Nasty Trial Lawyers

January 29, 2017

Hey Thomas,

Governor Greitens came down pretty hard on trial lawyers last week in his State of the State speech: Missouri attracts the “nastiest lawyers,” “our judicial system is broken,” and the time is up “for the trial lawyers who have broken it.”

St. Louis recently ranked as #1 on the The American Tort Reform Association’s annual list of “Judicial Hellholes.” We got this ranking because of three jury verdicts in talcum powder cases totaling $197 million dollars. These are pretty consistent verdicts and the evidence about the defendant's conduct was pretty damning.

But that's still a lot of money and can be seen as irresponsible. Insurance companies and big corporations use these verdicts to sway the public against our legal system and the 7th Amendment. ATRA's members are Fortune 500 companies like AIG, General Electric, Geico, Dow and others.

To the contrary, I and the other lawyers I know don't look on Missouri's judicial system as broken or out of whack. We have pretty balanced judges and juries who rule fairly. Wholesale legal changes such as changing the Missouri plan for selecting judges, imposing caps on recovery or other permanent changes seems arbitrary and unwarranted to address three verdicts in a distinct legal battle.

Those verdicts do not inform anyone about my cases or clients. I am not a nasty lawyer, but one who takes his oath and profession seriously and seeks daily to advance it. Insurers and corporations are not disadvantaged by our judicial system – to the contrary it's the only place an individual can combat them.

The St. Louis Post Dispatch had a great article discussing how verdicts can correct injustices to ordinary citizens. There are many examples of how caps or other tort reform proposals would hurt the future injured (who don't have much of a political voice). Here's a link to a blog last year of my top 10 ironies of tort reform. Here’s three:

1. Legislators try to wreck your 7th amendment right to a jury trial, while zealously protecting your 2nd amendment right to bear arms. Both are important and should be protected.
2. Elected officials who try to pass tort reform must believe that voters who are smart enough to elect their representatives are not smart enough to sit on juries and evaluate cases competently.
3. Jury verdicts are not going up or out of control, rather insurance companies lose money on stock investments and other speculation. But the legislature pushes this subject over and over again – an insult to the facts and us citizens.

STREET SURVIVAL FOR TEENS

Shout out to my friend Duke Niedringhaus of J.W. Terrell who taught me about teen driving risks the other day. Duke does great work teaching teen drivers to be safer on the roads (in addition to insuring people and businesses). For years now, Duke has taught in the Street Survival program put on 4 times a year at the St. Charles Family Area.

This program teaches young drivers how to handle and react in emergency driving conditions. Too often the first time a new driver encounters a surprising condition is on the roadway in the middle of an emergency. Safe Streets teaches defensive driving and safe driving techniques to avoid crashes and minimize injuries.

Great opportunity to teach and protect teen drivers.

IN THE NEWS

Our firm was featured again last week in the Missouri Lawyer Weekly for a slip and fall settlement for $125,000. Click here for the PDF of the article and more information about this great victory.

WOMEN PATRIOTS

I am so proud of my wife and mom for exercising their First Amendment Right last weekend in Washington, D.C. Regardless of your political view, the right to march and express your ideas is the cornerstone of American Liberty. President Trump tweeted about the marches: Peaceful protests are a hallmark of our democracy. Even if I don't always agree, I recognize the rights of people to express their views.

Thanks for Kristen and Joan making the trip to Washington, D.C. to remind us Americans how important honoring and respecting women's rights are. People can minimize that cause, but it was only a couple decades ago that there were almost no women lawyers, doctors, or businesspeople.

When my mom became a lawyer there were no female judges in the State of Missouri and few women in the courthouse. My mom and many other women worked hard to establish respected, safe, and equal working environments for all women and we all (not just women) stand on their shoulders.

So, thanks again to them, and anyone else, who stands up for what they believe in. With the divisiveness we see in American policies today, it is more important than ever to empathize and respect others' views, even if we don’t stand in their shoes.

Thanks.

Gary Burger

Responses:

“Can’t say that I agreed with his stance concerning this topic either. If a jury trial lacks integrity and sustains incompetence’s, well then, I suppose we should release over half our offender population.”

--Tom

“That’s great your mom and Kristen made the trip to DC. Fran, her mom and sister did as well. Who let that loon in the White House?”

--David

Supreme Court Marketing

February 12, 2017

Good morning Darin,

On my Facebook and Twitter feeds I noticed ads for Supreme Court Justice Nominee Neil Gorsuch. I was surprised, looked into it and thought I would share my findings and some history about nominees running for a majority Senate vote for the nation's highest court.

The ads try to paint him as mainstream and not Scalia-like. His views though are pretty clear and would likely follow the Justice he is replacing. But he is certainly qualified. A group called Judicial Crisis Network has begun a $10 million ad campaign to support him.

The ads appear to have a multi-pronged strategy. They are being run in States with Dem senators who are seen as being vulnerable in upcoming re-election battles. They are trying to bolster support for Gorsuch. Click here and here to learn more.

The group has a coalition of support on the right and is meant to provide support to nominees who support key issues – e.g., gun rights, anti-abortion, etc. Part of the group's goal is to provide additional narratives in the media.

The group is run by a former law clerk to Justice Clarence Thomas. The connection to Thomas makes sense as powerful ads savaged Thomas for his conduct towards Anita Hill twenty five years ago. Learn more about Thomas’ negative campaigns and President Bush’s denunciation of them.

There have also been ads against Justice Kagan by the NRA. There might be more of a fight because President Obama's nominee Merrick Garland was not confirmed for the last 10 months of his presidency.

The Supreme Court is such a political job with court watchers and media focus continually. And it’s long been so with many Supreme Court justices having run and won elected office. Justice O'Conner is the last elected official to serve on the high court. Great historical article here about elected Justices.

I doubt the framers contemplated this drama when they wrote in Article Two of the Constitution that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court..." Although originalist Gorsuch may disagree with me.

Burning Man $110,000 Work Comp Settlement

We represented Kelli in a Workers Compensation case for an injury she suffered at the Burning Man Festival in Blackrock City, Nevada. How did we win this claim in Missouri for a Burning Man volunteer?

In 2014 Kelli attended her 7th festival and was officially appointed a “ranger,” who protects revelers at the end of the festival when the “man burn” occurs. We claimed a military grade laser hit her face causing blindness in one eye and significant degradation of vision in the other. We began representing Kelli in 2016, a year and half after her injury. By that time, the time limit to file a Nevada Workers’ Compensation claim had expired (problem 1). Nevada has strict rules about work comp being the exclusive remedy for an on the job injury.

The Burning Man organization had filed an injury report through their insurer in Missouri and provided benefits to Kelli as well. Under NRS 616A.020(6), she gets no other compensation under any law anywhere.

So we pursued the claim in Missouri where Kelli lives. But she was a volunteer and work comp claims and settlements rest on the wage of the employee (problem 2). Under a 1981 Missouri Supreme Court case, Eugenius Stegeman v. St. Francis Xavier Parish and St. Paul Fire & Marine Insurance Company, an uncompensated worker who “is in the service of an employer and that employer exercises control, or as the right of control, over the worker”, can recover under work comp.

We look to wage rates for similar services by employees of that employer or any other employer. In Kelli’s case we prepared evidence and documents about the wage and wages for security guards, which is what Kelli was doing at the time. The Employer/Insurer raised other defenses as well (problems 3,4) like the connectedness of the eye injury to the incident at Burning Man and her level of sight. Kelli had worked for numerous days after this incident with the laser and her initial complaints of treatment to her providers were not clear as they could have been about her eye damage.

We were able to get a significant recovery set aside for Kelli’s future. If you have any other questions regarding Workers’ Compensation or strange and unusual Workers’ Compensation, call Burger Law right away at [dynamic-phone-number] or contact us online.

Call Your Elected Official About Tort Reform

The Missouri Legislature is hard at work trying to change our Missouri Court system to help bad businesses that hurt Missourians. Efforts are being fueled by lobbyists and big corporations. Learn more about the Missouri shingle maker trying to change consumer laws. Lawmakers are trying to change Missouri's justice system, which is a model for the country. They are trying to make it easier to discriminate against Missourians, protect those who commit medical errors and limit recovery against defendants who kill people. This is not a joke. You can find your Missouri Senator by clicking here. Please call them to oppose Senate bills 5, 43, 45, 237. You can find your Missouri Senator here. Please call them to oppose Senate bills 5, 43, 45, 237.

Thanks.

Gary Burger

Responses:

“Gary, a side note to your note, two of our left-leaning law clerks (who hated had Scalia) had Gorsuch as their Anti-Trust professor at Colorado University, and they loved him. They also support his nomination. Despite his previous ruling and Scalia letter of the law interpretation, they think he will be fair, with fair being a relative term. Just thought you would find this interesting.”

--Darin

“Hi, Gary. We've never met, but I wanted to let you know that I enjoy reading your e-mails. They are very well crafted and informative. Thank you for the good work. Please keep 'em coming!”

--Steve

Spring Break Search

February 27, 2017

I'm going to Mexico with my family for spring break in a few weeks and we are ready for our phones and computers to be searched. I always assume my luggage is fair game, but I've been reading about U.S. Citizens being detained and ordered to open phones.

Apparently Americans have to give broad access to phone and computer content (emails, texts and social media) when leaving or returning to the U.S. On Saturday, Muhammad Ali Jr. was detained coming back to the country (and asked whether he was a Muslim). Learn more here. A U.S. born NASA scientist had his work phone seized at the airport.

Can they do that? Yes. Border agents have broad authority to search without cause, and even more with a little cause. Despite the recent attention – it’s not just our current president – 4,444 phones were searched at borders in 2015.

The Fourth Amendment guarantees citizens the right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." But searches at our international borders by customs officials without probable cause and without a warrant are deemed "reasonable" by courts.

The border search doctrine also applies to stops and searches at the functional equivalent of a border (airplane or boat) and applies equally to searches of persons and property exiting or entering America. An airport at which an international flight touches down is a border under the law.

Searches and seizures of computers or phones at airports have been found to be constitutionally reasonable in many instances, often as the subject of a routine border search not requiring reasonable suspicion of criminal activity prior to acting.

And such a warrantless search does not violate the First Amendment's guarantee of freedom of speech. The government’s power is at its zenith at borders, so ten cuidado (be careful). If you don't surrender your passwords, you can be detained and they can copy your phone or hard drive. In one case - taking a hard drive 150 miles from a border to be copied was not unreasonable. See the following opinions:

• U.S. v. Bunty, 617 F. Supp. 2d 359 (E.D. Pa. 2008)
• U.S. v. Arnold, 533 F.3d 1003 (9th Cir. 2008)
• People v. Endacott, 164 Cal. App. 4th 1346 (2008)
• United States v. Kim, 2015 WL 2148070 (D.D.C. 2015)

It seems unfair to not have these constitutional protections for citizens at our borders. Especially when this power is not judiciously used.

I likely look too white to be vigorously searched. And if they do make me open my phone – they'll only get pictures of kids and dogs.

New Illinois Office

Burger Law has opened a Belleville, Illinois office. I have represented injured folks in Illinois since 1993. If you have any legal needs in Illinois (or anywhere) email me or call [dynamic-phone-number]. For our Google listing, click here.

Shameless Puppy Plug

My amazing wife Kristen and I fostered 16 puppies last year and found them forever homes. We are committed to fostering and adopting out 17 dogs in 2017. It’s a whole family effort and we have a blast with it.

We're off to a great start and have adopted out three this year (and are bringing more in). If you or someone you know is considering a dog or puppy send me an email or give me a call at [dynamic-phone-number]. I'll let you know what our inventory looks like. Help us make our goal.

Or you can visit Stray Rescue here, or the dogs they have for adoption here.

Shameless Puppy Mills

Do you know that Missouri is the worst state in the entire country for puppy mills? We have the most problem puppy mills.

Did you know that Gov. Eric Greitens plans to cut more than $433,000 from the Animal Care Facilities Act Program, the program that oversees puppy mill inspections? That won't help.

Work Comp and More

We recently settled a shoulder surgery workers' compensation case for $50,000. This was even more than my demand sent last summer. The client hurt his shoulder, had surgery and went back to work without restrictions. When the employers' insurance company didn't settle, we got a disability rating for our client. This rating is needed to calculate the lump sum permanent partial disability settlement to settle and finish the claim.

Our rating physician (who is great) figured out our client needed more medical treatment and a post-surgery MRI. The client went back to his surgeon, but the company doctor didn't see the continuing problems we documented. He said he was fine and gave a very low rating.

We mediated the case and prepared to bring in witnesses and physicians to talk about his real disability. We insisted on full value for his claim – and got it.

Our client did everything right in his claim (and in hiring us – ha). But do you know the top mistakes folks make after they are injured on the job? They include failure to tell their employer or fill out an injury report, and not getting immediate and appropriate medical care or denying the incident was work related or minimizing it to help their employer. If you want to know the 10 mistakes people make in their car crash cases, click here to get a free book I wrote.

Thanks.

Gary Burger

Responses:

“Gary - just got back from the Baja and didn't have any problems at either border, unless you count Bill having to surrender a pair of cuticle scissors and a shell. It was great! Saw the gray whales (moms and babies in Magdalena Bay) and blue whales and a fin back plus dolphins in the Sea of Cortez. Have a great trip!”

--Sue

Spring Forward

March 13, 2017

Good morning Gerard,

Springing forward for daylight savings time signals spring and renewal. Of course it happens with snow on the ground in St. Louis. Hope you have a good spring. I'm psyched to hang with my family over spring break next week. But first to CLE, class actions and another auto crash success.

We had fun in our CLE last December learning marketing and renewing our legal businesses. Since then I've been asking friends and CLE attendees what else they want to learn. My top responses were: how to present and counter expert witness testimony; how to negotiate and resolve liens in PI cases; and to share some of our class action successes and tactics. So, without further ado:

April 27, 2017 CLE: LIENS, CLASS ACTIONS AND EXPERTS MADE EASY

Renew and focus your practice with me and Michael Flannery of Cuneo Gilbert & LaDuca. We have 50 combined years of experience to share. We will spend 4 hours with you – three on thorough and cutting edge topics and one round tabling your toughest cases and legal issues to settle and solve them.

Three presentations:

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.

ADVANCED EXPERT TESTIMONY / DIRECT AND CROSS – Mike and Gary will teach how to present direct testimony of doctors, economists, voc rehab and other experts on liability and damages; and will share cross examination techniques to undermine the opposition.

Please register ASAP. Three hours of MO CLE.

Gary and Mike will round-table attendee's tough cases and legal issues for at least an hour after to help find great solutions and strategies. This is what we do – please join us.

As usual, all profit from this CLE will be paid to Legal Services of Eastern Missouri. I am going to try to place all our funds we earn from CLE’s this year into the Rick Teitelman Memorial Fund that is being organized at Legal Services.

Certified class action case set for trial Nov. 1

The Circuit Court of Cole County has certified a class action of employees of the Missouri Department of Corrections who worked as a Corrections Officer I or Corrections Officer II and appointed me class counsel. We recently set the case for trial November 1, 2017.

We allege the Missouri DOC does not pay straight-time or overtime wages for pre- and post-shift activities which the DOC requires employees to perform. We are requesting the DOC change this policy now and in the future, and compensate all class members for the unpaid time they spent performing pre- and post-shift activities.

The Court ruled we cannot maintain claims under the FLSA or under Missouri's minimum wage and overtime law. But we also seek damages under breach of contract and equitable remedies, i.e. the unjust enrichment obtained by the MDOC for pre- and post-shift activities completed by CO I and CO II employees that was not paid.

The Department of Corrections denies that the pre- and post-shift activities identified by Plaintiffs are compensable and that it must compensate employees for time spent performing those activities. It raises several affirmative defenses, including that the time spent on such activities is small, or de minimis, and that the activities are pre- or post-work activities that are not compensable under applicable law.

Please call [dynamic-phone-number] or email me if you have any information to assist us in this claim.

Auto Crash Victory

Last week we settled a case for Darrel for $100,000 and are now pursuing his underinsured motorist claim. Darrel was traveling west on Gravois on his way home from work. As he was entering the intersection another car turned left in front of him and another vehicle (and failed to yield the right of way to them).

Both cars violently crashed into the bad driver’s car and sent it off the roadway. The impact shoved Darrel forward into the steering wheel. The police did a great accident reconstruction in this case. They identified witnesses, positions of vehicles, and a detailed diagram drawing. This really helped prove liability in the case.

Darrel is a veteran, and a former client of mine that I previously represented in another car crash. He had a previous cervical fusion from C4 through C7 in his neck. In the Gravois road incident he reinjured himself and was diagnosed in the ER with a fractured sternum. That’s significant – but there’s no treatment for a fractured sternum. You just have to sit and deal with the pain while healing.

The x-rays themselves did not reveal the fracture line but saw buckling of the sternum which indicated a fracture to the physicians. He also had a whiplash neck injury. He did physical therapy. A challenge in this case was connecting the left hip pain and right knee pain to the incident which started about a year later “without apparent injury” according to the doctors note.

Of course the insurance company wanted to pay right away, right? NOT. The offer was less than $10k. So, we filed a lawsuit and litigated the case and produced him for deposition. We made a policy limit demand and refused to move off our $100,000 demand. As the case was gearing up for trial and we were going to take doctors depositions by video tape for trial, the Defendant realized the wisdom of our position and offered the policy limits.

Now we are making an underinsured motorist claim for his continued problems. We will keep you updated and let you know how that goes.

OPENING DAY TICKETS

Burger Law is having a promotion for Cardinal baseball tickets for Opening Day! Go to our Facebook page to like our Burger Law page to be entered for the drawing for the Cardinal Home Opener.

Thanks.

Gary Burger

Response:

“Enjoyed your sense of humor-my cousin Vinny”

--Cissy

Sunday Funday

March 26, 2017

Happy Sunday Patrick,

My kids and I call Sunday "Sunday Funday." We try to get out and have a great time doing something fun. It takes the stress out of Sunday – i.e. knowing you have to go back to school or work the next day. Hope you got out and had fun today.

We got back from a spring break vacation – and they even let us back in the country. New phone app to fill out customs forms saved us from a long line in Denver. Saw amazing sea life.

REDUCING LIENS, PRODUCING AND CROSSING EXPERTS AND CLASS ACTION LITIGATION LESSONS

Join me on April 27, 2017 for a 3 hour CLE. But not just another CLE: will change the way you reduce liens, present experts and think about class actions in your practice.

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.

ADVANCED EXPERT TESTIMONY / DIRECT AND CROSS – Mike and Gary will teach how to present direct testimony of doctors, economists, voc rehab and other experts on liability and damages; and will share cross examination techniques to undermine the opposition.

Guest Lecturer Michael Flannery of Cuneo Gilbert & LaDuca will lend his expertise. We have 50 combined years of experience to share. We will spend 4 hours with you – three on thorough and cutting edge topics and one round-tabling your toughest cases and legal issues to settle and solve them.

Please register ASAP. Three hours of MO CLE.

As usual, all profit from this CLE will be paid to Legal Services of Eastern Missouri. I am going to try to place all our funds we earn from CLE’s this year into the Rick Teitelman Memorial Fund that is being organized at Legal Services.

NEW OFFICES

Burger Law has opened new offices in Belleville and Chesterfield. If you ever need to use a conference room there email me and let me know. If you’re inclined to review our new locations on Google, we would really appreciate it. Click here to review our Belleville, IL office and here to review our Chesterfield MO office. Thanks!

Whale Shark

Q: Why didn't this whale shark eat me last week?

A: Professional courtesy.

(One of my favorite lawyer jokes). And they don't eat people – just plankton. Amazing fish (not mammals).

These are amazing creatures. They are super gentle and our whole family swam with them. When they are first born, they go to the very depths of the ocean to get away from predators. There they grow from 2 to 8 feet and come up to shallower bays. They can grow to 40 feet long.

OPENING DAY TICKETS

Burger Law is having a promotion for Cardinal baseball tickets for Opening Day! Go to our Facebook page to like our Burger Law page to be entered for the drawing for the Cardinal Home Opener.

Responses:

“Hey Buddy – Congrats on the two new locations. You are killing it!! And the two books, how do you have the time? Missed y’all at the party last night. Looks like you had a great spring break.”

--David

“Hey my Sunday was great except I had to work this evening and I'm glad your trip went well and you got. Back safe!”

--Tieri