Blog Archives

  • Fritz Named Chair of the USLAW Network

    St. Louis, Missouri (Friday, September 07, 2018) ― Kevin L. Fritz of Lashly & Baer, P.C. in St. Louis, Missouri, has been named Chair of USLAW NETWORK for 2018-19. He succeeds John D. Cromie of Connell Foley LLP in New Jersey. The change of leadership was made at the NETWORK’s annual Fall Membership Meeting in Montreal, Canada. “I am honored to serve as Chair of USLAW NETWORK for the upcoming year,” said Fritz, who most recently served as Vice Chair of USLAW. “Our members offer a broad range of legal experience and industry knowledge across diverse disciplines, and I look forward to working with them and continuing our Board’s longstanding commitment to ensuring that USLAW delivers exceptional service and networking opportunities to our clients.” Fritz is a past Chair of USLAW’s Transportation Practice Group and has held numerous leadership roles on the Board of Directors and Executive Committee since 2012.

     

    Fritz, who earned his J.D. from the University of Missouri School of Law, is a trial attorney experienced in both state and federal courts. His practice focuses on insurance defense and coverage, commercial litigation, premises liability, product liability, construction, vehicular negligence matters and personal injury. He also specializes in transportation-related matters that include interstate and intrastate issues, cargo, breach of contract and catastrophic casualty claims. He also is the current Chair of Lashly & Baer’s Litigation Department and Transportation Practice Section. He has further been selected through peer recognition as on

     

    of the top 50 St. Louis attorneys in multiple years, and most recently in 2018, as published by Super Lawyers magazine.

     

    USLAW NETWORK (USLAW) is an international organization composed of more than 60 independent, full-service firms with roots in civil litigation, including more than 6,000 attorneys across the U.S., Canada, Latin America and Asia, and with affiliations in Africa and with TELFA in Europe. USLAW, which was started in 2001, is comprised of highly rated law firms who are part of the NETWORK by invitation only. USLAW firms are experienced in commercial and business law, employment and labor law, litigation and other business-related areas of law. All firms have substantial trial experience. USLAW member firms provide legal representation to major corporations, insurance companies, and large and small businesses alike. For more information, visit uslaw.org.

  • Attorney Lawrence J. Wadsack Successfully Defends School District in the Eighth Circuit Court of Appeals

    Lashly & Baer attorneys obtained a favorable decision on behalf of a local Missouri school district in the Eighth Circuit Court of Appeals. On July 11, 2018, the Eighth Circuit affirmed a District Court’s dismissal of a lawsuit brought against the district and the superintendent (hereafter the “School District”) by the mother of a former student. The mother originally filed a Complaint in the United States District Court for the Eastern District of Missouri acting in her individual capacity and on behalf of her son, which alleged violations of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq.(the “IDEA”); the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq.; and 42 U.S.C. § 1983.

    The Eighth Circuit agreed with our arguments that the substance of Plaintiff/Appellant’s claims were related to the alleged denial of a Free Appropriate Public Education (“FAPE”) because they are directly tied to his status as a student, and, therefore, Plaintiff was required to exhaust his administrative remedies. The Eighth Circuit dispensed with Plaintiff/Appellant’s argument that exhaustion of the administrative procedure would have been futile because the School District would not have been a proper party to the administrative complaint and declined to create a new exception to the IDEA exhaustion requirement. The Eighth Circuit also determined that Plaintiff/Appellant failed to establish that Missouri law prohibited the School District, as a component district under Missouri law, from participating in administrative proceedings where its actions are alleged to have denied a student FAPE.

  • Brostron Named ICON by Missouri Lawyers Weekly

    Monday, May 14, 2018 – Lashly & Baer, P.C. attorney, Kenneth C. Brostron was recently awarded the inaugural Missouri Lawyers Weekly ICON Award. The ICON award will honor 25 men and women attorneys, judges and professors across Missouri over the age of 60 for their notable sustained success and strong leadership within and outside the field of law.

    Lashly & Baer, P.C. thanks Kenneth C. Brostron for his dedication to the practice of law and the firm. For more than 30 years, Ken has pursued ground-breaking litigation and has been obtaining many of the most-substantive defense verdicts all while managing a growing law firm. We congratulate him on a successful career and being selected for the Missouri Lawyers Weekly ICON Award. To view the complete list of recipients CLICK HERE.

     

  • Attorney Peter Gullborg Nominated to Fill Whittington Circuit Judge Vacancy in St. Louis County

    January 28, 2018, Lashly & Baer, P.C. attorney Peter W. Gullborg was been nominated by The Twenty-First Circuit Judicial Commission to sit on the panel of nominees to be submitted to Governor Eric Greitens to fill the circuit judge vacancy in St. Louis County created by the retirement of Judge Carolyn Whittington. Congratulation to Peter on this honor and good luck in the steps ahead. To read the full announcement from the commission see the full press release below.

     

    Missouri: 21st circuit commission announces nominees for Whittington circuit judge vacancy in St. Louis County
    Jefferson: The Government of Judicial Branch, Missouri has issued the following news release:

    The Twenty-First Circuit Judicial Commission announced the panel of three nominees to be submitted to Governor Eric Greitens to fill the circuit judge vacancy in St. Louis County created by the retirement of Judge Carolyn Whittington.

    Those nominated by the commission are:
    Judge Joseph L. Green – Green graduated in 1982 from what is now Truman State University in Kirksville and in 1987 from Saint Louis University School of Law. He is currently an associate circuit judge in St. Louis County.

    Peter W. Gullborg – Gullborg graduated from University of Missouri-Rolla in 1984 and from University of Maryland School of Law in 1994. He is currently an attorney at Lashly & Baer PC.

    Judge Mary Elizabeth Ott – Ott graduated in 1982 from Saint Mary’s College in Notre Dame, Indiana, and in 1985 from Saint Louis University School of Law. She is currently an associate circuit judge in St. Louis County.

    The commission conducted one day of public hearings and interviewed 24 applicants. The commission believes these candidates, chosen from a field of extremely qualified individuals, possess those qualities essential to the fair and efficient administration of justice. The commission is confident any of these individuals is capable of serving well and honorably if selected by the governor. Pursuant to Supreme Court of Missouri Rule 10.29, the commission reports the final votes received by each nominee were: Green received five votes, Gullborg received four votes, and Ott received five votes.

    The members of the Twenty-First Circuit Judicial Commission are: James M. Dowd, chief judge of the Missouri Court of Appeals, Eastern District, and chairman of the commission; Tiffany Mapp Franklin; William P. Grant, Thomas K. Reedy and Jeffrey D. Sigmund.

     

     

  • Brostron Wins Top Defense Verdict for Third Year in a Row

    Kenneth C. Brostron and Mark R. Feldhaus have won Top Defense Verdict for 2017 by Missouri Lawyers Weekly. The award honors Missouri-licensed attorneys who scored the biggest civil victories in Missouri courts, based on Missouri Lawyers Weekly’s Verdicts & Settlements database. These awards honor both trial victories and settlements.

    Brostron and Feldhaus successfully defended three labor and delivery nurses in the care of a mother who gave birth to a son who suffered brain damage. The plaintiff asked for more than $20 million and the jury found for the defense 11 to 1. The complete announcement and ranking will appear in the February 5th issue of Missouri Lawyers Weekly.  

     

  • Patrick Foppe Published Article on Precluding Discovery of Preventability Determinations in Trucking Accidents

    Lashly & Baer attorney, Patrick E. Foppe, was recently published in the December 20, 2017 DRI newsletter The Voice. Patrick’s featured article discusses Precluding Discovery of Preventability Determinations in Trucking Accidents Under 49 U.S.C. § 504(f).

    The discoverability and admissibility of post-accident preventability determinations by trucking companies is often much disputed in truck accident cases. The Federal Motor Carrier Safety Administration’s recent adoption of the crash preventability program breathes new life into the argument that 49 U.S.C. § 504(f) affords a statutory basis to keep preventability determinations out of civil lawsuits. To read a pdf version of the full article CLICK HERE or to learn more about DRI visit www.DRI.org.

     

     

  • Brostron and Feldhaus Successfully Defend Missouri Hospital

    Kenneth C. Brostron and Mark R. Feldhaus successfully defended one of their hospital clients in a medical negligence case. The trial involved a brain damaged child alleged to have suffered the injury during labor which left the child cognitively impaired. The hospital claimed the injury was due to an intrauterine infection. The plaintiff claimed the child, now almost 9 years old, would need to be institutionalized and could not work for the rest of his life. The trial lasted nearly four weeks and the plaintiff asked the jury to award over $20 million in damages. The jury deliberated for only two hours and returned a defense verdict 11-1.

  • Missouri Supreme Court Limits Personal Jurisdiction Over Businesses In Missouri

    The Supreme Court of Missouri recently restricted the extent to which Missouri courts have general personal jurisdiction over corporations. Plaintiffs can no generally longer use Missouri courts to sue out-of-state companies that operate significant portions of their business in Missouri for suits unrelated to Missouri (albeit relatively small portion in relation to their overall operations) even if they have registered agent in Missouri. A copy of the Missouri Supreme Court’s decision in State ex rel. Norfolk Southern Railway Company v. Dolan can be found here.

    The plaintiff sued Norfolk Southern Railway Company, a Virginia corporation, in St. Louis County, Missouri. The plaintiff was an Indiana resident, seeking recovery for a personal injury that occurred in Indiana. The action was unrelated to Missouri, but the plaintiff argued, among other things, that: (1) Norfolk Southern’s substantial and continuous contacts in Missouri were sufficient to establish general personal jurisdiction; and (2) Norfolk Southern consented to personal jurisdiction by complying with Missouri’s foreign corporation registration statutes. The Court soundly rejected the plaintiff’s arguments in the 6-0 decision.

    In Daimler AG v. Bauman, 134 S. Ct. 746 (2014), the U.S. Supreme Court clarified that under the Due Process Clause a state may only exercise general jurisdiction (personal jurisdiction over a defendant for actions unrelated to the defendant’s activities in the state) over a corporate defendant in three situations: (1) when the corporation is incorporated in that state; (2) when the corporation’s principal place of business is in that state; or (3) in exceptional circumstances, when the corporation’s activities are “so substantial and of such a nature as to render the corporation at home in that State.” To determine whether a corporation is “essentially at home,” the court must appraise the corporation’s nationwide and worldwide activities and determine how the forum activities compare. Continuous and systematic business activities in a state are not enough for general personal jurisdiction when those activities only comprise a small portion of the defendant’s business overall.

    Following Daimler, the Missouri Supreme Court found that Norfolk Southern’s $232 million in Missouri revenue, 590 Missouri employees, and 400 miles of Missouri railroad tracks were not enough to establish general jurisdiction in Missouri. The Court noted that despite these substantial operations, Norfolk Southern’s Missouri business only accounts for approximately 2 percent of its employees, 2 percent of its revenue, and 2 percent of the tracks it owns or operates. Norfolk Southern had more substantial operations in several other states, so it could not reasonably be considered “at home” in Missouri.

    The court rejected plaintiff’s argument that Norfolk Southern consented to personal jurisdiction over any case filed against it in Missouri when it complied with Missouri’s foreign corporation registration statutes to do business in the state of Missouri and appointed a registered agent for service of process. The court stated that a “broad inference of consent based on registration would allow national corporations to be sued in every state, rendering Daimler pointless.” The court concluded that merely registering in a state does not open a corporation to lawsuits unrelated to that state.

  • Brostron and Wolf Recognized For Securing One of the Largest Reported Defense Wins in Missouri for 2016

    Congratulations to Kenneth C. Brostron and Wendy J. Wolf for being recognized as one of Missouri Lawyers Weekly’s 2017 Top Verdicts & Settlements Award Honorees. Missouri Lawyers Weekly announced recently that Brostron and Wolf of Lashly and Baer will be recognized for securing one of the largest reported defense wins of 2016 in the state of Missouri.

    Missouri Lawyers Weekly’s 2017 Missouri Lawyers Awards on January 27 will honor attorneys for their achievments in 2016. The winners received the largest verdicts, judgments and settlements reported by the news staff to their Verdicts & Settlements database.

    The official ranking will be announced during the awards event at the Hilton St. Louis at the Ballpark and published in the Top V&S edition of Missouri Lawyers Weekly on February 6th. To read the full announcement click here.

  • Illinois Supreme Court Narrowly Interprets the Scope of the Illinois Snow and Ice Removal Act For Residential Property Owners

    By: Patrick E. Foppe, Lashly & Baer, P.C.
    The Illinois Supreme Court recently resolved a conflict as to the scope of the immunity provided under the Illinois Snow and Ice Removal Act (745 ILCS 75/0.01 et seq.). There had been a split among the appellate districts as to whether the immunity provided by the Act was limited to the consequences of snow removal efforts, or whether the immunity extended more broadly to negligence arising from a defective condition on the property. In the case, Murphy-Hylton v. Lieberman Management Services, Inc., the Supreme Court adopted the narrower view of the immunity, following closely to the words of the statute. The Supreme Court unanimously held that the Act provides immunity to residential property owners (including any “lessor, occupant or other person in charge of any residential property, or any agent of or other person engaged by any such party”) from claims of liability caused by icy sidewalks which result from negligent snow and ice removal efforts, “but it does not extend to immunize them from claims of liability from injuries allegedly caused by icy sidewalks which result from an otherwise negligent failure to maintain the premises.” The Act does not apply to owners of non-residential commercial premises.

  • Defending Motor Carriers Performing Oversize Load and Heavy Haul Operations

    Attorneys Patrick E. Foppe and Kevin L. Fritz co-authored, “Defending Motor Carriers Performing Oversize Load And Heavy Haul Operations,” in the USLAW NETWORK, Inc. Magazine, Winter/Fall 2015. View the link above to read a pdf copy of the article.

  • Defending Against Attempts to Impose Liability

    Patrick E. Foppe recently authored, “Defending Against Attempts to Impose Liability through the Broad Definitions under 49 C.F.R. § 390.5,” TLA’s The Transportation Lawyer, December 2015. Please view the above link to read a PDF copy of the article.

  • Lashly & Baer Attorney Named St. Louis Medical Malpractice Lawyer of the Year

    Monday, August 17, 2015 – Lashly & Baer, P.C. congratulates Kenneth C. Brostron on being named 2016 “Lawyer of the Year” for Medical Malpractice – Defendants in the St. Louis area by Best Lawyers®, one of the oldest and most respected peer-review publications in the legal profession. Only a single lawyer in each practice area and designated metropolitan area is honored as the “Lawyer of the Year,” making this accolade particularly significant. Receiving this designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practice areas for their abilities, their professionalism, and their integrity. In addition to the 2016 “Lawyer of the Year” award, Brostron is also recognized by The Best Lawyers of America® in the area of Personal Injury Litigation – Defendants.

    Brostron recently celebrated his 40th year of trial work. He defends health care providers and attorneys in professional negligence claims. He counsels businesses and government agencies in all aspects of their operations. He is also well-known for his work in education law, as well as state and United States constitutional matters. He earned his J.D. from Saint Louis University School of Law. Since 1999, he has been included on each year’s St. Louis – Best Lawyers in America® List.

  • Five Lashly & Baer, P.C. Attorneys Included in The Best Lawyers in America® 2016

    We are proud to announce Stephen L. Beimdiek has been selected by his peers for inclusion in The Best Lawyers in America® 2016 for his work in Personal Injury Litigation – Defendants.  He joins John Fox Arnold (Corporate Law); Kenneth C. Brostron (Medical Malpractice Law – Defendants and Personal Injury Litigation – Defendants); James C. Hetlage (Employment Law – Management); and Richard D. Watters (Health Care Law).

  • Lashly & Baer Adds New Associate

    The law firm of Lashly & Baer, P.C. announces that Scott A. Pummell has joined the firm as an associate. Pummell practices in the area of litigation matters, including business litigation, insurance disputes, and premises liability. He holds a J.D. from the University of Missouri – Kansas City.

    Click here to download the press release.

  • Defense Verdict for Lashly & Baer Attorney, Mark R. Feldhaus

    Mark Feldhaus of Lashly & Baer, P.C. successfully defended a family physician against claims of negligence causing the death of a firefighter. The claim included the failure to properly assess and refer the patient for his coronary artery disease risk factors because of the patient’s history of a prior elevated score on a calcium scan, high cholesterol, and non-specific T wave abnormalities on a resting EKG. The Saint Louis County jury deliberated 40 minutes before concluding unanimously that the defendant physician was not at fault.

     

  • Client of Lashly & Baer, P.C. Awarded Settlement

    Comcast, defended by Andrew G. Toennies of Lashly & Baer, and its unnamed corporate representative were awarded $69,021.26 in attorney’s fees and costs as a sanction against plaintiffs’ attorneys after Comcast was sued by a company alleging computer hacking. The case was dismissed and the court granted Comcast’s request for attorney’s fees and costs.

    Read the story in its entirety at the Madison County Record.

  • Missouri Court of Appeals Reverses Administrative Decision Requiring Special Use Conditions

    The case revolved around a request by MLB Holdings, a lessee of Curry Investment Company, for a special use permit to operate a pawn shop on a building and parking lot leased by Curry Investment to MLB. At a hearing on the request, the Kansas City Board of Zoning Adjustment staff determined that all requisite criteria for a special use permit were met with the MLB application. However, there were two existing outdoor advertising signs, which were nonconforming uses, located on the property in question. As a result, based on a general policy of removal of existing outdoor billboards as part of property development, the Board of Zoning Adjustment approved the special use permit, subject to removal of the two outdoor advertising signs. Curry Investment objected, and ultimately filed a petition with the circuit court, which found that the Board of Zoning Adjustment had exceeded its authority, and proceeded to modify the Board decision by striking the conditions requiring removal of the advertising signs. That decision was appealed.

    The Court of Appeals rejected the Board of Zoning Adjustment’s position and required the issuance of the special use permit to MLB without the condition for removal of the outdoor advertising signs. In doing so, the Court recognized these principles:

    • The Board of Zoning Adjustment’s ruling, rather than that of the circuit court, was reviewable. The scope of review was limited to determination as to whether the Board’s judgment was arbitrary, capricious, unreasonable, unlawful or in excess of its jurisdiction, with the evidence and reasonable inferences viewed in the light most favorable to the decision.

     

    • Under the nonconforming use doctrine, zoning restrictions adopted by a municipality may not be applied so as to require removal or cessation of an established use of land – a use which does not conform with a use authorized by the zoning restriction.

     

    • The issuing of a permit is a ministerial act, not a discretionary act, which may not be refused if the requirements of the applicable ordinance have been met.

     

    • Once the Board of Zoning Adjustment determined that all the criteria for the special use permit were met, the Board was unreasonable to require the removal of the nonconforming signs as a special use permit condition, since the Board proved no relation to sign removal with the special use criteria set out in the zoning code.

    The Court of Appeals accordingly concluded that the Board of Zoning Adjustment erred by conditioning its approval of the special use permit for the pawn shop on the removal of the two nonconforming, lawfully existing, outdoor advertising signs. The principles which the Court of Appeals relied upon may need to be considered in situations involving zoning requirements, permit applications and related conforming and nonconforming uses of property.

  • Missouri Appellate Court Allows Imputed Liability Claims Against Employer Even After Admitting Agency When Punitive Damages Are At Issue

    In 1995, the Missouri Supreme Court adopted the majority view “that once an employer has admitted respondeat superior liability for a driver’s negligence, it is improper to allow a plaintiff to proceed against the employer on any other theory of imputed liability.” McHaffie v. Bunch, 891 S.W.2d 822, 826 (Mo. banc 1995). The Missouri Supreme Court qualified its holding, however, noting that:

    it may be possible that an employer or entrustor may be held liable on a theory of negligence that does not derive from and is not dependent on the negligence of an entrustee or employee…. [I]t is also possible that an employer or an entrustor may be liable for punitive damages [that] would not be assessed against the employee/entrustee. See Clooney v. Geeting, 352 So.2d [1216,] 1220 [ (Fla.Dist.Ct.App.1977) ]. Finally, it is conceivable that in a contribution action between an employer and employee, the relative fault of those two parties may be relevant. However, none of those circumstances exist here. Those issues await another day.

    Id. Recently, in Wilson v. Image Flooring, LLC, Nos. WD75141, WD 75142, 2013 WL 1110878, 2 (Mo. App. W.D. Mar 19, 2013), the Missouri Appellate Court for the Western District took up the issue of whether a “punitive damages exception” to the general rule barring direct negligence claims against an employer who had already admitted vicarious liability. While many federal courts in Missouri have addressed the question of whether there exists a punitive damages exception to the general rule under Missouri law, no Missouri court had yet addressed this issue. See Kwiatkowski v. Teton Transp., Inc., No. 11–1302–CV–W–ODS, 2012 WL 1413154, at 3–4 (W.D.Mo. Apr. 23, 2012). The Wilson court found that “if faced with the issue now, [the Missouri] Supreme Court would determine that such an exception exists.” Wilson,  2013 WL 1110878, 2. The Wilson Court explained:

    The rationale for the [the Missouri Supreme] Court’s holding in McHaffie was that, where vicarious liability was admitted and none of the direct liability theories could prevail in the absence of proof of the employee’s negligence, the employer’s liability was necessarily fixed by the negligence of the employee. McHaffie, 891 S.W.2d at 826. Thus, any additional evidence supporting direct liability claims could serve only to waste time and possibly prejudice the defendants. Id.

    The same cannot be said, however, when a claim for punitive damages based upon the direct liability theories is raised. If an employer’s hiring, training, supervision, or entrustment practices can be characterized as demonstrating complete indifference or a conscious disregard for the safety of others, then the plaintiff would be required to present additional evidence, above and beyond demonstrating the employee’s negligence, to support a claim for punitive damages. Unlike in the McHaffie scenario, this evidence would have a relevant, non-prejudicial purpose. And because the primary concern in McHaffie was the introduction of extraneous, potentially prejudicial evidence, we believe that the rule announced in McHaffie does not apply where punitive damages are claimed against the employer, thus making the additional evidence both relevant and material.

    Id.

     Wilson v. Image Flooring, LLC

  • Missouri Courts Examining Possible Exceptions to When a Plaintiff Can Pursue Other Imputed Theories of Liability Against an Employer Even After Respondeat Superior Liability is Admitted

    Missouri follows the majority rule that a jury cannot generally assess a defendant employer’s fault based on imputed theories of liability, such as “negligent entrustment” or “negligent hiring,” after an employer has admitted the wrongdoer was its agent acting within the scope of his/her agency at the time of the accident. McHaffie v. Bunch, 891 S.W.2d 822, 826–27 (Mo. banc 1995). In other words, in cases where respondeat superior liability is admitted, it is generally improper to allow a plaintiff to proceed against the employer on any other theory of imputed or derivative liability. The rationale is that allowing other theories of imputed liability “serves no real purpose,” wastes the time and energy of the court and litigants because the employer’s liability “is fixed by the amount of liability of the employee,” and opens the door to potentially inflammatory and irrelevant evidence. McHaffie, 891 S.W.2d at 826. Importantly, however, the Missouri Supreme Court in McHaffie left open the possibility for several exceptions to the general rule. Id. at 826. For instance, “an employer or entrustor may be held liable on a theory of negligence that does not derive from and is not dependent on the negligence of an entrustee or employee,” or “an employer or an entrustor may be liable for punitive damages which would not be assessed against the employee/entrustee.” Id.. The contours of these possible exceptions to the general rule are the subject to recent appeals in Missouri.

    First, in Coomer v. Kansas City Royals Baseball Corp., WD73984, 2013 WL 150838 (Mo. App. W.D. Jan. 15, 2013), the Missouri Western District Appellate Court held that negligent supervision and training claims, like negligent hiring and negligent entrustment claims, are based on theories of imputed liability. Imputed liability claims involve those which there is no evidence that the “employer’s lack of care” caused a plaintiff’s injuries “in the absence of the negligence by the employee.” Id. Therefore, negligent supervision and training claims, like negligent hiring and negligent entrustment claims, are generally barred when the issue of agency is admitted.

    Second, whether there is a so-called “punitive damages exception” to the general rule is currently before the Missouri Western Appellate Court. See Wilson v. Image Flooring, LLC, et al., WD 751412012 (Mo. App. W.D. 2012). Although never before formally recognized by a Missouri appellate court, many jurisdictions allow a plaintiff to proceed under other imputed negligence theories after respondeat superior liability is admitted when punitive damages are at issue. Likewise, several federal district courts while applying Missouri law have recognized a “punitive damages exception.” See e.g., Jackson v. Wiersema Charter Serv., Inc., 2009 WL 1310064 (E.D.Mo. 2009); Miller v. Crete Carrier Corp., 2003 WL 25694930 (E.D.Mo. 2003); Burroughs v. Mackie Moving Systems Corp.,  2010 WL 576799 (E.D.Mo. 2010); Kwiatkowski v. Teton Transp., Inc.,  2012 WL 1413154, 4 (W.D.Mo. 2012). These federal decisions, though persuasive and authoritative, are not of course binding on Missouri state courts. The ruling in the Wilson case, which is expected this spring or summer, will likely help resolve whether Missouri allows for a “punitive damages exception.”

  • No Coverage for Penalties Under the Telephone Consumer Protection Act

    Karen S. Little, L.L.C. brought a class action against HIAR Holdings for violation of the Telephone Consumer Protection Act (“TCPA”) alleging that HIAR violated the act by sending “junk faxes.”  Pursuant to the TCPA, HIAR was potentially liable for statutory damages of $500.00 per fax sent.  Ultimately, Little settled the claim for five million dollars. 

    Columbia Casualty Company refused to defend or indemnify HIAR and filed a declaratory judgment action seeking a judgment holding that it had no obligation to do so.  The trial court, however, found against Columbia and it appealed. 

    On appeal, the Missouri Eastern District Court of Appeals found that there was no coverage.  First, statutory damages under the TCPA are penal in nature and, as penalties, do not constitute “damages” covered by an insurance policy.  The Columbia Casualty policy obligated it to “pay those sums that the insured becomes legally obligated to pay as damages because of [property damage or advertising injury] to which this insurance applies.”  Because the statutory damages under the TCPA were penal in nature they were not “damages” as defined under Missouri law and, therefore, there was no obligation to defend or indemnify HIAR for the claim.

    HIAR argued, however, that it had reached a settlement for somewhere less than the total liability and, therefore, the five million dollars constituted something other than a penalty (the total potential exposure was 6.25 million dollars).  However, even if that was so, the Eastern District Court noted that the exclusion providing that “this insurance does not apply to [property damage or advertising injury] for which the insured has assumed liability in a contract or agreement” and would exclude coverage.  Because HIAR assumed the liability through settlement, this exclusion applied and there was no coverage.

    The case is pertinent to any defendants exposed to statutory penalties imposed under state or federal law.  Depending upon the facts of the case and the statutory language, these statutory awards may well fall outside the definition of damages under Missouri law and, therefore, not fall within the coverage of an insurance policy.

    Columbia Casualty Company v. Little, et al.

  • Nonpermissive Use Exclusion Okay If Included In Definition of Insured, But Not If It Is A Separate Exclusion

    In American Standard Insurance Company of Wisconsin v. Stinson, the Eastern District Court of Appeals addressed the exclusion from coverage of non-permissive users of a motor vehicle.  In this wrongful death case, Son took the car from Father’s auto dealership without Father’s permission.  Son subsequently crashed into a vehicle driven by Ricky Young, who died as a result of the collision.  American Standard insured the vehicle involved in the crash.  The policy at issue defined an insured person as “you or a relative,” but not “any person using a vehicle without the permission of the person having lawful possession.”  American Standard filed a Petition for Declaratory Judgment seeking a declaration of non-coverage on the basis that Son was not a permissive user of the vehicle.  The trial court granted American Standard’s summary of judgment and the wrongful death Plaintiff appealed

    Plaintiff appealed, arguing that the phrase, “any person” as used in the phrase “any person using a vehicle without the permission of the person having lawful possession” was ambiguous.  Plaintiff specifically relied upon the case of Miller’s Classified Insurance Company v. French, 295 SW3d. 524 (Mo. App. Eastern District 2009) in which the Eastern District did find that the phrase “any person,” as used in exclusionary provision of an insurance policy, was reasonably open to different constructions and, therefore, ambiguous.  However, the Eastern District distinguished the instant case by noting that the use of this phrase in the definition of insured was different than the use of the phrase in the exclusionary policy.  An insurance policy is ambiguous when it promises the insured something at one point, but then takes it away at another.  The Eastern District Court of Appeals upheld the trial court’s grant of summary judgment in favor of American Standard, finding that the Son was not an insured person under the policy.  The Eastern District seemed to distinguish French because the use of “any person” in a separate exclusion was different than the use of “any person” in the definition of insured. 

    This appears to be a case where the courts have construed potential ambiguity in favor of an insurance company, rather than against it.  The Eastern District seems to be saying that there is a difference in the analysis of language depending on whether the language is in an insuring provision or an exclusion.  If the alleged ambiguity is contained within the initial grant of coverage, there seems to be less of a chance of finding an ambiguity than where the alleged ambiguous phrase is used in the exclusionary portions of the policy.

    American Standard Insurance Company of Wisconsin v. Stinson

  • Attorneys’ Fees Counted as Damages For Purposes of Punitive Damages Cap

    The Missouri Supreme Court again analyzed portions of the State of Missouri’s 2005 Tort Reform Bill in a recent employment discrimination decision.  In that decision, the Missouri Supreme Court found that attorneys’ fees should be included in the determination of the “net amount of judgment” that is used to calculate the maximum amount of punitive damages pursuant to Section 510.265, RSMo. 

    Section 510.265 limits the amount of punitive damages in most civil cases to the greater of $500,000 or 5 times the net amount of the judgment awarded to the plaintiff against the defendant.  The Missouri Supreme Court ruled that in determining the net amount of the judgment against the defendant, attorneys’ fees should be included.  In other words, actual damages plus any awarded attorneys fees are added together and any appropriate reductions then applied.  This amount is then multiplied by 5 in order to determine the total amount of punitive damages awardable. 

    While punitive damages may not play a significant role in the majority of cases, including attorneys’ fees in the net amount of judgment certainly has the potential to significantly raise the floor on the amount of punitive damages awardable in such cases. 

     Hervey v. Missouri Department of Corrections

  • The Temporary Worker Exception to the Employee Exclusion: In Missouri Referring An Employee Means Furnishing an Employee

    In May 2006, Len Mendenhall interviewed for a job with the Family Center of Farmington, Inc. (“Family Center”).  The Family Center did not hire Mr. Mendenhall, but the Family Center employee who interviewed Mr. Mendenhall informed Jay Walker, the owner of the Family Center, that Mr. Mendenhall would be a good candidate for a job.  Based upon on this recommendation, Mr. Walker hired Mr. Mendenhall to work for him personally at the cattle farm Mr. Walker co-owned with his wife.  Mr. Mendenhall worked at the farm on an as-needed basis and, although he was always paid by the farm, Mr. Walker occasionally asked Mr. Mendenhall to perform tasks for the Family Center.  Mr. Walker also permitted Mr. Mendenhall to use a truck and trailer owned by the Family Center.  This truck and trailer was covered under a Business Automobile Liability Policy (“The Hartford Policy”) provided by Property and Casualty Insurance Company of Hartford and issued to the Family Center.  On March 8, 2007, Mr. Mendenhall was using the Family Center’s truck to haul rock at the farm when the vehicle overturned and he was killed. 

    Mrs. Mendenhall filed a wrongful death suit against the Family Center and the Walkers.  Mrs. Mendenhall dismissed her claim against Mrs. Walker and obtained an $840,000 judgment against Mr. Walker and a $50,000 judgment against the Family Center.  Prior to the judgment, Mr. Walker and Mrs. Mendenhall entered into an agreement pursuant to Section 537.065, RSMo., which provided that any judgment against Mr. Walker would be collected from the proceeds of the Hartford Policy.  Hartford denied any obligation to indemnify Mr. Walker for the claims resulting from Mr. Mendenhall’s death.

    Mrs. Mendenhall subsequently filed an action for equitable garnishment in an attempt to satisfy the $840,000 judgment under the Harford Policy.  The Hartford Policy contained an exclusion from liability coverage for employees of the insured.  The definition of employee specifically included a leased worker, but did not include a temporary worker.  Of importance to the decision is that a “temporary worker” was defined as “a person who is furnished to you to substitute for a permanent ‘employee’ on leave or to meet seasonal or short-term workload conditions.”  The trial court entered summary judgment for Hartford and Mrs. Mendenhall appealed.

    In reversing the decision of the trial court, the Missouri Supreme Court found that the Family Center furnished Mr. Mendenhall to the Walkers for employment.  Therefore, Mr. Mendenhall qualified as a temporary worker and was not considered an “employee” for purposes of the exclusion from liability coverage for employees of the insured.  The Court noted that, in order to furnish an employee, it was not necessary for the Family Center to have an employment or agency relationship with Mr. Mendenhall.  The Court focused on the fact that Mr. Walker did not interview Mr. Mendenhall and relied solely on the Family Center’s referral in making his decision to hire Mr. Mendenhall.  “The Family Center’s referral supplied and provided Mr. Walker with the information he used to hire Mr. Mendenhall on an as-needed basis.  Without the information furnished by the Family Center, a business owned solely by Mr. Walker, Mr. Walker would not have hired Mr. Mendenhall.  It was through the Family Center’s referral that Mr. Mendenhall was ‘furnished to’ Walker as a temporary worker.” 

    As the dissent in this matter noted, this decision has potentially wide-ranging consequences.  First, there is the issue of the Court’s equating the term “refer” with the term “furnish.”  Interpreted broadly, the decision could mean that any time an employee is referred to his or her employer, that employee may qualify as a temporary worker and fall outside of the employee exclusion in a liability policy.  The second issue that arises is whether or not this will inhibit an employee’s ability to obtain a referral from a current or former employer.  Current and former employers may be hesitant to refer employees for fear that they will be deemed to have furnished an employee to another. 

    Finally, under the Missouri Workers’ Compensation Act, “temporary workers” are not covered by their employers’ workers’ compensation insurance.  The finding that employees in situations such as Mr. Mendenhall’s are considered temporary workers for purposes of a liability policy may allow courts to find that they are also temporary workers for purposes of the Missouri Workers’ Compensation Act.  This would mean that they would fall outside the Act and not be eligible for worker’s compensation remedies.  If they are not covered by the Missouri Workers’ Compensation Act, employers may be exposed to tort claims from their “temporary workers.”

    Mendenhall v. Property and Casualty Insurance of Hartford

  • Missouri Supreme Court Strikes Down Cap on Non-Economic Damages in Medical Malpractice Cases

    On July 31, 2012, the Missouri Supreme Court issued its opinion in Watts v. Lester E. Cox Medical Center.  In that case, Deborah Watts filed a medical malpractice action alleging that her son was born with disabling brain injuries because of Cox Medical Center and its associated physician’s medical malpractice.  The jury returned a verdict in favor of Watts and awarded $1.45 million in non-economic damages and $3.371 million in future medical damages.  The Court entered a judgment reducing Watts’ non-economic damages to $350,000 as required by Section 538.210, RSMo.  The judgment also established a periodic payment schedule pursuant to Section 538.220, RSMo.  This periodic payment schedule required immediate payment of half of all net and future medical damages with the other half paid in equal, annual installments over the next 50 years at an interest rate of .26%. 

    All parties appealed.  Watts asserted the cap on non-economic damages provided by Section 538.210, RSMo violated the right to trial by jury and several other provisions of the Missouri Constitution.  She also asserted that the Section 538.220 periodic payment schedule established by the trial court was arbitrary and unreasonable in that it did not assure full compensation due to the low interest rate and the 50 year payment schedule.  Cox cross-appealed asserting that the trial court erred in its immediate award of future medical damages.  Cox asserted that Section 538.220 prohibited a lump sum payment of a portion of future medical damages and, instead, requires that all future medical damages be paid pursuant to a periodic payment schedule regardless of when the need for medical damage payments will arise. 

    The Missouri Supreme Court ruled in Watts’ favor and struck down the cap on non-economic damages in medical malpractice cases as well as in Watts’ favor on the issue of the arbitrariness and unreasonableness of the schedule of periodic payments for future medical damages.  In striking down the Section 538.210 cap on non-economic damages, the Missouri Supreme Court relied on Article One, Section 22(a) of the Missouri State Constitution.  That Section provides, in relevant part, “The right of trial by jury as heretofore enjoyed shall remained in violate….”  Thus, Article One, Section 22(a) of the Missouri Constitution required the Court to analyze two propositions to determine if the non-economic damage cap violated the state constitutional right to a trial by jury.  The first portion of that analysis is whether Watts’ medical negligence action and claim for non-economic damages was included within the “right of trial by jury as heretofore enjoyed.”  The Missouri Supreme Court found that medical malpractice actions were recognized at common law prior to the adoption of the Missouri State Constitution in 1820 and, therefore, fell into the category of civil cases which enjoyed a right to jury trial prior to the adoption of the Missouri Constitution.  The Supreme Court then analyzed whether the damage caps allowed the right to jury trial to remain inviolate.  The Court specifically found that a jury’s primary function is fact finding, which includes a determination of plaintiff’s damages.  Therefore, like other types of damages, the amount of non-economic damages is a fact that must be determined by the jury and is subject to the protections of the Missouri Constitution’s right to trial by jury.  The Court further stated that an injured party’s right to a trial by jury does not remain inviolate “when an injured party is deprived of the jury’s constitutionally assigned role of determining damages according to the particular facts of the case.”  Thus, the Missouri Supreme Court held that the statute providing for a cap on non-economic damages in medical malpractice cases necessarily and unavoidable violated the right to trial by jury.  In its ruling, the Missouri Supreme Court overruled the prior Missouri Supreme Court decision of Adams by and Through Adams v. Children’s Mercy Hospital, 832 S.W.2d 898 (Mo banc 1992), which had upheld a prior statutory cap on non-economic damages in medical malpractice cases. 

    With regard to both parties appeal of the periodic payment schedule set forth by the trial court pursuant to Section 538.220, RSMo, the Missouri Supreme Court denied Cox’ appeal and held that the statute does not require all future medical payments be paid according to the payment schedule.  In other words, the trial court had the discretion to award an initial lump sum payment and schedule periodic payments for the remainder of any future medical damages.  With regard to Watts’ appeal, the Missouri Supreme Court found that the trial court’s use of a .26% interest rate virtually guaranteed that inflation in healthcare costs would result in the child having insufficient funds to pay his future medical costs.  Thus, the periodic payment schedule provided none of the financial security intended by the statute.  Because the jury rendered a verdict of a present value amount of plaintiff’s future damages, the trial court’s use of an inconsistent future damages interest rate guaranteed the jury’s damages award would not actually cover the future medical costs and, therefore, took from the plaintiff the full value of the jury’s award.  Therefore, the Missouri Supreme Court reversed the case and remanded it to the trial court to enter a new periodic payment schedule consistent with the goal of reducing medical malpractice costs and also ensuring that the plaintiff would receive the benefit of the jury’s award for future medical care. 

    The impact of the Watts decision is likely to be felt for a long period of time.  The Missouri Supreme Court not only struck down the latest incarnation of the Missouri cap on non-economic damages, but, essentially, stated that any damages awarded on claims which existed at common law prior to the adoption of the Missouri Constitution cannot be capped by the legislature.  Therefore, the result of the Watts decision is not that the state of the law in Missouri reverts to prior statutory caps, but, instead, is that no cap exists for non-economic damages for medical malpractice claims. 

    Watts v. Lester E. Cox Medical Center

  • UIM Insurer Allowed to Intervene After Initial Denial of Coverage

    Consumers Insurance Company provided underinsured motorist (“UIM”) coverage to Bradford Charles.  Charles was subsequently injured in a motor vehicle accident with Christina Ranum.  Charles’ attorney subsequently made a UIM claim on the Consumers UIM policy.  Initially, Consumers denied UIM coverage, but subsequently determined that there may be UIM coverage under its policy.

    After Consumers initial denial of coverage, but before its determination that there may be coverage, Charles filed suit against Ranum and entered into a partial settlement whereby Charles agreed to limit his recovery to Ranum’s policy limits without conceding that his damages were limited to that amount.  Immediately after the settlement between Charles and Ranum occurred, Consumers moved to intervene in the action for the purposes of contesting Ranum’s liability and/or Charles’ damages.  Charles did not object to the motion and the trial court allowed Consumers to intervene.  Charles subsequently filed a Motion for Summary Judgment contending that consumers should not be allowed to intervene because it initially denied coverage and, therefore, forfeited any right it had to defend Charles’ allegations against Ranum.  The trial court eventually granted that Motion for Summary Judgment, finding that Consumers had initially denied coverage, but then changed its position.  This, according to the trial court, resulted in Consumers forfeiting its right to intervene.  The trial count then conducted a hearing at which Ranum did not appear to contest Charles’ case and entered a judgment in favor of Charles in the amount of $350,000.  Ranum had only $50,000 in liability coverage.

    The Missouri Court of Appeals for the Western District overturned the trial court’s judgment and found that Consumers should have been allowed to intervene.  In doing so, it distinguished between first party and third party claims.  The trial court acknowledged that an insurer may forfeit all of it rights under the contract should it deny coverage on a third party claim.  However, an insurer’s right to intervene in a cause of action when there is litigation which may affect a potential first party claim such as UIM coverage, the insurer’s right to intervene arises out of the Missouri Rules of Civil Procedure rather than the insurance contract.  Therefore, even after an initial denial of coverage, Consumers claim that coverage may apply was sufficient to establish that Consumers had an interest in the litigation to justify its intervention.

    This case is important for a couple of reasons.  First, in a potential first party claim situation, an initial denial of coverage will not necessarily prevent an insurer from intervening in underlying litigation against a third party.  Thus, claims representatives should keep in mind that an initial denial of coverage does not necessarily foreclose intervention.  Second, this case also makes clear that an insurer does not have to admit coverage in order to intervene.  The insurer only has to acknowledge that coverage may apply and that the disposition of the underlying litigation may, as a practical matter, impair or impede the insurer’s ability to protect its interests.

    Charles v. Consumers Insurance

  • Southern District Clarifies Foundation For Admission of Medical Bills

    The qualifications of the witness and that witness’s necessary testimony for the admission of medical bills into evidence is an issue frequently addressed by litigants and their attorneys in everything from collection matters to tort claims.  The Missouri Southern District Court of Appeals recently issued an opinion providing some guidance on the qualifications of a witness to lay the foundation for the admission of those medical bills as well as the type of testimony necessary to sustain the medical bills’ admission.

    Saint Francis Medical Center in Cape Girardeau, Missouri, filed a collection action against the Reeves family seeking to collect unpaid medical bills relating to the birth of the Reeves’ child.  Only one witness testified at trial, the hospital’s business manager, Roberta Matlock.  Ms. Matlock offered the following testimony:

    • She was employed in the hospital’s business office for 28 years and handled credit, collections, and billing matters;
    • She was familiar with the Reeves’ account;
    • Mrs. Reeves and her child were patients at the hospital;
    • The hospital billed defendants the “ordinary and customary charges” for services and supplies furnished by the hospital;
    • The hospital charges were “fair and reasonable for [its] area” based on her experience working with reimbursements paid by Medicare, private insurance companies, and from studies prepared by independent consultants hired by the hospital to review how its charges align with charges and post by other Missouri hospitals; and
    • The hospital’s charges fall “in the middle end” of that range.

    After this testimony, the hospital offered into evidence the bills for the services and goods it provided to the Reeves.  The Reeves’ attorney made an objection that the witness was not qualified to testify to the reasonableness and necessity of the charges because the witness had not identified herself as a licensed medical professional and that the only evidence was that she works with Medicare and Medicaid and insurance companies and, for the most part, they pay the bills that the hospital sends them.  The court sustained the defendant’s objection and excluded the medical bills from evidence.

    On appeal, the Southern District Court of Appeals reversed the decision. The Southern District found Ms. Matlock qualified to testify about the rates and charges and she laid the necessary foundation for admitting the bills as business records.  The Southern District did note that questions concerning Ms. Matlock’s credibility would be relevant only to the weight the trial court might choose to give the exhibits once they were admitted into evidence.  The Southern District then ordered the trial court to reverse its judgment in favor of the defendants, receive the medical bills into evidence and give them whatever weight the trial court deems appropriate before rendering judgment. 

    This decision clarifies the fact that it is unnecessary to call a licensed medical professional to lay sufficient foundation for the admission of medical bills.  A member of a healthcare provider’s billing staff, assuming they have similar knowledge and qualifications as Ms. Matlock, can provide the necessary foundation for the admission of such exhibits thereby rendering depositions of actual treating healthcare providers unnecessary to obtain this evidence.

  • Illinois Gives Green Light to Cameras in the Courtroom

    The Illinois Supreme Court’s recent announcement of a pilot program to allow cameras in trial courts has spurred discussions in legal and media circles about how this could impact the outcomes of trials. Some argue that the presence of news or even courtroom cameras could disrupt the case being tried since witnesses may be more hesitant to testify. Others say it gives the public a more accurate account of what goes on in the courtroom. Interestingly, each circuit’s chief judge will decide whether or not his or her courtroom will allow cameras.

    What are the pros and cons of having cameras in courtrooms?  As a trial lawyer for more than 40 years, I can see both sides.  Most of my trial experience is in Missouri courts, where cameras have been permitted for at least 20 years. In Illinois, the Supreme Court and Appellate Court have allowed cameras since 1983.

    The presence of news cameras will likely influence most people’s behavior in a courtroom, including testimony.  Some people will be intimidated by the whole process of being in court, regardless of whether cameras are present. That anxiety is natural, considering most ordinary citizens have little experience giving testimony in front of a judge and jury. Being on camera will probably make many of these folks even more nervous, and they may come across as uncertain or not credible.

    A smaller percentage of people relish the idea of being “on stage,” so to speak. Their behavior and testimony become exaggerated or inflated if they know the cameras are on, particularly news cameras.  This can backfire, though, if the judge or jury sees through the acting and decides the person is not believable.

    Another factor to weigh when thinking about cameras in courtrooms is whether the media will be able to provide more accurate coverage of a trial. Certainly having cameras pointed at witnesses or a defendant could lead to sensationalism in the media coverage, but at the same time, viewers get the opportunity to watch testimony and decide for themselves if they find it convincing.

    Finally, there’s the issue of the attorneys.  Some will preen for the camera and overdramatize their interrogations or opening and closing remarks. We saw this in the O.J. Simpson trial. Sensationalism was rampant in that case because of the celebrity factor, but for local cases in which news cameras are present, we tend not to see this high level of drama.

    Overall, there are many benefits to having access to courtroom video, and for news media being allowed to capture the proceedings in high-profile cases that are of interest to the public (but this is always at the judge’s discretion).  It’s important to note that in prosecutions for sexual abuse there will be no media coverage of the testimony of a victim unless the testifying victim consents. The policy also prohibits media coverage in any juvenile, divorce, adoption, child custody, evidence suppression and trade secret cases.

    Permanent cameras that are installed in many Missouri courtrooms can be helpful because they could allow original testimony to be reviewed in appeals courts, and the video provides a reliable record of the court proceedings should any behaviors or actions come under scrutiny later. Transparency is important, and can result in improvements to the legal system. At times, judges could also release portions of courtroom recordings to the media, which can be helpful as reporters summarize the proceedings.

    Another advantage of cameras is that the public can become more aware of how the judicial system actually works, versus what they see on television dramas and shows such as “Judge Judy.”  Negative perceptions can be corrected, and provide a more realistic picture of the courtroom.

    Those are my thoughts.  What do you think? Should judges allow news media in their courtroom? Why or why not?

  • Rate-A-Judge Websites: Helpful or Not?

    Whether we like it or not, we are living in the age of technology. Many professionals turn to the Internet to conduct research on clients, co-workers, and even potential new hires. Internet research has become a way of life, and in this new age, you can go online and rate your doctor, plumber, roofer and now even your judge.

    Many of these “rate-a-judge” websites have comment boards where you can ask questions and people will respond with their thoughts and opinions. Many of the opinions posted are by lay people who have come face-to-face with the judge in a courtroom, and definitely have opinions to share. While these sites seem as if they may be helpful, the credibility of the comments is suspect. I’ve seen posts accusing a judge of “receiving money under the table” or favoring women in their rulings. It’s hard to know if the statements that are made are true, or the result of an emotional reaction.

    Some of these rating sites only allow ratings on a numerical scale without comment. Therefore, there is no way to know the types of cases the judge is receiving ratings on. It is also impossible to determine whether a judge is being rated by an attorney, a party, a juror, or a witness and whether the person performing the rating was on the side of the plaintiff or the defendant, or the winner or loser.

    If you’re truly interested in understanding a judge’s reputation or mindset, it’s probably best to do your research by looking for news coverage about his or her cases, reading the judge’s written opinions, most of which are available online, and discussing the judge with attorneys who regularly appear before the judge. On the other hand, if you want some entertaining reading, try the ratings websites (see examples below). It’s always interesting to see how people react to a court ruling.
    http://www.therobingroom.com/JudgeListing.aspx
    http://www.robeprobe.com/worst_judges.php

  • Jurors Selected in Michael Jackson Case Pass Facebook Scrutiny

    Facebook continues to play a role in the courtroom.  It’s a well-known fact that attorneys frequently cull social media sites for evidence that could strengthen a case, but now some are using these tools to screen potential jurors. 

    Attorneys on both sides of the trial of Conrad Murray, Michael Jackson’s doctor, Googled prospective jurors to see if they had blogged or posted any opinions on the case.  The lawyers checked jurors’ social media sites, hoping for access to posts that might give clues about their private thoughts, attitudes, and prejudices. 

    At what point does this type of research become overkill? How valuable is this information for attorneys?  As a litigator, obviously I’m happy to have as much background as possible on prospective jurors.  At the same time, obtaining this information during jury selection can be difficult logistically.  In the Michael Jackson case, attorneys spent several days on jury selection, not several hours.  However, depending on the jurisdiction, attorneys generally have only several hours total for the jury selection process and could have dozens of candidates to consider.  There’s simply not enough time to search for and review information from social media sites for every prospective juror. 

    Cost was apparently not an issue in a high-profile case such as Murray’s.  However, clients may not find the expense required for this extra research to be cost effective.  In addition, there’s no guarantee that doing the research is going to result in having the ideal slate of jurors.  Too many factors go into jury selection, and many of these are subtleties that cannot be viewed on a Facebook profile, but rather need to be observed in person, such as body language and tone of voice. 

    We suspect that social media will continue to be a factor in jury selection, but on a limited basis and most likely in high profile or high stakes cases.  In the meantime, we’ll continue to hone our skills of observation, drawing conclusions based on what can be seen in the real world, as well as the virtual one.

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