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Latest from HeplerBroom, LLC

by Eric Moch and Ryan Chancellor
America is in the grips of a lethal opioid epidemic, and law enforcement and insurance claims departments are on the front lines of the fight. Thechallenge is to ensure physicians have the freedom to prescribe necessary and responsibly priced medications while simultaneously ensuring that bad actors do not take advantage of the system to endanger the public with unnecessary and over-priced medications that pose real risks to public health while driving increases in insurance premiums. This column highlights a recent civil lawsuit by the United States of America and a case study, with a
Continue Reading Prescription Medication Fraud: A New Federal Civil Suit and a Case Study to Highlight Real Dangers

by Weston T. Stoddard

In Bensenberg v. FCA US LLC, Donna Bensenberg (“Decedent”) filed suit to recover damages on a theory of strict product liability for injuries she sustained from an auto accident after her vehicle’s front airbag did not deploy. 31 F.4th 529 (7th Cir. 2022). While litigation was pending, Decedent passed away from unrelated causes. Id. at 533. Her son, Bradley Bensenberg (“Plaintiff”), then stepped in as Plaintiff. Id.
Case Background
On the day of the accident, Decedent was driving a 2008 Chrysler Aspen sport utility vehicle on a two-lane highway when she suffered a medical incident that
Continue Reading Seventh Circuit Gets Specific about Non-Specific Defect Theory

by Alex Belotserkovsky
On March 25, 2022, Illinois’ First District Appellate Court issued an opinion in Casteel v. Jiminez affirming the dismissal of a petition (filed pursuant to 735 ILCS 5/2-1401) to set aside the judgment against the Defendant. The opinion contains an interesting analysis of the timeliness of filing a motion under 735 ILCS 5/2-1401 based on particular defenses.
The Case
Plaintiff alleged that in 2015, while Defendant was “conducting illegal activities” on a street in Chicago, the Defendant intentionally shot Plaintiff in both legs. The complaint filed by Plaintiff contained two counts: the first alleged negligence, and the
Continue Reading Appellate Court Finds Lack of Jury Trial Insufficient Reason to Set Aside Judgment Due to Untimely Challenge

An opinion filed by the Illinois Supreme Court on April 21, 2022 will have a tremendous impact on the trucking industry. In McQueen v. Green, 2022 IL 126666, the Illinois Supreme Court held that plaintiffs may pursue separate claims for negligent hiring, negligent supervision, and negligent retention against a trucking company/employer for the employer’s conduct in failing to reasonably hire, supervise or retain an employee, even where the trucking company/employer admits vicarious liability for its truck driver/employee.
In departing from long-standing precedent and distinguishing what has been recognized by many other states and commonly referred to as the McHaffie rule (a
Continue Reading Gant is No Longer: Illinois Supreme Court Holds Direct Negligence Claims Against Trucking Company Appropriate Even Where Company Admits Vicarious Liability

The continuing nationwide discussion over transgender rights—specifically reassignment and gender affirmation medical treatment—has found its own time of debate in Missouri. Recent Missouri state legislative proposals aim to control medical care providers’ prescription of hormone replacement therapy or “puberty blocking” medications (two commonly endorsed methodologies for gender treatment in the transgender population) as well as gender reassignment surgery. While few surgeons will perform the latter on minors, pharmaceutical intervention is generally endorsed as a safe treatment by the American Academy of Pediatrics.
State Initiatives
In March 2021, the state of Arkansas became the first state to pass legislation that not
Continue Reading Medical Care and Legislation Continue to Intersect Over Transgender Therapiesfor Minors

by Gregg A. Kinney

Missouri legalized marijuana for medical purposes in 2018. While that law prohibits the use of marijuana in the workplace or during work hours, it doesn’t address workplace drug testing or change drug testing policies that may have existed before the law passed. Federal employers and contractors, as well as employers of certain regulated professions involved in safety sensitive jobs, must still comply with federal laws relating to drug testing. All other Missouri employers, however, can choose whether to test for marijuana in a pre-employment drug screen and/or conduct marijuana testing of current employees.
Looking for Employees
Continue Reading Missouri Employers: Evaluate Your Marijuana Drug Testing Policy in the Face of This Tight Labor Market

by Taylor Harris

In the wake of the COVID-19 pandemic and the Great Resignation, many companies are still struggling to hire and retain talented team members. Surveys by the National Association of Manufacturers show that one of the main concerns for businesses is an inability to attract and retain a quality workforce.

While the manufacturing industry was one of the first to resume in-person operations during the pandemic, staffing issues remain at an all-time high. Projections show a need for 2.4 million additional manufacturing professionals over the next 10 years. These new workers must be skilled in operating and managing
Continue Reading Strategies for Advancing Diversity and Inclusion in Manufacturing Employment

by Michael Murphy

As part of its published regulatory agenda, the Illinois Environmental Protection Agency (IEPA) has proposed changes to the regulations governing Annual Emissions Reports, often called “AERs.” (That agenda is available here, beginning on page 591 of the report.)

The AERs rule requires permitted sources to report air pollution emissions data of regulated air pollutants. 35 Ill. Adm. Code 254. However, since the Illinois Pollution Control Board allowed the Emissions Reduction Market System (ERMS) program to expire,[1] IEPA is planning to propose amendments to remove reporting requirements related to the ERMS program from AERs. (Obviously
Continue Reading Changes to Annual Emissions Reports on Published Agenda for Illinois EPA

by Julieta Kosiba

Several statutory changes affecting Illinois employers went into effect at the beginning of this year. These changes include these updates and amendments:
Illinois Equal Pay Act of 2003
As all Illinois employers should know by now, Illinois’ Equal Pay Act was amended in 2019 to prohibit employers from requesting applicants’ wage or salary histories or from otherwise requiring applicants to disclose such information. 820 ILCS 112/10(b-5). However, that prohibition does not prevent employers from giving applicants information about wages, benefits, compensation, or salary for a position. It also does not prohibit employers from discussing applicants’ compensation expectations.
Continue Reading Illinois’ 2022 Employment Law Changes

by Katelyn Hall
All employers in the State of Illinois should be aware of the updated Illinois Freedom to Work Act (“Act”) that took effect January 1, 2022. The amendments to the Act (which were made during the summer 2021 legislative session) have major consequences for employers who require employees to sign restrictive covenants. (The amendments can be read here.)
The Act’s Amendments
When the Act was originally signed into law in 2016 by former Governor Rauner, the Act prohibited employers from requiring “low-wage employees” to sign restrictive covenants. (In 2016, a “low-wage employee” was defined as any
Continue Reading Restrictive Covenants: Illinois’ Amended Freedom to Work Act has Serious Impact on Responsibilities of Both Employers and Employees

by Colleen LaVelle
In a previous blog post, we highlighted Iowa’s novel law to end over-naming of defendants in asbestos and silica litigation. Since then, North Dakota, Tennessee, and West Virginia each enacted their own legislation aimed at curbing the number of defendants named in a given toxic tort suit. These bills share similarities, but they also differ from one another, too.
NORTH DAKOTA
On April 14, 2021, the North Dakota legislature passed House Bill 1207.[1] This Bill requires a plaintiff in an asbestos action to file a sworn affidavit signed by both the plaintiff and his or
Continue Reading Casting A Wide Net? Legislation Passed in North Dakota, West Virginia, and Tennessee Limiting Over-Naming of Defendants in Toxic Tort Suits

by Sean S. Sheehan

It’s important that those who work with personal injury settlements stay up to date on the various requirements of the Centers for Medicare & Medicaid Services (CMS). Therefore, we once again present our beginning-of-the-year summary of important updates and trends in Medicare Secondary Payer laws, processes, and procedures.
PAID Act Implemented
CMS fully implemented the PAID (Provide Accurate Information Directly) Act on December 11, 2021. (Our previous blog post describing the provisions of the PAID Act is available here.) Earlier in 2021, CMS updated the software used to access its query system. It allowed
Continue Reading Medicare Secondary Payer News, Notes, and Trends for 2022

by Meg L. Fowler

In Babb v. Bartlett, ED 109479, 2021 WL 5894626 (Mo.App. E.D. Dec. 14, 2021), the Missouri Court of Appeals for the Eastern District of Missouri recently affirmed a trial court’s dismissal of an action for lack of personal jurisdiction.
Case Background
This case involved a commercial truck driver. The defendant, Oklahoma resident Tiffany Bartlett, was driving for Meier Environmental Services and Associates, Inc. d/b/a Mesa, Inc. (“Mesa”), a Missouri corporation. As she was driving her truck in California, she struck the vehicle of the plaintiff, Charles Babb, also an Oklahoma resident[1]. Despite the fact
Continue Reading Missouri Court Refuses to Extend Personal Jurisdiction to Truck Driver Driving for Missouri Company

by Bradley M. Zaffiri

The Missouri Court of Appeals for the Western District recently reaffirmed that owned-vehicle exclusions in automobile liability insurance policies that provide uninsured motorist coverage are enforceable for any coverage limits above the $25,000 minimum required under Missouri’s Motor Vehicle Financial Responsibility Law (MVFRKL). Jones v. American Family Mutual Insurance Company, S.I., 632 S.W.3d 482 (Mo. App. W.D. 2021)
Case Background
Plaintiff Courtney Jones was driving her 2014 Toyota Sequoia when another driver turned left in front of her, causing a collision that resulted in serious injuries to her neck and arm. The other driver did not
Continue Reading Missouri Appellate Court Reaffirmed Owned-Vehicle Exclusions in Uninsured Motorist Coverage

by Tammera E. Banasek

The proper venue or forum for a Plaintiff’s suit is an ever-changing and frequently litigated dispute. The recent case in Illinois’ First District Appellate Court in Malloy v. DuPage Gynecology, 2021 Il App (1st) 19202 (September 30, 2021), provided a less than favorable result for Defendants, on both venue and forum. However, the opinion provides some insight—particularly in venues that are in close physical proximity—that more specific information needs to be provided for a court’s analysis in several of the key forum components. (As always, this begs the question for defense counsel whether a forum
Continue Reading There’s No Place Like Home—Unless You Live Next Door: Venue and Forum in Litigation

by Kathleen S. Hamilton
The Missouri Supreme Court recently held that a plaintiff could not hold a former co-employee personally liable for a workplace injury because with one exception, co-employees are legally entitled to immunity under the 2012 amendment to Missouri Statute Section 287.120.1 of the Workers’ Compensation Act.
Case Background
Plaintiff Danny Brock worked at JMC Manufacturing, which utilizes a high-pressure laminating machine to laminate particle boards. Mark Edwards, one of plaintiff’s co-employees who was also a supervisor at JMC, was working with the plaintiff on April 30, 2013. They were using the machine to laminate particle boards when
Continue Reading Co-Employee Immunity Under Workers’ Compensation Act in Light of New Missouri Supreme Court Opinion