BSCR Firm News/Blogs Feed

Back too soon? The Greater Kansas City Area's Decrease in Jury Verdicts in 2024

24 Jun 2025

ABSTRACT: While jury trials in the Kansas City area have fallen back to pandemic-era levels, we did see an overall increase in the average jury award compared to prior years. Overall, 2024 saw a decline in jury trials but an increase in the average value of verdicts when compared to prior years. Even with the area’s decline in jury trials, Jackson County continues to be the most Plaintiff friendly venue in the Kansas City area.

Jury Trials Fall Back to Pandemic Era Levels

According to the data obtained from the Greater Kansas City Jury Verdict Service, the total number of jury trials in the Kansas City metropolitan area has broken the three-year rebound streak since the COVID-19 pandemic, with jury trials totaling less than in 2022.

2024 saw a total of 74 trials, compared to 101 trials in 2023 and 86 trials in 2022. This represents a decline of 27% from 2023.

While Jury Verdicts Are Steadily Declining, Defense Verdicts Are On The Rise

Like jury trials, jury verdicts are also down compared to the last two years. In 2024, the Kansas City area saw a total of 134 verdicts compared to 217 in 2023 and 161 in 2022. This is a decline of 38% compared to 2023 and a decline of 16.8% compared to 2022.

Of these 134 verdicts, only 54 (40%) were for the Plaintiff, compared to 48% in 2023 and 47% in 2022, putting a stop to the rise in plaintiff-friendly verdicts we have seen.

In contrast to prior years, 2024 saw a decrease in automobile related claims. Specifically, only 60% of automobile related claims saw some sort of verdict for the plaintiff(s). This is a noticeable decline compared to the 78% of plaintiff recovery on automobile related claims in 2023. Contrary to 2023, there were no automobile related wrongful death claims brought to verdict in 2024. Excluding one large outlier verdict ($33.4 million), the average plaintiff award for automobile related claims was $665,971.14.

Average Monetary Award for Plaintiffs Increased Again, Despite Fewer Trials

As was the case in 2023, the overall average of plaintiff friendly verdicts, without outliers, increased again in 2024. When compared to prior years, 2024 saw an increase in the average verdict award to $5,120,258, compared to $1,113,929 ($20,117,952 with the inclusion of outlier verdicts) in 2023 and $564,213 ($1,877,762 with the inclusion of outlier verdicts) in 2022.

When outlier verdicts are removed from the animus, the average Plaintiff’s award drops to $1,897,596. When including outlier verdicts, the total awards to Plaintiffs in 2024 were $276,493,945 compared to $2,092,266,978 in 2023 and $142,709,912 in 2022. Compared to prior years, 2024 also saw a reduction in overall verdicts above $1,000,000, with only fourteen verdicts reaching that threshold compared to the 31 verdicts in 2023 and 18 in 2022. Overall, 2024 saw fewer large verdicts compared to prior years with $34,000,000 being the largest verdict in 2024, compared to the $1.785 billion dollar verdict and $70,000,000 verdicts in 2023.

Jackson County, Missouri Saw A Decline In Plaintiff Friendly Verdicts

Historically, Jackson County, Missouri has seen more Plaintiff friendly verdicts than any of the other venues in the Greater Kansas City area. However, this changed in 2024 as Jackson County experienced a 10% drop in Plaintiff friendly verdicts, from 55% in 2023 to 45% in 2024. Of the 69 claims tried in Jackson County (combining the Kansas City and Independence locations), only 31 of those claims were for the Plaintiff. While 45% is significantly lower than the 55% we saw in 2023, 51% of the claims filed in the Greater Kansas City Area were filed in Jackson County. Of all plaintiff friendly verdicts reached in 2024, 51% of those were reached in Jackson County. While the percentage of plaintiff verdicts in 2024 may be down in Jackson County, it is still the most Plaintiff friendly venue in the Greater Kansas City Area.

Missouri Court of Appeals Rules Causation Opinion Offered by Treating Physician at Trial Must Be Disclosed in Discovery

24 Apr 2025

ABSTRACT: The Missouri Court of Appeals for the Western District reversed and remanded the lower court's judgment in favor of the defendant, Soo Line Railroad Company, after finding that the lower court erred by allowing decedent’s treating physician, who had not been designated as an expert witness, to testify at trial regarding a new causation opinion not previously disclosed in discovery.

In Ralls v. Soo Line Railroad, plaintiff Shirley Ralls filed a lawsuit under the Federal Employers' Liability Act, claiming that her late husband developed lung cancer due to his exposure to carcinogens while working for Soo Line Railroad. While both parties agreed that the decedent's extensive tobacco use contributed to his cancer, the key issue at trial was whether his exposure to known carcinogens during his employment also played a role in the development of his illness. At trial, Soo Line’s experts testified that smoking was the sole cause of Mr. Ralls’ lung cancer, while Mrs. Ralls’ experts asserted that other causes contributed to the cancer diagnosis, including those he was exposed to during his employment with Soo Line Railroad. The Jury returned a defense verdict.

Mr. Ralls’ treating radiation oncologist was identified by Mrs. Ralls in response to Soo Line’s interrogatories requesting Mr. Rall’s treating physicians. Despite disclosing other experts, neither party specifically disclosed the Treating Physician as a retained or non-retained expert. Soo Line arranged and conducted two depositions of this witness — one during discovery and another to preserve his testimony for trial. During his discovery deposition, the oncologist testified he could not definitively say what caused the cancer because he did not have complete data. Several months later, during his trial preservation deposition, he testified further that he had researched causes of lung cancer such as silica and diesel exhaust since his discovery deposition, and he opined that smoking was the sole cause of Mr. Ralls’s lung cancer and that Ralls’s exposure to diesel exhaust or silica did not contribute to his lung cancer.

Mrs. Ralls appealed the verdict, arguing that the trial court erred (1) in permitting Mr. Ralls’s Treating Physician to offer a causation opinion because the Treating Physician was not disclosed as a non-retained expert: (2) in permitting the Treating Physician to offer opinions at trial that differed from his opinions offered during discovery; and (3) in finding that the Treating Physician satisfied Missouri’s expert witness statute, section 490.065. Soo Line argued Ralls had independent knowledge of the information required by Rule 56.01(b)(7) and disclosure of expert witnesses and Ralls was not surprised by any failure of Soo Line to formally identify the Treating Physician as an expert.

The Court of Appeals agreed with Ralls on the first two points (and said it therefore didn’t need to reach the third point), reversing the trial court’s judgment and remanding the case to the circuit court for a new trial. The Court found that while Ralls knew the treating physician would be a witness for the defense related to her husband’s cancer treatment as a treating physician (he was on the defense’s trial witness list), Ralls was not aware he would offer testimony regarding the specific cause of the cancer based on additional research he conducted in anticipation of trial. The Court further found that by giving these new causation opinions based on research and studies not disclosed during the discovery deposition and not researched by the treating physician during his treatment of Mr. Ralls, his testimony went beyond the realm of a treating physician and required that he be disclosed as a non-retained expert. Citing multiple prior Missouri appellate decisions, the Court held where the defense failed to disclose the Treating Physician as a non-retained expert, his testimony amounted to unfair surprise because his definitive causation opinion was only disclosed at trial for the first time; and as a result, Ralls was unfairly prejudiced.

This case emphasizes the importance of clear and thorough expert disclosures. Counsel should be careful to consider the witnesses they plan to present at trial well in advance of any deadlines to disclose experts and ensure that they include any relevant treating physicians in their disclosures to avoid exclusion of testimony or worse, a reversal on appeal.

Missouri Supreme Court Vacates Verdict Against School Bus Company, Citing Intervening and Superseding Cause

26 Mar 2025

ABSTRACT: The Missouri Supreme Court vacated and remanded the appellate court’s decision in D.J., by and through his Next Friend, R.J., v. First Student, Inc., reasoning that the criminal act of a third party was an intervening and superseding cause.

Minor Plaintiff was using the student transportation services contracted through his elementary school and Defendant when he was hit by a third-party vehicle. Defendant’s substitute bus driver extended the stop arm and activated the school bus’s flashing lights; however, irrespective of these warnings, a third-party vehicle maneuvered around the bus and struck Plaintiff as he crossed the street.

Plaintiff brought suit against Defendant for negligence, arguing in Count I that Defendant negligently dropped off minor Plaintiff at an unreasonably safe location, and in Count II that Defendant failed to provide the substitute driver with a route sheet, failed to advise the substitute driver of the content of the route sheet, and failed to tell the substitute driver the location of minor Plaintiff’s home.

Jury Trial and Verdict

At trial, the jury returned a verdict in favor of Defendant on Count I and in favor of Plaintiff on Count II. Defendant appealed, arguing that Plaintiff failed to show proximate cause because the criminal action of the hit and run driver was an intervening and superseding incident, and ultimately, the Missouri Supreme Court accepted the case for review.

Legal Standard for Negligence and Proximate Cause

For negligence, a plaintiff must demonstrate that the defendant’s conduct was an “actual cause” or “cause-in-fact” to his injury. Once “actual cause” is shown, the question becomes whether the harm resulted from the reasonable and probable consequence of the defendant’s conduct. Although the sufficiency of the evidence for actual cause is a factual question reserved for the jury, a preliminary question of law may remain for the Court to determine. That is, where it has been alleged by the defendant that a third party’s action was a superseding or intervening cause of the injury, it is the role of the trial court to analyze whether it was the defendant’s conduct, or a superseding or intervening event, which was the proximate cause of the plaintiff’s injuries. In this case, the facts concerning the criminal acts of the hit-and-run-driver were not in dispute. In other cases where intervening cause has been alleged, the jury may be called upon to resolve fact questions about the third party’s conduct.

Missouri Supreme Court’s Analysis

The Supreme Court explained that an intervening cause is a new and independent force that interrupts the chain of events so much so “that it becomes the responsible, direct, proximate, and immediate cause of the injury.” The intervening cause eliminates liability for the defendant as a matter of law.

In reversing the trial court verdict for Plaintiff on Count II, the Missouri Supreme Court found that the third-party hit-and-run driver’s actions were a superseding and intervening cause, destroying the chain of causation. It reasoned that the driver’s hit-and-run action amounted to a felony and that the conduct of maneuvering around a school bus was “surprising, unexpected, or freakish,” “exceeding ‘the natural and probable consequences of [the] defendant’s actions.’” It also opined that this reasoning was supported by public policy because school bus drivers are required to follow strict instruction and statutory mandates to alert other drivers of the processes of loading and unloading students in order to drastically reduce the likelihood that a third-party driver will attempt to pass and strike a child. The intervening action of this third party was of no consequence to defendant’s conduct and was an intervening cause.

Dissenting Opinion

Justice Wilson dissented, arguing that while a criminal action is seldom foreseeable, the risk that a third-party vehicle would maneuver around the stopped school bus and strike a child at an intersecting cross walk was not only foreseeable but was the risk that Defendant foresaw in undertaking specific design routes and policy manuals. His opinion focused on the substitute driver’s mistake in releasing Plaintiff at the wrong location, contending that if the substitute had released Plaintiff at the proper stop, he would not have had to travel in front of the bus, which was labeled to be a dangerous action in Defendant’s policy manual. Thus, the principal opinion crossed the line reserved for the finder of fact.

Key Takeaway

Where a defendant has alleged that a third party’s intervening and superseding conduct has caused plaintiff’s injury, and the facts have been established as to that third party’s conduct, it raises a legal question of proximate cause that is reserved for the trial court: Did the third party’s conduct constitute “a new and independent force that [ ] interrupt[ed] the chain of events [so much so] that it bec[ame] the responsible, direct, proximate, and immediate cause of the injury”?

Challenging Venue and Timely Filing

10 Mar 2025

ABSTRACT: In State of Missouri ex. Rel. ArchCity Defenders, Inc., v. Whyte, the Missouri Court of Appeals ruled that motions for change of venue based on improper venue brought by plaintiffs are untimely and prohibited under Missouri law.

In November 2023, Plaintiff filed a lawsuit in Jefferson County, Missouri, against multiple Defendants. In response to the lawsuit, Defendants claimed venue in Jefferson County was improper and timely moved to transfer the case to St. Louis City. The Jefferson County Court did not rule on the motion for 90 days. Under Missouri Law, the motion for change of venue was automatically granted once 90 days had passed without a ruling, and the case was transferred to St. Louis City.

Plaintiff then filed a motion for change of venue to transfer the case from St. Louis City back to Jefferson County. The St. Louis City Court did not rule on Plaintiff’s motion within 90 days, and the case was re-transferred back to Jefferson County. In response, Defendants asked the Missouri Court of Appeals for a writ of mandamus directing that the case be sent back to St. Louis City.

The issue for the Court of Appeals was whether Plaintiff’s motion to re-transfer the case back to Jefferson County was permissible and was timely filed under Missouri law. The appellate court granted Defendants’ writ, holding that Plaintiff’s motion for change of venue was untimely.

Missouri’s Rules of Civil Procedure state that any motion to transfer based on improper venue shall be filed within 60 days of service on the party seeking transfer. In ruling that Plaintiff’s motion for change of venue was filed out of time, the Court of Appeals gave some important insight into this rule regarding who can file a motion for change of venue.

The Court reasoned that Missouri Law implies that because petitioners are the master of the petition and can choose where to file suit, only respondents and third parties can file a motion for change of venue based on improper venue. In this case, Plaintiff was never served with the case and the sixty-day period never started. Thus, the Court of Appeals concluded that Plaintiff’s motion could not be considered timely under Missouri law.

The Court of Appeals further noted that passage of 90 days without a court ruling does not mean that a motion for change of venue must in all instances be granted. Rather, if the transfer motion was not procedurally valid and timely filed in the first place, the 90-day timeframe for the trial court to rule was never triggered.

Key takeaways: Here, the Missouri Court of Appeals ruled that because plaintiffs are the masters of their complaint and presumably know what they are doing when they file the case in a particular court, only respondents and third parties can move to change venue based on improper venue. Counsel should pay close attention to the 90-day timeframe for the trial court to rule on a motion to change venue. If Plaintiff wants to oppose the change of venue, counsel should make sure that the motion is set for hearing, and a ruling is issued before 90 days elapse. And if the moving party sees nothing happening on the docket as the 90-day deadline approaches, the best strategy may be to sit and wait for the time to expire, which will generally result in the case being automatically transferred.

Missouri Appellate Practitioners Ask State's Highest Court to Change "Points Relied On" Rule for Appellate Briefs

03 Feb 2025

ABSTRACT: Missouri’s “points relied on” rule is often a pitfall for attorneys finding themselves in the position of drafting an appellate brief in the State, particularly for counsel not often litigating in the appellate courts or for out-of-town practitioners. In fact, Missouri is the only state that mandates attorneys lay out points to be raised on appeal in their arguments in a set, often rigid format. Deviations from the rule’s format can result in dismissal of the appeal. A group of two dozen of the State’s appellate practitioners, as well as several professional organizations, have asked the Missouri Supreme Court to modify the rule or, alternatively, to appoint a special committee to analyze difficulties encountered in complying with the rule.

In September 2024, a group of attorneys statewide signed a letter directed to the Missouri Supreme Court to express concern regarding Supreme Court Rule 84.04(d), which addresses the “point relied on” section of appellate court briefs filed within the State. The rule provides a specific format for each asserted claim of trial court error and provides a format “template” for the point relied on depending upon the type of case being appealed. The appellate courts often describe that the function of the point relied on is to give notice to the opposing party of the precise matters which must be contended with and to inform the court of the issues presented for review. In theory, if the point relied on is deficient, the responding party and appellate court must search the remainder of the brief to discern the appellant's assertion, which is not only a waste of resources but risks the appellant's argument being understood or framed in an unintended manner. It is for this reason, that the Missouri Supreme Court and lower appellate courts have held a point relied on which does not state the “wherein and why” of the trial court or agency error does not comply with Rule 84.04(d) and preserves nothing for appellate review.

The highly technical rule, however, has led to some harsh results. Just two years ago, the Missouri Supreme Court dismissed a case solely for errors in the “Points Relied On” section. Lexow v. Boeing Co., 643 S.W.3d 501 (Mo. banc 2022). The state’s three appellate courts have issued dozens of similar rulings over the past several years, often resulting in devasting dismissals for both civil litigants and criminal defendants.

After listing anecdotal examples shared by the signatories, the letter to the Missouri Supreme Court requested modification of the rule, or alternatively, appointment of a special committee to analyze difficulties encountered in complying with the rule and to make recommendations based on its analysis.

Noting that the goals of Rule 84.04(d) are to encourage practitioners to focus on the ruling claimed to be in error and the basis therefor, providing clarity to respondents and the courts, and avoiding judicial advocacy, the signatories expressed that compliance is not always simple even for seasoned appellate practitioners. The letter offered several suggestions on how Rule 84.04(d) might be modified to accomplish its goals while lessening the struggles with compliance. Specifically, the letter suggested the following:

Simplify the rule to require only identification of the ruling claimed to be in error and the basis for the claim of error;
Retain the rule but without the “template” currently stated in the rule as the template is often the cause of difficulty in formulating the Point Relied On and does not fit every circumstance;
Permit a standard heading and require an introductory paragraph at the beginning of each point;
Permit subparts if the same ruling was in error for more than one reason, rather than each of these reasons requiring its own point relied on;
Retain the rule but afford an opportunity to correct deficiencies specified in an order of deficiency; or
Permit some incorporation by reference to promote judicial economy.

Alternatively, the letter asked the Court to appoint a special committee to study the rule, meet with practitioners to articulate why compliance remains elusive, and make recommendations to the Court.

Twenty-four appellate practitioners from across the state signed the letter, along with the Missouri Organization of Defense Lawyers, the Missouri Association of Trial Lawyers, the Missouri State Public Defender, and the Missouri Association of Criminal Defense Lawyers. While the Supreme Court has not taken any action pursuant to the letter, we will report on any developments in the future as changes to this rule will impact appeals across all practice areas.

Generative AI Ethics in Missouri and Beyond

27 Jan 2025

ABSTRACT: In July 2024, the ABA released ethics guidelines regarding the use of Generative Artificial Intelligence (GAI) with a focus on competence, confidentiality, and candor to the tribunal. This post analyzes those guidelines and how, if at all, Missouri, Kansas and Illinois have addressed lawyers ethical obligations when using GAI.

The most common ethical obligations implicated when working with Generative Artificial Intelligence (GAI) are (1) competence which includes understanding the risks/benefits of the GAI tool, (2) confidentiality which requires understanding the privacy policies of the GAI tool being used to protect client information and (3) candor to the tribunal which requires accuracy and in some jurisdictions, disclosure of the use of GAI in court filings.

ABA Formal Opinion 512

In July 2024, the ABA released Formal Opinion 512 to provide some guidance for lawyers regarding the use of GAI.

To comply with the ethical obligation of competence, lawyers do not need to become experts; but must have a reasonable understanding of the capabilities and limitations of the technology being used. When using a GAI tool, understanding the underlying data the tool is using to produce results is especially important because if that data is limited, outdated or biased in some way then the results produced may be unreliable.

The ABA stresses the importance of understanding the underlying data because GAI tools are prone to “hallucinations”. This is when the GAI tool provides plausible responses that have no basis in fact or reality.

To satisfy competence, the ABA recommends independent verification or review of GAI produced content along with consulting with others who are proficient in GAI technology to keep up with developments and understand how the technology is working.

Next, the ABA discusses the importance of maintaining confidentiality when using a GAI tool. At the time of this opinion, the ABA indicates there is a general lack of understanding about what happens to the information that is put into a GAI tool and how that information is protected. The ABA also highlights the possibility of inadvertent disclosures which can occur because a GAI tool uses the information put into it to improve its work in the future. The risks not only include disclosure to third parties but possible disclosure of confidential information within a single firm where the tool uses information from one client to generate information in a separate client’s case.

Due to these issues, the ABA requires lawyers to evaluate whether the use of a GAI tool will disclose confidential information or allows that information to be accessed by others outside the firm. The ABA recommends reading and understanding the products Terms of Use, privacy policy and any other related policies for the specific GAI tool and lawyers may even need to consult with IT professionals/cyber security experts.

Additionally, the ABA recommends clients give informed consent prior to putting their information into a GAI tool. Informed consent requires more than general boilerplate provisions in engagement letters and clients must understand why the tool is being used, the extent to the information being put in and the extent of the risk.

Lastly, the ABA discusses the use of GAI and candor to the tribunal where a common issue is inaccurate citations or using made up cases.

The ABA recommends that lawyers conduct an independent review of the results created by the GAI tool to verify it’s accuracy. There are also some courts requiring the disclosure of the use of a GAI tool as part of candor to the court.

Now let’s turn to Missouri, Kansas and Illinois to see what steps, if any, they have taken to address the use of GAI.

Missouri

Missouri does not have binding rules but was ahead of the ABA on releasing guidelines. On April 25, 2024, the Office of Legal Ethics Counsel & Advisory Committee of the Supreme Court of Missouri issued informal opinion 2024-11 which looks very similar to the ABA recommendations.

For competence, similar to the ABA, the Committee recommended that attorneys educate themselves on the types of GAI and understand the risk and benefits of using GAI.

The Office of Legal Ethics compared the use of GAI with work that is done with the assistance of a nonlawyer in which the lawyer has a professional responsibility to verify the accuracy of the work.

For confidentiality, similar to the ABA, the opinion states lawyers are required to make reasonable efforts to safeguard client information. The Committee recommends lawyers should consider the terms and conditions of a GAI platform to understand the security of the information prior to using GAI.

With respect to candor to the tribunal, see our article here about a recent case where the Eastern District of Missouri Court of Appeals stated citations to fake cases are a flagrant violation of the duty of candor.

Kansas

Kansas does not appear to have statewide rules yet, but Shawnee County has implemented District Court rule 3.125 Pleadings Using Generative AI. This rule states that if any portion of a pleading or filing was drafted using AI a litigant must (1) verify accuracy and (2) disclose to the court and opposing parties at time of filing that document contains AI content along with a certification that the filing was checked for accuracy. A violation of this rule may result in sanctions.

The requirement to disclose use of AI to the court is a way to comply with candor to the tribunal but neither Missouri or Illinois have implemented this requirement.

Illinois

In January 2025, the Illinois Supreme Court announced a general AI policy. The policy states that the rules of professional conduct apply fully to the use of AI, all users must review AI content prior to submitting to ensure accuracy, disclosure of AI use is not required, and AI applications must not compromise confidential information.

Conclusion

There is a general agreement among the jurisdictions regarding the need to verify/review GAI information for its accuracy. There is also general agreement that lawyers must be wary of protecting client information while using GAI but there is no consensus of how to ensure information is protected. Lastly, the jurisdictions differ on whether parties are required to disclose the use of GAI tools in filings.

Missouri Court of Appeals Finds a Trial Court Abused Its Discretion by Admitting Evidence of a Prior, Unrelated Street Race.

25 Nov 2024

ABSTRACT: The Missouri Court of Appeals held that while a defendant’s speed at the time of a motor vehicle accident is, of course, relevant to a showing of negligence, the trial court’s admission of evidence of the defendant’s participation in an unrelated street race was erroneous and prejudicial.

In Childers v. Williams, the Eastern District of the Missouri Court of Appeals had occasion to review the standard for the admissibility of evidence of pre-accident speeding in a vehicle collision case. The Court applied existing Missouri precedent, that “evidence of a driver’s speed is relevant to a collision if it relates in such a way that the conduct of the driver may be said to be continuous,” and that “[t]he only relevant evidence of speed is the speed immediately before the collision.” Applying these standards, the Court of Appeals held that a St. Charles County Circuit Court abused its discretion by admitting evidence of a street race that occurred prior to and was unrelated to the collision at issue. The Appeals Court reversed and remanded the judgment of the trial court finding the evidence was so inflammatory and prejudicial that it warranted a new trial.

Background

Clayton Childers, Noah Williams, and an unnamed witness were all leaving work together when Childers, who was driving a motorcycle, and the witness, who was driving a car, made a bet with one another to race. After the race concluded, and after exiting the highway and stopping at a stoplight, the three continued a short distance to a gas station to pay the bet when Willliams’ car collided with the rear of Childers’ motorcycle.

Childers sued in St. Charles County for the damages sustained in the accident. Before trial, Childers filed a motion in limine seeking to exclude any evidence referring to his participation in the race. The trial court heard arguments on the motion and decided to take it with the case but noted that any evidence of the race was likely inadmissible if used to show Childers had been speeding before the accident, but that the evidence would be more likely admissible if it could be shown the speed or reckless driving was connected to the collision.

During the trial, several objections to evidence of the race were sustained, but the court allowed testimony about the race to be admitted through direct examination of Williams:

Q: How close were [Witness] and Clayton Childers with you as you left Firestone?

A: When we got onto the highway they were close by but then they raced.

Plaintiff's Counsel: Objection, [y]our Honor. We've been through this before. It's irrelevant and prejudicial.

The Court: Overruled.

Q: (By [defense counsel]): You saw them racing?

A: Yes

Q: Could you keep up?

A: No

Childers did not request the testimony be stricken or request a curative instruction despite there being no dispute the race was not related to the collision. After a two-day trial, the jury reached a verdict assigning no fault to Williams. Childers then appealed, arguing that the trial court erred in admitting evidence of the race because it was irrelevant, highly prejudicial, and inflammatory.

Reviewing the factual record, the Eastern District Court of Appeals found that the evidence of the race in Childers was not relevant “as it was an isolated event unconnected to the collision.” The Court held the prejudicial effect of allowing the evidence to be admitted was so inflammatory that even had Childers’ requested the testimony be stricken or for an instruction, the prejudicial damage could not be undone, and a new trial was warranted.

Take Aways

For motor vehicle accident cases in Missouri, evidence of pre-accident speeding may be relevant for the purpose of establishing speed at the time of a collision, but only if it can be shown to be connected to or to have contributed to the accident itself. Further, a Missouri trial court may potentially abuse its discretion if it admits any such unrelated, inflammatory evidence.

Quoting prior case law, the Court of Appeals stated that: “Because the speed of a vehicle may be altered, proof of its speed at one point does not prove speed at another unless there is a factor which offers a finding or inference that the speed was constant.” Because there was no evidence to suggest the prior excessive speed continued in any way connected to the accident at issue in Childers, the Court of Appeals reversed the verdict in Plaintiff’s favor and remanded the case for a new trial.

Missouri Court of Appeals Dismisses Appeal for Failure to Recite the Facts

17 Oct 2024

ABSTRACT: Missouri’s Southern District Court of Appeals dismisses appeal for failing to comply with the requirements in Rule 84.04(c) regarding the statement of facts.

It seems that virtually every week of the year, the Missouri Courts of Appeals toss out one or more appeals because the appellant has failed to follow the express, stringent requirements for appellate briefing, as set forth in Rule 84.04. Martin Leigh, PC v. LoanCare, LLC, from the Missouri Court of Appeals for the Southern District, is a recent example in this long line of cases. The underlying case was an interpleader action to determine the distribution of proceeds from a foreclosure sale on a home. LoanCare, LLC, a junior lienholder whose lien was wiped out by the foreclosure sale, filed claims for wrongful foreclosure and unjust enrichment, among others, against the parties involved in the foreclosure and sought a declaratory judgment stating that the foreclosure sale was void. The parties involved included various lienholders, the borrowers who defaulted on the promissory note, the successor trustee who conducted the foreclosure sale, and the individuals who purchased the property at the foreclosure sale.

LoanCare filed a motion for summary judgment on its declaratory judgment and wrongful foreclosure claims, asserting that the undisputed facts showed that the successor trustee lacked the authority to conduct the foreclosure sale and failed to provide proper notice of the sale to the borrowers who defaulted on the promissory note. The other parties filed cross-motions for summary judgment on LoanCare’s claims. The trial court denied LoanCare’s motion for summary judgment and granted the other parties’ cross-motions.

LoanCare appealed the trial court’s judgment, claiming that the trial court erred in entering summary judgment in the respondents’ favor and against LoanCare and asserting five points on appeal. In its brief, LoanCare included a statement of facts that relied solely on accompanying exhibits, including various deeds and other documents relating to the successor trustee and the foreclosure sale. However, LoanCare did not recount the material facts set forth in its statement of uncontroverted material facts in support of its motion for summary judgment that was before the trial court, nor did it refer to the other parties’ responses to its statement of facts at any point in its brief.

The appellate court refused to consider the merits of LoanCare’s arguments on appeal, stating that because LoanCare failed to identify the uncontroverted material facts as established by the motion for summary judgment and the responses thereto, “LoanCare’s brief effectively contain[ed] no facts.” The appellate court noted that, while its review of a trial court’s decision to grant summary judgment is de novo and no deference is given to the ruling of the trial court, this standard of review “does not grant an appellant a license to craft arguments free from the constraints of Rule 74.04.” The court pointed out that, in reviewing a trial court’s decision to grant summary judgment, an appellate court must follow the requirements of Rule 74.04 governing summary judgment in the same manner as the trial court is required to. In other words, the appellate court does not consider the entire trial court record but must look only to the facts established in the summary judgment record.

The appellate court then turned to a discussion of Rule 84.04, which sets out the requirements for appellate briefs. Rule 84.04(c), which states the requirement that a brief include a statement of the facts relevant to the issues on appeal, imposes on an appellant "the duty to define the scope of the controversy by stating the relevant facts fairly and concisely." J.D. v. Sanders, 688 S.W.3d 828, 833 (Mo. App. S.D. 2024) (quoting Pemiscot Cnty. Port Auth. v. Rail Switching Servs., Inc., 523 S.W.3d 530, 534 (Mo. App. S.D. 2017)). In the appeal of a trial court’s ruling on a motion for summary judgment, the relevant facts are those set forth in the moving party’s statement of facts and the responses. Id. (quoting Lisek v. Taber, 674 S.W.3d 525, 526 (Mo. App. S.D. 2023)). Therefore, when a party appeals a grant of summary judgment, Rule 84.04 requires that their brief include both the moving party’s statement of uncontroverted material facts and the other party’s responses to those facts. Otherwise, the appellate court has no basis for determining whether the stated facts are genuinely material and uncontroverted.

Because LoanCare’s statement of facts did not refer to either its own statement of uncontroverted material facts or the responses to those facts, it did not set forth the relevant facts for the appellate court to consider as required by Rule 84.04. In dismissing LoanCare’s appeal for failure to comply with the requirements of Rule 84.04, the appellate court noted that “[t]o excuse this defect would require us to act as an advocate on LoanCare's behalf and scour the record to discover the facts that might support LoanCare's claims.”

Attorneys who practice primarily in federal court or in jurisdictions other than Missouri must familiarize themselves with the land mines present in Rule 84.04 before filing an appeal. The LoanCare opinion serves as a valuable reminder that Missouri appellate courts apply strict rules as to the format and contents of appellate briefs. Ensuring compliance with these rules prevents an appeal from being dismissed on an avoidable briefing error.

Eighth Circuit overturns fee award in megafund settlement, but declines adoption of bright line rule for limits on fees

01 Oct 2024

ABSTRACT: The Eighth Circuit Court of Appeals in In re T-Mobile Customer Data Sec. Breach Litig., 111 F.4th 849 (8th Cir. 2024), overturned as unreasonable and excessive a class action fee award of 22.5% of a $350 million settlement, resulting in a fees award of $78.75 million and a lodestar multiplier of 9.6 (meaning class counsel’s resulting fees would be 9.6 times their customary hourly rate).

Cybercriminals hacked into computer systems belonging to telecommunications company, T-Mobile US, INC., stealing the confidential personal information of an estimated 76.6 million customers. A bevy of class actions filed against T-Mobile were centralized in the United States District Court for the Western District of Missouri. Following settlement of the claim for $350 million, class counsel moved for a fee award of 22.5% of the $350 million settlement fund ($78.75 million). Class member Cassie Hampe objected to the settlement, contending the amount of attorneys’ fees sought was too high. The District Court struck Hampe’s objection on the merits and approved class counsel’s requested fee award. Hampe appealed.

On appeal, the Eighth Circuit Court of Appeals held that the District Court erred in striking Hampe’s objection, concluding she was a proper party to challenge the court’s fee award. Regarding the reasonableness of the fee award, the Eighth Circuit noted that Federal Rule of Civil Procedure 23(h) provides that “the court may award reasonable attorney's fees” in class actions and, at the fee award stage, a district court must be vigilant in protecting the right of class members to not have their recovery reduced by excessive attorneys' fees. See In re Wireless Tel. Fed. Recovery Fees Litig., 396 F.3d 922, 932 (8th Cir. 2005); see also Fed. R. Civ. P. 23(e)(2)(C)(iii).

The Eighth Circuit identified the two methods for awarding attorneys' fees in class actions. The first is the “lodestar” method where the court multiplies the number of hours attorneys worked by their hourly rates to come up with a starting point, which can then be adjusted up or down depending on the circumstances of a case. The second is the “percentage” method, where the court awards a percentage of the fund that the attorneys helped recover. The Eighth Circuit recognized a dozen “factors” to be considered by courts under either approach in assessing the reasonableness of a fee award. (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 719-20 (5th Cir. 1974)). The Eighth Circuit’s ultimate conclusion turned on its consideration of the “the time and labor required,” “the amount involved and the results obtained,” and “awards in similar cases” factors.

Class member Hampe argued that the District Court’s percentage award was excessive because the “megafund settlement” (exceeding $100 million) was disproportionate to the amount of labor required to achieve it. She argued that the immense recovery was the product of the class’s size, rather than counsel’s effort and, as such, the attorneys should not receive as high a percentage of the settlement fund in such case. She argued that the Court should consider "the economies of scale when addressing attorneys’ fees awarded in class action settlements exceeding $100 million,” so as to avoid an undue windfall to class counsel. The District Court rejected her contention, noting that the Eighth Circuit has never required district courts to reduce fee awards because a settlement created a “megafund.” While the Eighth Circuit recognized both sides of the argument, it ultimately declined to adopt a brightline rule requiring district courts to award reduced attorney fee percentages in megafund cases. The Eighth Circuit noted that the determination of a reasonable fee is a wide-ranging inquiry that seeks to account for a variety of case-specific circumstances.

Methodology aside, the Eighth Circuit next turned its attention to the excessiveness of the award itself. In justifying the value of the fee award, the District Court noted that it had utilized a “lodestar crosscheck” to confirm that the fee award was reasonable. The Eighth Circuit recognized that a lodestar crosscheck helps a court evaluate whether a percentage award would result in a windfall by comparing it to counsels' lodestar (product of total hours worked multiplied by counsel’s typical hourly rate). In this case, class counsel reported spending more than 8,000 hours on the case and anticipated another 3,000 hours in administering the settlement, resulting in a lodestar of about $8.17 million. Considering the $78.75 million fee award, this results in a lodestar “multiplier” of 9.6, meaning that counsel would get paid about 9.6 times their customary hourly rates.

Although the District Court cited cases approving fee awards with similar lodestar multipliers, the Eighth Circuit concluded the District Court abused its discretion by awarding an excessive fee. While the Eighth Circuit noted that it had never held a particular multiplier was per se unreasonable, it also cited past authority in which a multiplier of 5.3 was found to be “high.” See Rawa v. Monsanto Co., 934 F.3d 862, 870 (8th Cir. 2019). As support for its conclusion, the Eighth Circuit noted that class counsel worked on the case for just a matter of months, conducted relatively little discovery, and engaged in no substantial motion practice. The Court noted that if the fee award were to be permitted, it would mean that class counsel would effectively earn between $7,000 to $9,500 an hour, which it concluded “no reasonable class member would willingly pay to an attorney to help resolve this claim, especially when, as here, dozens of other attorneys were offering their assistance.” The Court concluded that “reducing the fee award to, say, half of what was requested (resulting in fees of $3,500 to $4,750 per hour) could hardly be considered a penalty.” While a lodestar crosscheck may not be necessary in every case, the Eighth Circuit noted that it “might be helpful” in megafund cases which settle quickly, giving rise to a potential windfall. The Court remanded the case back to the District Court for further proceeding consistent with the opinion.

Eastern District Missouri Court of Appeals Overturns $7.7 Million Verdict

21 Aug 2024

ABSTRACT: The Court of Appeals for the Eastern District of Missouri recently overturned a jury’s $7.7 million verdict in a products liability suit. The appellate court held that the trial court’s decision to not grant a requested mistrial prejudiced the outcome of the trial.

In Wilkinson v. Stanley Fastening Systems, L.P., the Eastern District of Missouri Court of Appeals addressed an appeal by Defendant Stanley Fastening Systems, L.P. (“Stanley”) following a jury verdict Plaintiff Andrew Wilkinson’s (“Wilkinson”) favor on his products liability claim. Wilkinson was injured when a pneumatic stapler manufactured by Stanley fired a staple and struck him in the eye, requiring his eye to be surgically removed. Wilkinson brought suit against Stanley alleging claims for negligent design and negligent failure to warn.

Before trial, the trial court granted Stanley’s motion in limine to prohibit evidence relating to Stanley’s assets, revenues, income, or financial resources. During the two-day jury trial, Stanley objected to questions related to Stanley’s financial status, relying on the court’s in limine order and moved for a mistrial. The court overruled Stanley’s objection and denied the motion for mistrial. At the close of trial, the jury awarded Wilkinson $11,000,000 in noneconomic damages for pain and suffering, but found Wilkinson thirty percent at fault, reducing his net recovery to $7,700,000.

On appeal, Stanley argued that the trial court abused its discretion by not granting a mistrial after Wilkinson’s counsel repeatedly referred to Stanley as a “billion-dollar company” in the presence of the jury. Stanley contended that these statements were impermissible, inflammatory and highly prejudicial, as evidenced by the jury’s excessive verdict. Stanley contended that once those statements were made in front of the jury, the prejudicial effect could not be cured, thereby requiring a mistrial. Wilkinson argued that the “billion-dollar” comments were relevant to its negligence claims because it addressed the issue of Stanley’s retention of records relating to the loan tool program.

The appellate court disagreed, reiterating that statements referencing Stanley’s financial status were prohibited by both Missouri law and by the trial court’s orders. In finding for Stanley, the appellant pointed to well established Missouri law that referencing the size, wealth, and corporate status of a party during trial is improper when intended to arouse prejudice and not within the scope of legitimate argument. Because the court found that Stanley’s financial status was referenced in statements by counsel rather than as questions it held the references were irrelevant and prejudicial.

The appellate court further noted that the large damage award supported a finding of prejudicial error, as “[i]nflammatory references to the large size and wealth of a defendant are likely to provoke a jury to apply the ‘deep pocket’ theory of liability and to enhance the size of the verdict relative to the defendant’s perceived ability to pay.” The appellate court ultimately held that the repeated, inflammatory statements about Stanley in the presence of the jury were of such an incurable nature that the trial court’s limited action in sustaining Stanley’s objections was insufficient to curb the bias and prejudice that resulted from those statements. Therefore, the appellate court reversed the trial court’s judgment and remanded the case for a new trial.

This case stands as a reminder to trial counsel that even if an objection is sustained during trial, you should consider what other relief may be available to you and make sure to protect the record by making further motions and objections as warranted. Because Stanley’s counsel had the forethought to move for a mistrial, and not just object to the improper statements, the issue was raised before the appellate court and was responsible for overturning a significant Plaintiff’s verdict.