Lobby

April 24, 2017

I am heading over to Jefferson City today to talk with our legislators about numerous tort reform efforts. Three weeks left to go in this year’s session. I get that Missouri should be business friendly and we need to promote capitalism, but we also need to have fair rules to protect the safety of Missourians.

The hypocrisy is palpable. Companies and wealthy donors gave millions to candidates last December before some donation limits were to take effect to get special treatment. Missouri Senate President Ron Richard cashed a $100,000 check from the CEO of TAMKO Building Products six days after introducing legislation that would effectively derail a pending class-action lawsuit against TAMKO. The sponsor of the bill to change discrimination laws is currently being sued for race discrimination. Senator Gary Romine is being accused of self-dealing to help himself out in his case.

Senate bills 43 and 45 remove protection for older people, women and minorities from job discrimination while the State pays millions to settle discrimination claims against the Department prompting a state audit.

Missouri Legislators repeatedly get caught in sex scandals with subordinates and make the national news – Mo house speaker John Diehl, Sen Paul LeVota , and Don Gosen. Former Fox News anchor Gretchen Carlson has spoken out against these bills; Roger Ailes and Bill O'Reilly's recent departures from Fox news in the wake of sexual harassment accusations certainly support the need for continuing legal protection.

Why let the foxes guard the henhouse? The same guys who can’t keep their hands off their own interns want to lessen their punishment when they get caught.

Did you know that Senate Bill 43 makes it impossible to hold the person who actually committed the unlawful act liable for their actions? It lets the bad guy off. It also lets business justifications in for discrimination and heightens the burden for proving discrimination.

Whistleblowers reveal criminal corporate action that damages the public and should be protected. But Bill 43 specifically excludes managers, supervisors, and anyone who is paid to report on the business' activities from whistleblowing protection. These are the very people who catch most illegal activity. Shouldn't we encourage the reporting of dangerous misconduct?

$25 for three hours of CLE on April 27, 2017

NEW EXPERT STATUTE AND HOW TO HANDLE IT – Thorough review of new expert rule and how to litigate with it.

EXPERT TESTIMONY UNDER NEW STATUTE – We will teach how to present direct testimony of doctors, economists, voc rehab and other experts on liability and damages under the new expert rule; and will share cross examination techniques to undermine the opposition.

HOW TO REDUCE AND RESOLVE EVERY KIND OF LIEN – My very successful techniques, motions, letters and law. Getting good $$ from the defendant is only half the battle.

CLASS ACTION LAW, STRATEGY AND SUCCESS – Mike Flannery teaches how to identify, litigate and succeed in class action cases. He has successfully recovered in class cases across the county in many areas, including FLSA, wage and hour, antitrust, unfair business practices and discrimination.

As usual, all profit from this CLE will be paid to Legal Services of Eastern Missouri and targeted to the new Rick Teitelman Memorial Fund.

Victory! - Employment Disability Discrimination

We just settled a disability discrimination case for $84,000 cash plus nearly $25,000 in additional benefits.

Many years ago our client, Gina, suffered a traumatic brain injury when she was attacked by a violent patient of hers and had severe PTSD. She switched careers, obtained her doctorate, and began teaching special needs students for the St. Louis County Special School District.

After many years teaching for the District, Gina was moved to a highly violent environment. Gina was consistently attacked by particularly violent students. Gina repeatedly requested to be kept away from violent students as an accommodation for her PTSD disability. The District failed to offer her an accommodation.

Gina is a highly experienced and accomplished educator and The Special School District has over 2,000 teachers placed at schools all over St. Louis County (with many safe and docile students). Instead of moving her to a safer location, the District retaliated against her by taking her out of the classroom and placing Gina in her own “office” – a broom closet! She was not permitted to teach any students, anywhere, and was forced to sit at a desk inside of a converted broom closet.

Clearly, the District was wrong to try to get her to resign. After complaining about the District’s retaliation, the District retaliated against her yet again by moving her to another group of highly violent students!

Gina tried to move to other locations, and applied to nearly 40 positions within the Special School District. She received no interviews – or even call-backs. Meanwhile, younger, less educated, and less experienced teachers were awarded these positions.

The District’s top offer was $3,000. So we filed suit and extensively litigated the case. Employment Discrimination law in Missouri is complex. Here's information on the Missouri Human Rights Act. We filed two lawsuits and fought hard against the District in an administrative challenge in Cole County as well as the primary lawsuit in St. Louis County. After fighting hard for Gina, the District settled at mediation.

U.S. Supreme Court overturns Missouri Federal Employee Health Benefits Act Case

A recent case which originated in St. Louis was overturned by the United States Supreme Court on April 18, 2017. The case, Coventry Health Care v. Nevils, involved a federal employee Plaintiff who received health benefits for an injury. The Plaintiff’s health coverage was governed by the Federal Employees Health Benefits Act (FEHBA).

Nevils settled the personal injury claim. The health insurer demanded its money back for health benefits it provided. Nevils argued that Missouri law did not allow subrogation from settlement in personal injury cases and that FEHBA did not preempt Missouri law. Missouri law has long held a persona cannot assign their injury case to another person (or health insurance company).

The Missouri Supreme Court agreed, and the case advanced to the U.S. Supreme Court. After a few other procedural hurdles, the U.S. Supreme Court unanimously ruled this month that the FEHBA did in fact preempt Missouri state law.

Plaintiffs with personal injury cases in Missouri covered by a FEHBA plan have to pay back their insurers. This is bad as plaintiffs are already undercompensated in many cases, and this will just exacerbate this. Injured people pay premiums for years for health insurance coverage and should not have to pay back insurers.

Thanks for reading. If I can ever do anything for you please email or call me at [dynamic-phone-number].

Gary Burger

Responses:

“Interesting. Let me know how it goes.”

--John

“…Good stuff, Gary! Your introductory background on the cronyism in Jefferson City is disturbing. Saw a recent Post-Dispatch article about how huge percentages of campaign donations to Missouri legislators are spent on ski trips to Aspen and other such things. I wrote an article for the Missouri Law Review couple years ago called ‘The Wild Mid-West: Missouri Ethics and Campaign Finance under a Narrowed Corruption Regime’ that touches on a lot of the same issues. Lots of unsavory stuff is going on over there.”

--Dan

Rain, Motorcycles, and Insurance

May 7, 2017

Good Morning Richard,

Check out how much the Mississippi has risen. I took this Friday. I also included pics taken from my office window at the end of this email. But first back to some law (yawn). We hopefully turn from the rainy season to better weather, remember to watch and be careful for motorcycles.

I have tried a number of motorcycle cases, and we just obtained an amazing $100k result for our client and motorcycle driver Ronald Currie.

$100,000 for Single Motorcycle Tough Liability Claim

We were faced with a single vehicle motorcycle crash where our client left his bike and sustained injuries. The sole witness was bad for us: our client was traveling at a high rate of speed, whipping back and forth between traffic. The reporting officer believed he lost control due to speeding and slick road conditions. His motorcycle continued 150 feet without a rider.

So, what did we do? Our client said a phantom driver (who left the scene) hit him and caused the crash. So, we made a claim against Farmers Insurance under our client’s motorcycle policy. He had both uninsured and underinsured coverage in the amount of $50,000 each. We made a demand for the full policy limits for both coverages. We refused to take anything less than the full policy limits.

We had to get full recovery on the uninsured to even be entitled to underinsured coverage. Here are links to my uninsured motorist page and underinsured motorist page.

Interestingly, because there was uninsured coverage at issue, we had the opportunity to stack coverage on Ron's other two vehicles. However, when you stack insurance policies in Missouri you only stack the Missouri minimum amount, or $25,000. He only had two vehicles so we had no advantage to stack in the uninsured policy because he had $50,000 in uninsured coverage on his motorcycle.

So after litigating and pursuing the case we received full payment of $100,000 for Ronald. We were able to get all of his medical providers to assert liens in the case and we were able to reduce those liens. We put over $50,000 in Ron’s pocket after all fees, expenses, and medical bills were paid. We are very happy to get this amazing result.

We have had good success in getting motorcycle recoveries. If you have any questions about navigating insurance policies or succeeding in motorcycle crashes please give me a call at [dynamic-phone-number] or email me.

Thanks…

To the many folks who attended last week’s CLE. Many commented that it was the "best CLE they had ever attended."

Protecting Puppies

I referenced “irony” about state legislators in my last email. With politicians it seems there's an endless supply. Here's more.

Mary Ann Smith, the owner of a puppy mill in Salem, Missouri, filed a defamation lawsuit in 2011 against the Humane Society. She was included in a list of Missouri’s “dirty dozen” – where the Humane Society identifies our state’s most egregious puppy mills.

Her son, Jason Smith, is a U.S. Representative of Missouri’s 8th congressional district and has fought against protecting dogs from abusive puppy mills. Jason Smith was a lead proponent for gutting the Missouri Puppy Mill Cruelty Prevention Act which became law in early 2011.

The Missouri Supreme Court ruled on April 25, 2017 that Mary Ann Smith had not alleged sufficient facts to make a case for defamation and her case was consequently tossed. The HSUS successfully argued that Smith had merely stated opinions which were protected by free speech.

Rising Minimum Wage

An injunction challenging the minimum wage increase in the City of Louis was lifted last week. Effective now the minimum wage in the City of St. Louis is $10 per hour. Click to read about City of St. Louis Ordinance No. 70078.

Thanks.

Responses:

“Amazing he wasn’t killed…soon he won’t have to wear a helmet if he has medical insurance!”

--Richard

Compel

May 21, 2017

Good morning Darlene,

Last week I was faced with three litigation scenarios where the opposition did not give me information and documents like they should have. Defendants play games with the rules in litigation about what they turn over. But I have long said that I am kind of like the energizer bunny- I keep going and going until we get what we are supposed to get.

Last Monday, I deposed the general manager of a defendant hotel, in which they gave me a statement of my client. This had not been disclosed before despite my requests and not prior to my client's deposition over a month ago where she told the whole story about the assault. The law in Missouri is clear that statement of an opposing party is not hearsay and must be produced in a case (Bynote v. National Super Markets, Inc.). I was very surprised that this had occurred in the case. So what do I do? I wrote the other side asking for an explanation. I discovered a lot of other documents have not been turned over and we will go to court with a Motion to Compel.

Then, on Tuesday May 16 we went to court for the fifth hearing on a Motion to Compel in an Illinois Class Action claim against an insurance company. We even have prior Court orders ordering them to produce information and documents about complaints from their customers. People think that if they have an uninsured motorist claim it is an easy claim because their insurance company should take care of them. This is not true, and we frequently have to fight and litigate uninsured motorist claims against insurance companies.

Regardless, again in this Motion to Compel the Judge gave the Defendant and its party an additional 30 days to get the documents to us. The reason for this delay was that this insurance company is getting its third set of lawyers. I think these lawyers keep figuring out the insurance company is hiding stuff and dropping out. Or, they figured if they get a new lawyer most courts are going to give them an additional 30 days to get me the stuff I need.

We also won our motion to compel Illinois Dept. of Insurance to turn over the many complaints against this insurance company.

On Wednesday May 17, in a Workers’ Compensation hardship mediation, our client’s employer denies he employed our client at the time of the injury. But my client located and provided pay stubs from the company showing and proving his employment. We subpoenaed the complete records of the employer and demanded a deposition of the employer, but they won’t comply.

So the Court compelled them to do so and set another hearing soon. This employer is also on his third lawyer. We are proceeding to try this hardship. There are many interesting legal issues at play in this case and I joked with the opposing lawyers that once the case is over it will be the subject of a future email.

Unfortunately, most evidentiary rules at trial do not permit the jury to know all the shenanigans played by the defendants to prevent the plaintiff from getting the evidence they need. There is some misconception that plaintiffs have the upper hand and take advantage of defendants in these cases. The opposite is true. But:

Tort reform measures have recently been sent to the Missouri Governor’s office at the close of this recent legislative session. It is still unclear what bills the Governor will or will not sign, but all of the bills below threaten Missourians, for the benefit of out of state insurance companies.

First, Senate Bill 66 was passed and sent to the governor, it requires employees to meet a “motivating factor standard” for worker’s filing a workers compensation retaliation claim. In 1998, in Crabtree v. Bugby, the Missouri Supreme Court ruled that for employees to make a compensation retaliation claim, their participation in the workers’ compensation process had to be the exclusive cause of their termination.

However, the Supreme Court overruled this decision in 2014, in Templemire v. W & M Welding, Inc., finding that participation in a comp claim only had to be a contributing factor for the employee’s termination. Senate Bill 43 raises the standard for employment claims, to a motivating factor standard. Raises an employer's intent to a motivating factor standard, once again making it easier for companies to retaliate against employees for filing workers’ compensation claims.

This bill was sent to the Governor’s office on May 8th.The Bill also will overrule the Missouri Supreme Court’s 2015 decision in Greer v. Sysco Foods, which allowed injured workers to continue receiving temporary disability payments, after the company doctor told them they had reached “maximum medical improvement”.

Second, under Senate Bill 31 the collateral source rule has been changed so that Plaintiff’s medical expenses are limited to the amount actually paid for medical care. Collateral source rules prevent the defendant from taking advantage of benefits the plaintiff has. Currently the jury is advised of the total amount of medical expense and the amount paid and owed to satisfy those claims. This law will benefit insurance companies and punish responsible Plaintiffs who pay health insurance premiums.

Third, insurance companies regularly improperly deny insurance claims and under pay insurance claims. This has been the subject of litigation for 170 years in Missouri. In 1848, the Missouri Supreme Court wrestled with payments on insurance premiums in St. Louis Insurance Company v. Robert Kyle.

One of the tools to protect Missouri citizens from insurance companies is to enter into an agreement pursuant to Revised Statute Mo. §537.065. Under House Bill 339 insurance companies now have permission to intervene in agreements under that statute. R.S.Mo §537.065 provides protection to customers of insurance companies and protects them from companies improperly denying claims. Missouri legislators are working against Missouri residents on behalf of out of state insurance companies to protect the companies from properly paying claims.

Fourth, at the time of this email the only one of these tort reform measures actually signed by the Governor is House Bill 153. HB 153 changed the Missouri Expert Witness standard to the federal Daubert standard. If signed, all of the above bills will go into effect on August 31st, 2017.

Compelling Special Prosecution

The deputy attorney general, Rod J. Rosenstein, appointed former FBI director, Robert S. Mueller III as special counsel on May 17, 2017. The special counsel has a unique role under the law. Under 28 CFR § 600.1, the attorney general may appoint a special counsel to investigate and prosecute certain things if there is a ‘conflict of interest.’

Special counsel has the power to look for evidence of a possible crime, and all other powers of a federal prosecutor, all outside the chain of command under the Justice Department. They can issue subpoenas, collect evidence, present their evidence to a grand jury and indict, but under current rules, all proceedings or evidence uncovered must remain secret. At a trial, the special prosecutor would be the actual prosecutor trying the case.

They may file their cases in a Federal District Court {or a special Federal District Court in New York or Washington D.C. likely}. They report to US Attorney General Rosenstein, and while special counsel Mueller is ‘independent’ of the federal government, attorney general Rosenstein can fire him at any time. There is also an example of the current special prosecutor threatening Ashcroft when he was in the hospital ill to resign if he did not reauthorize Bush’s domestic surveillance program.

Similar famous examples of this in the past include special prosecutor for the Whitewater investigation against President Bill Clinton and the special prosecutor for the Watergate scandal under President Richard Nixon. While these are the most famous, special counsel has been appointed 21 times over 21 years.

People criticized the White Water Investigation for taking 7 years with very little success and high costs. The numerous independent counsel investigations into the Clinton Administration cost the United States over $40 million. In total, special investigations have cost the U.S. over million with very few uncovering important information they were brought on to investigate.

However, some special prosecutors have had success. Many suggest the Watergate investigation was a success since former President Richard Nixon ultimately resigned. The idea originally behind the special prosecutor was to conduct an investigation into elected officials independently of the federal government to avoid politics, but they get a lot of attention as a political tool as well. As the late Justice Antonin Scalia once said, “nothing is so politically effective as the ability to charge that one’s opponent and his associates are not merely wrongheaded, naïve, ineffective, but in all probability, ‘crooks.’

Thanks.