Re-evaluating Standards for Admissibility of Photographs of Vehicular Collisions

Laura Gerdes Long

By Laura Gerdes Long



Authored by Laura Gerdes Long with assistance from Mackenzie N. Allan

In Illinois, historically, two predominating schools of thought regarding the admissibility of photographs of vehicular collisions have existed. The first school of thought, Baraniak v. Krauby, holds that when using photos to correlate vehicular damage to injuries, expert testimony is always necessary. The second school of thought, Fronabarger v. Burns, holds that vehicular collision photographs are admissible if the jury can properly relate the vehicular damage depicted in the photos to the injuries without the aid of an expert. In 2008, the Fronabarger court declined to follow the rigid rule from Baraniak.

In the 2019 case of Peach v. McGovern, the 5th Circuit Court of Appeals in Illinois addressed this contentious issue once again. Here, the plaintiff and the defendant were involved in a car accident where the defendant rear-ended the plaintiff. The defendant claims that she was at a full stop behind the plaintiff, and she rolled into the plaintiff, “tapping” his truck, when she accidentally let her foot off the brake. The plaintiff contends that the defendant “plowed” into him at a speed of 20-30 miles per hour. After the accident, the plaintiff began experiencing severe neck issues, incurring over $23,000 in medical expenses.

Paramedic holding drip while helping manAt trial, plaintiff presented his pain management specialist as an expert witness, who opined that the plaintiff’s neck injuries were consistent with having been rear-ended in a motor vehicle collision, and even a very low speed collision could have caused this damage. Though the plaintiff had a degenerative disc condition, the expert testified that the plaintiff’s injuries were consistent with a sudden impact rather than the degenerative condition. The defendant did not present any expert witnesses, instead using the photographs depicting minimal damage to both vehicles in her closing arguments to argue that the plaintiff exaggerated the impact of the collision in order to relate his injuries to the collision. Continue reading »

#SocialMediaAsEvidence

Laura Gerdes Long

By Laura Gerdes Long



Authored by Laura Gerdes Long with assistance from Jessica A. Gottsacker

Social media has officially taken over our lives. The statistics only confirm this fact. There are 2.3 billion active social media users across the world. Any given internet user has an average of five social media accounts. Facebook has over 1.71 billion users, YouTube has over 1 billion users, and WhatsApp has 900 million users. Every day, there are 60 billion messages sent through Facebook messenger and Whats-App. Three hundred hours of videos are uploaded on YouTube every minute. Snapchat users watch 6 billion videos on average a day.

It is clear that an individual’s accounts contain a plethora of intimate, personal details meant to be shared exclusively with friends or a fan base. But this begs the question, with this personal nature of social media, what can be excluded from court? The answer: potentially none of it. Continue reading »

UPDATE: Salaries Speak Louder than Words

Katherine M. Flett

By Katherine M. Flett



co-authored by Katherine M. Flett and Jessica A. Gottsacker

Equal Pay Day was celebrated this month on April 2, 2019. This date symbolizes how far into the year women must work to earn what men earned in the previous year. Thankfully, this date is not stationary. In fact, the date occurs seventeen days earlier than it did in 2005. While there is a lot to celebrate with that achievement, there is still a long way to go to completely close the gender wage gap.

In fact, the Supreme Court recently faced the opportunity to potentially close this wage gap even further when it granted cert to Rizo v. Yovino. See Katherine Flett’s blog post titled “Salaries Speak Louder than Words” for more discussion on the case. In Rizo, the Ninth Circuit sitting en banc found that the use of salary history to establish a starting salary violated the Equal Pay Act, as it perpetuated the discriminatory nature of women historically being underpaid in almost all sectors of employment. Thus, reliance on prior pay could no longer be considered as an affirmative defense under the Act’s fourth catchall exception, “any other factor other than sex.” Continue reading »

Mandatory Arbitration in the Transportation Industry Takes a Blow from The United States Supreme Court

Katherine M. Flett

By Katherine M. Flett



New Prime, Inc. v. Oliveira

On January 15, 2019, the United States Supreme Court ruled unanimously in favor of Dominic Oliveira, a purported Independent Contracted driver (“owner-operator”) for New Prime, Inc., an interstate trucking company, holding that Oliveira’s dispute need not be compelled to arbitration.

The case hinged largely on the Federal Arbitration Act (FAA), a 1926 law that requires courts to move cases involving interstate commerce disputes to arbitration.  However, the FAA includes an exception in Section 1 for “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”

Oliveira filed a class action lawsuit, alleging that New Prime deprived its driver of legal wages.  New Prime sought to resolve the dispute via arbitration pursuant to Oliveira’s owner-operator agreement, which included a mandatory arbitration provision.

The first issue that the Court considered was whether a court or an arbitrator should decide whether the Section 1 exception applied.  In a unanimous opinion written by Justice Neil Gorsuch, the Court held that “a court should decide for itself whether Section 1’s ‘contracts of employment’ exclusion applies before ordering arbitration. After all, to invoke its statutory powers . . . to stay litigation and compel arbitration according to a contract’s terms, a court must first know whether the contract itself falls within or beyond the boundaries of §§1 and 2 [of the FAA].” Continue reading »

Favorable Changes to 065 Agreements in Missouri Apply Prospectively Only

Laura Gerdes Long

By Laura Gerdes Long



The Court of Appeals of Missouri’s Western District has issued an opinion holding that the recent amendment to Section 537.065 RSMo. may not be applied retrospectively, under the Missouri Constitution.  The Court of Appeals held in Desai v. Seneca Specialty Ins. Co., 2018 WL 3232697 (not released for publication as subject to motion for rehearing or transfer, etc.) that the trial court’s judgment should be affirmed in which the insurance company’s motion to intervene and motion for relief from judgment were denied.  The insurance company had argued that Section 537.065, as amended effective August 28, 2017, required that it should have received notice of a “065” agreement and the opportunity to intervene as a matter of right.

Continue reading »

Employers With Arbitration Clauses Win – Part Two: Factors Employers Should Consider When Determining Whether to Incorporate an Employee Arbitration Program

Ruth Binger

By Ruth Binger



One of the many employment-related decisions a company must make is whether it wishes to require employees to give up their rights to file an employment action in court, and instead to require employees to use arbitration.

In Part One, we discussed how employers can require employees to arbitrate claims on an individual basis. This much-anticipated U.S. Supreme Court decision in Epic Systems Corporation v. Lewis allows employers to use arbitration agreements as a tool to avoid costly class action claims with more certainty that they will be enforced by the courts.

The decision in Epic also added an additional favorable factor to the arbitration choice column. The Court ruled that employers can require employees to arbitrate claims on an individual basis and thus avoid class actions. Epic Systems (which was decided along with two sister cases) involved employees seeking class action litigation, despite having employment contracts with provisions that required individualized arbitration proceedings.

Although Missouri is an employment at will state, employees can sue employers under various state and federal statutes in state or federal court. Some of those statues, for example, the Fair Labor Standards Act, allow class actions. Litigation is very costly and there could always be a runaway jury. Arbitration, on the other hand, is designed to avoid complex and time-consuming litigation and to provide an alternate source of justice. An arbitration could take six months to resolve but the decision will be final and binding and unappealable, while a court proceeding through a jury trial could take 21-41 months and the decision is always appealable. Continue reading »

Employers With Arbitration Clauses Win – Part One: The U.S. Supreme Court Embraces Arbitration Agreements with Class Action Waivers

Katherine M. Flett

By Katherine M. Flett



The U.S. Supreme Court upheld the legality of class action waivers in employee arbitration agreements by issuing a 5-4 decision in Epic Systems Corporation v. Lewis on March 21, 2018.

In short, employers can require employees to arbitrate claims on an individual basis. This much-anticipated decision allows employers to use arbitration agreements as a tool to avoid costly class action claims with more certainty that they will be enforced by the courts.

Brief History of Arbitration Clauses and Class Action Waivers in the Employment Context

The Federal Arbitration Act (“FAA”) was enacted in 1925 in response to hostility toward arbitration agreements. The FAA provides that a written agreement to submit a controversy arising out of the agreement to arbitration is to be enforced unless “grounds exist at law or in equity for the revocation of any contract.” Since the enactment of the FAA, the Supreme Court has consistently recognized the establishment of a federal policy supporting arbitration agreements.

However, in 2012, the National Labor Relations (“NLRB”) found in D.R. Horton, Inc., that mandatory arbitration agreements with class action waivers were violative of employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”), which guarantees employees the right to self-organize, bargain collectively, and “engage in activities for the purpose of collective bargaining or other mutual aid or protection.” Following the NLRB’s decision, a split among the circuits developed. While the Second, Fifth and Eighth Circuits rejected the NLRB’s reasoning in D.R. Horton, the Seventh and Ninth Circuits sided with the NLRB and refused to enforce employee arbitration agreements with class action waivers.

Epic Systems Corporation v. Lewis

On May 21, 2018, the Supreme Court resolved the circuit split and upheld the use of class action waivers in arbitration agreements in Epic Systems Corp. v. Lewis.  Epic Systems, which was decided along with two sister cases, involved employees seeking class action litigation despite having employment contracts with provisions that required individualized arbitration proceedings. The following are the three key arguments by employees and the Court’s decisions: Continue reading »

Masterpiece Cakeshop: Maintaining the Status Quo

Laura Gerdes Long

By Laura Gerdes Long



authored by Laura Gerdes Long with the assistance of Jessica Gottsacker, law clerk

In agreeing to review Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, the U.S. Supreme Court faced questions involving both constitutional protections for LGBTQ rights and the free exercise of religious beliefs. In the end, the Court followed the facts of this particular case, making a decision that was narrower than anticipated while still upholding both rights.

In 2012, a same-sex couple visited Masterpiece Cakeshop, a custom bakery in Colorado, to order a wedding cake. The shop’s owner, Jack Phillips, refused because of his religious opposition to same-sex marriages, saying that he would make any other kind of cake, such as a birthday cake. At the time, Colorado did not recognize same-sex marriages since the Court had not yet handed down Obergefell v. Hodges. The couple filed suit with the Colorado Civil Rights Commission alleging discrimination on the basis of sexual orientation in violation of the Colorado Anti–Discrimination Act (CADA). CADA makes it unlawful to discriminate in public accommodations or “place[s] of business engaged in any sales to the public and any place offering services … to the public.” (Colo. Rev. Stat. § 24–34–601(1) (2017)).The Commission determined there was probable cause that discrimination had occurred. Unwilling to ignore his religious beliefs, Phillips stopped selling wedding cakes altogether and his profits fell forty percent. Eventually, Phillips brought his lawsuit to the Supreme Court.

The Court faced two issues: Continue reading »

Missouri On Track to Reform Interpleader Law: House Bill 1531 Unanimously Approved by the Senate

Laura Gerdes Long

By Laura Gerdes Long



co-authored by Laura Gerdes Long and Katherine M. Flett

As he was leaving office, Missouri Governor Eric Greitens signed at least 77 bills into law, including House Bill 1531, which may protect insurance carriers subjected to purported bad faith claims.

“Interpleader” is a civil procedure vehicle used to force claimants to litigate a dispute involving two or more claims to a limited amount of money held by a third party, such as an insurance carrier.  A common example is when multiple people are injured in a car accident and the injuries exceed the amount covered by the tortfeasor’s policy limits.  What should the insurance carrier do?

Under the prior law, codified at Section 507.060 RSMo, the tortfeasor’s insurer could interplead the policy limits, but the insurer would remain subject to a purported bad faith claim.  This would put insurers in an impossible situation, choosing between paying claims on a first-come, first-serve basis to avoid time-based bad faith claims, paying the limits on the most seriously injured claim, or gathering all of the claimants’ documentation supporting their injuries or damages in an attempt to globally resolve all claims within the policy limits, and reducing the insured’s exposure to excess claims.

Continue reading »

An Oral Agreement Is Not Worth the Paper It’s Printed On

A. Thomas DeWoskin

By A. Thomas DeWoskin



On June 4, 2018, the U.S. Supreme Court held that an individual’s false oral statement about his assets would not support a finding of fraud under the relevant provision of the U.S. Bankruptcy Code. That provision required the false statement to be in writing if it were to serve as the basis of a fraud claim. (Lamar Archer & Cofrin LLP v. R. Scott Appling, Case Number 16-1215, 584 U.S. ___ (2018), issued on June 4, 2018.)

In this case, Mr. Appling hired a law firm to represent him in some litigation. When he had fallen behind on his legal bill to the extent of some $60,000, the firm threatened to withdraw from the case. He told the firm that he was expecting a tax refund of about $100,000 which would cover that bill and all future fees. Relying on Mr. Appling’s assertion, the law firm continued with the representation.

As you probably have concluded by know, there was no $100,000 refund. It was only $60,000, and Mr. Appling invested it in his business rather than paying his attorneys. Worse, when his attorneys subsequently asked about the refund, Mr. Appling lied and told him that he hadn’t received the refund yet. Continue reading »