BSCR Firm News/Blogs Feed Dec 2019 00:00:00 -0800firmwise Kreamer Selected to Receive Missouri Lawyers Media Law Firm Leader Award Dec 2019Recognition<p>Baker Sterchi Cowden &amp; Rice Managing Member Scott Kreamer has been selected to receive a <i>Missouri Lawyers Media</i> Law Firm Leader Award, an award given to chairpersons, managing partners or other law firm executives who demonstrated extraordinary vision, innovation and leadership during the year.</p> <p>Kreamer has overseen growth, including a recent merger, nearly doubling the size of the firm, while also serving as Chairman of the Board of the Federation of Defense &amp; Corporate Counsel (FDCC), an invitation-only international organization consisting of accomplished defense attorneys, corporate counsel, and insurance industry executives who have achieved professional distinction during their careers.</p> <p>Kreamer was named to <i>The Business Journals'</i> 2019 Influencers: Law list and is consistently recognized as a leading lawyer by <i>Best Lawyers in America</i> and <i>Missouri &amp; Kansas Super Lawyers</i>. He practices in the areas of commercial, construction, financial services, insurance, products liability and tort litigation, having tried more than 30 cases in both State and Federal Courts.&nbsp; He earned his law degree from the University of Kansas School of Law and his undergraduate degree from the University of Iowa.</p> <p>The annual Missouri Lawyers Awards includes several categories, including Lawyers of the Year, Influential Lawyers, Legal Champions, Law Firm Leaders and Influential Appellate Advocates.&nbsp; Honorees will be recognized at an awards luncheon on Jan. 24 at the DoubleTree by Hilton Hotel St. Louis-Chesterfield and will also be profiled in a special section of Missouri Lawyers Weekly.&nbsp; They will be joined at the awards luncheon by Verdict &amp; Settlement winners - lawyers with the largest verdicts, settlements, judgments and defense wins of 2019.</p> Approved Jury Instruction Isn't Always the Best Choice Dec 2019Missouri Law Blog<p>The Missouri Court of Appeals (Western District) recently <a href="">reversed</a> a defense verdict because the trial court&rsquo;s verdict directing instruction, taken from the Missouri Approved Instructions (MAI), didn&rsquo;t accurately state the law applicable to Plaintiff&rsquo;s claim.&nbsp;</p> <p>In <i>Gary Miller v. Norfolk Southern Railway Company</i>, Plaintiff Miller sued his railroad employer based on the Federal Employer&rsquo;s Liability Act (&ldquo;FELA&rdquo;).&nbsp; Miller claimed to have sustained cumulative injuries caused by defective locomotive cab seats.&nbsp; Specifically, he claimed that the railroad&rsquo;s cab seats were &ldquo;loose and wobbly&rdquo; and they failed to protect him from excessive shock, jarring and vibration. This negligence caused him to suffer back injuries.&nbsp;&nbsp; The jury was instructed on two theories of recovery for Miller under the FELA:&nbsp; general negligence and negligence <i>per se</i> for violation of the Locomotive Inspection Act (&ldquo;LIA&rdquo;, 49 U.S.C. s. 20701 <i>et seq.</i>).&nbsp;&nbsp; The jury found for the railroad on both theories.</p> <p>On appeal, Miller asserted that the trial court erred by refusing his proffered verdict director relating to his negligence <i>per se</i> theory, and by submitting an instruction that did not properly state the law applicable to his claim.&nbsp; The Court of Appeals agreed.&nbsp;&nbsp;<br /> <br /> The Court of Appeals observed that the LIA supplements the FELA by imposing on railroads an absolute duty to provide safe locomotives.&nbsp; The LIA provides that railroads may only use locomotives that &ldquo;are in proper condition and safe to operate without unnecessary danger of personal injury&rdquo;.&nbsp; Pursuant to the LIA, the Federal Railroad Administration (&ldquo;FRA&rdquo;) promulgated regulations governing standards of care for locomotives, including cab seats.&nbsp; These regulations include 49 C.F.R. s. 229.119(a) which states that cab seats &ldquo;shall be securely mounted and braced&rdquo;.</p> <p>The Court further noted that a railroad can violate the LIA by breaching the broad statutory duty to provide locomotives that are &ldquo;safe to operate without unnecessary danger of personal injury&rdquo; (the general statutory duty) <i>or</i> by failing to comply with regulations issued by the FRA (a specific regulatory duty).&nbsp;</p> <p>Miller requested a verdict directing instruction on his negligence <i>per se</i> theory based on the railroad&rsquo;s failure to comply with the specific regulatory duty, i.e. 49 C.F.R s. 229.119(a).&nbsp; He intended to forgo a verdict director based on the general statutory duty, i.e. 49 U.S.C. s. 20701.&nbsp; The approved instruction for an FELA claim based on an LIA violation tracks the language of the LIA&rsquo;s general statutory duty.&nbsp; There is no approved instruction that tracks a specific regulatory duty. &nbsp;The trial court refused Plaintiff&rsquo;s proffered instruction and instead gave Defendant&rsquo;s instruction that was based on MAI.</p> <p>The Court of Appeals concluded that the difference between proceeding under a theory that the railroad violated a specific regulatory duty - as opposed to the general LIA statutory duty - is significant. &nbsp;&nbsp;A violation of the general statutory duty required Plaintiff to prove that the railroad&rsquo;s cab seats were not &ldquo;safe to operate without unnecessary danger of personal injury&rdquo;. &nbsp;&nbsp;This proof is not required when a railroad allegedly violates a specific regulatory duty because regulations promulgated by the FRA pursuant to the LIA have already been supported by a finding that the regulation is necessary to eliminate unnecessary danger of personal injury.</p> <p>The Court added that the lack of an approved instruction based on the specific regulatory duty didn&rsquo;t bar Miller from submitting his theory to the jury, nor did this relieve the trial court of its duty to accurately instruct the jury on applicable regulatory standards.</p> Obtains Defense Verdict in Alleged Shooting, Negligence Case in the City of St. Louis Dec 2019Results<div>BSCR successfully defended a negligence lawsuit involving an alleged shooting where Plaintiff alleged Defendant shot a firearm at his head while standing over him. Plaintiff initially pled both intentional tort and negligence but chose to submit only on negligence. In response, we successfully argued that Plaintiff initiated the physical altercation, had Defendant in a headlock, and Defendant shot one round in the air to deter Plaintiff&rsquo;s attack. In closing, Plaintiff&rsquo;s counsel asked the jury for an amount in excess of $1 million dollars and an additional award of punitive damages. After a four-day trial, the jury returned a verdict in favor of Defendant.</div> Jurisdiction in Missouri: Just One Touch May be Enough Dec 2019Missouri Law Blog<p>On October 29, 2019, the Supreme Court of Missouri, in <i>State ex rel. Key Insurance Company v. Roldan</i>, <a href="">held</a> Missouri courts may exercise personal jurisdiction over a foreign corporation when the corporation has made at least one contact with Missouri and Plaintiff&rsquo;s tortious cause of action arises out of that contact.</p> <p>Plaintiff Phillip Nash, a resident of Missouri, was involved in a motor vehicle collision with Josiah Wright in Jackson County, Missouri. Defendant Key Insurance Company, a Kansas corporation, insured Nash&rsquo;s vehicle, through its policy issued to Nash&rsquo;s daughter, a Kansas resident. Key Insurance denied Nash&rsquo;s claim for coverage. Wright sued Nash in Jackson County and was later awarded $4.5 million in arbitration. Jackson County Circuit Court confirmed the award as a final judgment. Nash then sued Key Insurance in Jackson County Circuit Court to collect insurance proceeds in a classic &sect; 537.065 agreement. (See our <a href=";an=67599&amp;format=xml&amp;stylesheet=blog&amp;p=5258">July 2017 blog</a> on amendments to &sect; 537.065, and how these agreements work.) Nash specifically alleged that Key Insurance committed the tort of bad faith refusal to settle. Key Insurance moved to dismiss Nash&rsquo;s claim for lack of personal jurisdiction. The trial court denied the Motion to Dismiss. Key Insurance thereafter petitioned the Missouri Court of Appeals for a Writ of Prohibition, which was denied. But in January 2019, Key Insurance petitioned the Supreme Court of Missouri, and the Supreme Court surprisingly issued a Preliminary Writ of Prohibition, agreeing to hear defendant&rsquo;s claim of lack of jurisdiction.</p> <p>Key Insurance argued that the Circuit Court usurped its jurisdiction on two grounds: (1) Key <br /> Insurance&rsquo;s alleged conduct did not fall within Missouri&rsquo;s long-arm statute, and (2) Key Insurance did not have sufficient minimum contacts with Missouri to satisfy the requirements and protections of the Due Process Clause.</p> <p>The Missouri Supreme Court held that Missouri&rsquo;s long-arm statute gives Missouri courts personal jurisdiction over a foreign corporation that commits a tortious act <i>within</i> Missouri. The Court found that Nash made a prima facie showing as to his tort claim against Key Insurance. In so finding, Key Insurance&rsquo;s alleged conduct &ndash; its alleged bad faith refusal to settle - did fall within Missouri&rsquo;s long-arm statute. The Court reasoned that because Nash&rsquo;s cause of action arose out of a contract to insure property at risk in Missouri, Nash&rsquo;s claim was proper under Missouri&rsquo;s long-arm statute. Additionally, Nash resided in Jackson County, Missouri, and the $4.5 million judgment against Nash was confirmed by the Jackson County Circuit Court.</p> <p>The Supreme Court also held that one contact with Missouri &ndash; the contact being the tortious act itself &ndash; is sufficient to satisfy constitutional due process protections. The Court reasoned that because Nash&rsquo;s claim arose out of Key Insurance&rsquo;s tortious contact with Missouri, Key Insurance&rsquo;s contact was sufficient alone to satisfy constitutional due process.</p> <p>The Supreme Court of Missouri therefore concluded that Key Insurance was not entitled to a Writ of Prohibition, and that the trial court had personal jurisdiction over the Kansas insurer. The Supreme Court quashed its preliminary writ of prohibition, allowing Nash to proceed to trial, and pursue damages against Key Insurance for bad faith refusal to settle.</p> <p>Insurers and insureds alike take notice of these cases and the protections and pitfalls afforded under RSMo. &sect; 537.065. Even with the recent statutory changes and additional requirements of a valid &sect; 537.065 agreement, insurers should be wary and cautious in coverage determinations and any cases where &sect; 537.065 could be properly exercised by the insured defendant.&nbsp;</p> Court of Appeals Draws Careful Distinctions for Access to Mental Health Records Nov 2019Illinois Law Blog<p>In <i>Sparger v. Yamini</i>, plaintiff, on behalf of his minor-daughter, filed a medical malpractice lawsuit against a Chicago-area hospital and a neurosurgeon (collectively &ldquo;defendants&rdquo;). Plaintiff alleged that the surgeon&rsquo;s negligence in repairing the minor-plaintiff&rsquo;s spinal fluid leak caused her to subsequently develop meningitis. Plaintiff&rsquo;s Complaint included a claim for compensation for brain damage suffered by minor-plaintiff, including a detrimental effect on the minor plaintiff&rsquo;s &ldquo;cognitive, emotion[al], and behavioral presentation.&rdquo;</p> <p>Defendants sought minor-plaintiff&rsquo;s medical records from two hospitals predating the medical care at issue.&nbsp;Plaintiff&rsquo;s counsel declined to produce the records, asserting that they were privileged and non-discoverable under the Illinois Mental Health and Developmental Disabilities Confidentiality Act (&ldquo;MHA&rdquo;) as containing information pertaining to the minor-plaintiff&rsquo;s mental health treatment.&nbsp;In lieu of production, plaintiff&rsquo;s counsel provided a limited and redacted version of one of the records sought, while declining entirely to produce the records pertaining to a different hospitalization.</p> <p>Defendants argued that the minor-plaintiff placed her mental health at issue by claiming the alleged injury affected her cognitive, emotional, and behavioral presentation and that the records sought were relevant to her presentation before the alleged injury, thereby falling into a narrow exception to the MHA regarding mental condition.&nbsp;The circuit court granted defendants&rsquo; Motion to Compel ordered plaintiff&rsquo;s counsel to produce the entirety of the records withheld.</p> <p>Plaintiff&rsquo;s counsel refused to produce the records and was placed in &ldquo;friendly&rdquo; contempt of court for violation of the discovery order. Plaintiff&rsquo;s counsel appealed the finding of contempt (a finding of which is final and appealable under Illinois case law (<i>see</i> <i>Reda v. Advocate Health Care</i>, 199 Ill. 2d 47, 54 (2002)). On appeal, plaintiff&rsquo;s counsel argued that because plaintiff was not seeking compensation for any emotional injuries to minor-plaintiff, her mental health had not been placed at issue.</p> <p>On review, the Illinois Appellate Court for the First District reversed the trial court&rsquo;s ruling and stated that plaintiff had not placed minor-plaintiff&rsquo;s mental condition at issue by claiming brain damage and cited the prior decision of the Illinois Supreme Court in <i>Reda v. Advocate Health Care</i>, 199 Ill. 2d 47, 50 (2002).&nbsp;</p> <p>In <i>Reda</i>, plaintiff alleged medical negligence in diagnosis and treatment of an acute thrombosis in his right leg which allegedly resulted in a subsequent stroke. <i>Id. </i>at 50-51.&nbsp;Plaintiff&rsquo;s treating healthcare providers refused to provide records, citing their protection under MHA.&nbsp;<i>Id. </i>at 51.&nbsp;The trial court ordered production of the records, and the Appellate Court affirmed.&nbsp;The Supreme Court reversed both lower courts, stating &ldquo;neurological injury is not synonymous with psychological damage&hellip;[n]or does neurological injury directly implicate psychological damage.&rdquo;&nbsp;<i>Id. </i>at<i> 58.</i></p> <p>The Appellate Court further distinguished a case from the Appellate Court for the Third District, <i>Phifer v. Gingher</i>, 2017 IL App (3d) 160170. &nbsp;In <i>Phifer</i><i>, </i>plaintiffsought damages for &ldquo;psychiatric, psychological, and/or emotional injuries&rdquo; resulting from an automobile collision. &nbsp;Defendant requested medical records prior to the collision, plaintiff refused, and the trial court granted defendant&rsquo;s Motion to Compel. <i>Id</i>. at 13-19. &nbsp;The <i>Phifer</i> Court, distinguishing <i>Reda,</i> held that plaintiff placed her mental condition at issue by alleging that she was caused &ldquo;great pain and anguish both in mind and body.&rdquo; <i>Id.</i> at 28.</p> <p>The Appellate Court distinguished the facts of the current case from Phifer because plaintiff specifically stipulated that he was &ldquo;not seek[ing] damages based on psychiatric, psychological and emotional damages and did not allege [minor-plaintiff] suffered pain and anguish in mind and body, nor [that he claimed] psychiatric or psychological injuries.&rdquo;</p> <p>The Appellate Court also rejected defendants&rsquo; argument that fundamental fairness required disclosure of the records and distinguished another case cited by defendants, <i>D.C v. S.A.</i>, 178 Ill. 2d 551 (1997).&nbsp;In <i>D.C v. S.A.</i>, the Illinois Supreme Court held that an exception to the MHA privilege may exist in certain circumstances where the medical records sought have the potential to absolve defendant of all liability and fully negate plaintiff&rsquo;s claim. <i>Id</i>. at 570.&nbsp;Such an exception included those records establishing that the plaintiff suffered an injury as a result of an attempted suicide, and not an unrelated negligent act, as the plaintiff had initially contended.&nbsp;In distinguishing the present case, the Appellate Court found that the records sought here did not pertain to the absolution of defendants&rsquo; liability, but rather to minor-plaintiff&rsquo;s damages.</p> <p>The <i>Sparger </i>opinion is notable not only in its ruling regarding the narrow exceptions prescribed by the MHA, but also in the fact that none of the courts and their respective opinions referenced herein attempted to define what specific claims constitute a &ldquo;neurological injury&rdquo; versus a &ldquo;psychological injury.&rdquo;&nbsp;Instead, the Appellate Court in the instant case held that because the plaintiff&rsquo;s neuropsychology expert concluded that minor-plaintiff experienced a traumatic brain injury as a result of the alleged negligence, the claims were neurological rather than psychological.&nbsp;</p> <p>Defense counsel should expect plaintiffs&rsquo; attorneys to continue pursuing the argument that plaintiffs&rsquo; alleged injuries are neurological as opposed to psychological, even in light of alleged emotional and behavioral effects, in an effort to conform their cases to this decision and attempt to prevent access to relevant mental health records.</p> <p><i>Sparger v. Yamini</i>, 2019 IL App (1st) 180566.</p> Odom Speaks on Asbestos Litigation Panel Nov 2019Speaking Engagements<p>Baker Sterchi Cowden &amp; Rice LLC attorney Greg Odom joins a panel of defense attorneys speaking on issues related to asbestos litigation in December.</p> <p>The webinar, &ldquo;A Guide to Practicing in Asbestos Litigation Hotspots&rdquo;, hosted by the Illinois Association of Defense Trial Counsel (IDC) will examine the asbestos litigation dockets in the Illinois counties of Cook, Madison, McLean and St. Clair, and also St. Louis City, Missouri. Speakers will share insight into practicing in these asbestos litigation hot spots and provide useful tips for webinar participants.</p> <p>Odom, located in Baker Sterchi&rsquo;s Belleville, Illinois 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>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>The 60-minute webinar is being offered on Tuesday, December 10 starting at 12:30 p.m. CST. Register for the webinar <a href=";panel=showLive&amp;seminarid=10663" target="_blank">here</a>.&nbsp;</p> District Missouri Court of Appeals Overturns Talc Verdict Nov 2019Product Liability Law Blog<p>On October 15, 2019 the Missouri Court of Appeals for the Eastern District overturned a jury verdict, including punitive damages, to an out of state plaintiff. The Court ruled that the trial court lacked personal jurisdiction to render the verdict pursuant to recent United States Supreme Court authority.</p> <p align="center"><u>Facts</u></p> <p>Plaintiff Lois Slemp, a resident of Virginia, was one of sixty-two plaintiffs alleging claims against defendants Johnson &amp; Johnson, Johnson &amp; Johnson Consumer Companies, Inc. and Imerys Talc America, Inc. for personal injuries related to use of talc products produced, manufactured and sold by defendants.&nbsp;Plaintiff&rsquo;s claim was tried separately, and the jury awarded a verdict in her favor for actual and punitive damages in May 2017.&nbsp;Judgment was entered on August 3, 2017, including a finding by the trial court pursuant to Missouri Rule of Civil Procedure 74.01(b) that there was no just reason to delay entry of final judgment for purposes of proceeding with appeal.&nbsp;</p> <p>After the verdict but before judgment was entered, the landmark United States Supreme Court personal jurisdiction case, <i>Bristol-Myers Squibb v. Superior Court of Ca.</i>, 137 S.Ct. 1773 (2017), was handed down.&nbsp;Following entry of judgment, defendants filed a timely post-trial motion on September 1, 2017 seeking dismissal of plaintiff&rsquo;s claims for lack of personal jurisdiction based upon the <i>BMS</i> case.&nbsp;Defendants argued that under the <i>Bristol-Myers </i>case, there was no basis for the trial court to exercise specific personal jurisdiction over the non-resident plaintiff&rsquo;s claims where none of the circumstances leading to the plaintiff&rsquo;s claim occurred in the State of Missouri.&nbsp;</p> <p>Plaintiff later filed a motion requesting the Court temporarily vacate the judgment, and allow discovery on the issue of personal jurisdiction.&nbsp;On November 29, 2017, the trial court denied both defendants&rsquo; motions to dismiss for lack of personal jurisdiction and plaintiff&rsquo;s motion to vacate and reopen discovery.&nbsp;The trial court also issued an order striking the Rule 74.01(b) language from its original judgment. &nbsp;&nbsp;Defendants&rsquo; subsequently appealed.&nbsp;</p> <p align="center"><u>Appeal</u></p> <p>The Court of Appeals reversed the trial court&rsquo;s ruling denying defendants&rsquo; motion to dismiss on the personal jurisdiction issue, and vacated the trial court judgment in plaintiff&rsquo;s favor.&nbsp;Key to the appeal was whether the judgment entered by the trial court was final for purposes of appeal.&nbsp;Because claims remained pending as to other plaintiffs, a rule 74.01(b) finding was necessary for defendants to proceed with an appeal.&nbsp;The Court originally entered the finding on August 3, 2019, then modified the judgment on November 29, 2017.</p> <p>Under Missouri law, a trial court maintains control of its judgment for thirty days and may modify the judgment, for good cause, within this window, regardless of whether either party requests a change.&nbsp;After expiration of this original thirty-day window, a judgment may be modified only upon grounds asserted in a timely-filed post-trial motion, which must be filed within thirty days of entry of judgment.</p> <p>Because neither party filed a timely, authorized post-trial motion requesting the Rule 74.01(b) language be removed, the appellate court ruled that the trial court was without authority on November 29, 2017 to modify its judgment to remove the language certifying the judgment as final for purposes of appeal.&nbsp;The Appellate Court therefore ruled that the Order removing the Rule 74.01(b) certification language exceeded the authority of the trial court, and the appeal was properly before the Court pursuant to the language in the August 3, 2017 Judgment.&nbsp;</p> <p>After determining the judgment was final for purposes of appeal, the Court found that specific personal jurisdiction may not be established by out of state plaintiffs under circumstances arising outside the state merely by joining the claim with a Missouri plaintiff.&nbsp;Accordingly, the rulings on the personal jurisdiction motions were reversed, and plaintiff&rsquo;s judgment was reversed.</p> <p align="center"><u>Guidance for the Future</u></p> <p>When filing post-trial motions, all parties should be certain to timely request all post-trial relief, including any desired modification of judgment language, within the time allowed under procedural rules.&nbsp;Additionally, under the <i>Bristol-Myers </i>case personal jurisdiction against a defendant must be established for each claim made against it.</p> & Kansas Super Lawyers Recognizes Nineteen Baker Sterchi Attorneys Nov 2019Recognition<p>Nineteen Baker Sterchi Cowden &amp; Rice attorneys have been named to the 2019 Missouri &amp; Kansas Super Lawyers and Rising Stars lists. The named attorneys include:</p> <p style="margin-left: 40px;"><strong>Kansas City, Missouri<br /> <br type="_moz" /> </strong><u> </u></p> <div style="margin-left: 40px;">John W. Cowden &ndash; Aviation &amp; Aerospace<br /> <br /> David M. Eisenberg &ndash; Employment &amp; Labor<br /> <br /> James R. Jarrow &ndash; General Litigation<br /> <br /> Scott Kreamer &ndash; Business Litigation<br /> <br /> Michael McMullen &ndash; Products Liability: Defense<br /> <br /> Thomas E. Rice &ndash; Civil Litigation: Defense<br /> <br /> Thomas N. Sterchi &ndash; Products Liability: Defense<br /> <br /> Kara T. Stubbs &ndash; Products Liability: Defense<br /> <br /> Jonathan E. Benevides - Civil Litigation: Defense (Rising Star)<br /> <br /> John E. Patterson &ndash; Civil Litigation: Defense (Rising Star)<br /> &nbsp;</div> <p style="margin-left: 40px;"><strong>St. Louis, Missouri<br /> <br type="_moz" /> </strong></p> <div style="margin-left: 40px;">Michael B. Hunter &ndash; Products Liability: Defense<br /> <br /> John P. Lord &ndash; Personal Injury: Defense<br /> <br /> John F. Mahon, Jr. &ndash; Medical Malpractice: Defense<br /> <br /> Terrence J. O&rsquo;Toole, Jr. &ndash; Medical Malpractice: Defense<br /> <br /> Steven P. Sanders &ndash; Products Liability: Defense<br /> <br /> Paul N. Venker &ndash; Medical Malpractice: Defense<br /> <br /> Theodore J. Williams, Jr. &ndash; Civil Litigation: Defense<br /> <br /> Joshua Davis &ndash; Transportation &amp; Maritime: Defense (Rising Star)<br /> <br /> Richard I. Woolf &ndash; Civil Litigation: Defense (Rising Star)<br /> &nbsp;</div> <p>The Super Lawyers publication recognizes lawyers who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations. Super Lawyers recognizes no more than five percent of attorneys in each state.&nbsp;Rising Stars are top up-and-coming attorneys in a state who are 40 years old or younger, or who have been practicing for ten years or less, with only two and a half percent of attorneys in each state being recognized.&nbsp; Cowden, Eisenberg, Rice, Sterchi and Williams have been selected for inclusion in the publication every year since it was launched in 2005.</p> Sterchi Obtains Dismissal in St. Clair County Illinois Nov 2019Results<p>Baker Sterchi successfully defended a tow company is an action by a lienholder seeking damages for the towing and storage of its vehicle under the Storage Lien Act.</p> <p>Our client argued that it had a right under 625 ILCS 5/4-203(g)(2) to collect towing and storage fees as the vehicle in question was towed and impounded by the direction of a local police agency after the driver of the car was arrested. Lienholder argued because tow company did not serve them notice within two days of the tow, it forfeited its rights to charge towing and storage fees. &nbsp;</p> <p>The Circuit Court disagreed with the lienholder, finding that because the tow in question was ordered by the police, 625 ILCS 5/4-203(g)(2) was an affirmative matter that barred or otherwise defeated lienholder&rsquo;s claim and granted the dismissal.</p> Aviation Administration Certifies UPS to Become First-ever Drone Airline. Nov 2019Aerospace Law Blog<p>The Federal Aviation Administration (FAA) issued the first-of-its-kind Part 135 certification to UPS subsidiary, UPS Flight Forward, Inc. (UPS).</p> <p>The Part 135 certificate declares two core matters: (1) UPS is exempt from certain federal rules and regulations governing flight operations, and (2) UPS is explicitly authorized to perform certain flight operations otherwise prohibited by the FAA.</p> <p>Specifically, the Part 135 certificate issued to the UPS subsidiary waives the following federal regulations:</p> <p style="margin-left: 40px;"><b>14 CFR &sect; 107.31, Visual line of sight aircraft operation</b>, is waived to allow operation of the small unmanned aircraft (sUA) beyond the direct visual line of sight of the remote pilot in command (PIC) and any visual observer (VO) who is participating in the operation.</p> <p style="margin-left: 40px;"><b>14 CFR &sect; 107.33(b) and (c)(2), Visual observer</b>, is waived to the extent necessary to allow operation of the small unmanned aircraft (sUA) when any VO who is participating in the operation may not be able see the unmanned aircraft in the manner specified in &sect;107.31.</p> <p style="margin-left: 40px;"><b>14 CFR &sect; 107.39, Operations over people</b>, is waived to allow sUA operations over people who are not direct participants, necessary for the safe operation of the small unmanned aircraft.</p> <p>The certificate provides as authorized operations:</p> <p style="margin-left: 40px;">Small unmanned aircraft system (sUAS) operations for the purpose of 135 certification, beyond the visual line of sight of the remote pilot in command (PIC) and Visual Observer (VO), in lieu of visual line of sight (VLOS) and sUAS operations over human beings.</p> <p>Notably, Amazon Air and Uber Eats have yet to secure Part 135 certification status.&nbsp;Until now, one or all of the above UPS exemptions limited Part 135 operators, including Google&rsquo;s Wing Aviation LLC, which received only a waiver for a single pilot.&nbsp;</p> <p>While Part 135 certifications were already used for drone deliveries, UPS is using its certificate to go one step further to build out the first drone airline thanks to the far-reaching parameters of the waiver.&nbsp;UPS&rsquo;s Part 135 certificate removes limits on the size and scope of the company&rsquo;s potential drone operations.&nbsp;The company is now also exempt from the FAA rule that mandates that drones fly within the sight of the drone operator.&nbsp;In other words, the certificate allows UPS to fly an unlimited number of drones with an unlimited number of remote operators.&nbsp;The certificate also lifts previous restrictions on drone flights, permitting a drone and its cargo to exceed 55 pounds and to fly at night.&nbsp;This allows the company to develop new technology to create and use different drones.</p> <p>In recent press statements, UPS CEO David Abney stated UPS worked closely with the Department of Transportation and the FAA to achieve this goal.&nbsp;Mr. Abney stated the certification will be used to accomplish multiple unmanned aircraft deliveries to multiple locations.&nbsp;UPS&rsquo;s first focus will be a strategic healthcare initiative to expand its drone delivery service to further support hospital campuses throughout the United States.&nbsp;Abney stated the company has contemplated numerous campus-like settings for drone delivery and he believes the drone expansion will serve 20 or more locations during the rollout phase of the newly authorized drone deliveries.&nbsp;When regulations are complete, Abney expects expansion to residential delivery.&nbsp;</p> <p>In anticipation of Part 135 approval, but before receipt of the certificate, UPS began to develop a ground-based fleet of drones that help detect and avoid technology.&nbsp;UPS has also already begun to organize and develop technologies to create a consolidated control center that will allow the company to dispatch and operate drones from one consolidated area, thereby minimizing costs associated with infrastructure.&nbsp;</p> <p>The immediate concern of economists is that of American jobs while yet another industry inches closer towards automated functionality.&nbsp;The certificate and control center allow the company to facilitate its drone program with a fraction of the number of drone operators otherwise required by the FAA, and to avoid a need for jobs that would support additional drone operation locations.&nbsp;Economists speculate that as drone deliveries increase, reliance on UPS truck deliveries will decrease thereby eliminating at least some of the need for UPS drivers.&nbsp;</p> <p>As with all developments in this ever-evolving field, only time will tell what and how the legal and regulatory environment mesh with the actual uses that UPS finds for its drones.</p>