News & Events
| The April 2018 edition of DRI's monthly magazine "For the Defense" includes an article written by Baker Sterchi Cowden & Rice Member Angela Higgins titled, "A Possible Perfect Storm: The Reanimated Innovator-Liability Theory."
| Baker Sterchi Cowden & Rice is pleased to announce the promotion of John Patterson to Member effective January 1, 2018. Patterson practices in the areas of product liability, employment, construction/fidelity and surety, financial services litigation, premises liability...
| Join Baker Sterchi Member, Rob Chandler, at the 12th Annual IPSLP Association Product Safety & Liability Conference being held May 11-12 at the Donald E. Stevens (Rosemont) Convention Center, Chicago O’Hare. The conference features presentations by a wide variety of professionals with experience in...
| BSCR Member Kara Stubbs' article "CPSC's Proposed Interpretive Rule Would Make Significant Changes to Voluntary Recalls" was published in the February 2014 issue of the International Association of Defense Counsel's Drug, Device and Biotechnoogy Committee Newsletter.
| Thomas E. Rice has been selected by the Children's Products SLG of the DRI Product Liability Committee to act as a State Liaison to the Juvenile Products Manufacturer's Association ("JPMA"). The JPMA is the leading trade association for the juvenile products industry.
| Kara Stubbs was extended an invitation to serve as Vice-Chair of ALFA International's Product Liability Practice Group. Stubbs will service as Vice-Chair of the group for the next three years. . .
| Kara Stubbs has been appointed to serve on ALFA International's Client Seminar Program Committee. The committee is comprised of attorneys from seven different ALFA firms representing seven different ALFA practice groups. . .
| Thomas Rice's submission of an article regarding a recent product liability decision rendered by the Kansas Supreme Court will be published in the upcoming February/March edition of the ALFA Product Liability Practice Group's Newsletter. The February/March edition of the newsletter is the group's annual "Year in Review" issue, which comprises of case notes from the highest court of each state dealing with product issues from 2011.
| Kara Stubbs and John Cowden participated in the recent ALFA Product Liability Seminar held in Nashville, TN. Stubbs was the program chair and Cowden participated on a breakout session panel entitled "Juror Perceptions and Attitudes Toward Corporate Defendants" at the 2011 ALFA Product Liability Seminar. . .
| Kara Stubbs is currently serving as a Regional Editor for the 2011 ALFA Product Liability Compendium. The Compendium will cover laws and significant developments on topics selected by the ALFA Product Liability practice group and will be published in advance of the group's seminar scheduled for this Fall. . .
| Kara Trouslot Stubbs has been selected as the 2011 ALFA Product Liability Practice Group Program Chair. The Product Liability Practice Group seminar will take place in Nashville, September 21-23, 2011 at the Loews Vanderbilt Hotel.
| Tom Rice and Kara Stubbs have been asked by the Child Product SLG to co-author the Missouri, Kansas and Nebraska chapters of a 50 state survey on parental negligence as a defense to a child's recovery for presentation at the 2011 DRI Product Liability Conference.
| At the request of the Product Liability Advisory Council (PLAC), Tom Rice, Angela Higgins and Bryan Mouber prepared and filed with the Missouri Supreme Court an amicus brief on behalf of Ford Motor Company. The primary focus of the amicus brief addressed whether Missouri law on proximate cause allows a plaintiff to argue in a product liability case that she would not have purchased the product in question (five years before her accident) had the manufacturer provided her with "adequate" warnings about the product's safety performance during an accident.
In a Missouri Merchandising Practices Act case in which the plaintiff class alleged that our automotive client had engaged in misrepresentation when it described certain vehicles as luxury or premium vehicles (among other similar statements), when...
BSCR obtained summary judgment in a pharmaceutical product liability case pending in Kansas federal court. Plaintiff filed suit against our clients alleging...
In a class action brought by plaintiffs in Missouri state court, alleging certain vehicles had defective dashboards, and that our automotive client misrepresented the vehicles to consumers, the Circuit Court of Jackson County originally certified a Missouri class, for claims under the Missouri Merchandising Practices Act and breach of express warranty and implied warranty.
BSCR obtained a dismissal of a pharmaceutical company client in a product liability case. In that case, plaintiff alleged...
In this Western District of Missouri product liability wrongful death action involving a plane crash in Australia with 14 fatalities, a third-party action for contribution was filed against our component part manufacturing client by one of the defendants to the action. Upon that defendant’s settlement with plaintiff, BSCR secured ...
In this action, survivors of a commercial airline crash in Chile filed numerous claims in the United States District Court for the District of Kansas for physical and emotional damages alleging the crash was caused by a defective deicing system. BSCR obtained a dismissal of all claims against our client, a deicing component part manufacturer, following minimal discovery and mediation with no payment by our client.
BSCR successfully procured the dismissal of our component part manufacturing client in an action involving claimed defects in a component part allegedly causing the crash of a single engine aircraft and death of the pilot. The no-payment dismissal was procured by BSCR in this Rutherford County, Tennessee case prior to the close of discovery.
BSCR obtained summary judgment for our client, the manufacturer of a GPS system, in a wrongful death product liability action filed in Jefferson County, Missouri. Plaintiff alleged the manufacturer's GPS unit, which was mounted to the interior of a truck windshield at the time of the fatal accident, caused a dangerous windshield obstruction. . .
In this Baltimore County, Maryland action plaintiffs alleged an avionics product caused the crash of a single engine aircraft resulting in multiple deaths. BSCR obtained a no payment dismissal of all claims against our client, an aircraft component part manufacturer, before the close of discovery.
BSCR obtained summary judgment on behalf of an electric match manufacturer, in three related product liability cases. The cases arose out of a 2005 explosion at a fireworks plant in Crestline, Kansas. . .
A favorable settlement was achieved for our client in a wrongful death plane crash action filed in the United States District Court for the District of Kansas. Plaintiffs alleged a defective deicing system caused a crash near Moscow, Russia resulting in multiple deaths. . .
A favorable settlement was obtained in a Franklin County, Missouri case involving wrongful deaths due to an airplane crash alleged to have been caused by engine failure on takeoff. Although a multi-million dollar jury verdict was entered, the claims against our aircraft engine manufacturing client were dismissed before trial due to the successful negotiation of a settlement for a nominal payment by our client.
BSCR defended three manufacturing clients in a lawsuit in which plaintiff alleged that an electric toothbrush caused a fire in their home resulting in nearly one million dollars in property damages. Prior to trial, BSCR successfully moved for summary judgment on behalf of one of the defendants. . .
BSCR secured dismissal of our client, a hydraulics system product supplier, in a case in which plaintiffs sued multiple parties alleging mechanical defects in the hydraulic system of a jet airliner causing the crash and death of all passengers and crewmembers. The case, filed in Cook County, Illinois, included mechanical, electrical and hydraulic engineering issues. . .
BSCR obtained a favorable settlement on behalf of a helicopter part manufacturer in a case filed in the United States District Court for the Western District of Missouri in which plaintiff alleged a defectively designed helicopter component part resulted in the crash of a medical emergency helicopter. BSCR's defense of the case was based on pilot error due to flying in foggy conditions.
BSCR's defense of a life flight medical service provider in a Jackson County, Missouri action resulted in summary judgment for our client. In this action, plaintiff alleged a defective turbine engine in a helicopter caused the helicopter to crash during a medical emergency evacuation. After extensive discovery, including document production in France, summary judgment was entered on behalf of our client. . .
| "Impossibility preemption" applies to bar tort claims where it is impossible for a party to comply with both state and federal law. In the recent opinion of Raskas v. Teva Pharms. USA, Inc., No. 4:17-CV-2261 RLW, 2018 U.S. Dist. LEXIS 3507 (E.D. Mo. January 8, 2018), the Eastern District of Missouri reaffirmed application of,,,
| 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 United States Court of Appeals for the Fourth Circuit upholds judgment in favor of a vendor of asbestos products. Although the vendor was found to be negligent and this negligence was found to be an initial proximate cause of plaintiff's injuries, under North Carolina law the...
| Where a coroner's report revealed that a decedent had ingested prescription opioid mediation, defendant may discover, for a reasonable time period, the decedent's prescription records.
| The Missouri Supreme Court has recently issued a preliminary writ of prohibition regarding a City of St. Louis trial court's refusal to formally sever one of dozens of product liability cases that the court has ordered be separately tried. The preliminary writ may provide hope of a reversal in course on recent jurisprudence related to misjoinder of claims.
| Courts are often asked by plaintiffs’ counsel to admit evidence of other similar incidents (OSI) in order to show a defendant’s knowledge of an alleged defect, and/or causation. Plaintiffs have used this approach to tap into the power of strength in numbers and will typically seek to introduce evidence of as many “similar” incidents as a trial court will allow. Although the law allows for the introduction of this type of evidence…
| The U.S. Supreme Court rejects yet another creative state court end-run on arbitrability.
| In Redd v. DePuy Orthopaedics, Inc., the Eighth Circuit Court of Appeals has reminded litigators of the importance of ensuring expert witnesses perform a thorough review of a matter, including apparent alternative causal explanations, prior to issuing their opinions.
| The United States Supreme Court ruled on May 22, 2017, that the Hague Convention, on the service of judicial documents abroad, permits service by mail if the receiving country has not objected to service by mail and service by mail is authorized under otherwise-applicable law.
| A federal judge in North Carolina agreed with Bayer that federal law preempts all of plaintiff’s claims against Bayer in a medical device case. The judge then declined to exercise supplemental jurisdiction over the medical malpractice claims against the healthcare providers and dismissed those claims as well.
| A federal judge in Indiana relied on the Seventh Circuit’s decision in Bausch v. Stryker Corp., 630 F.3d 546 (7th Cir. 2010) to reject a medical device maker’s argument that federal law preempts plaintiff’s claims, including plaintiff’s negligence per se claim.
| The Florida Supreme Court recently ruled that the attorney-client privilege protects a party from being required to disclose that her attorney referred her to treating doctors.
| Earlier this week, Governor Eric Greitens signed Missouri HB 153 into law. HB 153, which supplants Missouri's existing expert witness standard with that set forth in Federal Rules of Evidence 702, 703, 704 and 705, effectively submits expert testimony in most civil and criminal case to the analysis set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
| Within a two-week period, two federal judges issued strongly worded orders denouncing the common practice of asserting boilerplate objections to written discovery.
| A recent Missouri Supreme Court decision is good news for out-of-state defendants, rejecting the theory that appointing a registered agent in the state to accept service of process equated to consent to personal jurisdiction, and explicitly adopting Daimler and Goodyear. The decision probably creates more turmoil than it resolves on the “general jurisdiction” front, however, and does not directly stamp out the multi-plaintiff litigation tourism that is presently bedeviling the state.
| The U.S. Supreme Court has accepted certiorari in Bristol-Myers Squibb Co. v. Superior Court of California, a pharmaceutical product liability case in which some 600 out-of-state plaintiffs sued in a California court, arguing that the defendant had "contacts" with the state even though their individual claims did not arise out of those contacts. Because Missouri's long-arm personal jurisdiction test...
| Continuing from our two prior posts in this three-part series on effectively addressing cybersecurity breaches in medical devices, this third and final post will focus on best practices to prepare, mitigate and otherwise manage vulnerabilities and potential cyber-attacks.
| Continuing from our prior post in a three-part series on effectively addressing cybersecurity breaches in medical devices, this second post will focus on specific examples of cybersecurity attacks on medical devices.
| We will explore in a series of three blog posts: (1) the specific vulnerabilities and risks inherent with embedded and interconnected medical devices, (2) cybersecurity and attacks on medical devices, and (3) practical approaches companies may employ both before and after a device is marketed. This first post in the series serves as an introduction to navigating the medical device field...
| In a recent decision, a unanimous three-judge panel of the Missouri Court of Appeals sided with consumers asserting deceptive labeling practice claims against merchants under the Missouri Merchandising Practices Act (MMPA).
| A Missouri plaintiff did not irrevocably waive the protections of the work product doctrine simply by designating an expert witness and then withdrawing the designation without disclosing the expert’s analysis or conclusions.
| One week before Halloween 2016 and the FDA just launched a new webpage titled “Reporting Allegations of Regulatory Misconduct” which allows anyone to report alleged misconduct on the part of medical device manufacturers or individuals marketing medical devices.
| In civil litigation, the practice of "forum shopping" refers to the deliberate examination of multiple courts or jurisdictions in order to file or transfer the case to one that is most likely to treat that party's claims most favorably. Often, this forum shopping is blatant – where plaintiffs deliberately attempt to...
| In Sikkelee v. Precision Airmotive Corporation, the Third Circuit issued a sweeping decision that field preemption is not applicable to aviation-related products liability claims. While conflict preemption is still viable in cases where it is physically impossible to comply with the type certificate and state law, manufacturers should expect to remain subjected to the patchwork of various state product liability standards for the foreseeable future.
| In its current state, the MMPA has allowed consumers to collect substantial verdicts in cases that have strayed from the original intent of lawmakers. SB793 hopes to restore a balance that requires not only that businesses act fairly, but also that consumers act reasonably.
| While a Kansas court may grant relief from a final judgment based on excusable neglect, it is an abuse of discretion to grant that relief when the party seeking that relief has failed either to explain what facts constituted excusable neglect or to provide any evidence to support that claim.
| In any product liability action, one of the first questions every attorney will ask is: ""Where is the product?" The plaintiff has the burden of showing that the defect existed when the product left the defendant's control, and that the product reached the plaintiff without any alterations or modifications. But what happens if the plaintiff destroys the product?
| In October, the Department of Justice's special health care fraud prevention team announced settlements of more than $719 million. The settlements involved allegations of illegal kickbacks, unnecessary medical treatments and premature implantations of medical devices.
| On October 14, 2015, the FDA issued a draft guidance to the medical device industry in which the FDA is expanding the scope of its guidance about animal testing and making some strong recommendations to industry.
| 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.
| It has long been thegeneral rule in Missouri that for a party to contractually release itself from or limit liability for its own future negligence, the language in the contract must be clear, unequivocal, conspicuous and must explicitly include the word "negligence" or "fault." However, when the contract is negotiated at arm's length between "sophisticated commercial entities", a party can release itself from or limit liability with less precise language.
| Kansas has joined a short, but growing, list of states introducing legislation purporting to give terminally ill patients the option to try drug treatments not yet approved by the FDA, but which have passed Phase One FDA testing. However, the legislation does not incentivize any manufacturer to provide such drugs and in fact potentially exposes a manufacturer who does provide access to additional risk of lawsuits.
| 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 Franzman v. Wyeth, Inc., et al., the Missouri Court of Appeals for the Eastern District recently reversed the trial court's judgment in favor of the manufacturers of the generic form of Reglan (the "Generic Defendants") on the portion of Franzman's failure-to-warn claim relating to the Generic Defendants' failure to update their warning labels to reflect the 2004 brand-name label revision.
| On August 15th, the Alabama Supreme Court endorsed the theory of "innovator liability" and held for the second time in Wyeth, Inc. v. Weeks, 2014 Ala. LEXIS 109 (Ala. Aug. 15, 2014) that a plaintiff who took only the generic version of a medication could still make a claim against the brand-name manufacturers. While this position remains the minority view, the Weeks case demonstrates that the innovator-liability theory remains an important and contested issue for brand and generic drug manufacturers.
| Of all the things that will keep a litigator up at night, producing a witness for deposition should not be on the list. Unfortunately, we have all experienced the sinking feeling when a witness is spinning out of control. Some are brash and argumentative. Some have poor or selective memories. Some are too nervous. Some are overconfident. Some are Lil Wayne
| New criminal charges are being considered against John Hinckley, Jr., 33 years after the shooting. What are the implications for potential civil litigation?
| A company may sue for unfair competition under the Lanham Act, challenging a competitor’s food and beverage labels. Such claims are not precluded by the FDCA
| K.S.A. 60-19a02 has been amended, increasing Kansas's long-standing cap on non-economic damages (pain and suffering) recoverable in personal injury. K.S.A. 60-456(b) has also been amended to mirror the requirements for the admissibility of expert testimony set forth in Fed. R. Evid. 702.
| Experts are not required to rule out all possible causes when performing the differential etiology analysis if the experts have properly ruled in the alleged cause.
| A Kansas plaintiff may amend their pleadings to assert punitive damages up until the day of the pretrial conference.
| Based on its adoption of a statutory scheme of comparative negligence, Kansas has abolished common law assumption of the risk as a bar to recovery. Simmons v. Porter, 298 Kan. 299, 312 P3d 345, 355 (Kan. 2013).
| A lawsuit brought in 2012 against the manufacturers of Enfamil alleges that the powered form of the product was contaminated with Cronobacter, a bacteria which can cause meningitis. The product was consumed by three infants in 2011, each of whom contracted meningitis, and the meningitis resulted in the death of one of the infants.
| The plaintiff has the burden of proving standing, which is a jurisdictional issue that can be raised at any time.
| On November 13, 2013, the U.S. Consumer Product Safety Commission voted to publish in the Federal Register a Notice of Proposed Rule Making regarding Voluntary Recall Notices and Corrective Action Plans. The Commission's stated objective is to better inform consumers, create greater clarity for manufacturers and achieve more effective recalls.
| In Kansas, the parties bind themselves to an enforceable settlement, even though the parties contemplate subsequent execution of a formal instrument. However, when the parties specifically condition a contract on it being reduced to writing and signed, there is no enforceable contract until such act is accomplished.
| Especially in complex cases, defense counsel should consider requesting earlier and more extensive expert disclosures, under recent amendments to Rule 62.01, on Case Management conferences.
| Asahi and Nicastro provided no clear guidance regarding the scope and application of the "stream of commerce" theory of personal jurisdiction, leaving a conflict of decisions amongst the many different federal and state courts decisions.
| On July 26, 2013, the Kansas Supreme Court refused to expand the economic loss doctrine from its origins in product liability litigation to act as a bar to tort claims for economic recovery in the context of a negligent misrepresentation claim.
| Exactly when, during the course of a state court class action, that case may have become removable to federal court, can be a tricky question. Defendants must act within 30 days from when it can "first be ascertained that the case is one which is or has become removable", or forfeit their right to remove. On the other hand, if the court deems a removal premature, the case may be remanded.
| The necessity of product identification is one area where there is a scarcity of reported case law, but clear indications that Kansas requires plaintiffs to identify the specific product that caused their alleged harm. No reported Kansas case has ever adopted a "collective liability" theory like enterprise liability, alternate liability, or market share liability.
| In asbestos litigation, the standard for determining whether a defendant manufacturer's product proximately caused the plaintiffs' injuries varies among the courts of different states, a factor that can strongly influence plaintiffs' choice of venue. . .
| The Ninth Circuit held that a district judge erred in admitting expert testimony by relying solely on evidence of prior admissions of the expert's theory in other courts. . .
| The Eleventh Circuit recently held that courts applying Florida law may determine as a question of law the reasonableness of a product's warnings. A Florida plaintiff purchased two propane-gas fired, infrared portable heaters designed for outdoor use from Home Depot. . .
| In 1972, Congress created the Consumer Product Safety Commission. The CPSC was charged with drafting and enforcing guidelines to protect the public from unsafe products. . .