion ($500 million in actual damages and $1.62 billion in punitive damages).</p> <p>Missouri courts continue to push the boundaries when it comes to unreasonable punitive damages awards, as can be noted in the J&amp;J talc litigation. Moreover, in March 2021, the Missouri Supreme Court affirmed a lower court&rsquo;s decision to award punitive damages in a medical malpractice case, applying a relatively lax standard.&nbsp;Specifically, the Court in <i>Rhoden v. Missouri Delta Med. Ctr.</i>, ruled that &ldquo;acting willfully, wantonly, or maliciously is equivalent to acting with a complete indifference to or in conscious disregard for the rights or safety of others.&rdquo;&nbsp;Effective and applicable to causes of action arising after August 28, 2020, newly enacted legislation - SB 591 - takes this issue head on and requires that a jury find &ldquo;the evidence clearly and convincingly demonstrated that the health care provider intentionally caused damage to the plaintiff or demonstrated malicious misconduct that caused damage to the plaintiff.&rdquo; &sect; 538.210.8, RSMo. (2020). Further, the statute explicitly states that: &ldquo;Evidence of negligence including, but not limited to, indifference to or conscious disregard for the safety of others shall not constitute intentional conduct or malicious misconduct.&rdquo; The legislation was enacted as a counter to the intermediate appellate court&rsquo;s decision in <i>Rhoden</i>, and its failure to recognize the distinction between negligence and intentional or malicious misconduct. This change reflects a return to the original common-law standard of intentional misconduct and is an effort to clarify for the courts the proper standard and prohibit the use of lesser standards. The implications of this decision have yet to be seen, but the hope is that at least for cases filed after August 28, 2020, decisions like <i>Rhoden </i>will have become a thing of the past.</p> <p>While the Missouri legislature is moving forward in enacting stricter reform related to lawsuit abuse, it remains to be seen what impact, over time, those laws will have on litigation in the City of St. Louis.&nbsp;Until then, we will likely continue to see it included on the list of &ldquo;Judicial Hellholes&rdquo;.&nbsp;</p> More unto the Breach: the Missouri Supreme Court Again Takes Up the Question of Constitutional Limits on Missouri's Statutory Punitive Damages Cap Nov 2021Missouri Law Blog<p>In 2012 and 2014, the Missouri Supreme Court sent shudders down the spine of defense lawyers throughout the state, via its decisions in <i>Watts v. Lester E. Cox. Medical Centers </i>and <i>Lewellen v. Franklin</i>, which refused to apply statutory limitations on noneconomic damages (<i>Watts</i>) and punitive damages (<i>Lewellen</i>), on the grounds that the statutes abridged the Missouri Constitution&rsquo;s right to trial by jury. Those cases reversed decades of Supreme Court authority to the contrary.&nbsp;The legal theory goes as follows: (1) if a case has been brought under a common law cause of action (e.g., fraud); (2) that same cause of action existed at the time the state Constitution was enacted in 1820; (3) and that cause of action included the right to a jury trial back in 1820; then the application of a statutory limit on punitive damages or noneconomic damages abridges the right to a trial by jury.</p> <p>This same legal theory has been tested in 31 states.&nbsp;And as the New Mexico Supreme Court wrote earlier this year, &ldquo;Of the thirty jurisdictions to consider whether a statutory cap on damages violated the constitutional right to a trial by jury, twenty-four have applied such caps, reasoning that a statutory limit on recovery is a matter of law within the purview of the state legislature&rdquo;.&nbsp;(The New Mexico court&rsquo;s ruling made the score 25 to 6 in support of the legislative caps.)</p> <p>The Missouri Supreme Court has since re-examined this issue, each time attempting to carefully circumscribe its holdings in <i>Watts </i>and <i>Lewellen.&nbsp;</i>In <i>Dodson v. Ferrara, </i>decided in 2016, the plaintiffs challenged the application of the statutory noneconomic damages cap in a wrongful death case, attempting to analogize a common law claim that existed in 1820, for the loss of services of a child whose death was wrongfully caused.&nbsp;The Court rejected plaintiff&rsquo;s argument, reasoning that a wrongful-death claim and a common-law &ldquo;loss of services&rdquo; claim based on a wrongful death &ldquo;may both be civil actions for monetary damages&rdquo; arising out of a wrongful death, &ldquo;but they arise from completely different principles of law.&rdquo; The Court accordingly found the analogy too strained to support an argument that wrongful-death claims are analogous to claims that were tried to a jury in 1820.</p> <p>Then, earlier this year, in <i>Ordinola v. University Physician Associates, </i>the Court similarly rejected a plaintiff&rsquo;s attempt to broadly construe the <i>Watts </i>decision.&nbsp;In <i>Ordinola, </i>the plaintiff brought statutory claims for medical negligence, and argued that because medical negligence claims were triable to juries at common law in 1820, the damages caps could not be applied.&nbsp;The Supreme Court disagreed, holding that the legislature had the authority to abolish common law causes of action, and replace them a statutory cause of action, which may in turn include limitations on what measure of damages can be recovered.&nbsp;That is what the state legislature did with medical negligence claims, and the statutory damages caps were therefore held to be enforceable.</p> <p>In the current <i>All Star Awards </i>case, the plaintiff company&rsquo;s (All Star) general manager terminated his employment with All Star and went to work for the defendant (HALO), a competitor.&nbsp;He allegedly diverted substantial amounts of business to HALO.&nbsp;Plaintiff brought claims against the manager for breaching his duty of loyalty, and against HALO under two legal theories: tortious interference with business expectancy, and civil conspiracy to breach a duty of loyalty.&nbsp;At trial, the jury rendered a verdict against HALO that included punitive damages of well beyond five times the total compensatory damages award, and the Circuit Court judge applied Missouri&rsquo;s statutory damages cap and reduced the punitive damages award from $5.5 million to $2,627,709.40.</p> <p>On appeal, the Western District Court of Appeals reversed the trial court&rsquo;s application of the damages cap, essentially holding that plaintiff&rsquo;s causes of action against HALO would have been cognizable under common law and triable by jury in 1820, because they involved &ldquo;wrongs to the person or property for which money damages are claimed.&rdquo;&nbsp;On appeal to the Supreme Court, HALO has argued &ndash; convincingly, in our view &ndash; that Missouri common law claims for tortious interference with business expectancy did not exist in 1820, and in fact were not recognized until 1953; and that claims for breach of duty of loyalty (let alone conspiracy to breach that duty) did not exist until 1966. The <i>Dodson </i>case certainly appears to stand for the principle that the 1820 common law claim must be either the same or very closely analogous to claim in the case currently before the court, and that broad generalizations will not carry the day for a plaintiff.&nbsp;(In <i>Lewellen, </i>the plaintiff&rsquo;s claim was for consumer fraud, and such claims were recognized at common law in 1820.)</p> <p>On the damages cap issue, HALO has made a twofold argument to the Supreme Court:&nbsp;that it should at very least reinstate the trial court&rsquo;s holding that the damages cap applies in a case like this, but that more properly, the Court should reconsider its holdings in <i>Watts </i>and <i>Lewellen.&nbsp;</i>And given the very strong consensus among courts across the nation that damages caps are enforceable and can withstand state constitutional challenge, there is much to be said for the latter approach.&nbsp;We believe that in accepting this case for review, the Supreme Court, at minimum, is thinking that this case bears some resemblance to <i>Dodson.</i> &nbsp;</p> <p>In its appeal, HALO has argued several other legal points: that there was insufficient evidence to support a claim for tortious interference; that the award in plaintiff&rsquo;s favor was based on inadmissible damages testimony from a lay witness, who incorrectly calculated lost profits; and that the punitive damages award was so disproportionate to actual damages that it violated due process.&nbsp;But we believe the reason the Supreme Court accepted this case is to weigh in once again on the damages cap, and that is where the action is. &nbsp;The case has been docketed for oral argument in early December 2021. Stay tuned.</p> Gas Company Cannot Evade Anti-Indemnification Statute's Application in Dispute with Utility Locator after JJ's Restaurant Explosion Oct 2021Missouri Law Blog<p>More than eight years after the Country Club Plaza district in Kansas City, Missouri was rocked by a gas line explosion that destroyed JJ&rsquo;s Restaurant, the United States Court of Appeals for the Eighth Circuit has <a href="">ruled</a> that utility-locating company USIC has no duty to indemnify natural gas company Spire.</p> <p>The explosion led to a series of lawsuits against Spire, many of which Spire settled for a collective $75 million. USIC was subsequently asked to indemnify it on the basis that the contract between the two companies placed sole financial responsibility upon USIC&mdash;regardless of who was actually at fault. To that end, Spire sought a declaratory judgment that USIC owed Spire for the amount of the prior settlements in addition to any future settlements. USIC moved for summary judgment arguing that R.S.Mo. &sect; 434.100.1, Missouri&rsquo;s anti-indemnification statute, precluded Spire&rsquo;s attempt to escape financial liability.</p> <p>The anti-indemnification statute generally prohibits contractual clauses which force one party to hold another party harmless and indemnify them for their own negligence. In other words, the law prevents a subcontractor from indemnifying a general contractor for any damage caused by the general contractor&rsquo;s negligence. However, this statute only applies to &ldquo;any contract or agreement for public or private construction work.&rdquo;</p> <p>Spire took the position that USIC&rsquo;s services could not be considered &ldquo;construction work&rdquo; within the statute&rsquo;s meaning. The Eighth Circuit looked to subsection 3 of the anti-indemnification statute, which defined the terms to include &ldquo;construction, alteration, maintenance or repair of any . . . pipeline.&rdquo; The Court easily dispensed with Spire&rsquo;s argument and held that USIC&rsquo;s work in locating and marking the gas line meant that USIC was preserving the lines and keeping them in a state of repair. The Court found it irrelevant that USIC did not construct something within the usual meaning of the word since the anti-indemnification statute&rsquo;s definition of construction controlled the dispute.</p> <p>In addition to illustrating the scope of the anti-indemnification&rsquo;s statute in the construction industry, this case also teaches about litigation strategy. Here, Spire opted to pursue an &ldquo;all-or-nothing approach&rdquo; and appealed solely on the basis that USIC&rsquo;s purported obligation to indemnify was absolute. To that end, Spire did not seek any decision on whether it was actually negligent, or whether USIC had an obligation to indemnify it for any amount less than the full cost of the settlements. In that sense, the case suggests that parties may be well-served to pursue other issues in a case, even if those issues may not lead to a full and complete victory.&nbsp;&nbsp;</p> Court of Appeals Finds Arbitrator Lacked Authority to Resolve Automobile Repossession Dispute Sep 2021Missouri Law Blog<p>The Missouri Court of Appeals, Western District, recently <a href="">reversed</a> a trial court decision and subsequent arbitration award in favor of an automobile repossessor. In Car Credit, Inc. v. Pitts, the Court of Appeals held that the trial court incorrectly allowed arbitration of Pitts&rsquo; claims against Car Credit. The contract at issue designated the National Arbitration Forum (&ldquo;NAF&rdquo;) as arbitrator of disputes arising between Car Credit and Pitts related to the vehicle purchase.&nbsp; At the time Pitts filed her lawsuit, the NAF was not available to serve as arbiter.&nbsp; Consequently, Car Credit could not resolve Pitts&rsquo; claims through arbitration.&nbsp;&nbsp;</p> <p>Following Car Credit&rsquo;s repossession of her vehicle in 2015, Pitts sued Car Credit and claimed breach of contract.&nbsp; Pitts also sought to pursue a class action lawsuit against Car Credit.&nbsp; Pitts alleged Car Credit engaged in a &ldquo;deceptive pattern of wrongdoing . . . regarding collection of alleged deficiencies.&rdquo;&nbsp; Car Credit moved to compel arbitration of Pitts&rsquo; claims.&nbsp; Pitts purchased the vehicle at issue from Car Credit in 2011 and financed the purchase.&nbsp; Pitts signed an arbitration agreement at the time of purchase:</p> <p style="margin-left: 40px;">You and we [Car Credit] agree that if any Dispute arises, either you or we may choose to have the Dispute resolved by binding arbitration under the rules then in effect of the Arbitration Organization shown below (if no Arbitration Organization is shown below, the Arbitration Organization shall be the National Arbitration Forum). If such rules conflict with this Arbitration Agreement, the terms of this Arbitration Agreement shall apply.</p> <p>While the arbitration clause referenced an arbitration organization &ldquo;listed below,&rdquo; the arbitration agreement did not identify any specific organization, leaving the NAF as the applicable arbitration organization.&nbsp; Car Credit cited this arbitration agreement and moved to compel arbitration.&nbsp; Pitts correctly pointed out that the NAF was no longer available to serve as arbitrator.&nbsp; Pitts argued that since the NAF was the sole designated arbitration agency and was not available, the court should not compel arbitration.&nbsp; The NAF stopped providing arbitration services in 2009 after Minnesota&rsquo;s Attorney General sued it for alleged consumer fraud, false advertising, and deceptive trade practices.</p> <p>The trial court denied Car Credit&rsquo;s first motion to compel arbitration.&nbsp; However, after Pitts moved to certify the class action claims against Car Credit, Car Credit made a renewed motion to compel arbitration.&nbsp; At the time, the Missouri Court of Appeals had recently held that an arbitration agreement was enforceable even though it designated the NAF as arbitrator in <i>A-1 Premium Acceptance v. Hunter</i>, WD79735, 2017 WL 3026917, at * 5 (Mo. App. W.D. July 18, 2017).&nbsp; The trial court granted Car Credit&rsquo;s renewed motion and Pitts&rsquo; claims proceeded to arbitration.&nbsp; After the trial court granted arbitration of Pitts&rsquo; claims, the Missouri Supreme Court overruled the Court of Appeals&rsquo; decision in the separate case,<i> A-1 Premium Acceptance v. Hunter</i>, 557 S.W.3d 923, 929 (Mo. banc 2018), and held that separate organization could not arbitrate disputes where the NAF was unavailable.&nbsp;</p> <p>Meanwhile, in Pitts&rsquo; case, since the NAF was unavailable, an arbitrator from the American Arbitration Association (&ldquo;AAA&rdquo;) reviewed Pitts&rsquo; claims.&nbsp; That arbitrator found in favor of Car Credit.&nbsp; Based on that determination, the trial court entered judgment in favor of Car Credit and decertified the class action claims.&nbsp; Pitts appealed.&nbsp;</p> <p>The Court of Appeals reversed, holding that since Pitts and Car Credit agreed to resolve their disputes before the NAF, the AAA arbitrator lacked the authority to determine the validity of Pitts&rsquo; claims.&nbsp; The appellate Court held that the applicable federal law&mdash;the Federal Arbitration Act&mdash;does not require a court to compel arbitration when the parties agree to arbitrate only before a specified arbitrator.&nbsp; Furthermore, the Missouri Supreme Court&rsquo;s recent decision in <i>A-1 Premium Acceptance v. Hunter </i>was on point.&nbsp; In both cases, the parties agreed that the NAF would resolve disputes: &ldquo;[T]he agreement clearly provided the parties the opportunity to identify an organization other than NAF, and, with equal clarity, the parties unambiguously declined to do so . . .&rdquo;</p> <p>&nbsp;While Car Credit will have the opportunity to appeal this decision to the Missouri Supreme Court, it is likely that the recent decision in <i>A-1 Premium Acceptance v. Hunter </i>will result in Pitts&rsquo; claims against Car Credit, including Pitts&rsquo; class action claims, moving forward.&nbsp; If the applicable arbitration agreement had designated a different arbitrator from the NAF, or had provided an alternative arbitrator, Pitts&rsquo; claims likely would have been resolved through arbitration.&nbsp; Careless drafting was also a key factor here.&nbsp; Pitts entered into this agreement in 2011, nearly two years <u>after</u> the NAF had stopped arbitration.&nbsp; Had the applicable arbitration agreement been updated to remove the NAF as arbitrator and designate a different organization after Minnesota&rsquo;s lawsuit in 2009, Car Credit may have been able to successfully compel arbitration.&nbsp; Parties seeking to resolve disputes through arbitration should be careful to ensure their agreements are up to date with the current law.&nbsp;&nbsp;</p>