BSCR Firm News/Blogs Feed May 2020 00:00:00 -0800firmwise Circuit Reverses ADA Class Certification in "Fitness for Duty" Challenge May 2020Employment & Labor Law Blog<p>The U.S. Court of Appeals for the Eighth Circuit reversed a ruling of the United States District Court of Nebraska, which granted class certification to a group of Union Pacific employees, past and present, who alleged that the railroad&rsquo;s &ldquo;fitness-for-duty&rdquo; policy violates the Americans with Disabilities Act (&ldquo;ADA&rdquo;), 42 U.S.C. &sect; 12101 <i>et seq.</i> The appellate court granted interlocutory review of the class certification pursuant to Federal Rule of Civil Procedure 23(f), and concluded that plaintiffs failed to meet the cohesiveness, predominance and superiority requirements under Rules 23(b)(2) and (b)(3). This is a potentially important <a href=" ">ruling</a> for companies who consider &ldquo;fitness-for-duty&rdquo; evaluations important for managing their operations and maintaining a safe workplace.</p> <p>Six named plaintiffs moved to certify a class of over 7,000 current and former employees of Union Pacific, under the ADA. The district court granted the hybrid class certification which defined to include all employees who have been or will be subject to a &ldquo;fitness-for-duty&rdquo; evaluation because of a reportable health event used by Union Pacific.&nbsp;Examples of a reportable health event are heart attack, stroke, seizure and eye injury, just to name a few.&nbsp;The &ldquo;fitness-for-duty&rdquo; applies to all 650 position within the company. &ldquo;Fitness-for-duty&rdquo; evaluation is used to determine if the reportable health event in which the employee reports effects their ability to safely do their job or if they need accommodations because of the reportable health event in order to safely do their job.</p> <p>By granting this hybrid class certification under subparts (b)(2) and (b)(3) of Rule 23, the Court allowed the plaintiffs to proceed as a class and then try the case in two phases, consistent with the framework set out in <i><u>International BHD of Teamsters v United States</u></i>, 431 U.S. 324 (1977). In the first phase, the jury would determine whether Union Pacific engaged in a pattern or practice of disability discrimination on a class-wide basis. In the second stage, individual hearings would take place to determine damages as to each individual class member. Union Pacific appealed the class certification on the basis the plaintiffs did not satisfy cohesiveness, predominance and superiority requirements required under Rule 23(b)(2) and 23(b)(3).&nbsp;</p> <p>The Eighth Circuit opinion first focused on whether the class was cohesive, noting that the six named plaintiffs each had different conditions.&nbsp;These conditions, which would be reportable health events, included: a heart condition that required a pacemaker; epilepsy; lightheadedness; cardiomyopathy; post-traumatic stress disorder; and a seizure disorder.&nbsp;The court observed that not only are the conditions different, but that each condition then had to be assessed with respect to the 650 positions within in the company.&nbsp;An accountant with seizure disorder is different from a train engineer with a seizure disorder.&nbsp;To answer the predominant question of whether a policy is unlawfully discriminatory requires asking subsidiary questions of whether the policy is consistent with business necessity.&nbsp;The analysis of business necessity is highly individualized, requiring separate analysis for each different medical condition. And for each such condition, it must be determined how it impacts the affected employee&rsquo;s ability to perform different jobs throughout the company.&nbsp;&nbsp;&nbsp;</p> <p>In the Court&rsquo;s view, the individualized inquiries needed to determine if the fitness-to-work policy is unlawfully discriminatory under ADA is not consistent with Rule 23.&nbsp;Because these individualized questions defeated both predominance and cohesiveness, the lower court abused its discretion by certifying the class under Rule 23(b)(2) &amp; (b)(3).&nbsp;</p> <p>The Eighth Circuit acknowledged, however, that if the plaintiffs&rsquo; claim had focused more narrowly on employees with the same or similar medical conditions, involving the same or similar job categories, a hybrid class could potentially be certified under Rule 23.&nbsp;</p> <p>Companies should, of course, always take care that policies which may limit employees&rsquo; access to certain jobs, based on health and safety concerns, are appropriately tailored to business necessity, and consistent with the ADA and its &ldquo;reasonable accommodation&rdquo; requirements.&nbsp;But the <i>Harris</i> opinion should prove extremely useful to corporate defendants seeking to stave off overly broad class certification demands, in cases challenging company &ldquo;fitness-to-work&rdquo; or other health or safety policies.&nbsp;</p> Sterchi Cowden & Rice Named Among 2020 Best Companies to Work For May 2020Recognition<p>Baker Sterchi Cowden &amp; Rice has been named among the 2020 Best Companies to Work For by <i>Ingram&rsquo;s Magazine</i>.&nbsp;&nbsp;</p> <p>The Best Companies to Work For distinction recognizes workplaces in the Greater Kansas City area with management practices, educational and advancement opportunities, compensation and benefits, workplace environment, fiscal strength, and civic engagement that set them apart from other companies throughout the region.</p> <p>According to <i>Ingram's</i>, there are over 75,000 companies licensed to do business in the Greater Kansas City area. <i>Ingram's</i> has recognized a total of fourteen large, mid-size, and small companies as 2020 Best Companies to Work For winners, with Baker Sterchi joining three other companies in the mid-size category.</p> <p><i>Ingram&rsquo;s</i> previously recognized Baker Sterchi as a finalist in the Best Companies to Work For small company category in 2009 and 2014.&nbsp;Today, Baker Sterchi has more than 60 attorneys, professionals, and support staff in Kansas City and more than 120 across all office locations in Missouri, Illinois, and Kansas.&nbsp;&nbsp;</p> <p>&quot;We are honored <i>Ingram's</i> named Baker Sterchi as a 2020 Best Companies to Work For award winner,&quot; said Scott Kreamer, Managing Member. &quot;Our focus has always been to provide the best working environment for our employees.&nbsp;One example is our Professional Development program - which we believe is unique in the legal field.&nbsp;The goal of the program is for each of our employees to achieve the most rewarding legal career for themselves.&nbsp;We help them accomplish this by identifying the keys to success and then offering specialized training, support and opportunities in these areas.&nbsp;Success looks different to different people, so we also offer alternative career paths for attorneys to fit their own goals and life circumstances, whether that is a path to equity membership or an alternative path.&quot;</p> <p>&ldquo;At Baker Sterchi, we foster a culture of friendliness and teamwork,&rdquo; said Karen Griggs, Executive Director. &ldquo;In addition to competitive salaries and benefits, we also provide support to attorneys and staff for leadership opportunities within and outside the firm.&nbsp;Attorneys and staff regularly hold national, regional, and local leadership positions in defense organizations and bar associations, as well as legal administrator, legal administrative assistant, paralegal, and legal marketing associations.&ldquo;</p> <p><i>Ingram&rsquo;s Magazine</i> is a leading business publication in Missouri and Kansas, covering business, industry, and economic development trends throughout the bi-state region for over 45 years. <i>Ingram&rsquo;s</i> launched its annual Best Companies to Work For program in 2008.</p> <p>All 2020 Best Companies to Work For winners are featured in the May 2020 edition of <i>Ingram&rsquo;s Magazine</i> and on&nbsp;<a href="" target="_blank"><span style="color: rgb(204, 0, 0);"></span></a>.</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> Simpson Named Secretary of BAMSL WILP Section May 2020Firm News<p>St. Louis attorney Brandy Simpson has been named the 2020-2021 secretary of The Bar Association of Metropolitan St. Louis (BAMSL) Women in the Legal Profession Section (WILP). The WILP Section was established in 1980 to promote and enhance women in the legal field professionally, personally and within their community.</p> <p>Simpson&rsquo;s practice is primarily focused on medical malpractice defense. She also defends premises liability, personal injury, and products liability matters.&nbsp; She has extensive experience representing physicians, hospitals, nursing homes, and insurance companies.</p> <p>Simpson earned her Juris Doctor from the University of Dayton in 2008, and her bachelor&rsquo;s degree from Indiana University in 2005.&nbsp; She is licensed to practice in the state courts of Missouri, Illinois, Kentucky and West Virginia and the federal courts for the Eastern District of Missouri, Eastern District of Kentucky, and Southern District of West Virginia.</p> <p>She serves as the Women&rsquo;s Affinity Group Liaison to the firm&rsquo;s Diversity Committee for the Belleville and St. Louis offices and organized the firm&rsquo;s first Women in the Law CLE for St. Louis area legal professionals in 2019.&nbsp;</p> Sterchi Successfully Defends Physician in West Virginia Telemedicine Matter May 2020Results<div>In a win for a telemedicine doctor who had been accused of improper conduct by the West Virginia Board of Medicine, Baker Sterchi attorneys successfully convinced the Board to drop the case in its entirety. The five separate allegations of misconduct against the telemedicine doctor related to the recruiting of patients as well as the treatment prescribed. The Board also questioned the completeness of the records kept as well as the documentation of a proper physician/patient relationship.</div> <div>&nbsp;</div> <div>During the written submission phase of the probable cause hearing, Baker Sterchi argued the doctor acted properly in treating her patients, despite a written report from the West Virginia Public Employees Insurance Agency making allegations of unprofessional and/or unethical conduct.&nbsp; The Board&rsquo;s Complaint Committee reviewed both the submissions and the underlying evidence provided by Baker Sterchi and found that none of the five areas of alleged violation were supported by the evidence.&nbsp; As such, the Complaint Committee &ldquo;voted to close the case&rdquo; and dismissed the matter, closing the investigation &ldquo;with no further action to be taken.&rdquo;</div> <div>&nbsp;</div> <div>Paul Penticuff, lead attorney on the case, is an authority in the burgeoning field of telehealth, which has experienced exponential grown since the onset of the COVID-19 pandemic.<br /> &nbsp;</div> Business Continuity Update (05.13.2020) May 2020Firm News<p>To our valued clients and friends:</p> <p>At Baker Sterchi Cowden &amp; Rice we recognize the disruption COVID-19 has caused to the working and personal lives of our clients, colleagues, and personnel. Since the beginning of the crisis, we have been dedicated to ensuring uninterrupted service to our clients and to protecting the health of our colleagues and personnel.</p> <p>Over the last several weeks, we have successfully navigated meetings with clients, experts, and others integral to moving a case forward via Zoom or by conference call and will continue to do so as necessary. Many of the Courts before which we appear continue to have limited operations.</p> <p>At this time, most of our employees continue to work remotely with essential services being maintained in each office location. As local authorities lift work restrictions, our return-to-work plan includes bringing employees back safely in phases consistent with local and state plans as well as federal and Centers for Disease Control (CDC) guidelines.</p> <p>We continue to regularly monitor information released by the CDC, World Health Organization (WHO), and local health authorities.&nbsp; Based upon the recommendation of health experts we continue to observe international and domestic travel restrictions, restrictions regarding in-person meetings, social distancing guidelines, and self-quarantine rules.</p> <p>Additionally, we have communicated information for reducing risk to our personnel. Personnel with any of the symptoms of the virus must stay home until it has been confirmed they do not have any contagious virus. Our employees, as well as cleaning and maintenance staff for our various offices, have implemented extensive cleaning and disinfecting procedures across all of our offices.&nbsp; Masks and gloves are available to any employee or guest of the firm who wishes to use them.</p> <p>We believe the measures we have put in place allow us to continue to provide our clients with the highest level of service and minimizes potential exposure to our colleagues and personnel. If you have any questions about our business continuity plan or any of the other measures we have put in place in response to COVID-19, please do not hesitate to reach out.&nbsp;</p> Odom to Speak at IDC Webinar Addressing Asbestos Case Deposition Tactics May 2020Speaking Engagements<p>Baker Sterchi attorney Greg Odom will present at the Illinois Defense Counsel (IDC) webinar, &ldquo;The Basics of Taking an Effective Fact Witness Deposition in Asbestos Cases&rdquo; on May 29, 2020. This webinar will address the often-unique nature and importance of depositions in asbestos cases and the challenges they present.&nbsp;Odom will provide insight into taking depositions in toxic tort cases and will provide participants with practical tips for preparing and taking such depositions.</p> <p>Odom, located in the firm&rsquo;s Belleville office, is an experienced trial attorney with a thriving practice focused on complex business litigation matters in the areas of toxic torts, personal injury, product liability, premises liability, environmental law, and commercial litigation. He represents individuals, local businesses, and Fortune 500 companies in state and federal courts across Illinois and Missouri.</p> <p>Founded in 1964, IDC is a premier association of attorneys in Illinois who devote a substantial portion of their practice to the representation of business, corporate, insurance, professional, and other individual defendants in civil litigation.&nbsp;A member of IDC's Board of Directors and Chair of its Toxic Tort Law Committee, Odom recently received the association&rsquo;s President&rsquo;s Award for Service and Commitment to the Defense Bar and the Meritorious Service Award for Service as Events Committee Chair. He is also a past recipient of the association&rsquo;s Rising Star Award and President&rsquo;s Commendation.</p> <p>Odom earned his Juris Doctor from Southern Illinois University School of Law in 2008, and his bachelor&rsquo;s degree from Southern Illinois University in 2005. He is licensed to practice in Illinois, Missouri, and the United States District Courts for the Southern District of Illinois and the Eastern District of Missouri.</p> <p>Approved for 1.0 hour of Illinois General CLE Credit, the webinar is being offered on Friday, May 29 starting at 12:00 p.m. CST.&nbsp; For more information about the webinar or to register, <a href=";group="><span style="color: rgb(204, 0, 0);">click here</span></a>.</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> Woolf to Speak at PLRB Webinar Addressing Auto Accidents with Significant Damages May 2020Speaking Engagements<div>Baker Sterchi attorney Richard Woolf will present at the Property &amp; Liability Resource Bureau (PLRB) webinar, &ldquo;Minor Auto Accidents: Major Damage&rdquo; on May 14, 2020. This webinar will address the inner workings of a minor motor vehicle accident claim that turned into a claim for significant damages and the claim/litigation handling of the incident.</div> <div>&nbsp;</div> <div>Located in the firm&rsquo;s St. Louis office, Woolf&rsquo;s practice is concentrated in third party insurance defense and first party insurance litigation.&nbsp; He regularly handles defense matters of all kinds and sizes, including complex property and casualty/liability cases, and first party investigation and litigation matters, including insurance coverage analysis.</div> <div>&nbsp;</div> <div>Woolf earned his Juris Doctor from the Washington University School of Law in St. Louis, and his bachelor&rsquo;s degree from Yeshiva University in New York.&nbsp; He is licensed to practice in Missouri, Illinois, Tennessee and Arkansas.</div> <div>&nbsp;</div> <div>PLRB supports insurance companies and underwriting organizations licensed to do property or casualty business in the United States through live and on-line education and training, as well as provides other resources relevant to property and casualty businesses.</div> <div>&nbsp;</div>