Missouri Injury Lawyer Blog

As a St. Louis head injury lawyer, I know head injuries are complex injuries that often seem like they come from unrelated causes, or more than one cause. That was why I was interested to see the Missouri Supreme Court’s ruling in State ex rel. BNSF Railway Co. v. Neill, a case in which a railroad wants to see the psychiatric records of a brain-injured worker suing for his injures. Michael Patton sued BNSF over injuries sustained in an August 2001 fall resulting in injures to his head, neck and shoulder. Patton was already under psychiatric treatment, and BNSF wanted to argue at trial that the fall was caused by Patton’s use of psychiatric drugs. The trial court prevented the records’ discovery, but the high court reversed in light of the specific circumstances.

Patton, whose job was not specified, was performing heavy manual labor in the heat of a Missouri August when he fell in August of 2001. He fell again at work in October of 2002 when he discovered that colleagues had filled his car with garbage as a prank. In both cases, he alleged that BNSF had negligently failed to provide a safe workplace, which he says has caused recurring seizures or fainting spells. BNSF argues that Patton’s problems stem from abuse of, or withdrawal from, prescription drugs, a theory supported by records of an unrelated previous lawsuit and by medical records, which showed that Patton was receiving powerful prescription medications from two different doctors before the doctors learned of one another’s existence. Patton’s first accident happened shortly after those doctors scaled back his access to the drugs. He later sought the drugs at several emergency rooms.

Patton later began treatment with a psychiatrist, Dr. Shankararao Rao, who had prescribed drugs for depression and anxiety when Patton’s second accident happened. BNSF subpoenaed all records from Rao’s office related to Patton, believing they would have admissible evidence. The trial court instead granted a protective order to Patton’s records, ruling that Rao’s records were irrelevant.

BNSF petitioned the Missouri Supreme Court for a writ of mandamus reversing that decision. A temporary writ was granted, and in this decision, the writ was made permanent. It first noted that even when information is not admissible at trial, it may still be discoverable if it contains discoverable information. The trial court felt that Patton’s mental condition must be irrelevant to a claim that is solely for physical injuries, but the high court said it had failed to consider the relevance of the information BNSF actually sought. Documents sought must be “reasonably calculated to lead to the discovery of admissible evidence,” the court noted, and these documents meet that test because they are relevant to causation. Trial courts must use their discretion in each case about whether the discovery request meets criteria or is just a “fishing expedition,” the Supreme Court said — but it was incorrect for the trial court to deny discovery simply because Patton made no psychiatric claims.

One dissent argued that BNSF’s request was overly broad, particularly considering that it already had Rao’s prescription records and may have abused the discovery process. Another dissent argued that the situation is not extraordinary enough to justify interference with the trial court.

As a Missouri personal injury attorney, I’m very interested in the issue of when discovery steps over the line. When an individual sues a large company, as in this case, the deck is stacked for the company because of its greater financial resources and legal firepower. This can give the stronger party an incentive to drag out discovery, picking fights over requests it knows very well will not be permitted by a competent judge. One dissent in this case suggests that BNSF abused the discovery process in several ways, and thus the denial of this discovery request may have been a sanction. Whether or not that’s true, it pays for plaintiffs like Patton to have an experienced southern Illinois bran injury lawyer by their sides so they can fight off abusive, invasive discovery requests.

Continue reading "Missouri Supreme Court Allows Employer to View Psychiatric Records in Workplace Injury Case – State ex rel. BNSF v. Neill" »

A couple in Beaufort, South Carolina, has disavowed any responsibility in the death of a 6 year old boy found drowned in the family pool during a party.

The family of Camilo Andres Restrepo-Lopez filed a wrongful death suit in October against John and Julia Sanford after Camilo was found in the Sanford family pool following the party hosted by the Sanfords. He was rushed to the Medical University of South Carolina in Charleston in an effort to revive him, but to no avail. Camilo unfortunately died while in the care of the hospital.

For their defense, the Sanfords argue that they were not told by the Lopez family that Camilo was unable to swim, and that his own family did not attempt to provide supervision of their son. For these reasons and others, the death was ruled an accident by local police authorities, the Beaufort County Sheriff's Office, and no criminal charges were filed in connection with the death.

This prompted the Lopez's civil suit, which is claiming actual and punitive damages as compensation for Camilo's death.

The case is further complicated because it is unclear who will be presiding over the final litigation. The original judge, Judge Marvin Dukes, recused himself from the case for a conflict of interest. He did not make the nature of this conflict clear at the time he recused himself.

The Sanford family are relatives of South Carolina governor Mark Sanford.

Cases such as these illustrate the often complex nature of wrongful death lawsuits. There is clearly a duty for parents to make sure their own children are supervised properly, whether that consists of keeping an eye on the kids themselves or by telling the hosts of a party that a child is unable to swim. On the other hand, there is a duty for the hosts of a pool event where children will be present to be sure that everyone is safe.

As a Missouri injury attorney, I know states have been pursuing lawsuits with tobacco companies for many years, alleging the companies hurt people and drove up state costs by failing to disclose information on the risks of smoking. So I was interested to see a recent Oregon Supreme Court ruling saying that state could not legally release its claim to its share of a large tobacco settlement. Williams v. RJ Reynolds Tobacco Company was filed by Mayola Williams, the personal representative of deceased smoker Jesse Williams, and tied up in appeals in the 12 years since the original victory for Williams in 1999. Reynolds eventually paid the damages slated for the Williams estate, but refused to pay the 60 percent slated for the state of Oregon, saying the state released its claim to the damages in another settlement. In this case, the high court found that the state’s statutory right to the damages is not a “released claim” within the meaning of the settlement.

The estate of Jesse Williams sued after his death from lung cancer in 1997, alleging fraud and negligence by Reynolds. It won a total of $79.5 million in compensatory and punitive damages in 1999, and after lengthy appeals, the punitive damages award was upheld in 2009. The state of Oregon is entitled to 60 percent of the punitive damages under a state law funding crime victims’ services. Meanwhile, the state of Oregon itself had also sued tobacco companies, claiming millions in smoking-related losses for Medicaid and state employee health care expenses. That case was combined with other states’ cases and ended in a national settlement in which Oregon and other states released future claims relating to many aspects of tobacco products.

When the Williams case was originally decided, Reynolds told the state that the multistate settlement had relieved it of any duty to pay the 60 percent of the punitive damages in Williams. The state moved to enforce its damages in court, but this was stayed for years during appeals. When Williams was resolved, it recommenced trial and eventually found for Reynolds. Both Williams and the state appealed, and the Oregon Court of Appeals certified the case directly to the state Supreme Court.

Reynolds suffered a reverse of fortune on appeal, where the high court found no release of damages by the state of Oregon. In the multistate settlement agreement, Oregon released Reynolds from liability for “any and all civil claims... liabilities of any nature... whether legal, equitable or statutory.” The question is whether the state’s interest in the Williams settlement is covered by this release, the court noted. That interest was not created by direct participation in the case, it said, but by state statute. And that statute applies regardless of the nature or subject of the underlying claim, the court noted — which means the state’s interest does not truly arise from tobacco-related claims. The state is a judgment creditor, but does not have any special rights or obligations before judgment is entered. Thus, the state’s interest in these damages is not a “released claim” under the multistate settlement, even though that settlement defined “claim” quite broadly. The high court reversed the trial court and ordered an entry of judgment for the state.

As a St. Louis product liability lawyer, I applaud this decision. If Reynolds had succeeded on appeal, it would have been released from liability more than half of the money it was ordered to pay in the original case. And thanks to the decade of appeals in that case, the public can rest assured that those damages are legally valid. As it is, both the Williams estate and the state of Oregon have waited a decade or longer for the money they’re owed. This is possible for large companies like tobacco companies because they have the resources to keep legal issues alive, even when they look like losers, legally speaking. With so much money at stake, companies are often willing to spend a lot on lawyers to file “hail Marys,” because the legal fees are cheaper than paying what they owe. A large part of my work as a southern Illinois defective products attorney is helping injured people overcome the disadvantage their unequal resources gives them when they sue large companies.

Continue reading "Oregon High Court Rules State Cannot Release Interest in Tobacco Class Action Settlement" »

In 2009, on the side of a Utah Highway, a Highway State Patrol Trooper fired a taser into Brian Cardall. Cardall, who is diagnosed with bipolar disorder, was having a manic episode at the time. Seeing Cardall's behavior, the officer fired his taser into the man twice, leaving him lying lifeless on the ground. Cardall's wife, Anna Cardall, asked the officer if her husband was alright. When the officer did not answer, she asked if she could provide her husband with some aid. The officers refused and ordered her to stay inside her vehicle.

No aid was given to Cardall until paramedics arrived on the scene, a factor that representatives for Mrs. Cardall argue contributed directly to the victim's death.

As a result, a federal judge is determining if the wrongful death case will move forward to U.S. District Courts.

The plaintiffs named in the suit are Anna Cardall, her daughters Ava and Bella Cardall, and Brian Cardall's parents, Margaret and Duane Cardall. Defendants named in the suit are Officers Thompson,Hurricane Police Chief Lynn Excell and the City of Hurricaine as defendants.

The suit claims that the actions of officers Thompson and Chief Excell constituted willful misconduct, intentional infliction of emotional distress, deprivation of constitutional rights, and of course wrongful death.

Judge Clark Waddoups heard initial arguments for the case, pertaining to whether he should render summary judgment. These initial debates allowed defense and plaintiff to explain the general merits of the evidence as it is understood so far, with the defense requesting a summary judgment dismissing all charges as frivolous, while the plaintiffs were insisting that the evidence merits going forward.

The defense attorneys for the officers argue that their clients never intended to kill Mr. Cardall, and were responding as best they could after 911 calls indicated Cardall was running around in traffic nude. However, the plaintiffs have argued that there are a number of other responses short of the use of the highly dangerous taser devices.

As a Missouri car accident attorney, I was interested to read a federal appeals court decision dismissing an insurance coverage dispute — at least for now. In Zbegner v. Allied Property & Casualty Insurance Co., the Tenth U.S. Circuit Court of Appeals ruled Zbegner may not pursue his lawsuit for underinsured motorist benefits yet because it isn’t yet clear how much he could recover from the other driver’s insurance company. Zbegner was injured in a crash he says was caused by Jesse Hanson, who was not well enough insured to cover all of Zbegner’s claims. Hanson’s insurer has paid a property damage settlement and made an offer for Zbegner’s injuries, but the injury claim is not resolved. For that reason, the Tenth said Zbegner may not yet pursue a lawsuit.

Zbegner’s suit says he suffered severe injuries with damages of more than $150,000. He accepted a $350 property damage payment from Hanson’s insurer, Allstate, but has not accepted an offer of $2,145 to settle his injury claim. He then turned to his own insurer, Allied, to request the policy limits of his underinsured motorist policy. Allied declined and Zbegner sued for breach of contract, breach of covenant of good faith and violations of Colorado law. Allied moved to dismiss, arguing that the case was not yet ripe because it couldn’t know what it might owe Zbegner until he resolved his claim with Allstate. The federal district court agreed, construing Colorado law on ripeness and concluding that Zbegner suffers no undue hardship from waiting. It dismissed his claim without prejudice and he appealed.

The Tenth Circuit agreed that Zbegner’s claim is not yet ripe. Under Colorado law, which is controlling, it said the amount due under a UIM policy cannot be known until the underlying claim against the at-fault party is resolved. Zbegner argued that the language of his policy with Allied is distinct from the language in the case at issue, but the Tenth Circuit said the language of the policy was irrelevant — the ruling did not rely solely on the policy language. State law provides two different ways to calculate an insurer’s maximum liability under an underinsured (or uninsured) motorist policy, one of which depends on the payout by other parties. Allied further argued that its policy language requires waiting to see what other recoveries are, and the Tenth Circuit agreed, noting that many state courts have found this. Thus, the Tenth upheld the district court’s dismissal without prejudice.

As a St. Louis auto accident lawyer, I suspect Zbegner will be back in court. The decision doesn’t explain why he never settled with Allstate, but if he can document his claim for $150,000 in damages — which is well over the $2,145 settlement Allstate offered him — the chances are good that he won’t be able to collect the entire amount from the underinsured Hanson. In fact, the Tenth Circuit noted that Hanson’s policy limit is just $25,000, so it is inevitable that Zbegner will not be able to collect $150,000 — the question is merely whether or how much he will be able to recover from Allstate. In general, our southern Illinois car crash attorneys pursue payment from as many sources as necessary when our clients are seriously injured. This often starts with the at-fault driver, but as this case shows, action against your own insurer is sometimes necessary as well.

Continue reading "Tenth Circuit Agrees Lawsuit for Uninsured Motorist Benefits Not Ripe for Adjudication – Zbegner v. Allied Property & Casualty" »

Two years ago two young girls died from pesticide poisoning. The family of the girls has just settled its wrongful death claim against the company and an employee the family claims were responsible for the girls' deaths.

Nathan and Brenda Toone's attorneys and the attorneys from Bugman Pest and Lawn filed papers ending the dispute last month. Two years ago, the Toone family contracted Bugman Pest and Lawn to exterminate field mice outside the Toone family home. They had authorized the use pesticides for the extermination. Within several days of Bugman Pest and Lawn's treatment, the two Toone daughters' hearts stopped and both died. The pesticide, Fumitoxin, was alleged by the family to have been improperly used in proximity to their house, and thus directly contributory to their daughters' deaths.

Adding to the seriousness of the complaint, a key component and the active ingredient of Fumitoxin is aluminum phosphide. Aluminum phosphide was outlawed by the US Environmental Protection Agency just a few months after the Toone girls' deaths.

Bugman Pest and Lawn, as well as its employee, Coleman Nocks, agreed to plead guilty to one count of misuse of a pesticide as part of the settlement agreement. In exchange, the Toones settled their claim against Bugman, Nocks, and "John Does 1-5," who they alleged were responsible for Nocks's training and use of equipment.

Previously, Bugman and Nocks had filed documents contending that the primary fault lay with unidentified "third parties" over whom Nocks would and could have no control.

The other details of the settlement are as yet unclear. The suit claimed unspecified damages. It alleged negligence, negligent infliction of emotional distress, nuisance and abnormally dangerous activity. The plaintiffs listed on the lawsuit included the two deceased girls, the girls' older siblings, and the parents.

The criminal case to which Nocks and Bugman pled guilty will conclude its sentencing phase next month.

As a southern Illinois product liability attorney, I was interested to see a case in the Seventh U.S. Circuit Court of Appeals involving an accident with allegedly defective scaffolding. In Bielskis v. Louisville Ladders Inc., Raymond Bielskis sued over injuries he sustained after falling from a three-foot mini-scaffold. The case turned on his ability to prove his claim with an expert witness. The trial court found that his expert was qualified to testify, but failed a Daubert test and thus was barred from testifying. Without his expert, the court then ruled, Bielskis could not continue his case. In this opinion, the Seventh U.S. Circuit Court of Appeals upholds those decisions.

Bielskis was an acoustical ceiling carpenter for International Decoration at the time of his 2005 accident. A previous employer had given him a mini-scaffold that he rarely used, but used it on that day because a colleague had borrowed his larger scaffold. After working on the mini-scaffold for several hours without incident, Bielskis wheeled it into a different room, climbed to the top and began working, whereupon it collapsed. On inspection, he saw that a caster stem above one wheel had broken. He eventually brought a lawsuit against the manufacturer, Louisville Ladders, for design and manufacturing defects and failure to warn, as well as several negligence claims. To support his claims, he hired expert witness Neil Mizen, a mechanical engineer, who wrote a report on the reason for the failure. Louisville Ladder attacked this report as unreliable because Mizen did not use stringent enough scientific methodology. Bielskis moved to reopen discovery so he could find another expert, but the trial court denied this and then granted summary judgment for Louisville Ladder, saying Bielskis could not support his claim without an expert. Bielskis appealed.

On appeal, he argued that the trial court erred in dismissing Mizen’s testimony in the first place. That court faulted Mizen for his “leap” from the assertion that the caster stem broke — with which the defense agreed — to the explanation that it broke because it was screwed in too tightly. Bielskis argued that this testimony was not unreliable and at worst “shaky,” admissible though vulnerable to cross-examination. The Seventh Circuit disagreed. Mizen made no attempt to test his hypothesis, it said, and indeed he even mistook the size of the caster stem at first. By contrast, the defense expert performed stress analysis tests with the caster in different configurations. Furthermore, the court said, he proposed no design alternatives aside from “other means” without demonstrating pervasive industry use. Thus, his opinion would likely not have helped the jury make a decision, the court said. Furthermore, it upheld the decision not to allow Bielskis a continuance to find a new expert, saying the district court was entitled to keep discovery closed. Finally, it upheld the choice to dismiss the case, saying Bielskis could not prove his case without expert testimony.

This case is disturbing to me as a Missouri defective products lawyer, because it appears to give federal district courts the power to end cases after one bad choice of expert witness. Expert witnesses are required in almost every product liability case, as the court notes, so they are vital. If a trial court does not like the original expert witness, it may reject that expert — but plaintiffs can be and usually are given a chance to find an alternative. The Seventh quoted its own previous decision showing the dangers of this approach, saying it is generally prejudicial if a court causes a need for a continuance and then denies the continuance. It is not clear from this decision why the Seventh declined to find prejudice in this case, since the circumstances certainly echo that description. As an experienced St. Louis personal injury attorney, I work hard to find my clients strong expert testimony to avoid this kind of situation.

Continue reading "Seventh Circuit Upholds Exclusion of Plaintff’s Expert in Defective Scaffolding Claim – Bielskis v. Louisville Ladders Inc." »

The mother of a Nevada girl killed in an auto wreck in 2009 has filed a wrongful death suit against the girl's father, who was driving the vehicle at the time of the accident.

The lawsuit blames Richard Franklin "Ricky" Brill for negligence leading to the death of Kaitlyn Nicole Brill, then 11 years old. The suit alleges that Brill's negligence led to the accident, and additionally that Brill did not make sure that Kaitlyn had her seatbelt on before driving. Caroline Sue Smith, Kaitlyn's mother and administrator of her estate, is claiming $1.25 million in damages.

Complicating the suit is the fact that Brill is also dead. He was killed in the same accident as his daughter, when his 1985 Plymouth collided with a county school bus. Kaitlyn's 8 year old sister was riding in the back of the vehicle, but thankfully only suffered minor injuries while her father and sister were killed.

The suit has named the administrator of Brill's estate, Debbie C. Grim, as the defendant.

Filing the lawsuit has temporarily suspended a proposed agreement from Brill's auto insurance company to settle any wrongful death claims.

According to authorities, the icy road conditions contributed significantly to the crash. However, according to the suit, "Ricky Brill was reckless, careless and negligent in that he: a) failed to keep a proper lookout; b) exceeded a reasonable speed under the existing circumstances and conditions; c) failed to apply his brakes in time to avoid the collision; d) failed to give full time attention to the operation of his vehicle; e) failed to keep his vehicle under proper control; and f) operated his vehicle in a reckless, careless, and negligent manner. As a result of the aforesaid collision, Kaitlyn was thrown around Ricky Brill's automobile, and received severe and violent injuries, which caused her death." It also alleges that Brill failed to meet his common law parental obligations by failing to make sure his daughter was wearing her seat belt. Neither father nor daughter were wearing seat belts at the time of the accident.