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Open and obvious: “both the condition and the risk are apparent to and would be recognized by a reasonable man . . . exercising ordinary perception, intelligence, and judgment.” The Missouri Court of Appeals for the Western District reversed and remanded Michael Lee v. Missouri Department of Transportation, a wrongful death lawsuit, back to the Circuit Court of Boone County, Missouri. Michael Lee appealed a dismissal by the trial court of his Third Amended Petition, alleging wrongful death claims for the death of his daughter against the Missouri Highway and Transportation Commission (MHTC).  The claims arose from a tragic…
On March 23, 2021, Illinois Governor J.B. Pritzker signed into effect the Predatory Loan Prevention Act (the “PLPA”), which caps interest on consumer loan transactions at a rate of 36 percent. The PLPA essentially expands the interest rate caps set forth in the Military Lending Act, which is a federal law that protects active service members from usurious interest rates, to apply to all consumer loan transactions taking place in Illinois. Illinois is now one of eighteen jurisdictions to implement such a cap. The PLPA is part of an omnibus economic equity reform bill introduced by the Illinois Legislative Black…
Courts around the country have held a defendant is not subject to specific personal jurisdiction in a forum unless the claims asserted arose out of the defendant’s contacts with the forum. In product liability cases, typically unless the product arrived in the forum through the defendant’s actions, the courts found no specific personal jurisdiction existed.  However, the United States Supreme Court has broadened the scope of contacts sufficient for a court to exercise personal jurisdiction over a defendant.  In doing so, it has weakened a powerful defense.  There are two types of personal jurisdiction—general and specific.  Where general personal jurisdiction…
The saga continues over prejudgment interest in Illinois. Although Governor Pritzker vetoed HB 3360, which would have imposed a 9% prejudgment interest on person injury and wrongful death action, a modified version of the bill is already speeding its way through the system.  See letter from JB Pritzker in support of his Veto. HA2 is in front of the Senate and would soften the blow to defendants.  However, it still penalizes defendants for exercising their right to trial. For instance, in HA2 prejudgment interest would be 6% instead of 9% pre annum and would not apply to punitive damages, sanctions, statutory…
On March 2, 2021, the Missouri Court of Appeals, Eastern District, in Chemline Inc. v. Mauzy, affirmed in part and reversed and remanded in part, a St. Louis County Circuit Court’s order finding a sales representative in contempt of the court’s permanent injunction order expressly prohibiting contact with his former employer’s customers. The trial court assessed a compensatory fine, despite plaintiff’s failure to demonstrate that it suffered actual damages as a result of the contemptuous conduct, and attorneys’ fees. The case involved restrictive covenants, including a non-compete and non-solicitation agreement, between Chemline Inc. and its former sales representative Timothy Mauzy. …
Johnson and Johnson (“J&J”) has asked the United States Supreme Court to overturn the $2.1 billion verdict entered against it in Ingham, et al. v. Johnson & Johnson, et al., a talcum powder class action filed in Missouri that included numerous non-resident plaintiffs. If review is granted, the Supreme Court will rule on just how far the “arise out of or relate to” prong of the test for specific jurisdiction extends with respect to the claims of a nonresident plaintiff.  The inconsistent way differing jurisdictions determine the existence of specific jurisdiction for non-resident plaintiffs is readily apparent.  And the litigation…
Mmmk. Imma spill some tea. Some Millennials are now protected under the Age Discrimination in Employment Act (ADEA), as well as the Illinois Human Rights Act (IHRA), Missouri Human Rights Act (MHRA), and other state laws. Millennials – who are defined as individuals born between 1981 and 1996 – are just beginning to turn 40 years old this year (I’m looking at you, Paris Hilton). Yes – you heard me right. This means some (but not all) Millennials now have standing to sue employers for age discrimination. It’s offish. So what does this mean? The ADEA, IHRA, and MHRA prohibit discrimination against employees who are…
To say Illinois has been significantly affected by the COVID-19 pandemic would be a dramatic understatement. According to the CDC, as of February 11, 2021, Illinois ranks fourth among all states for the number of COVID-19 cases and seventh for the number of deaths caused by COVID-19. Given the number of cases and deaths in the state, Illinois businesses should consider whether there will be a corresponding wave of lawsuits related to the pandemic and, if so, whether the businesses are prepared to defend against such lawsuits.  As of this writing, an estimated 365 lawsuits related to COVID-19 have…
On January 13, 2021, less than 48 hours after amendments to HB 3360 were introduced, the amended bill passed and is ready to go to Governor Prizker’s desk to be signed into law. If Governor Pritzker signs HB 3360, as amended, it would impose a “litigation penalty” on civil defendants by taxing them with a 9% per annum interest on personal injury and wrongful death cases. Under current Illinois law, plaintiffs are not entitled to pre-judgment interest in personal injury cases. If this bill is signed into law personal injury and wrongful death cases in Illinois would be subject to 9% per…
Missouri manufacturers, distributors, sellers, and resellers of equipment have scored an important victory in the Missouri Court of Appeals. In Ormsby v. Central Mine Equipment Co, the Missouri Court of Appeals, Southern District, affirmed admission of evidence regarding the design, manufacture, and first sale of a commercial drilling rig as relevant to the defense of a strict liability claim arising from a subsequent sale when punitive damages are claimed.  Generally, a plaintiff can recover under a strict product liability claim if he can prove the product was inherently defective when sold and that the defect in the product caused the…
The question of whether an arbitration agreement is enforceable is an oft-disputed issue prone to be volleyed between the courts and an arbitrator; such was the case in Caldwell v. UniFirst Corporation, No. ED108409, 2020 Mo. App. LEXIS 1328 (Ct. App. Oct. 27, 2020). This case involves a contract within a contract within a contract: a delegation provision contained in an arbitration agreement, which was contained in an employment contract. This not-uncommon scenario requires a court to look at the three contracts and analyze each independent of the others.  In Caldwell, a former at-will employee sued his former employer (UniFirst)…
A recent ruling from the U.S. District Court for the Eastern District of Michigan has provided more guidance in predicting how COVID-19 related losses and litigation will be handled. In Turek Enterprises, Inc., d/b/a Alcona Chiropractic v. State Farm Mut. Auto. Ins. Co., et al,the Court ruled that State Farm Mutual Automobile Insurance Co. did not have to cover a chiropractic office’s losses alleged from government-ordered closures due to COVID-19. The Court held that the insured failed to allege physical loss and that the virus exclusion bars coverage. This class action lawsuit seeking business interruption coverage was denied because the…
Baker Sterchi Cowden & Rice elected two new Members, effective January 1: Brandy Simpson (St. Louis), whose practice focuses primarily on medical malpractice defense. She also defends premises liability, personal injury, and products liability matters. Simpson earned her Juris Doctor from the University of Dayton, and is licensed to practice in Missouri, Illinois, Kentucky and West Virginia. She serves as a Women’s Affinity Group liaison to Baker Sterchi’s Diversity Committee and is the 2020-2021 secretary of The Bar Association of Metropolitan St. Louis Women in the Legal Profession Section. Meghan Kane (Belleville), whose practice focuses on toxic torts, personal injury, product liability,…
The U.S. Judicial Panel on Multidistrict Litigation initially ruled centralization was not appropriate for businesses seeking business interruption insurance coverage because of varying policy language. See our post here.  At that time, more than 450 cases were pending in Federal Courts—now there are over 700. While the JPML rejected total centralization, in the same ruling the Panel suggested that the creation of smaller “single-insurer” MDLs could be efficient to centralize those actions.  Cases argued against one insurer or insurance group were “more likely to involve insurance policies utilizing the same language, endorsements, and exclusions” that would make sharing common discovery…
The United States Supreme Court recently granted certiorari to TransUnion on a multimillion-dollar jury verdict arising out of a class action in the Ninth Circuit. In Ramirez v. TransUnion, a case filed in the Northern District of California,the jury assessed $60 million in damages against TransUnion for three FCRA violations: (1) willful failure to follow reasonable procedures to assure accuracy of terrorist alerts in violation of 15 U.S.C. § 1681e(b); (2) willful failure to disclose to class members their entire credit reports by excluding the alerts from the reports in violation of § 1681g(a)(1); and (3) willful failure to provide…
Introduction On November 12, Governor Parson issued a written proclamation encouraging lawmakers to author new tort liability legislation insulating defendants from lawsuits arising out of the COVID-19 state of emergency that has existed since March. This effort is designed to allow these individuals and entities to continue to serve the public without threat of unnecessary and frivolous litigation. We have since learned that the Missouri legislature is not likely to address this issue until early 2021. Governor Parson seems to have reconsidered the timing for the agenda and directed the legislature to address this, not during the ongoing special session, but during…