On July 2, 2010, a Clay County, Missouri returned a verdict of $2.487 Million for one of the firm’s clients in a complex wrongful death, personal injury and medical malpractice case. Rick Morefield, lead counsel and Pat Bottaro, second chair, handled the week long jury trial which involved two defendants and a number of novel legal issues.

One of the defendants had an epileptic seizure while driving his SUV.  The defendant drove over the back of the motorcycle ridden by the firm’s client and her husband.  The collision broke the client’s pelvis and lower leg and caused the death of her husband who was burned to death when the motorcycle became trapped under the SUV and caught fire. The widow retained Bottaro, Morefield, Kubin & Yocum, L.C. to file suit against the driver and against the driver’s doctor who was alleged to have negligently provided medical treatment to the driver.  It was alleged that the doctor never informed the driver that he might be at risk of having a seizure while driving and that the doctor never informed the driver that his alcohol consumption could dangerously alter the effectiveness of his epilepsy medicine.

The jury rendered its verdict for the widow and assessed 100% of the fault against the driver of the SUV.  The jury awarded the widow more than $1.3 million for the death of her husband and $1.1 million for her own personal injuries.  The case was unusual in that there are very few situations in which Missouri law permits anyone other than a patient to make a medical malpractice claim against a doctor.  Missouri law permits such a claim, however, when someone is injured because the doctor fails to warn a patient that it is not safe to drive either due to medical treatment that was provided or due to a patient’s lack of understanding about his medical condition.

This is believed to be the largest verdict in Clay County in 2010. Congratulations to Rick Morefield and Pat Bottaro on an outstanding result.

Rick Morefield obtained summary judgment on behalf of his client South Metro Fire Protection District in the case of Holmes  v. South Metro Fire Protection District  and Phillip Brillhart.  The Jackson County Circuit Court entered summary judgment on February 19, 2010, just a few days before trial was set to begin.  The plaintiff alleged she had been sexually abused by Phillip Brillhart, her uncle, from the time she was three years old until she was 17 years old.  Brillhart was hired by South Metro Fire Protection District when the plaintiff was approximately 12 years old and after the abuse had allegedly continued for approximately 9 years.  Brillhart allegedly continued to abuse the plaintiff after he went to work at South Metro Fire Protection District.  Plaintiff sued defendant Phillip Brillhart for the sexual abuse. He had previously pled guilty and served a prison sentence for the abuse. The plaintiff also sued South Metro Fire Protection District alleging that the fire district was negligent in hiring, retaining and supervising Brillhart and she alleged that her injuries were a result of the actions of South Metro.  Morefield represented only South Metro Fire Protection District in this case.  Brillhart was not represented by counsel.

Morefield successfully argued that South Metro Fire Protection District was not responsible for plaintiff’s sexual abuse, and it had no basis to believe the abuse was occurring.  Plaintiff testified that Brillhart abused her in a wide variety of situations including family gatherings.  Plaintiff’s expert admitted under cross examination that the abuse would have continued even if Brillhart had been fired by South Metro Fire Protection District.  The court ruled that plaintiff failed to establish that South Metro Fire Protection District was negligent or that its actions caused injury to plaintiff.  Plaintiff will be permitted to proceed with her claims against Brillhart, the actual abuser.

In Missouri, an employer can be liable for negligent hiring or negligent retention only if the plaintiff succeeds in showing that: (1) the employer knew or should have known of the employee’s dangerous proclivities and (2) the employer’s negligence in hiring or retaining the employee was the proximate cause of plaintiff’s injuries. Moreland v. Farren-Davis, 995 S.W.2d 512, 517 (Mo. App. 1999); Butler v. Hurlbut, 826 S.W.2d 90, 92 (Mo. App. 1992).  Plaintiff failed to meet either of these requirements.

For further information about negligent hiring and retention issues in Missouri, contact Rick Morefield.

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.

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…)