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RDM—Rasmussen Dickey Moore—We are Trial Counsel.

The members and associate attorneys at Rasmussen Dickey Moore are supported by a fantastic team of paralegals, clerks, secretaries and administrative assistants, human resource specialists, accountants and billing specialists, and marketing specialists. Our team works with over two dozen attorneys across three offices to make possible the unparalleled work that our firm does.

RDM's Knowledge Blog Posts by The RDM Team

The Missouri Capitol in Jefferson City. The state legislature passed statutes reforming punitive damage awards in 2020.

By The RDM Team

The Missouri legislature passed Mo. Rev. Stat. § 510.261 in 2020. The statute aimed to limit the frequency and sum of punitive awards. In advance of this aim, Mo. Rev. Stat. § 510.261.5 states that “[n]o initial pleading in a civil action shall contain a punitive damage award.” The section goes on to establish that the trial court must serve as a gatekeeper, granting plaintiffs leave of court to plead punitive damages only after a plaintiff shows “a reasonable basis for recovery of punitive damages” through “affidavits, exhibits, or discovery materials.”

The statute has now been in effect for a little over two years and has faced multiple challenges alleging the statute violates the Missouri State Constitution. Despite strong challenges from plaintiffs, the statute has been enforced in state courts throughout Missouri.

Defense counsel across the state have moved to strike punitive damage claims from initial pleadings filed after the statute’s activation date. Plaintiffs’ counsel have responded by asserting that the statute violates Article V of the Missouri Constitution, which states that “[t]he supreme court may establish rules relating to practice, procedure and pleading for all courts,” because the new statute conflicts with a procedural rule rightfully promulgated by the Missouri Supreme Court. This argument relies on the Missouri Court of Appeals ruling in State v. Emerson, which held that “if there is a conflict between [the Supreme] Court’s rules and a statute, the rule always prevails if it addresses practice, procedure or pleadings.” 573 S.W.3d 93, 102 (Mo. App. W.D. 2019). Plaintiffs have also claimed that the statute conflicts with the Missouri Rules of Civil Procedure and that the evidentiary standard and leave of court requirements violate the right to a jury trial found in Mo. Const. Art. 1 § 22(a).

Successes for Defendants…

Defendants have, to this point, been successful in enforcing the statute. At least three separate circuit courts have rejected plaintiffs’ arguments claiming the statute violates the Missouri Constitution and granted motions to strike punitive damage claims. There is not yet a written opinion explaining any court’s precise reasoning for upholding the statute, but defendants have advanced multiple persuasive arguments to rebut challenges.

First, defendants argue that the statute does not conflict with the Missouri Rules of Civil Procedure because the rules do not require punitive damages to be included in the initial pleading and the statute still allows punitive damages to be pleaded later. Defendants have also argued that the statute does not violate Mo. Const. Art. 5 because the statute only defines the right to punitive damages and therefore is substantive rather than procedural. Other defendants have argued that plaintiffs do not have a vested constitutional right in punitive damages, and the statute is merely procedural when guarding against claims that the statute interferes with Mo. Const. Art. 1 § 22(a)’s right to a jury.

…and Successes for Plaintiffs

While the statute continues to enjoy veiled but consistent enforcement in state court, plaintiffs have been successful in defeating defendants’ motions to strike in federal diversity actions. District Courts in both of Missouri’s federal districts have held that the statute is inapplicable in federal diversity cases because the Federal Rules of Civil Procedure “answer the same question.” See generally Davis v. ALS Express Trucking, Inc., 2022 U.S. Dist. LEXIS 140486. Plaintiffs’ counsel looking to avoid the new pleading requirements may start looking toward federal courts so long as parties are diverse. Plaintiffs have also been successful in limiting the statute’s application to only those cases filed after the statute’s trigger date of August 20, 2020. See generally Largent v. Pelikan, 628 S.W.3d 162 (Mo. App. E.D. 2021).

Looking Forward at Punitive Damages in Missouri

For the time being, it appears that Mo. Rev. Stat. 510.261.5 has survived initial constitutional tests. But plaintiffs’ counsel will certainly continue to bring forth challenges. The defense attorneys at Rasmussen Dickey Moore are prepared to employ all tools available to protect your business from punitive damages claims. Contact RDM today to discuss your case.

The Illinois State Capitol Building in Springfield, IL. Legislators recently approved a bill providing for prejudgment interest. Photo by Daniel X. O'Neil.

By The RDM Team

On May 28, 2021, Illinois Governor J.B. Pritzker signed into law Senate Bill 0072, which established the first pre-judgment interest regime in the state. The Amendment applies only to personal injury and wrongful death actions and imposes a 6% pre-judgment interest on future damage awards. The interest accrues from the date of filing. It does not apply to all such cases, though; the Amendment provides defendants the opportunity to set off the pre-judgment interest through speedy settlement negotiations.

The Carrot and The Stick

The setoff provision acts to encourage parties, particularly defendants, to engage in settlement negotiations within one year of filing. Under the Amendment, the interest does not apply to any amount totaling a defendant’s settlement offer which is 1) in writing, 2) made within 12 months of filing, and 3) either expressly rejected by the plaintiff or not accepted within 90 days. The Amendment acts as both the carrot and the stick, encouraging early settlement offers through interest relief while punishing a failure to offer a settlement with the potential for interest added on top of traditional damages and post-judgment interest.

Illinois Constitutional Issues

Immediately after the Amendment’s passing, defendants in Cook County, Illinois, filed a motion arguing that the Amendment violated the Illinois Constitution. On May 22nd, 2022, in Hyland v. Advocate Health and Hospital Corp. (No. 2017-L-3541), the Court rendered its judgment in favor of the defendants. Specifically, the Court held that the Statute violates the Illinois constitutional guarantee to a trial by jury and its prohibition of special legislation.

The Right to Trial by Jury

Article I, Section 13 of the Illinois Constitution of 1970 provides “the right of trial by jury as heretofore enjoyed shall remain inviolate.” Inherent in this provision, according to Illinois courts, is the right a jury’s determination of damages. Defendants argued that mandatory pre-judgment interest violates the right to a jury’s determination of damages, and the Circuit Court in Cook County agreed. Interestingly, the Court noted various jury studies which indicate that juries already include pre-judgment interest, at a rate above inflation, in their damage awards.

Special Legislation

Article IV Section 13 of the Illinois Constitution of 1970 prohibits special legislation, which acts “to prevent arbitrary legislative classifications that discriminate in favor of a select group without a sound, reasonable basis.” Best v. Taylor Machine Works, 179 Ill.2d 367 (1997). Defendants argued, and the Court again agreed, that a pre-judgment interest regime serves as special legislation and therefore violates the Illinois Constitution. The Court held that the Amendment unjustly discriminates in favor of personal injury and wrongful death plaintiffs and against plaintiffs in other tort suits, along with those defendants who were served over one year after the case was filed.

What’s next?

It is certain that we have not heard the last on the Amendment’s constitutionality. After the decision in Hyland, the Cook County Circuit Court issued a general order that anticipates a further ruling from the state’s higher courts. The status of the Amendment will likely remain in flux until the Illinois Supreme Court brings finality to the issue.

The United States Supreme Court.

By The RDM Team

In October 2020, RDM member attorney Dyanna Ballou wrote an article about jurisdiction stripping, a doctrine that allows Congress to remove jurisdiction from federal courts, including the Supreme Court. In light of recent Supreme Court rulings on abortion, gun control, and climate change regulations, Dyanna takes a fresh look at the concept of jurisdiction stripping below.

Unsurprisingly, there is increased interest in jurisdiction stripping by legal commentators. Many commentators are encouraging Congress to enact legislation to protect abortion rights with a clause forbidding judicial review of the law. “It’s clear to me that this action is allowed under Article 3 of the Constitution and Supreme Court precedent,” says Dyanna.

Despite its legality, jurisdiction stripping raises big issues:

  • Who should decide our most contentious social and cultural issues?
  • Is it fair for nine people to make fundamental legal determinations for over 300 million Americans?
  • How is the minority to be protected from the majority?

One thing has become clear: our courts are not apolitical. “Why else do we have such furious confirmation hearings,” asks Dyanna, “if they are allowed to go forward at all? Everyone knows that each party nominates judges from its own side. The always-reliable liberal and conservative blocks on the Court are further proof of the court’s politicization.” Dyanna suggests that jurisdiction stripping is a tacit acknowledgment of the Court’s political nature.

How Does Jurisdiction Stripping Work?

First, the Senate and the House must pass legislation that removes the Court’s power to review that legislation. Then, the President must sign the legislation, or, failing that, Congress would need the votes necessary to override a veto.

The chances of both houses of Congress and the President agreeing on legislation on hot-button topics like reproductive freedom and gun control are unlikely. Even when a single party controls both houses of Congress and the White House, senators and representatives who refuse to toe the party line are common, as we’ve seen with several pieces of legislation that have stalled in recent sessions. Historically, single-party control has resulted in less rather than more legislation.

Similar Laws in Canada

Our northern neighbor Canada allows jurisdiction stripping. Section 33 of the Canadian Charter (similar to our Constitution) allows Parliament and provincial legislatures to override court decisions that interpret key sections of the Charter dealing with fundamental rights like freedom of speech and freedom from unreasonable search and seizure.

Canada’s Section 33 became effective in 1982. What’s happened since then? Essentially nothing. It has never been used on a national level to override a court decision.

Will Congress Strip the Supreme Court’s Jurisdiction?

What does that mean for us? “I believe that like the Canadian experience, jurisdiction stripping would be difficult to realistically use in the United States,” says Dyanna, “especially on highly-charged social issues. I don’t see it as a practical solution to the problem of an activist Court.”

RDM attorney Vincent Gunter successfully filed a motion for summary judgment on behalf of a client at the Jackson County Courthouse in Kansas City, MO. Photo by Cat Craig.

By The RDM Team

Rasmussen Dickey Moore attorneys, led by member attorney Vincent Gunter, successfully prevailed on a motion for summary judgment on behalf of a client in early June. The case began when Plaintiff filed a negligence claim and a premise liability claim, alleging that exposure to asbestos at a high-rise office building in the late 1970s caused her to develop mesothelioma.

RDM’s client moved for summary judgment, asserting immunity from suit under the workers’ compensation exclusivity doctrine. As part of our client’s argument that Plaintiff’s exclusive remedy was controlled by the Missouri Workers’ Compensation Law, our client produced several insurance policies that provided additional Mesothelioma Benefits Endorsement in order to establish it had the requisite coverage in place as required by the statute.

Plaintiff opposed our client’s motion by filing a series of responses, including a motion to strike the client’s summary judgment motion on the grounds that it did not comply with Rule 74 of the Missouri Rules of Civil Procedure. Plaintiff also argued that our client’s insurance policies are hearsay, and to be admissible, the foundation affidavit authenticating the policies must satisfy Missouri’s business records hearsay exception codified in RSMo. § 490.680.

Relying on CACH, LLC v. Askew, 358 S.W. 58 (Mo. banc 2012), Plaintiff argued that neither RDM’s client nor its insurance agent could authenticate the insurance policies because they were drafted by another company. The Court overruled all of Plaintiff’s arguments and objections.

Regarding Plaintiff’s hearsay argument, the Court held that insurance policies are not hearsay because they are written contracts that memorialize the fact of a legal agreement and, therefore, fall outside the definition of hearsay. The statute Plaintiff relied on is for “business records” that would otherwise be hearsay. The Court explained that if a document is not hearsay, an authentication affidavit does not need to satisfy the requirements of RSMo. § 490.680.

The Court further found that our client’s insurance agent may authenticate the policies because, as he stated in his affidavit and deposition, he has personal knowledge of the policies from his role as our client’s agent in obtaining the policies and advising our client throughout the process.

Plaintiff also challenged the validity of the insurance policies themselves. The Court rejected these arguments and ruled that the undisputed facts showed RDM’s client had a workers’ compensation policy covering claims for enhanced mesothelioma benefits under RSMo. § 287.200.4 during the relevant time period. Accordingly, because Plaintiff was our client’s employee when she claimed exposure to asbestos, and that our client had a policy for enhanced benefits for mesothelioma, our client was immune from civil liability under the workers’ compensation exclusivity doctrine.

Sarra Agha, Law Clerk at Rasmussen Dickey Moore.

By The RDM Team

Coming off her first year at St. Louis University School of Law, Sarra Agha has joined Rasmussen Dickey Moore as a summer law clerk at our Downtown St. Louis office. Both she and the firm are excited for her first foray into the world of litigation!

After she completed her bachelor’s degree in international business and Middle East studies, Sarra enrolled at SLU’s School of Law to further her studies. During undergrad, Sarra was an active member of Zeta Tau Alpha. In law school, she has joined the Middle Eastern and North African Law Students Association and the Women Law Students Association.

Between undergrad and law school, Sarra spent time as an intern with Hacking Immigration Law helping immigrants who sought asylum in the United States. She also previously spent time as an English tutor with the International Institute of St. Louis.

This summer, Sarra will be focused on researching expert witnesses, reading depositions, and drafting motions. Also during the break, Sarra will have a brief internship with Judge James Dowd of the Missouri Court of Appeals, Eastern District. When she returns to school in the fall, she’s looking forward to participating in moot court and delving further into business and corporate law.

Sarra is a life-long St. Louisan. Away from the classroom and the office, she enjoys cooking, shopping, working out, and spending time with her friends and roommates.

We wish Sarra the best this summer and through her ongoing studies, and we hope to see her join our ranks of talented young litigators in the coming years!