On August 26, 2008, the United States Court of Appeals for the Eighth Circuit upheld a dismissal obtained by Beckie Yocum of a class action filed in the United States District Court for the District of Nebraska.  The claims arose from alleged usury violations under the National Bank Act and the Depository Institutions Deregulation and Monetary Control Act of 1980. The court concluded that the National Bank Act does not apply to state chartered banks, hence dismissal was proper based upon lack of jurisdiction.  In addition, the court found that the alleged improper conversion of funds or collateral did not constitute the payment of interest as defined under the law.  The case is Mamot Feed Lot and Trucking, et al v Scott Hobson, et al, case no. 07-3129.

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Beckie Yocum, who became a firm partner on August 1, 2008, wasted no time in securing a trial victory at her new firm.  On August 21, 2008, Ms. Yocum obtained a defense verdict for one of her clients in a retaliation case.  The outcome is a tribute to her hard work, attention to detail and skill in the courtroom.

Bottaro, Morefield & Kubin, L.C. welcomes new firm member Rebecca S. Yocum.  Ms. Yocum was previously a partner at the law firm of Stinson Morrison Hecker LLP, another highly regarded Kansas City law firm.  Ms. Yocum brings extensive experience in the areas of business litigation and employment litigation and adds additional strength to the firm’s arsenal of trial lawyers.

Caleb Kirwan recently joined Bottaro, Morefield & Kubin, L.C. as an associate.  Mr. Kirwan brings a wealth of experience in the area of workers compensation.  He previously handled workers compensation claims for a national insurance carrier. Mr. Kirwan will continue to practice in the area of workers compensation, but will also be active in civil trial litigation.

There appears to be a great deal of interest in lawsuits relating to the recent Salmonella outbreak involving tomatoes and other vegetables. However, there is not much known at this point to help evaluate whether there will be or should be significant personal injury litigation arising from this situation. As with any public health issue, a number of questions need to be asked.

Why did the Salmonella outbreak occur?

Did individuals or corporations do something careless that led to Salmonella infected tomatoes and produce?

Did individuals or corporations fail to do something they should have done to prevent Salmonella from infecting produce, such as tomatoes?

If individuals or corporations did something careless or failed to do something necessary to protect the public health, what was the reason for their conduct? (more…)

If a picture is worth a thousand words, a video is worth thousands more. Today’s jurors are accustomed to computer generated special effects in movies, they are used to the rewind and fast forward capabilities of DVD players and DVR units and they are used to virtually everything of interest appearing in video on the web within minutes of when it occurs.

Lawyers need to catch up with the times and incorporate video techniques into their trial presentations. Video is now inexpensive and easy enough that it can be used economically in most cases.

This post will discuss the use of video depositions for impeachment at trial. Impeachment is technique where an attorney uses the prior sworn testimony of a witness to demonstrate to the jury that the witness has changed his or her story. Impeachment with video is far more devastating to the liar on the witness stand than the traditional method using a written deposition transcript. (more…)

As a trial lawyer, I cannot imagine a more appropriate topic for discussion than the importance of fair and impartial courts. At a basic level, there. is nothing controversial about this subject. Who can really be opposed to fair and impartial courts? Yet, when fair and impartial courts decide controversial cases, those on the losing end are often angry and blame the courts, rather than the law, for the outcome. Controversy also arises when we try to define what a fair and impartial court does and what type of criticism of the courts is appropriate.

A fair and impartial judiciary is essential to the future of our nation, but it is not an easy objective to maintain. The judiciary’s mission places it in conflict with those who are in power. It has the task of protecting the rights guaranteed by our Constitution and our laws, regardless of the popularity, wealth, political affiliation, or power of the politicians and litigants affected by its rulings. There will always be forces opposed to a fair, impartial and independent judiciary. Our system of government, created with three coequal branches, virtually guarantees conflict between the judiciary and the other branches. Further, our legal system, based on an adversarial model of resolving disputes, guarantees that there will be winners and disappointed losers in every court case. We have an obligation as officers of the court to stand up for the judiciary when it is attacked for fulfilling its duty to uphold the law and the Constitution of the United States.

Preserving a fair and impartial judiciary is not a liberal or conservative issue. Historically, the courts have clashed with both liberals and conservatives, and we can expect this to continue. The courts were at odds with President Abraham Lincoln over slavery, with President Franklin Roosevelt over the New Deal, and with President George W. Bush over the Patriot Act. The courts act as a tempering influence on the party in power. It is essential that we protect and preserve this aspect of our judicial system. One only needs to look at the arrests and beatings of lawyers and judges in Pakistan to understand the importance of a fair, impartial, and politically independent judiciary. Those who would abuse or usurp political power fear such a judiciary.

What concerns me most about the current attacks on the judiciary is that there appear to be concerted efforts to make the judiciary more susceptible to political influence rather than less. For example, there is a movement to eliminate merit selection of judges in Missouri (known as the Missouri Plan). The attacks are couched in terms of making judges “accountable” to the people. In reality, they are designed to make the judiciary dance to the tune played by the politicians in power. These efforts seem designed to create a judiciary that follows the opinion polls rather than the law. (more…)

With the coming of Spring, it is possible that you or someone you know was hurt during the winter months when they slipped and fell on snow or ice in Kansas. The question now is whether the legal system provides any ability to recover money to help pay for medical bills, lost wages, and/or pain and suffering. If you have additional questions after reading this article, please contact our firm.
General Rule

In Kansas, any “occupier of land,” whether a private homeowner or a business is held to a standard of “reasonable care under all circumstances” to keep their property safe for everyone except trespassers. A business, absent unusual circumstances however, does not breach that duty of “reasonable and ordinary care” by not removing snow or ice from outdoor surfaces during a storm or for a “reasonable time thereafter.” This means that anyone visiting a business during a storm or shortly thereafter should be aware of the weather and its probable effect on the parking lots and sidewalks they intend to use. (more…)

In Missouri, the umbrella of workers compensation coverage is a broad one. However, Missouri is one of the few states that will allow an injured employee to bring a civil action against a co-employee or supervisor “for affirmative negligent acts outside the scope of an employer’s responsibility to provide a safe workplace.” Graham v. Geisz, 149 S.W.3d 459, 462 (Mo.App. 2004) (citations omitted). To survive a motion to dismiss, the plaintiff must allege “something more” in the petition; that is, an affirmative negligent act committed by the co-employee or supervisor. State ex rel. Badami v. Gaertner, 603 S.W.2d 175 (Mo.App. 1982). Missouri trial and appellate courts determine what constitutes an affirmative negligent act on a case-by-case basis. Id. Badami is one of the first cases in Missouri to recognize the “something more” exception to the exclusive remedy of the Workers Compensation Act.

Missouri courts have held that “something more” was sufficiently alleged when an employee was directed by his supervisor to dangle over a vat of scalding water, resulting in the employee’s death. Hedglin v. Stahl Specialty Co., 903 S.W.2d 922 (Mo.App. 1995). “Something extra” was present when a supervisor negligently repaired a malfunctioning press machine resulting in an injury to plaintiff. Arnwine v. Trebel, 195 S.W.3d 467 (Mo.App. 2006). In Groh v. Kohler, plaintiff informed her supervisor that the machine she was using would sporadically compress without operator input. 148 S.W.3d 11, 14 (Mo.App. W.D. 2004). The supervisor told the employee to “quit whining” and “just deal with it.” The Western District held that plaintiff, who was injured by the malfunctioning machine, sufficiently alleged something extra.

On February 13, 2007, the Missouri Supreme Court reflected on the development of the “something more” case law in Burns v. Smith, Case No. SC87789, 2007 WL 465920. The Court noted that several recent appellate court decisions, including Groh, created a “reasonable person” approach to co-employee liability. “In the cases that have recognized that the ‘something more’ requirement has been met, the supervisor personally participated in the activity constituting the ‘something more’ by directing the employee to participate in acts that were dangerous and that a reasonable person would recognize to be beyond the usual requirements of the employment.” Groh v. Kohler, 148 S.W.3d 11, 14 (Mo.App. 2004). (more…)