| Accommodations under Title III of the Americans with Disabilities Act are not one size fits all. Eighth Circuit affirms that the offering of only a single captioned performance of popular Broadway productions for hearing impaired patrons does not equate to "equal services."
| Though seemingly obvious, the Eighth Circuit affirmed arbitration agreements are not immune to contract law basics when it denied an employer's motion to compel arbitration for lack of acceptance.
| The confidential nature of settlement negotiations and terms, as is frequently agreed to by the parties as part of a settlement package, is a well-established and often referred to as sacred part of American jurisprudence. In a recent opinion, Illinois' First District Appellate Court reminded litigants that such confidentiality, in fact, can be lost.
| The Missouri Supreme Court affirms that amendments to RSMo Sect. 537.065 requiring a valid Sect. 537.065 contract between a plaintiff and a tortfeasor limiting recovery to insurance and notice to insurers for an opportunity to defend do not apply retroactively to cases where the contract was entered into prior to the effective date of the amended statute.
| The U.S. Supreme Court holds that a third-party defendant is not entitled to remove because neither the General Removal Statute nor the Class Action Fairness Act permits a third-party counterclaim defendant to do so.
| SECOND UPDATE: Missouri Governor Mike Parson signs Senate Bill 7, which amends venue and joinder laws, to prevent out of state plaintiffs from litigating their cases in an inappropriate venue.
| Even with asbestos litigation on the slow decline, Madison County and St. Clair County, Illinois remain the top venues for asbestos litigation.
| With great power comes great responsibility; how the recent SCOTUS decision requiring prescription-drug manufacturers to prove the FDA rejected sufficient additional warnings will affect your impossibility preemption defense.
| A seismic shift in Kansas personal injury litigation may be on the horizon, as the Kansas Supreme Court rules that the state's cap on noneconomic damages violates the constitutional right to a jury trial.
| The Illinois Appellate Court for the First District affirmed an award of attorney's fees nearly twenty times the amount of damages awarded.
| UPDATE: House Passes Senate Bill 7, in which the Missouri legislature seeks to amend venue and joinder laws, to prevent out of state plaintiffs from litigating their cases in an inappropriate venue.
| The Supreme Court has issued another ruling limiting class-action claims, in favor of individual arbitration, this time finding that contractual ambiguity is no substitute for a clear expression of consent to class-wide arbitration.
| The Federal Rules of Civil Procedure give parties just 14 days to appeal a ruling granting or denying certification of a class action. The United States Supreme Court recently found that deadline to be "purposefully unforgiving," and rejected an appeal from a plaintiff who missed the deadline because he opted to seek reconsideration of the trial court's class certification ruling before trying to appeal.
| In Senate Bill 7, the Missouri legislature seeks to amend venue and joinder laws, to prevent out of state plaintiffs from litigating their cases in an inappropriate venue.
| The Illinois Supreme Court recently held that a subcontractor hired by a general contractor cannot be liable to a purchaser of a newly constructed home for breach of an implied warranty of habitability absent a direct contractual relationship with the homeowner.
| Applying Missouri Law, the Eighth Circuit confirms that when a company guarantees customer satisfaction, only to leave the customer unsatisfied, it risks not only its business reputation, but also its legal right to collect payment.
| The Eighth Circuit affirms summary judgment in an employer's favor in a disability discrimination case, where the employee's excessive absenteeism was attributed to a disability and other family medical issues.
| Defense attorneys beware. The 2018-2019 American Tort Reform Foundation's (ATRF) Judicial Hellholes Report is out, and the City of St. Louis landed fourth on this list because of its massive verdicts, forum shopping, and legislative failures.
| A taxpayer lacks standing to protest a property assessment made before the taxpayer owned the property. And a taxpayer asserting a discrimination claim must prove that other similarly situated properties were undervalued compared to his property.
| Recently, in Brock v. Dunne, the Missouri Court of Appeals for the Eastern District affirmed a trial court judgment assessing liability against a co-employee pursuant to the 2012 Amendment to s. 287.120.1 of the Missouri Workers' Compensation Act. The appellate court held that...
| Missouri Court of Appeals for the Eastern District declines to find a common-law rule requiring a driver backing out of a parking spot in a private parking lot to yield the right-of-way to another driver in the lane adjacent to the parking spot.
| In a blow to the enforceability of arbitration clauses found in many existing consumer contracts, the Missouri Supreme Court declines to appoint a substitute arbitration provider after the agreed-upon arbitration forum's "sudden and unforeseen departure" from the scene.
| In August 2018, the Tenth Circuit Court of Appeals decided Dish Network L.L.C. v. Ray, an important ruling in the field of arbitration clauses and their effect on potential class action litigation. The Tenth Circuit specifically addressed the question of who should determine whether an arbitration clause allows classwide arbitration: a court or an arbitrator?
| In Ferder v. Scott, the Missouri Court of Appeals, Eastern District (opinion authored by Judge Robert G. Dowd, Jr.). reversed a trial court's dismissal of a medical malpractice lawsuit for failure to comply with the affidavit of merit requirement in s. 538.225, RSMo.
| Missouri's Western District has held 2017 amendments to 537.065 mandating insurers have notice and an opportunity to intervene as of right when an insured enters into a 537.065 agreement apply prospectively only to agreements executed after the effective date of the amendment, August 28, 2017.
| 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.
| 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.
| 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.
| Within a two-week period, two federal judges issued strongly worded orders denouncing the common practice of asserting boilerplate objections to written discovery.
| 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.
| 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.
| 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.
| 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.
| 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.
| 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.
| 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.
| 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.
| 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.
| 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 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.
| 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
| 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.
| 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…
| 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.
| 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.
| 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.
| 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.
| 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 plaintiffs must comply with the Health Care Affidavit statute (Mo.Rev.Stat. 538.225), or face dismissal.
| 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.
| 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.
| 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.
| 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.
| 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…
| 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…
| 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....
| 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.
| 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.
| 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...
| 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.
| 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…
| 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.
| 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.
| 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. . .
| 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.
| 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...