BSCR Firm News/Blogs Feed Aug 2020 00:00:00 -0800firmwise's Be Specific About Personal Jurisdiction: Missouri and Illinois Address Bristol-Myers Squibb v. Superior Court of California Jul 2020Missouri Law Blog<p>The Supreme Courts of Missouri and Illinois have recently addressed the constitutional limitations on the exercise of specific personal jurisdiction. In both states, the Courts held that due process prohibits the exercise of specific personal jurisdiction over out-of-state defendants in cases where the defendant does not have sufficient minimum contacts with the forum state and in cases where the alleged injury does not arise from those contacts.</p> <p>In <i>State ex rel. LG Chem, Ltd. v. The Hon. Nancy Watkins Laughlin</i>, 2020 Mo. LEXIS 193 (Mo. banc June 2, 2020), Plaintiff Peter Bishop brought suit against Defendant LG Chem, a Korean company, in St. Louis County Circuit Court. Bishop alleged he was injured when a lithium-ion battery manufactured by LG Chem exploded in his pocket. Bishop also alleged LG Chem sold the battery to an intermediate distributor, which independently sold the battery to a retailer of electronic cigarettes in Missouri from whom Bishop purchased the battery.</p> <p>LG Chem moved for dismissal based on lack of personal jurisdiction. In opposing LG Chem&rsquo;s motion, Bishop relied on <i>Bristol-Myers Squibb Co. v. Superior Court of California,</i> 137 S. Ct. 1773 (2017). In <i>Bristol-Myers</i>, the United States Supreme Court held that a state court could not exercise specific personal jurisdiction over an out-of-state defendant unless there was &ldquo;an affiliation between the forum and the underlying controversy, principally&hellip;an occurrence that takes place in the forum state.&rdquo; <i>Id.</i> at 1781. Bishop argued there was a sufficient &ldquo;affiliation&rdquo; between Missouri and the underlying controversy to justify the exercise of specific personal jurisdiction over LG Chem because the battery had made its way to Missouri through the third-party distributor and caused injury in Missouri. LG Chem&rsquo;s motion to dismiss was denied.&nbsp;Ultimately, the Missouri Supreme Court found Bishop&rsquo;s application of <i>Bristol-Myers</i> to be overbroad and held the actions of a third party, standing alone, cannot be used to satisfy the due process requirement of the specific personal jurisdiction analysis. Since the subject battery had been sold to the Missouri retailer by an independent third party, the Court directed the circuit court to vacate its order overruling LG Chem&rsquo;s motion to dismiss for lack of personal jurisdiction.</p> <p>Two days later, the Supreme Court of Illinois also issued an opinion addressing the exercise of personal jurisdiction over an out-of-state defendant, but unlike the Missouri case, the case involved claims brought by out-of-state plaintiffs. In <i>Rios v. Bayer Corp.,</i> 2020 IL 125020 (June 4, 2020), the Court held that due process did not allow Illinois courts to exercise specific personal jurisdiction over an out-of-state defendant as to the claims of out-of-state plaintiffs for personal injuries suffered outside of the state from a device manufactured outside of the state. At issue were two cases, both filed in Madison County, Illinois, in which 180 women from more than twenty states alleged injuries related to the use of a permanent birth control device called Essure. The out-of-state plaintiffs had not had the Essure device prescribed or implanted in Illinois and had not sought treatment for their alleged injuries in Illinois. Bayer moved for dismissal of the out-of-state plaintiffs&rsquo; claims based on lack of personal jurisdiction. In response to Bayer&rsquo;s motion, the out-of-state plaintiffs argued the trial court could exercise specific personal jurisdiction over Bayer for their claims because Bayer had developed, labeled, marketed and worked on gaining regulatory approval for Essure in Illinois, and the plaintiffs&rsquo; claims arose, in part, from those &ldquo;minimum contacts&rdquo; between Bayer and the State of Illinois.&nbsp;</p> <p>While Bayer&rsquo;s motion was pending in the trial court, the United States Supreme Court issued its opinion in <i>Bristol-Myers</i>. Despite the new guidance provided in <i>Bristol-Myers</i>, the trial court denied Bayer&rsquo;s motion, relying on <i>M.M. v. GlaxoSmithKline LLC,</i> 2016 IL App (1<sup>st</sup>) 151909, wherein the Illinois Court of Appeals had found the exercise of personal jurisdiction over an out-of-state defendant did not violate the due process clause in product liability cases brought by out-of-state plaintiffs where clinical trials had been conducted in Illinois. Bayer appealed. The appellate court held the exercise of personal jurisdiction over Bayer by the trial court was constitutional because the out-of-state plaintiffs&rsquo; claims arose, at least in part, from Bayer&rsquo;s marketing, clinical trials and physician accreditation programs related to Essure in Illinois.</p> <p>Ultimately, the Illinois Supreme Court reversed the appellate and trial courts. The Court determined <i>Bristol-Myers</i> had foreclosed the plaintiffs&rsquo; theory of specific personal jurisdiction and concluded that the out-of-state plaintiffs&rsquo; claims did not arise out of Bayer&rsquo;s activities in Illinois; therefore, due process did not allow the trial court&rsquo;s exercise of specific personal jurisdiction over Bayer as to the out-of-state plaintiffs&rsquo; claims.&nbsp;&nbsp;</p> <p>These cases represent the first application of the limitations on specific personal jurisdiction expressed in <i>Bristol-Myers</i> by each state&rsquo;s Supreme Court.&nbsp;The conclusion reached by both Courts emphasizes the importance of conducting a comprehensive evaluation of a defendant&rsquo;s contacts with the forum state immediately upon service of the summons in every instance.</p> You Compel Arbitration? You May Have the Right to Ask Your Arbitrator Jul 2020Missouri Law Blog<p>Do you have a valid and enforceable arbitration agreement? Is your arbitration provision unconscionable?&nbsp;Have you waived your right to arbitration?&nbsp;Missouri litigants may have the right to submit these threshold legal questions to an arbitrator.</p> <p>In <i>TD Auto Finance, LLC v. Bedrosian</i>, the Missouri Court of Appeals, Eastern District, reversed the circuit court&rsquo;s denial of a motion to compel arbitration, <a href="">finding</a> that the threshold issues of arbitrability were delegated to an arbitrator under the parties&rsquo; agreement and the circuit court erred in finding a lack of consideration for the arbitration agreement.</p> <p>Bedrosian purchased a vehicle from a Missouri dealership.&nbsp;In seeking to finance her purchase, Bedrosian executed a Credit Application through TD Auto Finance, LLC (&ldquo;TD Auto&rdquo;).&nbsp;Bedrosian ultimately defaulted on her loan payments.&nbsp;TD Auto repossessed and sold the vehicle and then sued Bedrosian to the collect the deficiency.&nbsp;Bedrosian answered and filed a counterclaim.&nbsp;TD Auto moved to compel arbitration.</p> <p>The credit application contained a section titled: &ldquo;IMPORTANT CONTRACT OF ARBITRATION.&rdquo; (Capitalized text in original)&nbsp;The arbitration provisions that provided &ldquo;If any of us chooses, any dispute between or among us will be decided by arbitration and not in court&rdquo; and &ldquo;Any claim or dispute, whether in contract &hellip; (including any dispute over the interpretation, scope, or validity of this Important Contract of Arbitration or the arbitrability of any issue)&hellip; shall, at the election of any of us&hellip; be resolved by neutral, binding arbitration and not by a court action.&rdquo;</p> <p>Bedrosian opposed arbitration claiming: (1) the purported arbitration agreement was never formed or concluded because it lacked mutual promises and thus lacked consideration; (2) even if the arbitration agreement had been formed, the agreement was unconscionable; and (3) event if the agreement was valid and enforceable TD Auto had waived its right to arbitration by repossessing the vehicle and initiating a lawsuit against her.&nbsp;The trial court agreed with all three points raised by Bedrosian and denied the motion to compel arbitration.</p> <p>On appeal, TD Auto contended: (1) the claims addressed by the circuit court were reserved for an arbitrator to decide, including the threshold issues of arbitrability; and (2) the court erred in finding a lack of consideration because the arbitration provision was part of the credit application which did have mutual obligations.</p> <p>The Court of Appeals found that the circuit court erred in evaluating separate consideration for the arbitration provision because under <i>Eaton v. CMH Homes, Inc.</i>, mutuality of the whole agreement satisfies the consideration for an arbitration provision.&nbsp;</p> <p>The Court of Appeals also found that like arbitration in general, the question of who decides threshold arbitrability questions is a matter of contract and that the parties can agree by contract that an arbitrator will resolve threshold arbitrability questions as well as the underlying disputes.&nbsp;</p> <p>The Court of Appeals thus concluded that threshold questions of arbitrability, concerning unconscionability and waiver by litigation were &ldquo;reserved for the arbitrator. The circuit court should not have ruled on these matters.&rdquo;</p> and Possible Changes to Workers' Compensation Laws in Illinois and Missouri Jun 2020Missouri Law Blog<p>As employees slowly begin to return to work in &ldquo;the new normal&rdquo; following mandatory stay-at-home orders across the country, employers in Illinois and Missouri are busy establishing policies in compliance with opening orders and guidelines. To mitigate the risk of potential workers&rsquo; compensation claims, employers should be aware of possible changes to workers&rsquo; compensation laws due to COVID-19 exposure in the workplace.</p> <p>On April 13, 2020, the Illinois Workers Compensation Commission passed an emergency rule in response to the COVID-19 pandemic.&nbsp; This rule created a rebuttable presumption of compensability in favor of employees classified as first responders and essential front-line workers during the COVID-19 state of emergency.&nbsp; For those individuals, the rule imposed a rebuttable presumption that the individual&rsquo;s exposure arises out of and in the course of employment and is causally connected to their employment.&nbsp;</p> <p>In response, the Illinois Manufacturers Association and Illinois Retail Merchants Association requested a Temporary Restraining Order, which was granted on April 24, 2020.&nbsp; The emergency rule was thereafter withdrawn by the IWCC.&nbsp; COVID-19 may still be considered a compensable occupational disease under the Illinois Workers&rsquo; Compensation Act, but there is no longer a rebuttable presumption of compensability following withdrawal of the rule.&nbsp;</p> <p>In Missouri, Governor Mike Parson directed the Department of Labor and Industrial Relations to implement an emergency rule that will provide workers compensation benefits to first responders who contract COVID-19.&nbsp; On April 7, 2020, the Department of Labor and its Division of Workers&rsquo; Compensation filed an emergency rule creating a presumption that First Responders infected by or quarantined due to COVID-19 are deemed to have contracted a contagious or communicable occupational disease arising out of and in the course of the performance of their employment.&nbsp; &ldquo;First Responders&rdquo; include law enforcement officers, firefighters or an emergency medical technicians.&nbsp;&nbsp;</p> <p>The presumption created by the rule is rebuttable in the event a subsequent medical determination establishes by clear and convincing evidence that (1) the First Responder did not actually have COVID-19, or (2) the First Responder contracted or was quarantined for COVID-19 resulting from exposure that was not related to the First Responder&rsquo;s employment.</p> <p>The Labor and Industrial Relations Commission voted unanimously to approve the emergency rule on April 8, 2020, with an effective date of April 21, 2020.&nbsp; However, the rule is retroactive.&nbsp; The full text of 8 CSR 50-5.005 can be found&nbsp;<a href="">here</a>.</p> <p>Unlike the emergency rule attempted in Illinois, only First Responders are provided with a presumption of an occupational disease under the Missouri emergency rule.&nbsp; To date,&nbsp; no further amendments&nbsp; have been introduced to expand the presumption created by the emergency rule to&nbsp; non-First Responders, however, as more and more businesses slowly open following the lifting of the stay-at-home orders issued through Missouri, employers may find themselves receiving COVID-19-related workers&rsquo; compensation claims.&nbsp; COVID-19 has been classified as a communicable disease by the State of Missouri and communicable diseases are included in the definition of &ldquo;occupational disease&rdquo; under Missouri Workers&rsquo; Compensation Law.</p> <p>As in all states, laws and regulations related to the COVID-19 pandemic are ever-changing in Illinois and Missouri.&nbsp; The area of workers&rsquo; compensation is no exception and additional changes and expansions to the current laws are possible.&nbsp;&nbsp;&nbsp; Employers in both states should remain aware of those changes in order to better anticipate potential claims, mitigate risk and create workplaces that protect employees from exposure to the best of their ability.</p> A Product Problem? Go To The Origin. May 2020Missouri Law Blog<p>Got a problem? Go to the source.&nbsp;Got a product problem?&nbsp;Go to its origin.</p> <p>At least that is what Plaintiff Timothy Farkas, and his expert, should have done to avoid dismissal of Farkas&rsquo; product liability claims.</p> <p>In <a href=""><i>Farkas v. Addition Manufacturing Technologies, LLC</i></a>, the U.S. Court of Appeals for the Eighth Circuit affirmed an Eastern District of Missouri judgment, finding that Farkas failed to establish that the product at issue, a tube-end forming machine, was inherently defective or dangerous. The Court&rsquo;s ruling centered on Farkas&rsquo; failure to provide evidence of a defect that existed when the product entered the stream of commerce.</p> <p>Farkas sued Addition Manufacturing after his fingers were severely injured by a tube-end forming machine, which uses a hydraulic clamp to crimp metal tubes.&nbsp;Addition was the machine designer&rsquo;s successor.&nbsp;The predecessor company sold the machine in 1992 with a point-of-operation guard, which prevented the operator&rsquo;s fingers from fitting in the clamps that went around the tube to shape the end of the tube when there was a tube in the machine.&nbsp;The specific guard present at the time of sale, however, only applied to a single size of tubing, which was specified by the original customer. The machine, however, was technically capable of crimping multiple sizes of tube.&nbsp;</p> <p>Various companies bought and sold the machine over the years.&nbsp;In 2014, Farkas&rsquo; employer purchased the machine, whose guard was still configured only for a single size of tubing.&nbsp;Because Farkas&rsquo; employer wanted to process multiple sizes of tubing, it hired a company to alter the guard, to accommodate multiple sizes of tube. Farkas was subsequently injured when he used the machine to crimp a piece of tube that was smaller than the guard.</p> <p>Farkas brought his lawsuit against Addition for strict liability for the product&rsquo;s design defect and failure to warn about the defect and for negligently manufacturing the product. &nbsp;&nbsp;Addition, as the legal successor to the manufacturer who made the machine in its original configuration, moved for summary judgment on the grounds that Farkas was required to and failed to provide evidence that the <i>original </i>guard on the machine was inadequate at the time of the machine&rsquo;s <i>initial </i>sale.</p> <p>To succeed on the strict liability claim for product defect, Farkas had to offer proof that:</p> <ol> <li>The machine was in an unreasonably defective condition when put to a reasonably anticipated use;</li> <li>The machine was used in a manner reasonably anticipated; and</li> <li>The machine was damaged as a direct result of such <i>defective condition as existed when the product was sold</i>.</li> </ol> <p>To succeed on a strict liability failure-to-warn claim, Farkas had to prove that:</p> <ol> <li>&nbsp;Addition sold the machine in question in the course of its business;</li> <li>The machine was unreasonably dangerous <i>at the time of sale</i> when used as reasonably anticipated without knowledge of its characteristics;</li> <li>Addition did not give adequate warning of the danger;</li> <li>The machine was used in a reasonably anticipated manner; and</li> <li>Farkas was damaged as a direct result of the machine being sold without an adequate warning.</li> </ol> <p>The common link?&nbsp;Both claims require Farkas to go back to the machine&rsquo;s (and the guard&rsquo;s) beginnings.&nbsp;Farkas&rsquo; expert, however, relied on the wrong guard on the machine.&nbsp;Indeed, the expert relied on the guard present at the time of the injury, not the guard present at the time Addition&rsquo;s predecessor sold the machine in 1992.&nbsp;As such, there was no evidence of the original guard&rsquo;s appropriateness and relevant industry standards.</p> <p>In other words, Farkas was required to offer proof that the machine was defective or dangerous at the time of sale by the predecessor of Addition to the original customer &ndash; not at the time of the sale to Farkas&rsquo; employer or the time of Farkas&rsquo; injury. &nbsp;However, Farkas&rsquo; failure to go back to the machine&rsquo;s origin cost him his lawsuit and his appeal.&nbsp;</p> House Approves Stricter Standards for Punitive Damages Claims May 2020Missouri Law Blog<p><em><strong>In an update to our below post, Senate Bill 591 (which seeks to impose stricter standards for the application of punitive damages) cleared the Missouri House on May 12, 2020 in a 98-51 vote. The Bill, now on its way to Governor Parson for his signature, will likely go into effect on August 28, 2020. Governor Parson is expected to sign the measure without veto.&nbsp;</strong></em></p> <hr /> <h2>Missouri Senate Approves Stricter Standard for Punitive Damages Claims</h2> <p><small>March 20, 2020 | Jonathan Benevides and Ashtyn Kean</small></p> <p>A bill that would impose stricter standards for the application of punitive damages was swiftly advanced by the Missouri Senate late last month. Senate Bill 591 would establish new procedural and substantive restrictions on punitive damages.&nbsp;Currently, to recover punitive damages in Missouri, a plaintiff must show by clear and convincing evidence that the defendant acted with either &ldquo;indifference to or conscious disregard for the safety of others.&rdquo; <i>Schroeder v. Lester Cox Medical Center, Inc.</i>, 833 S.W.2d 411, 413 (Mo. Ct. App. 1992). Senate Bill 591, would increase the plaintiff&rsquo;s burden of proof and require a plaintiff to prove that the defendant either &ldquo;intentionally harmed the plaintiff without just cause&rdquo; or acted with &ldquo;deliberate and flagrant disregard for the safety of others.&rdquo;</p> <p>In addition to increasing the plaintiff&rsquo;s burden of proof, the Bill also changes the procedure for prosecuting punitive damages claims. Under current Missouri law, a plaintiff may seek punitive damages in his/her initial pleading. Senate Bill 591 would prohibit a plaintiff from including a claim for punitive damages in his/her initial pleading, and require that the plaintiff first seek leave of court to assert a claim for punitive damages. The court shall grant leave only if it concludes that based on the evidence to be admitted at trial, the trier of fact could &ldquo;reasonably conclude, based on clear and convincing evidence, that the standards for a punitive damages award &hellip; have been met.&rdquo;</p> <p>According to Senate Majority Leader and Columbia Republican, Caleb Rowden, &ldquo;the punitive damages legislation is the top priority for Republicans among various proposals targeting liability lawsuits.&rdquo; The Bill&rsquo;s sponsor, Republican Bill White stated, &ldquo;the Bill is intended to prevent punitive damage claims from being used as leverage to get bigger settlements from businesses in cases that might involve negligence but not intentionally malicious actions.&rdquo;</p> Circuit Holds Federal Question Jurisdiction Can Be Found in the Details May 2020Missouri Law Blog<p>A recent <a href=" ">opinion</a> from the U.S. Court of Appeals for the Eighth Circuit reminds practitioners that federal jurisdiction is born from the substance of the claims made and relief sought, not by the titles given to each cause of action.&nbsp;In <i>Wullschleger v. Royal Canin U.S.A., Inc.</i>, 2020 U.S. App. LEXIS 8038 (8th Cir., March 13, 2020), the plaintiffs sought to represent a class of Missouri plaintiffs who purchased prescription pet foods at premium prices from defendants Royal Canin and Purina PetCare.&nbsp;Plaintiffs alleged they were deceived into believing the products were approved by the United States Food and Drug Administration.&nbsp;The U.S. District Court for the Western District of Missouri remanded the case to the Jackson County, Missouri, Circuit Court, finding it lacked subject matter jurisdiction.&nbsp;The Eighth Circuit granted defendants&rsquo; petition for review of the order of remand, limiting its review to the issue of federal question jurisdiction.&nbsp;Upon review of the plaintiff&rsquo;s Petition, the court concluded federal question jurisdiction in fact did exist and vacated the district court&rsquo;s remand order.</p> <p>The case involved the defendants&rsquo; &ldquo;prescription&rdquo; pet foods, which require the purchaser to consult with a veterinarian and obtain a prescription before purchase.&nbsp;The defendants represented that the pet foods are therapeutic formulas for specific health issues and may not be tolerated by all pets.&nbsp;Defendants did not, however submit these pet foods for evaluation by the FDA and, as such, a prescription is not required by law.&nbsp;Plaintiffs&rsquo; Jackson County Petition alleged only state law claims, including violations of the Missouri Merchandising Practices Act, Missouri antitrust laws, and Missouri unjust enrichment law.&nbsp;</p> <p>On review, the Eighth Circuit noted that federal jurisdiction exists only when a federal question is presented on the face of a plaintiff&rsquo;s properly pleaded complaint.&nbsp;In this way, a plaintiff controls whether federal jurisdiction exists, and he may avoid federal question jurisdiction by relying exclusively on state law.&nbsp;Plaintiffs here argued they merely asserted claimed violations of federal law as elements of their state causes of action, which the United States Supreme Court in <i>Merrell Dow Pharm. Inc. v. Thompson</i>, 478 U.S. 804, 814 (1986), has held insufficient on its own to confer federal question jurisdiction.&nbsp;</p> <p>The appellate court disagreed with plaintiffs.&nbsp;While the Merchandising Practices Act claim, as alleged, could likely be resolved without depending on federal law, plaintiffs chose to premise their Missouri antitrust and unjust enrichment claims on violations and interpretations of federal law.&nbsp;Plaintiffs alleged that defendants violated the Federal Drug and Cosmetics Act and were non-compliant with FDA guidance.&nbsp;The antitrust and unjust enrichment claims, therefore, cannot be adjudicated without reliance on and explication of federal law.&nbsp;The court also noted that plaintiffs&rsquo; prayer for relief requires the interpretation and application of federal law.&nbsp;Specifically, plaintiffs prayed for judgment finding defendants violated both state and federal law and compelling them to comply with all federal and Missouri provisions applicable to pet food as a &ldquo;drug.&rdquo;&nbsp;In this way, according to the court, the face of the plaintiffs&rsquo; Petition gave rise to federal question jurisdiction, and plaintiffs&rsquo; isolated focus on their state law claims was nothing more than an apparent attempt to avoid federal jurisdiction.&nbsp;</p> <p>The opinion underscores a plaintiff&rsquo;s power to avoid federal question jurisdiction through his or her own pleadings.&nbsp;It also serves to remind defendants seeking removal of the importance of looking beyond the presence of purely state law claims to find allegations which might support federal question jurisdiction.</p> is Everything: Missouri Appellate Court Reminds Us Evidence Cannot be Excluded as "Subsequent Remedial Measures", Where the Remedies Preceded the Accident Apr 2020Missouri Law Blog<p>In&nbsp;<i>Patricia Watson v. City of St. Peters</i>, the plaintiff alleged she was riding her bicycle along a stretch of sidewalk in the City of St. Peters, Missouri in late August 2014 where she had never ridden before. After cresting a hill the plaintiff testified she saw &ldquo;something bizarre in the middle of the sidewalk&rdquo; which turned out to be a sump inlet designed to funnel storm water from the street into a storm sewer at the bottom of the hill.&nbsp; The inlet extended into the sidewalk, creating an opening and narrowing the traversable portion of the sidewalk.</p> <p>At the same time, a witness happened to drive past plaintiff as she rode down the hill and also saw the inlet jutting into the sidewalk.&nbsp; The witness later testified that he was concerned that the plaintiff might not see the opening in the sidewalk and thus checked his rearview mirror.&nbsp; When he did, the witness saw the front wheel of the plaintiff&rsquo;s bicycle go into the inlet, causing her to flip head-first onto the sidewalk and resulting in multiple facial fractures.&nbsp; The plaintiff subsequently sued the City of St. Peters for negligence, alleging the inlet was an unreasonably dangerous condition that was not open and obvious, and sought monetary damages for her personal injuries.&nbsp;</p> <p>At trial, the City introduced evidence that the traversable portion of the sidewalk was four feet wide and that it had been constructed in compliance with local and state requirements, as well as the federal Americans with Disabilities Act.&nbsp;</p> <p>In response, the plaintiff sought to introduce evidence of a 2012 bicycle accident involving a sump inlet in a sidewalk at a different location in the City and the City&rsquo;s resulting program to retrofit or bridge all of the sump inlets to make the City&rsquo;s sidewalks safer.&nbsp; Outside of the hearing of the jury, a representative of the City testified the City began retrofitting its sump inlets after learning of the 2012 bicycle accident and before the plaintiff&rsquo;s accident in 2014.&nbsp; He also confirmed the City had planned to retrofit all the sump inlets citywide, but had not erected any warning signs or painted the curbs around the sump inlets while the retrofitting was ongoing.</p> <p>The trial court subsequently refused plaintiff&rsquo;s offer of proof and excluded evidence of the 2012 bicycle accident and the City&rsquo;s sump inlet retrofitting program.&nbsp; The trial court also excluded references in a written statement from the witness describing the inlet as extending &ldquo;extremely&rdquo; into the sidewalk and constituting a &ldquo;hazard,&rdquo; while admitting a prior inconsistent statement attributed to the plaintiff from a police report that she had ridden on the stretch of sidewalk &ldquo;every day&rdquo;.&nbsp; The jury returned a verdict attributing one hundred percent of the fault to the plaintiff and finding in favor of the City.</p> <p>On appeal, the plaintiff asserted the trial court erred by excluding evidence that the City had notice of a problem with the sump inlets and had taken steps to make the design safer <i>before</i> the plaintiff&rsquo;s accident.&nbsp; &nbsp;&nbsp;</p> <p>The Missouri Court of Appeals for the Eastern District agreed with the plaintiff and<a href=""> held</a> that the trial court abused its discretion in excluding as subsequent remedial measures the evidence that the City had notice of a problem with the sump inlets and had taken steps to make the design safer before the plaintiff&rsquo;s accident.&nbsp; The Appellate Court commented that the public-policy rationale for the general rule excluding post-accident remedial measures did not apply to a defendant like&nbsp;the City who was aware of a problem and had already proposed remedial measures before an accident like the one at issue had occurred.&nbsp; &nbsp;</p> <p>The appellate court further noted that the exclusion of the &ldquo;clearly material and probative evidence&rdquo; of the City&rsquo;s retrofitting program prejudiced the plaintiff by hindering her ability to prove an essential element of the case regarding the City&rsquo;s knowledge of the condition.&nbsp; Thus, the appellate court reversed the trial court&rsquo;s exclusion of the evidence and remanded the case for a new trial.</p> The appellate court&rsquo;s decision in <i>Watson</i> was limited to the specific facts of the case concerning the defendant&rsquo;s knowledge and actions before the accident.&nbsp; While it did not abrogate the longstanding rule in Missouri that a trial court should exclude evidence of subsequent remedial measures in a negligence case, defense counsel should remain wary of efforts to cite the decision in future cases to avoid application of the rule under dissimilar circumstances.&nbsp; &nbsp; Have Feelings Too? Apr 2020Missouri Law Blog<p>In <i>Revis v. Bassman</i> (<a href="">ED107663</a>), Missouri&rsquo;s Eastern District Court of Appeals recently reversed and remanded the trial court&rsquo;s ruling barring Plaintiff from cross examining the defense expert on his tort reform activity.</p> <p>In the underlying case, <i>Revis</i> alleged Dr. Bassman was medically negligent in delaying surgery for her fractured heel. At trial, Plaintiff made an offer of proof that Dr. Bassman&rsquo;s orthopedic surgery expert, Dr. Brett Grebing, served as the President of the Madison County Medical Society from 2012 to 2013, during which time he advocated for enforcement of Illinois&rsquo; statute of limitations for certificates of merit and reinstating damage caps. Plaintiff further showed that, despite Dr. Grebing&rsquo;s prior deposition testimony where he testified it was &ldquo;fair to say&rdquo; he had engaged in tort reform activities, Dr. Grebing would deny such activities at trial. This discrepancy could have impacted his credibility with jurors. Plaintiff argued this evidence was necessary to show Dr. Grebing&rsquo;s general and personal bias against plaintiffs in medical malpractice cases. The trial court barred the evidence, but the appellate court ruled this was an abuse of discretion.</p> <p>Missouri law is well-settled that jurors are entitled to information that might affect witness credibility and the weight of witness testimony. Missouri courts have consistently held that the bias or interest of a witness is never irrelevant and cross-examination on such issues, while within the discretion of the court, should generally be permitted.</p> <p>The Court of Appeals relied on <i>Koelling v. Mercy Hospitals East Communities</i>, in which the trial court barred the cross-examination of a defense expert about his prior deposition testimony regarding his anger, frustration, and bias against medical malpractice claims, arising from his personal experience of being sued in medical malpractice suits, and a judgment against him. 558 S.W.3d 543 (Mo. App. E.D. 2018).&nbsp; The <i>Koelling </i>trial court barred the evidence, which the appellate court ruled was an abuse of discretion because it showed the expert&rsquo;s bias against medical malpractice claims.</p> <p>Here, the appellate court was unconvinced that any factual differences between <i>Revis</i> and <i>Koelling</i> were consequential. The Court reasoned that Dr. Grebing&rsquo;s denial of tort reform activities, despite earlier deposition testimony to the contrary, may have impacted his credibility with the jury. Additionally, his advocacy as a medical professional in favor of damage caps could be viewed by jurors as a direct financial interest in medical malpractice reform.&nbsp; Jurors could thus conclude Dr. Grebing&rsquo;s efforts to limit monetary awards against all doctors could play a role in his testimony in this case.&nbsp;</p> <p>The Eastern District Court of Appeals ultimately held the trial court abused its discretion in barring Plaintiff&rsquo;s cross examination of Dr. Grebing regarding his tort reform activities because&nbsp; it should have been up to jurors to determine if his tort reform efforts were a source of potential bias or prejudice.</p> <p>The <i>Revis</i> ruling was not unanimous. In his dissent, Judge Odenwald wrote that the factual distinction between <i>Revis</i> and <i>Koelling</i> <u>was</u> important. The evidence at issue in <i>Koelling</i> was of a personal nature. In <i>Revis</i>, Plaintiff was allowed to thoroughly cross examine Dr. Grebing regarding his personal litigation history. The issue on appeal was the questioning of Dr. Grebing regarding his professional activities, which the trial court found was simply too tangential and remote to show bias and could confuse the jury, was well within the trial court&rsquo;s discretion.</p> The Eastern District Court of Appeals may provide further clarification and parameters on this issue in future cases. Until that time, counsel may deem it prudent to consult with their current and future experts regarding their feelings related to personal litigation experience and tort reform activities to avoid any surprises at trial.&nbsp; City Area Saw Increase in Defense Verdicts in 2019, According to Annual Jury Data Mar 2020Missouri Law Blog<p>Data released by the Greater Kansas City Jury Verdict Service about jury trials in 2019 shows that results are broadly trending in favor of defendants. Defendants prevailed on almost 60% of the claims decided by KC-area juries last year, representing an improvement over their win rate in 2018.&nbsp;Calendar year 2019 also saw a drop of nearly 30% in the number of verdicts over $1,000,000, despite a modest increase in the total number of claims decided by juries.&nbsp;</p> <p><b>Defendants Are Trying More Claims &amp; Winning More Often</b></p> <p>86 different juries in the Kansas City area decided a total of 181 claims in 2019 (with some cases involving multiple claims).&nbsp;75 of those 181 verdicts (41%) resulted in some amount of recovery to the plaintiff(s), while 106 (59%) ended in defense verdicts.</p> <p>Compared to 2018, this represents an increase of about 8% in the total number of verdicts handed down.&nbsp;Despite taking more claims to juries, defendants&rsquo; win rate improved by about 7% from the prior year, when roughly 52% of jury verdicts were for the defendant(s).&nbsp;This continues a trend from 2017, when defendants won roughly 51% of jury verdicts.&nbsp;From 2014-2016, plaintiffs&rsquo; win rate had been on the rise.<br /> <br /> &nbsp;&nbsp;<img src=" GLVKV_Chart 1.PNG" hspace="0" vspace="0" align="absmiddle" alt="" border="0" width="471" height="284" /></p> <p><b>Big Verdicts Continue to Fall</b></p> <p>The data contained other encouraging news for KC-area defendants and defense attorneys. When juries did award damages last year, the figures were generally smaller than they have been in recent years.&nbsp;</p> <p>Last year saw 10 only verdicts of $1,000,000 or more in the Kansas City area, compared to 14 in 2018&mdash;a decrease of roughly 29%.&nbsp;In terms of percentages of all verdicts, million-dollar awards fell from 8.3% in 2018 to 5.5% in 2019.&nbsp;The proportion of six-figure jury awards held steady at about 17% (31 out of 181 verdicts in 2019, compared to 29 out of 168 in 2018).&nbsp;Awards of less than $100,000 accounted for about 19% of all verdicts in 2019.&nbsp;<br /> <br /> <img src=" GKCJV_Chart 2.PNG" hspace="0" vspace="0" align="absmiddle" alt="" border="0" width="471" height="284" /><br /> &nbsp;</p> <p><b>Although the Average Amount Awarded Increased, Initial Impressions are Misleading</b></p> <p>Although the value of the average plaintiffs&rsquo; verdicts grew by almost 25% ($2.26 million in 2019, compared to $1.81 million in 2018), a closer examination reveals that figure to be fundamentally misleading; the increase is entirely attributable to a single verdict of nearly $118 million handed down in a federal-court commercial dispute. While 2018 also had just one very large verdict, 2019&rsquo;s outlier was roughly $42 million more than the 2018&rsquo;s ($76 million).&nbsp;When each year&rsquo;s lone outlier is set aside, the average amount awarded fell by 22%, from roughly $882,500 in 2018 to about $692,000 in 2019.</p> <p>Keep in mind, too, that the figures above include only claims in which the verdict resulted in some amount of recovery for the plaintiff(s).&nbsp;When defense verdicts are factored into the equation, the average result for all claims decided by area juries in 2019 was an award of $934,000, compared to $873,000 in 2018 (a 7% increase).&nbsp;Once again setting aside each year&rsquo;s single highest verdict, the average award for all claims decided by area juries in 2019 drops to just $284,624, compared to $423,150 in 2018 (a 32% decrease).</p> <p><b>Juries in Missouri State Courts Prove Most Generous</b></p> <p>State courts awarded 7 of the 10 million-dollar verdicts in 2019, most of which originated on the Missouri side of the state line: 4 in Jackson County, MO (Kansas City); 1 in Clay County, MO; 1 in Platte County, MO; 1 in Johnson County, KS; 2 in Missouri federal court (W.D. Mo.); and 1 in Kansas federal court (D. Kan.).</p> <p>Of the 31 six-figure verdicts in the Kansas City area in 2019, 19 came from Jackson County, Missouri&mdash;7 in Kansas City and 12 in Independence.&nbsp;The remaining 12 were spread among Clay County, MO (5); Missouri federal court (W.D. Mo.) (3); Johnson County, KS (2); and Kansas federal court (2).</p> <p>This tracks with the general feeling among local practitioners that Jackson County is by far the most plaintiff-friendly venue in the area, and that state courts tend to hand out bigger verdicts than federal courts.</p> Court of Missouri Overturns $2.3 Million Negligent Credentialing Verdict but Grants New Trial Feb 2020Missouri Law Blog<p>In a case of first impression, the Supreme Court of Missouri, in <i>Thomas E. Tharp, et al. v. St. Luke&rsquo;s Surgicenter-Lee&rsquo;s Summit, LLC</i>, <a href="">overturned</a> a $2.3M verdict and granted a new trial after the unusual step of holding a rehearing and vacating an earlier opinion.</p> <p>In February 2019, the Court overturned a jury verdict in favor of a patient and his wife against a surgery center because there was no proof the surgery center negligently granted staff privileges to a surgeon. Though other Missouri courts had recognized the existence of a negligent credentialing cause of action, this opinion was the first from the Supreme Court of Missouri to address the essential elements of such a claim.&nbsp;</p> <p>At the rehearing, the plaintiffs claimed they possessed additional evidence which, if presented upon retrial, would allow them to make a submissible case of negligent credentialing.&nbsp; This purportedly includes evidence of low scores the surgeon received on continuing medical education exams, thus suggesting an inability to retain essential knowledge necessary to competently perform surgery.&nbsp; This also purportedly includes evidence of the surgeon's litigation history showing he was sued more frequently as he aged, and expert witness testimony regarding the significance of the statistics.&nbsp; The Court did not take a position on the admissibility of this proffered new evidence, or its probative value (which is for a jury to decide), but the Court found this sort of evidence could possibly support a finding that the surgeon was incompetent or generally careless, which is the required standard for a negligent credentialing claim.</p> <p>The Court said it decided to hold a rehearing and order a new trial because it would be manifestly unfair to deny the plaintiffs a new trial when they did not know and could not have known what evidence the Court would require to make a submissible case.&nbsp; Legal precedent requires remand for a new trial if the plaintiff's legal failure was caused not by a strategic decision, avoidable or invited error, but by an extrinsic factor outside the plaintiff's control.&nbsp; One such extrinsic factor is ignorance of the evidence necessary to support a cause of action when there is no statute or binding appellate precedent setting forth same.&nbsp; As mentioned above, though other Missouri courts have recognized the existence of a negligent credentialing cause of action, no court had addressed the essential elements or evidence required.&nbsp; Thus, the Court found the plaintiffs&rsquo; legal failure justifiable and not punishable in the absence of guidance from the Court. &nbsp;</p> <p>This is the first ruling of its kind to provide guidance to Missouri lower courts and practitioners prosecuting or defending a negligent credentialing claim.&nbsp; These claims are difficult to prove, as they require proof beyond that which is required to support a direct medical negligence claim.&nbsp; Absent credible evidence of a physician&rsquo;s incompetence generally, and the negligent failure of a healthcare facility to discover the incompetence and act accordingly, courts should dispose of these claims via dispositive motion.&nbsp; Further, it is not enough to prove that but for the credentialing, the physician could not have performed the conduct that produced the injury.&nbsp; Rather, a plaintiff must prove the injury was the natural and probable consequence of the physician&rsquo;s incompetence.</p> This opinion did not address whether the negligent credentialing theory conflicts with V.A.M.S. &sect; 538.210.4 (2017), which provides, in part, that &ldquo;[n]o health care provider whose liability is limited by the provisions of this chapter shall be liable to any plaintiff based on the actions or omissions of any other entity or individual who is not an employee of such health care provider . . . .&rdquo;&nbsp; Negligent credentialing liability necessarily depends on negligent actions or omissions of a non-employee physician.&nbsp; In the event this argument is raised, it is unclear how the Court would address the apparent conflict of law.&nbsp;&nbsp;