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Stumph-Turner, Ruble and Headrick Contribute to ALFA Business Litigation Trade Secrets Compendium

29 Nov 2022

Baker Sterchi attorneys Megan Stumph-Turner and Nick Ruble contributed to the Missouri and Kansas sections of the 2022 ALFA International (ALFA) Business Litigation Practice Group Trade Secrets Compendium, with Mary Jo Headrick also contributing to the Missouri section.

The 2022 ALFA Business Litigation Trade Secrets Compendium is a quick reference for eight common topics relating to trade secrets, including statutory authority; the inevitable disclosure doctrine; state law differences from the DTSA; and more. The Missouri section can be found online here, and the Kansas section here.

Stumph-Turner is a steering committee member of ALFA’s Business Litigation Practice Group, as well as the Women’s Initiative Practice Group. She focuses her practice on creditors’ rights, financial services, real estate, construction, and commercial litigation. Stumph-Turner received her Juris Doctor from the University of Missouri-Columbia, and is admitted to practice in Iowa, Kansas, and Missouri.

Ruble is a steering committee member of ALFA’s Labor & Employment Practice Group, and an experienced employment and labor law attorney. Ruble received his Juris Doctor from the University of Missouri-Kansas City School of Law and is admitted to practice in Missouri and Kansas.

Headrick focuses her practice on civil defense and employment litigation. She earned her law degree from the University of Arkansas School of Law and is admitted to practice in Missouri.

Baker Sterchi is the Kansas City, Missouri and Overland Park, Kansas member firm of ALFA International, a premier global legal network of 140 independent law firms in the United States and internationally. The ALFA organization offers educational programming and compendiums in several practice areas for attorneys and clients of its member firms.

Baker Sterchi and Foland Wickens Announce Merger

21 Nov 2022

Baker Sterchi Cowden & Rice LLC and Foland, Wickens, Roper, Hofer & Crawford, P.C. announced today that the two law firms will merge effective Jan. 1, 2023.

The combined firm name will be Baker Sterchi Cowden & Rice LLC. Baker Sterchi managing member, Scott Kreamer, will continue to serve as the managing member of the merged firm. More than 20 Foland Wickens attorneys will move into the Baker Sterchi Crown Center offices in Kansas City, Missouri. The new firm will have offices throughout Missouri, Illinois, and Kansas.

Baker Sterchi managing member Scott Kreamer said: “Foland Wickens enjoys a great reputation in the legal community, and we are thrilled to be joining forces with such a talented group of people. In addition to adding seasoned attorneys in bad faith and extra-contractual liability, the merger deepens our roster of trial lawyers, advancing our shared goal of being recognized as one of the best trial law firms in the Midwest.”

Foland Wickens principals Scott Hofer and Clay Crawford are fellows of the distinguished American College of Coverage Counsel. Collectively, the two firms' attorneys have tried thousands of jury trials in state and federal courts across the country and have several attorneys who are members of the prestigious, by-invitation-only American Board of Trial Advocates and American College of Trial Lawyers organizations.

Baker Sterchi and Foland Wickens both have award-winning practices defending clients in civil litigation, including commercial and business, construction, employment and labor, insurance coverage and defense, medical malpractice, premises liability, product liability, professional and management liability, and transportation litigation. Clients range from individual professionals to Fortune 500 companies located locally, regionally, nationally, and globally.

“This merger brings together two extraordinarily successful trial law firms in the Midwest, providing additional depth and resources to cross-serve clients in new practice areas and geographies," said Foland Wickens managing principal Joe Roper. "We see unlimited potential in this combination and look forward to reaching new milestones with our new colleagues.”

The combination with Foland Wickens will increase the number of Baker Sterchi attorneys to more than 90, with more than 50 located in Kansas City. Based on the number of Kansas City area attorneys, the combined firm would rank in the top 10 on the annual Kansas City Business Journal Law Firms list.

“As part of our strategic plan, we continuously seek to add attorneys, whether individual laterals or groups of trial attorneys, who are well-respected in the legal community and endeavor to provide quality legal representation to clients,” said Kreamer.

Baker Sterchi reached its 40-year milestone in 2022, celebrating the occasion with a rebranding and new website launch.

Eighth Circuit Update: Non-Consumers Cannot Bring Action against Debt Collector for Violations of Section 1692c(b)

18 Nov 2022

In its recent Opinion in Magdy, the Eighth Circuit Court of Appeals rejected an attorney's claim arising out of a debt collector's mistake in contacting the attorney, who did not represent the debtor, regarding a debt. The statutory right of action for FDCPA violations involving communications with third parties remains exclusive to the consumer.

The Eighth Circuit has held that §1692c(b), which prohibits unauthorized communications from debt collectors to third parties, cannot give rise to a non-consumer’s cause of action. The facts in Magdy are simple and straightforward. Magdy, a bankruptcy attorney, was contacted by a debt collection agency in regard to an account for a debtor. Magdy had to sift through old files and wasted valuable time and resources only to discover that, not only was Magdy not representing the consumer in this current dispute, but he had never represented the consumer in any capacity. Magdy then filed suit in Missouri state court, after which I.C. Systems properly removed the case to federal court.

The primary issue addressed by the Eighth Circuit was whether §1692b(c) grants standing to non-consumers for statutory violations. The district court granted judgment on the pleadings in favor of ICS for lack of statutory standing. The Eighth Circuit upheld the opinion, aligning itself with other circuits deciding similar issues.

The district court determined that Magdy had no statutory standing to sue on the statute. The court of appeals affirmed. Applying the “zone of interests test,” the Court reasoned that the plaintiff in this action did not fall within the intended zone of interests the statute was intended to protect. This decision aligns with the decisions of several other courts of appeals, in the eleventh and sixth districts.

Contrarily, in his dissent, Judge Stras reasoned the opposite, using the same “zone of interest” test. In so doing, he commented “Sometimes a title really does say it all,” referencing the title of the statutory subsection in question, “Communications with third parties.” Judge Stras further reasoned that § 1692k(a) of the FDCPA provides redress where a debt collector fails to comply with the statute with respect to any person.” (emphasis added).

For those wondering why Magdy would pursue protracted litigation in this case, see the footnote at page 2 of the Opinion, indicating that although only one letter was the subject of the opinion, Magdy allegedly received approximately 160 similar letters from ICS over the course of the relevant period.

John Watt Contributes to ALFA Construction Law Compendium

17 Nov 2022

Baker Sterchi Member John Watt contributed to the Missouri and Kansas portions of the ALFA International (ALFA) Construction Practice Group’s 2022 Compendium.

The 2022 ALFA Construction Law Compendium is a quick reference for 13 common topics relating to construction litigation, including mechanic’s lien basics; statutes of limitation and repose; pre-suit notice of claim and opportunity to cure; and more. The Missouri section can be found online here, and the Kansas section here.

Located in the firm’s Kansas City office, Watt is a steering committee member of ALFA’s Construction Practice Group and served as program co-chair of the ALFA 2022 Construction Law Seminar. Watt represents clients in multi-million-dollar litigation involving product liability, construction, and toxic torts.

Baker Sterchi is the Kansas City, Missouri and Overland Park, Kansas member firm of ALFA International, a premier global legal network of 140 independent law firms in the United States and internationally. The ALFA organization offers educational programming in several practice areas for attorneys and clients of its member firms.

Last Exit to Seattle? Supreme Court to Determine Which Strike Tactics are Protected

15 Nov 2022

The Supreme Court is potentially poised to expand the circumstances under which an employer can sue a union for property damage incurred during a strike. In Glacier v. International Brotherhood of Teamsters Local Union No. 174, the Supreme Court will decide the standard for when a court should determine that the National Labor Relations Act preempts state tort claims.

The plaintiff, Glacier Northwest, Inc. sued IBT Local174 for damage to property arising out of a strike. Glacier sells and delivers ready-mix concrete to state-wide businesses. Each job has custom-made concrete that must be delivered the same day it is mixed, or it hardens and damages the cement truck’s revolving drum. When negotiations for a new collective bargaining agreement broke down, Glacier’s drivers returned their trucks back to Glacier’s yard with their trucks still fully loaded with concrete. The following day, Glacier was scheduled to perform a pour for a company called GLY. It was re-scheduled to August 19, 2017, due to the strike. On August 18, 2017, Glacier and the Teamsters agreed to terms on a new CBA, and drivers were told to report back to work. However, there were rumors that drivers would not return on August 19^th, which was the rescheduled date of the GLY pour. Because of the rumors, Glacier and GLY wanted assurances from the Teamsters that the pour would be completed. Allegedly the Teamsters told GLY drivers were instructed to respond to dispatch. On August 19^th, there were not enough drivers for the mat pour, and Glacier sustained $100,000 in damages.

On December 4, 2017, Glacier filed a complaint in Washington State Court, alleging conversion and trespass to chattels, tortious interference with contract, civil conspiracy to destroy its concrete, and negligent misrepresentation, fraudulent misrepresentation, and intentional interference with contract. The Teamsters then filed a complaint with the National Labor Relations Board and moved to dismiss all of Glacier’s tort claims, arguing the Act preempted the claims. The trial court granted the Teamsters’ motion to dismiss, concluding the claims were preempted. The Teamsters also moved for summary judgment on the claims of misrepresentation and intentional interference, which the trial court granted. Glacier appealed and the Court of Appeals reversed the dismissal of destruction to property claims but affirmed the dismissal of the misrepresentation claims. The Court of Appeals concluded these claims were not preempted because the intentional destruction of the employer’s property is clearly not protected concerted activity under Section 7 of the Act and reversed the trial court. The Court of Appeals also affirmed the summary judgment dismissal of the misrepresentation claims.

On appeal, the Washington Supreme Court reinstated the trial court’s dismissal. The court relied on San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), finding that the Teamsters’ actions at the outset of the strike were “arguably” protected by Section 7 of the Act, and that it should be left to the Board to determine whether their actions were actually protected. The Board would then have primary jurisdiction to hear any claims that strike-related conduct was unlawful. The Supreme Court has identified exceptions to Garmon preemption, including where the “local interest” or “local feeling” justified the continued availability of tort claims. This has traditionally meant that the States’ interest in protecting property rights would defeat NLRA preemption and allow tort suits for the intentional destruction of property, plant, and equipment, or violence and intimidation in connection with a strike.

In its certiorari brief, Glacier argued that the Constitution requires that State courts be able to redress property damage, in the first instance, because every State’s “local interest” involves respect for personal property rights. Next, Glacier argued that courts must do more than identify whether competing interests between employers and employees would make strike conduct “arguably” protected under the Act. Unions asserting protected activity should therefore have to make a heightened showing on a motion to dismiss demonstrating that their strike conduct was lawful. Finally, Glacier argued that an expansive preemption doctrine violates the Fifth Amendment’s Takings Clause by foreclosing state court remedies and limiting recourse to remedies available under the Act. Glacier cited to Cedar Point Nursery v. Hassid, (Opinion) a case from the high court’s last term, which held that state regulations allowing unions access to solicit employees constitutes a governmental taking under the Constitution. Glacier also cited Justice Kavanaugh’s concurrence, in which he wrote that labor law should not preempt the Constitution’s “strong protection of property rights.”

In response, the Teamsters argued that the Washington Supreme Court was correct in finding that the strike conduct was “arguably” protected under the Act. The decision of whether it was actually protected should be made by the Board, in a pending complaint brought by the General Counsel. The Teamsters pointed out that inevitably strikes will bring about economic loss and inconvenience, but the drivers took reasonable precautions to prevent “foreseeable imminent danger” by returning the trucks to Glacier for management to handle. Finally, the Teamsters argued in favor of the traditional rule that the Board should not have necessarily be the last word on labor matters, but “must assuredly be the first.” That is, the courts should defer to the Board’s expertise in labor matters.

There are many competing concerns involved in this case. On the one hand, strikes are one of the basic instruments a union has in applying economic pressure in bargaining. Generally, any employer with spoilable products will suffer damage to their property in the course of a strike. Will a ruling in favor of Glacier severely limit a union’s ability to strike, given the fear of tort claims for property damage? For employers, the threat of a lawsuit against striking unions may be an attractive weapon, but a lawsuit may be costly and more disruptive in the long-term.

The Court has scheduled oral argument in this case for January 10, 2023. Baker Sterchi attorneys will be closely monitoring this case as it develops and will update this blog post. But regardless of how the Court ultimately rules, there are a few takeaways that every employer should consider:

Strike planning during CBA negotiations is crucial. Where there is a possibility of impasse, employers should plan ahead: from identifying alternative entry gates, to hiring replacement workers or having managers on call to preserve property and goods.
If tort principles are to apply to property damage incurred during strikes, then the employer’s duty to mitigate damage also applies. An employer is unlikely to garner sympathy from a judge or jury (and may have its claims completely barred) if it allows its products to be destroyed by its inaction.
The stakes in this case are quite high. If the Supreme Court adopts Glacier’s argument that a federal labor regulation which limits an employer’s economic remedies against a union is a “taking” under the Constitution, then the Board’s original jurisdiction is likely to be severely curtailed. How expansively the Court defines “damage to property” will dramatically change labor relations for the next several decades.

Missouri & Kansas Super Lawyers Recognizes Twenty-Four Baker Sterchi Attorneys

14 Nov 2022

Twenty-four Baker Sterchi Cowden & Rice attorneys are recognized in the 2022 Missouri & Kansas Super Lawyers and Rising Stars publication. The Super Lawyers publication recognizes lawyers who have attained a high degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations. Super Lawyers recognizes no more than five percent of attorneys in each state. Rising Stars are top up-and-coming attorneys in a state who are 40 years old or younger, or who have been practicing for ten years or less, with only two and a half percent of attorneys recognized in each state.

The recognized attorneys include:

Kansas City, MO

John W. Cowden – Aviation and Aerospace
Scott Kreamer – Construction Litigation
Michael C. McMullen – Products Liability: Defense
Hal D. Meltzer – Civil Litigation: Defense
Thomas E. Rice – Civil Litigation: Defense
Shawn M. Rogers – Personal Injury General: Defense
Thomas N. Sterchi – Products Liability: Defense
Kara T. Stubbs – Products Liability: Defense
Megan Stumph-Turner – Real Estate
Jonathan E. Benevides – Civil Litigation: Defense (Rising Star)
Kehl Friesen – Civil Litigation: Defense (Rising Star)
Tess Johnson – Estate & Trust Litigation (Rising Star)
Megan Sterchi Lammert – Personal Injury General: Defense (Rising Star)
Gregorio V. Silva – Personal Injury General: Defense (Rising Star)

St. Louis, MO

Joshua Davis – Transportation
John F. Mahon – Personal Injury Medical Malpractice: Defense
Terrence J. O’Toole – Personal Injury Medical Malpractice: Defense
Joseph R. Swift – Transportation
Paul N. Venker – Personal Injury Medical Malpractice: Defense
Theodore J. Williams – Civil Litigation: Defense
Richard I. Woolf – Civil Litigation: Defense
Andrew C. Chipperfield – Civil Litigation: Defense (Rising Star)
Rebecca Guntli – Insurance Coverage (Rising Star)
John R. McLeod – Transportation (Rising Star)

Baker Sterchi Sponsors LASTL Gridiron Dinner and Show

10 Nov 2022

Baker Sterchi Cowden & Rice is proud to sponsor the 65^th Annual Gridiron Dinner and Show being held at the Marriott Grand Hotel in St. Louis, Missouri, on November 11.

Hosted by The Lawyers Association of St. Louis (LASTL), the Gridiron Dinner and Show is a song and dance parody on the legal community. The show is written, produced and performed by St. Louis area lawyers. Tickets to the show can be purchased here.

LASTL is a professional membership organization for trial attorneys in the St. Louis metropolitan area.

Insurer Wins Coverage Dispute for COVID-19 Business Losses

09 Nov 2022

In The One Group Hospitality, Inc. v. Employers Insurance Company of Wausau, the United States District Court for the Western District of Missouri dismissed an insured business owner’s claim for the costs of suspending and limiting its restaurant operations during the COVID-19 pandemic under an “all risk” insurance policy. The court’s decision to terminate the litigation at the pleading stage was based on the express language of the policy limiting coverage to “direct physical loss or damage,” as well as a contamination exclusion.

The insured, an owner and operator of restaurants around the country, was forced to shut down its operations for cleaning and decontamination, and otherwise limit its operations, to comply with governmental restrictions on occupancy. The insured had purchased an “all risk” policy that insured against “all risks of direct physical loss or damage.” The policy also contained a “contamination exclusion,” precluding claims for costs and loss of use of property that resulted from contaminants. The policy’s definition of “contaminant” included viruses. Based on these policy provisions, the court found that there was no coverage, and that coverage would be excluded in any event under the “contamination exclusion,” because although the virus is technically physically present, it did not physically alter any structure it attached to, nor was there reason to think it could. The court also found that governmental orders limiting use of the property did not constitute physical damage.

Given the insured’s presence in various states, the court discussed decisions involving similar facts and policies in eight other jurisdictions where the outcome was the same. For example, the Seventh Circuit, applying Illinois law, held that the loss of use of property alone, without any damage or alteration to the property, was not sufficient to assert a claim for physical damages. The Eighth Circuit, while noting a lack of Missouri precedent, has also required some physical loss, such as alteration, contamination, or destruction.

The court noted that even if the presence of a substance that required cleaning did constitute “physical” damage, the damages would be limited to costs or losses incurred to clean the properties, and would not include damages resulting from government-ordered closures or the mere threat of customers bringing in the virus. Regardless, a contamination exclusion would preclude coverage for costs and damages as a result of a virus present on the property. While some policies might leave the door open to contamination claims because of a covered loss, in cases where the contamination itself is not a covered loss, courts have dismissed claims for coverage.

This decision reflects the ongoing and evolving responses to the COVID-19 claims in courts throughout the country. Each case requires fact-specific application of the applicable policy language. However, despite the toll the pandemic has taken on us all, some courts appear to be reluctant to extend insurance coverage beyond claims for physical damage to property. Additionally, certain policies contain exclusions that may preclude claims based solely on viruses. In litigation involving insurance coverage, one must pay special attention to the wording of the allegations regarding property damage in the context of the applicable policy language.

Jackson County, Missouri Jury Rejects 3M Surgical Blanket Infection Claims

04 Nov 2022

On October 13, 2022, a Jackson County (Independence), Missouri jury rejected personal injury claims by the Plaintiff in Katherine O'Haver v. Anesthesia Associates of Kansas City PC et al., Case No. 1816-CV30710. Plaintiff claimed that 3M Co.’s Bair Hugger Forced Air Warming System blanket caused her to develop a joint infection after the product was used on her at a Missouri hospital during a November 2016 left total knee arthroplasty surgery.

Plaintiff filed suit in November of 2018, but 3M was not named until an Amended Petition was filed in December of 2018, adding 3M and its alleged wholly owned subsidiary Arizant, previously known by Augustine BioMedical, Inc. The Plaintiff claimed that contaminants entered her wound during a surgery and caused a deep joint infection, which required her to have additional operations and risks of additional complications.

The product, Bair Hugger Forced Air Warming System, is an FDA approved medical device that is designed to prevent and treat unintended hypothermia in individuals undergoing surgery. The device is placed over the patient during a surgery and its central heating unit draws in air through a filter that warms the air and blows the newly warmed air out through the devices’ hose into the perforated blanket that is over the patient.

Specifically, in the Amended Petition, Plaintiff claimed that “[s]cientific studies have shown that as this warmed air rises against the downward airflow in the operating room, it deposits bacteria carried on particles from the non-sterile portions of the operating theater to the sterile surgical field and the surgical site.” As a result, as against 3M and Arizant, Plaintiff made claims for Strict Liability: Defective Design and Failure to Warn, Negligence, Breach of Express and Implied, Violation of the Missouri Merchandising Practices Act, Negligent and Fraudulent Misrepresentation, and Fraudulent Concealment.

3M is not a stranger to claims against it concerning this device. It has, in fact, faced claims concerning this device’s safety and efficacy in recent years, including multidistrict litigation (MDL) where those plaintiffs also alleged they developed infections as a result of the product’s use during their surgeries. We previously reported on the MDL litigation here and here.

In August of 2021, the Eighth Circuit reached two decisions, both for and against 3M. In sum, one decision revived thousands of claims in a separate MDL against 3M concerning this device where the Court actually reversed the MDL Court’s decision to exclude three of plaintiffs’ medical experts’ opinion testimony that the device caused bacterial infections, along with the grant of summary judgment to 3M. While 3M petitioned the U.S. Supreme Court for further review of the decision, the Court declined to hear the appeal. The other decision, issued the next day, affirmed 3M’s win against claims for Strict Liability: Design Defect and Failure to Warn, finding that the Court was right to exclude certain evidence that did not show causation as to the joint infection alleged and allow one of 3M’s expert’s to testify about operating room airflow.

While 3M came out victorious in the O’Haver matter, it was not without intensive motion practice during trial, including 3M’s Motion for Mistrial and Directed Verdict (both Motions were overruled). We can, however, anticipate that there will be an appeal made by the Plaintiff. As a result, this battle may not be over for 3M in Missouri state court.

Baker Sterchi Recognized in "Best Law Firms" (2023 Edition)

03 Nov 2022

Baker Sterchi is recognized with national and Kansas City and St. Louis metropolitan area rankings in the 2023 edition of U.S. News – Best Lawyers® "Best Law Firms" across numerous practice areas:

National Tier 2

Railroad Law

Metropolitan Tier 1

Kansas City, MO

Commercial Litigation

Mass Tort Litigation / Class Actions – Defendants

Personal Injury Litigation – Defendants

Product Liability Litigation – Defendants

St. Louis, MO

Commercial Litigation

Insurance Law

Personal Injury Litigation – Defendants

Product Liability Litigation – Defendants

Metropolitan Tier 2

Kansas City, MO

Aviation Law

Litigation – Construction

St. Louis, MO

Litigation – Labor & Employment

Mediation

Medical Malpractice Law – Defendants

Railroad Law

Metropolitan Tier 3

Kansas City, MO

Bet-the-Company Litigation

Litigation – Insurance

The annual “Best Law Firms” rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, and peer review from leading attorneys in their field. The publication recognizes law firms by geographic region and practice area(s), and inclusion reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their abilities, professionalism and integrity.