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Posts from the ‘Trial Practice’ Category

Winter is Coming! It’s Time to Dig out the Immunity Under The Illinois Snow and Ice Removal Act.

With the coming of winter Illinoisans are once again getting their snow shovels and ice melt ready to remove the white stuff from their residential driveways and sidewalks.  The question is, what is a residential property owners’ duty to remove snow? Read more

Recent Personal Jurisdiction Decision in St. Louis City, Missouri Limits the Use of a Registered Agent to Establish Personal Jurisdiction

On October 28, 2016, Judge Robert Dierker issued an order in the case of Bristol v. Ford Motor Co., et al., 1522-CC10413, denying Ford’s Motion to Dismiss Based upon Lack of Personal Jurisdiction. Ford argued that there was no personal jurisdiction in the matter pursuant to Daimler AG v. Bauman, 134 S. Ct. 746 (2014), which states, “A court may assert jurisdiction over a foreign corporation to hear any and all claims against [it] only when the corporation’s affiliations with the State in which suit is brought are so constant and persuasive as to render [it] essentially ‘at home’ in the forum State.” Diamler, 134 S. Ct. at 751.

Plaintiff alleges decedent was exposed to Ford brake products in Utah when he was an employee of a Ford dealership. Based on discovery in this case, it was determined Ford brake products contained asbestos, during the time decedent was working on its products. The Court found Ford had and continues to have extensive manufacturing operations in Missouri and is licensed to do business in Missouri but is not incorporated in Missouri, nor does it have its principal place of business in Missouri. Ford products that contained asbestos brake linings were manufactured in Missouri and shipped to the dealership in Utah.

Based on the foregoing, Judge Dierker found that, although it is unclear that plaintiff’s decedent worked directly on vehicles made in Missouri, it is reasonable to infer that he did so. Judge Dierker also inferred that decedent was exposed to asbestos-containing brake linings on vehicles made in Missouri.

In his Order, Judge Dierker specifically rejected the finding that maintaining a registered agent is Missouri is sufficient to establish jurisdiction, stating “The Court also rejects the contention (albeit adopted by other rulings in this Circuit) that being registered to do business in Missouri constitutes consent to the general jurisdiction of the Missouri courts.”

Though Judge Dierker found the existence of a registered agent insufficient to establish jurisdiction, he concluded that plaintiff adequately established specific personal jurisdiction in this case, based upon the evidence presented that allegedly dangerous Ford products were shipped to the decedent’s employer in Utah from Ford plants in Missouri, thereby creating a clear risk of asbestos exposure to plaintiff’s decedent in Utah. Judge Dierker stated the plaintiff has shown that, for the purposes of due process and the Missouri “long-arm” statute, RSMo. § 506.500, it reasonable that Ford be sued in Missouri on account of its conduct in Missouri.

This is the second time Judge Dierker has specifically made the contention that the existence of a registered agent in Missouri will not establish personal jurisdiction. In Smith v. Union Carbide, et al. (1422-CC00457), DuPont filed a Motion to Dismiss Based on Lack of Personal Jurisdiction. Judge Dierker rejected Plaintiff’s arguments that service upon DuPont’s registered agent in Missouri was sufficient to confer general personal jurisdiction against DuPont. In reaching this opinion, Judge Dierker applied the due process analysis set forth in Daimler and found that DuPont is neither incorporated in, nor has its principal place of business in, Missouri and that Plaintiff failed to present evidence “indicating that this is an ‘exceptional case’ under Daimler, such that general personal jurisdiction should be extended beyond these paradigmatic forums.”

Though Judge Dierker denied Ford’s Motion to Dismiss Based upon Lack of Personal Jurisdiction, his finding that the existence of registered agent is not enough to establish jurisdiction in Missouri bolsters Defendants’ arguments when contesting personal jurisdiction in St. Louis City Circuit Court.

On September 29, 2016, the Missouri Supreme Court heard oral arguments in the case of State ex rel. Norfolk Southern Railway Company v. The Honorable Colleen Dolan, SC95514, in which an Indiana resident, Russell Parker, sued Norfolk Southern Railway Company under the federal employer’s liability act in a Missouri state circuit court, seeking damages for cumulative trauma injuries he alleges he sustained during the course of his employment with Norfolk Southern. Although it operates railroad lines in Missouri, the railway company is incorporated in and has its principal place of business in Virginia. Norfolk Southern moved to dismiss Parker’s lawsuit for lack of jurisdiction. The circuit court denied Norfolk Southern’s motion in December 2015. Norfolk Southern has appealed this issue to the Missouri Supreme Court.

Norfolk Southern’s point on appeal is whether the circuit court may exercise personal jurisdiction (legal authority) over Norfolk Southern. Related to this are issues of whether the allegations in Parker’s Petition arise from or relate to Norfolk Southern’s activities in Missouri are sufficient to give rise to specific jurisdiction, and whether the circuit court has general jurisdiction over Norfolk Southern through its operations in Missouri, even though it is not incorporated in Missouri and does not have a principal place of business in Missouri. The Missouri Supreme Court must also decide whether Norfolk Southern consented to jurisdiction and whether, under the due process clause, an out-of-state corporation’s compliance with mandatory business registration requirements can lead to a finding that the corporation has consented to jurisdiction.

Company Consented to Personal Jurisdiction in Missouri by Maintaining Registered Agent

Recently, in the case of Kologenski v. Genuine Parts Corporation (1622-CC00427), Judge Sengheiser denied Genuine Parts Company’s (GPC’s) Motion to Dismiss for Lack of Personal Jurisdiction, finding that GPC consented to personal jurisdiction in Missouri by maintaining a registered agent to accept service of process in Missouri. This outcome is consistent among St. Louis City judges, as Judge David Dowd and Judge Joan Moriarty have recently ruled the same way on similar motions to dismiss for lack of personal jurisdiction. Read more

Release, Waiver, and Assumption of Risk for Cycling Incident – Summary Judgment Affirmed

Pitzer Snodgrass Lawyers: Peter Dunne and Bob Plunkert

Our Client: City of Chesterfield, Missouri

Venue: St. Louis County Circuit Court, appeal to Missouri Court of Appeals for the Eastern District

Plaintiff Steven Glazer filed a personal injury case in St. Louis County Circuit Court alleging the City of Chesterfield was negligent regarding alleged surface hazards on the roadway during a Pedal for the Cause event.  The Plaintiff executed a one-page “Waiver” before the event, which provided the following: Read more

Genetic Mutation Defense in Asbestos Cases

Over the last few years, asbestos defense attorneys have slowly begun to introduce a defense to the causation of mesothelioma related to a specific genetic mutation. In a recent study, scientists have found that individuals who carry a mutation in a gene called BAP1 are susceptible to developing mesothelioma.  See Testa JR, Cheung M, Pei J, Below JE, Tan Y, Sementino E, Cox NJ, Dogan AU, Pass H, Trusa S, Hesdorffer M, Nasu M, Powers A, Rivera Z, Comertpay S, Tanji M, Gaudino G, Yang, H and Carbone M. Germline BAP1 mutations predispose to malignant Mesothelioma. Nature Genetics. Online August 28, 2011. DOI: 10.1038/ng.912. Additionally, when these individuals are exposed to asbestos or similar mineral fibers, their risk of developing mesothelioma may be markedly increased. Read more

Missouri Senate Bill 239 – Reinstatement of Damage Caps In Medical Malpractice Cases

When evaluating a claim for medical malpractice, the potential exposure is a key consideration for both health care provider and defense counsel.  Until recently, plaintiffs could receive unlimited non-economic damages awards in medical malpractice lawsuits for personal injury filed in Missouri.  See, Watts v. Lester E. Cox Medical Centers, 376 S.W.3d 633 (Mo. banc 2012).  Such unlimited damages may afford plaintiff a windfall, expose health care providers to unpredictable jury verdicts, and increase the overall cost of health care.  However, the Missouri legislature has recently reinstated damage caps with Senate Bill No. 239, which was signed into law by Governor Jay Nixon on May 7, 2015, and takes effect on August 28, 2015. Read more

Missouri’s Spoliation Doctrine and the Rule on Subsequent Remedial Measures

Despite its difficulty in application, the evidentiary spoliation doctrine—not to be confused with the independent tort of spoliation—is a fairly common sense doctrine at heart.  Boiled down to its most basic terms the spoliation doctrine prevents parties from destroying relevant evidence and using its absence to support their position.  The spoliation doctrine prevents parties from benefitting from their intentional destruction of evidence by allowing the other parties to make an adverse inference to the jury that the destroyed evidence would have been favorable to their position.

On the other hand, the rule on subsequent remedial measures seeks to encourage a party to repair a dangerous or injury-causing condition after an accident has occurred.  The public policy behind this rule encourages parties to make repairs where necessary to prevent the same injury from recurring. This rule provides that any action taken after an injury-causing event that, if undertaken before the event, would have reduced the likelihood of injury, is inadmissible to establish the manufacturer’s negligence. Read more

Missouri High Court Strikes Down Punitive Damages Cap in Common Law Actions Existing Before 1820

In the case of Lillian M. Lewellen v. Chad Franklin and Chad Franklin Auto Sales North LLC, No. SC92871, (Mo. banc Sept. 9, 2014), the Supreme Court of Missouri recently struck down Missouri’s statutory cap on punitive damages (Mo. Rev. Stat. § 510.265) for all common law causes of action that existed before Missouri’s Constitution was adopted.  In short, the Court held the cap on punitive damages was unconstitutional as applied to all causes of action existing at common law before 1820.  The Court previously held the statutory cap applied to causes of action created after 1820 (i.e. claims created by statute).  See Lewellen, at *8, fn 9. Read more

The Three Million Dollar Question: Are Method of Service and Proof of Service Synonymous?

Western District Court of Appeals finds that Plaintiffs Failed to Prove Proper Service Upon Insurer Before Taking Default Judgment

On April 29, 2014, the Missouri Court of Appeals affirmed a Boone County trial judge’s order setting aside a three million dollar default judgment more than two years after the default judgment was entered. The Plaintiffs, Ray Charles and Sue Bate, were parties injured in a motor vehicle accident. They sued the insurer of Ray Charles Bates’ employer, Greenwich, alleging that he was entitled to underinsured motorist benefits under the employer’s policy. Plaintiffs attempted to serve Greenwich pursuant to the process set forth in R.S.Mo. §375.906. A sheriff served a copy of the Plaintiff’s lawsuit against Greenwich upon an agent of the Missouri Department of Insurance. That agent then mailed the lawsuit to Greenwich using regular, first class mail which did not provide any verification that Greenwich would be actually served with the lawsuit. Read more

PS Wins Motion on Statutory Co-Employee Immunity Under 287.010

Pitzer Snodgrass recently obtained a dismissal of a case involving statutory co-employee claims, with the Court finding there was no duty owed. Plaintiff’s cause of action arose from an incident that occurred in 2010, while he was working at a trucking company’s facility in St. Charles County, Missouri. At the time of this incident, plaintiff was an employee of the trucking company. Defendant was also an employee of the same company at the time of the alleged incident.   Read more