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Double their money

Splintered majority

Greensfelder wants to double its bill after halting an unconstitutional tax. Is that a fair reward or soaking the taxpayers?

The whole state Supreme Court agreed that the adoption of Carlos Romero was flawed, but the judges divided on what to do next.

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January 31, 2011

Greensfelder and St. Louis utility spar over $4.3M in attorneys’ fees By Christine Simmons

christine.simmons@molawyersmedia.com

It’s now up to a Lincoln County judge to decide how much will be paid to Greensfelder, Hemker & Gale after the firm’s attorneys won part of a lawsuit against a local utility. The firm’s attorneys say they’re entitled to double their legal bill to the Metropolitan St. Louis Sewer District because they successfully halted an unconstitutional tax on behalf of ratepayers, but the utility says the firm’s bill is too high and unreasonable. Any fee award will affect the level of services provided to the public, according to an MSD memo filed last month in court. MSD and Greensfelder attorneys were expected to turn in their propsed findings in the matter last week. The case is before Judge Dan Dildine. Greensfelder Hemker wants nearly $4.3 million in attorneys’ fees and $459,000 in expenses from MSD after attorneys successfully argued that the agency’s new stormwater user charge amounted to an unconstitutional tax. The firm’s attorneys say they worked more than 8,000 hours over two and a half years in a contingency fee arrangement. In a class action lawsuit, ratepayers claimed the agency’s new stormwater user charge was a tax in violation of state constitution’s Hancock Amendment, which prohibits Missouri from raising taxes above a certain amount without a public vote. In July 2010, the court found the charge was a tax and invalidated the new charge. The court also found that the ratepayers were entitled to reasonable attorneys’ fees and litigation expenses. Greensfelder’s legal bill includes a “lodestar” amount, determined by multiplying the number of hours worked on the case by the attorneys’ and staffers’ 2010 hourly rates. The hourly rates range from $435, for lead Greensfelder attorney Richard Hardcastle, to the rate of $120, for an assistant. Eight attorneys and five assistants billed for their time. Greensfelder lawyers figure the lodestar amount is nearly $2.2 million through December 2010. The firm is asking the court to double the lodestar amount to account for the risk Greensfelder undertook in arguing the case and for the firm’s success in stopping MSD from collecting about $300 million more in unconstitutional taxes. The requested attorneys’ fees represent 1.1 percent of the storm water charges the agency would have collected from August 2010 to 2014, according to court records submitted by Greensfelder attorneys Hardcastle, George Uhl and Kirsten Ahmad. They said they represented about 480,000 class plaintiffs. In response, MSD says Greensfelder’s attorneys fees should be $1.15 million and Greensfelder is charging Fortune 500 rates to a local utility. “MSD and its customers (who will pay any fee award) should not be punished by the fact that plaintiffs’ counsel

SeLeCt GReenSfeLdeR PaRtneRS’ 2010 hoURLY RateS Partner Richard hardcastle George Uhl dawn Johnson Jason Ross timothy huskey

Rate $435 $345 $310 $285 $285

Source: Court records in MSd case

did not have a paying client in this case,” wrote MDS lawyers in a memo filed in December. Those MSD lawyers include John Gianoulakis, Robert Murray and Kevin Sullivan of Kohn, Shands, Elbert, Gianoulakis & Giljum in St. Louis. As one of their exhibits, MSD counsel put together a 17-page list of examples of Greensfelder activities that it deemed irrelevant, duplicative and excessive. For example, the list says two of the lawyers who attended the April 2010 trial did not actively participate. “As such, their time is excessive and redundant and is not compensable,” the MSD lawyers wrote.

Billing rates

MSD also argues that Greensfelder rates are too high. “There is scant evidence that attorneys in St. Louis area charge public entity rates ranging from $175 for a recent law school graduate up to $435 for an experienced partner,” MSD lawyers wrote. “In contrast, the market rates for legal work done for public entities are considerably lower.” Counsel for MSD say they reduced their hourly rates by 20 percent, which they say is customary in the St. Louis area when firms are representing public entities. MSD lawyers also suggest firms bill at a flat, blended hourly rate for public entity clients. “Plaintiffs counsel should be held to the same standards because they are seeking the payment of their fees from a public entity and any fee award will affect the level of services provided to the public,” MSD attorneys wrote. Yet Greensfelder says discounts provided to public entities are irrelevant. “Class counsel did not represent a public entity in this case; plaintiffs prosecuted this against a public entity,” the firm wrote in a reply memo filed in mid-January by Hardcastle, Uhl and Ahmad.

Multipliers

In asking the court to double its attorneys’ fees, Greensfelder says many state courts have applied “multipliers” on legal bills. In response, MSD says Greensfelder lawyers are asking the court to create new law in Missouri because Missouri courts have not yet spoken on this issue. But across the country, the use of multipliers is quite common in class action suits, says Howard Erichson, a law professor at

Fordham University in New York and an expert on class action litigation. “The idea is that class counsel takes a risk in getting paid nothing,” Erichson said. “If the lawyer does succeed, then the reward is substantial enough that future lawyers have incentive to pursue meritorious litigation.” Still, John Hessel, an attorney at Lewis, Rice & Fingersh who focuses on municipal work, said he’s suspicious of the use of a multiplier, especially in the MSD case. Hessel has been representing municipalities for 33 years. He’s currently a city attorney for Kirkwood and Florissant. “I also find it particularly disturbing to get a multiplier on fees because it means the monies you and I have paid to MSD are not going to be used for us — they’re going to be paid for legal fees,” Hessel said in an interview. “That’s taking money out of public coffers to double up because they took a risk and succeeded on a risk.”

Budget woes

A spokeswoman for MSD, Debbie Johnson, would not elaborate on how MSD might be affected if the agency had to pay the bill proposed by Greensfelder. “We will deal with the issue of the fee impact when the judge issues his ruling,” she said. But it appears as if Greensfelder’s proposed bill could wreck havoc on MSD’s legal budget. Johnson said legal bills are paid for by the agency’s legal department budget, which is $4.5 million this year — about $200,000 below Greensfelder’s grand total of attorneys’ fees and expenses. MSD likely is facing other legal bills, too. The utility is still in litigation with the Environmental Protection Agency and the state of Missouri, which brought a lawsuit against MSD in 2007 over the alleged dumping of pollutants and raw sewage into nearby waters. The parties are in mediation. Hessel says any time government budgets have a large unanticipated expense, it will seriously jeopardize short-term and long-term budgetary planning. The agency says there are already consequences from the court’s decision to rule the stormwater user charge unconstitutional. MSD says it was forced it to reinstate a system of flat charges and property taxing districts to pay for stormwater service. It’s also cut $15.5 million in stormwater services and projects from the current budget, the utility says. Hardcastle, the lead attorney for ratepayers, said he’s not sure whether the attorneys’ fees will affect MSD’s level of service. But, he said, “it’s a situation of their own making” because the utility violated the Missouri constitution. MSD is now appealing the July ruling. If it prevails on that appeal, MSD would not have to pay the attorneys’ fees. MSD attorney Gianoulakis declined to comment on the case. Meanwhile, class counsel is appealing the court’s finding that MSD does not have to refund the stormwater user charges already collected by the utility. MO

and its customers (who will pay any fee award) should not be punished by “MSD the fact that plaintiﬀs’ counsel did not have a paying client in this case. ” — MSD lawyers in a memo

M i s s o u r i L aw y e r s We e k ly

n Inside this issue 17

ADR Directory

Classifieds Lawyer to Lawyer Referrals

S16, S17

Legal Calendar Legal Roundup

6 4

Top Verdicts & Settlements

Opinions

Practice, Practice

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January 31, 2011

n Koster hints at bankruptcy for Second Injury Fund

JEFFERSON CITY (Daily Record) Missouri’s attorney general says lawmakers have reached the “proverbial fork in the road” for the Second Injury Fund, and that if they do not act he might force the fund into bankruptcy. In a memo to the Missouri Legislature last week, Attorney General Chris Koster said the fund, a component of the state’s workers’ compensation system, will likely become insolvent this year. He offered several policy possibilities without endorsing any of them, and concluded by adding, “If policymakers fail to resolve the SIF’s future, then this office and other administrators of the SIF will be forced to make significant decisions regarding the SIF, including possibly forcing the SIF through a bankruptcy proceeding, but it is our preference to partner with policymakers so this office is not forced to make these decisions without legislative input.” The fund covers claims by workers whose pre-existing conditions are made worse by an on-the-job injury. Its funding was limited by a 2005 law change, and the fund has been expected for several years to become insolvent.

n Congress to consider medical malpractice limits WASHINGTON, D.C. (Dolan Media) On the heels of voting to repeal the health care overhaul signed into law last year, House lawmakers introduced a companion medical liability bill that would, among other measures, limit punitive damages, cut attorneys’ fees and shorten the statute of limitations for medical malpractice claims. The HEALTH Act, H.R. 5, was introduced last week by U.S. Reps. Phil Gingrey, R-Ga., Lamar Smith, R-Texas, and David Scott, D-Ga., who called the measure a way to limit health care costs while protecting doctors and patients. The legislation would limit physician liability to the portion of the injury for which plaintiffs prove a physician is responsible, place “reasonable limits” on punitive damages, allow states to impose their own damages caps and place limits on attorneys’ fees.

Let the good times roll

Tom Schwartz bowls during the Lawyers Association of St. Louis's annual bowling tournament held last week at Saratoga Lanes in Maplewood. A team from Sandberg Phoenix & von Gontard won the tournament. Photo by Sarah Conard

n Long-awaited trial n Judicial pay raises between tobacco, for 2012 appear safe hospitals starts today JEFFERSON CITY (Missouri Lawyers ST. LOUIS (Daily Record) After more than 12 years of legal maneuvering, a lawsuit pitting Missouri hospitals against cigarette makers is set to begin today. The plaintiffs, 37 hospitals, want to recoup money spent caring for patients with smoking-related illnesses. When the lawsuit began in November 1998, more than 40 plaintiffs were suing 27 defendants. Today, there are 11 defendants left in the case. They say the injuries alleged by the hospitals are too indirect or remote to support a recovery. The hospitals allege the defendants are liable under theories of negligence, product defect and conspiracy. They also allege they’re entitled to punitive damages. The trial, expected to last six months, may well be the longest trial in the city of St. Louis. Jury Supervisor Michael Devereaux, who has been with the court for nearly 20 years, said he doesn’t recall a trial of the same length here. And Judge Michael P. David recalled that his longest case until now lasted 3 ½ weeks. The case is St. Louis et al. v. American Tobacco et al., 22982-09652-01.

Weekly) A last-minute push to reject raises for Missouri judges appears to be dead. A House committee on Wednesday considered, but took no immediate action on, a resolution that would reject a plan to pay state judges at a percentage of the salaries of federal judges, and a committee vote scheduled for the following day did not take place. That leaves almost no further time for lawmakers to the reject the pay plan, which will go into effect automatically unless the Legislature rejects it by a two-thirds majority by Tuesday. David Klarich, a lobbyist for the Missouri Circuit Judges Association and the Missouri Association of Trial Attorneys who attended the hearing, said it would be impossible for both chambers to pass the measure in the time remaining. A similar move to reject the raises in the Senate died earlier this month. A state salary commission put forward the plan in December. Judges would get raises of between $6,500 and $14,600, depending on position. But the pay hikes wouldn’t go into effect until the fiscal year starting in July 2012. The resolution is HCR18.

M i s s o u r i L aw y e r s We e k ly

n OCDC recommends reprimand for note-passing lawyer

CLAYTON (Daily Record) The Office of Chief Disciplinary Counsel has recommended a St. Louis County lawyer be publicly reprimanded and pay a $750 fee for passing a note to a judge during trial. Keith K. Cheung practices with Curtis, Heinz, Garrett & O’Keefe in Clayton. He is also the municipal prosecuting attorney for Ballwin, Town and Country, Frontenac and St. Ann, as well as Ladue’s municipal judge, according to disciplinary documents. According to the documents: While in a separate division at the St. Louis County Circuit Court on June 7, 2010, Cheung asked a bailiff to bring a note to Associate Judge Lawrence J. Permuter, who was hearing a criminal case against former Bella Villa Police Chief Edward Locke. The note read in all caps, “Judge, you need to convict this guy. I’ll explain later. Keith Cheung.” Following the delivery of the note, Permuter declared a mistrial. Cheung lied to Locke’s attorney during the meeting with Permuter and said he “was not certain” which case was being tried. Cheung accepted the panel’s recommendation Jan. 6, agreeing that he had “engaged in conduct prejudicial to the administration of justice” and that he had lied.

n Legislature may allow amnesty on outstanding state taxes JEFFERSON CITY (AP) Missouri taxpayers who owe the state money may be getting a break. Members of a House panel discussed legislation Thursday to give taxpayers amnesty on all unpaid taxes that were due before the end of 2010. They would receive amnesty from all penalties, interest and increases in the taxes they haven’t paid. Taxpayers would have to apply for the amnesty and pay their taxes in full before Oct. 31. They would also be required to follow all state tax laws for the next eight years. Gov. Jay Nixon also has called for a tax amnesty program as part of his plan to bring in additional state revenues and balance the budget.

n In the News n Lashly & Baer announced that Timm Schowalter was elected chairman of firm’s private business practice group. Schowalter also serves as outside general counsel for businesses.

previously was an associate at a Moscow law firm. Those joining the Kansas City office are Timothy Davis, Christopher Grenz and Ashley Gillard. All three are 2010 law school graduates.

Timm Schowalter

n Mark Schaffer has become a partner at Frischer & Associates, and the Overland Park, Kan., firm is now known as Frischer & Schaffer. Schaffer, formerly an associate, Mark Schaffer focuses on personal injury defense, insurance coverage, construction defect and railroad litigation. The firm has also moved its offices to in Overland Park to 12980 Foster, Suite 370.

Timothy Davis

Ashley Gillard

n Bryan Cave announced seven associates recently joined the firm’s St. Louis office while three joined the firm’s Kansas City office. Those Christopher Grenz joining the St. Louis office are: Mikhail Eydelman, Brett Blackburn Heger, Rebecca Holdredge, Jill Joerling, Huan Li, Constantino Ochoa Jr. and Stefani Wittenauer. All graduated from law school in 2010, except Eydelman, who

n Joseph Swift, a principal and shareholder with Brown & James, has been invited to join the Council on Litigation Management. The council is a nonpartisan alliance of corporations, insurance companies, law firms and service providers. n Willie Epps Jr., a partner at Shook, Hardy & Bacon, was appointed chair of the Federal Practice Committee for U.S. District Court for the Western District of Missouri. The committee suggests changes to local rules or procedure, undertakes special projects at the request of the chief judge and works with the court in matters to improve the administration of justice.

n Dunn & Davison of Kansas City announced that Andrea Martinez has joined the firm as an associate in its immigration law group. Her focus Andrea Martinez is immigration law and international transactions. Before entering private practice, Martinez served as a law clerk to Judge Eric Bruggink at the U.S. Court of Federal Claims in Washington, D.C. n Becky Finch Jernigan has joined Midwest Litigation Services and Midwest Trial Services as a client service representative. She most recently worked at Missouri Lawyers Media. Based in St. Louis, Midwest Litigation Services provides legal support and trial technology and support capabilities nationally.

January 31, 2011

M i s s o u r i L aw y e r s We e k ly

‘Failure to warn’ defense fails Supreme Court overturns defense win in case against Ford By Kelly Wiese

kelly.wiese@molawyersmedia.com

The Missouri Supreme Court reversed a lower court’s ruling for Ford Motor Co. in a product liability case and clarified a conflict in the law on what plaintiffs must do to pursue failure to warn claims. A driver sued Ford, alleging the front seat of her Ford Explorer was defectively designed and not rigid enough when her seatback collapsed in an accident, leaving her paralyzed. Jeanne Moore and her husband also said Ford should’ve warned her that the seat could collapse during a crash because of her 300-pound weight. St. Louis County Circuit Judge Mark Seigel granted the defense motion for a directed verdict on her failure to warn claims, and the jury eventually returned a defense verdict on a remaining claim for defective design. The result was a $2.5 mil-

lion defense win, which ranked in the top 10 in 2008 by Missouri Lawyers Weekly. The state high court on Tuesday in a 4-2 decision reversed, ruling that Moore offered enough evidence to submit the warning issue to a jury, and sending the case back to the circuit court for a new trial. The court majority, in a decision written by Judge Laura Denvir Stith, said the jury should’ve been able to consider whether the seat became unreasonably dangerous when it didn’t include a warning that it was more likely to collapse in rear-end collisions when someone who weighs as much as Moore was using it. “Ford has not cited any authority that the difficulty of phrasing an adequate warning excuses the failure to give any warning,” the majority wrote. The court also said the jury’s rejection of the defective design claim doesn’t preclude a failure to warn claim, as a properly designed item can become dangerous if warnings are lacking. The court upheld the judge’s rulings that allowed Ford’s expert testimony and restricted the plaintiff’s cross examination. Randy Rhodes, the Moores’ attorney,

said the ruling is a win for his clients but also for other plaintiffs bringing failure to warn claims. Before this ruling, he said, Missouri caselaw was in conflict on failure to warn claims. “It’s actually a very broad and important decision in Missouri product liability law,” said Rhodes, of Douthit, Frets, Rouse, Gentile & Rhodes in Kansas City. Dan Ball, of Bryan Cave in St. Louis, who represented Ford during oral arguments, didn’t return a call seeking comment by press time. The Missouri Supreme Court had issued a ruling in 1992, Arnold v. IngersollRand Co., that a plaintiff must show that an adequate warning would’ve altered his behavior. The case was retried and then appealed to the Eastern District, which issued an alternate interpretation in 1995, holding that a plaintiff can’t say a warning would’ve changed her behavior because that calls for speculation. The result was that plaintiffs could be stymied by defense motions in failure to warn claims no matter how they proceeded. As Judge Stith put it in the ruling, “This creates a ‘Catch-22’ in which the plaintiff

must prove what she would have done had a warning been given to prove causation, but evidence on this issue must be precluded as speculative.” So, the court said, in Missouri there’s a presumption that a plaintiff would’ve heeded an adequate warning had one been given. Then if the defense wants to challenge that presumption, the plaintiff can offer speculative evidence that she would’ve followed a proper warning, and the jury can sort it out. Rhodes said many attorneys overlook failure to warn claims, but he has found them effective and said perhaps more lawyers will raise them now that the high court has clarified the rules. Chief Justice William Ray Price Jr. wrote a dissenting opinion, holding that Moore didn’t spell out where and how Ford should have issued such a warning. In Missouri, he said, plaintiffs should be required to show what warning would have prevented the danger in question. “To require anything less invites not only a roving jury instruction, but the danger of subjecting a manufacturer to liability for failing to do the impossible,” Price wrote. MO

authority that the diﬃculty of phrasing an adequate warning “Ford has not cited any excuses the failure to give any warning. ” — Judge Laura Denvir Stith

SHER CORWIN IS PLEASED TO ANNOUNCE THE ADDITION OF Michael Gross, OF COUNSEL

Ann Phillips Corrigan, OF COUNSEL

Ann Phillips Corrigan has represented clients in a wide range of civil and business litigation during the past twenty years. She is admitted to practice in Missouri and Illinois and will be available to provide all types of civil litigation services to clients. She can be contacted via email at acorrigan@shercorwin.com

Michael Gross has practiced law in St. Louis since 1972. He is admitted to practice in Missouri and Arizona. Michael is included in the current Best Lawyers in America ® 2011 and Missouri-Kansas Super Lawyers listings in the area of Appellate Law. He can be contacted via email at mgross@shercorwin.com

LegalCalendar

Thursday, Feb. 3

SLU Law presents Author Stephen Wermiel, “The Creation of Justice Brennan: Liberal Champion” Location: Morrissey Hall, Room 02 Time: Noon - 1 p.m.. SLU Law presents Surrogate Decision Making and the Confidentiality of Health Care Records Location: William H. Kniep Courtroom Time: Noon - 1 p.m. WashU Law presents Bryan Stevenson, “Poverty, Incarceration, and Injustice in America” Location: Anheuser-Busch Hall, Bryan Cave Moot Courtroom, No. 310 Time: Noon

Monday, Feb. 7 - Tuesday, Feb. 22

BAMSL 2011-2012 Election Nominations Location: 720 Olive St., Suite 2900 Time: 8:30 a.m., Feb. 7 - 5 p.m. Feb. 22

Tuesday, Feb. 8

SLU Law presents Barbara Seely, “Recent Developments at the EEOC” Location: Room 303 Time: Noon - 12:50 p.m. Missouri Court of Appeals Western District Oral Arguments Location: UMKC School of Law, E.E. “Tom” Thompson Courtroom Time: 9 a.m.

January 31, 2011

Wednesday, Feb. 9 to Tuesday, Feb. 15

ABA Midyear Meeting Location: Atlanta Contact: ABA Meetings and Travel Department, 312-998-5870 or abameetings@staff.abanet.org

n CLE Schedule Tuesday, Feb. 1

Friday, Feb. 11 - Saturday, Feb. 12

NALS Winter Membership Meeting Location: Boymont Inn & Suites, Springfield Time: 12:30 p.m., Feb. 11 - 4 p.m., Feb. 12 Fee: $70 members; $75 nonmembers Contact: Georganne Hallemeier at 417345-9446 or ghallemeier@pfjmlaw.com

Saturday, Feb. 12

MATA presents Project XOXO Annual Valentine Event Location: Old Courthouse, 11 N. Fourth St., St. Louis

The ABA presents Selected Issues in Foreclosure Defense Location: Audio webinar and teleconference Program: Noon - 1:30 p.m. Fee: $135; $75 additional listener CLE credit: 1.8 hours

Tuesday, Feb. 8

Shook, Hardy & Bacon presents Corporate Counsel Institute Location: Westin Crown Center, Kansas City Time: 8:50 a.m. - 3:30 p.m. Fee: Free CLE credit: 5 hours Contact: Danae L. McCracken, dmccracken@shb.com

Thursday, Feb. 10

Thursday, Feb. 17

Lawyers Association of St. Louis and Mound City Bar Association present Black History Month Dinner Reception Location: The Westin St. Louis Time: 5:30 p.m. Contact: Jim Susman, 314-991-5297 Lawyers Association of Kansas City 75th Anniversary Dinner Location: Aladdin Hotel, 1215 Wyandotte, Ks. Time: 6 - 9 p.m.

The ABA presents Hot Topics in Diversity Law Location: Audio webinar and teleconference Program: 3 - 4:30 p.m. Fee: $125; $75 additional listener CLE credit: 1.8 hours

Thursday, Feb. 10/Friday, Feb. 11

The Missouri Bar presents Lessons Learned from the Trials of the Century, featuring Todd Winegar Location: Renaissance Hotel-St. Louis Airport/Holiday Inn CoCo Key Resort, Kansas City Program: 9 a.m. - 4:45 p.m. Fee: $275 CLE credit: 7.2 hours, including 1 ethics hour

Friday, Feb. 11

UMKC CLE presents Solo & Small Firm Workshop: Finding, Saving & Protecting Information Sponsor: UMKC/Continuing Legal Education Location: Room 04, UMKC School of Law Times: 1:30 p.m. - 5:30 p.m. Fee: $85 CLE Credit: 4 ethics hours

Thursday, Feb. 17

The ABA presents General Counsel Forum Location: Audio webinar and teleconference Program: 4:15 - 5:15 p.m. Fee: $125; $60 additional listener CLE credit: 1.2 hours

Tuesday, Feb. 22

The Tech Contracts Handbook

ere's a clause-by-clause "how-to" guide on software licenses and technology services agreements, covering all the key issues and providing negotiation tips and sample contract language. In plain English, the book guides you through Internet and e-commerce agreements, warranties, indemnities, open source software, service level agreements, non-disclosure agreements, limitations

of liability, software escrow, data security, copyright licensing, and much more. "One of the best and most thorough resources available...a must read for anyone associated with technology licensing." - H. Ward Classen, Deputy General Counsel, Computer Sciences Corp. "An invaluable deskbook resource." Ian Ballon, Executive Director, Stanford University Law School Center for ECommerce.

M i s s o u r i L aw y e r s We e k ly

n Contacts American Bar Association: 800285-2221 The Missouri Bar: 888-253-6013 Bar Association of Metropolitan St. Louis: 314-421-4134 St. Louis County Bar Association: 636-394-9390 Jefferson County Bar Association: 636-931-5477 St. Charles County Bar Association: 636-441-5400 Boone County Bar Association: http://www.bocomobar.org/ Springfield Metropolitan Bar Association: 417-831-2783 Kansas City Metropolitan Bar Association: 816-474-4322

Thursday, Feb. 24

St. Louis County Bar Association presents Finding and Preserving Electronic Evidence Location: Crowne Plaza, Clayton Program: Noon lunch; 12:30 - 1:30 p.m. program Fee: $30 members, $40 nonmembers CLE credit: 1 hour

Friday, Feb. 25

SLU Law presents The Aftermath of Padilla v. Kentucky Location: William H. Kniep Courtroom, SLU Program: 8:30 a.m., registration; 9 a.m. 3:15 p.m., program CLE credit: 5.1 hours Contact: Jessica Flier, 314-977-2702 or flierjh@slu.edu

Friday, March 11

UMKC CLE presents Solo & Small Firm Workshop: Ethically Getting Business Location: Room 04, UMKC School of Law Time: 1:30 a.m. - 5:30 p.m. Fee: $85 CLE Credit: 4 ethics hours MU School of Law presents 6th Annual Small Firm and Public Interest Expo Contact: Andrea Follett, 573-882-6444 or folletta@missouri.edu

March 30 - April 1

UMKC CLE presents Basic Civil Mediation Training Location: UMKC School of Law, Kansas City, MO Time: 8:30 a.m. - 4:00 p.m. Fee: $900 CLE Credit: Mo. CLE: 21.7 with 1.2 ethics

Thursday, April 7

UMKC CLE presents Family Law Symposium Location: Crowne Plaza Hotel, Clayton, MO Time: 8:30 a.m. - 4:50 p.m. Fee: $225 CLE Credit: 7 hours, with 1 ethics hour

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KCMBA presents Update on New Rule 17 & Winning at Mediation Location: KCMBA Headquarters Program: 11:30 - 12 p.m. registration; Noon - 1:30 p.m. seminar Fee: $55 member; $85 nonmember CLE credit: 1.8 hours

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Practice, Practice { }

January 31, 2010

M i s s o u r i L aw y e r s We e k ly

The business of law made practical

IN THIS MONTH’S SECTION • THE PROS & CONS OF GOING SOLO Should you hunker down in a home oﬃce or head to work? Page 8

Parse the perks and drawbacks of narrowing your practice area. Page 10

Pick the right business designation for your law ﬁrm. Page 11

Peruse the software and computer specs that every solo needs. Page 12

THE PROS & CONS OF

GOING SOLO W

Springfield solo attorney David Ransin has considered joining up with another partner to make his practice more financially stable, but he knows that a partnership can often sour a friendship. “Those who have been successful at creating small firm partnerships are those lawyers who became partners first and then became friends,” he says. Photo by Mark Shiefelbein

By David Baugher

Special to Missouri Lawyers Weekly

ho doesn’t want to rule their own roost or chart their own destiny? It’s not unusual for even the most satisfied lawyer to wonder, if only for a few moments, what it would be like to be the only person on the nameplate. Here, we explore the pros and cons of striking out alone.

Why go solo?

Power over case selection. For the solo, there is no boss or intake committee making decisions on client selection. It’s all on you. Mary Kay Lutz, a solo general practitioner for 12 years, says the extra level of control means you can widen or reduce your selection criteria to your heart’s content. “The biggest advantage is being able to choose your cases without partners or shareholders,” says Lutz, of California, Mo. “When you are a solo, you have complete control over the types of cases that you take.” Your own profits. One advantage to solo life is that your talents benefit you, not an organization. James Wirken, of Kansas City’s McDowell, Rice, Smith &

Buchanan, has experienced both solo and firm life. It often occurs to productive lawyers that they could be supporting themselves rather than less-productive partners or associJames Wirken ates, he says. “If you make money, you get to put it in your pocket. I think a lot of people who have slaved away in larger settings look at the dollars they produce for the firm and how much they are taking home out of it, and they scratch their head saying, ‘Hmm, I wonder if I can do better on my own.’” Flexibility. No one above you in the command structure means no begging for time off for a football game or fishing trip. For those tired of clocking in on someone else’s schedule, the appeal of solo life can seem alluring indeed. Self-employment is the ultimate flextime. “If you decide you want to leave the office early, you just leave the office early,” Wirken says. “You decide the next day you are going to come in late, then come in late.” The ability to be a ‘somebody.’ It may sound a bit corny, but self-employment has certain intangible benefits, especially outside of big cities. “You have the name

recognition. You own the firm. You are thought of as an entrepreneur,” Wirken says. “In small communities, you could be a pillar of the community instead of just being someone’s employee.” No more infighting. Every organization suffers from some amount of intramural sniping. If you have little tolerance for office politics, John Olmstead, a St. Louis-based law firm consultant, says there’s an easy solution. Get your own office. “Some folks just don’t work well in a double harness and don’t pull well with another horse,” he says. “Sometimes it takes 30 years to realize that. Sometimes folks realize it sooner.” No bureaucracy. Need a new printer? Buy one. Need a new assistant? Hire one. There are no requisition forms, no committees. Solos may retain the headaches of making decisions, but they forego the bureaucracy. David Ransin, a Springfield solo who focuses on vehicular personal injury, says the freedom to experiment can be a real plus. Recently, he decided to change an office procedure during a call to staff on the way in to work. “It just came up during the discussion and I said, ‘You know what, let’s change this and do it differently,’” he says. “I don’t have to go anywhere and talk to anyone else. I can just say, ‘You know what, let’s give this a try.’”

Room for a partner? The happy medium between going it alone and seeking the security of the firm is obvious: partnership. Ransin has thought about taking on partners to smooth out the rough financial patches from time to time. Yet “I have seen some remarkably good friendships destroyed when friends became partners,” he says. “Those who have been successful at creating small firm partnerships are those lawyers who became partners first and then became friends.” The American Dream. Win or lose, it’s all yours. “If I do something brilliant, I don’t have to share the credit,” Ransin says. “If I do something dismally stupid, I own it as well and I don’t have to apologize or answer to anybody.”

Why stay in a firm?

Multiple perspectives. At a firm, there are always others available to brainstorm. That’s something Lutz misses. She suggests solos find other solos from whom they can get advice. “When I was in a partnership, it was very nice to be able to bounce ideas off of a partner and to be able to get their input based on their experience and knowledge,” Lutz says. [ SE E PRO S/CO N S O N PAG E 8]

{Practice, Practice} Firms can back you up 8

[PROS / CONS F ROM PAGE 7 ]

Paid vacation. Vacations may be at your discretion in the solo world, but they are also on your dime — and bills don’t take holidays. “You’d better be careful, or the overhead will eat you up,” Wirken says. “The overhead eats a big country breakfast, an all-you-can-eat buffet and a dinner fit for a king.” Backup. Covering arrangements are a must for the solo. Ben Keller, the partner in charge of Lathrop and Gage’s Clayton office, says they come built-in to firm life. Ben Keller “I’m able to take a vacation without feeling guilty,” he says. “There are people that pick up the slack. My clients know that I’m gone, and they know who to call here to take care of their stuff. ” Better hours. Before you leave the comfort of your firm, know you may find you are trading 9 to 5 for sun up to who knows when. Self-employment can mean long hours. “If somebody’s working normal hours and they go out on their own, they are going to find that they are working at least a third more than they were,” Wirken says. Support for clients. Firms have one thing few individuals can provide for

clients: true 360-degree service. A firm may have more legal experience in a multitude of practice areas. “When there’s a labor issue, I have labor help here,” Keller says. “When there’s a complicated tax problem, I have tax support. I have the expertise here to back me up on things that my clients need without my feeling like I’m in uncharted waters or, worse, in an area in which I really don’t practice.” Support staff. Yes, you can give up firm life and all the troubles it brings. But you are giving up something else as well — administrative staff. Some solos can afford to hire help, but those who can’t must be prepared for all sorts of tasks. Keller begins to list them: “The billing, the collection work, the statistical analysis, the buying of supplies, reviews for the help, making sure we’ve got all of our OSHA stuff in compliance.” At his firm, other people handle those matters, “which allows me and the others to do what we do best, which is practice law.” Money. One can debate the exact amount, but going out on your own takes cash. Those who work on contingency or are leaving with no client base should think hard about their decision. “That largely depends upon the practice,” Olmstead says. “We’ve always said that for a traditional practice, you ought to have three to six months of cash flow to pay the bills. But it depends. I’ve had firms in the past that it took two years before they were able to take draws.” MO

January 31, 2010

M i s s o u r i L aw y e r s We e k ly

HOME VERSUS OFFICE

Where should you work? By David Baugher • Special to Missouri Lawyers Media The opportunity for solos to work out of their own home offices has never been greater. The advance of technology has made it easier to abandon high-priced space in a strip mall or office building and turn that finished basement or spare room into your place of business. Still, it’s a big decision and one that should be considered carefully. What are some of the factors to consider when deciding where to set up your HQ?

ReaSonS to StaY hoMe

Money.

By far the biggest reason one might choose a home office is it’s easier on the wallet. Turning where you live into where you work can yield significant budgetary rewards, says Mitchell Moore, a Columbia general practitioner with a home office. “The big advantage is that instead of Mitchell Moore paying rent I’m

building equity. It kills two birds with one stone,” Moore says. “My wife and I wanted to buy a house, and it seemed like every time I showed any kind of profit my landlord wanted to raise my rent, so that got old.”

Social responsibility.

Real benefits to the environment accrue from working at home. Not only does Moore save gas by not driving to work, but also, he likes to brag, he has a smaller carbon footprint than the average bicycle rider. He’s also helping to clean up his community in a different way. “Most neighborhoods,

{Practice, Practice} everyone gets up and leaves at 8 o’clock in the morning, leaving the neighborhood unguarded,” he says. “You’ve got an extra pair of eyes out here all the time, and if there is anyone doing anything they shouldn’t, they’ll get seen.”

3 4

Family.

Quality time with loved ones can be tough when mom or dad is always at the office. Not so if the office is at home. Moore and his wife raised a nephew for a number of years. The home office made that easier. “When he’d get off the bus, I could be there for him,” Moore says.

Good starting place.

Home offices can be a temporary solution until your practice gets off the ground, says Carolyn Elefant, a Washington, D.C., lawyer and author of the My Shingle blog for solos. They can also keep you out of potentially problematic lease commitments. “One of the mistakes new lawyers make is that they are so desperate for cash to pay rent they might take some cases that are dogs and they are still stuck with them a year later when they are starting to get different matters,” Elefant says. “If you start from home, you can pretty much pick and choose as you go, and so you can focus on building better-quality clientele from the beginning.”

Location.

Dennis Donahue, an Olivette intellectual property attorney, says he plans to get an office this year. Still, he doesn’t plan to completely give up his home office. For one thing, he likes the suburban location. Not everyone lawyers serve are downtown, he says. “If you have an office out on I-170 or I-270, that’s where your Dennis Donahue clients are,” he says.

Mobility.

If you have an office, there’s a tendency to have clients come to you. That’s not always the best option, Donahue says. He says working from home encourages him visit his clients. “I love going to my clients’ space,” he says. “I love seeing where their facilities are at and what they are about. That’s part of the relationship.”

Reasons to head to the office

Credibility.

You may not mind stepping over toys or walking past crying babies to get to your desk, but your clients might. Even if the house is clean and the workspace is well-ordered, some individuals persist in believing anyone who works from home must be somehow less professional, says Matt Wilson, a consumer defense attorney in Columbia. “The majority of my clients are not concerned with whether I have an office,” Wilson says. “But there is a significant minority, maybe 30 percent, who really want to see you in an office before they’ll listen to what you have to say.”

Motivation.

Elefant says she recently saw a study that showed that attorneys who shared space with another lawyer had earnings that outpaced both office-based solos and

those who worked from home. “There are a couple of explanations. The first one is that people refer cases back and forth when they are working in a space,” Elefant says. “The other theory is that a lot of times people work better when they are around other people. It’s mutual motivation when your officemate has a stream of clients. You feel like a loser and want to step it up.”

Proximity.

If you need to be near courthouses or even networking events, the traditional office presents an advantage. “There’s an added hurdle associated with leaving the house, going 45 minutes into the city. Whereas if you are already there in your office, it’s just a matter of going down the street,” Elefant says.

January 31, 2010

Productivity.

Homes are good for lounging with the family but not always conducive to efficiency. Less distraction and the feeling that comes from being at the office means you are essentially forced to work. Wilson, a former denizen of a home office who eventually relocated to traditional office space, says he gets more done while at work. “I had forgotten that you can be more productive away from home,” says Wilson, a father of three young children. “I relearned that when I moved out.”

Safety.

Some practices don’t lend themselves to home offices. If you handle domestic cases that may bring hostile parties together for tense negotiations, your living room is not always the best place for them to meet. Criminal matters

M i s s o u r i L aw y e r s We e k ly

present an even bigger problem. “I wouldn’t want a burglar or murderer coming into my house,” Moore says. “But I don’t do that kind of work.”

Quick appointments.

Those who don’t wish to host clients at home can acquire temporary space elsewhere on a meeting-by-meeting basis. But that can present problems if the need is immediate. “It’s also hard to have somebody come in on the spot,” Elefant says. “If you have someone call and say ‘I need to speak to someone right now about my case,’ if your calendar is open, you can just say, ‘Come on in.’ If you are in a home office, you may have to rent a room or get space. It can make it more difficult to take those spot appointments.” MO

{Practice, Practice}

January 31, 2010

M i s s o u r i L aw y e r s We e k ly

Broad versus narrow

The benefits of general and boutique practices By David Baugher

Special to Missouri Lawyers Weekly

ttorneys don’t officially specialize in Missouri, but they do often gravitate toward a given area of law. Even many generalists tend to focus more on one area than on others. But whether it’s for profit or passion, concentrating on one area of law is a big decision. What are the arguments for broadening or tightening your practice area?

Broad: You can be more selective of clients.

Both generalists and those who focus on one area can choose their clients, of course, but boutique practitioners may find themselves choosing more based on the type of case rather than the client. Brian Mense, a Warrenton solo generalist, says he thinks he can be choosier because of his broad practice. “Being a general gives me a higher opportunity to be picky on who I will actually deal with — simply because you can only be picky when you have enough people to choose from,” Mense says.

Narrow: You can develop a more regular client base.

With some niches, a regular client base can provide security for attorneys. Before he began focusing on issues related to veterans and seniors, Richard Vouga was a general practitioner. “For me, developing that kind of practice was harder than developing the one I have now,” says the Chesterfield solo. “I guess I could never put a handle on how to market and keep business coming in the door on any sort of regular basis. It was much more of a rollercoaster.”

Broad: You can increase your stability by working at a firm.

There are ways to smooth out the bumpy road in general practice, of course. Robert Denlow, a partner at Clayton’s Denlow & Henry, says that for those who choose a firm rather than solo work, the potential instability of generality is less of a problem. “In a firm, someone always has the top of the trough and someone the bottom so it averages out,” he says. “When you are an individual, that’s much harder to do.”

Narrow: You can save on advertising.

When Steve Scott, a Columbia-area attorney, began to focus his practice on representing landlords, he started to notice the unexpected promotional power of a narrower practice. Every at-

torney trades on a good reputation, but boutique practitioners can leverage the power of word of mouth more effectively because they often market to a small, often tightly Steve Scott knit segment of the population, making broad-spectrum advertising efforts less necessary. “I used to have a display ad in the Yellow Pages,” Scott says. “The last couple years, I’ve cut back to a little in-line box that indicates that I specialize in landlord services. The word-of-mouth-factor is incredible. Virtually every new client that comes in tells me, ‘Oh, I was talking to a friend of mine who has some properties, and he told me to come see you.’”

Broad: You can do it all for a client.

Broad: You can enjoy the country life.

Geography can mean a great deal when deciding whether to go deep or go wide. A general practice may be the only answer if you want to set up shop in a lightly populated region. “I have to be general because I am in a rural area,” says Mense, the Warrenton lawyer. “If I try to specialize, I would not have the population pool to concentrate in certain specific areas.”

Narrow: You can be the best.

A good attorney is a good attorney, but becoming well-versed in one part of the legal arena can be a big boost to both your confidence level and your clients’ view of you. “The advantage of a niche is that you can rise to the top of that niche area,” says Denlow, who focuses his work on eminent domain issues. “It’s a great feeling knowing you are really in full command of that area of the law.”

James Owen, an attorney with Springfield-based Hosmer King & Royce, is something of a generalist. That can be a good way to build loyalty, he says, as clients feel confident bringing multiple matters to you. “Once a client comes to you, they are going to come to you for everything,” he says. “Some people just tend to have a lot of issues. If they need a will, they come to you. If they want a divorce, they come to you. If they want to set up an LLC, they go to you. If they have a traffic ticket, they go to you.”

Broad: You can be a people person.

Narrow: You can go on autopilot sometimes.

Narrow: You can reduce research.

Dealing with the same kinds of cases often means dealing with the same issues and the same forms. From an efficiency standpoint, this can present important advantages over a general practice. More automation means more cases, more money and less time spent wrangling with issues at the office. “We’ve developed some automated procedures to handle our cases, and the last couple of years we’ve been filing more than 600 cases a year,” Scott says.

Broad: You can bide time until a transition.

A niche career can take time to build. Even if you eventually want to focus, a general practice can be a good way to pay the bills as you build your client base in a given area of law. Scott, who gradually moved from a general practice to his more concentrated one of representing landlords, says it took years for him to work up to his current case level. Meanwhile, he says, he gained valuable experience from working on a wider variety of cases.

Narrow: You can, in some areas, shield yourself from downturns.

A sour economy can be as tough on attorneys as it is on everyone else. But not all practices are affected equally. Some legal niches can be sheltered from economic headwinds. In fact, some may even thrive during recessions. “This area, I think, is particularly good because there is never any shortage of landlords having problems with tenants,” Scott says. “That’s been particularly true during the past couple of years with the economy being bad and people losing their jobs. They can’t pay their rent.”

A niche practice may mean an attorney finds him or herself dealing with the same client or type of client again and again. That can have advantages, but it can feel confining for those who want to meet a wider segment of society. “You deal with a variety of different people, and I love to work with people,” Mense says. “It’s probably one of the biggest benefits I have in a general law practice. I get to work with all varieties of people from all social classes and knowledge levels.” Generalists often must work on cases they don’t do every day. That means time-consuming sessions hitting the law books when a new or unusual matter comes up. Attorneys Robert Denlow who focus on a given area are less apt to require a refresher course with each new client. “You don’t have to say, ‘I need to go research this and come back a week later,’” Denlow says. “Typically, you’ve already come across this situation in the past.”

Broad: You can relish the challenge.

An area of concentration may provide benefits, but also it can lead to stagnation. For those who like a wide-ranging diet of matters, only the buffet of the generalist will do. “What I like most about the general practitioner aspect is the variety and the challenge associated with the uniqueness that occurs working from various bases,” Mense says. “It’s the challenge because of the breadth.”

Narrow: You can follow your passion.

Practitioners might find they like certain cases more than others. That’s a natural thing, and steering your practice in that direction can allow you to pursue only those cases for which you have a passion. “Choose something you like,” Denlow says. “Choose something you look forward to coming to work in the morning to do.” MO

MissouriLawyers w w w. mol a w ye r sme d i a .com

S P E C I A L

2 0 - P A G E

WEEKLY

P U L L O U T

S E C T I O N

Verdicts Settlements The Top

of 2010

DEe-FENSE, Dee-fense making a stand in, of all places, St. Louis

Page S2

ALSO INSIDE LAWYERS FARE JUST FINE OUTSIDE OF THEIR HOME COUNTIES Page S17

The year’s biggest plaintiff wins Pages S3-5

2010’s winningest plaintiff lawyers and firms PAGE S7

Winning lawyers share strategies The year’s biggest defense wins Pages S6

Pages S8-9

2010’s winningest defense lawyers and firms PAGE S12

SEE: DATABASE ENTRIES BY COUNTY PAGES S10-11 DATABASE TRENDS PAGES S14-15

TOP

2010

January 31, 2011

M i s s o u r i L aw y e r s We e k ly

DEFENSIVE STAND St. Louis no longer dominant turf for big plaintiff wins

By Kelly Wiese

kelly.wiese@molawyersmedia.com

he circuit court in St. Louis — long perceived as one of the best Missouri courts for plaintiffs to prevail — was home to three of the top five defense verdicts in 2010. At the same time, the urban circuit claimed just one of the top 20 plaintiff victories, and that case was a class action settlement, not a trial. Medical malpractice cases also continued their trend of becoming harder to find among plaintiff success stories in the wake of 2005 state law changes restricting injury suits. Those are some of the conclusions to be drawn from Missouri Lawyers Weekly’s annual review of major verdicts and settlements, as reported based on staff research and reader submissions. Going to trial in St. Louis doesn’t inspire fear these days, said defense attorney Robert Rosenthal, whose $5 million defense win in a medical malpractice case ranked second statewide in 2010. “We’re ending up with, from a defense perspective, better jurors,” said Rosenthal, a principal with Brown & James in St. Louis. He explained that in several recent tri-

als he has handled, the ultimate jury was more educated than city juries of many years ago and was willing to decide a case based on evidence, not sympathy. Brown & James overall also had far more defense wins last year than any other firm — 19, nearly four times as many as the next winningest firm.

More spread out

But big verdicts haven’t disappeared, they’ve just turned up in more circuits. Plaintiff’s attorney Kirk Presley handled a case last year in which a Platte County jury returned a nearly $12 million verdict for the families of two men who died and a man who was injured in a 2007 hot water pipe explosion at Kansas City Power & Light’s Iatan power plant. That result followed an $8 million award earlier last year to the family of a 2-year-old permanently injured in a rear-end crash. At the time, that crash verdict was the largest ever in Platte County, which is near Kansas City, according to the firm and Missouri Lawyers Media’s V&S Search database. But the record stood for less than five months. Presley believes Platte County is just a microcosm of what’s happening across the state as big cases get spread around to a wider variety of courthouses.

“Now those same significant cases are being heard in counties that have not historically had a lot of exposure to the magnitude of those claims,” said Presley, of Monsees, Miller, Mayer, Presley & Amick in Kansas City. Under the old system, he said, when venue was more flexible, larger courts tended to get more big-ticket cases, so people didn’t see multimillion-dollar verdicts in suburban and rural courts. But that doesn’t mean jurors wouldn’t grant them given the right facts, just that they didn’t get the chance to hear them, he said. Presley said lawmakers who pushed for limiting venue options were fooling themselves if they thought nonurban counties wouldn’t return sizeable verdicts. Still, it’s taking defense attorneys a while to adjust their thinking as they weigh the risks of taking some cases to trial rather than settling them, he said. Both Presley and Rosenthal said medical malpractice cases are timeconsuming and expensive for both sides to prepare, and given the limits on recovering noneconomic damages, lawyers are selective in accepting such cases anymore. Missouri Lawyers reported on 21 medical malpractice verdicts or settlements in 2010, down by nearly half from 39 the previous year.

Notable cases

The top plaintiff win of 2010 was a $60 million class action settlement of a lawsuit against A.G. Edwards alleging the brokerage firm inappropriately received kickbacks from some mutual fund groups and didn’t tell clients. The biggest jury verdict last year among cases the newspaper reported was a more than $35 million award from Boone County jurors in a wrongful death case. In that case, attorneys used a rarely applied legal doctrine to walk away with a big win in a truck fatality case. The technique, offensive nonmutual collateral estoppel, allowed jurors to enter the trial with certain assumptions but oblivious to main facts in the case, so trial was limited to a conversation on the damages, excluding issues of liability. The biggest defense win was a premises liability case involving a hospital from St. Louis County, in which the plaintiff had demanded $17 million in pretrial discussions. A neurosurgeon sued after he allegedly slipped and fell at St. Luke’s Hospital where he worked, suffering injuries that he claimed ended his career. Defense attorney Timothy Gearin, of Armstrong Teasdale in Clayton, said an employee was working to clean up a spilled liquid when the surgeon came upon it and slipped. MO

“

We’re ending up with, from a defense perspective, better jurors.

”

Robert Rosenthal, a principal with Brown & James in St. Louis

TOP

2010

January 31, 2011

M i s s o u r i L aw y e r s We e k ly

PLAINTIFF WINS IN 2010

$60 million

Contracts Bachman v. A.G. Edwards Inc.

St. Louis City

Winning attorneys

Opposing counsel

$56 million

Business U.S. Bank v. Elsesser

U.S. District Court, WDMO

Winning attorneys

Opposing counsel

St. Louis County

Winning attorneys

Opposing counsel

Settlement

Municipal law City of University City v. AT&T Wireless Service

$35.25 million

Wrongful death Gibbs v. Centra Inc.

Boone County

Winning attorneys

Opposing counsel

Robert Koffman

Kenneth McClain, Danny Thomas, Jonathan Soper, Walter H. Bley, Gary Robb, Anita Robb

$30.13 million

State benefits Gerken v. Sherman

Cole County

Winning attorneys

Opposing counsel

$22.5 million

Motor vehicle collision Confidential v. Confidential

St. Louis County

Winning attorneys

Opposing counsel

Consumer fraud In re: H&R Block Inc. Express IRA Maketing Litigation

U.S. District Court, WDMO

Winning attorneys

Opposing counsel

U.S. District Court, WDMO

Winning attorneys

Opposing counsel

Settlement

Business Hallmark Cards Inc. v. Monitor Co. Group Limited Partnership

$11.75 million

Product liability McCool v. Black & Veatch Corp

Platte County

Winning attorneys

Opposing counsel

Abe Shafer IV

Kirk Presley, Andrew Leroy, Wally Bley, William McIntosh, Robert Henderson

$11.05 million

Public nuisance Owens v. Contigroup Cos.

Jackson County

Winning attorneys

Opposing counsel

Settlement

3 4

$55 million

Verdict

Bench Award

Settlement

$19.4 million Settlement

8 9

$12.5 million

Verdict

Angela Turner-Quiqless

Arthur Federman (mediator)

Bernhardt Drumm Jr.

Patricia Joyce

Ellsworth Cundiff (mediator)

Richard Dorr

Ortrie Smith

Jay Daugherty

Robert Blitz, Christopher Bauman, Ronnie White

Jeffrey Kalinowski, Richard Kuhlman, Kevin Rover, Brian Herman

Cathy Dean, Michael Foster, Richard Wilson, Wayne Moskowitz

John W. Hoffman, Douglas R. Sprong, Howard Paperner, John Mulligan Jr.

Michael Leadlove, Edward Downey, Mili Joseph, Bradley Ruskin, Michael Mervis

Deborah Greider, John Ammann

Norman E. Siegel, Daniel Girard

Type of Action

Caption

Court

11.

$10.15 million

Motor vehicle collision

Adams v. Timothy King

12.

$10 million

13.

$9 million

Contracts

14.

$8.8 million

Business

15.

$8 million

16.

$7.8 million

17.

Jean Paul Bradshaw, Jon Harmon

Winning Attorneys

Opposing Counsel

Oregon County Thomas Swindle

Ryan Bradley

Sam Spain, Thomas Magee

U.S. District Court, WDMO

Gary Fenner

Norman Siegel, Jack McInnes, Richard Paul III, Barrett J Vahle

Todd Graves, Edward Greim, Jay Varon, Melinda Levitt, Michael Naranjo, Eileen Ridley

Maritz Inc. v. Federal Insurance Co.

St. Louis County

Steven Goldman

Lawrence Friedman, Matthew Darrough, Megan Bauer

William Nussbaum

Rizzo v. Hendrick Automotive Group Corp. Inc.

U.S. District Court, WDMO

John Maughmer

Ralph K. Phalen, Mitchell L. Burgess, Keith Lamb

Randall Thompson, Robert Jester, Jessica Bernard

Product liability

George v. Johnson Controls Inc.

Platte County

Abe Shafer IV

Robert L. Langdon, Adam W. Graves, Richard Wray, Tracy Ferak, Phyllis Norman Adam Suroff

Class action

Tekampe v. Jay Wolfe Imports

Jackson County

Ann Mesle

Mitchell Burgess, Keith Lamb, Ralph Phalen, John Campbell, Erich Vieth, Tim Grochocinski, David Wasinger, William Robb, Gregory Aleshire, Teresa Grantham

Jerome Wolf, Teresa Ascencio

$7.6 million

Contracts

Monsanto Co. v. ConocoPhillips Co.

St. Louis County

John Kintz

James Bennett, Gabriel Gore, Jennifer Kingston

Jeffrey Parsons, John Reynolds, Ian Cooper

18.

$7.4 million

Legal malpractice

FDIC v. Lathrop & Gage

U.S. District Court, EDMO

Frederick Buckles

Douglas P. Dowd, Paul G. Lane

Kevin Oâ&#x20AC;&#x2122;Malley, Kevin Hormuth, David Niemeier, Peter Daniel, Brent Baldwin

19.

$7.3 million

Contracts

Aspenleiter v. ViraCor Laboratories

Jackson County

Edith Messina

Robert Thompson, Robert Hoffman, Sarah Swatosh

James Griffin, Kim Jones, Amy Fowler

20.

$7 million

Contracts

Integrated Sales Service Ltd. V. DMC Management Consultants Ltd.

U.S. District Court, WDMO

Greg Kays (Arbitrator)

Paul Herbers, Jim Glover

James Lawrence, Seema Chawla

V = Verdict

Consumer fraud In re: Pre-filled Propane Tank Marketing and Sales Practice Litigation

S = Settlement

B = Bench Award

A = Arbitration

Judge

Christopher Pace, David Oliver, Nick Kurt

Shelby Wilson, Craig Ledet, Bruce Hurley

Charlie Speer, Richard Middleton

Result

Confidential

Robert Thompson

John Aisenbrey, George Verschelden, Charles German, Daniel Blegen, Jeremy Suhr

Amount

David Domina, Louis Leonatti, Michael Kleffner, J. Kent Lowry, Carlton Callenbach

Mark Long

James G. Onder, James T. Corrigan, Carl Civella

Rank

Norm Siegel, W. Perry Brandt, Sarah Allgeier, Thomas Jackson

TOP

2010

January 31, 2011

M i s s o u r i L aw y e r s We e k ly

PLAINTIFF WINS IN 2010 Rank

Amount

Result

Type of Action

21.

Winning Attorneys

Opposing Counsel

$6.5 million

Employment

Jackson County David Byrn

Lyle Gregory, Jeff Bruce, Brian Franciskato, Daniel Hobart

Diane Peters, Virginia Murray

21.

$6.5 million

Personal injury

Owen v. Allied Systems Ltd.

Benton County William Corrigan (mediator)

John Page, John Anderson, Nicole Burlison, Dale Shipley

Paul Rechenberg, Amber Tuggle

23.

$6.28 million

Negligence

Edwards v. Gerstein

Cole County

Patricia Joyce

Steve Garner, Chandler Gregg, Jeff Mitchell, Dale Wiley

Joel Poole, Cheryl Schuetze

24.

$6.27 million

Wrongful death Bridgeman v. Huff

Ralls County

Robert Clayton II

Branson Wood III

Joseph Brannon

25.

$5.9 million

26.

$5.5 million

Personal injury

Confidential v. Confidential

Jackson County Confidential

Shawn Foster, Grant Davis

Confidential

Contracts

The Weitz Co. v. MacKenzie House, et al.

U.S. District Court, WDMO

Ortrie Smith

James Scott Kreamer, Dylan Murray, Sara Dick, Heath Hawk, Michael Callahan, Susan McGreevy

Andrew DeMarea, Heber Gonzalez

27.

$5.3 million

Condemnation

MHTC v. M&L Frozen Foods Inc.

St. Louis City

Mark Neill

Robert Denlow, Paul Henry

Paul Sterrett

28.

$4.75 million

Medical negligence

Confidential v. Confidential

Jackson County Ron Mitchell (mediator)

Aaron Smith, James Frickleton, Edward (Kip) Robertson III

Confidential

29.

$4.5 million

Clay County

Larry Harman

Grant Davis, Thomas Jones

James Yeretsky

30.

$4.2 million

Business

Halliburton v. Leidholdt

St. Louis County

Tom DePriest Jr.

Gary Sarachan, Drey Cooley, Sheila Greenbaum

Joseph Jacobson

31.

$4.03 million

Insurance

Magnuson v. Ramage

St. Louis County

Gary Gaertner Jr.

Edward Roberston Jr., Grant Davis, Shawn Foster

Lisa Wexelman, Robert Selsor

32.

$4 million

Dram shop

Confidential v. Confidential

Jackson County Richard McLeod (mediator)

David McCollum, Annette Griggs, Steven Streen

Paul Cowing

33.

$3.18 million

FELA

Walsh v. Burlington Northern Santa Fe Railway Co.

St. Louis County

James Hartenbach

Roger Denton

William Brasher

34.

$3.12 million

Premises liability

Confidential v. Confidential

Confidential

Christian Faiella

Confidential

35.

$3.1 million

Wrongful death Beth v. Confidential

Greene County Robert Horn(mediator)

Steven Harrell, Jim Frickleton, David Hall

Larry Tryl, Steve Snead

36.

$3 million

Wrongful death Kramer v. Koch

Jackson County John Torrence

Jim Hall

Brian Meyers

36.

$3 million

Product liability Confidential v. Confidential

Confidential

Joan Burger(mediator) James Lemonds, Andrea McNairy, Greg Roberts

Confidential

36.

$3 million

Motor vehicle collision

Smiley v. City of St. Louis

St. Louis City

Bryan Hettenbach

Ray Flojo

39.

$2.85 million

Motor vehicle collision

Herbert v. MHTC

Lincoln County James Holloran, Stan- Donald Schlapprizzi, James Hullverson, Paul Sterrett ley Grimm, Brendan Robert Ehrig, Joan Lockwood, Ryan (arbitrators) John Medler, Russell Watters

40.

$2.6 million

Employment discrimination

Hervey v. Mo. Dept. of Corrections

Jackson County J. Dale Youngs

David Lunceford, Jeff Bruce

Charles Henson

41.

$2.58 million

Motor vehicle collision

Burkhart v. Neil

Taney County

Kelly Parker

Steve Garner, Chandler Gregg

John Rahoy, Jim James, Jeremy Heslin

42.

$2.3 million

Motor vehicle collision

Adusumilli v. Christine Miller

St. Louis County

Maura McShane

Stephen Schultz, Joshua Myers

Victor Avellino, Daniel Wilke

43.

$2 million

Motor vehicle collision

Confidential v. Confidential

Franklin County

William Corrigan (mediator)

William Holland, Jeffrey Singer

Confidential

43.

$2 million

Motor vehicle collision

Confidential v. Confidential

St. Louis County

Confidential

William Holland, Jeffrey Singer

Confidential

43.

$2 million

Wrongful death C.H. Jr. v. M&D Freight Inc.

U.S. District Court, EDMO

Catherine Perry

Matthew Padberg, Michael Cady, Kurt Wolfgram

Jeffrey Suess

43.

$2 million

Wrongful death Lero v. Mace

Cass County

R. Michael Wagner

Stephen Bough, Kelly McCambridge

Randy Cain

43.

$2 million

Product liability Kay v. Sunbeam Products Inc.

U.S. District Court, WDMO

Nanette Laughrey

James Krispin, George McLaughlin

Stephen Moffett, Deborah Moeller

43.

$2 million

Class action

Hooper v. Advance America Cash Advance Centers of Mo. Inc.

U.S. District Court, WDMO

Nanette Laughrey

John Campbell, Erich Vieth

Lewis Wiener, Brendan Ballard, Kurt Williams

43.

$2 million

Class action

Frazier v. Elco Chevrolet Inc.

St. Louis County

Richard Sher (mediator)

John Campbell, Erich Vieth, David Wasinger

Roman Wuller, Christopher Hohn

43.

$2 million

Motor vehicle collision

Hoard v. Nate Apple Concrete Inc.

Cass County

R. Michael Wagner

Michael Yonke, Hans van Zanten

Lesley Renfro Wilson

51.

$1.97 million

Negligence

Berner v. Granite Construction Co.

St. Louis County

Maura McShane

James Godfrey

Jerry Wilding

52.

$1.8 million

St. Louis County

Barbara Wallace

Gerard Carmody, Kelley Farrell

Tracy Gilroy, Katherine Moore, Adam Pranschke

53.

$1.71 million

Property damage

Norfolk Southern Railway Co. v. Crown Power & Equipment Co.

Sullivan County

Gary Ravens

Rich McLeod, Jeff Heinrichs

Larry Tyrl, Dustin DeVaughan

54.

$1.7 million

Premises liability

Confidential v. Confidential

St. Louis County

Michael Calvin (mediator)

Donald Schlapprizzi, Linda Powers

Confidential

55.

$1.59 million

Business

Regions Bank fka Union Planters Bank, N.A. v. Healthstyle Products International Inc.

St. Louis County

Richard Bresnahan

Michael Daming, David Wasinger

Mark Goodman, Drey Cooley

56.

$1.5 million

Business

Penn v. Bayer CropScience

U.S. District Court, EDMO

Catherine Perry

Don Downing, Gretchen Garrison, Scott Powell, Bill Chaney

Mark Ferguson, Glenn Summers, John Hughes

56.

$1.5 million

Personal injury

Confidential v. St. Louis Pre-Sort

St. Louis City

Angela Turner-Quiqless

James Lemonds, Andrea McNairy, Greg Roberts

Thomas Buckley

56.

$1.5 million

Contracts

Wright v. Country Club of St. Albans

St. Louis County

Barbara Wallace

Steven Hamburg, J. Patrick Chassaing Russell Watters

56.

$1.5 million

Negligence

Kramer v. L.F. Crupp Construction Co.

St. Charles County

Jon Cunningham

James Oâ&#x20AC;&#x2122;Leary Jr., James Corrigan

John Schultz, Jason Moore

56.

$1.5 million

Negligence

Fountain v. Levering Regional Healthcare Center LLC

Marion County Michael Wilson

Shelly Dreyer, Michelle Boehm Oâ&#x20AC;&#x2122;Neal, Katrina Richards

Robert Craddick

61.

$1.4 million

Medical malpractice

Shaw v. Weed

Clay County

Larry Harman

Tim McDuffey, Kirk Presley

Paul Cowing

62.

$1.33 million

MMPA

Overbey v. Chad Franklin National Auto Sales North

Clay County

Anthony Gabbert

Douglass Noland, Thomas Mendel

Kevin Case

63.

$1.3 million

Motor vehicle collision

Confidential v. Confidential

Confidential

None

Robert Pedroli Jr.

Scott Harper, Daniel Wilke

(tie) (tie)

(tie) (tie) (tie)

(tie) (tie) (tie) (tie) (tie) (tie) (tie) (tie)

(tie) (tie) (tie) (tie) (tie)

Caption

Court

Holmes v. Kansas City Board of Police Commissioners

Wrongful death Confidential v. Confidential

Eminent domain City of Maryland Heights v. Heitz

Judge

Mark McCloskey, Patricia McCloskey

TOP

2010

January 31, 2011

M i s s o u r i L aw y e r s We e k ly

PLAINTIFF WINS IN 2010 Rank

Amount

Result

Type of Action

Caption

Court

64.

$1.27 million

Sexual harassment

Schaar v. State of Missouri

65.

$1.24 million

Negligence

66.

Winning Attorneys

Opposing Counsel

Lincoln County Dan Dildine

Jerome Dobson, Michelle Dye Neumann

Christopher Quinn

Erbe Inc. v. Metrotech Food Equipment Service Inc.

St. Charles County

Lucy Rauch

Bradley Hansmann, John Cooney

Jim Gottschalk

$1.2 million

Negligence

Loudermilk v. Northtowne Hyundai Inc.

Clay County

Anthony Gabbert

James Montee, Russell Purvis

Kevin Case, Joseph Welsh, Randi Helms, Barry Somlyo, Vincent O’Flaherty, Trent Church

66.

$1.2 million

Personal injury

Kingman v. Dillard’s Inc.

U.S. District Court, WDMO

Howard Sachs

Robert Kingsland, Jason Osteen

Staci Schorgl, James Maloney, Lynn McCreary

68.

$1.17 million

Contracts

Brooke Drywall of Columbia v. Building Construction Enterprises Inc.

Jackson County David Byrn

Danne Webb

Scott Long, Burke Robinson, Lawrence Grebel, Patrick Mickey

68.

$1.17 million

Business

D.D. Beal Investments LLC v. Mid-Missouri Bank

Jackson County Peggy McGraw

Thomas Larson, Scott Wissel

Jere Sellers, Brian Williams

70.

$1.15 million

Motor vehicle collision

Leach v. Bernat

St. Charles County

Ellsworth Cundiff (mediator)

Ryan Cox

Denis Burns

71.

$1.1 million

Negligence

CJL v. Walker

U.S. District Court, WDMO

Gary Fenner

Peggy Wilson

Andre Walker (pro se)

72.

$1.01 million

St. Louis City

Julian Bush

C. John Pleban, Lynette Petruska

Lynn Brackman

73.

$1 million

Negligence

Washington v. Confidential

Cole County

Confidential

Mark Ludwig, Rudy Veit

Edward Meyer

73.

$1 million

Motor vehicle collision

Evans v. First Fleet

McDonald County

Timothy Perigo

Edward Hershewe, Alison Hershewe, Hal Meltzer Patrick Martucci

73.

$1 million

Insurance

Lero v. State Farm

Cass County

R. Michael Wagner

Stephen Bough, Kelly McCambridge, Blake Heath

James Sanders, Allison Confer

73.

$1 million

Wrongful death Wiest v. Union Pacific

St. Louis City

Michael Mullen

David Damick, Jeff Bauer, Steve Garner

Mark Kurz, Dick Boyle, Mark Landman

73.

$1 million

Environmental

State of Missouri, ex rel. v. Premium Standard Farms Inc.

Jackson County Robert Schieber

Chris Koster, Joseph Dandurand, Jack McManus

Jean Bradshaw II, Rachel Stephens

73.

$1 million

Personal injury

Confidential v. Confidential

Jefferson County

Confidential

J. Brad Wilmoth

Confidential

73.

$1 million

Motor vehicle collision

Carlstrom v. Laminger

Camden County

None

Tim McDuffey

John Garrabrant, Dan Birdsong

73.

$1 million

Personal injury

Harlan v. APAC-MO Inc.

Lafayette County

Dennis Rolf

William Carr, Bryan White

Anthony Gosserand, James Slone

(tie)

(tie) (tie)

(tie)

(tie) (tie) (tie) (tie) (tie) (tie) (tie) (tie)

Eminent domain LCRA of St. Louis v. Dennis

WHAT A YEAR! INNOVATE COLLABORATE ADVOCATE FACILITATE NEGOTIATE

Armstrong Teasdale is a proud supporter of the 2011 Missouri Lawyers Awards and applauds all award honorees.

Armstrong Teasdale LLP 314.621.5070 / www.armstrongteasdale.com MISSOURI KANSAS ILLINOIS NEVADA SHANGHAI

LAWYER OF THE YEAR Amy Lorenz-Moser

Judge

LARGEST DEFENSE VERDICT Tim Gearin, Dave Ott and Maureen Bryan

TOP

2010

January 31, 2011

M i s s o u r i L aw y e r s We e k ly

Victorious lawyers reveal their strategies

Want to rack up your own wins? Read the inside story of some of the year’s legal tours de force By Allison Retka

allison.retka@molawyersmedia.com

o Norm Siegel, when it comes time to begin the tumultuous settlement process, common ground is the best place to start. Even if the case involves contentious issues and the two sides wildly differ on a settlement value, “we try to focus on things we can agree on,” said Siegel, a Kansas City attorney with Stueve Siegel Hanson. Leave numbers out of the picture and speak openly with opposing counsel about less contentious elements, Siegel said, such as the structure of the settlement or its non-monetary components. Building trust during the earlier, easier parts of a settlement will help you negotiate its thornier parts. Siegel is one of a handful of lawyers who secured the largest plaintiff and defense victories in Missouri in 2010, as reported to Missouri Lawyers Weekly. His leadership of two national class action suits brought in a combined $20.4 million in settlement dollars for consumers and nabbed the No. 7 and No. 12 plaintiff wins on the list. Below, other victorious attorneys reveal the strategies that helped them nab multimillion dollar settlements and verdicts, or successfully spare their clients from similarly hefty amounts.

Costly defense strategy pays off

In a wrongful death trial in New Madrid County, defense attorney Debbie Champion played an expensive game of “show-not-tell” that prompted a jury to clear her client of negligence.

In an attempt to prove that their wood was not to blame for a structure collapse that killed a man, Heartland Wood Products Inc. authorized defense attorney Debbie Champion to hire an expert to build an exact replica. Supplied photo

The client, Heartland Wood Products Inc., faced the claims over the death of Sikeston resident Lance Simmons. While constructing a home for his family, Simmons, 30, fell from a broken truss and died. His family alleged Heartland Wood Products supplied the wrong type of wood for the project and bore the fault for his death. Heartland Wood Products did admit that it supplied Simmons with the wrong grade of wood. But Champion countered that Simmons and his father bore the fault for departing from installation instructions and inadequately securing the truss. To prove this, Champion hired engineering expert, Kirk Grundahl, who constructed a replica of the accident scene in a warehouse in Wisconsin. Grundahl conducted experiments on the replica, and showed that if installed properly, the lower

grade of wood remained intact, even as his workers strolled along the truss and sat at its peak. Champion showed videos of Grundahl’s experiments to the jury. “It was a very expensive process to rebuild the entire frame of a house,” Champion said. When she first approached Heartland Wood Products with the idea for the re-creation, which ended up costing tens of thousands of dollars, the company’s leaders hesitated. “They met and met and met again,” she said. “Finally, they said, ‘Let’s get this done.’ “You have to make a decision as to what it’s worth to explain this to the jury.” The financial risk paid off for Champion’s clients, who were facing a $2 million last demand. The New Madrid County jury deliberated just over an hour before return-

ing with a defense verdict. They decided Lance Simmons was 50 percent at fault for his death and his father, James Simmons, was 50 percent at fault. Champion, who also successfully defended Dierbergs from a $1.2 million slipand-fall case last year, achieved the defense verdict while maneuvering around the always-difficult issue of directing fault towards a deceased individual loved and missed by his family. “There was not a minute where I didn’t realize that I was dealing with the legacy of… a man who was very loved,” she said. “But people make mistakes. We tried to underscore the importance of not trying to blame an improper party for those mistakes. “It’s not a blame issue. It’s simply a fact issue.”

Forcefully exposing excuses

It’s not the easiest task to humanize a billion-dollar company, but Jim Bennett did just that and, for his efforts, won a $7.6 million verdict for Creve Coeur-based Monsanto. The St. Louis County win nabbed the No. 17 spot on Missouri Lawyers Weekly’s list of top plaintiff victories. “The jury awarded us exactly what we asked for — every penny,” said Bennett, an attorney with Dowd Bennett in Clayton. Monsanto had sued Houston-based ConocoPhillips over its two-year failure to deliver enough petroleum coke from a California refinery to a Monsanto manufacturing plant in Indiana. Monsanto used the fuel to make Roundup herbicides. The contract breach marred a fairly [ SE E ST RAT E G Y O N PAG E 12]

TOP

2010

January 31, 2011

M i s s o u r i L aw y e r s We e k ly

Winningest plaintiff lawyers for 2010

Bough

Phalen

Lemonds

Kuhlman

Lucas

Burgess

Lamb

Page

Garner

McNairy

Schlapprizzi

Krispin

Dobson

Cox

Bradshaw

Stanley

Wasinger

Campbell

Rank

Attorney

Wins

Rank

Attorney

Wins

Rank

Attorney

1. (tie) 1. (tie)

Wins

Stephen Bough

8. (tie)

John Page

8. (tie)

Jerome Dobson

Ralph Phalen

8. (tie)

Steve Garner

8. (tie)

Ryan Cox

3. (tie)

James Lemonds

8. (tie)

Andrea McNairy

8. (tie)

Brad Bradshaw

3. (tie)

Bradley Kuhlman

8. (tie)

Don Schlapprizzi

8. (tie)

Kevin Stanley

3. (tie)

Chad Lucas

8. (tie)

Kelly McCambridge

8. (tie)

David Wasinger

3. (tie)

Mitchell Burgess

8. (tie)

James Krispin

8. (tie)

John Campbell

3. (tie)

Keith Lamb

Winningest law firms Based on total 2010 plaintiff wins in V&S database Rank 1. (tie) 1. (tie) 3. (tie) 3. (tie) 3. (tie) 3. (tie) 3. (tie)

Firm Brown & Crouppen Bartimus Frickleton Robertson & Gorny Law Offices of Stephen Bough The Schlapprizzi Law Firm Monsees, Miller, Mayer, Presley & Amick Law Offices of Ralph Phalen The Simon Law Firm

Wins 6 6 5 5 5 5 5

Rank 8. (tie) 8. (tie) 10. (tie) 10. (tie) 10. (tie) 10. (tie) 10. (tie)

Firm Kuhlman Law Firm Strong-Garner-Bauer Burgess & Lamb Page Law McCambridge Law Law Offices of James Krispin Curtis Heinz Garrett & Oâ&#x20AC;&#x2122;Keefe

Wins 4 4 3 3 3 3 3

Rank 10. (tie) 10. (tie) 10. (tie) 10. (tie) 10. (tie) 10. (tie) 10. (tie)

Firm Dobson Goldberg Berns & Rice Ryan Cox & Associates Brown & James Brad Bradshaw Law Firm Stanley Law Firm Hall Ansley Rodgers & Sweeney Green Jacobson

Wins 3 3 3 3 3 3 3

TOP

2010

January 31, 2011

M i s s o u r i L aw y e r s We e k ly

DEFENSE WINS IN 2010

$17 million

$5 million

$3 million

(tie)

3 (tie)

$3 million

$2.5 million

$2 million

(tie)

6 (tie)

$2 million

$1.8 million

$1.5 million

$1.2 million

Rank

Amount

11. (tie)

Premises liability

St. Louis County

Winning attorneys

Opposing counsel

Medical malpractice

St. Louis City

Winning attorneys

Opposing counsel

Wrongful death

St. Louis City

Winning attorneys

Opposing counsel

Privacy rights

St. Louis City

Winning attorneys

Opposing counsel

Contracts

Greene County

Winning attorneys

Opposing counsel

Wrongful death

New Madrid County

Winning attorneys

Opposing counsel

Constitutional rights

U.S. District Court, EDMO

Winning attorneys

Opposing counsel

Medical malpractice

U.S. District Court, EDMO

Winning attorneys

E. Richard Webber

Kenneth Bean, Bobbie Moon, Richard Hunsaker, Melanie Riley

Opposing counsel

Public nuisance

Cedar County

Winning attorneys

Opposing counsel

Premises liability

St. Louis County

Winning attorney

Opposing counsel

Marchosky v. St. Luke’s

Machon v. Washington University

Elder v. Airsol Co. Inc.

Doe v. Francis

Reynolds v. Christenson Transportation Inc.

Simmons v. Heartland Wood Products Inc.

Lawson v. Waddle

Avichail v. St. John’s Mercy Health System

Fugate Motors Inc. v. DairiConcepts LP

Laber v. Dierbergs Markets Inc.

Robert Cohen

Timothy Gearin, Dave Ott, Maureen Bryan

Michael Mullen

Robert Rosenthal, Halle Dimar

John Riley

Larry Hess

Corey Kraushaar, Christopher Seibold

John Riley

David Dalton

Michael Cordonnier

Henry Autrey

James Bickel

James Arneson

Debbie Champion, Dean Stark

Phillip Barket, C.H. Parsons

Peter Dunne, Diane Peters, Christopher Quinn

Timothy Belz, Al Johnson, Stephen Ryals, Lisa Pake

Bryan Wade, Ginger Gooch

Carolyn Whittington

Rex Carr, William Holland

Stephen Evans

Bryan Wade, Laura Greene

Fred Copeland

Frank Susman, Angela Loehr

Nathan Davidovich

Joseph Sommer

Debbie Champion

Marshall Hoekel, Christopher Allen

Type of Action

Caption

Court

Judge

Winning Attorneys

Opposing Counsel

$1 million

Medical malpractice

Skelton v. Farnham

Jasper County

David Dally

Randy Cowherd

Roger Johnson, Scott Vorhees

11. (tie)

$1 million

Wrongful death

Davidson v. Crown Pointe Church of the Assemblies of God

Jackson County

Jack Grate

Steven Coronado, Paul Gordon

Denise Henning, Jenny Redix, Jeff Scurlock

11. (tie)

$1 million

Product liability

Missouri Plastics v. Missouri Industrial Equipment

Cape Girardeau County

William Syler

Todd Nissenholtz, Gerald King

Ted Frapolli

11. (tie)

$1 million

Merchandising Practices Act

Sturgeon v. Career Education Corp.

Clay County

Michael Maloney

Martin Loring, James Monafo, Stephen Torline, Kyle Seelbach

Martin Meyers, Gene Graham Jr., Andrew McCue, John Klamann, Dirk Hubbard, Joseph Roper

11. (tie)

$1 million

Employment discrimination

Petkoff v. Metropolitan Community College

Jackson County

James Dale Youngs

Ian Cooper, Amy Clendennen

Joseph Backer

11. (tie)

$1 million

Premises liability

WLA Quail Run LLC dba The Reserve at Barry v. Downing

Platte County

Gary Witt

James Thompson Jr.

John Franke, Marc Middleton, Christopher Barnhorst

11. (tie)

$1 million

Insurance

Woodfork v. Barton Mutual Insurance Co.

St. Louis City

Michael Mullen

David Bub, Kenneth Goleaner

Stuart Cofman

18. (tie)

$800,000

Product liability

Cramer v. Maren Engineering Corp.

U.S. District Court, EDMO

David Noce

Mike Hunter

John Simon, Rachel Roman

19. (tie)

$750,000

Civil rights

Akins v. Crouch

U.S. District Court, WDMO

Richard Dorr

Doug Harpool, Matt Cologna

Mark Zoole, Rita Sanders

19. (tie)

$750,000

Premises liability

Ridrick v. Wal-Mart Stores East L.P.

U.S. District Court, WDMO

Fernando Gaitan Jr.

James Jarrow, Marcos Barbosa

Kevin Baldwin, Kevin Graham

21. (tie)

$600,000

Medical malpractice

Parsell v. Washington University Ear, Head and Neck Specialists

St. Louis City

Edward Sweeney Jr.

Peter Spataro, Amy Sumner, James Reinert, Jeffrey Atkinson

Paul Passanante, Dawn Besserman

21. (tie)

$600,000

Insurance

Allstate Insurance Co. as subrogee of Mick v. Mattern

Callaway County

Gary Oxenhandler

David Bub, Bill Lewis, Matt Krohn

Kevin Caraher

23.

$475,000

Motor vehicle collision

Rouse v. Cuvelier

Mercer County

Darren Adkins

Matthew Krohn, Tara Blackburn

Gary Steinman

24. (tie)

$450,000

Wrongful death

Rackers v. St. Mary’s Health Center

St. Louis City

Dennis Schaumann

Timothy Gearin, Scott Jansen

Roger Brown

24. (tie)

$450,000

Wrongful death

Schankman v. Saltman

St. Louis County

James Hartenbach

James Reinert, Alexander Lee

James M. Dowd

26.

$445,000

Employment discrimination

Beale v. City of Independence

Jackson County

John Torrence

Matthew Gist, Wesley Carrillo

Athena Dickson, Rik Siro

27. (tie)

$350,000

Medical malpractice

Fahle v. Dieterich

St. Charles County

Nancy Schneider

Timothy Gearin, Anna Selby

Leonard Cervantes

27. (tie)

$350,000

Medical malpractice

Guyton v. Cyriac

Audrain County

Keith Sutherland

J. Thaddeus Eckenrode, Randall Bauman

Mark McCloskey

27. (tie)

$350,000

Premises liability

Morgan v. Festus Crystal City Chapter Conservation Federation of Missouri

Jefferson County

Mark Stoll

Martin Buckley

Todd Hendrickson

TOP

2010

January 31, 2011

M i s s o u r i L aw y e r s We e k ly

DEFENSE WINS IN 2010 Rank

Amount

Type of Action

Caption

Court

Judge

Winning Attorneys

Opposing Counsel

27. (tie)

$350,000

Wrongful death

Daniel v. Saint Louis University dba SLUCare

St. Louis City

Michael David

Stephen Reuter

Mary Coffey, Genevieve Nichols

31.

$290,000

Insurance

Gegg v. Naeger

St. Genevieve County

Sandra Martinez

Irene Marusic, Russell Watters, Matthew Mocherman

Matthew Meyerkord

32. (tie)

$250,000

Medical malpractice

Stanfill v. James

St. Charles County

Nancy Schneider

Ann Marie Piana, Lisa Howe

Daniel Barklage

32. (tie)

$250,000

Medical malpractice

The Estate of Virginia Bowser v. Meurer

Clay County

Larry Dale Harman

Bruce Keplinger, John Hicks

Jack Norton, Katie Perkins

32. (tie)

$250,000

Personal injury

Lopez v. McVay

Cass County

R. Michael Wagner

Michael McCausland, Charles Edgeller

Stephen Nordyke

35. (tie)

$200,000

Wrongful death

Sodini v. St. Joseph Medical Center

Jackson County

Jack Grate

Christopher Molzen, Blake Reeves

Ted Green, Roger Wright

35. (tie)

$200,000

Premises liability

Woodard v. City of St. Joseph

Buchanan County

Randall Jackson

Keith Schieber

Kesia Smith

37.

$175,000

Premises liability

Gerling v. Voss

Franklin County

Cynthia Eckelkamp

David Bub

Christopher Dixon

38.

$160,000

Age discrimination

EEOC v. Wal-Mart Stores Inc.

U.S. District Court, EDMO

Audrey Fleissig

James Bennett, Erika Anderson, Jennifer Aspinall

Anddrea Baran, Barbara Seely

39.

$159,100

Insurance

Coutts v. Farm Bureau Town & Country Insurance of Mo.

Jackson County

James Dale Youngs

Robert Brady

James Walker Jr.

40.

$150,000

Premises liability

Bowdish v. Twenty-Seven-O-Five Holding Co.

St. Charles County

Lucy Rauch

Jackie Kinder, Amy Suber

Dennis Harms

41.

$130,000

Medical malpractice

Tice v. Hughes

Greene County

Calvin Holden

Randy Cowherd, Catherine Reade

David Ansley, Deborah Dodge

42.

$100,000

Medical malpractice

Swain v. Mercy Medical Group

St. Charles County

Nancy Schneider

Kenneth Bean, Bobbie Moon

Kenneth Vuylsteke

43.

$90,000

Age discrimination

Sawyer v. Washington University

St. Louis County

Maura McShane

Thomas Wack

Mary Anne Sedey, Robert Johnson

44.

$87,000

Premises liability

Nichols v. Mark Twain Center Partners

Ralls County

Robert Clayton III

Irene Marusic

Joseph Brannon

45.

$80,000

Personal injury

Person v. KFS Trucking LC

St. Louis County

Mark Seigel

Gary Snodgrass

Alfred Rathert

46.

$75, 000

Personal injury

Lucas v. Rinne

Franklin County

David Tobben

Steven Kuenzel, Steven Kuenzel Jr.

Walter Floyd

47.

$52,000

Personal injury

Mundy v. Cowboys 2000 Inc.

Greene County

J. Dan Conklin

Irene Marusic

Daniel Malloy, Matt Corbett

48.

$50,000

Age discrimination

Bridges v. City of West Plains

Howell County

Robert Carter

Michael Hart, Robert Oberzalek

James Arneson

49. (tie)

$45,000

Insurance

Murphy v. Safeco

U.S. District Court, EDMO

Catherine Perry

Bradley Hansmann

Andrew Toennis

49. (tie)

$45,000

Assault

Burnett v. Wal-Mart Stores East LP

St. Louis County

Richard Bresnahan

John Rahoy, James Whaley

Joseph Fenlon, Gregory Fenlon

49. (tie)

$45,000

Premises liability

Doom v. AutoZone Stores Inc.

St. Louis City

Edward Sweeney Jr.

Justin Chapell

Nick Carter

S10

TOP

2010

January 31, 2011

M i s s o u r i L aw y e r s We e k ly

2010 DATABASE EN Mercer

Sullivan

Adair

County

Top plaintiff win

Top defense win

$1.5 million

none

Audrain

none

$350,000

Benton

$6.5 million

none

Boone

$35.25 million

none

Buchanan

$600,000

$200,000

Butler

$500,000

none

Callaway

$77,000

$600,000

Camden

$1 million

none

Cape Girardeau

$750,000

$1 million

Cass

$2 million

$250,000

Cedar

none

$1.5 million

$1.4 million

$1 million

$462,500

none

Cole

$30.13 million

none

Dent

Confidential

none

Dunklin

$358,803

none

Franklin

$2 million

$175,000

Greene

$3.1 million

$2.5 million

Henry

$300,000

none

Howell

$50,000

none

Jackson

$11.05 million

$1 million

Jefferson

$1 million

$350,000

Lafayette

$1 million

none

$2.85 million

none

$120,000

none

Adair

Clay Clinton

Lincoln Livingston

Livingston Buchanan

Clinton

Platte

Clay

Lafayette

Jackson

Cass

Moniteau

Henry

Benton

M Camden

Cedar

Webster

Greene

Lawrence

Newton

Stone

McDonald

U.S. District Court, WDMO

Taney

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2010

January 31, 2011

M i s s o u r i L aw y e r s We e k ly

S11

NTRIES BY COUNTY Marion

County

Top plaintiff win

Top defense win

$640,000

none

$1.5 million

none

$1 million

none

Mercer

none

$475,000

Miller

$300,000

none

Mississippi

$720,000

none

Moniteau

none

$30,108

$750,000

none

$2 million

Newton

$162,000

none

Oregon

$10.15 million

none

Phelps

$150,000

none

Platte

$12.2 million

$1 million

Ralls

$6.27 million

$87,000

St. Charles

$1.5 million

$350,000

St. Louis City

$60 million

$5 million

St. Louis County

$55 million

$17 million

Ste. Genevieve

none

$290,000

Stone

none

$25,000

Sullivan

$1.7 million

none

Taney

$2.85 million

none

$215,000

none

EDMO(St. Louis)

$7.4 million

$2 million

WDMO(Kansas City)

$56 million

$750,000

Lawrence Marion

Ralls

Monroe

McDonald

Audrain

Monroe

Lincoln

Boone

New Madrid

Callaway

St. Charles

St. Louis City

St. Louis County

Cole

Franklin

Jefferson

Miller

Webster

Phelps

Ste. Genevieve

Dent

Cape Girardeau

Mississippi Howell

Butler

Oregon

New Madrid

U.S. District Court, EDMO

Dunklin

S12

TOP

2010

January 31, 2011

M i s s o u r i L aw y e r s We e k ly

Winningest defense lawyers for 2010

Rank

Attorney

Marusic

Bub

Gearin

Eckenrode

Bean

Burgess

Reinert

Lewis

Jarrow

Cowherd

Torline

Coronado

Wins

Rank

Attorney

Wins

Rank

Attorney

Irene Marusic

4. (tie)

David Bub

Timothy Gearin

4. (tie)

J. Thaddeus Eckenrode

Wins

Rank

Attorney

Kenneth Bean

4. (tie)

Bobbie Moon

4. (tie)

James Reinert

4. (tie)

Doug Harpool

Wins

Matt Cologna

4. (tie)

Stephen Torline

4. (tie)

Bill Lewis

4. (tie)

Steven Coronado

4. (tie)

James Jarrow

4. (tie)

Debbie Champion

4. (tie)

Randy Cowherd

4. (tie)

David Ellington

Winningest defense law firms for 2010 Rank

Firm

Wins

Rank

Firm

7. (tie)

Moser & Marsalek

Wins 2

Brown & James

Armstrong Teasdale

7. (tie)

Williams, Venker & Sanders

Husch Blackwell

7. (tie)

Baird, Lightner, Millsap & Harpool

4. (tie)

Eckenrode Maupin

7. (tie)

Andereck, Evans, Widger, Johnson & Lewis

Baker, Sterchi, Cowden & Rice

4. (tie)

Gonnerman Reinert

7. (tie)

4. (tie)

Haden Cowherd & Bullock

7. (tie)

Sherman Taff Bangert Thomas & Coronado

7. (tie)

Bryan Cave

7. (tie)

Rynearson Suess Schnurbusch & Champion

7. (tie)

Sandberg Phoenix & von Gontard

Attorney projected faulty testimony on courtroom wall [S T RA TE G Y F ROM PAGE 6 ]

healthy 40-year relationship between the two companies, and to highlight that long corporate history, Bennett called upon some institutional knowledge: Dan Schettler, a retired Monsanto executive. “He took the jury through every portion of the contract,” Bennett said. “It was really nice to have a person who essentially took ownership for the reason Monsanto signed the contract.” Bennett also used technology to expose the shifting explanations that ConocoPhillips representatives gave for the delivery errors. While cross-examining defense witnesses, Bennett would solicit the witness’ current stated reason for the error. Then, Bennett would play a clip from the same witness’ video deposition, exposing his prior excuse and projecting the inconsistent testimony onto the wall of the courtroom. One witness sat there while Bennett confronted him about 10 separate inconsistent statements he made. Bennett said he didn’t followup the video clips with further questions; he let the inconsistencies speak for themselves. “It has much more force that way,” he said.

Struggling with gaps in evidence

Bereft of crucial medical records and lacking the depositions of any treating

I argued that because the plaintiff “ had the burden of proof, the jury ought to consider why they didn’t bring commentary on that point.

”

Richard Hunsaker, an attorney with Edwardsville, Ill.-based Heyl, Royster, Voelker & Allen

physicians, Richard Hunsaker nonetheless fended off a hefty medical malpractice suit lodged against his client. His victory captured the No. 8 defense win in Missouri last year. Hunsaker, an attorney with Edwardsville, Ill.-based Heyl, Royster, Voelker & Allen, achieved his defense victory in the U.S. District Court for the Eastern District of Missouri, an odd venue for a medical malpractice case. The suit was filed in federal court for the same reason evidence in the case was so hard to track down: the plaintiffs are Israeli citizens. Maizie Avichail sued St. John’s Mercy Health System and nurse Geraldine Jones — Hunsaker’s client — alleging her 9-yearold daughter, identified as T.A., suffered brain damage after a 2003 surgery she re-

ceived in St. Louis. While recovering from a tongue reduction surgery, T.A.’s oxygen saturation levels dropped notably for a four-hour period. Avichail claimed her daughter, who was born with an overgrowth syndrome, was never the same after the surgery. T.A. was prone to violent tantrums and unable to attend a traditional school. Hunsaker said it was hard to obtain medical records housed in Israel, and he wasn’t able to depose any of the doctors who treated T.A. before or after the surgery. That lack of evidence left big gaps in the case, he said. “I don’t know there’s any case I’ve had where I’m going in without all the records,” he said. To fill the gap, Hunsaker called in autism

experts, who testified that the onset of puberty may have caused T.A.’s changes in behavior. At one point, he emphasized the absence of evidence for a strategic purpose: to highlight the plaintiff’s decision to not produce the doctors who treated T.A. after the surgery. “I argued that because the plaintiff had the burden of proof, the jury ought to consider why they didn’t bring commentary on that point,” Hunsaker said. In another stark difference between a state malpractice case and a federal malpractice case, Hunsaker faced a time constraint for his closing argument. In a circuit court case, he usually speaks for 45 minutes. In the Avichail case, he had less than 25 minutes to make his point. Ten minutes before his rose to give his arguments, Hunsaker made a decision. “I had to really streamline my closing,” he said. He focused solely on the actions of Jones, his nurse client. Once Jones realized that T.A.’s oxygen saturation dipped, “she was all over it,” he said. “She called the surgeon. She even stayed beyond her shift to help out.” He told the jury, “You should judge her by the most important thing she did that day as a nurse. And no one’s critical of her response.” The jury deliberated for about two hours before returning a verdict for the nurse and hospital defendants. MO

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2010

January 31, 2011

M i s s o u r i L aw y e r s We e k ly

S13

S14

TOP

2010

January 31, 2011

M i s s o u r i L aw y e r s We e k ly

Lawyers can use V&S Search to research cases

he following tables are just some examples of how subscribers can slice and dice the information found in Missouri Lawyer Mediaâ&#x20AC;&#x2122;s V&S Search. The V&S database allows subscribers to search by year, court, judge, type of law, total value, attorney, law firm, type of injuries, type of result, expert and a variety of combinations. Take some time today to search the nearly 1,200 cases in the database. Here, using the search engine, we are able to show you how seven types of cases have fared between

2007 and 2010. The tables show the number of cases in the database by type of law and year. We also compare the top plaintiff and defense wins from year-to-year. = 2010

= 2009

= 2008

= 2007

Motor vehicle collision

CASES IN DATABASE

LARGEST PLAINTIFF WIN (in millions)

LARGEST DEFENSE WIN (in millions)

$23.5

$22.5

$18 15

$18

$6.5

$0.475 0

$0.487

$0.1

Medical malpractice

CASES IN DATABASE

LARGEST PLAINTIFF WIN (in millions)

LARGEST DEFENSE WIN (in millions)

38 12

53 20

$12.1

$6.9

$5 4

6 10

$4.5

$2.6

$1.4

Premises liability

CASES IN DATABASE

LARGEST PLAINTIFF WIN (in millions)

LARGEST DEFENSE WIN (in millions) 20

3.0

$3.1 15

2.0

$17

$2.2

$1.5 10

1.0

0.0

$6 N/A

$1.25

TOP

2010

January 31, 2011

M i s s o u r i L aw y e r s We e k ly

S15

Lawyers can use V&S Search to research cases Wrongful death

CASES IN DATABASE

LARGEST PLAINTIFF WIN (in millions)

LARGEST DEFENSE WIN (in millions)

$4.8 51

$89

$4.75

$3 2

$12.2 0

$35.25

$13.5 0

EMPLOYMENT

CASES IN DATABASE

LARGEST PLAINTIFF WIN (in millions)

LARGEST DEFENSE WIN (in millions)

20 30

$1.49

33 30

1.2

$16.5

$1.2 $1

10 0.6

$4.5

$0.6

$4.5 $2.26

0.0

CONTRACTS

CASES IN DATABASE

LARGEST PLAINTIFF WIN (in millions)

120

$2.5 $104

26 22

LARGEST DEFENSE WIN (in millions)

2.0

$1.4 $60 12

1.0

$42 $0.5 $2.2

N/A

0.0

Product liability

CASES IN DATABASE 20

LARGEST PLAINTIFF WIN (in millions)

LARGEST DEFENSE WIN (in millions) $50

$23.4 40

$9.5

$12

$2.5

$1 0

$9.5 $3.5

S16

TOP

2010

January 31, 2011

Rank

Judge

Jurisdiction

Cases

Jack Grate

Jackson County

Barbara Wallace

St. Louis County

3. (tie)

Ann Mesle

Jackson County

3. (tie)

John Torrence

Jackson County

3. (tie)

Nanette Laughrey

U.S. District Court, WDMO

6. (tie)

Catherine Perry

U.S. District Court, EDMO

6. (tie)

Henry Autrey

U.S. District Court, EDMO

6. (tie)

Rodney Sippel

U.S. District Court, EDMO

9. (tie)

Richard Dorr

U.S. District Court, WDMO

9. (tie)

Abe Shafer IV

Platte County

9. (tie)

Jay Daugherty

Jackson County

9. (tie)

Gary Fenner

U.S. District Court, WDMO

9. (tie)

Steven Goldman

St. Louis County

9. (tie)

James Hartenbach

St. Louis County

9. (tie)

Anthony Gabbert

Clay County

9. (tie)

Peggy McGraw

Jackson County

9. (tie)

Mark Orr

Taney County

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Rank

Judge

Jurisdiction

1. (tie)

Jack Grate

Jackson County

1. (tie)

James Dale Youngs

Jackson County

1. (tie)

Nancy Schneider

St. Charles County

4. (tie)

John Riley

St. Louis City

4. (tie)

Michael Mullen

St. Louis City

4. (tie)

Edward Sweeney Jr.

St. Louis City

4. (tie)

Robert Cohen

St. Louis County

4. (tie)

David Dally

Jasper County

4. (tie)

Fernando Gaitan

U.S. District Court, WDMO

4. (tie)

Michael Cordonnier

Greene County

4. (tie)

Keith Sutherland

Audrain County

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Judges who presided over most reported defense wins in 2010

Judges who presided over most reported plaintiff wins in 2010

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2010

January 31, 2011

M i s s o u r i L aw y e r s We e k ly

S17

No need to outsource out-of-county verdicts Analysis disproves myths about success rate for attorneys who litigate away from home

By Scott Lauck and Will Connaghan

scott.lauck@molawyersmedia.com will.connaghan@molawyersmedia.com

In 2009, a performance at Lawyers Association of St. Louisâ&#x20AC;&#x2122; annual Gridiron Show put a common notion among trial lawyers to the tune of the classic Stealers Wheel song, â&#x20AC;&#x153;Stuck in the Middle with You.â&#x20AC;? Cows to left of me, Walmart to the right. Here I am, stuck in a lousy venue. Of course, itâ&#x20AC;&#x2122;s not fair to assume that a rural county is necessarily a bad place to try a case. And St. Louis could be just as unfamiliar to a Jackson County lawyer as a courthouse in the Bootheel. In the end, some attorneys are reluctant to travel too far from the courthouses, judges and lawyers they already know. Some, but not all. Missouri Lawyers Weekly has tracked 1,145 cases between 2007 and 2010. Of those, 370 had out-of-county attorneys on one or both sides. In 218 of those cases, both sides were from out of the county. There were 76 cases where the losing attorney was from out of the county but the winner was from inside the county and there were also 76 cases where the winning attorney was from out of the county and the loser was from inside the county. In essence, it appears there is no real advantage one way or the other. Among those who frequently appear

in unfamiliar settings is Bob Langdon. Almost by definition, Langdonâ&#x20AC;&#x2122;s wins are outside his home county. His firm, Langdon & Emison, is based in semi-rural Lafayette County, which sees few big jury trials. (Langdon himself, however, recently relocated to the Kansas City area.) That location hasnâ&#x20AC;&#x2122;t stopped Langdon from winning trials throughout Missouri and the United States. Among his big victories of 2010 were an $8 million verdict in Platte County and $23 million verdict in California. Both involved claims of vehicle defects. Langdon said that after trying cases all over the country, in front of vastly different types of juries, heâ&#x20AC;&#x2122;s convinced thereâ&#x20AC;&#x2122;s not much advantage to being a local. â&#x20AC;&#x153;A good case is a good case,â&#x20AC;? he said. Of course, there are ways to make sure the home-town non-advantage doesnâ&#x20AC;&#x2122;t become a disadvantage. Langdon frequently works with local attorneys, either formally as local counsel or informally through chats and phone calls. Local attorneys, Langdon said, can provide crucial details about judgesâ&#x20AC;&#x2122; procedural quirks. Focus groups in nearby counties are another tactic. Sometimes, Langdon said, if heâ&#x20AC;&#x2122;s doing a case in a small county heâ&#x20AC;&#x2122;ll hire every local firm, just so the defense canâ&#x20AC;&#x2122;t. â&#x20AC;&#x153;Thatâ&#x20AC;&#x2122;s the good thing about being the plaintiff â&#x20AC;&#x201D; you get to go first,â&#x20AC;? he said. Some attorneys prefer to remain local, but local can be a relative term. James Krispinâ&#x20AC;&#x2122;s office in Clayton is only a short drive to the

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courts of Illinois. Yet Krispin has never bothered with an Illinois license. He said heâ&#x20AC;&#x2122;d rather try cases in Missouri, where heâ&#x20AC;&#x2122;s familiar with the caselaw and the court rules. â&#x20AC;&#x153;I can travel 250 miles to Kansas City and try a case under the same rules that I practice under here in St. Louis County,â&#x20AC;? he said. â&#x20AC;&#x153;That gives me confidence that I can handle things throughout the state.â&#x20AC;? Krispin said he makes good use of professional associations to find attorneys to work with throughout the state. Sometimes, attorneys come to him. Krispinâ&#x20AC;&#x2122;s practice includes so-called dram shop lawsuits, against establishments that serve too much alcohol to people who then go on to hurt someone. Krispin said attorneys who wind up with such cases but donâ&#x20AC;&#x2122;t have much experience in that type of law may call him, and the two will take on the case together, giving Krispin a â&#x20AC;&#x153;built inâ&#x20AC;? local counsel. Of course, plaintiffs attorneys arenâ&#x20AC;&#x2122;t the only ones who sometimes have to travel out of their comfort zones. Irene Marusic, a defense attorney with Brown & James in St. Louis, spent a lot of time on the road in 2010, defending cases in Warrensburg, Springfield, Hannibal and Ste. Genevieve, among others. Marusic said outstate defenses take a little extra planning. After all, a document left on a desk might now be several hours away, instead of a few minutes. But Marusic also said she finds rural jurors to be more attentive and less apt to give big verdicts.

â&#x20AC;&#x153;I feel like Iâ&#x20AC;&#x2122;m going to get a fair shake,â&#x20AC;? she said. In some cases, Marusic said, she won even with the cards stacked against her. In one rural case, she faced a former local city attorney. In another, the plaintiffs attorney knew just about everyone on the jury. She said she saw one juror pat the lawyer on the back after they returned the defense verdict and say, â&#x20AC;&#x153;Maybe youâ&#x20AC;&#x2122;ll get them next time.â&#x20AC;? Obviously, some attorneys still feel the sting of the home-county advantage. In February 2010, Walter L. Floyd, of The Floyd Law Firm in St. Louis, lost a case in Franklin County. A man was injured in a traffic accident in St. Clair, but the jury found in favor of the defendant, a local schoolteacher. â&#x20AC;&#x153;Iâ&#x20AC;&#x2122;ve found they will protect their local litigants,â&#x20AC;? Floyd said. The defense attorney in the case, Steven P. Kuenzel, of the Franklin County firm Eckelkamp Kuenzel, attributed the win to the plaintiffsâ&#x20AC;&#x2122; lack of credibility, not to a home-town advantage. â&#x20AC;&#x153;I donâ&#x20AC;&#x2122;t know that having an out-oftown attorney did anything to hurt his case,â&#x20AC;? Kuenzel said. Whatever influences might have swayed the jury, Floydâ&#x20AC;&#x2122;s advice probably applies to any lawyer trying any case anywhere: figure out what biases the potential jurors have. â&#x20AC;&#x153;Itâ&#x20AC;&#x2122;s all in voir dire,â&#x20AC;? he said. â&#x20AC;&#x153;What you have to do is try to get people to be honest with you.â&#x20AC;? MO

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121 ChesterďŹ eld Business Parkway ChesterďŹ eld, Missouri 63005 Tel: (636) 532-2300 Fax: (636) 532-6002 Email: daniel@dschrammlaw.com

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S18

TOP

2010

January 31, 2011

M i s s o u r i L aw y e r s We e k ly

Top 10 jury verdicts of 2010 By Tony Ogden

Dolan Media Newswires

he size of the Top 10 Jury Verdicts from around the United States increased again in 2010, according to a survey by Lawyers USA, a sister publication to Missouri Lawyers Weekly. The average increased less than the prior year, however, rising from nearly $145 million to just under $157 million. (The average for 2009 increased nearly $33 million from the prior year.) The top award was significantly higher in 2010 — $505 million versus $370 million. But there then was a sharp drop: the #2 award was $208.8 million, and the #3 award was $152 million. In contrast, 2009 saw three awards in the $300 million range. The year’s top verdict went to a Las Vegas principal who developed Hepatitis C several weeks after undergoing a routine colonoscopy. During the procedure, he was given anesthesia from a 50 ml vial that had been reused from another patient. The #2 award went to a California woman who developed mesothelioma from exposure to her husband’s asbestoslaced laundry, and three of the Top Ten were against tobacco companies. Lawyers USA compiles the Top 10

Jury Verdicts each year, applying certain ground rules. First, verdicts must be to an individual plaintiff, defined as a single person, family or small group of individuals injured in a single incident who had their claims tried in one case before the same jury. Second, business-against-business suits, class actions or consolidated cases are not included. Finally, cases must have been defended — default verdicts and suits against incarcerated individuals are not included.

Tobacco plaintiff wins $80 million verdict: After eight straight defense verdicts in the individual tobacco litigation in Florida, the daughter of a smoker who died of lung cancer won a resounding $80 million verdict in November, including $72 million in punitive damages.

Jury delivers $82.5 million verdict in gas plant blast case: A Texas jury has handed down a verdict of more than $82 million against two natural gas plant companies after a worker in a rebuilt and refurbished plant was killed in an explosion.

$89 million in airplane crash case: In April of last year, a Pennsylvania jury handed down an $89 million verdict against the manu-

“…extraordinary

vision, and innovation leadership.” –Missouri Lawyers Weekly

Shook, Hardy & Bacon congratulates

our Chair John Murphy

on his selection as a Missouri Lawyers Weekly 2010 Law Firm Leader of the Year.

Shook, Hardy & Bacon is also pleased that John has been elected to serve a third term as Chair. Under his leadership, the firm will continue its commitment to being “the best in the world at providing clients creative and practical solutions at unsurpassed value.” SHB is grateful for the collaborative way John guides our law firm in expanding our services, developing innovative billing models and integrating diversity into the firm’s culture. GENEVA | HOUSTON | KANSAS CITY | LONDON | MIAMI | ORANGE COUNTY SAN FRANCISCO | TAMPA | WASHINGTON, D.C. | WWW.SHB.COM

www.shb.com

TOP

2010

January 31, 2011

M i s s o u r i L aw y e r s We e k ly

S19

nationwide show increase facturer of an airplane carburetor after a crash killed four people and severely injured a fifth.

Florida jury awards $90.8 million to smoker’s widow: In April, a Florida jury awarded $90.8 million to the wife of a longtime smoker who died of lung cancer.

Law firm slammed with $103 million verdict for working against client: In October, a Mississippi jury hit the world’s largest law firm with a $103 million verdict in a suit alleging legal malpractice, breach of fiduciary duties, conspiracy and interfering with business relationships.

Jury awards $124.5 million in passenger van crash: A Texas jury found a bus company and driver liable for $124.5 million to seven passengers injured or killed while riding in a van in a state where it was not licensed to operate.

Small firm lawyers win $132.5M in Ford rollover retrial: The third time was a charm for small-firm lawyers who won $132.5 million against Ford for a rollover accident that killed 22-year-old New York Mets prospect Brian Cole.

THE

RABBITT LAW FIRM, LLC ATTORNEYS AT LAW

Daniel T. Rabbitt is pleased to announce the formation of The Rabbitt Law Firm, LLC as of January 3, 2011. Joining him in the practice of law are Marcus J. Raymond and Claire Kemper Wasson. The practice consists of personal injury and product liability defense, including catastrophic cases, corporation disputes and business litigation. The ﬁrm contact information is as follows: The Rabbitt Law Firm, LLC 111 West Port Plaza Drive, Suite 600 St. Louis, Missouri 63146 314-275-9110 314-275-9111 (Fax) E-mail: rabbitt@rabbittlawﬁrm.com

$152 million for estate of woman given free cigarettes as a child: A Massachusetts jury awarded $152 million to the son of a deceased woman who received free cigarettes as a child from representatives of tobacco company Lorillard.

Worker’s wife awarded $208.8 million for asbestoslaced laundry: In April of 2010, 68-year-old Rhoda Evans won $208.8 million for the mesothelioma caused by asbestos contamination that her husband brought home from his job. The jury awarded $8.8 million in compensatory damages and $200 million in punitive damages. The compensatory award was split 70/30 between the pipe maker and the employer, but the pipe maker alone was held responsible the entire punitive award.

Small firm wins $505.1 million verdict: Arguing that oversized vials of a drug were “weapons of mass infection” that led to an outbreak of Hepatitis C at outpatient surgical centers, Las Vegas plaintiffs’ attorney Robert Eglet convinced a jury that the manufacturer and its distributor should be punished with $500 million in punitive damages, in addition to $5.1 million in compensatory damages. MO

omen’s Justice Awards

the

Annual

2 11 20

April 27, 2011, 6 – 9 p.m. Four Seasons Hotel in St. Louis

Make your nominations today for the Women’s Justice Awards! The Women’s Justice Awards recognize women across the state of Missouri who have improved the quality of justice and exemplified the highest ideals of the legal profession. The awards reach out to women in various segments of the legal community, including the bar, the bench, public office, business, academia, nonprofits and Missouri-at-large. Nominations close January 31, 2011. Honorees will be notified by February 23. Go to http:// molawyersmedia.com/events/womens-justice-awards to download a nomination form. For more information, contact Bonnie McCabe at 314-558-3202 or bonnie.mccabe@molawyersmedia.com.

Presented by

A portion of ticket sales benefit

{Practice, Practice}

January 31, 2010

M i s s o u r i L aw y e r s We e k ly

Alphabet soup: Choose the right designation LLC tends to make the most sense for solos By David Baugher

Special to Missouri Lawyers Weekly

olo practices and partnerships can be organized in a lot of ways. And for lawyers who don’t concentrate on tax or corporate law, all the abbreviations can be dizzying. LLC? PC? LP? Fortunately, most experts agree on one simple answer. An LLC, short for Limited Liability Company, seems to be the right call for the majority of lawyers forming a law office. “The LLC is the preferred method for entity organization by solo and small firm attorneys in the state,” says Philip Prewitt, a lawyer in Macon. “It’s appropriate for everyone from a solo practitioner right up to a multinational corporation.” Prewitt, who often helps to form entities, says that since the unveiling of the LLC decades ago, few reasons exist to go another direction. “It gives you the simplest structure with regard to recordkeeping,” he says. “It provides you with liability protection and allows you the flexibility of deciding whether to be taxed as a sole proprietor or a partnership.” The LLC’s flexibility can come in handy [ SE E ORGA N IZE O N P AGE 1 2 ]

When he incorporated his law firm 20 years ago, Chesterfield business attorney Chris Kelleher established a PC, but attorneys today should probably opt for the simpler LLC designation, he says. “Go with what everybody else is doing unless you have a really good reason.” Photo by Karen Elshout

{Practice, Practice}

January 31, 2010

M i s s o u r i L aw y e r s We e k ly

Technology for the new solo

By Rebecca Boyle

Special to Missouri Lawyers Weekly

irst, a word about your computer. You will, of course, need one. Whether yours is Windows or Apple is largely a matter of preference these days, although the majority of law firms do use Windows and related Microsoft products. Most PCs come preloaded with Windows 7. The suggested minimum configuration, according to The Missouri Bar, is: • 120 gigabyte (GB) hard drive (but the bigger, the better) • 2048 megabyte random access memory (MB RAM) • Flat-panel monitor • CD drive to load software • Universal Serial Bus (USB)-connected external hard drive or other backup system; Internet-based backup programs are also available • Basic word processing system, such as WordPerfect or Microsoft Office As for your other machines — copiers, fax machines and other costly office equipment — look into leasing. That’s what Robert Henderson, a law firm consultant and retired attorney in Jackson Hole, Wyo., advises new solos. Now, about your firm’s identity. Next to a computer, a website may be the most important tool for a new solo attorney. For instance, when Kansas City attorney Scott Shachtman struck out on his own last year, after one of his partners, Sly James, decided to run for mayor of Kansas City, one of Shachtman’s first steps was to build a website for his new firm. He asked a friend to help him write content for the site, kcmotriallawyer.com,

In next month’s technology column in Practice, Practice:

Tools to help you manage your time.

and he hired a Web designer who built a website on the WordPress platform. To attract potential clients looking online for a lawyer, solos should learn search engine optimization (SEO) or contract with a consultant who can help, Henderson says. “If you don’t come up on the first page when somebody does a search for a specific need, you don’t exist,” he says. To set up a website, you need a Web hosting service. Try one of these: • WordPress.com: Domain names that include “wordpress.com” are free; for a modest fee, which varies depending on services, WordPress will host your own domain name. • BlueHost: Professional site hosting services start at $6.95 per month. Most accounts also include unlimited data hosting space, e-mail accounts and templates to build your new site. • GoDaddy: New .com sites start at $11.99; hosting starts at $2.99 per month. Now, about software. New solos should decide whether to use a traditional practice management software program, based on a hard drive, or so-called cloudbased practice management systems that can be accessed from anywhere with an Internet connection. John W. Olmstead, owner of the St. Louis-based legal consulting firm Olmstead & Associates, says many solos and small firms are opting for cloud services. “It is appealing if you are working out of your home or an office using virtual paralegals or virtual assistants. Since it is running in the cloud, you can run it from any place.”

Hard drive programs, however, can be more customized. Developers offer programs dedicated to bankruptcy law, personal injury, workers’ compensation and more. Here are a couple of popular cloudbased services: • Clio is designed for solo practitioners and small law firms using PCs and Macs. It can be accessed from any Internet-enabled computer or mobile device. Monthly subscription: $49 a month per attorney; $25 a month per support staff. Features: matter/case, document and client/contact management; task scheduling; performance metrics; and document sharing. • Rocket Matter is designed to track every activity you perform, including calendaring, tasks, documents and more. It can be accessed from anywhere with an Internet connection. First user: $59.99 a month. For users two through six, $49.99 a month; users seven through 20, $39.99 a month; 20+ users, $19.99 a month. Features: individual and firmwide calendaring; matter and contact management; document storage; performance tracking; messaging and more. Here are some popular computer-based services: • ClientKeeper is a free practice aid provided by The Missouri Bar, prepared in association with The Bar Plan Mutual Insurance Co. Download in Word or PDF format from www.mobar.org/ bef032af-349c-4473-aaf3-3bcfcc8de2f4. aspx. Features: Designed to assist attor-

neys in improving client relations and minimizing the likelihood of claims for legal malpractice. • Amicus Attorney’s Small Firm Edition is designed for solos or firms with fewer than 10 attorneys. For every file, you can track appointments, tasks, contacts, communications and time, according to the company’s website. 2010 Small Firm Edition: $499 first license, $399 additional licenses. Features: matter, document and contact management; calendaring and docketing, universal inbox; and more. • PCLaw and Time Matters are LexisNexis services that integrate with a wide range of billing programs. First user $950; additional users $525 (includes first-year maintenance plan). Features: Manage cases, contacts, calendar, documents and communications; track time and other daily activities. John L. (“Tim”) Mellitz, owner of St. Louis consulting firm Mellitz & Associates, built a database including all the judges, court officers and addresses for Missouri’s circuit courts, and he gives it to his clients for free. • Practice Master Basic comes free with Tabs3, a related billing program. • PracticeMaster Basic: $150 for first user ($50 per additional user); PracticeMaster Premier: $295 for first user ($150 per additional user). Features: Basic includes contact management, conflict of interest checking, and e-mail management. PracticeMaster Premier adds document assembly, area-of-practice templates for data entry, calendar templates and more. If you need virtual assistance, the American Bar Association can help. Contact its Legal Technology Resource Center at www.abanet.org/tech or call (312) 988-5465. MO

You can’t be a ‘partner’ in a PC or LLC [ORGA N IZ E F ROM PAGE 1 1 ]

as time goes on. “It gives the broadest options starting out,” Prewitt says. Solo attorneys “aren’t even going to know how successful they are going to be for a couple of years, so it gives them the flexibility of being able to change later down the road.”

‘Minimize your hassle’

So why all the alphabet soup in other firm names? Chris Kelleher, a business attorney, calls it an “historical accident.” “If you see a law firm that’s a PC, it’s probably historical in nature because the LLC format offers a lot more flexibility for law firms than a PC, generally speaking,” he says. Kelleher, founder of Chesterfield-based The Law Firm for Businesses, should know. His own firm has that designation, which stands for professional corporation. When he formed his organization, the LLC statutes were fairly new, he says, and he didn’t know how well they would stand up to Internal Revenue Service scrutiny. Kelleher says he can’t really think of good reasons to form one today. “If you are just forming a small entity and you want to minimize your hassle, always go with what everybody else is doing unless you have a really good reason,” he says. Guy A. Schmitz of Armstrong Teasdale

agrees. “I have not formed a PC in probably forever,” says Schmitz, an of counsel attorney who handles tax law at the firm. “They are really not Guy A. Schmitz used much anymore.” Schmitz says the designation was originally an effort to limit the liability inherent in general partnerships by forming a corporate entity to shield individual partners. Largely, he says that today, those issues are handled by an LLC. Prewitt says there might be a few differences with regards to offering certain benefits to employees but they aren’t particularly significant. “With a corporation, you can get access to more benefits than you can with an LLC, but most people are not going to need the types of benefits that come with being organized as a larger entity,” he says. Plus, a PC designation can come with additional headaches. “It has regular reporting requirements so you have to file with the state every year,” Prewitt says. “There’s more housekeeping and administrative issues with a PC than with an LLC.” Solos can go with a simple sole proprietorship. This involves no $50 registration

fee with Missouri officials as an LLC does. “If you want unlimited personal liability, then being a sole proprietor is a cheap way to go,” Kelleher says. “Other than filing a fictitious name registration, you don’t have to file any papers with the Secretary of State.” But “who wants unlimited personal liability?” Prewitt cautions that no entity can totally protect you from liability. An attorney can still be sued for problems arising from the performance of his or her duties. “Being an entity doesn’t protect you from malpractice,” Prewitt says. “All it does is protect you from the person who slips and falls out in your waiting room or the creditor of a business who may try to come after you personally for some debt.” LLPs, or Limited Liability Partnerships, are almost identical to LLC’s, and the reason someone would form one is for specific titles. “As best as I know, the reason you would want to be an LLP as a law firm is primarily so you can call yourself a partner,” he says. “Technically speaking, if you are a PC or an LLC you can’t call yourself a partner.” Schmitz says the primary reason for LLPs today is to give partnerships an LLC-equivalent under which to reorganize themselves, since moving to an LLC from a partnership would involve complex changes.

“You’d have to jump from one statute to another statute,” he says. “You’d have to go see all your lenders and say we’re no longer a partnership, which is a technical term. We’ve gone to a different portion of the Missouri code and are technically a new entity and you have to go to the lenders hat in hand and ask ‘Do you mind this change?’”

Limited partnerships

LPs, or limited partnerships, are sometimes seen but are fairly rare, Kelleher says. “They used to be really popular as investment vehicles because you’d have a general partner at the top who basically does all the work,” he says. “Then you have passive investors who are called limited partners who have limited liability but no say in the business. That particular format really doesn’t work that well in the context of a professional firm like a law firm.” Schmitz calls corporate structures “exceedingly cumbersome,” particularly for a solo, when compared to an LLC which can simply be taxed as “disregarded entity” meaning the IRS does not separate its income from one’s personal taxes. Moreover, if a corporation is formed it’s tough to undo the process – another reason to prefer LLCs. “Even if you form a partnership, it is typically very easy to then incorporate, but going the other way is usually very, very difficult,” Schmitz says. MO

January 31, 2011

M i s s o u r i L aw y e r s We e k ly

Judges: Independent, yes. Contractors? No By Scott Lauck

scott.lauck@molawyersmedia.com

A municipal judge can be an employee of a city without losing her independence, the Missouri Supreme Court ruled Tuesday. The court affirmed a verdict of more than $2.1 million for racial discrimination against former Kansas City Municipal Court candidate Melissa Howard. She and two other white women were rejected for a municipal judgeship by the Kansas City Council in 2006. Council members had publicly stated they wanted a more diverse panel of judicial candidates. Last year, a special panel of the Missouri Court of Appeals Western District threw out the verdict and ruled that municipal judges are “independent contractors” because the city can’t control or fire them. Independent contractors cannot sue under the Missouri Human Rights Act.

The high court rejected that reasoning, saying such judges “are not independent contractors as that term is generally understood.” In a decision written by Judge Zel Fischer, the court said municipal judges are provided work space and supplies and paid a regular salary, just like other employees. Fischer stressed, however, that the city doesn’t have control over judges’ decisions. “Despite the City’s lack of control of judicial decision-making, these facts, taken as a whole, support a legal determination that municipal judges are employees of the City,” Fischer wrote. Edward “Chip” Robertson Jr., who argued the appeal on behalf of Howard, welcomed the decision. “This case stands for the proposition that you can’t discriminate against anybody on the basis of race,” he said. Mark Jess, of the Employee Rights Law Firm, who represented Howard at trial

and throughout the appeal, applauded the court’s upholding of the award, particularly the punitive damages. “Nobody is above the law,” Jess said. “Just because they’re a governmental entity doesn’t mean the law doesn’t apply to them.” Galen Beaufort and Saskia Jacobse, the Kansas City staff attorneys who argued the case, did not return calls seeking comment by press time.Six members of the court — including two outside judges sitting by special designation — affirmed Howard’s entire award of $633,333 in compensatory damages and $1.5 million in punitive damages. But Chief Justice William Ray Price Jr. partially dissented. He said the punitive damages should be thrown out because Missouri caselaw generally doesn’t allow such damages to be assessed against municipalities. “The presumption is that punitive damages are not available against municipali-

ties unless the statute specifically provides otherwise,” Price wrote. The majority had affirmed the punitive award by reading two parts of the statute in tandem. Price said that reading “does not equate to the specificity necessary to overcome this longstanding and well-reasoned presumption.” Howard, a Clay County prosecutor, is married to Judge Vic Howard, of the Court of Appeals Western District. Three judges from other appellate districts were brought in to hear the case on its first appeal. Likewise at the Supreme Court, two former members of the Western District — Judges Laura Denvir Stith and Patricia Breckenridge — declined to take part in the case. Judges Kathianne Crane and Nannette Baker, both of the Eastern District, heard the case in their places. The case is Melissa Howard v. City of Kansas City, SC90762. MO

Supreme Court splinters over flawed adoption All agree that case needs to be reversed, but dissenters think child should immediately return to mother By Allison Retka

allison.retka@molawyersmedia.com

In a set of three opinions that traded barbs over evidence and abandonment, the Missouri Supreme Court has ordered a new trial for a controversial Jasper County adoption case. All seven judges agreed that because of serious procedural errors, they needed to reverse the trial court’s 2008 decision to terminate the parental rights of a Guatemalan woman and hand her child to a Carthage couple, Seth and Melinda Moser. But the judges split on the proper next step for the case. The majority opinion, written by Judge Patricia Breckenridge, called for a new trial, but also suggested the record before the trial court was rife with evidence of Encarnación Bail Romero’s abandonment of her then-1-year-old child, Carlos. The Supreme Court’s more liberal trio, Judges Laura Denvir Stith, Richard Teitelman and Michael A. Wolff, said no new trial is necessary. Even setting aside the ineffective assistance of counsel that Romero suffered at trial, the Mosers failed to prove Romero abandoned her child, they wrote. Wolff summed up his position succinctly. “Enough is enough,” he wrote in an opinion concurring in part and dissenting in part. “The adoptive parent failed to prove that the mother abandoned her child. What more needs to be said or done?” Because the adoption case is so unusual — both in its facts and in the procedural missteps highlighted by all seven judges — it may have little impact on wider issues of immigration and adoption, said Fernando Bermudez. Bermudez, a St. Louis attorney with Green Jacobson, filed an amicus brief in the case on behalf of the Los Angelesbased Mexican American Legal Defense and Education Fund. “The court used the word ‘travesty,’ Bermudez said. “Everyone hopes that this kind of fact pattern never repeats itself.” Kansas City immigration attorney Matthew Hoppock found some guidance in the decision. Almost every one of his clients who faces immigration proceedings has children whose custody could be affected by the outcome, he said. Hoppock said he urges noncitizen clients

Encarnación M. Bail Romero talks to reporters through an interpreter after arguments before the Missouri Supreme Court in November. AP file photo by David Stonner

to make a plan for the care of their children should they be arrested and detained, as Romero was in this case after a 2007 raid on the poultry plant where she worked. Even better: write that plan down. “A lot of people are in the U.S. without a broad family network,” he said. “Maybe there aren’t any options.”

Which facts are the right facts?

The fact pattern that led Jasper County Judge David Dally to grant the adoption of Carlos to the Mosers is somewhat muddled by 200 pages of new evidence that Romero’s appellate lawyers filed with the Supreme Court. The majority rejected that lengthy appendix and stuck to the evidence presented to the trial court. In that version of events, Romero never tried to contact Carlos or be involved in his life. “The record shows, and Mother does not dispute, that a transfer of the Child’s custody urgently needed to occur,” Breckenridge wrote. Of one letter Romero sent to Joe Hensley, the Mosers’ Joplin attorney, asking that her child not be adopted, Breckenridge wrote, “One post-petition gesture does not outweigh the substantial evidence of abandonment on the record.” Hensley was prepping for a trial last

week and did not immediately return a call seeking comment. The Moser’s appellate attorney, Richard L. Schnake of Springfield, was still reviewing the opinion and declined to immediately comment. In Romero’s version of events, backed by much of Stith’s opinion, her detention at a federal prison in West Virginia hindered her efforts to communicate with people back in Missouri about her child. Stith argues that the sparse evidentiary record of Romero’s efforts to contact her child is the fault of her ineffective counsel at trial. At trial, Joplin attorney Aldo Dominguez represented Romero. Romero did not attend the trial. Dominguez did not return a call seeking comment. The majority criticized Stith’s opinion as relying too heavily on the outside evidence filed by Romero’s appellate attorneys. Stith’s opinion “departs from the rules of this Court and is not supported by the law,” Breckenridge wrote. But Stith insists that she relied on evidence available to, “albeit ignored by,” the trial court, such as a letter Romero wrote to the court requesting visitation with her son.

Ineffective assistance of counsel

The majority opinion didn’t touch Romero’s claim of ineffective assistance of counsel, in part because she based that

claim on the outside evidence filed with the Supreme Court. But Stith discussed the attorney’s failures at length. Dominguez, whom the Mosers sought out for the job, failed to object to a boatload of hearsay evidence, she wrote. He didn’t visit Romero in jail. He didn’t speak with Romero’s family or the Velazcos, the couple who temporarily cared for Carlos and then handed him to the Mosers. “Counsel failed even to appeal from the judgment,” Stith wrote, setting off her statement in italics. Christopher Huck is the Seattle attorney representing Romero pro bono. Huck said it’s a quirk of Missouri law that in civil cases like Romero’s, parties can’t collaterally attack a judgment by offering proof of ineffective assistance of counsel. “You’re stuck in this proceeding where if your claim is ineffective assistance of counsel, you can’t show the appellate court that there’s this body of evidence that demonstrates exactly how my counsel was ineffective,” Huck said.

‘Shameful pattern of delay’

In his opinion, Wolff wrote that the majority opinion reaches too far to find evidence of abandonment or neglect. Yes, Romero may have lived in a cramped one-bedroom apartment and Carlos may have been lacking immunizations. But not every family in America can afford a crib or a spacious living arrangement for their children, he wrote. “The fundamental right of a parent to raise his or child does not allow the principal opinion’s statement to be a legal standard,” he wrote. Wolff also reserved special criticism for the lawyers and courts who delayed the case. To his opinion, he tacked a three-page timeline detailing the dozens of court proceedings that stretched on for four years. “The timeline documents the shameful pattern of delay and pettifogging that characterizes this case,” Wolff wrote. “I include this timeline not to embarrass our courts or members of the legal profession, but as a reminder of how far we have strayed from the law’s command that this case be decided expeditiously.” The case is In the Adoption of CM.B.R., SC91141. MO

January 31, 2011

Class action can continue against drug manufacturer A consumer who bought adulterated medicine could continue with his state law claims against a Missouri drug manufacturer, the 8th U.S. Circuit By Stephanie Court of Appeals Maniscalco has held. The 8th Circuit reined in the controversial use of preemption by reversing a district court decision that the consumer’s Missouri Merchandising Practices Act claims were preempted by federal law. The state law claims were not impliedly preempted, the court found, relying on the 2009 U.S. Supreme Court decision, Wyeth v. Levine. “The Court’s comments in Wyeth regarding drugs and drug labeling strongly imply that field preemption does not apply in the present case. Specifically, in relating the history of federal regulation of drugs and drug labeling, the Court recognized that when Congress first enacted the Federal Food and Drugs Act, Congress ‘supplemented the protection for consumers already provided by state regulation and common-law liability,’” Judge Lavenski R. Smith wrote, citing Wyeth. “When Congress enacted an express preemption provision for medical devices, it declined to do so for prescription drugs…Nor has Congress ever provided a federal remedy for consumers harmed by ineffective drugs,” the 8th Circuit explained.

n On Opinions

Adulterated drug

Allen LeFaivre, a purchaser of a

U.S. Court of Appeals Eighth Circuit

Administrative ■■Special Education Benefits ■■Eligibility ■■Emotional Disturbance Where a father challenged an administrative panel’s decision that his son was not eligible for special education benefits under the Individuals with Disabilities Education Act, the district court properly found that the child suffered from an emotional disturbance under the IDEA and that he met the eligibility requirements for “other health impairment,” so the court properly found that the child met the statutory definition of a “child with a disability” and granted the father’s motion for judgment on the administrative record.

Lack of deference Opinion

concurring

judgment,

hypertension medication, sought actual and punitive damages in a class action against Missouri-based KV Pharmaceutical. The lawsuit came after the Food and Drug Administration filed a complaint against the company for failing to meet FDA standards. KV stipulated that it had sold drugs that were “adulterated,” meaning they did not meet federal manufacturing requirements. Since proper quality control procedures were not used, the manufacturer destroyed the remaining stock of the drug and issued a recall to retail outlets, but not to individual consumers. LeFaivre alleged a breach of the implied warranty of merchantability and violations of the MMPA. He argued that the medicine was not “merchantable,” because it was adulterated, and that the manufacturer concealed this fact when selling the drug in Missouri. KV moved to dismiss the case, arguing that LeFaivre’s claims were essentially claims for violations of federal regulations and that no private cause of action existed. The 8th Circuit, however, found that the “federal statutory or regulatory scheme” was not “so pervasive in scope that it occupies the field.” “To the contrary, ‘the FDA [has] traditionally regarded state law as a complementary form of drug regulation’ and has ‘long maintained that state law offers an additional, and important, layer of consumer protection that complements FDA regulation,’” Smith wrote. The 8th Circuit also noted that it was not physically impossible for KV to comply with both the state and federal law in this case. The case is LeFaivre v. KV Pharmaceutical Company, et al.

Gruender, J.: “I agree with the district court that the record supports the conclusion that J.H. is a ‘child with a disability’ under the IDEA, 20 U.S.C. § 1401(3), because he suffers from an ‘other health impairment,’ and, therefore, I concur in the judgment affirming the district court. Nevertheless, I disagree with the court’s analysis to the extent that it accords no deference whatsoever to the underlying administrative decision of the Due Process Panel. Applying the proper standard, I also disagree with the court’s conclusion that J.H. suffers from ‘serious emotional disturbance.’” Judgment is affirmed. Hansen v. Republic R-III School District (MLW No. 61715/Case No. 10-1514 – 12 pages) (U.S. Court of Appeals, 8th Circuit, Shepherd, J.) Appealed from U.S. District Court, Western District of Missouri, Dorr, J. (Ernest J. Traskas, St. Louis, argued for appellant; Alefia E. Mithaiwala appeared on the brief) (Chantel L. Alberhasky, Springfield, argued for appellee).

Civil Practice ■■Class Action ■■MMPA ■■Preemption Where a class action plaintiff ar-

M i s s o u r i L aw y e r s We e k ly

n Practice Area Index Court Administrative Hansen v. Republic R-III School District 8th Circuit Weisenborn v. Missouri Department W.D. COA of Mental Health, et al. Appellate Practice First Bank v. The Annie-Joyce Group, LLC, E.D. COA and Byron R. Hayes Bankruptcy Phegley v. Phegley U.S. Bankruptcy Civil Practice LeFaivre v. KV Pharmaceutical Company, et al. 8th Circuit State ex rel. Pulitzer Missouri Newspapers, Inc. v. Seay S.D. COA Consumer Law Hargis v. JLB Corporation d/b/a Golden Oak Lending E.D. COA Criminal Law U.S. v. Hambrick 8th Circuit Kamerud v. U.S.; U.S. v. Kamerud 8th Circuit U.S. v. Silva 8th Circuit U.S. v. Prokupek; U.S. v. McGlothlen 8th Circuit State v. Pickens E.D. COA State v. Dowdy S.D. COA State v. Wiley S.D. COA State v. Wolfe S.D. COA State v. Brown S.D. COA Bowers v. State W.D. COA State v. Hayes W.D. COA Domestic Relations S.M. and M.M. v. E.M.B.R. MO S.C. In the Interest of: R.M.K. E.D. COA Rawlings v. Rawlings S.D. COA Driver’s License Wei v. Director of Revenue S.D. COA Employer – Employee Howard v. City of Kansas City, Missouri MO S.C. Insurance Haren & Laughlin Construction Company, Inc. v. Jayhawk Fire Sprinkler Company, Inc. W.D. COA Negligence Moore v. Ford Motor Company MO S.C. Kivland v. Columbia Orthopaedic Group and Robert Gaines MO S.C. Probate Herrick v. Reed S.D. COA Real Estate Title Partners Agency, LLC v. Devisees of the Last Will E.D. COA and Testament of M. Sharon Dorsey and Patrick T. Dorsey Taxation Colosimo v. U.S.; U.S. v. Colosimo 8th Circuit Tort Baye v. Diocese of Rapid City 8th Circuit Unemployment Compensation Tenge v. Washington Group International, Inc. E.D. COA

gued that a drug manufacturer’s failure to make a medication in compliance with federal regulations violated the Missouri Merchandising Practices Act and breached its implied warranty of merchantability, the district court erred in finding that the plaintiff ’s state law claims were preempted by federal law because the federal statutory scheme was not “so pervasive in scope that it occupies the field” and conflict preemption did not apply because it was not physically impossible for the defendant to comply with both federal and state law and the state law claims did not interfere with the objections of the legislature. Judgment is reversed and remanded. LeFaivre v. KV Pharmaceutical Company, et al. (MLW No. 61717/Case No. 10-1326 – 14 pages) (U.S. Court of Appeals, 8th Circuit, Smith, J.) Appealed from U.S. District Court, Eastern District of Missouri, Limbaugh Jr., J. (Marc R. Stanley, Dallas, argued for appellant; Martin Woodward, Andrew S. Kierstead, Peter N. Wasylyk, Robert D. Blitz, Christopher O. Bauman, and Ronnie L. White appeared on the

Author

Page

Shepherd Witt

14 18

Hoff

Saladino

Smith Frances Jr.

14 17

Romines

Bye Gibson Murphy Gruender Mooney Scott Scott Scott Burrell Pfeiffer Welsh

14 15 15 15 16 17 17 17 17 17 17

Breckenridge Gaertner Jr. Rahmeyer

15 16 18

Barney

Fischer

Newton

Stith

Wolff

Rahmeyer

Crane

Beam

Murphy

Crane

brief) (Sandra Hauser, New York, argued for appellee; Lydia A. Keaney, Margaret D. Hall and Stephen H. Rovak appeared on the brief).

Criminal Law ■■Automobile Search ■■Automobile Exception ■■Strip Search (1)Where an informant well known to officers described defendant’s car and how he carried drugs, the officers had a reasonable suspicion to stop the defendant’s car, so the stop did not violate the defendant’s Fourth Amendment rights, and the informant’s tip also gave the officers probable cause to search the vehicle under the automobile exception. (2)Where a defendant who was stopped for driving under a suspended license was taken to the police station and subjected to a strip search, the district court did not

January 31, 2011

err in finding that the search was reasonable in scope, manner and location since it took place in an interrogation room and was based on highly reliable information from a known informant that the defendant possessed crack cocaine between his buttocks. Judgment is affirmed. U.S. v. Hambrick (MLW No. 61716/ Case No. 10-1096 – 11 pages) (U.S. Court of Appeals, 8th Circuit, Bye, J.) Appealed from U.S. District Court, Southern District of Iowa, Jarvey, J. (Patrick E. Ingram, Iowa City, Iowa, argued for appellant) (Joel W. Barrows, Davenport, Iowa, argued for appellee).

■■Habeas Relief

court’s denial of the motions to suppress is reversed. Judgment is reversed and remanded. U.S. v. Prokupek; U.S. v. McGlothlen (MLW No. 61714/Case No. 10-1406/101512 – 7 pages) (U.S. Court of Appeals, 8th Circuit, Gruender, J.) Appealed from U.S. District Court, District of Nebraska, Smith Camp, J. (Richard Haile McWilliams, Omaha, Nebraska, argued for appellant; Adam J. Sipple appeared on the brief) (Kimberly C. Bunjer, Omaha, Nebraska, argued for appellee).

Taxation ■■Individual Liability

■■Drug Conspiracy

■■‘Responsible Person’

Where two defendants in a methamphetamine case argued that their attorneys were ineffective for failing to challenge the superseding indictment due to a variance between one conspiracy charged in the indictment and the two conspiracies they alleged were proven at trial, the evidence at trial supported the district court’s determination that there was only one overarching conspiracy encompassing the defendants’ drug distribution although events took place in two locations, so the district court properly found that the attorneys were not ineffective for failing to challenge the indictment. Judgment is affirmed. Kamerud v. U.S.; U.S. v. Kamerud (MLW No. 61713/Case No. 08-3456/083702 – 5 pages) (U.S. Court of Appeals, 8th Circuit, Gibson, J.) Appealed from U.S. District Court, Northern District of Iowa, Bennett, J. (Erin P. Lyons, Waterloo, Iowa, and Jay Elliott Denne, Sioux City, Iowa, argued for appellants) (Shawn Wehde, Sioux City, Iowa, argued for appellee).

Where a taxpayer was found to be liable for unpaid federal employment taxes arising from his business operations, the district court did not err in finding the taxpayer to be the “responsible person” because in addition to being president and treasurer, he was a 50 percent shareholder, had check-signing, hiring and firing, borrowing and spending authority and signed the company’s federal income tax returns, and whether a bookkeeper may also have been responsible was immaterial to the taxpayer’s liability, and the court did not err in holding that the taxpayer acted willfully after he learned of the unpaid tax liability. Judgment is affirmed. Colosimo v. U.S.; U.S. v. Colosimo (MLW No. 61709/Case No. 10-1593 – 6 pages) (U.S. Court of Appeals, 8th Circuit, Beam, J.) Appealed from U.S. District Court, Southern District of Iowa, Jarvey, J. (Jerrold Alan Wanek, Des Moines, Iowa, argued for appellant; Robert C. Gainer appeared on the brief) (Christine Durney Mason, Washington, D.C., argued for appellee; Robert W. Metzler appeared on the brief).

■■Sentencing ■■Enhancement ■■Reckless Endangerment Where officers identified themselves as police as they tried to block a defendant’s vehicle in a motel lot and some of the officers were wearing police badges while two others wore raid gear, the district court properly did not find credible the defendant’s argument that he did not know he was being stopped by police officers, so at sentencing a two-level enhancement for reckless endangerment during flight was proper. Judgment is affirmed. U.S. v. Silva (MLW No. 61711/Case No. 10-1774 – 4 pages) (U.S. Court of Appeals, 8th Circuit, Murphy, J.) Appealed from U.S. District Court, District of Nebraska, Smith Camp, J. (Michael David Gooch, Omaha, Nebraska, argued for appellant) (Justin C. Dawson, Omaha, Nebraska, argued for appellee).

■■Traffic Stop ■■Officer’s Testimony Where an officer made contradictory statements in a dashboard recording and during a suppression hearing about a defendant’s failure to signal a turn before the officer pulled the vehicle over at a ruse drug checkpoint, the district court’s finding that the defendant failed to signal was clearly erroneous and the government did not offer any alternative justification for the traffic stop, so the district

Tort ■■Assault ■■Statute Of Limitations ■■Diocese Defendant Where a plaintiff, who alleged that she was raped by a priest in 1987 but did not remember the assault until 2006, brought an action against the diocese in 2007, the district court properly found the action to be barred by the statute of limitations because the action accrued in 1987 since South Dakota law does not recognize a discovery rule for older sex assault victims, and tolling of the statute of limitations is rejected because the plaintiff did not present any evidence that the diocese knew or should have known of the assault to argue that fraudulent concealment occurred, and prejudice to the diocese barred equitable tolling. Judgment is affirmed. Baye v. Diocese of Rapid City (MLW No. 61710/Case No. 10-1690 – 8 pages) (U.S. Court of Appeals, 8th Circuit, Murphy, J.) Appealed from U.S. District Court, District of South Dakota, Schreier, J. (James E. Shipman, Cedar Rapids, Iowa, argued for appellant; Stephanie E. Pochop appeared on the brief) (Jeffrey G. Hurd, Rapid City, South Dakota, argued for appellee).

M i s s o u r i L aw y e r s We e k ly

■■Exception From Discharge

termination of the mother’s parental rights and approval of adoption by the adoptive parents without the requirement of a new hearing – due to the failure to show clear, cogent and convincing evidence of abandonment, due to the manifest injustice resulting from the failure to give the mother notice and due to the inherent conflict of the mother being represented by counsel hand-picked by the adoptive parents.1 I would remand only so that the circuit court can arrange for a suitable transition process to ease the restoration of the child to his mother’s custody.”

■■Maintenance Payments

No abandonment

U.S.

Bankruptcy

Appellate Panel

Bankruptcy ■■Attorney’s Fees

■■Employment Taxes

■■Effectiveness Of Counsel

Where a Chapter 13 debtor appealed a bankruptcy court’s finding that maintenance payments and attorney’s fees awarded in his divorce decree were nondischargeable, the court did not err in characterizing the debt as a domestic support obligation rather than an award for property settlement despite the debtor’s argument that the trial court awarded the maintenance to the wife because the debtor received rights to additional income earned from his former job, and the court also properly found the award of attorney’s fees to be in the nature of support due to the parties’ disparities in education, training and employment history and income. Judgment is affirmed. Phegley v. Phegley (MLW No. 61712/Case No. 10-6063 – 8 pages) (U.S. Bankruptcy Appellate Panel, Saladino, B.J.) Appealed from U.S. Bankruptcy Court, Western District of Missouri.

Missouri Supreme Court

Domestic Relations ■■Parental Rights Termination ■■Immigrant Parent ■■Statutory Requirements Where a trial court terminated the parental rights of a Guatemalan mother and granted a Missouri couple’s petition to adopt her child based on the court’s finding of abandonment, the court failed to comply with the mandatory investigation and reporting requirements of Sections 211.455, 453.070 and 453.077, including an examination of the fitness of the natural parent, adoptive parents, and the written reports to help the court decide the issues of the parental rights termination and the best interests of the child, so the termination of the mother’s parental rights is reversed and remanded for compliance with the statutes and a new trial, and although the mother’s incarceration alone could not constitute abandonment, the adoptive parents presented sufficient evidence of abandonment for a submissible claim on the issue.

Manifest injustice

Opinion concurring in part; dissenting in part by Stith, J.: “While I respect the principal opinion’s determination that a new hearing is needed, I would reverse the

Opinion concurring in part; dissenting in part by Wolff, J.: “A review of both the lengthy discussion in the principal opinion and of Judge Stith’s separate opinion shows that – even in the absence of a true adversarial proceeding – the adoptive parent failed to prove that the mother abandoned her child. What more needs to be said or done? “The evidence for abandonment did not grow in the nearly four years the lawyers and the courts have delayed this case. The law does not allow for the mother’s child to be taken from her just because he has been in the custody of the adoptive parents for all this time. If that were the case, lawyers and courts would be encouraged to handle these cases as slowly as possible – in violation of the statutes that require expeditious treatment of these cases. Surely this Court’s mandate does not authorize a simple doover of the vital procedural steps omitted the first time around – with the result foreordained to be the same – but with the legal niceties observed. That, of course, may mean more motions and appeals, and if the child is not returned to his birth mother, perhaps to drag this case out well past the child’s tender years. The passage of time does not make a wrong a right…. “Does the principal opinion remand this case to the circuit court with the hope that the court somehow will resolve this case with the wisdom of Solomon? At least Solomon had the option to decree that the child be cut in half. All we lesser judges have is the law, and it is our duty to make sure that the law is obeyed. “Not in 90 more days or 900 more days, but now.’” Judgment is affirmed in part; reversed in part; remanded. S.M. and M.M. v. E.M.B.R. (MLW No. 61736/Case No. SC91141 – 92 pages) (Supreme Court of Missouri, Breckenridge, J.; Price, C.J., Russell and Fischer, JJ., concur; Stith, J., concurs in part and dissents in part in separate opinion filed; Teitelman and Wolff, JJ., concur in opinion of Stith, J.; Wolff, J., concurs in part and dissents in part in separate opinion filed; Teitelman and Stith, JJ., concur in opinion of Wolff, J.) Appealed from circuit court, Jasper County, Dally, J. (Christopher M. Huck and R. Omar Riojas, Seattle, and William J. Fleischaker, Joplin, represented the mother) (Richard L. Schnake, Springfield, and Joseph L. Hensley, Joplin, represented the adoptive parents).

Employer – Employee ■■Discrimination ■■MHRA ■■Municipal Judge Panel (1)Where a Caucasian candidate for municipal judge brought an action under the Missouri Human Rights Act alleging an [ Con t inued O N PAG E 16]

16 [cont inued F ROM PAGE 1 5 ]

unlawful employment practice after the three-candidate panel was rejected for its lack of diversity, the court holds that a municipal judge is an employee of the city under the act, so the plaintiff was an employment applicant entitled to sue under the act, and the $2.1 million award against the city is upheld over the city’s challenges to the admission and exclusion of experts’ testimony. (2)Where a city challenged the propriety of a punitive damages award entered against it in a Missouri Human Rights Act case, Missouri case law has held that municipalities can be liable for such damages under the act and the legislature has not amended the statute, so the trial court did not err in instructing the jury on punitive damages and sufficient evidence supported the $1.5 million award in this case.

Specificity needed

Opinion concurring in part; dissenting in part by Price Jr., J.: “I concur in the principal opinion, except the punitive damages award. In Chappell v. City of Springfield, this Court set forth the general rule that ‘in the absence of a statute specifically authorizing such recovery, punitive or exemplary damages are not recoverable against a municipal corporation’…. “The presumption is that punitive damages are not available against municipalities unless the statute specifically provides otherwise. The combination of the statutory definition of an employer and the separate statutory section allowing a court to award damages, including punitive damages, to a prevailing party, does not equate to the specificity necessary to overcome this longstanding and well-reasoned presumption.” Judgment is affirmed. Howard v. City of Kansas City, Missouri (MLW No. 61737/Case No. SC90762 – 35 pages) (Supreme Court of Missouri, Fischer, J. Teitelman, Russell, and Wolff, JJ., and Baker and Crane, Sp.JJ., concur; Price, C.J., concurs in part and dissents in part in separate opinion filed. Breckenridge and Stith, JJ., not participating) Appealed from circuit court, Platte County, McBeth, J. (Saskia C.M. Jacobse, Galen Beaufort and Jamie L. Cook, Kansas City, Missouri, for appellant) (Edward D. “Chip” Robertson Jr., Mary D. Winter and Anthony L. DeWitt, Jefferson City, and Mark A. Jess, Christie S. Jess and John J. Ziegelmeyer III, Kansas City, for respondent).

Negligence ■■Product Liability ■■Auto Manufacturer Failure To Warn (1)Where a husband and wife sued an auto manufacturer after the wife was paralyzed when her vehicle’s seat collapsed when her car was rear-ended, the trial court erred in directing a verdict for the manufacturer on the failure-to-warn claim because the plaintiffs presented sufficient evidence for a jury to find that the vehicle was unreasonably dangerous without a warning that the driver’s seat had a greater potential to collapse in a low or moderate impact rear-end collision when carrying a person of the wife’s weight. (2)Where a trial court restricted the plaintiffs’ cross-examination of an auto manufacturer’s expert in a failure-towarn case, the plaintiffs’ offer of proof was inadequate and the court properly

January 31, 2011

limited the examination to relevant matters, and the court also did not abuse its discretion in overruling the plaintiffs’ objection to a defense expert, who testified that the seat design was not defective.

Heeding presumption

Dissenting opinion by Price, C.J.: “The ‘heeding presumption’ assumes that had an adequate warning been given, it would have been heeded…Having adopted the ‘heeding presumption’ from Indiana, Missouri should follow the additional evidentiary requirements imposed by Indiana with respect to failure to warn claims…. “Because the Moores failed to offer any evidence as to what a feasible, adequate warning might say or where it might be placed, they did not make a submissible case. At least some evidence of a feasible, adequate warning should be required before application of the ‘heeding presumption.’” Judgment is affirmed in part; reversed in part; remanded. Moore v. Ford Motor Company (MLW No. 61739/Case No. SC90681 – 36 pages) (Supreme Court of Missouri, Stith, J.; Teitelman, Wolff and Breckenridge, JJ., concur; Price, C.J., dissents in separate opinion filed; Fischer, J., concurs in opinion of Price, C.J. Russell, J., not participating) Appealed from circuit court, St. Louis County, Seigel, J. (Randall L. Rhodes and Christopher J. Stucky, Kansas City, Missouri, and Stanley J. Goodkin, Clayton, for appellants) (Dan H. Ball, Carole L. Iles, Stephen G. Strauss and Molly M. Jones, St. Louis, for respondent).

■■Wrongful Death ■■Suicide ■■Expert Testimony (1)Where the family of a man, who killed himself following an allegedly negligent back surgery that left him paralyzed and in pain, sued the surgeon and surgery group, the trial court properly dismissed the plaintiffs’ action for lost chance of survival because their claim simply reasserted their wrongful death action and did not allege facts that show it was “impossible to establish that the man died as a result of the defendants’ negligence.” (2)Where the family of a man, who killed himself following an allegedly negligent back surgery that left him paralyzed and in pain, sued the surgeon and surgery group for wrongful death, a plaintiff must show that the suicide was the natural and probable consequence of the negligently inflicted injury to make a submissible case, and the jury may decide if the suicide was a direct result of the defendant’s negligence. (3)Where the plaintiffs’ expert in a wrongful death case testified that the decedent’s suicide was the result of the extreme pain caused by defendant’s allegedly negligent surgery and that the suicide was not chosen rationally and was therefore, not voluntary, the trial court abused its discretion in finding that the boardcertified psychiatrist was not qualified to testify, and the Supreme Court holds that the expert was not required to have a specific medical diagnosis, such as insanity, to testify that the suicide resulted from the alleged negligence.

Instructions adequate

“This Court is not making any changes to the causation standard for wrongful death. The Court simply is making it clear that when the decedent commits suicide, the plaintiff must show the sui-

cide was caused by the negligently inflicted injury to make a submissible case. As a result, no modification is necessary to the MAI instructions; these instructions are perfectly adequate to submit the issue of causation.” Judgment is reversed in part; affirmed in part; remanded. Kivland v. Columbia Orthopaedic Group and Robert Gaines (MLW No. 61738/Case No. SC90708 – 24 pages) (Supreme Court of Missouri, Wolff, J.; all concur) Appealed from circuit court, Boone County, Oxenhandler, J. (Thomas K. Neill, Stephen R. Woodley and Joan M. Lockwood, St. Louis, for appellants) (Kevin F. O’Malley, Theodore D. Agniel and Marcus C. Wilburs, St. Louis, for respondent).

Missouri Court of Appeals Eastern District

Appellate Practice ■■Defective Brief ■■Default Judgment Where defendants, who appealed a trial court’s denial of their motion to set aside a default judgment in a contract case, included a statement of facts that was not a fair and concise statement of the relevant facts, and their points relied on and argument were also defective, the defendants’ brief did not comply with Rule 84.04, and the appeal must be dismissed. Dismissed. First Bank v. The Annie-Joyce Group, LLC, and Byron R. Hayes (MLW No. 61723/Case No. ED95034 – 6 pages) (Missouri Court of Appeals, Eastern District, Hoff, J.) Appealed from circuit court, St. Louis County, Clifford, J. (Byron R. Hayes, pro se) (Patrick J. Boyle for respondent).

Consumer Law ■■Merchandising Practices Act ■■Loan Processing ■■Unauthorized Practice Where a homeowner brought an action against a mortgage company alleging that it had engaged in the unauthorized practice of law and violated the Missouri Merchandising Practices Act, summary judgment for the mortgage company is affirmed because the preparation of a loan application and mortgage disclosures have not been held to be “conventional legal documents,” and the homeowner also did not show that the company charged her a separate fee to prepare them, so there was no genuine dispute of material fact that the company prepared documents in the unauthorized practice of law. Judgment is affirmed. Hargis v. JLB Corporation d/b/a Golden Oak Lending (MLW No. 61721/Case No. ED94750 – 9 pages) (Missouri Court of Appeals, Eastern District, Romines, J.) Appealed from circuit court, St. Louis County, Cohen, J. (Christian G. Montroy for appellant) (Earl Robert Schultz III for respondent).

M i s s o u r i L aw y e r s We e k ly

Criminal Law ■■Expert Testimony ■■Mental Exam Use ■■Munchausen Syndrome (1)Where a mother, who was convicted of killing her son and poisoning her daughter, challenged expert testimony from a forensic psychologist, who testified that the defendant suffered from Munchausen syndrome by proxy, the expert’s testimony in response to hypothetical facts presented by the prosecutor did not violate Section 552.030 regarding the admissibility of evidence of mental illness gained during a mentalhealth examination because the facts most likely arose from the investigation and because the expert was not vouching for the truth of the facts but offering an expert opinion based on the hypothetical facts. (2)Where a mother convicted of killing her son and poisoning her daughter argued that an expert’s testimony invaded the province of the jury by determining that she possessed the mental state required for conviction, the defendant’s sanity was not an issue submitted to the jury so the expert’s testimony about the apparent rationality of the defendant did not invade the province of the jury, and testimony that the defendant acted deliberately was a single isolated occurrence during a hypothetical so the defendant did not suffer prejudice especially since she was convicted of second-degree murder for which deliberation is not an element. (3)Where an expert in a second-degree murder trial testified about Munchausen syndrome by proxy, case law does not support the defendant’s claim that the disorder is not a generally accepted diagnosis, and the convictions are affirmed because even if the trial court erred in admitting the expert’s testimony, the evidence of guilt was strong, so the error was harmless. Judgment is affirmed. State v. Pickens (MLW No. 61722/Case No. ED93494 – 40 pages) (Missouri Court of Appeals, Eastern District, Mooney, J.) Appealed from circuit court, St. Louis City, Garvey Jr., J. (Gwenda R. Robinson for appellant) (Chris Koster, Shaun J. Mackelprang and Richard A. Starnes for respondent).

Domestic Relations ■■Continuance ■■Notice ■■Parental Rights Case Where a father sought a continuance of his hearing on the termination of his parental rights, denial of the continuance is affirmed because the juvenile court confirmed that a notice of the hearing was mailed to the father, that the father’s attorney had confirmed that the father was aware of the date and that the father had not appeared for the last three hearings and did not state a definite intent to appear even if a continuance were granted, and the motion for continuance also did not comply with Rule 65.03 in that it was not written and accompanied by an affidavit. Judgment is affirmed. In the Interest of: R.M.K. (MLW No. 61718/ Case No. ED95241 – 4 pages) (Missouri Court of Appeals, Eastern District, Gaertner Jr., J.) Appealed from circuit court, St. Louis County, Burton, J. (John R. Bird for appellant) (Allison Wolff for respondent).

January 31, 2011

Real Estate

Eastern District, Crane, J.) Appealed from the Labor and Industrial Relations Commission (James M. Martin for appellant) (Bart A. Matanic for respondent).

■■Second Deed Of Trust ■■Failure To Disclose ■■Unjust Enrichment Where a title insurance company sued to recover $6,688 owed by a seller on a second deed of trust on real estate sold to the title company’s insured after the title company paid this amount to the mortgagor since the seller did not disclose the existence of the second deed at the time of the sale, judgment for the title company is affirmed because the defendant was unjustly enriched by receiving more money at closing than it would have if the second deed had been disclosed since the deed was a debt belonging to the defendants’ estate that would have been satisfied by a deduction from the sale proceeds. Judgment is affirmed. Title Partners Agency, LLC v. Devisees of the Last Will and Testament of M. Sharon Dorsey and Patrick T. Dorsey (MLW No. 61720/ Case No. ED94942 – 7 pages) (Missouri Court of Appeals, Eastern District, Crane, J.) Appealed from circuit court, St. Louis County, Clifford, J. (Robert J. Selsor for respondent) (Robert J. Maurer for appellant).

Unemployment Compensation ■■Denial Of Benefits ■■Misconduct ■■Willfulness Where a maintenance technician, who was fired for failing to follow safety practices and for failing to report a co-worker’s injury, appealed the denial of his unemployment compensation benefits, the technician’s conduct was sufficient to support his firing but it was not willful or deliberate to support a finding of misconduct because the record supported the technician’s claims that he did not intentionally violate the reporting rule since he did not believe there was an injury and the co-worker did not appear injured, and he honestly believed that he was following the safety rules since he was working “next to” an electrical panel rather than on the panel. Judgment is reversed and remanded. Tenge v. Washington Group International, Inc. (MLW No. 61719/Case No. ED94994 – 10 pages) (Missouri Court of Appeals,

Missouri Court of Appeals Southern District

Civil Practice ■■Closed Case File ■■Public Record ■■Suspended Imposition Where a newspaper publishing company argued that it was entitled to examine the file of city police chief who was charged with felony forgery and misdemeanor stealing, the case involved a suspended imposition of sentence, which requires the file to be closed when the case is finally terminated, such as when the defendant completes probation, and the newspaper’s request was submitted to a trial court judge before the police chief completed his probation, so the newspaper should have access to the file until the case was terminated. Preliminary order made permanent. State ex rel. Pulitzer Missouri Newspapers, Inc. v. Seay (MLW No. 61724/Case No. SD30704 – 8 pages) (Missouri Court of Appeals, Southern District, Frances Jr., J.) Original proceeding in prohibition (Tom R. Burcham III, Farmington, for relator) (Chris Koster and Arax Ruth Corn, Jefferson City, for respondent).

Criminal Law ■■Breath Test ■■Murder Case ■■Incident To Arrest Where a defendant was ordered to take a breath test without Miranda warnings or a search warrant following his arrest for second-degree murder, armed criminal action and unlawful use of a weapon, Missouri case law supports the “warrantless extraction of a blood sample without

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consent but incident to a lawful arrest,” so the trial court erred in suppressing the breath test evidence.

First impression

Dissenting opinion by Rahmeyer, P.J.: “I disagree that the various cases hold in a non-driving case that it was error to suppress the evidence.1 I believe, as both parties stated, that this is a case of first impression in Missouri. As such, I would not casually extend the exceptions to the Fourth Amendment to non-driving cases. I would find that Defendant did not consent, exigent circumstances for the search did not exist, and the search was not incidental to arrest…. “Most importantly, I see no compelling reason to extend the application of Fourth Amendment warrant exceptions to a breath test aimed at discovering alcohol evidence in a nondriving case, without thoughtful consideration of the consequences. The case law cited by the majority all involve the operation of a motor vehicle while intoxicated. I do not believe the cases can be said to present a compelling argument for extension of the Fourth Amendment exceptions at play in this case. I disagree with the majority’s analysis insofar as it seemingly attempts to create a single-factor exigency exception to the search warrant requirement any time alcohol is believed to be a factor in a crime.” Judgment is reversed and remanded. State v. Dowdy (MLW No. 61727/Case No. SD30381 – 4 pages) (Missouri Court of Appeals, Southern District, Scott, C.J.) Appealed from circuit court, Stone County, Wiley, J. (Tyson J. Martin for appellant) (Chris Koster and Jayne T. Woods for respondent).

■■Deadly Force ■■Self Defense ■■Batson (1)Where a trial court in a first-degree assault and armed-criminal action case excluded evidence that the unarmed victim made a threatening statement shortly before the attack, the excluded evidence including the victim’s statement did not warrant a self-defense instruction because deadly force cannot be used to repel a simple assault and battery. (2)Where a prosecutor struck a potential juror who when asked if an insult could justify the use of physical force replied “it depends on what the words are,” the prosecutor explained that the strike was based on the juror’s belief that a racial slur could

M i s s o u r i L aw y e r s We e k ly

justify violence, which is contrary to the law, so the trial court did err in finding the reason to be race neutral and overruling the defendant’s Batson challenge. Judgment is affirmed. State v. Wiley (MLW No. 61731/Case No. SD30014 – 10 pages) (Missouri Court of Appeals, Southern District, Scott, C.J.) Appealed from circuit court, Pemiscot County, Copeland, J. (Melinda K. Pendergraph for appellant) (Chris Koster and James B. Farnsworth for respondent).

■■Tampering ■■Judicial Officer ■■Law Student Defendant Where a law-student defendant cited for traffic violations who objected to the denial of a continuance wrote threatening letters to judges, the defendant’s conviction for tampering with a judicial officer is affirmed because the language in the letters was threatening and there was no need for testimony from the judges that they felt threatened, and the defendant did not show that the court improperly barred him from arguing an adverse inference from the state’s failure to call the judges as witnesses. Judgment is affirmed. State v. Wolfe (MLW No. 61730/Case No. SD30166 – 9 pages) (Missouri Court of Appeals, Southern District, Scott, C.J.) Appealed from circuit court, Greene County, McBeth, Sp. J. (Thomas D. Carver for appellant) (Chris Koster and John W. Grantham for respondent).

■■Traffic Stop ■■Drug Evidence Where an officer observed defendant’s vehicle driving on the center line and weaving in his lane, erratic movements within a lane are sufficient to justify an investigatory stop, and the officer smelled burning marijuana when the defendant rolled down his window, so the trial court did not err in overruling the defendant’s motion to suppress evidence of marijuana seized during a search. Judgment is affirmed. State v. Brown (MLW No. 61729/Case No. SD30179 – 9 pages) (Missouri Court of Appeals, Southern District, Burrell, J.) Appealed from circuit court, Greene County, Mountjoy, J. (Donald R. Cooley, Springfield, for appellant) (Chris Koster and John M. Reeves, Jefferson City, for respondent). [ Con t inued O N PAG E 18]

Contact Torrey Marbury 314-558-3264 | Torrey.Marbury@molawyersmedia.com JERRY R. PALMER

MEDIATION SERVICES

Mediator

PROMPT, EXPERIENCED, AND REASONABLY PRICED ASSISTANCE FOR THE SUCCESSFUL RESOLUTION OF ALL YOUR DISPUTES

Litigation and Disputes including: Construction • Business & Commercial Torts • Employment • Real Estate Insurance • Other Civil Litigation

Bruce S. Feldacker Attorney/Mediator St. Louis, MO

laborlaw@anet-stl.com 314-862-3333, Ext. 15 MEDIATION THROUGHOUT MISSOURI AND ILLINOIS TO RESOLVE LABOR & EMPLOYMENT LAW, INDUSTRIAL, AND GENERAL CIVIL DISPUTES IN THE PUBLIC AND PRIVATE SECTORS ACR Advanced Practitioner in Workplace Mediation; Designated a Super Lawyer in ADR for Missouri; Past Co-chair, ABA Committee on ADR in Labor & Employment Law; Past President, Association of Missouri Mediators. Please visit my website, www.mediate.com/feldacker for complete biographical information and articles I have written on the mediation process

Randy W. James JAMES LEGAL SERVICES, P.C. Putting 28 years of civil trial experience to work in resolving cases through mediation Serving Kansas and Missouri 816-554-1500 rjames@jameslawkc.com www.jameslawkc.com

• Over 900 Mediations, including more than 1,000 lawyers, with cases up to 15 parties • Concludes settlements with a neutral agreement document signed by all participants that can be given Judicial Recognition • 42 years trial and mediation experience • Kansas City Metropolitan area

CALL: 800-281-1836

email: palmerjer@jpalmerlaw.com For more Information visit : www.palmermediation.com Fellow:International Academy of Mediators, American College of Civil Trial Mediators, American College of Trial Lawyers ••• Top 100 Super Lawyer Kansas and Missouri 2005 - 2007 The Best Lawyers in America Listing for 17 years

18 [cont inued F ROM PAGE 1 7 ]

Domestic Relations ■■Dissolution ■■Duress ■■Lack Of Evidence Where a husband involved in a dissolution argued that he signed settlement documents under duress after being threatened with criminal prosecution, the husband did not offer any evidence to support the allegations and no request for an evidentiary hearing, so there was nothing to review and the trial court did not err in ruling on the after-trial motion. Judgment is affirmed. Rawlings v. Rawlings (MLW No. 61726/ Case No. SD30399 – 4 pages) (Missouri Court of Appeals, Southern District, Rahmeyer, P.J.) Appealed from circuit court, Greene County, Powell, J. (Jennifer D. Akre for appellant) (Ann R. Littell Mills for respondent).

January 31, 2011

Probate ■■Guardianship ■■Parental Fitness ■■Grandparent Appointment Where a child’s father challenged the appointment of the child’s maternal grandfather as the child’s guardian, the evidence supported the probate court’s finding that the father was not fit because he did not have a plan for childcare, insurance or housing and had problems with alcohol, marijuana and anger management. Judgment is affirmed. Herrick v. Reed (MLW No. 61728/Case No. SD30309 – 4 pages) (Missouri Court of Appeals, Southern District, Rahmeyer, P.J.) Appealed from circuit court, Phelps County, Clayton, Sp. J. (Daniel J. Pingelton for appellant) (Carolyn G. Buschjost for respondent).

Missouri Court of Appeals Western District

■■DWI ■■Report Inconsistencies Even though inconsistencies existed between an alcohol influence report and an officer’s testimony and videotape in a DWI case, the purported inconsistencies, including whether the driver was handcuffed, were immaterial, and the trial court could rely on the report and testimony to find that the driver refused to cooperate with a breath test. Judgment is affirmed. Wei v. Director of Revenue (MLW No. 61725/Case No. SD30465 – 15 pages) (Missouri Court of Appeals, Southern District, Barney, P.J.) Appealed from circuit court, Camden County, Bennett, J. (Jianbin Wei for appellant) (Jonathan H. Hale for respondent).

Criminal Law ■■Probation ■■Revocation ■■Jurisdiction

Driver’s License ■■Breath Test

ability and thus meets this requirement for eligibility for Medicaid Waiver services, and the woman also qualified as a person with a related condition to mental retardation due to her hyperphagia. Judgment is affirmed; remanded for reasonable fees and expenses. Weisenborn v. Missouri Department of Mental Health, et al. (MLW No. 61734/ Case No. WD72126 – 24 pages) (Missouri Court of Appeals, Western District, Witt, J.) Appealed from circuit court, Macon County, Grimm, J. (Susan K. Eckles, St. Louis, and Erica L. Stephens, Jefferson City, for respondent) (Kathleen R. Robertson, Jefferson City, for appellants).

Administrative ■■Medicaid Waiver Services ■■Denial Of Benefits ■■‘Self Care’ Where a woman who suffered from Prader-Willi Syndrome, a genetic condition that affects brain functioning, body composition and cognitive and behavioral functioning, appealed the denial of Medicaid Waiver benefits, the Department properly found that the woman did not qualify as mentally retarded, but the Department misapplied the law when it found that she was not limited in the area of “self care,” so the evidence supported a finding that she has a developmental dis-

Where a defendant argued that a trial court did not have jurisdiction to revoke a second term of probation because his first term of probation had expired, when the defendant violated his probation terms from his suspended imposition of sentence, the court was authorized to revoke probation, impose a sentence, suspend the execution of the sentence and place him on a second probation, and the defendant did not show that the court’s docket entry was invalid, so the court was authorized to grant the defendant probation, so denial of post-conviction relief is affirmed. Judgment is affirmed. Bowers v. State (MLW No. 61733/Case No. WD72159 – 9 pages) (Missouri Court of Appeals, Western District, Pfeiffer, J.) Appealed from circuit court, Daviess County, Funk, J. (William J. Fleischaker, Joplin, for appellant) (Chris Koster and Jayne T. Woods, Jefferson City, for respondent).

■■Sentencing ■■Persistent Offender ■■Prior Convictions Where a defendant convicted of felony

M i s s o u r i L aw y e r s We e k ly

stealing argued that the trial court used the same convictions to establish both that she had two prior convictions and that she was a persistent offender, under the Missouri Supreme Court decision in State v. Ewanchen the statute does not prevent the same convictions from being used to both enhance a stealing conviction and to establish persistent-offender status. Judgment is affirmed. State v. Hayes (MLW No. 61735/Case No. WD71744 – 6 pages) (Missouri Court of Appeals, Western District, Welsh, P.J.) Appealed from circuit court, Cole County, Callahan, J. (Melinda K. Pendergraph, Columbia, for appellant) (Richard A. Starnes, Jefferson City, for respondent).

Insurance ■■Subrogation Waiver ■■Property Damage ■■Construction Contract Where a general contractor sued a subcontractor for remuneration after the general contractor’s insurer paid for damages to a facility caused by the subcontractor’s installation of a sprinkler, the trial court’s grant of summary judgment to the subcontractor is reversed because although the subcontractor showed that the general contractor waived its right of subrogation, a genuine dispute existed as to whether the waiver was valid and whether the damages were covered by the required insurance since the subcontractor must show that the general contract and waiver were in effect at the time of the sprinkler leak. Judgment is reversed and remanded. Haren & Laughlin Construction Company, Inc. v. Jayhawk Fire Sprinkler Company, Inc. (MLW No. 61732/Case No. WD72333 – 8 pages) (Missouri Court of Appeals, Western District, Newton, P.J.) Appealed from circuit court, Jackson County, Youngs, J. (Bryan M. Groh and Jessica R. Beever, Kansas City, Missouri, for appellant) (Roger W. Warren and William P. Denning, Overland Park, Kansas, for respondent).

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& . 0 All ( the )*+ ,- ./ claims $against Company must be in writing and must include the '#

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the amount of the claim, basis of the claim, and copies of any documenta)*+ ,- ./ . 0 Family Court of St. Louis County is seeking two attorneys to serve as tion for the claim. All claims should be mailed to c/o Christine M. guardians ad litem in the Family Court, one to handle primarily juvenile )*+ ,- ./ . 0 Noonan, 101 South Hanley, Suite 1250, St. Louis, Missouri 63105. the other to handle primarily domestic relations matters. to enAmatters claim and against the Company will be barred unless a proceeding Guardians ad litem who serve the Courtthree mustyears commit to serve in various of force the claim is commenced within after the publication Court cases on an as needed basis for a monthly retainer to be thisFamily notice. paid of by Publication: public funds. January The current retainer is in the amount of $1,750.00 Date 11, 2010 10225310 per month. Payments for time expended in adoption, guardianship of

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minor, and termination of parental rights matters may be made over NOTICE OF WINDING UP OF BDH HOLDINGS, LLCand above the retainer fee.

BDH HOLDINGS, LLC, a Missouri limited liaOn December 30, 2009,

bility company (the â&#x20AC;&#x153;Companyâ&#x20AC;?), filed its Notice of Winding Up for Lim MINIMUM QUALIFICATIONS: Graduation from an accredited law school, ited Liability Company with the Missouri Secretary of State. The dissolupossession of a current license to practice law in the State of Missouri, tion of the Company was effective on December 30, 2009. at least three (3) years ofthat trial all experience, in juvenile, family, The Company requests persons preferably and entities with claims against criminal law (additional of trial experience and guardian ad litem theorCompany present them inyears accordance with this notice. experience are highly completion of necessary guardian All claims against thepreferred), Company and must be in writing and must include the ad litem as required Supreme Courtcopies of Missouri. amount of training the claim, the basisbyofthethe claim, and of any Note: documentaThese are subject to continued of to funding. tion for positions the claim. All claims shouldavailability be mailed c/o Christine M. Noonan, 101 South Hanley, Suite 1250, St. Louis, Missouri 63105. apply,against please the sendCompany a current will resume, along with a cover letter, to the AToclaim be barred unless a proceeding to enfollowing address (application materials must years be postmarked February of force the claim is commenced within three after the by publication 2011): Attn: Human Resources Department, Family Court of St. this11, notice. Louis 501 S. Brentwood Blvd., Clayton, MO 63105. EOE. Date ofCounty, Publication: January 11, 2010 10225313

Please indicate in your cover letter if you are interested in handling primarily juvenile matters, domestic matters, or CORPORATION both. Please contact the NOTICE OF DISSOLUTION OF Human Resources Department at 615-4471 (voice) On November 9, 2009, Lester Collins Drywall, Inc.,ora615-5889 Missouri(TTY) corporaif you any accommodations in the application or if youwith the tion, wasneed dissolved upon the filing of its articles process, of dissolution would like this posting in an alternative form.was effective on November 9, Missouri Secretary of State. Dissolution

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NOTICE OF CORPORATE DISSOLUTION TO ALL CREDITORS OF AND CLAIMANTS AGAINST THE DATARECTORY COMPANY, INC. Effective 12/31/2009, THE DATARECTORY COMPANY, INC., a Missouri corporation (the â&#x20AC;&#x153;Companyâ&#x20AC;?), filed its Articles of Dissolution with the Missouri Secretary of State and was voluntarily dissolved. The Company requests that all persons and entities with claims against John G. Corrona theâ&#x20AC;˘ Company them in accordance with this Accidentpresent Reconstruction n Over 40 notice. years experience, All claims against the Company must be in writingAvailable) and must include the (References â&#x20AC;˘ Rapid Response name, address and telephone number ofn the claimant, the amount of the Licensed Private Investigator â&#x20AC;˘ Animation claim or other relief demanded, the basis nofMO. theLic.claim, the date or dates on 2010014149 which the events occurred which providen aMO. basis for2010040549 the claim, and copies â&#x20AC;˘ Vehicle Dynamics P.I. Lic. of any available document supporting the claim.Missouri All claims should be n Member: Association of â&#x20AC;˘ ATV mailed to: The Datarectory Company, Inc.,Private c/o Stephen Hearn, 1807 Park Investigators and National Tire analysis or St. failure 270â&#x20AC;˘ Drive, Suite 300, Louis, MO 63146. Association of Legal Investigators Any claim against the Company will be barred unless a proceeding to enforce the13045 claim commenced within twoOffice: (2) years after the publication of 800-764-6529 W.is Highway 62 Email: cii3@sbcglobal.net this notice. Farmington, AR 72730 Date of Publication: January 11, 2010 www.covertinquiries.com 10225304 479-846-8000 www.enginst.org

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NOTICE OF DISSOLUTION OF LIMITED LIABILITY COMPANY TO ALL CREDITORS OF AND CLAIMANTS AGAINST EXTENDED WARRANTY COMPANY, L.L.C. This notice is to inform whom it may concern that Extended Warranty Company, L.L.C., has on the 4th day of November, 2009, filed a Notice of Winding Up for Limited Liability Company with the Missouri Secretary of State. Dissolution was effective on November 4, 2009. Any claims against the Company should be forwarded to the following address: Donald A. Baerveldt, 566 First Capitol Drive, Saint Charles, MO 63301. The claim must include the following information: (1)Firm the in name, address AV Rated Law Clayton - 26 N. Central and telephone number of the claimant; (2)convenient, the amountcentral, of thenear claim; (3) the west date theFloor) claim accrued or will accrue; (4)St. a Louis brief description the nature (2nd - walk to County withof three ofCourthouse. the debt or the 1000 basis for whether the claim is secured, and sq.the claim; (5) available ofďŹ ces in newly if so, the collateral used as security; and (6) documentation to substantiate renovated, modern building ft.claim. ofďŹ ce, 3 rooms plus the with ample parking seeks to bathroom. 10 hour parking You are further notified that all claims against the company shall be rent to a ďŹ rm, or individuals,within barred unless a proceeding the claim is commenced nearby. Perfect for law to enforce with real estate or corporate three years after the publication of this Notice. ofďŹ ce or other small Date of Publication: January 11, 2010 practices who can supplement 10225525

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2009. The corporation requests that all persons and organizations with claims against it present them immediately by letter to the corporation at 201 East Pearl, Savannah, Missouri 64485. All claims must include: the name and address of the claimant, the amount claimed, the basis for the claim, and the date(s) on which the event(s) on which the claim is based occurred. NOTICE: Because of the dissolution of Lester Collins Drywall, Inc., any claims against it will be barred unless a proceeding to enforce the claim is commenced within two years after the publication date of the two notices authorized by statute (Â§351.482, RSMo), whichever is published last. Date of Publication: January 11, 2010 10225327

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of All persons and organizations with claims against the Corporation must submit a written sumTO ALL CREDITORS OF AND CLAIMANTS AGAINST

Cantwell & Brown, P.C., 2805 S. Ingram Mill, Springfield, Missouri 65804-4043, including: 1) ans, claimantâ&#x20AC;&#x2122;s name, address and telephone number; 2) claim amount; 3) date(s) claim accrued (or

mary should of the claim to Springfield Center, Inc., c/o Clifford S.*Brown, Esq., Carnahan, Ev* Missouri Supreme Court rule 4-7.2 (F) states: The choice of a lawyer is an important decision and not be basedResidential solely on advertisements

will accrue); 4) brief description of the nature of the debt or basis for the claim; and 5) if the claim is secured, and if so, the collateral used as security. Because of the dissolution, any claims against Springfield Residential Center, Inc. will be barred unless a proceeding to enforce the claim is commenced within two (2) years after the last publication of the two (one each statewide and county) notices authorized by statute. Date of Publication of this Notice: January 31, 2011 10271600

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