BSCR Firm News/Blogs Feedhttps://www.bscr-law.com/?t=39&format=xml&directive=0&stylesheet=rss&records=10en-us10 Aug 2020 00:00:00 -0800firmwisehttps://blogs.law.harvard.edu/tech/rssGreg Odom to Present to Members of the Marion Chamber of Commerce on BIPA in Illinoishttps://www.bscr-law.com/?t=40&an=110951&format=xml&p=545407 Aug 2020Speaking Engagements<p>Baker Sterchi Member Greg Odom will present on the Illinois Biometric Information Privacy Act on August 11. Hosted by the Marion Chamber of Commerce, the presentation will focus on helping businesses understand what the Act requires, how to comply with the Act, and what to do if sued under the Act.</p> <p>Odom, located in Baker Sterchi&rsquo;s Belleville, Illinois office, is a member of the firm&rsquo;s Cyber Liability, Privacy &amp; Data Breach practice group, advising businesses and organizations on cybersecurity issues.&nbsp; An experienced trial attorney, his practice is focused on defending clients in mass toxic torts and commercial litigation.&nbsp; He represents individuals, local businesses, and Fortune 500 companies in state and federal courts across Illinois and Missouri, with an emphasis on defending clients in southern Illinois and the metropolitan St. Louis region.</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> Odom&rsquo;s presentation begins at noon CST on August 11, with networking before and after the event.&nbsp; The presentation is also being offered via ZOOM.&nbsp; For more information or to register, click <a href="https://www.chamberorganizer.com/Calendar/moreinfo_responsive.php?eventid=375808&amp;org_id=MCOC">here</a>.https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Miller Selected for Greater KC Chamber of Commerce Leadership Programhttps://www.bscr-law.com/?t=40&an=110890&format=xml&p=544806 Aug 2020Firm News<p>The Greater Kansas City Chamber of Commerce has selected Baker Sterchi Associate Betsy Miller to join its Centurions Leadership Program. After an extensive application and interview process, Miller is one of only 46 Kansas Citians accepted into the 2022 Fall Class of Centurions.</p> <p>Established in 1976, Centurions is an intensive two-year leadership development program for emerging leaders in Greater Kansas City. As a Centurion, Miller will implement an impactful community service program, meet with high-level executives to build community knowledge and coalitions, and have a voice in planning task forces focused on topics like entrepreneurship, business and economic resiliency, housing and homelessness, and food and the culinary scene in Kansas City.</p> Miller is a civil litigation attorney who focuses on employment discrimination, personal injury, and product liability.&nbsp; Her area of concentration is on class action and multidistrict (MDL) litigation.&nbsp; Miller also dedicates a significant amount of time to community volunteer work and pro bono cases.&nbsp; Her experience in various leadership roles and in a broad range of practice areas provides her with insight and practical experience that serve her clients and the community well.https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Baker Sterchi Paralegal Elected to KCPA Board of Directorshttps://www.bscr-law.com/?t=40&an=110825&format=xml&p=544805 Aug 2020Firm News<p>Members of the Kansas City Paralegal Association (KCPA) have elected Baker Sterchi Paralegal Tamara Davis to the association&rsquo;s Board of Directors.</p> <p>Founded in 1975, KCPA is a professional association for paralegals in the Kansas City area established to promote, enhance, and encourage the development of the paralegal profession; to provide opportunities for networking among paralegals on the local, state, and national levels; and to offer quality continuing education for paralegals.&nbsp;KCPA also promotes and participates in various local community service projects, including Bears on Patrol, which supplies Kansas City patrol officers with teddy bears to give to children faced with trauma the field.</p> <p>Davis&rsquo; term as member-at-large will start on September 1 and last for two years. Her duties will include acting as a liaison between the Board of Directors and membership, welcoming all new members, and offering support to other board members as needed.</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Supreme Court Bostock Ruling Confirms Scope of Title VII Includes Protections for Homosexuals, Invalidating Prior Eighth Circuit Precedenthttps://www.bscr-law.com/?t=40&an=110829&format=xml&p=5258&stylesheet=blog04 Aug 2020Employment & Labor Law Blog<p>In <i>Horton v. Midwest Geriatric Mgmt., LLC</i>, Mark Horton filed a Title VII sex discrimination case against Midwest Geriatric Management, LLC (&ldquo;MGM&rdquo;) following withdrawal of an employment offer, after Midwest Geriatric Management became aware that Horton was gay and had a partner.</p> <p>Horton was the Vice President of Sales &amp; Marketing for Celtic Healthcare.&nbsp;He was recruited by a job search firm for the position of Vice President of Sales and Marketing for a company named Midwest Geriatric Management.&nbsp;After applying for the job, he received an offer of employment pending a background check and further confirmation of his educational history.&nbsp;Horton signed the job offer to work for Midwest Geriatric and resigned from his position at Celtic.</p> <p>Because one of his former colleges no longer existed (it had been sold to another university), the company retained to complete Horton&rsquo;s background check informed him that the background check would take four to six weeks to complete. Horton communicated this delay to all the parties involved including Midwest Geriatric CEO Judah Bienstock and his wife Faye, who was involved in the hiring process. &nbsp;None voiced any concern. In a subsequent email to Bienstock about the status of obtaining his educational records, Mark stated, <i>&ldquo;My partner has been on me about [my MBA] since he completed his PHD a while back.&rdquo;</i> A few days later, Mark received an email stating, &ldquo;<i>Mark&mdash;I regret to inform you that due to the incompletion of the background check of supportive documentation&mdash;we have to withdraw our offer letter for employment at MGM. We wish you much luck in your future endeavors. Judah and Faye.&rdquo;</i>&nbsp;Even after Mark obtained his college records and contacted MGM while the position was still vacant, Faye said, <i>&ldquo;At this time&mdash;we are considering other candidates.&rdquo; </i>&nbsp;</p> <p>Horton filed a Charge of Discrimination with the Equal Employment Opportunity Commission, alleging sex discrimination and religious discrimination under Title VII.&nbsp;After receiving his right-to-sue notice from the EEOC, Horton sued in the U.S. District Court for the Eastern District of Missouri.</p> <p>Horton&rsquo;s lawsuit alleged Midwest Geriatric unlawfully discriminated against him on the basis of sex when his offer of employment was withdrawn after learning he was homosexual.&nbsp;Specifically, Horton argued: 1) they treated him less favorably because of his sexual orientation, or based on his sex; 2) they treated him less favorably because of his association with a person of a particular sex, i.e. the same sex; and 3) they treated him less favorably on the basis of his nonconformity with sex stereotypes and MGM&rsquo;s preconceived definition of how males should behave.</p> <p>In granting Defendant&rsquo;s motion to dismiss, the District Court relied on the Eighth Circuit&rsquo;s 1989 holding in <i>Williamson v. A.G. Edwards &amp; Sons</i> that had concluded &ldquo;Title VII does not prohibit discrimination against homosexuals.&rdquo;&nbsp;<i>Williamson v. A.G. Edwards &amp; Sons, Inc.</i> 876 F.2d 69, 70 (8th Cir. 1989).&nbsp;The District Court further held that sexual orientation is not an explicitly protected characteristic under Title VII.&nbsp;The Court acknowledged numerous federal courts had recently held otherwise, but noted the Eighth Circuit had not changed its position on the issue, so they were bound by <i>Williamson</i>.&nbsp;</p> <p>Additionally, because Horton&rsquo;s claim of sexual stereotyping was admittedly based solely on his sexual orientation, the District Court concluded sexual stereotyping alone could not be the alleged gender non-conforming behavior giving rise to a Title VII&nbsp;claim in Horton&rsquo;s case, because &ldquo;[t]o hold otherwise would be contrary to well-settled law that Title VII does not prohibit discrimination on the basis of sexual orientation.&rdquo;</p> <p>Horton appealed to the Eighth Circuit, but the appeal was stayed pending the United States Supreme Court&rsquo;s consideration of the &ldquo;scope of Title VII&rsquo;s protections for homosexual and transgender persons,&rdquo; in <i>Bostock v. Clayton County</i>, and other related cases.&nbsp;In its <i>Bostock </i><a href="https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf ]">ruling</a>, the Supreme Court declared plainly that it &ldquo;defies&rdquo; Title VII for &ldquo;an employer to discriminate against employees for being homosexual or transgender,&rdquo; because to do so, it &ldquo;must intentionally discriminate against individual men and women in part because of sex.&rdquo;&nbsp;The Eighth Circuit therefore <a href="https://ecf.ca8.uscourts.gov/opndir/20/07/181104P.pdf ">reversed</a>, based on the <i>Bostock </i>decision, reasoning that because the Supreme Court has held sexual orientation to be a class protected under Title VII, the <i>Williamson</i> case relied upon by the Eastern District in dismissing Horton&rsquo;s claim, was no longer good law.&nbsp;The case was remanded to the district court for further proceedings in light of the <i>Bostock</i> holding.<br /> &nbsp;</p> <p><i>* Kameron Fleming, Summer Law Clerk in the St. Louis office of Baker Sterchi, assisted in the research and drafting of this post.&nbsp;Fleming is a&nbsp;rising 3L student at the Washington University St. Louis School of Law.</i></p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Venker Featured in SLBF Freedom Suits Fundraising Videohttps://www.bscr-law.com/?t=40&an=110852&format=xml&p=544831 Jul 2020Firm News<p>Baker Sterchi Member Paul Venker, in his role as Chairman for the Freedom Suits Memorial Steering Committee, appears in a recently launched video to help raise money for this Memorial sculpture, which will honor the courageous slave-plaintiffs in what have become known as the <i>freedom suits</i>. Judge David C. Mason, has been the champion for this Memorial, the idea of which he conceived of more than five years ago. The Memorial will sit on the east plaza of the St. Louis Civil Courts Building, which is home to the Twenty-Second Judicial Circuit Court.&nbsp;</p> <p>In the early to mid-1800s, hundreds of slaves filed suits in Missouri courts, the vast majority of them in St. Louis, demanding their freedom. They did so under the legal precedent: &ldquo;once free, always free&rdquo;, which held that if a slave moved from Missouri to a free state/territory for the proper length of time, they became free. If they were then returned to Missouri, he or she could sue for their freedom because they had become free in that other state/territory. These are collectively referred to as&nbsp;<i>freedom suits</i>, of which Harriett and Dred Scott are likely the most famous plaintiffs.&nbsp;</p> <p>The Freedom Suits Memorial Steering Committee is actively fundraising in the community at large, but specifically including the legal community, for the Memorial sculpture. Their goal is to raise $1M. A past president of the St. Louis Bar Foundation, Venker has been chairman of the Freedom Suits Memorial Steering Committee since 2015.&nbsp;</p> <p>In 2016, the Steering Committee selected the design of Preston Jackson, a professor emeritus at The Art Institute of Chicago, who conceived of a cast bronze work 8 feet wide by 4 feet deep and 14 feet tall, with each angle providing a pictorial lesson of how these lawsuits demonstrated the divided society which permitted some slaves to sue for freedom, but also kept so many more in slavery.&nbsp;</p> <p>&quot;This project is the result of Judge David Mason&rsquo;s perseverance with his brilliant idea to have a memorial for freedom suits plaintiffs, lawyers, and judges, coupled with the artistic genius of the nationally-renowned artist Preston Jackson,&quot; said Paul Venker. &ldquo;We hope the entire community, but specifically the legal community, will embrace our fundraising campaign to help bring this inspiring project to life.&rdquo;&nbsp;<span style="color: rgb(255, 0, 0);"><br /> <br /> </span>Contributions are being made to and handled by the St. Louis Bar Foundation, which is a section 501(c)(3) not-for-profit organization and is the charitable outreach arm of the Bar Association of Metropolitan St. Louis. Donations may be made online&nbsp;<a href="https://www.bamsl.org/index.cfm?pg=donate&amp;type=freedomsuits#form" target="_blank" rel="noopener noreferrer"><span style="color: rgb(255, 0, 0);">here</span></a>, or by mailing a check payable to &ldquo;St. Louis Bar Foundation&rdquo; to 555 Washington Ave., Ste. 100, St. Louis, MO 63101. When mailing a check, put &ldquo;Freedom Suits Memorial&rdquo; in the memo line.<br /> <br /> View the Freedom Suits Memorial fundraising video with Venker<a href="https://www.facebook.com/112540970493928/videos/1464975790559616/">&nbsp;<span style="color: rgb(255, 0, 0);">here</span></a>.&nbsp;For more on the Freedom Suits Memorial Project, visit the St. Louis City Circuit Court website&nbsp;<span style="color: rgb(255, 0, 0);"><a href="http://www.stlcitycircuitcourt.com/FreedomSuits/MemorialSculptureCCB.htm" target="_blank">here</a>.&nbsp;</span></p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Missouri Senate Bill 591 - Punitive Damages (A Health Care Perspective)https://www.bscr-law.com/?t=40&an=110795&format=xml&p=30 Jul 2020Healthcare Law Blog<p><u>Introduction</u></p> <p>On July 1, 2020, Governor Mike Parson signed Senate Bill 591 (SB 591). The new law states it will apply to all suits filed on or after August 28, 2020.&nbsp;SB 591 makes significant changes to the framework for punitive damages in tort actions filed in Missouri state courts or filed in other courts but based on Missouri state law tort claims.&nbsp;The discussion that follows is limited solely to medical negligence cases.&nbsp;Though not dealt with here, SB 591 also includes significant changes to actions under Missouri's consumer protection statute, the Merchandising Practices Act (&ldquo;MMPA,&rdquo; &sect; 407.025, <i>et seq</i>., RSMo. (2020)).</p> <p><u>Clarifying the Proper Standard</u></p> <p>SB 591 is intended to bring much-needed clarity to punitive damages in medical negligence cases.&nbsp;This is not the first time the Legislature has addressed the issue, however.&nbsp;Since 1986, Chapter 538 of the Missouri Revised Statutes has included a definition for punitive damages as those &ldquo;intended to punish or deter willful, wanton or malicious misconduct.&rdquo;&nbsp;&sect; 538.205(11) (1986).&nbsp;Consistent with this definition, the Legislature intended that punitive damages may be awarded against a health care provider only &ldquo;upon a showing by a plaintiff that the health care provider demonstrated willful, wanton or malicious misconduct . . . . &nbsp;&sect; 538.210.8 (1986).</p> <p>Unfortunately, this statutory definition has proved problematic in its application.&nbsp;For example, in one medical negligence case involving a substantial punitive damages award, the trial court approved (over the defendants&rsquo; objection) a jury instruction submitted by the plaintiffs that used the standard &ldquo;complete indifference or conscious disregard&rdquo; instead of the &ldquo;willful, wanton or malicious&rdquo; standard mandated by &sect; 538.210.8.&nbsp;<i>See,</i> <i>Koon v. Walden</i>, 539 S.W.3d 752, 773 (Mo. App. E.D. 2017).&nbsp;That meant the jury was not instructed using the statutory language, and the jury did not specifically find that the defendants engaged in &ldquo;willful, wanton or malicious misconduct.&rdquo;&nbsp;The Missouri Court of Appeals, Eastern District, affirmed, concluding that for purposes of punitive damages, acting with &ldquo;complete indifference or conscious disregard for the safety of others&rdquo; is the legal equivalent of engaging in &ldquo;willful, wanton or malicious misconduct.&rdquo;&nbsp;<i>Id</i>. at 774-75.&nbsp;In a concurring opinion, one appellate judge stated: &ldquo;I agree that the common understanding of the words &lsquo;willful, wanton or malicious&rsquo; mean something different than &lsquo;complete indifference to or conscious disregard for the safety of others&rsquo;,&rdquo; and that the instructional issue merited further review by the Supreme Court.&nbsp;<i>Id</i>. at 775-76.&nbsp;Despite this invitation, the Supreme Court of Missouri denied the appellants&rsquo; application for transfer.</p> <p>SB 591 takes this issue head on and requires that a jury find &ldquo;the evidence clearly and convincingly demonstrated that the health care provider intentionally caused damage to the plaintiff or demonstrated malicious misconduct that caused damage to the plaintiff.&rdquo; &sect; 538.210.8, RSMo. (2020). Further, and apparently in response to the <i>Koon</i> decision, SB 591 explicitly states that: &ldquo;Evidence of negligence including, but not limited to, indifference to or conscious disregard for the safety of others shall not constitute intentional conduct or malicious misconduct.&rdquo;&nbsp;<i>Id</i>.&nbsp;This change reflects a return to the original common-law standard of intentional misconduct and is an effort to clarify for the courts the proper standard and prohibit the use of lesser standards.</p> <p>As mentioned above, as part of this new, heightened standard, SB 591 includes the &ldquo;clear and convincing&rdquo; burden of proof for punitive damages.&nbsp;This concept is not new, however, as the Supreme Court of Missouri adopted this evidentiary standard for all tort cases in <i>Rodriguez v. Suzuki Motor Corp</i>., 936 S.W.2d 104, 106 (Mo. 1996).&nbsp;Now, SB 591 codifies this standard into the statutory framework.&nbsp;Unchanged is &sect; 510.265, RSMo. (2005), which limits punitive damages in most civil cases to $500,000, or five times the net amount of the judgment awarded to the plaintiff, whichever is greater.&nbsp;The <i>Lewellen v. Franklin</i>, 441 S.W.3d 136 (Mo. 2014) decision, in which the Supreme Court of Missouri reasoned that applying the punitive damages cap to a common law cause of action violated the constitutional right to a trial by jury, does not prohibit the Legislature from capping damages for a statutory cause of action such as medical negligence.&nbsp;<i>See</i> &sect; 538.210, RSMo. (2015) (creating statutory cause of action for all medical negligence actions and replacing common law claims).</p> <p><u>Significant Procedural Hurdles</u></p> <p>Though not solely applicable to medical negligence actions, SB 591 also includes a series of procedural hurdles that a plaintiff must overcome before a court may allow a plaintiff to plead a claim for punitive damages and submit such a claim to a jury.&nbsp;These changes are included in Chapter 510.&nbsp;Under the new law, a plaintiff may not plead a claim for punitive damages until after a court has determined, based on available evidence, that a jury could reasonably conclude that the burden of proof and standard of liability have been met.&nbsp;<a name="_Hlk46305449">&sect; 510.261.5, RSMo. (2020). </a>This will be important, as it has become increasingly common for Missouri plaintiff attorneys to include in a medical negligence petition a prayer for punitive damages along with compensatory damages as a matter of course, regardless of the nature of the facts of the specific case.&nbsp;This should no longer be tolerated unless the court grants a motion for leave filed no later than 120 days before the final pretrial conference or trial.&nbsp;No pleading or discovery shall be permitted on punitive damages unless a plaintiff first clears this procedural hurdle.</p> <p><u>Vicarious Liability Issues</u></p> <p>SB 591 also includes a &ldquo;Complicity Rule&rdquo; that limits vicarious liability for punitive damages against an employer/principal for employee/agent conduct.&nbsp;The new law permits such an award against an employer for the conduct of an employee only if the employee was a managerial employee acting in the course and scope of his employment; the employer authorized or later ratified the employee&rsquo;s conduct; or the employee was &ldquo;unfit&rdquo; for the job making it &ldquo;reckless&rdquo; for the employer to hire or retain the employee.&nbsp;&sect; 510.261.3, RSMo. (2020). It remains to be seen how courts will apply this rule to health care providers, but &sect; 538.210.4, RSMo. (2020) is unchanged and continues to prohibit health care provider vicarious liability for the conduct of a non-employee agent.</p> <p><u>Conclusion</u></p> <p>SB 591 represents a return to the original common law concept of intentional misconduct being a prerequisite for an award of punitive damages.&nbsp;It is a robust effort designed to bring into focus the blurred line between mere negligent conduct and conduct that justifies an award of punitive damages, along with a procedural framework to weed out frivolous claims and ensure plaintiffs are held to the appropriate standard and burden of proof.&nbsp;The provisions outlined above appear to offer significant protections for health care provider defendants, while also allowing for the possibility of a punitive damages claim, but only in the rare circumstance where the evidence would support it.&nbsp;&nbsp;&nbsp;</p> <p><i>*Baker Sterchi Member Lisa A. Larkin assisted in the research for this post.&nbsp;</i></p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Sharkey Elected to WLA Board of Directorshttps://www.bscr-law.com/?t=40&an=110811&format=xml&p=544828 Jul 2020Firm News<p>Baker Sterchi Associate Andreea Sharkey was elected secretary to the 2020-2021 Board of Directors of The Women Lawyers&rsquo; Association of Greater St. Louis (WLA).</p> <p>The WLA was formed in 1976 by a group of women with a mission to advance women in the legal profession, promote diversity, equality and justice within the legal system, and improve the status of women in the community. The association gives law student scholarships, provides networking opportunities for members, and endorses qualified candidates for judicial positions.</p> <p>Sharkey&rsquo;s law practice focuses on insurance litigation, personal injury defense, general liability claims, and product liability. She is a graduate of the Washington University School of Law, where she served as co-chair of the Pro Bono Committee, a member of the Public Service Advisory Board, and was a part of the Women&rsquo;s Law Caucus.&nbsp; She is a member of the Clayton Chamber of Commerce Leadership Class of 2018-2019 and supports various local community organizations.</p> The 2020-2021 WLA Board will be installed at the Annual Installation and Awards Ceremony on Thursday, September 24.https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Let's Be Specific About Personal Jurisdiction: Missouri and Illinois Address Bristol-Myers Squibb v. Superior Court of Californiahttps://www.bscr-law.com/?t=40&an=110790&format=xml&p=5258&stylesheet=blog27 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>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Let's Be Specific About Personal Jurisdiction: Missouri and Illinois Address Bristol-Myers Squibb v. Superior Court of Californiahttps://www.bscr-law.com/?t=40&an=110789&format=xml&p=27 Jul 2020Illinois 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>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10Three Baker Sterchi Professionals Recognized as Missouri Lawyers Media Unsung Legal Heroeshttps://www.bscr-law.com/?t=40&an=110701&format=xml&p=525520 Jul 2020Recognition<p>Baker Sterchi Cowden &amp; Rice professionals Erin Diven, Lori Rickman and Don Yarber have been named 2020 Unsung Legal Heroes by <i>Missouri Lawyers Media</i>. The annual award honors law firm professionals who have consistently gone above and beyond the call of duty in supporting attorney efforts.&nbsp;</p> <p>Diven, recognized in the Legal Secretary category, has been with Baker Sterchi for over 25 years, initially working with the late Thomas O. Baker, a co-founder of the firm.&nbsp;Located in the firm&rsquo;s Kansas City office, she currently supports two attorneys, two paralegals and a nurse paralegal, and provides back-up support for four additional attorneys.</p> <p>Rickman, recognized in the Legal Marketing category, has been with Baker Sterchi for over 27 years in various roles.&nbsp;Currently Director of Marketing and Business Development, she has been involved with the firm&rsquo;s marketing practice since 2002.&nbsp;Located in the firm&rsquo;s Kansas City office, she also has nearly 19 years&rsquo; experience managing Baker Sterchi's internal professional development program and is a long-time member of the Diversity &amp; Inclusion Committee.&nbsp;Outside the firm, Rickman is immediate past chair and current member-at-large on the Kansas City Local Steering Committee of the Legal Marketing Association, an international association of legal marketing professionals.</p> <p>Yarber, recognized in the inaugural Administrative Support Specialist category, joined Baker Sterchi as part of a merger in 2018 and has 16 years of continuous service with the merged firm.&nbsp;His Office Coordinator position in the firm&rsquo;s St. Louis office comes with a myriad of duties.&nbsp;He handles everything from ordering supplies, sorting and distributing mail, making copies, closing files, and arranging meals for various meetings to putting things together, taking things apart, painting, and more. &nbsp;<br /> <br /> All 2020 Unsung Legal Heroes award winners are recognized in a July 20 special section of&nbsp;<em>Missouri Lawyers Weekly.</em></p> <p>&nbsp;</p>https://www.bscr-law.com?t=39&format=xml&directive=0&stylesheet=rss&records=10