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Major Appellate Win for Boyle Brasher LLC Asbestos Group
An Illinois Appellate Court has narrowed the legal duty owed by transporters of potentially hazardous materials to third parties. The Appellate Court of Illinois for the Fourth District at Springfield, Illinois ruled that a railroad that transports products in and out of its consignee's plant has no legal duty to employees of that plant for alleged exposure to the harmful propensities of the transported product regardless of the railroad's knowledge of the risk of injury and the employees' lack of knowledge of the danger. The case specifically concerned the transportation of asbestos. This opinion could significantly impact cases filed utilizing similar theories of transporter liability. The opinion is noteworthy for railroads and other transporters including trucking companies that haul or handle dangerous products or substances.
The railroad was originally sued in multiple cases along with several companies accused of conspiring to suppress information about the dangers of asbestos. The circuit court in which the cases were filed denied the railroad's motions to dismiss based upon lack of duty and preemption under the commerce clause. The Appellate Court issued its opinion favorable to the railroad in response to a question certified by the circuit court to the appellate court concerning whether a railroad owes a duty at law to the plant employees under the facts presented in these cases. Initially, the Appellate Court declined to respond to the certified question. Boyle Brasher LLC attorneys filed a Petition for Leave to Appeal in the Illinois Supreme Court. In response to that petition the Supreme Court issued a supervisory order that directed the Appellate Court to respond to the question certified by the circuit court which led to this decision.
Congratulations to Thom Peters and Leslie Shinners of Boyle Brasher LLC who aggressively handled this important case in the circuit court, appellate court and the Illinois Supreme Court
Missouri Supreme Court Rules for Boyle Brasher LLC Client in Discovery Dispute
In the case discussed immediately below, the Missouri Supreme Court has issued a favorable opinion in a discovery dispute involving the discovery of a Plaintiff's psychiatric records, while holding that psychiatric records are normally not discoverable in a personal injury action in which Plaintiff is not claiming any psychiatric or psychological injuries.
The Court held that in this case, the cause or causes of Plaintiff's alleged injuries were in dispute as the Defendant presented evidence that Plaintiff's injuries were caused by Plaintiff's use or abuse of drugs provided by his psychiatrist.
In its opinion the Court held that the Circuit Court abused its discretion in precluding Defendant from discovering the records as "irrelevant" since Plaintiff was not claiming psychiatric or psychological injuries.
Bill Brasher, Cindy Masterson and Tom McDermott participated in the Writ of Mandamus filed with the Supreme Court.
Missouri Supreme Court Considers Discoverability Of Psychiatric Records When Psychiatric Injuries Are Not Claimed In Personal Injury Lawsuit In Case Handled By Boyle Brasher LLC
On November 2, 2011, the Missouri Supreme Court heard arguments in a case handled by Boyle Brasher LLC in which the defendant in a personal injury action sought discovery of plaintiff's psychiatric records when no psychiatric injury was pleaded. The underlying case involves a plaintiff who claims as his injury that he twice lost consciousness while at work and that he sustained injuries including recurring seizures, fainting spells and a seizure disorder. The defenses raised by Boyle Brasher LLC contended that the employee's use, abuse or withdrawal from drugs caused or contributed to cause his injuries and the losses of consciousness. In the underlying case, the firm sought records of a psychiatrist from whom the plaintiff was obtaining drug prescriptions at the time he lost consciousness the second time, but the Circuit Court denied access to those records finding that the records were irrelevant to any injury claimed by the Plaintiff.
Boyle Brasher LLC argued that the Circuit Court abused its discretion in denying access to these psychiatric records since the records could lead to the discovery of admissible evidence which was relevant to the cause of plaintiff's losses of consciousness. The firm also argued that the Circuit Court's ruling was an abuse of discretion because the psychiatric records could contain information pertinent to the cause of the plaintiff's seizures and seizure disorder, his credibility, damages and whether the plaintiff continues to experience pain resulting from the underlying incidents or is engaging in drug seeking behavior.
The Plaintiff's counsel argued that the records are privileged and irrelevant to any issue in the case, since the employee is not claiming a psychiatric or psychological injury. The issue to be decided is whether a plaintiff can preclude the discovery of records of a treating psychiatrist which are relevant or which may lead to the discovery of admissible evidence by disavowing any claim for psychological or psychiatric injuries or damages, including emotional distress, mental anguish or depression.
A recording of the argument may be accessed at:
A decision from the Supreme Court is expected in January 2012.
Bill Brasher, Cindy Masterson and Tom McDermott participated in the proceedings before the Circuit Court, Court of Appeals and Supreme Court.
Power Hitter
Boyle Brasher LLC's Camille Reifers and her Memphis lawyers and staff have recently taken the idea of "power hitter" to new heights. Claims officials of a Fortune 500 client recently visited the firm's Memphis office and presented Camille and the Memphis attorneys a classic Louisville Slugger baseball bat etched with the accolade "Keep Hittin Em Out of the Park" as a reward for their great work.
Boyle Brasher Attorney gets nine separate cases dismissed
Camille Reifers, leading the Boyle Brasher LLC attorneys in the firm's Memphis, Tennessee office, has achieved a remarkable string of litigation victories and successful results in recent weeks. Camille and her fellow Memphis lawyers, taking an aggressive posture at the earliest stage of each case, obtained dismissal or summary judgment in nine separate FELA occupational cases for two different railroads that resulted in significant savings for both clients. A tip of the hat to Camille and the rest of the Boyle Brasher LLC Memphis team.
Summary Judgment for Boyle Brasher LLC Client
Linda Self has just obtained a summary judgment in the Circuit Court of Cook County, IL in a premises liability asbestos case brought by the estate of an individual who had performed work on the client's premises while an employee of an outside contractor. The decedent had previously filed a lawsuit against the client claiming asbestos-related injury. While the initial lawsuit was pending, the decedent was diagnosed with cancer. Several months after his cancer diagnosis, decedent settled his asbestos lawsuit with the premises owner and executed a settlement release. Representatives of the estate later filed a subsequent lawsuit against the premises owner in hopes of getting a "second bite at the apple." Linda obtained summary judgment based on the language of the prior release, which included a release of all claims for cancer, and evidence that the decedent was aware of his cancer diagnosis and believed that his cancer was attributable in part to asbestos exposure on the client's premises when he settled his lawsuit.
Defense Verdict in Railroad Crossing Accident for Boyle Brasher LLC
Bill Brasher and Cindy Masterson obtained a defense verdict in a railroad grade crossing jury trial in which plaintiff sought in excess of $10 million in damages. Plaintiff was a teenage girl who was a front seat passenger in a friend's car that collided with the railroad train who sustained severe brain damage and significant neurological and physical injuries as a result of the collision. At the time of the accident plaintiff and her friend were on their way to their high school in the small community where they lived. The driver of the automobile drove past flashing red lights and around lowered crossing gates that warned of the approach of the train. A video camera on the front of the approaching locomotive recorded the automobile coming around the lowered 
crossing gate into the path of the train. The locomotive engineer observed the automobile approaching and changed the horn pattern to short horn blasts several seconds prior to the collision but did not brake or attempt to slow the locomotive prior to the collision. Plaintiff argued that the automobile would have cleared the crossing or the severity of the impact would have been reduced if the emergency brakes on the train had been activated earlier than they were when the short whistle blasts began. Bill argued that the train crew had no reason to believe that the driver of the automobile was not going to stop for the flashing lights and lowered gates. Congratulations to Bill Brasher and Cindy Masterson and to the rest of the Boyle Brasher LLC team who contributed to this successful result. The case was tried before jury in the Circuit Court of Wright County Missouri, where plaintiff resided. Plaintiff was represented by Tom Jones and Tim Gaarder of Davis, Bethune & Jones of Kansas City, Missouri.
Appellate Court Affirms Defense Verdict for BBLLC Client
In a decision issued shortly after oral argument, The Appellate Court ruled that no error had been committed by the Circuit Court in the jury trial and affirmed the jury verdict and judgment for Boyle Brasher LLC's client. The Missouri Court of Appeals, Eastern District has affirmed a defense verdict obtained by Bill Brasher and Ralph Godsy in an FELA case tried in the Circuit Court of St. Louis County last year. Tom McDermott assisted on the appellate brief along with Ralph Godsy. Ralph Godsy also successfully handled the oral argument in the Court of Appeals.
Summary Judgement for Railroad Client in Southern Illinois
Zora Manjencich recently successfully argued a Motion for Summary Judgment on behalf of a railroad client in a FELA case. The case involved a 51-year old track laborer who alleged repetitive injuries to his low back, shoulders and knees because of the cumulative effect of his work duties on the railroad. In his deposition plaintiff admitted that he had noticed back pain as early as the 1980's, but he claimed that he didn't realize his pain was related to his work on the railroad until 2007 which would have placed the filing of his FELA case within the three (3) year limitation period. Ms. Manjencich' investigation of plaintiff's complete medical history and answers given to her by plaintiff's family physician in his deposition refuted plaintiff's testimony about when plaintiff first became aware that his condition was related to his work and provided Ms. Manjencich grounds for the Summary Judgment Motion. She was able to establish to the court's satisfaction that plaintiff actually knew his work duties played a part in his back condition as early as 2001. The Circuit Court of Bond County, Illinois granted the summary judgment ruling that plaintiff's lawsuit had not been filed within the applicable statutory three (3) year time frame.
Summary Judgment for Railroad Client
Mark Kurz obtained a summary judgment for a railroad client when a 59-year old engineer sued for sleep disorder due to work schedule under the FELA. Plaintiff claimed psychological injuries. The Motion for Summary Judgment was based on preemption under the Hours of Service Act and under Gottshall since sleep disorders do not fall within the zone of danger test due to a lack of physical impact.
Jury Verdict for Trucking Client
Ralph Godsy of Boyle Brasher LLC won a jury trial in the U.S. District Court at St. Louis. Ralph represented an interstate trucking company. The case arose out of a serious accident on I-55 outside of St. Louis. A tractor trailer owned and operated by Ralph's client struck a Jeep Cherokee that suddenly entered the interstate. Two passengers in the Jeep sued the trucking company and the driver of the Jeep. The case was complicated by the fact that the driver of the tractor trailer could not be located to testify at trial. After a seven day trial, the jury found in favor of the trucking company and against the driver of the Jeep. Ralph was assisted at trial by Dick Nash.
Partner Nominated to Blue Ribbon Committee
Boyle Brasher LLC partner, Thom Peters has been nominated to a blue ribbon study committee by the mayor of the city of Belleville, Illinois. The committee will assess alternatives to the city's current wheel tax. Thom served as an elected member of the Belleville Board of Aldermen for several years while practicing law with a firm that became Boyle Brasher LLC. Thom is known for his hands on practical knowledge and experience with municipal finance, taxation, land use and legislation.
Another Summary Judgment for Railroad Client
Tom Bell has been granted Summary Judgment in favor of his railroad client in a FELA case. The plaintiff, a railroad employee was involved in a motor vehicle accident while being transported from a hotel to the railroad depot. Plaintiff claimed that the railroad negligently caused the accident by failing to find and fix a seatbelt in the vehicle that was allegedly defective. In the summary judgment the trial court held that there was no evidence that the railroad's driver operating the crew transportation vehicle drove in an unsafe manner and also held that the driver of the other vehicle involved in the collision was solely responsible for the accident. The court also found that there was no evidence that supported plaintiff's seatbelt claim. United States District Court for the Eastern District of Missouri.
Significant Settlement for Hospital Client
Dave Donahue obtained a significant six figure settlement from a health insurer that had unreasonably delayed making payment for months while patient's $5K medpay benefit was pending. Through Boyle Brasher LLC's investigation and persistence, the account was properly paid.
