Missouri Association of Trial Lawyers

Transcription

The Missouri
Trial Attorney
Helping to Balance the Scales of Justice
Klotz v. St. Anthony’s
Supreme Court addresses
retroactive caps
Who’s that
juror?
‘Casenetting’
during voir dire
Asbestos
victims
Work Comp closes
window & opens a
door to courthouse
PLUS
SUMMER 2010
WWW.MATANET.ORG
Amicus Filings  The Fireman’s Rule
Why giving matters
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The Missouri Trial Attorney
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that never, for lack of adequate professional hearts and minds, shall the scales of justice be weighted against any deserving person.
Editor: Spencer E. Farris, St. Louis
Associate Editor: Joan M. Lockwood, St. Louis
Associate Editor: Brett A. Emison, Lexington
Managing Editor: Jeannie Brandstetter, Jefferson City
Advisor: Barbara Martin, Jefferson City
The Missouri Trial Attorney is published quarterly (Spring, Summer, Fall, Winter) by
the Missouri Association of Trial Attorneys, P.O. Box 1792, Jefferson City, Missouri 65102, 573-635-5215, www.mata-net.org
Articles and features should be sent to Spencer E. Farris, Editor, The Missouri Trial Attorney, The S.E. Farris Law Firm, 116 East Lockwood, St. Louis, Missouri 63119.
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Missouri Association of Trial Attorneys
2009-2010 Officers and Executive Committee
President - Alan S. Mandel, St. Louis
President-Elect - Randy W. James, Lee’s Summit
Vice President - Robert M.N. Palmer, Springfield
St. Louis District
Philip M. Hess
Kenneth K. Vuylsteke
Kansas City District
Tim Dollar
Brian F. McCallister
Outstate District
Steve Garner, Springfield
Jay Benson, Kirksville
Immediate Past President
H. Lynn Henry, West Plains
Executive Director
Sara J. Schuett, Jefferson City
Board of Governors
Louis C. Accurso, Kansas CityLauren Perkins Allen, Kansas CityBrian J. Amick, Kansas City
Ashley L. Baird, Kansas CityKen Barnes, Kansas CityJeff Bauer, Springfield
James D. Beck, TroyTim Becker, Kansas CityRobert T. Beezley, Springfield
Eric M. Belk, SpringfieldJay Benson, KirksvilleScott S. Bethune, Kansas City
Stephen R. Bough, Kansas CityJohn R. Boyd, Kansas CityBradley L. Bradshaw, Springfield
Mark I. Bronson, St. LouisDaniel J. Brown, St. LouisRonald A. Brown, St. Louis
Robert S. Bruer, Kansas CityFrederick W. Bryant, Kansas CityJohn R. Cady, Platte City
Leonard P. Cervantes, St. LouisNeil Chanter, SpringfieldBrian J. Cooke, E. Alton, Ill.
Kevin J. Davidson, St. LouisDaniel T. DeFeo, LexingtonLeland F. Dempsey, Kansas City
Tim Dollar, Kansas CityJames M. Dowd, St. LouisShelly C. Dreyer, Joplin
John F. Edgar, Kansas CityBrett A. Emison, LexingtonChris L. Faiella, Moberly
Spencer E. Farris, St. LouisShawn G. Foster, Kansas CityWilliam W. Francis, Jr., Springfield
Brian S. Franciskato, Kansas CityJoseph A. Frank, St. LouisTimothy J. Gallagher, St. Louis
Steve Garner, SpringfieldStephen M. Gorny, Leawood, Kan.Steven L. Groves, St. Louis
Rex V. Gump, MoberlyAmy Collignon Gunn, St. LouisPatrick J. Hagerty, St. Louis
Michael P. Healy, Kansas CityR. Denise Henning, Kansas CityH. Lynn Henry, West Plains
Edward J. Hershewe, JoplinPhilip M. Hess, St. LouisRick D. Holtsclaw, Kansas City
Randy W. James, Lee’s SummitLynn R. Johnson, Kansas CityThomas C. Jones, Kansas City
Michael S. Ketchmark, Kansas CityRobert D. Kingsland, Kansas CityScott L. Kolker, Clayton
Kristine K. Kraft, St. LouisBradley Kuhlman, Kansas CityChristopher Leach, Kansas City
Joan M. Lockwood, St. LouisAlan S. Mandel, St. LouisBrian F. McCallister, Kansas City
Mark E. Moreland, St. LouisGene C. Napier, Kansas CityBrianne Niemann, Kansas City
Douglass F. Noland, Kansas CityScott E. Nutter, Kansas CityAndrew A. O’Brien, St. Louis
James D. O’Leary, St. LouisCraig R. Oliver, SpringfieldJames G. Onder, St. Louis
Craig M. Ortwerth, St. LouisMatthew J. Padberg, St. LouisRobert M.N. Palmer, Springfield
Mark E. Parrish, Lee's SummitMartin L. Perron, St. LouisJenifer M. Placzek, Springfield
Jason M. Pottenger, Kansas CityDerek H. Potts, Kansas CityDaniel T. Ramsdell, Springfield
Robert F. Ritter, St. LouisAnita Porte Robb, Kansas CityJohn G. Simon, St. Louis
Jeffrey S. Singer, St. LouisWilliam C. Spooner, Kansas CityDavid L. Steelman, Rolla
Benjamin Stringer, SpringfieldMichael J. Sudekum, St. LouisRobert C. Sullivan, Kansas City
James H. Thompson, Jr., Kansas CityKenneth K. Vuylsteke, St. LouisJohn S. Wallach, St. Louis
Lon Walters, Kansas CityScott A. Wilson, ColumbiaNelson G. Wolff, St. Louis
John Wooddell, SpringfieldRoger P. Wright, Kansas CityMichael T. Yonke, Kansas City
David M. Zevan, St. Louis
The Missouri Trial Attorney  Summer 2010
IN THIS ISSUE
CONTRIBUTORS:
Capitol Circumstances...............................................4
Sara J. Schuett, MATA Executive Director
Strength in Numbers..................................................2
Alan S. Mandel, MATA President
FEATURE ARTICLES:
Klotz v. St. Anthony’s: Partial Victory. ....................6
Mary Coffey, Genevieve Nichols
The Fireman’s Rule in Missouri. .............................10
J. Michael Cronan
If I Can Do It. ...........................................................12
Matthew D. Meyerkord, guest columnist
Appellate Case Note - ‘Case-netting’ Jurors. ...........14
R. Denise Henning
Mining Electronic Medical Records. ........................16
Victor Bergman
The Thomas G. Strong Trial Attorney Award. ..........18
Jeannie Brandstetter
Asbestos Plaintiffs have New Route to Justice. ........21
Bart Baumstark, Andrew O’Brien
DEPARTMENTS
Amicus Curiae Filings................................................23
News of Note..............................................................13
The Closing.................................................................38
ListServe Chatter...........................................................8
Champions Club.........................................................27
Hall of Fame...............................................................28
New/Reinstated Members...........................................31
1
MATA President
Alan S. Mandel
When I began my year as President
of MATA one of the goals I set out
for myself was to increase the number
of members in our organization. The
numbers had dropped off a bit over the
past few years as we found ourselves
in fight after fight over workers’ compensation deform and tort deform and
we had rerouted all staff and member
efforts into those battles.
I am pleased to be able to tell you
that through the combined efforts of
our Board members, current members
and staff (especially our Director of
Fundraising and Membership Development Amanda Good), we were
able to regain the members who had
wandered away and we also indentified new trial attorneys excited to join
our ranks!
For those of you that have been a
steadfast and loyal MATA members - I
can’t thank you enough for all you do
to make this organization successful.
For those of you new to our ranks welcome and I hope you will be with
us for a long time.
Now that we have achieved such
an impressive and important goal for
MATA, I feel that I would be remiss if
2
Strength in numbers
I didn’t extend a similar effort to our
national counterpart, the American
Association for Justice (AAJ). It’s no
secret that AAJ had also seen a decline
in membership - and the numbers of
Missouri members who belong to
AAJ has dropped fairly substantially.
MATA has three Board members
representing Missouri on the AAJ
Board - Rob Palmer of Springfield,
Gary Robb of Kansas City and Jim
Thompson of Kansas City. Should the
number of Missouri members to AAJ
not increase, we are actually in danger
of losing one of the Board seats, as
they are based on the number of state
members.
It’s been easy for me as President
to see how Missouri attorneys benefit
directly from the efforts of AAJ. The
most noticeable was the help MATA
received during our constitutional
challenges to workers’ compensation
deform and tort deform.
AAJ stepped in and provided support in those by engaging the Center
for Constitutional Litigation, PC
(CCL), to assist in the effort. I had the
opportunity to work with several of
the attorneys at CCL and they are truly
the best at what they do.
We expect as other issues come up
and cases move through the system,
we will have continued opportunities
to work with them and benefit from
their expertise. CCL is the leading law
firm in the country in challenging tort
reform and other laws that undermine
the civil justice system and it was
because of AAJ that we were able to
obtain their services.
There is also the important work in
Congress being carried out by the AAJ
lobbying team, headed by the new
CEO and longtime lobbyist, Linda
Lipsen. I know firsthand how difficult
it can be to educate legislators on the
State level so I am doubly impressed
with the AAJ efforts on the Federal
level. The amount of legislation they
have to work on is mind-boggling
and we should be grateful they are the
“boots on the ground” protecting our
client’s rights.
I’ve highlighted the areas in which I
have personal knowledge, but I know
there is much more being offered by
AAJ, such as CLE seminars, conventions, national listservs, and networking.
I would imagine there is something
for everyone and that all MATA members have already benefited from their
efforts, whether you realize it or not.
Please consider joining or rejoining
AAJ - there is strength in numbers and
your national association is depending
on you for your participation just as
much as your state association. 
To join AAJ, go to www.justice.org
or fill out the application in the back of
this issue.
Alan S. Mandel is a partner in the firm
of Schlueter Mandel & Mandel
in St. Louis.
AAJ Member Benefits
Being a member of AAJ provides you with exclusive benefits that will make a difference in your practice and in your
clients’ cases
AAJ Education
Enhance your legal knowledge and learn trial techniques,
tips, and strategies to achieve a just outcome for your client. AAJ provides comprehensive, national continuing legal
education (CLE) programs designed for and by experienced
plaintiff trial attorneys. CLE programs include:
•Seminars
•Trial advocacy skills colleges
•AAJ Annual and Winter Conventions
•Convenience learning
AAJ Education maintains two professional recognition
programs that recognize AAJ members in their pursuit of
advanced legal learning and professional development—the
Achievement Recognition Program and Advanced Studies
in Trial Advocacy.
Networking Tools and Practice Support
Some of your best practice resources are other plaintiff
lawyers. Share insights and receive support and referrals
from other members with similar interests and practice
areas through AAJ’s List Servers, Sections, and Litigation
Groups. Thousands of resources contributed by your colleagues, and contacts for members handling similar cases,
are at your fingertips through the AAJ Exchange document
database.
•AAJ List Servers (plaintiff lawyers, their paralegals
and sponsored law professor members)
•AAJ Exchange document databases—thousands of
depositions, court documents, similar matters,
experts, CLE speaker papers, and abstracts
•Access to over 100 Litigation Groups (plaintiff
lawyers only)
•Access to 18 Sections
•Membership directory
•Mentor Program
Publications
AAJ Publications keep you informed with news of the
latest legal trends and developments in civil law practice,
commentary and analysis on emerging legal issues, and
nationwide coverage of state and federal verdicts, settlements, and opinions in 25 areas of civil law. Our publications include:
•Trial magazine
•Class Action Law Reporter
•Motor Vehicle Law Reporter
•Products Liability Law Reporter
•Professional Negligence Law Reporter
•Section newsletters
•Member group newsletters
Advocating for You and Your Clients
AAJ is here to speak for you and your clients. AAJ runs a
vigorous communications campaign to educate the public
about the civil justice system and reframe the debate on the
role of trial lawyers in our democracy. And through extensive political outreach efforts, AAJ works to elect pro-civiljustice legislators at both the state and federal levels.
•Political news and legislative updates—Stay up-to
date on the latest action on Capitol Hill, courthouses
acoss the country, and throughout the legal
landscape
•Access to state and federal lawmakers through
annual conventions and in-office events
Members-Only Discounts and Offers
•Improve your bottom line and your practice
through our carefully-selected provider program,
AAJ Extras
•Members receive substantial discounts on CLE
seminars, colleges, and teleseminars
•Members receive a discount on selected titles
through West Publishing
Media Training
AAJ Communications offers a free media training guide
that covers everything from the fundamentals of talking to
the media and developing your message to crisis communications. AAJ Communications is also available to work
one-on-one with your team.
APPLY TODAY
You’ll find an AAJ application
in the back of this issue.
3
Executive Director
Sara J. Schuett
Many of you have made the trip
to Jefferson City to testify on bills
or help the lobbying team educate
legislators on bills of interest - and you
know first-hand how interesting things
can get in the Capitol.
I would venture to guess though,
that apart from a school trip or your
swearing-in to the Bar, most of you
haven’t spent a lot of time in the Capitol. For those of us that do spend a lot
of time in the Capitol Building, we
occasionally get brief glimpses of fun
in an otherwise serious environment.
The “Aura of Fear”
There is a lighter side to things in
the Capitol Building - and you only
need to pull up the House or Senate Web site and listen in to the live
Debate. While most of the discussion
is on point and specific to bills being
debated, things occasionally go off in
another direction.
Capitol circumstances
That happened during debate late in
the evening on a Resolution regarding
agriculture when Sen. Victor Callahan
(D-Kansas City) and Sen. Jolie Justus
(D-Kansas City)
got into a discussion about how
Sen. Justus was
telling too many
people in Kansas
City that Sen. Callahan was a “nice
guy” and that was
destroying the
“aura of fear” he had worked so hard
to create.
Sen. Justus had apparently so damaged his tough-guy reputation that
House members were showing up in
his office demanding their amendments be added to one of his bills!
Sen. Justus apologized as best she
could - but I think the damage was
done.
Help from the Citizens
I have always been convinced there
is a good amount of negativity in the
Capitol Building, but a recent visitor
decided she would do something about
it. On the last day of session, a woman
wearing an American Flag themed
scarf was watching the Senate in its
final hours of debate.
She began gesturing widely with her
arms - shooting them up towards the
ceiling, out to the side and then bringing them back in towards her chest.
It was so out of place that one of the
doorkeepers who monitors the upper
gallery noticed the strange behavior
and asked her what she was doing and
if she could please
stop.
Her answer:
“There is too much
hate in this room I’m trying to disperse
some of it.” Random
Citizen to the Rescue!
Hoss Did What?
A fellow lobbyist shared a story
about stopping in to visit with a senator about an issue expected to be up on
the floor later in the day. It was during
a lunch break and when he asked the
senator if he had a few minutes to visit, the senator told him that he would
visit with him - but he had to watch
“Bonanza” first. So the lobbyist sat
with the senator while he ate his lunch,
they watched “Bonanza,” and when it
was over, he lobbied the senator before
floor debate resumed. Another lobbyist
listening to the story remarked, “Oh
yeah - I never try to talk to him when
‘Bonanza’ is on.”
Good information to know! 
Sara J. Schuett has been Executive
Director of MATA for eight years.
WWW.AALNCSTLOUIS.ORG
Legal Nurse Consultants optimize case outcomes in medical-legal matters.
4
Klotz v. St. Anthony’s Medical Center et al., SC90107, 2010 WL 1049422 (Mo. 2010)
Partial Victory, With Hope For The Future
By Mary Coffey & Genevieve Nichols
In the five years since House Bill 393 (aka 2005 tort
reform), plaintiff’s lawyers have been chipping away at the
bill’s provisions one by one. The Missouri Supreme Court’s
decision in Klotz v. St. Anthony’s Medical Center, 2010
WL 1049422 (Mo. 2010) was another little block out of the
iceberg.
In a Nutshell:
The Court unanimously held §538.210 (caps on noneconomic damages), as amended by HB 393, unconstitutional because it violates the Missouri Constitution’s
prohibition against retroactive legislation. Judges Wolff and
Teitelman wrote separately concurring in the result but also
stating their belief that – for different reasons – any cap on
damages is unconstitutional.
The Bonus Round:
The Court also ruled on a variety of evidentiary and procedural challenges brought by the defendants. These won’t
be discussed here due to space constraints but it’s worth
checking it out for recent Supreme Court law on trial issues
including the admissibility of a doctor’s opinion under the
business records exception, the qualifications of an expert
to testify at trial in light of the new affidavit statute, the
standards applicable to evidence of future damages, what to
do in the face of a deadlock in a civil case and a couple of
others.
In the Trial Court
In March, 2004, Jim Klotz had a heart attack and was
taken to St. Anthony’s Medical Center (SAMC) by ambulance. While there, he had a permanent pacemaker implanted by Dr. Michael Shapiro of Metro Heart Group. Some six
weeks after his discharge, he was taken to an emergency
room in Phoenix, Ariz. He was in septic shock; the bug
was Methicillin-resistant Staphylococcus aureus (MRSA).
His treating doctors in Arizona believed the MRSA entered
his body during his stay at SAMC and latched onto the
pacemaker implanted while he was there. Jim spent several months in a hospital. At the end he had, among other
things, lost his right leg below the knee. His wife Mary quit
her job in order to stay home and take care of him. Jim had
been retired for a couple of years.
Suit was filed against SAMC in December, 2004, based
on their negligence in failing to change an IV within 48
hours of admission, allowing it to become infected. That
petition was dismissed without prejudice in December,
6
2005, and re-filed against them in December, 2006. Dr.
Shapiro and Metro Heart were added by amended petition
in March, 2007, based on Dr. Shapiro’s negligence in placing the permanent pacemaker without adequately treating
the infection at the IV site, and, his failure to inform Jim of
the added risk of infection from the IV site.
The case was submitted to the jury in August, 2008. The
jury found in favor of plaintiffs, and awarded $1,089,000
in non-economic damages, $329,000 to Mary and the rest
to Jim. Under the 1986 caps, we could have recovered
the entire amount as we had at least three approximately
$600,000 caps based just on the number of defendants
involved.
Shortly after trial we hired Lou Bograd and Andre Mura
with the Center for Constitutional Litigation in Washington,
D.C., for their expertise in constitutional issues and damage
caps. They submitted the briefs and argued to the trial court
the reasons for the unconstitutionality of the caps and other
provisions of HB 393. Despite their heroic efforts, the trial
court entered judgment giving only 66 percent of the 2005
$350,000 cap on non-economics to Jim, and leaving nothing to his wife Mary. The trial court did, however, based
on Coffey’s arguments, apply the old cap to SAMC based
on the original pre-8/28/05 filing, we settled with them just
after the entry of judgment.
We appealed the reduction of the verdict based on a constitutional challenge to 538.210. Shapiro and Metro Heart
appealed based on a number of trial issues. The appeal went
directly to the Supreme Court as it has original jurisdiction
over genuine constitutional challenges. Mo. Const. Art. V,
§3.
In the Supreme Court
The case was argued on January 14, 2010, the arguments
can be heard at http://www.courts.mo.gov/SUP/index.nsf/fe
8feff4659e0b7b8625699f0079eddf/1d75c81ee711b923862
57678005920be?OpenDocument).
Lou Bograd from the CCL did a great job. The focus of
his argument was that, as applied to the Klotzes, the statutory caps on damages violated Missouri’s constitutional
prohibition against retroactive laws: when the Klotzes
cause of action accrued in 2004, their right to particular
damages was vested and the legislature could not change
the rules in the middle of the game. We like Tad Eckenrode
See KLOTZ, Next Page
ity because of rules of statutory construction requiring the
court to declare statutes unconstitutional on the narrowest
ground possible, or, because of the current political climate
in which these judges face very real attacks on their impartiality, fitness for the job and even their morality as a result
of decisions in which they join.
The decision did give new hope in the fight against
caps on non-economic damages. Two of the justices wrote
separately to say that they believe any cap on damages is
unconstitutional – that’s right, any cap. That means no 2005
cap and no 1986 cap. Specifically Judge Wolff wrote:
KLOTZ (con’t from Page 5)
– we do, but he was no match for Bograd. The highlight
– the line that was picked up by almost every news organization that reported on the argument – was an exchange
between Judge Price and Eckenrode. Positing that the Missouri River bridge collapses one day, Judge Price asked if
the legislature could, on the day after the bridge’s collapse,
enact legislation limiting damages for injuries to $1. Eckenrode had to admit “no” and we had pretty good hopes for
the chances of our clients collecting all of their damages.
The Court did not make us wait long and the decision
came down on March 23, 2010. It is reported at Klotz v.
St. Anthony’s Medical Center, 2010 WL 1049422, 1 (Mo.)
(Mo. 2010). The Court unanimously held that “[t]he application of the new caps on non-economic damages to
causes of action that accrued before the effective date of
the law violates the constitutional prohibition of retrospective laws.” The analysis was pretty simple: Mo. Const. Art.
I, Sec. 13. provides “[t]hat no ex post facto law, nor law
impairing the obligation of contracts, or retrospective in its
operation, ... can be enacted;” the Court was bound by its
prior holding in State ex rel. St. Louis-San Francisco Ry.
Co. v. Buder, 515 S.W.2d 409, 411 (Mo. banc 1974) that
retroactive changes to the substantive law applicable to a
category of damages after a cause of action has accrued;
therefore, the new caps on damages cannot be applied to
this case where the cause of action accrued prior to the
change in the law.
It is true that the decision was only a partial victory
since it did not completely renunciate the new damage
caps. Perhaps the Court decided the case on retroactivThe Missouri Trial Attorney  Summer 2010
I take the liberty to write individually to explain the
issue that the court one day will have to confront . . .
The constitutional problem inherent in this limit on a
jury’s decision regarding damages should be identified
at the earliest possible time so that the General Assembly may take appropriate steps, if it chooses, to bring
its enactment within constitutional bounds or propose
to the people that the constitution be changed. . . . The
legislation attempts to address [a] problem - called a
“crisis” by many - by essentially limiting the constitutional right to trial by jury. This it cannot do. ….The
limit on juries under section 538.210 did not exist at
common law or in statutes when the people of Missouri adopted their constitution in 1820 guaranteeing that
the right to trial by jury as heretofore enjoyed shall
remain inviolate. The limit on non-economic damages
violates the right to trial by jury; it overrules the jury’s
determination of a factual issue in a way that was
unrecognized at common law when the constitutional
right was adopted by the people in 1820. The constitutional status of the right to trial by jury can be changed
only by the people voting affirmatively for such a
change in their constitution. Mo. Const. art. XII.
Judge Wolff does recognize that there are some limitations on damages which may not violate the right to trial by
jury. The granting of a new trial and remittitur have been
used, since at least 1820, to deal with what are perceived
to be excessive verdicts. However, Judge Wolff opined, a
legislative cap is not akin to remittitur, because the legislative cap
grants remittitur on a wholesale basis without regard
to the evidence and without the option of a new jury
trial. This legislated interference impairs the right of
trial by jury “as heretofore enjoyed.” As such, the right
to trial by jury does not “remain inviolate.” It is, in
fact, violated.
In his opinion, Judge Wolff also suggests that this right
See KLOTZ, PAGE 34
7
I file suit against CIGNA for benefits under the Shortand Long-Term Policies, and CIGNA immediately defends
on the grounds that the client has never applied for benefits
under the Long-Term Policy, and has never exhausted her
remedies for the Long-Term Policy.
Has anyone run into this? Depending on when I get
involved I send a letter “formally applying for Long-Term
Disability Benefits under xyz policy,” then wait for CIGNA
to deny the current appeal before filing suit. I would like
to forgo this and go directly to court. Is there any support
for the proposition that an insurance company has to either
notify an insured of all the policies under which they are
covered? Or, that the insurance company has to consider
every policy covering an insured when it reviews a claim?
ERISA Anyone?
I am running into a reoccurring problem with CIGNA
Disability Insurance. It is a non-ERISA disability plan, so
any thoughts from attorneys who are well versed in insurance law would be helpful.
CIGNA provides a public employer with two disability
insurance policies, a short term policy and a long term
policy. Short-term policy covers first six months of a disability, long-term plan covers anything afterwards all the
way to age 65.
I have had a number of clients with serious chronic
conditions come to me, often after receiving SSDI benefits
with the same basic story. They call the CIGNA hotline to
apply for disability, and CIGNA sends them an application that only lists the short-term policy. Client fills out
the information indicating they are having any number of
major conditions (among other things: one client had a total
colostomy, one client had a hip replacement, one was taken
off work due to Stage IV chronic kidney disease). In every
case, CIGNA denies the claim for short-term disability
benefits (no objective evidence that you need a stomach to
do your job).
CIGNA then offers the client an opportunity to “appeal”
its determination. There is no mandatory appeal procedure
in either the Short- or Long-Term Policy. Client spends the
next six to 12 months going in circles with an adjuster regarding the Short-Term claim. CIGNA never mentions the
Long-Term Policy to the client, often client does not even
know the Long-Term Policy exists until they speak to me.
8
Response:
I agree that the process is really frustrating but I don’t
know of any support for the proposition. I think the insurer
would argue that they hadn’t had an opportunity to render
a decision if no formal application for benefits was made
under each separate policy.
In a non-ERISA disability case I will file the application
or send a similar notice that I am filing the application on
behalf of my client, and as soon as a denial is received, file
the lawsuit unless there is new information to be reviewed
in support of an appeal. More often than not I find it is
necessary to pursue the appeal so that I can submit further
information in support of the claim (in order to refute the
basis for the denial).
Premises Liability & Comparative Fault
Mates: Client in bathtub in hotel room. Standards of
county require hotel to have two horizontal grab bars on
side wall of bathtub. Instead, hotel has one vertical grab
bar adjacent to soap dish. Client gets out of the bathtub and
uses the soap dish for leverage; it breaks; it severs all the
tendons in his dominant hand. Comparative fault? How
much to each? Thanks in advance.
Response 1:
I’ll take a stab.
First, and I’m only going by my gut, there is plenty of
comparative fault. I’m thinking that if the vertical bar was
in place and properly secured, but the claimant used the
soap dish instead, a jury might not give him/her anything. If
they give him/her anything it could be 50/50 or worse (say
90/10 against the claimant).
I’m honestly thinking he doesn’t deserve a dime due to
his own actions in not using the vertical bar.
From your description the damages are severe. Many
factors play into valuation but that would be the least of my
concerns.
My two cents.
Response 2:
Here’s how I’d approach the case and craft my discovery
and arguments to blunt the comparative fault argument.
Folks, the defendant has asked you to compare fault. But
they didn’t really tell you how to do your job. So how do
you do your job? First, let’s look and see who should have
known better? The hotel. They’ve been in the hotel business for 25 years. And this safety rule has been in place for
20 years. Then let’s look who was responsible for following the safety rules? The Hotel. No one else. Just the Hotel.
Next, how many times did the hotel violate the safety rule?
In this case 250 times. One time for each of the Hotel’s
rooms. And they’ve been violating this rule for 20 years.
Rooms that are used every night by mothers, fathers, grandparents and children. So where does client’s fault come
into play, when he merely reaches out to steady himself
and instead of the safety bar that the safety rules require to
be there, instead finds a soap dish? One night, one slip by
client versus 250 times for 20 years. I suggest the only fair
way to “compare fault” as the Hotel has demanded,
is fully compare each party’s own choices.
Once versus 250. One night versus every night for 20 years. I
suggest that if you apportion any
fault to Client that it is 1/250th or
¼ %.
case of two jurors, actually falling asleep. I would stand
up and the jury would become attentive. Smiles all around,
eyes wide open, laugh-at-the-jokes type of stuff. The jury
was out 45 minutes and gave a defense verdict.
The result would not have been a shock but for my
perceptions of the jury during trial. I have learned (or hope
I have) that I can’t really tell what a jury is thinking. They
may or may not be listening or they may be entertained by
me and not like my case. The latter was my most recent
situation where eight of the jurors found my hiding place
after the verdict to tell me what “a great job” I had done
and get my card. They gushed with compliments for our
“performance” and all said they wished there was a way
to give me money but not my client. The alternate juror
looked up my phone number and called the next day to ask
if I could help her with some legal trouble. Of course, such
statements don’t pay the bills nor are they much solace to a
client who recently lost. They still gave me a zero which is
a tough pill to swallow under any circumstance.
I share your D’OH!
!
h
o
’
D
It could happen to anyone.
Please tell me it could happen to anyone
Mates,
Just finished a trial in Pulaski county where they put the
PU in jury verdicts.
During my close, I was encouraged by the constant nodding of a juror. I ramped up in response. During defendant’s
close, I realized the juror had an uncontrollable tremor.
Anyone got a similar tale, or am I the only one with a
recent trial “d’oh?”
Response 1:
Trial last month in the city where the jury is laughing AT
the defendant’s main expert, nodding along during my closing, the eventual foreman actually swivelled around and
turned his back on the defendant’s attorney during closing.
Defendant’s verdict in 45 minutes. OK, it was a crappy
case, but still…
Response 2:
I have tried two cases in the last year where I was getting what I considered to be a great vibe from the jury only
to have results that didn’t meet expectations. In the most
recent one (early this month) I was in a good venue with
some hard facts. Every time the defense would be putting
on their evidence folks would be drifting off and, in the
Response 3:
I had a D’oh moment in April in a St.
Louis County-venued med mal case:
I watched a juror mouthing the words
“You’re welcome” to the defendant doctor as the verdict was being read. You can guess
who got the verdict he wanted.
Must Medicare be on Settlement Checks?
Issue: Issurer issued settlement check with medicare
listed as payee. Anyone had success with motion to enforce
settlement to remove Medicare from check?
Response 1:
You might want to check out:
MESA OWEN and MARY ELLEN SISK, Plaintiffs/Respondents vs. DALE HANKINS, Defendant/Appellant, and
GREG CUMMINGS, STACY CUMMINGS and MARLA
B. CANTWELL, Defendants/Respondent
Missouri Court of Appeals, Southern District - SD29440
Look at Tomlinson vs. Landers. Link is at: http://www.
lexisnexis.com/documents/pdf/20090504071852_large.pdf
Issue in that case was the insurance carrier attempting
to enforce settlement, but wanting to put Medicare’s name
on settlement check. Court found there was no settlement
because no meeting of the minds on how Medicare would
be repaid. (Hence the court would not “compel settlement”
because no settlement had occurred.)
The court also found that there was no federal law which
required Medicare’s name on the check.
9
The Fireman’s Rule
in Missouri
By J. Michael Cronan
TRADITIONAL LIABILITY OF LAND OWNERS
In the long history of Anglo-American jurisprudence, the rights and status of a landowner have been given special
recognition and protection. In that tradition, the obligations of landowners or persons in possession of land toward persons
upon the land has depended upon why the person was present. More particularly, was the intruder’s presence determined
to be of some benefit to the land owner? In answering this question the law has established three categories of persons
entering onto the land of another: trespasser; licensee and invitee. Invitees are said to be those persons whose presence on
the property of another confers some benefit on the land owner/occupier and therefore to whom there is a duty to point
out any known hazardous conditions which the visitor would not discover on his own – that is, discover it prior to being
injured by such condition. The duty of care to a licensee was only to refrain from intentionally injuring that person or to
advise him of an inherently dangerous condition involving unusual hazards not discoverable by the licensee. Traditionally
there is practically no obligation to an injured trespasser. While it would appear that a substantial benefit would be conferred upon a landowner by the fireman upon the land to put out a fire, the law has developed that the landowner’s duty to
the fireman is that toward a licensee, not an invitee.
RESCUE DOCTRINE
The Rescue Doctrine is a rule of law that states that if someone goes to the rescue of a person who has been injured and
the rescuer himself is injured in trying to save the original victim, then the person or entity that caused the original injury
is also liable for the injury to the rescuer. The rationale for this rule, like so many other instances of a legally imposed
duty, is that the injury to the rescuer is foreseeable to the original wrongdoer. Therefore the wrongdoer should realize before his act of carelessness that not only would it injure someone else but that person’s rescuer could be injured as well.
FIREMAN’S RULE
The Fireman’s Rule is often said to be an exception to the Rescue Doctrine. It applies in Missouri to firemen and policemen who are responding to an emergency in their official capacity. In its earliest version it held that a fireman in responding to a fire would be treated as a licensee if injured on the premises where he was fighting the fire. In more recent
See FIREMAN’S RULE, NEXT PAGE
10
FIREMAN’S RULE (con’t from Page 10)
decisions as the law imposing liability of land owners to licensees has expanded, the rationale for the Fireman’s Rule
has changed to one of assumption of risk and public policy.
In those cases, it has been held that firemen and policemen
take on a very dangerous occupation and if injured or killed
in performing that work, it is a better policy for that “cost”
to be imposed under worker’s compensation laws or other
broad based disability determination systems then to impose liability on negligent third parties for injury in this line
of work. With the adoption of systems of pure comparative
negligence and with those the abolition of Assumption of
Risk as a complete defense this rationale for the Fireman’s
Rule has received criticism in some jurisdictions.
NONPROPERTY APPLICATION
OF FIREMAN’S RULE
The Fireman’s Rule in Missouri does not appear to be
limited to a dangerous condition of property. In Lambert
v. Schaefer, infra, the court applied the Fireman’s Rule to
policemen and noted that the basis for application of the
rule by most courts is assumption of risk and public policy
(l.c. 29). While not explicitly stated, the obvious implication in that case is that the critical determination is the level
of fault of the defendant and not the condition of property.
Lambert observed that the Fireman’s Rule would not apply
where the injury was the result of intentional acts or wanton
negligence.
CURRENT STATUS OF THE RULE
THROUGHOUT THE UNITED STATES
Efforts in other jurisdictions to judicially abrogate the
common law Fireman’s Rule have been largely unsuccessful. Most recently the Supreme Court of Utah in the case
of Fordham v. Oldroyd, 171 P.3d 411 (2007) adopted a
“Professional Rescuer Rule” to prevent an action in negligence by a police officer who was injured by a third party
driver when he was in the process of getting warning flares
out of the truck of his patrol car to warn other motorists
that Mr. Oldroyd had run his car off the side of an exit ramp
in icy conditions. To adopt such a rule, the court satirizes,
would result in, “prudent motorists … confront[ing] their
rescuers with waiver of liability documents.” Other jurisdictions which have recently endorsed some version of the
Fireman’s Rule include: Alaska (Moody v. Delta Western,
38 P.3d 1139 (2002)); California (Walters v. Sloan, 571 P.2d
609 (1977) and Knight v. Jewett, 834 P.2d 696 (1992));
Hawaii (Thomas v. Pang, 811 P.2d 821 (1991) and Michigan (Kreski v. Modern Wholesale Electric Supply Co., 415
N.W.2d a78 (1987)).
Jurisdictions which have abrogated the Fireman’s Rule
have done so largely on the basis of it being a logical result
of the abolition of the doctrine of assumption of risk under
systems of comparative fault, a movement toward uniform
systems of legal duty, and the need for public policy to be
determined by the legislature. For an example see the Supreme Court of New Mexico’s decision in the case of Baldonado v. El Paso Natural Gas Co., 176 P.3d 286 (2008).
EXCEPTIONS TO AND APPLICATION OF THE
FIREMAN’S RULE UNDER MISSOURI CASE LAW
Jennings v. Industrial Paper Stock Co. , 248 S.W.2d 43
(Mo.App. W.D. 1952). Mr. Jennings, a public health
inspector for the city of Kansas City, was injured when
inspecting a building for the presence of rats. His injuries
resulted from falling into a “stoker pit” in the dimly lit
furnace room of the business. While Mr. Jennings was held
to be contributorily negligent as a matter of law, the case
is significant because it holds that public health inspectors are “invitees” while on the premises because they are
conferring a benefit to the landowner – that of allowing the
business to operate if it complies with the safety regulations in issue. The status of invitee distinguished the public
health inspector from that of a fireman who is considered to
be only a licensee.
Anderson v. Cinnamon, 365 Mo. 304, 282 S.W.2d 445
(1955). Defendants owned a four story apartment building in Kansas City where there was a fire to which the
Kansas City, Mo., Fire Department responded. Firemen
were injured when a three-story porch collapsed from the
weight of firefighters and fire fighting equipment (apparently there wasn’t any fire damage to the porch). It was
assumed for purposes of the appeal that the defendant knew
of the dangerous condition of the porch and that one of the
defendants was present when the firemen went onto the
porch but did not warn them of the danger. The Supreme
Court said that firemen responding to a fire have the status
of a licensee. The obligation of a property owner to a licensee is to warn only of “inherently dangerous substances
involving unusual hazard” where the licensees could not be
expected to know of their presence or effect. The defective
three-story porch was held not to be “inherently dangerous”
for which a warning was required to be given. The court
suggested that had the property owner actively urged the
firemen to go onto the porch which he knew to be dangerous, the result would have been different. No recovery was
allowed for the firemen.
Nastasio v. Cinnamon, 295 S.W.2d 117 (Mo. 1956). A
case arising from the same fire as Anderson. Action was
brought for the death of a Kansas City, Mo., fireman who
was off duty but voluntarily responded to the fire and was
killed when the porch collapsed. His widow argued that
Missouri’s Rescue Doctrine should apply to allow recovery.
The court held the Rescue Doctrine did not apply for two
See FIREMAN’S RULE, Page 36
11
Guest column
If I can do it...
Matt Meyerkord
Making a difference often starts
small, but is a step everyone can take.
I recently decided to donate five
percent of every fee I collect to charity. I actively encourage my clients to
match my donation. Oftentimes when
they hear of my commitment they are
happy to contribute a portion of their
settlement. When making my donation, I choose a charity relevant to the
case and one that is important to my
clients. For instance, one of my recent
donations was to Mothers Against
Drunk Driving in a case in which my
client was injured by the fault of a
person driving under the influence.
Why? The decision to consistently
donate five percent of my fees, in good
times and in bad, was not an easy one.
First, because of how relatively young
I am (especially in comparison to the
general MATA populace), there always
is another place that money can be
spent. Second, since my practice is
very new, those extra dollars invested
would be extremely helpful. Although
I have grown my practice enough
to increase my caseload, I am by no
means swimming in cash. So, parting with five percent can sometimes
be a struggle. However, as it is to all
of us, giving is important to me and
this commitment is something I feel
strongly about. I also realized if I start
now, my relatively small five percent
donations will add up over time and
truly make a difference in our community. The compelling reason I felt to
start my five percent plan was to help
our community; I plan to continue my
12
commitment throughout the length of
my career.
My five percent plan also serves a
number of other purposes. One, it creates a lot of good will with my clients.
As it comes time to request settlement
authority, when I point out to my
clients five percent of my fee will go
to charity, it sometimes makes it easier
to get authority. It also helps alleviate
any buyer’s remorse on the part of the
client. When signing the settlement
statement, there is less of a chance for
regrets.
My five percent plan also helps
with taxes. Of course I am no tax
lawyer, but I am sure your accountant
will let you know that solid charitable
contributions throughout the year are
helpful to the strength of your business.
Another purpose the five percent
plan serves is admittedly selfish. It’s a
good marketing tool. Although I don’t
send out a news flash when I make
a five percent donation, my clients
inevitably tell their friends and family, which spreads the word about my
practice. Also, the recipient charity often publicizes the contribution in their
organization’s magazine or newsletter.
My first reason for giving is the good
will, but, as a new business owner, announcing the plan in my firm materials
and on my Web site has proven some
positive results.
My commitment to donating five
percent of every fee is one that is close
to my heart. I feel compelled to give
back when I have been so fortunate to
have the opportunity to start and grow
my business. Although it is sometimes
difficult to part with, I know that five
percent is an investment and will pay
dividends to the people in my community. 
Matthew D. Meyerkord is a solo
practitioner at the Meyerkord Law Firm
of Kansas City. He is a member of MATA’s
Emergency Response Team and a frequent
Mo-TLC volunteer.
MATA Newsmakers
Kelly McCambridge was awarded the 2010 Tiera Farrow Community Member Award from
the UMKC School of Law Association
of Woman Lawyers Student Organization. The award recognizes distinguished
leadership and community involvement
that enhances the lives and position of
women in the law and in the community.
McCambridge, the principal attorney of
McCAMBRIDGE
McCambridge Law-Trial Attorneys for
Working Women, was selected for her work in mentoring
women law students.

FRANK
FARRIS
GUNN
Two members of the MATA Board of Governors have
been tapped to positions with the Bar Association of Metropolitan St. Louis.
Joe Frank of Frank, Dolan & Mueller, LLC, has been
elected Treasurer (an executive committee position) of
BAMSL; Spencer E. Farris of the S.E. Farris Law Firm
was selected chair of BAMSL’s Trial Section, and is now
on the group’s board of governors.
MATA member John R. Gunn of The Gunn Law Firm
serves BAMSL as a delegate to the American Bar Association.

MATA Past President James R. Bartimus has been inducted into the International Academy of Trial Lawyers.
IATL limits membership to 500 fellows
from the US, seeking out to acknowledge
and honor those who have achieved a
career of excellence through demonstrated
skill and ability in jury trials, trials before
the court and appellate practice. Bartimus
was evaluated by his colleagues and
judges in his jurisdiction and has been
BARTIMUS
highly recommended by them as possessing
the highest qualification and characteristics.
Danny Thomas of the Independence-based Humphrey,
Farrington & McClain firm has been
named to the “40 Under Forty” list in
Ingram’s magazine.
“As always, two qualities set these professionals apart: First, the business acumen
and relationship-building skills they have
mastered on their way to success. More
important to the community, though, is
THOMAS
their shared commitment to service.”

MATA member John E. Campbell has just been awarded the John C. Shepherd Professionalism Award by the Bar
Association of Metropolitan St. Louis and
its Young Lawyers Division.
Campbell is an attorney with The Simon
Law Firm, where his practice consists
primarily of class action litigation. He is
a member of the Project XOXO Executive Committee, and was instrumental
in garnering support for the project from
MATA member firms and Missouri Trial
CAMPBELL
Lawyers Care.
The Shepherd award is given annually to the young lawyer who best exemplifies BAMSL’s tenets of professionalism.

MATA member Walter Floyd of the Floyd Law Firm in
St. Louis is the winner of the $1,000 Membership Contest
Vacation Giveaway which wrapped up May 1.
Thanks again to all who helped with our membership
drive! MATA’s membership is increasing for the first time
in five years, and it’s because of YOUR efforts. Please continue to encourage your colleagues, coworkers and friends
to join. See a list of new members on Page 31. 
Have some news you’d like to share?
This section of our newly revamped Missouri Trial Attorney magazine is a good place to do so. Just e-mail your
updates on accomplishments, awards, firm moves, etc. to
jeannie@socket.net.
Copy deadline for the autumn issue is September 1.
13
Appellate Case Notes
Johnson v. McCullough, --- SC90401 ---, 2010 WL 797002 (Mo. banc March 9, 2010)
‘Case.netting’ Jurors During Voir Dire
In Johnson v. McCullough, --- SC90401 ---, 2010 WL
797002 (Mo. banc March 9, 2010), the Missouri Supreme
Court affirmed the circuit court’s judgment granting a
new trial to a medical malpractice plaintiff who contended
that he sustained prejudice as a result of intentional juror
nondisclosure during voir dire. In so doing, the Court
announced a prospective change in the law regarding the
timeliness of challenges for juror nondisclosure. Pending
a new Supreme Court rule on the issue, a party now
must preserve a juror nondisclosure challenge by using
“reasonable efforts to examine the litigation history on
Case.net of those jurors selected but not empanelled and
present[ing] to the trial court any relevant information prior
to trial.”
Relevant Facts
Phil Johnson sued his doctor and the doctor’s office after
receiving what he alleged was negligent treatment for a
throat problem. During voir dire, one of Mr. Johnson’s
lawyers asked the venire members about prior involvement
in litigation. Specifically, the lawyer asked: “Now not
including family law, has anyone ever been a plaintiff or a
defendant in a lawsuit before?” While many of the venire
members answered “yes” to this question, at least one did
not. She ended up on the jury that later rendered a defense
verdict in the case, a verdict that she signed. After trial,
Mr. Johnson’s lawyers for the first time investigated this
juror’s civil litigation history, using Missouri’s online Case.
net system. They discovered that this juror previously
had been a defendant in several debt collection cases and
in a personal injury case. At least three of the cases were
recent – filed within the previous two years. Based upon
the information gleaned from Case.net, Mr. Johnson’s
lawyers filed a motion for new trial, arguing that this
juror intentionally failed to disclose her prior litigation
experience when prompted by the question during voir dire.
The circuit court held a hearing on the motion for new trial.
At that hearing, Mr. Johnson’s lawyers did not call the juror
or any other witness to testify. And they did not submit an
affidavit from the juror. Instead, they relied solely upon the
Case.net results. The circuit court granted the motion for
new trial.
Legal Analysis
At first blush, Johnson unfolds like a fairly unremarkable
juror nondisclosure case. The Missouri Supreme Court’s
analysis methodically begins by considering whether the
lawyer’s voir dire question about prior litigation experience
14
was sufficiently clear to trigger the juror’s duty to disclose
her debt collection case and personal injury case. Applying
the objective standard of clarity developed in earlier
cases, the Court finds the question “reasonably clear” and
concludes that it unequivocally triggered the juror’s duty
to disclose because the question was a general one that
was “not rendered confusing or ambiguous by surrounding
context.” While the question excluded family law cases, it
did not exclude others.
Concluding that the question was reasonably clear
and that the juror should have disclosed her cases in
response to it, the Court next considers whether the juror’s
nondisclosure was intentional or unintentional. And here
the analysis intersects with rapidly-developing technology:
Mr. Johnson’s lawyers did not present any direct evidence
explaining the juror’s nondisclosure; they relied solely
upon the information gleaned from their post-trial Case.net
research. The Missouri Supreme Court acknowledges that
“the better practice” would have been for Mr. Johnson’s
lawyers to depose the juror, submit an affidavit from her, or
call her to testify at the hearing on the motion for new trial.
onetheless, the Court concludes that the Case.net research
suffices here to establish intentional nondisclosure because
the juror’s “litigation history was of such significance that
forgetfulness is unreasonable, as her experiences were both
numerous and recent.” Accordingly, the Court recognizes
that Case.net research alone can establish intentional juror
nondisclosure under certain circumstances.
The timing of that research poses a challenge, however.
Mindful that technological advances such as Case.net
have made it ever easier to obtain information quickly
about venire members’ litigation experience, the Court
nonetheless refuses to find Mr. Johnson’s post-trial
investigation and challenge untimely, both because the
existing law did not require his lawyers to check Case.
net any earlier than they did and because “there was no
evidence that it was practicable for the attorneys in this
case to have investigated the litigation history of all of the
selected jurors prior to the jury being empanelled.” At the
same time, the Court concludes that in all future cases “it is
appropriate to place a greater burden on the parties to bring
such matters to the court’s attention at an earlier stage.”
Litigants in such cases “should not be allowed to wait until
a verdict has been rendered to perform a Case.net search for
jurors’ prior litigation history when, in many instances, the
search also could have been done in the final stages of jury
See CASE NOTES, Next Page
CASE NOTES (con’t from Page 14)
selection or after the jury was selected but prior to the jury
being empanelled.” To the contrary, they should “endeavor
to prevent retrials by completing an early investigation.”
To this end, the Court announces an interim rule pending
completion of a new Supreme Court rule: to preserve the
issue of a juror’s nondisclosure, a party now “must use
reasonable efforts to examine the litigation history on Case.
net of those jurors selected but not empanelled and present
to the trial court any relevant information prior to trial.”
And a trial court now must “ensure the parties have an
opportunity to make a timely search prior to the jury being
empanelled and shall provide a means to do so, if counsel
indicates that such means are not reasonably otherwise
available.” Until the promised Supreme Court rule comes
out, it appears that a search confined to “Case.net” satisfies
the “reasonable efforts” standard, even though other
computerized records systems such as PACER exist.
Johnson grapples with the issue of juror nondisclosure
in the Internet age. Many lawyers and courts already had
begun to grapple with the issue even before Johnson. For
example, Jackson County adopted a specific local rule
–52.2 – on juror nondisclosure of litigation history in mid2009. That rule requires parties to search Case.net “for the
names of all jurors before the presentation of evidence in
the trial” and requires the party discovering evidence of
juror nondisclosure from such a search to “immediately
bring that information to the attention of the court and
the other parties to the action.” To the extent that this rule
differs from the interim standard recently announced in
Johnson, lawyers and the courts now must revisit the local
rule and harmonize it with the new statewide rule.
Everyone must grapple with the issue now. Lawyers
– particularly solo practitioners and small firms – must
decide when or whether it makes sense to research jurors’
litigation experience on Case.net in the midst of preparing
for trial. In a world of limited time and resources, time
and resources spent researching jurors on Case.net will
be time and resources not spent on other pressing matters.
Against this backdrop, harried lawyers must decide
whether the time and resources spent to research jurors
on Case.net is worth the results. Jurors often have prior
litigation experience; very often, however, it is not the
kind of experience that necessarily casts doubt upon their
impartiality. Is a juror with a history of landlord-tenant
disputes or collection actions really likely to favor one
party or the other in a personal injury or wrongful death
case as a result of that experience? If not, what does a
juror’s failure to disclose such an experience during voir
dire suggest: a desire to shroud the experience for fear that
it would suggest the perception of bias even when no actual
bias exists? Or mere forgetfulness or confusion? Either
way, the failure to disclose could be harmless.
If the experience is one that does cast doubt upon the
juror’s impartiality, however, this still does not mean that
Case.net research will be fruitful or even desirable. For
example, a juror with undisclosed experience as a plaintiff
in a personal injury or wrongful death case is not one that
a plaintiff’s lawyer in a personal injury or wrongful death
case would usually wish to have disqualified for juror
nondisclosure. All things being equal, a juror with that
experience is probably exactly the juror that the plaintiff’s
lawyer would wish to have seated on her jury. And so it
goes. Lawyers could – and will – spend a considerable
amount of time tying themselves into knots over examples
like these (and many others). The point is that these are no
longer interesting abstractions, but concrete realities that
are a part of trial strategy in this new age.
The courts confront their own challenges in
implementing this new mandate. Against the backdrop of
stretched budgets and often-crushing dockets, the courts
must find a way to “ensure the parties
have an opportunity to make a timely
search prior to the jury being empanelled”
and to “provide a means to do so, if
counsel indicates that such means are not
reasonably otherwise available.” 
R. Denise Henning is principal partner in the Henning Law Firm.
15
Mining Electronic Medical Records
For Precious Information
By Victor Bergman
Electronic medical records contain
information about the patient that is
entered into the system by the attending health care providers. Electronic
medical record systems also include
other features such as diagnostic
aids based on signs and symptoms,
automated patient care plans, access
to customized information about the
patient’s diagnosis or procedure for
informed consent and discharge planning, and much more.
With the advent of electronic medical records, there is an explosion of
both internal and on-line information
readily available to health care providers from the patient’s bedside with
very little time and effort. There is
also a new industry of subscription
online medical resources for doctors
and hospitals. Careful attention to the
medical chart will often give clues
to the online resources available at
a particular institution. Of course,
discovery asking for the Administrator’s Manual for the system, as well as
asking what resources were available
in-house and what outside services
were subscribed to, is now essential.
An example of online resources
that are provided by subscription is
“ExitCareR.” In one of our emergency
department cases involving inadequate
discharge instructions, the discharge
instruction form that was used referenced “ExitCareR.” A quick check on
the ExitCareR web site revealed the
company provides “patient education
solutions.” These are educational and
informational documents covering
most medical specialties including
medical/surgical, cardiology, ambulatory surgery, pediatrics, obstetrics,
orthopedics, sports medicine, dietary
radiology, etc. Some of these documents are formatted to provide information directly to the patient at
16
discharge. The
documents are
touted as being compliant
with the Joint
Commission on
Accreditation
of Health Care
Organizations requirements. For
the emergency
department alone
there is a list of
more than 2,300
titles involving
medical conditions, drugs, medical
devices and supplies that the physician
or nurse can go to with a few clicks,
along with preprinted discharge instructions and information that can be
given to the patient with concise explanations of their illness or condition
-- the causes, symptoms, diagnosis,
treatment and home care instructions.
In addition, the instructions clearly
advise the conditions under which the
patient should seek medical care. In
our case the instructions provided by
emergency room nurses were for the
wrong condition, i.e., the wrong diagnosis by the emergency physician.
Philips’ “OB TraceVue” is an example of an internal electronic medical
information management system. It
is a computer program used in many
hospital Obstetrical Departments,
Labor and Delivery units, and Birth
Centers. It provides monitoring and
surveillance for mother and fetus,
alarms and alerts to recognize and respond to critical events, and automated
data transfer from other sources. The
Philips website lists numerous other
products and solutions that can be
found increasingly on hospital computer terminals, with products offered
for anesthesiology, cardiology, oncology, surgery, womens’ health care and
many more.
eys must know what to ask for
in discovery. For example, the OB
TraceVue program is an electronic
medical record format that stores
digitalized fetal heart monitor strips
with nursing comments and other
clinical data. In basic medical records
furnished by hospitals and health care
providers on request of patients or
attorneys, nursing notes and inputs
by other medical personnel may be
misleading because they will often be
made after the fact, show inaccurate
times, or mislead about where the person was when the entry was made. In
the past it was difficult to detect this.
In OB TraceVue and like systems all
of the nursing notes and other electronic inputs into the record are maintained in a digital “Audit Trail.” The
Audit Trail tells the real story of what
occurred in the case, demonstrating
exactly when each entry was made,
by whom, and from what terminal
location. It also shows all additions,
modifications and deletions for every
entry, when made, by whom and from
where.
OB TraceVue also provides many
options for displaying information.
One of the most helpful is the graphic
presentation of nearly every parameter
of the assessment and care of mother
and fetus, all together on one page,
progressing over time. This includes
vital signs, blood pressure, heart rate,
respiration, SpO2, temperature, assessment, activity, position, pain, contractions (frequency, duration, MVU and
resting tone), fetal heart patterns (accelerations, decelerations, baseline and
variability), events, remarks, fluids,
oxygen, medications, Oxytocin, anesthesia and all the parameters of the
vaginal exam. It also shows all alerts
See RECORDS, Next Page
The Missouri Trial Attorney  Spring 2010
RECORDS (con’t from Page 16)
and alarms, who responded, when and from where. This is
extremely helpful to understanding and demonstrating the
sequence of events and trends during labor and delivery.
Additional features of many electronic record systems
include nursing care plans that the computer can provide
for every diagnosis or symptom, and hospital policies and
procedures for various diagnoses, procedures and conditions. These important resources are readily available to
the doctors and nurses, and if they were not used they are
still good evidence of the standard of care.
Obtaining complete electronic medical records can uncover the truth and shed light on confusing medical charts.
Two excellent examples of this came from a recent obstetrical case.
Both examples involve the “audit trail,” a computer log
showing entry dates and times, display dates and times,
user names, and input locations for all entries or changes
to entries in an electronic medical chart. Such systems are
mandated by 45 C.F.R. § 164.312. Institutions are required
to have policies requiring each practitioner to have their
own card or code to access the computer system and prohibiting the sharing of cards or codes with other practitioners. Therefore, it is possible to tell exactly who made each
entry on the electronic chart.
The first example of the importance of the audit trail
came when the fetal heart monitor failed to detect a fetal heartbeat. A “signal loss alert” was sounded and then
“acknowledged” (turned off). At his deposition, the
obstetrician-defendant testified that he assumed someone had turned the alarm off but he professed that he had
little understanding or knowledge of how nurses or doctors would do so. After the deposition, plaintiff’s counsel
requested the entire electronic medical record, including
the audit trail, which detailed the actions taken by doctors
and nurses, including acknowledging the “signal loss alert.”
According to the audit trail, the obstetrician-defendant had
personally acknowledged the “signal loss alert.” It was
done by him, using his code, from the nurses’ station. This
undermined his defense that he did not learn of the baby’s
dangerously low heart rate until it was too late. It cast
doubt on his professed lack of understanding of how the
alert functioned and his overall credibility.
The second example involved a nurse who testified that,
according to entries she made in the chart, she had come to
the mother’s bedside on two occasions during critical times
in the case. The audit trail, however, showed that, of the
two computer entries supposedly evidencing her presence
at the bedside, one was made hours later and both were
made from locations outside of the mother’s room.
The audit trail also made clear that many notes which
appeared to be contemporaneous were entered after the
nurses’ shifts were completed and after learning of the
bad outcome. Finally, the audit trial showed that several
entries had been modified or deleted.
Attorneys handling medical negligence cases should
request full electronic medical records when trying to make
sense of confusing electronic charts.
While once experienced attorneys were frustrated by the
mysteries of electronic records, today those records provide
us with clarity and a deeper understanding of every case. 
Victor Bergman is a partner in the Kansas City firm
of Shamberg, Johnson & Bergman.
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17
PROFILE
The Thomas G. Strong Award
Unfinished
business
A need for
purpose drives
Dave Zevan
Zevan is the recipient of
the 2010 Missouri Association
of Trial Attorneys’
Thomas G. Strong
Trial Attorney Award.
The honor is given annually to
the Missouri trial attorney who
best exemplifies the qualities
of professionalism, character,
courtroom success and ethics.
By Jeannie Brandstetter
Photos this page by Susan Zadrozinski
I
f not for a 10th-grade spin on a carnival Whirly-Bird
ride during which Dave Zevan discovered his unfortunate lack of intestinal tolerance for velocity combined
with aerodynamic drag, the native New Yorker might have
gone on to become a Navy fighter pilot.
“Flying jets was my dream,” Zevan says, “but I threw up
everywhere when I got off that ride.”
That turn of events, coupled with some sage advice from
his father, prompted him to table his ambitions of attending
the U.S. Naval Academy at Annapolis and piloting jets from
the decks of aircraft carriers. Yet, even with flying out of the
picture, Zevan still considered a career in the military as a
member of the Navy’s Judge Advocate General Corps, eventually opting instead for a degree in history/political science
from the University of Scranton and a law degree from St.
Louis University.
Now, so many years removed from that memorable carnival
ride, Zevan is arguably one of the most successful medical
malpractice attorneys in the state of Missouri, and he knows
the path he found was the right one for him.
“I know I’ve made a difference,” he says, solemn and in
a way you can tell it matters to him. “I know I’ve effected
change.”
See ZEVAN, Page 24
18
Clockwise from top, with Rhonda in
Lake George, N.Y., with youngest son
Peter, eldest son Nikolai and
daughter Anastasia.
Nikolai, Rhonda, Anastasia, Peter and Dave
Zevan.
Amber Raab, Rhonda Zevan, Dave Zevan,
Jean Maguire and Jennifer Galusha.
19
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Asbestos Plaintiffs Can Sue Outside of
Workers’ Compensation System
By Bartholomew Baumstark &
Andrew O’Brien
Recent rulings from St. Louis
City trial judges provide that
workers suffering from malignant
mesothelioma caused by workplace
exposures to asbestos can maintain
civil tort actions against their
employers. The authors represented
the Plaintiffs in these cases. The
defendant in these two lawsuits,
CertainTeed Corporation, argued
unsuccessfully
that
personal
injury claims were barred by
the Exclusivity Provision of the
Missouri Workers’ Compensation
Law (“WCL”). Plaintiffs’ position,
supported by the Missouri Supreme
Court’s recent holdings in M.A.R.A.
v. Department of Labor, 277 S.W.
3d 670 (Mo.banc 2009), McCracken
v. Wal-Mart Stores East, LP, 298
S.W.3d 473 (Mo. banc 2009), and
the plain language of the WCL itself,
was that in adopting the 2005 tort
reform amendments to the WCL,
the Missouri legislature removed all
“occupational diseases” that are not
the result of an “accident” from the
WCL’s exclusive remedial scheme.
In the opinion of the authors, for an
“occupational disease” to be covered
by the WCL’s Exclusivity Provision
(thereby barring a civil tort action
for said occupational disease), that
occupational disease must now be
the result of an accident, defined
under the WCL as “an unexpected
traumatic event or unusual strain
identifiable by time and place of
occurrence and producing at the time
objective symptoms of an injury caused
by a specific event during a single work
shift.” If an occupational disease is not
the result of an accident, the injured
worker is free to pursue an injury claim
by way of civil lawsuit in circuit court
against his or her employer.
The Cases
Angelena Franklin v. CertainTeed
Corporation, Cause No. 0822CC07392 and Aquilino Cicerelli v.
CertainTeed Corporation, Cause No.
0922-CC08297 were filed in the 22nd
Judicial Circuit, City of St. Louis. Both
cases concern former CertainTeed
employees who worked at the
company’s asbestos cement pipe plant
in north St. Louis City in the 1960s
and 1970s. John Stevens (the injured
party in Franklin) was diagnosed with
malignant mesothelioma in December
See ASBESTOS, Page 26
21
22
Amicus Curiae Filing
State ex rel. Proctor vs. Messina
Ex Parte Conversations with Defense Counsel and
Plaintiff’s Treating Physicians; pending before the Missouri Supreme Court.
In a medical malpractice case, defense counsel was
granted a protective order allowing blanket ex parte conversations with plaintiff’s treating physicians. MATA urged the
Supreme Court in its amicus brief that the trial court should
not be permitted to enter orders for informal discovery
allowing defense counsel to engage in ex parte conversations with plaintiffs’ treating physicians. MATA relied on
Missouri caselaw, including the recent case of State ex rel.
Collins v. Roldan, as well as the federal HIPAA Privacy
Rule which would preempt any state laws that may allow
unrestricted ex parte contacts. Furthermore, MATA pointed
out that any information that can be obtained legitimately
through ex parte discussions with treating physicians could
also be obtained through Missouri’s formal methods of
discovery.
On our team: MATA members Hans van Zanten and
Mike Yonke for the Plaintiff and Ashley Baird and Leland
Dempsey for the MATA amicus committee. 
-- Ashley Baird
Coming in the Autumn Issue:
This is MATA Country Convention photos
A trial attorney’s take on jury service
Holmes v. Kansas City Board of Police Commissioners
23
ZEVAN (con’t from Page 18)
A working class guy who descended from Russian Orthodox farmers and coal miners in upstate New York, Zevan
has made good. Seated with his wife Rhonda in the conference room of the St. Louis offices he shares with partner
Kevin Davidson, the trial attorney who “never thought he’d
stay in St. Louis” talks about his life and work.
In law school he clerked for plaintiff’s attorney and
MATA Executive Committee member Ken Vuylsteke,
where, according to Vuylsteke, he so impressed all those
with whom he worked that Zevan was sought out for a position with the city counselor’s office of St. Louis. He spent
several years there “under the wing of Jack Fitzgibbon” and
then had a short stint in a plaintiff’s firm before eventually
opening his own firm and joining forces with law school
classmate Davidson. He married Rhonda, with whom he
has three children – Nikolai, 13, Anastasia, 11 and Peter, 7.
When not working, Zevan enjoys traveling with his family, the passionate study of history (he has begun collecting Native American artifacts found on his farm), and the
simple act of working the black Angus cattle on the farm
or going on a hunting trip, sometimes with his kids tagging
along. He even makes time to serve as Assistant Scoutmaster for Boy Scout Troop 322, of which son Nik is a member.
In effect, life is pretty much going according to plan,
even if it’s Plan B and there isn’t an aircraft carrier in sight.
Except for one little glitch.
What appeared to be a swollen gland was treated with
a few rounds of antibiotics before Zevan eventually had a
biopsy and was handed a diagnosis of non-Hodgkin’s lymphoma in June 1998.
His immune system kept the disease at bay for seven
years, said Zevan, who came to view his cancer as a Damoclean sword. He knew the blade would eventually fall,
and when it did, it meant a rigorous cycle of chemotherapy
treatments and an eventual stem-cell transplant.
There were computed tomography scans too numerous to
count and days spent hooked up to intravenous therapy, followed by nausea and weakness and sure, maybe the tiniest
bit of self-pity, albeit short-lived.
“Early in my diagnosis I was seeing some specialists in
Michigan and was really feeling down so I took a walk and
wound up going past the pediatric ward,” he said, shame
creeping into his voice. “I never again felt sorry for myself.”
It was a tough period during which he called on colleagues to come to his aid. Old friends Tom Stewart and
Spencer Farris joined Zevan & Davidson and were a big
part of keeping things running at the firm.
“I knew I had to keep this place going and I found myself
getting tremendous support. I’m indebted to Tom and Spen24
cer; they were a big part of my support system,” Zevan
says. And he can’t say enough about the loyalty Davidson
has shown. “The pressure he’s been under was just unbelievable during my cancer treatment.”
He was able to gain traction against his illness, entering
remission thanks to the treatments, and he also gained some
philosophical insight that he uses with his clients and in his
family life.
“I’m able to hear what (my clients) are going through and
have a level of understanding that not every attorney will
have,” he said. In fact, instead of succeeding in spite of his
illness, Zevan sees his achievements in part as a result of it.
When he talks about wanting to make a difference, Zevan
is talking about the kind of work his firm does for people
like Suzanne and Dewayne Blankenship, whose infant son
Dylan died as a result of medical malpractice. Because of
Zevan and partner Davidson’s work on that case, the jury
awarded the Blankenships a $6 million verdict.
Jones V. Talcherkar, M.D. (Circuit Court of Macoupin
County (Ill.), Cause No. 2002-L-1, verdict $3,104,695), is
another example of the firm producing unexpected victories
in counties where even small plaintiff’s verdicts are rare.
Rhonda Zevan chides her husband gently for his inability
to say “No,” but knows that he has a need to make a difference; to have a purpose.
She also recognizes her husband’s cancer as a part of
their lives; an ever-present “shadow.”
“It’s just always there,” she says. “Some days it’s a bigger shadow than others.”
And she recognizes why Zevan credits that shadow as
spurring him to achieve, to do, to accomplish. “I would not
have this perspective if it weren’t for her, the kids and the
cancer.
“It makes you appreciate the things you might not otherwise,” he said, smiling slightly. “We know that.”
Davidson points to Zevan’s apparent inability to give
quarter on any level and marvels.
“When a person going through what he was would rightfully and rationally say, ‘I understand my clients need me
but I can’t be there right now,’ he was there,” Davidson
said. “He went for chemo on Day 2 of a trial and was back
at 8:30 in the morning on Day 3. And he wasn’t just there,
sitting on the back row, observing. He was there actively
participating, questioning witnesses, doing whatever had to
be done.”
Zevan said he feels, if not a need to protect, then a desire
to shield his family and colleagues because “they’re all
going through this too. It’s made us much closer. I know
I wouldn’t be as successful without the support of all my
family and my hardworking partner. It makes my time very
valuable. When you feel you’re living on borrowed time,
SEE NEXT PAGE
ZEVAN (cont. from Page 24)
you’re more judicious with it.”
“He doesn’t want to make me upset,” Rhonda agrees.
“But we all have it. At the same time, we’ve got a great
marriage, three great kids, a wonderful way of life. We are
super-blessed.”
Cancer “made another go” at Zevan late in 2009, and
he just completed another cycle of chemotherapy. In fact,
when he got the telephone call from MATA President Alan
Mandel about winning the Strong Award, Zevan was at
Barnes Hospital about to endure his final round of chemo.
“I don’t know that there’s a higher honor for a trial
lawyer in Missouri,” he says, growing quiet, “or really, a
higher honor for a trial lawyer anywhere.”
“I think it’s a great honor and he deserves it,” chimes in
Rhonda. “There’s a drawer at home full of letters that tell
me why – they’re from people whose lives he’s affected for
the better. In fact, those really mean more than any award
ever could.”
Says friend and former partner Stewart, “Dave exemplifies each of the characteristics as evidenced by the esteem
he is held by the judiciary and the numerous cases referred
to him by defense counsel throughout the state.”
Vuylsteke, who remains close with Zevan and his family, agrees, in spite of the running joke between them that
Vuylsteke will continue to introduce Zevan as his former
law clerk. “He’s very deserving of the award,” he said.
Susan Zadrozinski
Zevan mugs in the courtroom with partner Davidson.
“When he was younger he used to call me for advice on
cases. Now I call him.”
Says Zevan, who is back in remission, “You’ve got to
feel like you’re doing something. I don’t know why I have
this (cancer), but I definitely believe that things happen for
a reason. There’s a reason I’ve been allowed to come back.
It’s not yet my time.” 
25
ASBESTOS (con’t from Page 21)
2007 and died of his cancer in May 2008. Aquilino Cicerelli
developed mesothelioma in April 2009 and succumbed to this
disease in May 20101. Neither Mr. Stevens nor Mr. Cicerelli
filed a workers’ compensation claim for their cancers.
Trial in Franklin began on January 19, 2010. CertainTeed
had filed an Application for Writ asking the Appellate Court
to direct Civil Motion Division Judge Mark Neill to withdraw
his January 13, 2010 Order denying CertainTeed’s motion for
summary judgement based upon the Exclusivity Provision
of the WCL and enter a new order granting summary
judgement. The morning of trial, CertainTeed’s argued a
motion in limine seeking to exclude any evidence of Mr.
Stevens’ asbestos exposure while employed by CertainTeed,
again based upon the WCL’s Exclusivity Provision. Trial
Judge Lisa Van Amburg denied CertainTeed’s Motion in
Limine. The case settled on the first day of trial, minutes
after the Eastern District of the Missouri Court of Appeals
denied CertainTeed’s writ application.
In Cicerelli, Judge Robert Dierker issued an April 9, 2010
Order denying CertainTeed’s motion to dismiss for failure to
state a claim, once again based upon the exclusive remedial
scheme of the WCL. The case settled soon after Judge
Dierker’s ruling.
The Arguments
CertainTeed argued throughout the pendency of both cases
that mesothelioma is a recognized occupational disease
under the WCL - as Mr. Stevens and Mr. Cicerelli both
alleged that they developed mesothelioma as a direct result
of their work at CertainTeed’s asbestos plant, any remedy
for these injuries necessarily lies with the WCL which has
expressly covered occupational disease claims since the
1930’s. CertainTeed also contended that the 2005 WCL
amendments did not remove diseases like mesothelioma
from the WCL, and even if these amendments did remove
them, the removal was unintentional. According to
CertainTeed, the rules of statutory construction demand that
courts ignore the amendments as any failure by the courts to
do so would render the occupational disease provisions of
the WCL meaningless.
Plaintiffs argued several points, summarized below:
(A)
Plaintiffs’ cases are properly filed and entertained
in circuit court.
In McCracken v. Wal-Mart Stores East, LP, 298 S.W.3d 473
(Mo. banc 2009), the Missouri Supreme Court held that
Missouri’s constitution unequivocally grants circuit courts
original jurisdiction over all civil cases, including those
injury cases where employees sue employers for workplace
injuries. Defendant employers wishing to assert the WCL
exclusivity defense must plead it as an affirmative defense
and prove the applicability of the defense. As a result of
McCracken, Plaintiffs’ cases were properly filed in circuit
court and there is no requirement that Plaintiffs first file a
worker’s compensation cases and obtain denials before
filing civilly.
(B) The WCL Exclusivity Provision (and not the
occupational disease provisions) determines jurisdiction.
The Exclusivity Provision of the WCL, MO. REV. STAT. §
287.120, obligates employers to furnish compensation only
for personal injuries or death of employees that occur as the
result of an “accident” as that term is defined in the WCL.
As noted by the Supreme Court in M.A.R.A. v. Department
of Labor, 277 S.W. 3d 670 (Mo. banc 2009), the WCL is
the exclusive remedy only for those “injuries” that meet the
definition of “accident.” “Other such rights and remedies
that are not provided for in the act are not subject to these
exclusivity provisions - that is, they still can be sued for
at common law.” Id. at 679. If CertainTeed believes that
Plaintiffs’ injuries are the result of accidents, CertainTeed
bears the burden of proving as much.
(C) The 2005 WCL amendments substantially changed
the definition of “accident.”
Amended 2005 definition of “accident”
Pre-2005 definition of “accident”
The word “accident” as used in this chapter shall
mean an unexpected traumatic event
or unusual strain identifiable by time and place of
occurrence and producing at the time objective
symptoms of an injury caused by a specific
event during a single work shift. An injury is not
compensable because work was a triggering or
precipitating factor.
Mo. Rev. Stat. § 287.020.2
The word “accident” as used in this chapter shall,
unless a different meaning is clearly
indicated by the context, be construed as to mean
an unexpected or unforeseen identifiable event or
series of events happening suddenly and violently,
with or without human fault, and producing at
the time objective symptoms of an injury. An
injury is compensable if it is clearly work related.
An injury is clearly work related if work was a
substantial factor in the cause of the resulting
medical condition or disability. An injury is not
compensable because work was a triggering or
precipitating factor.
Mo. Rev. Stat. § 287.020.2
See ASBESTOS, Page 32
26
Champions Club
The Champions Club recognizes the combined contributions from MATA members in association with their law
firms. These generous donors make it possible for MATA to defend the civil justice system and advocate for the rights of
injury victims and injured workers. We greatly appreciate the generosity of these members and firms.
The individual members of each firm are acknowledged in MATA’s Hall of Fame.
Davis, Bethune & Jones, L.L.C.
DIAMOND
-- $50,000 --
Langdon & Emison
Strong Garner Bauer P.C.
EMERALD
-- $35,000 to $49,999 –
Davis, Ketchmark & McCreight, P.C.
Bartimus, Frickleton, Robertson & Gorny, P.C.
Robb & Robb LLC
PLATINUM
-- $25,000 to $34,999 –
Brown & Crouppen, P.C.
Dollar, Burns & Becker, L.C.
GOLD
-- $15,000 to $24,999 –
The Healy Law Firm, L.L.C.
The Hershewe Law Firm, P.C.
The Law Offices of PalmerOliver, P.C.
Shamberg, Johnson & Bergman
The Simon Law Firm, P.C.
SILVER
-- $10,000 to $14,999 –
Dempsey & Kingsland, P.C.
Gray, Ritter & Graham, P.C.
Meyerkord, Rineberg & Graham, LLC
Norton & Norton, P.C.
Schlueter, Mandel & Mandel
Simmons Firm
Sullivan, Bautista, Morgan, Allen & Chronic L.L.C.
White, Allinder, Graham, Buckley & Carr, L.L.C.
BRONZE
-- $7,200 to $9,999 –
The Accurso Law Firm
Barnes Law Firm, LLC
Boyd & Kenter, P.C.
Bruer Wooddell & Harrell, P.C.
Holloran White & Schwartz LLP
Hubbell Peak O’Neal Napier & Leach
The McCallister Law Firm, P.C.
Monsees Miller Mayer Presley & Amick
The Redfearn Law Firm, P.C. Rubins, Kase, Hager, Cambiano & Bryant, P.C.
Tatlow, Gump, Faiella & Wheelan, LLC
Yonke & Pottenger, LLC
Bley Law Firm, P.C.
Henry Williams P.C.
The Hullverson Law Firm
O’Brien Law Firm, P.C.
Schlichter, Bogard & Denton
Zevan & Davidson Law Firm
COPPER
-- $4,800 to $7,199 –
The Law Offices of Stephen R. Bough
Brad Bradshaw M.D., J.D., L.L.C.
Brown & Brown
Roger G. Brown & Associates
Cady & Campbell, L.L.C.
Cervantes & Associates
Cofman & Townsley, L.L.C.
Fox & Vuylsteke, LLP
The Guirl Law Firm, L.L.C.
Hall, Ansley, Rodgers & Sweeney, P.C.
Harper, Evans, Wade & Netemeyer
Heller, Gallagher & Finley, LLP
Holland, Groves, Schneller & Stolze L.L.C
Humphrey, Farrington & McClain
James Legal Services, P.C.
Kuhlman Law Firm, LLC
McChesney & Ortwerth, L.L.C.
Nash & Franciskato Law Firm
Newman, Bronson & Wallis
Onder, Shelton, O’Leary & Peterson, L.L.C.
Mark E. Parrish, LLC
Donald L. Schlapprizzi, P.C.
Spooner & Perkins, P.C.
Walters, Bender, Strohbehn & Vaughan, P.C.
27
MATA Hall of Fame
MATA is pleased to recognize MATA Hall of Fame members whose personal financial commitments help us serve you and
your clients through effective representation at both the state and national level. Individual commitments go to the support
of MATA, MATA PAC and AAJ PAC. Minimum annual financial support at each level is as follows:
Eagles - $50,000; Founders - $25,000; Steward - $20,000; Patron - $15,000; Justice - $12,500; Master - $10,000;
Ambassador - $7,500; Guardian - $6,000; Sponsor - $4,800; Pacesetter - $3,600; Benefactor - $2,400; Leadership - $1,200;
Advocate - $750. MATA also appreciates support of its Sustaining members who pay annual dues of $650.
Grant L. Davis - Kansas City
J. Kent Emison - Lexington
FOUNDERS CLUB
-- $25,000 to $49,999 -Steve Garner - Springfield
Robert L. Langdon - Lexington
Gary C. Robb - Kansas City
STEWARD CLUB
-- $20,000 to $24,999 -Tim Dollar - Kansas City
Michael P. Healy - Kansas City
PATRON CLUB
-- $15,000 to $19,999 -Michael S. Ketchmark - Kansas City
Robert M.N. Palmer - Springfield
Edward J. Hershewe - Joplin
JUSTICE CLUB
-- $12,500 to $14,999 -John H. Norton - Kansas City
Anita Porte Robb - Kansas City
James Bartimus - Leawood, KS
MASTER CLUB
-- $10,000 to $12,499 -Scott S. Bethune - Kansas City Thomas C. Jones - Kansas City
Kenneth E. Barnes - Kansas City
Jeff Bauer - Springfield
AMBASSADOR CLUB
-- $7,500 to $9,999 -Neil Chanter - Springfield
Chandler Gregg - Springfield
Lynn R. Johnson - Kansas City
John G. Simon - St. Louis
Brian F. McCallister - Kansas City
Stephen F. Meyerkord - St. Louis
JaLouis C. Accurso - Kansas City
Walter H. Bley, Jr. - Columbia
Bradley L. Bradshaw - Springfield
Mark I. Bronson - St. Louis
GUARDIAN CLUB
-- $6,000 to $7,499 -Frederick W. Bryant - Kansas City
James P. Frickleton - Leawood, KS
Stephen M. Gorny - Leawood, KS
Randy W. James - Lee’s Summit
Alan S. Mandel - St. Louis
Paul L. Redfearn III - Kansas City
Kenneth K. Vuylsteke - Webster Groves
Steven W. White - Independence
Brian J. Amick - Kansas City
Stephen R. Bough - Kansas City
Daniel J. Brown - St. Louis
Roger G. Brown - Jefferson City
Ronald A. Brown - St. Louis
John R. Cady - Platte City
Alvin Crouppen - St. Louis
SPONSOR CLUB
-- $4,800 to $5,999 -Brett A. Davis - Kansas City
Brian S. Franciskato - Kansas City
James N. Guirl II - St. Louis
H. Lynn Henry - West Plains
Ed Herman - St. Louis
James P. Holloran - St. Louis
Bradley D. Kuhlman - Kansas City
Scott A. McCreight - Kansas City
Scott E. Nutter - Kansas City
Andrew A. O’Brien - St. Louis
Mark E. Parrish - Lee’s Summit
Donald L. Schlapprizzi - St. Louis
William C. Spooner - Kansas City
Robert C. Sullivan - Kansas City
PACESETTER CLUB
-- $3,600 to $4,799 -Tim Becker - Kansas City
Robert T. Beezley - Springfield
Eric M. Belk - Springfield
Jay Benson - Kirksville
John R. Boyd - Kansas City
Timothy L. Brake - Kansas City
Robert S. Bruer - Kansas City
Leonard P. Cervantes - St. Louis
Terry B. Crouppen - St. Louis
Kevin J. Davidson - St. Louis
Daniel T. DeFeo - Lexington
SEE NEXT PAGE
28
PACESETTER (con’t from Page 28)
Leland F. Dempsey - Kansas City
Chris L. Faiella - Moberly
Joseph A. Frank - St. Louis
Timothy J. Gallagher - St. Louis
Rex V. Gump - Moberly
Amy Collignon Gunn - St. Louis
Milt Harper - Columbia
R. Denise Henning - Kansas City
Philip M. Hess - St. Louis
Sylvester James, Jr. - Kansas City
Robert D. Kingsland - Kansas City
H. William McIntosh - Kansas City
Gene C. Napier - Kansas City
BENEFACTOR CLUB
-- $2,400 to $3,599 --
Robert J. Albair - Clayton
Lauren Perkins Allen - Kansas City
Michael J. Angelides - East Alton, IL
Theresa A. Appelbaum - St. Louis
Ashley L. Baird - Kansas City
James D. Beck - Troy
Mark J. Becker - St. Louis
Victor A. Bergman - Kansas City
John B. Boyd - Kansas City
Stephen D. Bransford - Kirkwood
John W. Briscoe - New London
Daniel R. Brown - Raymore
C. Robert Buckley - Independence
Edward L. Campbell - Kirksville
James E. Carmichael - St. Charles
Brian J. Cooke - East Alton, IL
James M. Dowd - St. Louis
Shelly Dreyer - Joplin
John F. Edgar - Kansas City
Brett A. Emison - Lexington
Spencer E. Farris - St. Louis
Shawn G. Foster - Kansas City
Andrew J. Gelbach - Warrensburg
Larry W. Glenn - St. Louis
Maurice B. Graham - St. Louis
Thomas J. Gregory - St. Louis
Steven L. Groves - St. Louis
Patrick J. Hagerty - St. Louis
James R. Hall - Oak Grove
Dale K. Irwin - Kansas City
Roger A. Johnson - Joplin
Mark A. Kennedy - Poplar Bluff
Scott L. Kolker - Clayton
Kristine K. Kraft - St. Louis
Joseph W. Larrew - St. Louis
Kurt J. Larson - Springfield
Christopher H. Leach - Kansas City
Joan M. Lockwood - St. Louis
Jeffrey J. Lowe - St. Louis
Brian S. McChesney - St. Louis
Kenneth B. McClain - Independence
Martin M. Meyers - Kansas City
Mark E. Moreland - St. Louis
Gretchen Myers - St. Louis
Brianne Niemann - Kansas City
James D. O’Leary - Webster Groves
Craig R. Oliver - Springfield
James G. Onder - Webster Groves
Craig M. Ortwerth - St. Louis
James C. Owen - Chesterfield
Matthew J. Padberg - St. Louis
John Parisi - Kansas City
Randy C. Alberhasky - Springfield
Daniel L. Allen - Kansas City
David W. Ansley - Springfield
Jose M. Bautista - Kansas City
James H. Bell - Kansas City
Thomas Bender - Kansas City
J. Scott Bertram - Kansas City
Jill S. Bollwerk - St. Louis
James C. Brandenburg - Clayton
Pieter A. Brower - Kansas City
John R. Campbell, Jr. - Leawood, KS
George E. Chronic II - Kansas City
Mary E. Coffey - St. Louis
Stuart Cofman - St. Louis
Thomas A. Connelly - St. Louis
L G. Copeland - Columbia
David S. Corwin - St. Louis
Ryan R. Cox - St. Charles
LEADERSHIP CLUB
- $1,200 to $2,399 -F. Coulter deVries - Kansas City
Walter L. Floyd, Jr. - St. Louis
Michael A. Gerritzen - St. Louis
Stephen M. Glassman - Clayton
Robert Halas - Independence
Timothy L. Hill - St. Louis
Sally I. Heller - St. Louis
Robert H. Hines - Columbia
Farrell D. Hockemeier - Richmond
Wm. Craig Hosmer - Springfield
Charles F. James - St. Peters
B. Michael Korte - St. Louis
John W. Kurtz - Kansas City
Andrew H. McCue - Kansas City
John E. McKay - Kansas City
Richard E. McLeod - Kansas City
Brian T. Meyers - Kansas City
Jeff Mitchell - Springfield
Douglass F. Noland - Kansas City
Martin L. Perron - St. Louis
Jenifer M. Placzek - Springfield
Jason M. Pottenger - Kansas City
John Wooddell - Springfield
Michael T. Yonke - Kansas City
David M. Zevan - St. Louis
Derek H. Potts - Kansas City
Daniel T. Ramsdell - Springfield
David W. Ransin - Springfield
Stephen H. Ringkamp - St. Louis
Robert F. Ritter - St. Louis
John S. Rollins - Kansas City
Matthew J. Sauter - St. Louis
Jerome J. Schlichter - St. Louis
Norman E. Siegel - Kansas City
Jeffrey S. Singer - St. Louis
Rik N. Siro - Kansas City
David L. Steelman - Rolla
Steven J. Stolze - St. Louis
Benjamin Stringer - Springfield
Michael J. Sudekum - St. Louis
James H. Thompson, Jr. - N. Kansas City
George A. Tyree - Blue Springs
John S. Wallach - St. Louis
Lonny Walters - Kansas City
Roy E. Williams - West Plains
Scott A. Wilson - Columbia
Nelson G. Wolff - St. Louis
Roger P. Wright - Lee’s Summit
William M. Wunderlich - High Ridge
Tim Morgan - Kansas City
Joseph A. Morrey - St. Joseph
Thomas Morrissey - Springfield
Todd I. Muchnick - St. Louis
Ryan E. Murphy - Springfield
Ron Netemeyer - Columbia
John O. Newman - Springfield
David M. Nissenholtz - St. Louis
Stephen K. Nordyke - Butler
John Page - St. Louis
Grant Rahmeyer - Springfield
Patrick E. Richardson - Kirksville
Edward Robertson, Jr. - Jefferson City
Daniel T. Ryan - St. Louis
Thomas E. Schwartz - St. Louis
Kenneth A. Seufert - Farmington
James Sievers - Clayton
SEE NEXT PAGE
29
LEADERSHIP (con’t from Page 29)
David Skeens - Kansas City
Charles F. Speer - Kansas City
Kevin Stanley - Kansas City
Patrick B. Starke - Blue Springs
Jessica Agnelly - Lexington
Truman E. Allen - Columbia
Joseph M. Backer - Kansas City
Elizabeth Diane Baker - Kansas City
Theodore C. Beckett III - Kansas City
Allan Belliveau - St. Louis
Matthew E. Birch - Kansas City
Robert Wm. Bosslet, Jr. - St. Louis
Mark Brinkmann - Springfield
Steven G. Brown - St. Louis
Keith Brunstrom - Ashland
Steve D. Burmeister - Independence
David C. Byerley - Kansas City
Joseph A. Cambiano - Kansas City
John Harl Campbell - Osage Beach
William L. Carr - Independence
Michael P. Corrigan - St. Louis
Jeffrey Damerall - St. Louis
David N. Damick - St. Louis
Roger C. Denton - St. Louis
Steven M. Dioneda - St. Louis
Jerome J. Dobson - St. Louis
Douglas P. Dowd - St. Louis
Duane M. Dreesen - St. Louis
Daniel P. Finney, Jr. - St. Louis
Dennis W. Fox - St. Louis
James A. Fox - Webster Groves
Ted F. Frapolli - St. Louis
Richard A. Gartner - St. Peters
Steven M. Gelfman - St. Louis
Derrick R. Good - Hillsboro
Doreen A. Graham - St. Louis
William T. Beadle - Springfield
Jonathan C. Berns - St. Louis
James E. Bowles - Piedmont
Randall W. Brown - Kansas City
Bob Bruer - Springfield
Morry S. Cole - St. Louis
Samuel K. Cullan - Kansas City
Lanny H. Darr II - Alton, IL
Laurie Del Percio - Independence
Don M. Downing - St. Louis
Roy C. Dripps - Wood River, IL
Joseph K. Eischens - Kansas City
Dale R. Engelbrecht - West Plains
G. Michael Fatall - Kansas City
Mark J. Gaertner - St. Louis
30
Russell C. Still - Columbia
Michael D. Stokes - St. Louis
Phillip A. Tatlow - St. Louis
James T. Thompson - Kansas City
Anthony M. Totta - Lee’s Summit
ADVOCATE CLUB
-- $750 to $1,199 --
Burton M. Greenberg - St. Louis
L. Annette Griggs - Kansas City
Timothy C. Harlan - Columbia
Donna L. Harper - St. Louis
Mark F. Haywood - St. Louis
Mark Helfers - Clayton
Kenneth C. Hensley - Independence
Paul C. Hetterman - St. Louis
Douglas R. Horn - Independence
E. Joseph Hosmer - Springfield
John J. Hummel - St. Louis
Nancy E. Kenner - Kansas City
Jerry Kenter - Kansas City
C. Carl Kimbrell - Kansas City
Andrew B. Klein - St. Louis
Jerry A. Klein - Clayton
Richard D. Klein - Clayton
Gary W. Kullmann - St. Louis
John A. Lally - St. Louis
Bradford B. Lear - Columbia
Kenneth A. Leeds - Clayton
James P. Lemonds - St. Louis
Jeffrey W. Londoff - St. Louis
Mark A. Ludwig - Jefferson City
Scott Mach - Kansas City
Brian J. Madden - Kansas City
Murry A. Marks - St. Louis
James E. Martin - Overland Park, KS
David M. Mayer - Kansas City
William G. McCaffree - Nevada
David L. McCollum - Kansas City
John R. Mencl - Independence
SUSTAINING MEMBERS
-- $650 --
Mike Greenwell - Shelbina
Brent Hankins - Kansas City
Todd N. Hendrickson - Clayton
Rick D. Holtsclaw - Kansas City
Brad Honnold - Leawood, KS
Thomas G. Kemper - St. Louis
Bradford C. Kendall - Kansas City
Andrew L. Mandel - St. Louis
Daniel J. Marsh, Jr. - St. Louis
Laurence D. Mass - Clayton
Kelly L. McClelland - Liberty
Joseph Montecillo - St. Louis
MacArthur Moten - St. Louis
Bryan N. Musgrave - Springfield
Genevieve Nichols - St. Louis
Larry R. Townsley - St. Louis
John E. Turner - Kansas City
William Dirk Vandever - Kansas City
R. L. Veit - Jefferson City
Sheldon Weinstein - St. Louis
Kurt E. Wolfgram - St. Louis
Robert W. Meyers - Bridgeton
Thomas M. Mingus - Columbia
Timothy W. Monsees - Kansas City
Patrick S. O’Brien - St. Louis
Terrence V. O’Leary - Granite City, IL
Robert H. Pedroli - Clayton
David M. Peterson - Kansas City
Scott R. Pettit - Aurora
Larry J. Pitts - Springfield
Kirk R. Presley - Kansas City
Robert M. Ramshur - Piedmont
Dennis T. Rathmann - St. Louis
Timothy A. Reuschel - Kirksville
Richard E. Rice - Kansas City
Steven D. Rineberg - St. Louis
Preston E. Roskin - Clayton
Stephen G. Sanders - Kansas City
Richard P. Scaletty - Independence
John D. Schneider - St. Louis
Noel A. Sevastianos - St. Louis
Quint Shafer - Weston
Cathleen A. Shine - Harrisonville
Steven J. Streen - Kansas City
T. K. Thompson - Liberty
Matthew Uhrig - Ashland
J. Michael Vaughan - Kansas City
Michael Wallis - Kansas City
Seth S. Webb - St. Louis
Todd C. Werts - Columbia
James B. Wilmoth - St. Louis
John Wise - Springfield
Andrew Wood - Neosho
John P. O’Connor - Kansas City
C. H. Parsons, Jr. - Dexter
Michael C. Rader - Leawood, KS
Edward D. Robertson III - Leawood, KS
J. R. Rohrer - Steelville
Michael J. Schlueter - St. Louis
Robert H. Schnieders - Oak Grove
Gerald V. Tanner, Jr. - St. Louis
Stephen C. Thornberry - Kansas City
Terry A. Tolbert - Springfield
Stephen A. Walsh - St. Louis
Mark L. Williams – Kirksville
Alvin A. Wolff, Jr. - St. Louis
Stephen R. Woodley - St. Louis
Charlie Wooten - Hillsboro
Welcome...
MATA is pleased to welcome these new and reinstated members.
Melanie R. Adams
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Brown & Crouppen
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St. Louis
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Sedey Harper, P.C.
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Parsons & Wilson, P.C.
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St. Louis
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Brown & Crouppen
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Hurst Law Firm
St. Louis
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Matthew C. Price
Bergmanis & McDuffey
Camdenton
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David M. James
James Law Group, LLC
St. Peters
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Davis, Bethune & Jones
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The Law Offices of Kathryn E. Van
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James Law Group, LLC
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Rathert Law Firm
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Law Offices of Gary Green
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Van Camp Law Firm LLC
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Christopher L. Yarbro
Kennedy, Kennedy, Robbins &
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Poplar Bluff
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Missouri Attorney General’s Office
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Nicole-colbert@sbcglobal.net
David C. DeGreeff
Shamberg, Johnson & Bergman
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Brown & Crouppen
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Brown & Brown
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Swanson Midgley, LLC
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Law Office of Michael W. Blanton
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Burnett Evans Banks LLC
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Chackes, Carlson & Spritzer LLP
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Bartimus, Frickleton, Robertson &
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Evans Partnership
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Sedey Harper, P.C.
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St. Louis
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Independence
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St. Louis
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Peddicord & Townsend, LLC
Lee’s Summit
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Jefferson City
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31
The changes to the defined term “accident,” (found at
MO. REV. STAT. § 287.020.2), reflect an obvious intent to
curtail WCL claims. The previous definition of an accident
contained a crucial caveat indicating that the definition
controlled “unless a different meaning is clearly indicated
by the context” of the WCL, - this caveat was removed by
the 2005 amendments. Also removed was the statement that
“An injury is compensable if it is clearly work related.” The
new definition requires that the traumatic event or strain
causing the injury or death be identifiable by “time and place
of occurrence” and produce “at the time symptoms of an
injury caused by a specific event during a single work shift.”
(D) By limiting the definition of the term accident,
the Legislature limited the applicability of the WCL
Exclusivity Provision to all injury cases.
In M.A.R.A., the Supreme Court specifically held that the
definitions of “accident” and “injury” are utilized in the
exclusivity clause and the amendment of those definitions
necessarily impacts the scope of the WCL. By limiting
those definitions, the scope of the WCL is limited. As certain
injuries and accidents were removed from the scope of the
WCL, the workers who have suffered those injuries are no
longer governed by the WCL and may file in circuit court.
(E) The 2005 amendments ushered in an era of strict
construction of the WCL, while simultaneously erasing
prior judicial interpretations of “accident,” thereby
eliminating the judicially created link between the
Exclusivity Provision and those WCL provisions
addressing occupational diseases.
The original WCL specifically excluded coverage of
occupational diseases. The WCL provisions allowing for
compensation for occupational diseases were added after the
WCL was enacted. After the occupational disease provisions
were enacted in the 1930’s, it became apparent that the
Legislature failed to link those provisions to the Exclusivity
Provision. In Staples v. A.P. Green Fire Brick Company, 307
S.W.2d 457 (Mo. 1957), the Supreme Court acknowledged
this error and set out to fix the problem, holding that the term
“accident” must be construed as including a compensable
disability resulting from occupational disease. In judicially
expanding the definition of “accident” to cover injuries
resulting from an occupational disease, the Staples court
relied in part upon the liberal construction of the WCL
required at the time. The definition of “accident” was also
materially different, specifically allowing for this expansion.
In 1957(and, as discussed above, immediately prior to the
2005 amendments), the definition of “accident” included
the statement that the definition controlled, “unless a
different meaning is clearly indicated by the context.” The
Staples court found this caveat to be “highly material, if not
controlling” when expanding the accident definition to cover
injuries caused by occupational disease.
The 2005 amendments specifically state that the WCL is
32
to be strictly construed (see MO. REV. STAT. § 287.800.1,
entitled “Law to be strictly construed”) and clearly reject
and abrogate all prior judicial interpretations of the term
“accident” (see MO. REV. STAT. § 287.020.10, aptly entitled
“Definitions - intent to abrogate earlier case law”). By
doing so, the amendments erased the holding in Staples
and with it the crucial, judicially created link between the
WCL occupational disease provisions and the Exclusivity
Provision.
(F)Mesothelioma, like many (but not all) occupational
diseases, does not occur as the result of an accident.
Mesothelioma commonly develops as the result of repeated
exposure to asbestos fibers over a period of time. There
is no unexpected traumatic event or strain, no identifiable
time or place of occurrence, no symptoms of an injury at the
time of inhalation, and no single work shift upon which the
disease can be blamed. As Justice Teitleman observed in his
M.A.R.A. dissent, injuries “caused by the cumulative impact
of repetitive exposure to some factor that causes a workplace
injury” are no longer included within the definition of an
accident. Mesothelioma certainly fits Justice Teitleman’s
description. 277 S.W.3d at 684.
The Orders
(A) Franklin
In Franklin, CertainTeed had two bites at the apple, one with
the Civil Motion Division (by way of motion for summary
judgement) and one with the Trial Division (by way of a
motion in limine). After lengthy oral argument, Civil Motion
Judge Mark Neill issued an order denying the motion for
summary judgement without further elaboration, although
he indicated at the motion hearing that the issue could be
raised as an affirmative defense at trial. The morning of
trial, CertainTeed renewed its exclusivity argument by way
of a motion in limine. After another lengthy argument,
trial Judge Lisa Van Amburg denied the motion from the
bench, stating that although the Legislature may not have
specifically intended to remove diseases like mesothelioma
from the WCL, they appeared to have done just that - “the
Legislature has, perhaps unwittingly, taken us back to the
beginning of the 20th Century” when occupational diseases
were not covered by the WCL.
(B)Cicerelli
In Cicerelli, CertainTeed chose a different procedural
approach. Having lost the motion for summary judgement
and in limine in Franklin, CertainTeed raised the WCL
exclusivity defense by way of a motion to dismiss for failure
to state a claim pursuant to Missouri Rule of Civil Procedure
55.27(a)(6). Civil Motion Judge Robert Dierker denied
CertainTeed’s motion in a twelve-page order. In ruling
against CertainTeed, Judge Dierker aptly summarized his
lengthy analysis below
In the end, the Court must return to the cardinal rule
of statutory construction: the plain language of
See ASBESTOS, Next Page
the text, if not unclear or ambiguous, must control.
When the General Assembly itself declares that it
intended to “reject and abrogate” interpretations
on the meaning of or definition of “accident,”
§287.020.10, and when it redefines the term in plain
and unambiguous language, the Court really has
nothing left to construe.
Judge Dierker agreed with the Plaintiff that, while the
2005 amendments have not removed all occupational
disease injuries from the WCL, only those resulting from
“accidents,” as defined in the WCL, are still barred by the
Exclusivity Provision.
Finally, Judge Dierker considered the issue “of the retroactive
application of the 2005 amendments” to Plaintiff’s claim.
Judge Dierker considered the Supreme Court’s recent
holding in Klotz v. St. Anthony’s Medical Center, SC90107
(Mo. banc 2010), and found that the 2005 amendments
controlled as Mr. Cicerelli’s injury did not accrue until 2009
when he was diagnosed with mesothelioma.
Conclusion
Three St. Louis City circuit court judges have ruled that
employees suffering from malignant mesothelioma may
sue their employers in circuit court, avoiding the previously
well-accepted civil suit bar embodied in the WCL
Exclusivity Provision, § 287.120. The authors consider this
a significant victory on behalf of mesothelioma victims who
have historically faced the prospect of substantially reduced
compensation through the WCL system. Two of these
rulings were issued by judges sitting in the two Civil Motion
Divisions in St. Louis City. We believe that the position
expressed by these judges can, and should be, considered the
position of the 22nd Judicial Circuit in general.
Prior to the cases discussed above, and following the Supreme
Court’s decisions in M.A.R.A. and McCracken published
last year, the authors have reached substantial, confidential
settlements with certain other employer defendants in
mesothelioma cases filed in St. Louis Circuit Court. While
we cannot speak for the defense bar in general (nor would
we attempt to do so), we feel that a significant number of
“usual suspect” defendants in asbestos litigation tacitly
accept that our position on this interesting legal issue is the
correct one. The rulings discussed in this article validate
these prior settlements.
The authors feel obliged to comment that, based upon our
reading of the 2005 amendments and M.A.R.A., employers
are no longer obligated to compensate employees for
many classic occupational diseases, irrespective of the
“prevailing factor” standard adopted with the amendments.
As a practical matter, we understand that the WCL system
continues to entertain these claims, although many are
denied on “prevailing factor” grounds. The door to the civil
tort system is now open to these injured employees.
We wish to note that in Franklin and Cicerelli, and in the
other cases where we have pursued, and continue to pursue,
mesothelioma cases in circuit court against employers,
the workplace exposures to asbestos were unquestioned
and substantial in amount and duration. Additionally, the
employers/defendants were, and are, sizable and/or industrial
type corporations; they would never be fairly described as
“mom and pop” defendants. Lastly, we do not file WCL
claims before, after, or simultaneously with the civil action.
We feel that this approach best positions our clients to take
advantage of this change in the Missouri tort law while
reducing the possibility of creating poor precedent contrary
to that described above. 
NOTES
1. Malignant mesothelioma is a rare, fatal form of cancer that develops several
decades after exposure to asbestos. The only generally accepted cause of
malignant mesothelioma in the United States is asbestos inhalation or ingestion.
Baumstark
O’Brien
Bart Baumstark and Andrew O’Brien
practice at the O’Brien Law Firm, P.C. in St. Louis.
33
KLOTZ (con’t from Page 7)
to trial by jury may not prohibit a limitation on damages in
cases to which there was no right to a jury trial before 1820.
He gives as an example, death cases: since death cases did
not exist in Missouri when the right to trial by jury was
adopted in 1820, there may be no prohibition, based on the
right to jury trial, on a limitation of damages there.
Judge Rick Teitelman (vote #2) gave hope in his own
way by writing an elegant opinion analyzing the statute on
equal protection grounds. He discussed the twisted logic of
the caps in that they
wish I could write like that but I’m sure glad he’s out there
doing it for me.
My favorite quote: “Section 538.210 will act not so
much as a cap on damages as it will a padlock on the courthouse door. As compelling as the state’s interest in quality
health care is, I cannot see the necessity of providing that
care on the backs of the most disadvantaged victims of
medical negligence.”
The Bottom Line
For those of us who routinely do medical negligence
cases, now is the time to pay more attention than usual to
the adage that you should “try your good cases.” 
operate on a perverse irony – those with relatively minor injuries are permitted full recovery, while the most
severely injured among us are denied. It is difficult to
conceive of the necessity of a health care policy that
expressly relies on discrimination against the small
number of unfortunate individuals who suffer the most
debilitating, painful, lifelong disabilities as a result of
medical negligence.
Judge Teitelman also pointed out how the caps disproportionately affect the young and economically disadvantaged, the poverty-stricken, the physically and mentally
disabled, single mothers, wounded veterans and the elderly.
Judge Teitelman’s opinion is full of beautiful and eloquent
language screaming out for the rights of the little guy. I
34
Coffey
Nichols
Mary Coffey and Gen Nichols practice in the city of St. Louis
at Coffey & Nichols Law Firm.
Mr. Nastasio was acting as a fireman even though he was
off duty when he began to fight the fire and his status would
be that as a licensee just like the on duty firemen. No recovery was allowed for the death of the off-duty fireman.
Bartels v. Continental Oil Co., 384 S.W.2d 667 (Mo.
1964). Recovery was allowed for the death of a fireman
who was killed as a result of a gasoline storage tank that
in the course of a fire exploded and was propelled 100 feet
through the air killing five firemen and one bystander. The
court explained that while stored gasoline was known to be
dangerous by the fireman
battling the fire, the storage tank had an improper
pressure value which fact
was known to employees of
Continental Oil who were
present and had the opportunity to warn the firemen
but did not do so. The court
noted that the fireman knew
of the likelihood that the
tank would rupture but
did not know that the tank
would “rocket” in the manner in which it did because
of the inadequate pressure
valve. Under these facts
the hazard was not considered a usual peril of the
firefighting profession and
recovery was allowed.
Wells v. Goforth, 443
S.W.2d 155 (Mo. banc
1969). This case does
not directly concern the
Fireman’s Rule. It does
change the law of Missouri
regarding the liability of
a property owner to a licensee and was found in Gray v.
Russell, discussed below, to have an effect on Fireman’s
Rule cases. The plaintiff was a social guest in the defendant’s home and was therefore considered an invitee of the
defendant. She was injured when she slipped and fell on
an ice-covered portion of the front porch of the home. The
court adopted a new rule of liability to invitees that imposes
a duty upon land owners or those in possession of land
where the dangerous condition is known to the defendant,
realized to be an unreasonable risk and the defendant has
reason to believe that condition will not be discovered by
the invitee, then the party in possession of the land must
make the condition reasonably safe or warn of the dangerous condition.
36
Phillips v. Hallmark Cards, Inc., 722 S.W.2d 86 (Mo.
1986). A Kansas City fireman sued for injuries sustained
while rescuing trapped victims of the Hyatt Regency skywalk collapse. The case first went to the Western District
of the Court of Appeals (1986 Mo.App. Lexis 4039) which
held that it was a question of fact as to whether the fireman
was acting beyond the call of his regular duties as a firefighter so as to have the right to pursue a claim as a business invitee. The Supreme Court reversed the Court of Appeals and explicitly stated that the Fireman’s Rule was the
law of Missouri based on the Nastasio case. It held that the
Rescue Doctrine did not apply to fireman as to the tasks
they performed which were
necessary for the preservation
of life. There is no discussion
of how Nastasio may or may
not be modified by Wells v.
Goforth.
Krause v. U.S. Truck Company, Inc., 787 S.W.2d 708 (Mo.
1990). Dennis Krause was a
member of the Concordia Fire
District. He was a “volunteer” member of the district
which meant that he was not
required to respond to a call
but if he did respond he was
paid an hourly wage. His only
training was in advanced first
aid. His job for the district
was as an ambulance attendant. At the scene of a multicar collision on I-70 Krause
was providing medical aid by
leaning through the window
of one of the vehicles when he
was struck and killed by another eastbound vehicle. The
Court applied the Rescue Doctrine to determine that the
negligent acts creating the peril requiring rescue were also
the proximate cause of the rescuer’s injury. The Court then
held that the Fireman’s Rule did not apply to Mr. Krause
who was not to be considered a fireman but rather an ambulance attendant. The Court justified its nonapplication of
the Fireman’s Rule in part on the fact that Mr. Krause was
not involved in a rescue, yet earlier had applied the Rescue
Doctrine to impose liability on the parties whose negligent
acts set up the need for rescue of the victim in the stopped
car. Recovery was allowed for the voluntary member of the
Concordia Fire Department.
See FIREMAN’S RULE, Next Page
cause of the firemens’deaths.
Lambert v. Schaefer, 839 S.W.2d 27 (M0.App. 1992).
Two police officers sued two 14-year-old minors and their
parents when the boys shot at the officers during a burglary
investigation. One officer was not hit but claimed emotional injuries and the second officer was hit in his protective
vest so that his injuries were not from the bullet penetrating
his body. The Fireman’s Rule was held applicable to police
officers for ordinary negligence only. The act of shooting
was an intentional tort, not negligence, which the court held
took the case outside of the scope of the Fireman’s Rule.
The court also noted that acts which are the result of “reckless and wanton” negligence would be outside the ambit of
the Fireman’s Rule.
CONCLUSION
No recent Missouri appellate decision has looked comprehensively at the Fireman’s Rule. The stated rationale
for the rule continues to be based in property law – that of
the obligation of a land owner/occupier toward a licensee,
although passing recognition is given to public policy and
Assumption of Risk as supporting the rule. If Assumption of Risk is the basis for denying recovery the question
should be asked in formulating legal duties, does a police
officer more likely assume the risk of being shot and killed
in the line of duty (for which civil liability is imposed on
the shooter) or that in responding to an emergency he will
slip and fall on a wet floor (for which there is no liability of
the landowner)? The former seems much more likely in the
contemplation of almost every Missouri police officer and
yet this assumed risk does not prevent civil liability for the
intentional or wanton act of shooting the officer.
The current state of the Fireman’s Rule in Missouri is
a complex labyrinth of who is covered based on what is
being done by the fireman/policeman, the particular benefit provided to the defendant and the degree of fault by
the defendant. Exceptions to the Missouri Fireman’s Rule
may be broadly summarized as follows: (1) if the work
performed by the policeman/fireman is not in response to
an “emergency” recovery is allowed; (2) if the defendant
acted intentionally or wantonly resulting in injury during an
emergency response recovery is allowed; (3) if the injury
resulted from something “extraordinary” or “unexpected”
recovery is allowed; (4) if first aid is being offered by an
EMT or ambulance attendant recovery is allowed; and (5)
if the policeman/fireman arrived on the scene after the dangerous situation to which she was called no longer exists
recovery is allowed for her injury.
The right of firemen and police officers in responding
to emergencies to recover for injuries sustained as a result
of negligent acts of others should be critically reevaluated. The Fireman’s Rule is a common law doctrine that
is subject to judicial revision where the legislature has not
acted. It is hoped that this area of law will be adequately
addressed by the legislature or where the legislature has not
acted by the Missouri Supreme Court. 
Gray v. Russell, 853 S.W.2d 928 (Mo. 1993). Plaintiff
Roy Gray was a Windsor, Mo., police office whose duties
included checking buildings in the city’s business district.
He was badly hurt on the defendant’s premises when some
stairs collapsed during his inspection. No emergency or
rescue was involved in the case. The court held the Fireman’s Rule did not apply because the injury did not occur
in responding to an emergency. The court did acknowledge
that its decision in Wells v. Goforth, supra, changed the
duty of a landowner to an invitee. It also pointed out that
its opinion in Phillips v. Hallmark Cards, supra, that the
continued viability of the Fireman’s Rule was supported
by the doctrine of Assumption of Risk and public policy
considerations.
Winston v. BMA Corp., 857 S.W.2d 541 (Mo.App. 1993). A
Kansas City police officer was injured while entering
an office building to investigate a burglary. The injury was
caused by the collapse of the revolving door while the
officer was inside of it. The court held that any dangerous
situation that may have surrounded the crime no longer
existed when the officer entered the building and thus it
was a non-emergency, non-rescue situation. Recovery was
allowed under the authority of Gray v. Russell, supra.
Kilventon v. Missouri Highway and Transportation Commission, 865 S.W.2d 741 (Mo.App. 1993). An action for
the death of three Kansas City firemen who were killed
from an explosion that resulted from an arsonist’s fire at a
construction site. The defendant occupied the land and its
inspectors were responsible for determining that contractor’s warning sighs were in their proper locations on the
job site. The explosion occurred when dynamite stored in
a trailer detonated as a result of the set fire. The Supreme
Court held in this instance that the Fireman’s Rule did not
prevent recovery for the three firemen’s deaths based upon
the “hidden danger” exception to the Fireman’s Rule. There
were no signs on the trailers warning of the presence of
explosive at the construction site. The court also held that
the criminal activity of the arsonists was not an intervening
J. Michael Cronan is a
solo practitioner in Kansas City.
37
The Closing
Difficult people
To argue with a man
who has renounced
the use & authority
of reason is like
administering
medicine to the
dead.
Thomas Paine
The angry people are those people who are most afraid.
Proverb
If we had no winter, the spring would not be so pleasant;
if we did not sometimes taste of adversity,
prosperity would not be so welcome.
Anne Bradstreet
When I’m getting ready to reason with a man, I spend one-third of my time thinking about
myself and what I am going to say - and two-thirds thinking about him and what he is going
to say.
Abraham Lincoln
There seems to be some perverse human characteristic
that likes to make easy things difficult.
Warren Buffet
Constant kindness can accomplish much. As the sun makes ice melt, kindness causes
misunderstanding, mistrust, and hostility to evaporate.
Albert Schweitzer
38
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