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Our firm’s experienced appellate team has successfully handled cases in state and federal courts throughout the country, representing existing clients and new ones in a broad range of legal issues. Our attorneys also handle extraordinary writs, and have been retained by prominent trade organizations like the Product Liability Advisory Council (PLAC) and the Defense Research Institute (DRI) to prepare amicus curiae briefs in closely watched cases.


Whether our firm has handled the client’s case at trial or is reviewing it for the first time, we objectively evaluate the available legal strategies that most appropriately meet the client’s needs and goals, be it post-trial motions, appellate briefs and arguments, or settlement negotiations.

Since most of the lawyers in the appellate practice team have served as defense litigators, they are intimately familiar with the panoply of issues that typically arise during trial or during the summary judgment phase of a court contest, and are therefore especially efficient at tackling post-trial issues.

We have extensive knowledge and experience in a wide spectrum of industries and have handled appeals in many practice areas, including the products liability and insurance sectors, class action, and other multi-party actions. We also routinely handle appeals in automotive, aerospace, commercial, construction consumer, civil rights, employment, insurance, and pharmaceutical and medical device cases.

In addition to handling appeals in Missouri, Kansas, Illinois, and other states our attorneys have practiced before federal courts of appeals in the Second, Sixth, Seventh, Eighth, Ninth, Tenth, D.C., and Federal Circuits, and the United States Supreme Court.

For more information about our Appellate practice contact James Scott Kreamer or Angela Higgins in Kansas City at 816.471.2121. In St. Louis, contact Paul Venker or Lisa Larkin at 314.345.5000.


News & Events

ABA Appellate Practice Journal to Publish Eisenberg Article

03.24.11 | David Eisenberg's article "Interlocutory Review of District Court Orders, in the Wake of Mohawk Industries v. Carpenter" will be published in the Spring 2011 edition of the ABA Appellate Practice Journal.

Results

Supreme Court Appellate Decision is a Win for Healthcare Providers

In 2015, two of the firm's attorneys were involved in briefing and arguing before the Missouri Supreme Court in favor of the constitutionality of the statutory cap on non-economic damages in a medical negligence wrongful death action.

BSCR Obtains Appellate Victory for Insurer

BSCR obtained an appellate victory in the Missouri Court of Appeals for the Southern District, enforcing plaintiffs’ agreement to settle after they had refused to sign settlement papers. . .

BSCR prevails on appeal

The Eastern District of Missouri affirmed judgment in favor of subcontractor in a negligence claim brought by an employee of another subcontractor working on a Washington University project. . .

Summary Judgment Affirmed on Appeal in Favor of BSCR Client in Battery and Negligence Action

Summary Judgment granted in favor of BSCR client was affirmed by the Missouri Court of Appeals for the Eastern District. Plaintiff claimed that our client's security (provided by Police Officers on approved secondary duty), ejected him from our facility and later hit him in the head with a police baton causing permanent injury. . .

Summary Judgment Entered In Favor of BSCR Insurance Client

BSCR obtained summary judgment in the Circuit Court of Jackson County, Missouri in a $1 million declaratory judgment and equitable contribution action brought against an insurance client (the professional liability E&O insurer for an elevator inspector whose negligent inspection of a grain mill manlift resulted in the death of a firefighter) by another insurer (the CGL insurer for the elevator inspector). The summary judgment in favor of our client was affirmed on appeal.

Defense Verdict Obtained for Retail Client

BSCR successfully defended a major retail client at trial where plaintiff claimed she tripped and fell over a mat in the client's store causing her to break her hip. Plaintiff asked the jury for an award of $4M. . .

BSCR Wins Appeal Before the Eighth Circuit Court of Appeals In Hotly Contested Construction Case

A decision from the 8th Circuit Court of Appeals affirmed a jury verdict obtained by BSCR in favor of its clients MacKenzie House, L.L.C. (developer) and MH Metropolitan, L.L.C., (owner) of a Kansas City apartment complex. Appellant, The Weitz Company (an Iowa-based contractor) was retained as the contractor of the apartment complex and eventually walked off the project after significant delays and cost overruns. . .

Eighth Circuit Affirms District Court's Grant of Summary Judgment for BSCR Insurance Client

The Eighth Circuit affirmed entry of summary judgment in favor of an insurance client in a Kansas City federal court case. The Eighth Circuit found that the federal court did not err in concluding that the agreement in question had a "follow-the-settlements" provision; did not err in finding another state's six-year limitations period barred plaintiff's challenges to claims submitted by defendant; nor did it err in finding the statute had not been tolled. . .

BSCR Secures Defense Verdict on Behalf of Commercial Airline in Discrimination Case

BSCR obtained a jury verdict on behalf of a commercial airline in a discrimination case filed in the United States District Court for the District of Kansas. Plaintiffs, two passengers on the flight, filed discrimination claims against our client for statements made by a flight attendant. . .

Blog Posts

Intra-Corporate Immunity Rule Alive, Applied, and Affirmed in Dismissal of Missouri Defamation Suit

05.04.18 | The Missouri Court of Appeals affirms the trial court's dismissal of a claim for defamation, based on the intra-corporate immunity rule, which protects certain internal communications made to corporate managers.

Breaking Up [Plaintiffs] Is [Not] Hard To Do

03.28.18 | In dismissing non-Missouri Plaintiffs from a product liability lawsuit, the United States District Court for the Eastern District of Missouri adds to split in authority between two of Plaintiffs' favorite forums in Missouri and California, testing the limits of Bristol-Myers Squibb.

Eighth Circuit grants Union Pacific $75 million in Tax Relief

08.17.17 | The Eighth Circuit Court of Appeals recently held that, because the RRTA authorizes taxes on money and not stock, Union Pacific Railroad Company is now entitled to a refund of approximately $75 million that it paid in taxes from 1997 to 2007 to the IRS.

Federal Judges Blow Their Stacks Over Boilerplate Objections

03.27.17 | Within a two-week period, two federal judges issued strongly worded orders denouncing the common practice of asserting boilerplate objections to written discovery.

Missouri Supreme Court Tightens the Reins on Personal Jurisdiction

02.28.17 | In a recent opinion, the Missouri Supreme Court continued the U.S. Supreme Court's trend toward limiting personal jurisdiction over a non-resident defendant. In State ex rel. Norfolk Southern Railway Co. v. Dolan, the Court held Norfolk's substantial and continuous business in the state of Missouri was insufficient to establish general personal jurisdiction over Norfolk.

Missouri Supreme Court Addresses Insurer Intervention, Garnishment Proceedings and Bad Faith Findings

12.20.16 | In a recent opinion, the Missouri Supreme Court addressed the timing for an insurer's intervention in a case involving a Section 537.065 between the plaintiff and an insured, as well as the more-than-bare-bones showing required for a finding of insurer bad faith.

Missouri Court of Appeals Holds Plaintiff Cannot Use Savings Statute to Revive Dismissed Lawsuit Brought by Improper Plaintiff

11.08.16 | The Missouri Court of Appeals, Eastern District, affirmed a trial court's dismissal of a lawsuit as being time-barred. The court held that the plaintiff could not rely on an earlier lawsuit and Missouri's "savings" statute because the earlier suit was brought by an improper plaintiff who lacked standing.

Missouri Court of Appeals Holds Ingredient List Label on Product Not an Absolute Defense to Claim for Deceptive Merchandising Practices

11.08.16 | The Missouri Court of Appeals, Eastern District, reversed a trial court's order dismissing an action on the grounds that an ingredient list label was a complete legal defense to a claim for deceptive merchandising practices because the consumer could not reasonably be deceived or misled by the packaging. The court held that the presence of an ingredient list label on a product is not an absolute defense, though it may be used as evidence in support of a defense at trial.

State ex rel. Heartland Title Services, Inc. v. The Honorable Kevin D. Harrell

10.05.16 | In a matter of first impression, the Missouri Supreme Court recently clarified that Missouri's venue statute must be read to allow venue (referring to the locale where the trial in a case can be held) in any Missouri county when requirements for both subject matter and personal jurisdiction are met.

Might An Interlocutory Appeal Be In The Cards?

09.05.16 | During the course of litigation, unfavorable interlocutory court rulings (i.e. rulings that are not final for purposes of an immediate appeal) may be temporary hiccups in the preparation of a party's case or may threaten a party's overall litigation strategy and chance of ultimate success. Until final resolution of all parties and issues, there may be nothing a party can do about those unfavorable rulings.

What Role Can Appellate Counsel Play Before the Appeal?

08.01.16 | In many ways, referring to a lawyer with extensive experience practicing in appellate courts as an "appellate" lawyer is misleading. An appellate lawyer is practiced generally in legal research, writing and analysis and is skilled at approaching matters from a detached, academic perspective. These are skill sets that can bring value to all stages of litigation.

Employers Know That Instructions Matter

07.15.16 | The Missouri Supreme Court reverses and remands an employment discrimination and retaliation case, in favor of employer-defendant, due to prejudice resulting from an improper submission of a jury instruction.

Should You Appeal?

07.05.16 | The trial is over. Things did not go as had been hoped, and an adverse judgment has been entered. An appeal is a given, right? Not necessarily. Although in most civil cases, there is an automatic right to an appeal from an adverse judgment or other final order, that does not necessarily mean an appeal is the right choice in every case.

Avoiding Incomplete Settlements

12.30.15 | In Hill v. Hutchinson Care Center, L.L.C., et al., 2015 WL 5927073 (Kan. App. 2015), the parties executed a written document at the conclusion of a mediation that outlined the terms of the settlement including the amount to be paid by defendants to each plaintiff. The agreement further...

The "Realities" Of Third-Party Harassment Claims Under The MHRA

12.02.15 | The Missouri Court of Appeals for the Western District, applying a modified economic realities test, held that AutoZone, Inc., the parent corporation of AutoZoners, LLC, was not Plaintiff's employer for purposes of the Missouri Human Rights Act. However, the Court found that Plaintiff made a submissible case for sexual harassment, which lead to its decision to uphold the jury's rulings in favor of Plaintiff for her hostile work environment claim, the trial court's decision in refusing to reduce the award of compensatory damages and the jury's award of punitive damages against AutoZoners, LLC. The case was ultimately remanded on the issue of attorneys' fees.

Missouri Merchandising Practices Act Bars Certain New Home Construction Claims

11.30.15 | Where a Plaintiff who built a new home brought claims including breach of contract and unlawful merchandising practices against the builder, based on purported overcharges, the Plaintiff was equitably estopped from his breach of contract claim arising out of construction in certain areas of the home, because he had accepted the deed, which was construed as satisfaction

A Declined Invitation, But Does An Open Door Still Remain?

11.18.15 | In Lang v. Goldsworthy, a case decided by the Missouri Supreme Court on October 13, 2015, Plaintiffs, consisting of family members who filed a wrongful death action alleging negligent chiropractic services of a health care provider that allegedly caused the death of their relative, unsuccessfully attempted to challenge the constitutionality of Mo. Rev. Stat. § 538.225, generally known as the "health affidavit" statute.

Supreme Court of Missouri Reverses Trial Court Order Setting Aside Default Judgment Against Insurance Company

06.16.15 | The Supreme Court of Missouri, en banc, reversed a trial court order setting aside a default judgment against an insurer, based on improper service/absence of personal jurisdiction, because the plaintiffs properly served the insurer via the Director of the Missouri Department of Insurance, pursuant to § 375.906, RSMo. This case is significant for insurers because…

Kicking the Can Down the Road: The U.S. Supreme Court Denies Certiorari in "Failure to Update Labeling" Case Against Generic Drug Manufacturer

05.20.15 | Manufacturers of Generic Pharmaceuticals bask in uncertainty after the United States Supreme Court denied certiorari in Pliva, Inc. v. Huck, leaving all to wonder whether or not state law "failure to update labeling" are preempted.

Prevailing-party agents entitled to attorney's fees

02.09.15 | An agent may recover attorney's fees when enforcing a principal's contract if: the agent is granted the express authority to enforce the contract in the contract itself, the contract contains an attorney's fees provision, and the agent is the prevailing party.

The Supreme Court's Jurisdictional Stretch in Resolving the Evidence Needed to Support a CAFA Removal

01.06.15 | A defendant removing a case to federal court under the Class Action Fairness Act need not provide evidence proving the jurisdictional amount in controversy in the notice of removal. A "short and plain statement of the grounds for removal" is sufficient.

Excess Insurer v. Primary Insurer: Supreme Court of Missouri Recognizes Right of Excess Insurer to Recover from Primary Insurer for Bad Faith Failure to Settle Within Policy Limits

12.09.14 | In a matter of first impression, the Supreme Court of Missouri, en banc, affirmed a decision by the Missouri Court of Appeals, Western District, holding in Scottsdale Ins. Co. v. Addison Ins. Co., et al., that an excess insurer may recover on a theory of equitable subrogation amounts contributed from an excess policy as a result of a primary insurer's bad faith failure to settle a claim within policy limits.

Missouri's General Rule of One Corporation Not Being Liable for Another's Conduct is Reaffirmed

09.16.14 | In Blanks v. Fluor Corp, the Missouri Court of Appeals reversed a jury verdict against Fluor Corporation, because it was improperly based on the conduct of its affiliate which was separately incorporated. This case involved a class action for personal injuries to minors due to exposure to lead from a southeastern Missouri mine which was operated by a partnership of multiple entities, at least one of which was an affiliate of Fluor Corporation.

Medical Malpractice: Strict Compliance with the Missouri Health Care Affidavit Statute is a Must

06.16.14 | Medical malpractice plaintiffs must comply with the Health Care Affidavit statute (Mo.Rev.Stat. 538.225), or face dismissal.

Workers' Compensation + Retaliation + Missouri Supreme Court adopts the "contributing factor" standard

04.22.14 | A man who sued his former employer, alleging he was discharged in retaliation for filing a workers' compensation claim, appealed on the basis that the trial court used a jury instruction with the wrong standard. In a 5-2 decision written by Judge George W. Draper III, the Missouri Supreme Court rejected the 'exclusive causation' standard and replaced it with the "contributing factor" standard. On remand and in future cases, the jury must determine whether the plaintiff's filing of a workers' compensation claim was a "contributing factor" to his or her discharge.

Supreme Court of Missouri Holds CGL Policy Covers Statutory Damages Claim for Violations of Telephone Consumer Protection Act (TCPA)

12.25.13 | In Columbia Casualty, the Supreme Court of Missouri held that statutory damages for violations of the TCPA were firmly within the "property damage" and "advertising injury" coverage provided by a CGL policy. The Court rejected an argument that TCPA statutory damages are considered fines or penalties precluded from coverage under a CGL policy, abrogating Olsen v. Siddiqi.

Excess Insurer v. Primary Insurer: Court of Appeals Recognizes Right of Excess Insurer to Recover From Primary Insurer for Bad Faith Failure to Settle Within Policy Limits

10.01.13 | In a matter of first impression, the Missouri Court of Appeals, Western District, held in Scottsdale Insurance Company v. Addison Insurance Company, et al., that an excess insurer may recover on a theory of equitable subrogation amounts contributed from an excess policy as a result of the primary insurer's bad faith failure to settle a claim within policy limits.

Court of Appeals Holds No Recognized Cause of Action Exists Under Missouri Law Against Gun Shop Owners for Sale of a Non-Defective Lawful Product

07.16.13 | In an opinion issued July 16, 2013, the Western District of the Missouri Court of Appeals declined to extend what would have amounted to dram shop-type liability to a gun shop that sold ammunition and magazines to a purchaser who used a stolen credit card and later shot and killed two individuals.

Supreme Court Narrows "Supervisor" Standard - and Employer's Liability - for Title VII Work Place Harassment Claims

06.24.13 | In this 5-4 decision, the United States Supreme Court resolved a split among the circuits as to when an employee qualifies as a "supervisor" such that their conduct can impose liability on the employer. In so doing, the Court relied on its seminal decisions – Ellerth and Faragher – in determining…

United States Supreme Court Victory for St. Louis-Based Monsanto

05.13.13 | The U.S. Supreme Court, in a unanimous opinion, has held in favor of Monsanto on a patent infringement suit arising from the St. Louis-based company's Roundup Ready soybean seeds. Monsanto invented and patented a genetic modification that enables soybean plants to survive exposure to glyphosate, which is the active ingredient in many herbicides (including another Monsanto product, Roundup). According to the opinion…

Missouri Court of Appeals Joins Majority of Federal Courts in Holding the Prohibition Against Evidence of Subsequent Remedial Measures Does Not Extend to Measures Taken by Non-Parties

04.23.13 | In a matter of first impression, the Missouri Court of Appeals for the Eastern District has held the exclusionary rule barring evidence of subsequent remedial measures does not apply when the remedial measure was implemented by a non-party. According to the Court....

"Probability" of Having Contracted Communicable Disease at Work Held Sufficient to Assert an Occupational Disease Claim Even in the Absence of Evidence of Actual Exposure

03.26.13 | In a recent opinion, the Missouri Court of Appeals for the Western District held a workers' compensation claimant had sufficiently proven her husband sustained an occupational disease arising out of and in the course of his employment with Capital Region Medical Center with evidence that his hepatitis C was "probably" caused by his employment. This, despite the fact that claimant presented no evidence that anyone with hepatitis C was ever present in the workplace.

Punitive Damages Exception Recognized to General Rule Precluding Direct Liability Against Employers Who Admit Vicarious Liability for Employees' Negligence

03.19.13 | The Court of Appeals for the Western District of Missouri has answered in the affirmative a question left open by the Missouri Supreme Court almost two decades ago: whether a claim for punitive damages can in fact serve as an exception to the general rule that once an employer had admitted respondeat superior liability for an employee's negligence, it is improper to allow a plaintiff to proceed against the employer on any other theory of imputed liability.

Eastern District Addresses the Effect of the 2005 Amended Venue Statute on Permissive Joinder

02.26.13 | In a case of first impression, the Missouri Court of Appeals for the Eastern District has addressed the very narrow issue of what effect the permissive joinder rule has on venue where a plaintiff suffers injuries from separate, successive accidents in different counties within the State of Missouri. The Court concludes the new venue statute...

Consideration and Mutuality Remain Key for Enforceable Employment Arbitration Agreement

02.26.13 | This decision underlines the importance of observing the contractual nature of an agreement to arbitrate. It is also another case which warns of the dangers of an employer: a) relying on the mention of, or reference to, outside or ancillary agreements as a substitute for explicitly being bound by specific terms of the agreement at issue; and, b) not signing the agreement.

Eighth Circuit Predicts Negligent Misrepresentation Claim Barred by Missouri's Economic Loss Doctrine

01.05.13 | Missouri's economic loss doctrine prohibits a commercial buyer of goods from seeking to recover in negligence or strict liability for purely economic losses that are contractual in nature. In this appeal originating in the United States District Court for the Eastern District of Missouri, the 8th Circuit Court of Appeals held that, if called upon to do so, the Missouri Supreme Court would likely hold…

Despite Having Standing to Sue, Plaintiffs Cannot Recover Damages for Medical Bills They Did Not Pay and Were Not Obligated to Pay

01.01.13 | The Missouri Supreme Court has held that putative class action plaintiffs claiming injury due to allegedly fraudulent overbilling for medical care cannot recover because they were unable to show they actually suffered any damages in that they neither incurred nor paid the charges at issue.

Missouri Uniform Trade Secrets Act Does Not Protect Customer Information Insufficiently Guarded or Which Is Not Truly "Trade Secret" in Character

01.01.13 | In this case, a corporate successor, Central Trust sued the former employee of its acquired company, Springfield Trust after the employee started a business which directly competed with his former employer and Central Trust.

Failure to Follow Appellate Briefing Rules Can Lead to Draconian Consequences

09.25.12 | Appellate litigants should carefully - very carefully - consult their appellate court's rules on briefing, before sitting down to write, and especially before filing. The Missouri appellate courts have recently reminded practitioners that a failure to observe the briefing rules can be fatal to a client's substantive rights. . .

Release of Liability Contained in Event Entry Form Held to Apply to a Subsequently Added Event Sponsor

01.15.12 | On any given week, most of us are asked to sign at least one or two releases of liability for various sporting and recreational events. The Missouri Court of Appeals for the Eastern District recently held those releases may be effective as to entities who were not releasees at the time the releasor signed the document.

Berra v. Danter

12.05.09 | In Berra v. Danter, the Missouri Court of Appeals, Eastern District, addressed what has been a disputed issue among litigants: whether the reasonable value of plaintiff's medical services may be determined by looking to the amount of medical expenses "incurred," or only by looking to the amount of medical expenses actually paid. The Eastern District held...