BSCR Firm News/Blogs Feedhttps://www.bscr-law.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10en-us24 Oct 2020 00:00:00 -0800firmwisehttps://blogs.law.harvard.edu/tech/rssTom Sterchi Earns Recognition as 2021 Benchmark "Local Litigation Star"https://www.bscr-law.com/?t=40&an=112314&format=xml&p=525523 Oct 2020Recognition<p>Tom Sterchi, a co-founder of the firm, has earned recognition as a 2021 <em><span data-preserver-spaces="true">Benchmark Litigation</span></em><span data-preserver-spaces="true">&nbsp;&ldquo;Local Litigation Star&rdquo; in Missouri.&nbsp;&nbsp;</span></p> <p><em><span data-preserver-spaces="true">Benchmark Litigation</span></em><span data-preserver-spaces="true">&nbsp;is a guide to the world&rsquo;s leading litigation firms and lawyers. The&nbsp;<em><span data-preserver-spaces="true">Benchmark Litigation</span></em><span data-preserver-spaces="true">&nbsp;research team conducts extensive interviews with litigators and their clients over a six-month period to identify the leading litigators and firms throughout the United States. During these interviews, researchers examine recent casework handled by law firms and ask individual litigators to offer their professional opinions on peers.&nbsp;</span></span><span data-preserver-spaces="true">Local litigation stars are attorneys consistently recommended as reputable and effective litigators by clients and peers.&nbsp;&nbsp;</span></p> <p><span data-preserver-spaces="true">Sterchi has been recognized by&nbsp;<em><span data-preserver-spaces="true">Benchmark Litigation</span></em><span data-preserver-spaces="true">&nbsp;as a &ldquo;Local Litigation Star&rdquo; in Missouri for a number of years. He is also recognized as a leading lawyer by numerous other publications, including&nbsp;</span><em><span data-preserver-spaces="true">Best Lawyers&reg; in America, International Who&rsquo;s Who of Product Liability Defense Lawyers, LMG Life Sciences, Martindale-Hubbell, Missouri &amp; Kansas Super Lawyers, Who&rsquo;s Who Legal: Life Sciences,</span></em><span data-preserver-spaces="true">&nbsp;and more.</span></span></p> Sterchi is an experienced trial lawyer who has successfully defended manufacturers of a variety of products, including pharmaceuticals, medical devices, automobiles, trucks, wheels, tires, heavy equipment, appliances and consumer products in a number of state and federal courts. He has served as national coordinating trial counsel in litigation for numerous products. He currently serves as national trial counsel for a prominent contrast media company. In addition to his product liability practice, Sterchi practices in the areas of general civil and commercial litigation.https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Laura Beasley to Serve as Panelist at Upcoming IDC "Diverse Thoughts on Diversity" Webinarhttps://www.bscr-law.com/?t=40&an=112293&format=xml&p=545421 Oct 2020Speaking Engagements<p>Baker Sterchi Member Laura Beasley will serve as a panelist for a webinar entitled &ldquo;Diverse Thoughts on Diversity&rdquo; from 12-1:30 PM CST on Thursday, October 29. The 90-minute program, sponsored by the Illinois Defense Counsel (IDC), will explore perspectives on diversity in the legal profession from a panel of attorneys with different cultural, ethnic, and socioeconomic backgrounds.</p> <p>Beasley, located in Baker Sterchi&rsquo;s Belleville, Illinois office, focuses her practice in the areas of civil litigation defense, general liability, class action/mass torts, insurance coverage, personal injury, and product liability. She earned her Bachelor of Science in Environmental Geography from Austin Peay University and her law degree from Southern Illinois University School. She is a member of several bar associations and currently serves as President-Elect of the Board of Directors of IDC. She is licensed to practice in both Illinois and Missouri state and federal courts.</p> <p>For more information or to register for the webinar, click <a href="https://protect-us.mimecast.com/s/MdfeCjRnn6cOrDQiW6ZiB?domain=url9704.seminarweb.com" target="_blank"><span style="color: rgb(204, 0, 0);">here</span></a>.</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Western District of Texas provides insureds with "out" to skirt federal jurisdiction in COVID-19 business interruption coverage caseshttps://www.bscr-law.com/?t=40&an=112275&format=xml&p=5258&stylesheet=blog20 Oct 2020Insurance Law Blog<p>Like many businesses during the COVID-19 pandemic, Texas dentist Louis Orsatti&rsquo;s practice suffered significant lost business income as a result of the local government&rsquo;s shelter-in-place order in the spring and early summer of 2020. And also like many other businesses, Orsatti made a claim on his practice&rsquo;s insurance policy issued by Allstate. Allstate assigned a claims adjuster, Blesssing Sefofo Wonyaku, who allegedly summarily denied Orsatti&rsquo;s claim without performing any kind of investigation whatsoever.</p> <p>Orsatti filed a bad faith suit in Texas state court against Allstate after his claim was denied, joining Wonyaku as a defendant. Allstate removed the case to the United States District Court for the Western District of Texas arguing that Wonyaku, a citizen of Texas, had been fraudulently joined solely for the purpose of defeating federal diversity of citizenship jurisdiction. Finding that a claim was properly asserted against Wonyaku, the federal magistrate judge recommended the case be remanded back to state court (as of the date of this posting, the district judge has neither accepted nor rejected the recommendation).</p> <p>Despite recognizing that many cases have held a claims adjuster cannot be individually liable for bad faith claims made against an insurer, the court here held that the allegations here implicated Wonyaku based on &ldquo;her conduct as an individual adjuster.&rdquo; Specifically, the court focused on Wonyaku&rsquo;s allegedly pre-textual, results-oriented investigation, her failure to request additional information from the insured, and her &ldquo;immediate&rdquo; issuance of a denial letter. Consequently, the court held the complaint asserted a valid cause of action against Wonyaku and the case was accordingly remanded for lack of subject matter jurisdiction. The case is <i>Orsatti v. Allstate Ins. Co.</i>, No. 5-20-CV-00840-FB-RBF, 2020 U.S. Dist. LEXIS 185935 (W.D. Tex. Oct. 7, 2020), and the magistrate&rsquo;s report and recommendation can be found <a href="https://www.govinfo.gov/content/pkg/USCOURTS-txwd-5_20-cv-00840/pdf/USCOURTS-txwd-5_20-cv-00840-0.pdf">here</a>. &nbsp;</p> <p>Policyholders may be tempted to stretch the <i>Orsatti</i> case to its limits to avoid federal jurisdiction when a non-diverse claims adjuster is involved. This may be especially true if the judicial panel on multidistrict litigation opts to create carrier-specific MDLs,<a href="file:///C:/Users/LJR/Desktop/Western%20District%20of%20Texas%20provides%20insureds%20with%20out%20to%20skirt%20federal%20jurisdiction%20in%20COVID-19%20business%20interruption%20insurance%20coverage%20cases.docx#_ftn1" name="_ftnref1" title="">[1]</a> since struggling business may be looking for some much-needed quick money rather than being bogged down in protracted MDL proceedings. This may be particularly worrisome in jurisdictions such as Missouri, where the waters get murky when it comes to an adjuster&rsquo;s personal liability in first-party claims. While Missouri generally bars such liability in third-party bad faith claims (<i>Shobe v. Kelly</i>, 279 S.W.3d 203 (Mo. App W.D. 2009)), first-party bad faith claims fall within the ambit of Missouri&rsquo;s vexatious refusal to pay statutes (RSMo &sect;&sect; 375.296 and 375.420) which generally displace other causes of action arising from an insurer&rsquo;s denial of coverage. On its face, the vexatious refusal statute only permits a suit to be filed &ldquo;against any insurance company,&rdquo; which would seem to preclude individual liability on the adjuster&rsquo;s part. However, some courts have recognized that despite the vexatious refusal statute&rsquo;s exclusivity, other torts may still be viable where they are not based strictly on the insurer&rsquo;s denial of coverage. In fact, United States District Court for the Eastern District of Missouri specifically held that conduct &ldquo;which may have occurred during the insurer&rsquo;s investigation or claims handling&rdquo; can support a cause of action against an individual adjuster independent from a vexatious refusal claim. (<i>Travelers Indem. Co. of Am. v. Holtzman Props., L.L.C.</i>, No. 4:08-CV-351 CAS, 2008 U.S. Dist. LEXIS 63966 (E.D. Mo. Aug. 21, 2008)). &nbsp;&nbsp;&nbsp;&nbsp;</p> <p>The <i>Orsatti</i> case provides another arrow in policyholders&rsquo; quivers to remain in state court by joining an individual adjuster as a defendant. It specifically brings deficiencies in claims handling to the forefront of the analysis, which prior Missouri precedent demonstrates may be sufficient to support an independent claim aside from a vexatious refusal claim against the carrier. &nbsp;</p> <p>The case also highlights the need not to be too quick to deny a COVID-related business interruption claim. While it may be tempting after reviewing dozens or hundreds of similar claims involving similar policy language to issue a form denial letter without giving it a second thought, <i>Orsatti</i> illustrates how this may expose the adjuster to personal liability and prevent coverage counsel from litigating in their preferred court.</p> <div><br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p><a href="file:///C:/Users/LJR/Desktop/Western%20District%20of%20Texas%20provides%20insureds%20with%20out%20to%20skirt%20federal%20jurisdiction%20in%20COVID-19%20business%20interruption%20insurance%20coverage%20cases.docx#_ftnref1" name="_ftn1" title="">[1]</a> As of the date of this writing, requests to create five &ldquo;single-insurer&rdquo; MDLs were under advisement by the JMPL. The carriers in question are The Hartford, Cincinnati Insurance Co., Society Insurance Co., Travelers, and various underwriters at Lloyd&rsquo;s of London. A request to create a single MDL encompassing all carriers was previously denied, which was discussed in another post found <a href="https://www.bscr-law.com/?t=40&amp;an=111354&amp;format=xml&amp;stylesheet=blog&amp;p=5258">here</a>.</p> </div> </div>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Baker Sterchi Welcomes Brett Simon in Kansas Cityhttps://www.bscr-law.com/?t=40&an=111793&format=xml&p=544819 Oct 2020Firm News<p>Brett Simon joins Baker Sterchi&rsquo;s Kansas City office as an associate attorney, representing companies in personal injury cases and commercial disputes. He has over five years of experience handling pre-suit investigations, serious personal injury and wrongful death claims, breach of contract actions, and consumer protection issues.</p> <p>Simon is a member of the Amicus Committee of the Missouri Organization of Defense Lawyers and is a past recipient of the Missouri &amp; Kansas Super Lawyers Rising Stars award. He earned his law degree from the University of Missouri &ndash; Kansas City School of Law in 2015 and his undergraduate degree from the University of South Dakota in 2012.&nbsp;</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Baker Sterchi Welcomes Travis Hoehn in Kansas Cityhttps://www.bscr-law.com/?t=40&an=111796&format=xml&p=544814 Oct 2020Firm News<p>Travis Hoehn joins Baker Sterchi&rsquo;s Kansas City office as an associate attorney practicing in the areas of fidelity and surety, personal injury defense, premises liability and product liability. He previously served as a summer law clerk with the firm.</p> <p>Hoehn earned his law degree from the University of Kansas School of Law, where he was a member of the Sports and Entertainment Law Society, and served as a student intern for the Paul E. Wilson Project for Innocence. He earned his undergraduate degree in Political Science from the University of Kansas, where he was a member of Pi Sigma Alpha National Political Science Honor Society.&nbsp;</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Discovery Is Not a Game | Illinois Appellate Court Overturns $50 Million Dollar Birth Injury Verdicthttps://www.bscr-law.com/?t=40&an=112193&format=xml&p=13 Oct 2020Healthcare Law Blog<p><i>Florez v. Northshore Univ. Healthsystem</i>, 2020 IL App (1st) 190465; 2020 Ill. App. LEXIS 560</p> <p>The First District Appellate Court of Illinois recently held that the trial court abused its discretion by barring any reference to a child&rsquo;s autism diagnosis at trial. As a result of this trial court error, the appellate court overturned a $50 million jury verdict involving the child&rsquo;s alleged brain injury sustained at birth.</p> <p>Plaintiff alleged the defendant failed to diagnose and treat the child&rsquo;s oxygen deprivation during birth, allegedly leading to a severe brain injury. The plaintiff&rsquo;s counsel argued throughout the case and at trial that the child&rsquo;s brain injury occurred at or near the time of his birth. The defendant countered that other factors caused the child&rsquo;s condition with no causal connection to the birth treatment.</p> <p>Fifty-six days before trial, the plaintiff supplemented his answers to written discovery with a copy of a behavioral report and psychological evaluation from his expert neuropsychologist, who found that the plaintiff met the full diagnostic criteria for Autism Spectrum Disorder. Upon receiving the neuropsychologist&rsquo;s report, the defendant&rsquo;s experts found that the plaintiff&rsquo;s autism diagnosis <i>supported </i>their conclusion that the plaintiff's disabilities were from a chronic condition rather than an acute birth injury.</p> <p>Pursuant to Illinois Rule 218(c), the defendant filed supplemental disclosures on this evidence and moved to disclose the neuropsychologist as a witness at trial. In response, the plaintiff moved to strike the supplemental disclosures and witness arguing that the defendant was improperly attempting to inject a new issue into the case. The court granted the plaintiff&rsquo;s motion to strike and found the defendant&rsquo;s supplemental disclosures untimely because the disclosures were not filed at least 60 days before trial.</p> <p>However, the appellate court reasoned that the mechanical application of the 60-day deadline under these circumstances would encourage &ldquo;tactical gamesmanship&rdquo; because the plaintiff filed his expert&rsquo;s evaluation less than 60 days before the trial. Essentially, the defendant could not have met the deadline even if it responded the very day it received the report.</p> <p>Though the plaintiff&rsquo;s experts opined that the defendant&rsquo;s negligence led to oxygen deprivation and plaintiff&rsquo;s injuries and cognitive deficits, the defendant&rsquo;s experts opined that plaintiff&rsquo;s injuries were chronic. For example, the defendant&rsquo;s experts opined that a seizure that occurred five hours after birth was a chronic issue rather than something caused by birth-related treatment.</p> <p>Accordingly, the appellate court held that barring evidence of an autism diagnosis was an abuse of discretion because the evidence was probative of the causation issue, defendant&rsquo;s experts could not use it to support their conclusions, and it was not available for the jury to consider in resolving conflicting expert opinions.</p> <p>Aside from the causation issue, the appellate court found that the autism diagnosis was also relevant to damages issues including plaintiff&rsquo;s future medical needs, school requirements, and employment prospects.</p> Ultimately, this case demonstrates how discovery rules should be applied on a case by case basis, as a mechanical application of the rules may not always yield the most just result.&nbsp;https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Discovery Is Not a Game | Illinois Appellate Court Overturns $50 Million Dollar Birth Injury Verdicthttps://www.bscr-law.com/?t=40&an=112194&format=xml&p=13 Oct 2020Illinois Law Blog<p><i>Florez v. Northshore Univ. Healthsystem</i>, 2020 IL App (1st) 190465; 2020 Ill. App. LEXIS 560</p> <p>The First District Appellate Court of Illinois recently held that the trial court abused its discretion by barring any reference to a child&rsquo;s autism diagnosis at trial. As a result of this trial court error, the appellate court overturned a $50 million jury verdict involving the child&rsquo;s alleged brain injury sustained at birth.</p> <p>Plaintiff alleged the defendant failed to diagnose and treat the child&rsquo;s oxygen deprivation during birth, allegedly leading to a severe brain injury. The plaintiff&rsquo;s counsel argued throughout the case and at trial that the child&rsquo;s brain injury occurred at or near the time of his birth. The defendant countered that other factors caused the child&rsquo;s condition with no causal connection to the birth treatment.</p> <p>Fifty-six days before trial, the plaintiff supplemented his answers to written discovery with a copy of a behavioral report and psychological evaluation from his expert neuropsychologist, who found that the plaintiff met the full diagnostic criteria for Autism Spectrum Disorder. Upon receiving the neuropsychologist&rsquo;s report, the defendant&rsquo;s experts found that the plaintiff&rsquo;s autism diagnosis <i>supported </i>their conclusion that the plaintiff's disabilities were from a chronic condition rather than an acute birth injury.</p> <p>Pursuant to Illinois Rule 218(c), the defendant filed supplemental disclosures on this evidence and moved to disclose the neuropsychologist as a witness at trial. In response, the plaintiff moved to strike the supplemental disclosures and witness arguing that the defendant was improperly attempting to inject a new issue into the case. The court granted the plaintiff&rsquo;s motion to strike and found the defendant&rsquo;s supplemental disclosures untimely because the disclosures were not filed at least 60 days before trial.</p> <p>However, the appellate court reasoned that the mechanical application of the 60-day deadline under these circumstances would encourage &ldquo;tactical gamesmanship&rdquo; because the plaintiff filed his expert&rsquo;s evaluation less than 60 days before the trial. Essentially, the defendant could not have met the deadline even if it responded the very day it received the report.</p> <p>Though the plaintiff&rsquo;s experts opined that the defendant&rsquo;s negligence led to oxygen deprivation and plaintiff&rsquo;s injuries and cognitive deficits, the defendant&rsquo;s experts opined that plaintiff&rsquo;s injuries were chronic. For example, the defendant&rsquo;s experts opined that a seizure that occurred five hours after birth was a chronic issue rather than something caused by birth-related treatment.</p> <p>Accordingly, the appellate court held that barring evidence of an autism diagnosis was an abuse of discretion because the evidence was probative of the causation issue, defendant&rsquo;s experts could not use it to support their conclusions, and it was not available for the jury to consider in resolving conflicting expert opinions.</p> <p>Aside from the causation issue, the appellate court found that the autism diagnosis was also relevant to damages issues including plaintiff&rsquo;s future medical needs, school requirements, and employment prospects.</p> <p>Ultimately, this case demonstrates how discovery rules should be applied on a case by case basis, as a mechanical application of the rules may not always yield the most just result.&nbsp;</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Baker Sterchi Welcomes Koki Sabates in St. Louishttps://www.bscr-law.com/?t=40&an=111794&format=xml&p=544812 Oct 2020Firm News<p>Kelly &ldquo;Koki&rdquo; Sabat&eacute;s joins Baker Sterchi&rsquo;s St. Louis office as an associate attorney practicing in the areas of insurance coverage, medical malpractice, personal injury defense, premises liability, and product liability.&nbsp;</p> <p>Sabat&eacute;s earned her law degree from the University of Missouri-Columbia School of Law with honors as a member of the Order of Barristers in 2020, receiving the Fred L. Howard Prize for Excellence in Advancement of Advocacy. While in law school, she was President of the Student Bar Association, a pupil member of the Elwood L. Thomas American Inn of Court, a member of several trial teams, and Mock Trial Director for the Board of Advocates program. She also served as a judicial intern for the Honorable Beth Phillips, United States District Court for the Western District of Missouri, and as a summer law clerk at Baker Sterchi.</p> <p>Sabat&eacute;s, who is fluent in Spanish, earned her undergraduate degree in acting from the University of Minnesota-Duluth.</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Baker Sterchi Welcomes Malika Baker in Kansas Cityhttps://www.bscr-law.com/?t=40&an=111795&format=xml&p=544808 Oct 2020Firm News<p>Malika Baker joins Baker Sterchi&rsquo;s Kansas City office as an associate attorney practicing in the areas of product liability defense and commercial litigation.&nbsp;</p> <p>Baker earned her law degree from the University of Kansas School of Law in 2020. While in law school, she served as a member of the Dean&rsquo;s Diversity Leadership Council and Women in Law, and as Vice President of the Black Law Students Association. She was a member of the Phillip C. Jessup Moot Court team and received the W. Ross Hutton Award for best overall performance as a legal intern at the Douglas County Legal Aid Society. &nbsp;&nbsp;She also served as a legal intern for the Honorable Judge Steve Leben of the Kansas Court of Appeals and a summer law clerk at Baker Sterchi.</p> <p>Baker earned her undergraduate degree in Global and International Studies from the University of Kansas, where she was an NCAA Academic All-American and team captain on the track and field teams.&nbsp;</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Where There Has Been No Genuine Opportunity to Conduct Relevant Discovery, a Motion for Summary Judgment is Prematurehttps://www.bscr-law.com/?t=40&an=111907&format=xml&p=5258&stylesheet=blog08 Oct 2020Missouri Law Blog<p>The Missouri Court of Appeals recently <a href="https://www.courts.mo.gov/file/WD/Opinion_WD83291.pdf">held</a> that a trial court abused its discretion when it granted summary judgment to the defendants before the plaintiff deposed a witness whose testimony could not be secured by affidavit. The appeals court in <i>Traweek v. Smith </i>disagreed with a trial court&rsquo;s dismissal of the plaintiff&rsquo;s amended petition only two weeks after leave had been granted to add a claim for reformation, and before the plaintiff could present evidence to oppose the defendants&rsquo; motion for summary judgment. Having complied with Rule 74.04(f)&rsquo;s requirement of presenting an affidavit specifying the discovery that was needed and why it was needed, the appeals court held that two weeks was not enough time for the plaintiff to conduct the discovery specified in the affidavit and reversed the trial court&rsquo;s decision.</p> <p><i>Traweek </i>involved an automobile accident in which the plaintiff was injured while riding in a vehicle driven by someone else. The plaintiff spent two months in a coma and suffered severe head trauma, loss of memory, and loss of cognitive skills. The plaintiff entered an out-of-court policy limits settlement with the fault driver then filed suit against the driver and owner of the other vehicle involved in the accident. In exchange for a policy limits payment, the plaintiff executed a release prepared by the fault driver&rsquo;s insurer.</p> <p>The defendants moved for summary judgment on the basis of the release which contained language releasing the fault driver, its insurer, &ldquo;and all other persons, firms or corporations liable, or who might be claimed to be liable.&rdquo; The defendants argued that the plaintiff&rsquo;s claims against them were barred because she had already released them from any claims arising out of the accident. In opposition, the plaintiff invoked Rule 74.04(f) and argued that summary judgment would be premature because she had just been granted leave to amend the petition to add a claim for reformation of the release. The plaintiff presented evidence that she did not intend to release the defendants and that the fault driver&rsquo;s insurance adjuster had admitted to her lawyer that the insurer intended to release only the fault driver. On this basis, the plaintiff argued that there was a mutual mistake that warranted reformation of the release to reflect the parties&rsquo; true intent. However, because the adjuster was unwilling to sign an affidavit attesting to that, the plaintiff contended that she needed to take his deposition to elicit this information.</p> <p>The appeals court acknowledged that a trial court generally has discretion to either permit or deny additional time to conduct discovery before ruling on a pending summary judgment motion, but ruled that granting summary judgment only two weeks after allowing the plaintiff to add a claim for reformation of the settlement agreement was an abuse of discretion because the plaintiff had met Rule 74.04(f)&rsquo;s requirement.</p> <p>For a trial court to consider a request under Rule 74.04(f), the party requesting time to conduct discovery must present an affidavit specifying the additional evidence sought and explain how it will support the existence of a factual dispute. In <i>Traweek, </i>the plaintiff&rsquo;s lawyer filed an affidavit detailing his contacts with the insurance adjuster and the adjuster&rsquo;s unwillingness to cooperate to correct the release. The affidavit also stated that the plaintiff intended to depose the adjuster to elicit this information and how it pertained to the plaintiff&rsquo;s argument that there was a mutual mistake in the release. Also, the appeals court noted there was evidence in the record that the plaintiff did not intend to release the defendants from liability by entering a settlement with the fault driver. Taken together, the adjuster&rsquo;s testimony and the evidence already in the record would create a genuine dispute of fact on the existence of mutual mistake which would justify reformation of the release. Accordingly, the appeals court found that the trial court acted hastily in entering summary judgment, and the case was remanded to the trial court to allow the plaintiff enough time to depose the adjuster.</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10