The BAMSL Trial Section invites all members to join us in celebrating retirees at our 10th Annual Judicial Retirement Dinner on March 26, 2025, at the Missouri Athletic Club – Downtown. Our host for the evening is Hon. Christopher McGraugh.

	Hon. Kurt Odenwald Court of Appeals Eastern District Judge Kurt Odenwald was appointed to the Missouri Court of Appeals – Eastern District in 2007. He graduated magna cum laude from the University of Missouri- St. Louis with a B.A. in Political Science and obtained his J.D. cum laude from Saint Louis University Law School.  Before his appointment to the Missouri Court of Appeals for the Eastern District of Missouri, Judge Odenwald worked as in-house counsel for Anheuser-Busch, as an Assistant Public Defender in the City of St. Louis and was in private practice for 22 years. Judge Odenwald also served as a St. Louis County Councilman for 17 years before his judicial appointment. Judge Odenwald is a member of the State Judicial Records Committee, the Appellate Education Committee and served as the chair for the Public Information Committee for the Eastern District. He is also a member the Missouri Bar, the American Bar Association and the Bar Association of Metropolitan St. Louis. Judge Odenwald recently joined the law firm of Sandberg Phoenix as Senior Counsel.
	Hon. Michael Fagras 11th Judicial Circuit The Honorable Michael J. Fagras was a judge for the 11th Judicial Circuit Court of Missouri. He was elected to the bench in 2018. Prior to his election, Fagras was an attorney in private practice, working at Lampin and Fagras in St. Peters. He supplemented his practice with pro bono work for members of Harvester Christian Church, St. Francis Community Services Catholic Legal Assistance Ministry, and the Old Order Amish of Missouri. Judge Fagras earned his J.D. from Saint Louis University Law School in 1993. He spent 10 years as a police officer. His memberships have included the National Rifle Association and the Republican National Lawyers Association. He attends Harvest Christian Church and has been actively involved with All Among Us and Ninos De Mexico. Judge Fagras and his wife, Cindy, also created the Fort Zumwalt School District’s Winter Coat Project.
	Hon. Daniel Pelikan 11th Judicial Circuit The Honorable Judge Pelikan was a judge for the 11th Judicial Circuit Court of Missouri. He was elected as Circuit Judge on November 7. 2006, serving three consecutive terms, totaling 26 years. Before serving as Circuit Judge, Pelikan was first elected as an associate circuit judge for the 11th Judicial Circuit, a position he was named in 1998, and served two terms. Judge Pelikan served as a Presiding Judge from 1999 to 2001. Judge Pelikan earned a bachelor’s degree from the University of Missouri – Columbia. He then completed a J.D. at Saint Louis University School of Law in 1984. He is a recipient of the Community Volunteer of the Year Award from Community Living (2013) and the Guardian Angel Award from St. Louis Crisis Nursery.
	Hon. Jack Banas 11th Judicial Circuit Judge Jack Banas served as a judge for the 11th Judicial Circuit Court of Missouri since his election in August 2012, filling the vacancy created by the retirement of Judge Lucy D. Rauch. Before joining the bench,  Judge Banas was the St. Charles County Prosecutor, a position he held since his election in 1998. Judge Banas earned his B.A. from Southeast Missouri State University and spent several years working as a police officer for the St. Charles Police Department before earning his J.D. from Saint Louis University School of Law. Following Law School, he began his legal career with the law firm Riezman & Blitz. In 1992, he joined the St. Charles County Prosecutor’s Office as an assistant prosecuting attorney. During his tenure, Judge Banas played a pivotal role in establishing the county’s drug county and alcohol court. He also prioritized addressing domestic violence cases by assigning a prosecutor exclusively to handle such cases. His commitment to justice and the community will leave a lasting impact on St. Charles County.
	Hon. Ronnie L. White U.S. District Court Judge Ronnie L. White, a St. Louis native, has had a prominent career in law and public service. After earning degrees from St. Louis Community College, Saint Louis University, and the University of Missouri-Kansas City School of Law, he worked as a public defender, private attorney, and Missouri legislator. In 1995, White became the first African American justice on the Supreme Court of Missouri, later serving as its chief justice from 2003 to 2005. In 2014, he was appointed by President Barack Obama to the United States District Court for the Eastern District of Missouri, where he served until 2024. White has received numerous awards, including honors from the Mound City Bar Association and the Bar Association of Metropolitan St. Louis. He has also held leadership roles, such as chair of the Appellate Judicial Commision, and remains an active member of the legal community.
	Hon. Dean Waldemer 21st Judicial Circuit Judge Dean P. Waldemer was appointed to Division 8 of the 21st Judicial Circuit in July 2017. In that role, he handled multiple dockets including general civil, criminal and family court. Judge Waldemer previously served as assistant prosecuting attorney and chief trial attorney in the St. Louis County prosecuting attorney’s office. He also was previously a municipal judge in Town and Country and was a member of the Supreme Court Committee on Criminal Procedure and Jury Instructions.  Judge Waldemer earned a B.S. and J.D. from Saint Louis University. He is a member of The Missouri Bar and the Illinois Bar. Judge Waldemer is a member of Grace Episcopal Church and an instructor of the St. Louis County/Municipal Police Academy. He frequently speaks with the law and society class at Missouri Baptist University and was appointed to the Missouri Supreme Court Committee for Revision of Supreme Court Rules 24.035 and 29.15 and the Legislative Review Subcommitte of Criminal Law Committee for the Missouri Bar.
	Hon. Joseph Walsh 21st Judicial Circuit Judge Joseph L. Walsh III was appointed to the circuit bench in 2010. His judicial assignments included civil and criminal matters, and he has served as chair of the Commissioners’ Disciplinary Review Committee. He was previously in private practice, handling general civil trials and appeals for St. Louis County. He also served as a municipal judge for the City of Creve Coeur and the City of Frontenac. Judge Walsh received his B.S. from Loras College and his J.D. from St. Mary’s University School of Law. Judge Walsh is a member of the Missouri Bar, the St. Louis County Bar Association, the Lawyers Association of St. Louis, the Bar Association of Metropolitan St. Louis, and the American Board of Trial Advocates. He presides over the Ritenour High School Truancy Program, served as director of Adult Religious Education at Our Lady of the Pillar Catholic Church, coached grade school basketball teams and has presented numerous CLE seminars to attorneys and judges.
	Hon. Nancy Watkins McLaughlin 21st Judicial Circuit Judge Nancy Watkins McLaughlin joined the 21st Judicial Circuit in 2014 when she was appointed as an associate circuit judge. She became a circuit judge in 2016. In this role, her judicial assignments have included family court, associate civil, circuit civil and circuit criminal matters. Judge McLaughlin earned a B.A. from Washington University and a J.D. from the University of Missouri-Columbia. She was previously a commissioner for the Missouri Public Defender Commission and the Missouri Sentencing Advisory Commission, as well as a provisional judge in the Clayton Municipal Court. She was also previously a member of the Supreme Court of Missouri’s Civil Justice Commission. Judge McLaughlin is a member of The Missouri Bar, the American Bar Association, the National Conference of State Trial Judges (MO), the Bar Association of Metropolitan St. Louis, the St. Louis County Bar Association and the Women Lawyers’ Association. She is active in the Supreme Court of Missouri’s Civil Justice Commission, serving as a mock trial judge and participating in the 21st Judicial Circuit Speakers Bureau.
	Hon. Steven Ohmer 22nd Judicial Circuit Judge Steven R. Ohmer was appointed as a circuit judge for the 22nd Judicial Circuit in August 2000. He graduated from Florida State University with a B.S. in economics and received his law degree from Creighton University.  Judge Ohmer served as an administrative judge of family court and was an associate circuit judge from 1994 to 2000. Prior to his work in the judiciary, he was an assistant circuit attorney. Judge Ohmer was formerly chair of the Supreme Court of Missouri Circuit Court Budget Committee, a member of the Supreme Court of Missouri Family Court Committee and member of the Bar Association of Metropolitan St. Louis’ Finance Committee and chair of their Golf Committee. From 2010 to 2017, he was involved in judicial evaluation for the Bureau of Indian Affairs for the Yakima, Stillaguama and Blackfeet tribes. He is also a member of the Missouri Bar, the Illinois State Bar Association, and the Lawyers Association of St. Louis.
	Hon. Rex Burlison 22nd Judicial Circuit Judge Rex M. Burlison was appointed circuit judge for the 22nd Judicial Circuit in 2011. In this role, his judicial assignments have included general trials and criminal assignments from Division 16. He obtained a B.A. in political science/law enforcement from Truman State University and a J.D. from St. Louis University School of Law. Judge Burlison previously held public office as an alderman for the City of Cottleville and served as an associate circuit judge for the 11th Judicial Circuit. He is a member of The Missouri Bar, the Bar Association of Metropolitan St. Louis and the Lawyers Association of St. Louis. He is also a member of the historic Trinity Lutheran Church in Soulard, where he serves as a lector.
	Hon. Bryan Hettenbach 22nd Judicial Circuit Judge Bryan Hettenbach served as a circuit judge from 2008 through his retirement in 2024, with voters retaining him in 2010, 2016, and 2022. Over his tenure, he presided over hundreds of trials, managed a variety of dockets, and served as administrative docket controller for all criminal felony cases in the St. Louis Circuit. He was elected assistant presiding judge in 2013 and 2014 and presiding judge in 2015 and 2016. Before joining the bench, Judge Hettenbach worked as a staff attorney at the Missouri Supreme Court and practiced law in St. Louis for over 20 years. He also served as a mediator, guardian ad litem, and adjunct professor, contributing significantly to legal education and juvenile court representation. A St. Louis native, Judge Hettenbach earned his bachelor’s degree from the University of Missouri and his J.D. from University of Missouri-Columbia School of Law. He also obtained an M.A. degree from the University of Michigan.
	Hon. Carl “Wes” Yates 23rd Judicial Circuit Governor Mike Parson appointed Judge Carl Wes Yates to the Div. 15 associate circuit judgeship in Jefferson County’s 23rd Judicial Circuit. Originally from Sedalia, Judge Yates earned his B.S. in aviation from the University of Central Missouri, and a J.D. from Saint Louis University Law School in 1994. He began a career that included roles as associate city counselor in St. Louis, and later Jefferson County Counselor. His expertise in governmental law and deep understanding of public infrastructure made him a key figure in the county’s legal and civil initiatives. Throughout his career, Judge Yates was a vocal advocate for improved county facilities, drawing on his legal experience and commitment to community betterment. His colleagues have praised his professionalism, knowledge, and leadership, leaving a legacy that will continue to impact Jefferson County for years to come.

On October 30, 2023, something noteworthy happened in Missouri. It was on that day that Judge Ginger Gooch was appointed to the Missouri Supreme Court. Any appointment to the Missouri Supreme Court is noteworthy in its own right, but this one was a bit special. The appointment meant that when Judge Gooch joined her colleagues, Missouri’s Supreme Court would for the first time consist of a majority of women. 

This shift was a tangible reminder that women aren’t just participating in the legal profession…they are leading it. In fact, according to the American Bar Association:

• In 2016, women became a majority of law school students.
• In 2020, women became a majority of general lawyers in the federal government.
• In 2023, women became a majority of law firm associates.
• In 2025, women will likely become a majority of full-time law school faculty members.

This isn’t the first time that Missouri women have led. I want to bring your attention to two historic women lawyers:

The first is Phoebe Couzins. Phoebe Wilson Couzins was born in St. Louis in 1842. Couzins’s father was police chief in St. Louis during the Civil War. Couzins submitted an application to study law at the new Washington University of St. Louis School of Law In 1869, Couzins began her studies at the university's law school, and earned her L.L.B degree in 1871, as one of only nine people in her class. Couzins became the first woman in the United States to graduate from a law school. She was also the first female graduate of Washington University. Couzins was admitted to the Bar in 1872. In 1884, Phoebe’s father John Couzins became U.S. Marshal for the Eastern District of Missouri, and he made Phoebe one of his deputies. As his health failed, Phoebe started taking over some of his duties and upon his death in 1887, Couzins became the first female U.S. Marshal in the country, a position which she held for two months after President Grover Cleveland appointed her interim marshal. Couzins was on the St. Louis World’s Fair Board of Directors and was very active in the suffrage movement, including serving as a Delegate to the American Equal Rights Convention in 1871. Although Couzins died penniless after losing her job with the United States Brewers’ Association, her legacy lives on. Currently, Prof. Susan Freilich Appleton serves as the Lemma Barkeloo & Phoebe Couzins Professor of Law, a position honoring the first two women to attend Washington University School of Law.

The second is Amabel Anderson Arnold. Amabel Arnold was born in Canada in 1883. Arnold moved to Michigan at a young age where she eventually became a teacher. After some years spent as a teacher, in 1910 Anderson entered the City College of Law and Finance, attending the night courses. While attending the college, she was the only woman in her class. She successfully completed three years of law school, two courses and one of lectures. The fourth year, the work field, she enrolled at Benton College of Law, again the only woman. (As a historical aside, Benton College of Law was a law school in St. Louis. It opened in 1896 as Kent School of Law and incorporated as Benton School of Law in 1897. It closed in 1937.)

Having attended two law schools, she graduated from both: she received an LL.M. degree from Benton College of Law on June 6, 1912, and a LL.B. from City College of Law and Finance on June 11, 1912. On July 15, 1912, Anderson was among the St. Louis women attorneys who organized the Woman's State Bar Association of Missouri, the first association of women lawyers in the world. In September 1913, Anderson was elected director of the Woman's Department at the University of Chicago Law School, the first woman holding such office in the United States. In 1914 Anderson was appointed on the regular faculty of the City College of Law and Finance as lecturer and instructor in the chair of International Law, again, the only woman holding such a position in St. Louis.

We would like to think that we have made tremendous progress since the earliest days of the 20th Century and that we have eliminated instances of discrimination that women lawyers have historically faced. But women still face barriers and resistance to being fully integrated into the legal profession. Women still have to work harder to achieve credit in the same manner as their male colleagues. As was once said about Ginger Rogers “…she did everything Fred Astaire did, but backwards and in heels.”  Women are still more often pressed about “work-life balance” about the challenges of raising children while maintaining a career and are often mistaken in legal proceedings as someone other than an attorney of record. It’s rare, if not impossible to find a woman lawyer who does not have a story about a comment or a question that would never thought to be said to a male counterpart. 

Some of these challenges are tangible and measurable. According to a 2022 Bureau of Labor Statistics Report, women lawyers earned 19% less than their male counterparts. In a 2024 survey by one of the largest legal recruiting firms, average compensation for male partners was 29% higher than that of female partners. Despite being either 50% or higher of students in Missouri law schools, women, as of February of 2024, only make up about 37% of the lawyers in the state. 

Despite still facing barriers and resistance, women are leading the legal profession. As mentioned above, women are a majority of the Missouri Supreme Court. The two St. Louis area law schools’ deans are women: Dr. Twinette Johnson at SLU Law and Dr. Stefanie Lindquist at Washington University School of Law. Recently St. Louis area lawyers elected three women to judicial commissions: Jennifer Hardester to the Appellate Judicial Commission, Michele Spirn to the 21st Circuit (St. Louis County) Judicial Commission and Erica Slater to the 22nd (St. Louis City) Judicial Commission. women are leading the profession and it’s time we all recognized it.

If this sounds personal to me, it most certainly is. My wife, Amy, fights for clients with unmatched strength, courage, and compassion. Meg Fowler advocates powerfully for her clients. Judge Katherine Fowler upheld the integrity of the bench much like my Grandfather did decades ago. They are my family, and I am incredibly proud to be associated with them in even a small way. 

Women have become an integral part of the legal profession, but we need to recognize that they are still fighting for the same kind of equality that Phoebe Couzins and Amabel Arnold fought for over a hundred years ago. Great strides may have been made, but the fight isn’t yet won.

This is my last column as President of the Bar Association of Metropolitan St. Louis. My term will end on Law Day on May 1, 2025. It has been an absolute privilege to serve, and I appreciate the forum this magazine has given me to share my thoughts. If there was a quote that sums up the theme I hoped to weave through all of my columns, it would be one by the great Maya Angelou:

“Do the best you can until you know better. Then when you know better, do better.”

ATTORNEY POSITIONS

Mid-size Chesterfield law firm seeks a full-time senior level employment law attorney.  This is a transactional non-litigation role.  Qualified candidates will have 10 + years employment experience (management rep).  Missouri bar license required.   

Well-established mid-sized Clayton firm seeks a junior-level associate for their business litigation practice.  Firm is seeking a motivated candidate with 1-3 years of litigation experience (preferably in business-related cases), strong research/analytical skills, a desire to learn about written discovery and related processes, and an ability to manage multiple tasks and meet deadlines effectively.  The ideal candidate will thrive in a collaborative environment and be ready to take on court appearances, including trials and appeals, as their career progresses.  Prior court appearances a plus but not required.  Missouri bar license.  

Well-respected IL legal aid organization seeks a full-time staff attorney to represent clients in the following areas of law:  eviction, sealing and expungement of criminal records, and public benefits (e.g. Social Security, SNAP, etc.).  Qualified candidates will have:  2 + years of experience in legal aid (preferred), civil litigation, criminal defense, public benefits, and/or landlord/tenant law; a strong commitment to social and racial justice; excellent verbal, analytical, writing, and organization skills; a demonstrated ability to build relationships and work with people of diverse social, economic, and racial/ethical backgrounds, an ability to supervise law students, support staff, and volunteers; and reliable transportation/valid driver's license/car insurance.  IL license (or requisite credentials for reciprocity).  

A small firm in Clayton is seeking a junior-level Trusts & Estates associate attorney with strong interest and/or experience in estate planning, probate and trust administration, estate and gift tax transfer planning, business succession planning, and business formation, choice of entity, mergers and acquisitions, and corporate and partnership taxation.  Qualified candidates will have 1-5 years of estate planning experience and/or an academic background in accounting or finance (i.e., L.L.M in tax, CPA, undergraduate accounting degree).  Missouri law license required.  

Sophisticated downtown litigation boutique seeks a full-time associate attorney to primarily work in the areas of employment law (heavier), medical malpractice (heavier), and insurance defense.  Qualified associates will have 2-4 years of civil litigation defense experience.  Must be licensed in Missouri and eligible for licensure in Illinois.  

Well-established and respected 15 attorney Clayton firm seeks to add a commercial litigation associate.  Missouri license and 2-4 years of experience in civil litigation (of some commercial influence) required.  Applicant should be eligible to obtain admission to the Illinois bar if not already licensed.  

Growing Midwestern law firm is seeking a mid to senior level workers' compensation associate with 5-25 years of experience to handle defending workers' compensation claims in the firm's downtown, St. Louis office.  Qualified candidates will have 5 + years of experience handling and defending workers' compensation claims and/or general liability claims.  J.D. and license in IL required.  Both IL and MO licenses preferred.  

Leading Missouri mortgage creditor rights firm seeks a full-time litigation associate for its St. Louis (Chesterfield Valley) office.  Qualified candidates will have civil litigation experience (preferably motion practice and trials).  Real estate experience a plus.  Candidates must be licensed by the Missouri bar and willing to become licensed in Kansas and Kentucky.  

Downtown plaintiff asbestos firm is seeking to hire an associate attorney for a discovery role.  The position will support a litigation team and primarily focus on legal research/writing.  Qualified candidates will have 2 to 10 years of experience with a plaintiff firm; possess excellent legal research and writing abilities; discovery experience; and law and motion experience.  Candidates must be members of the Missouri and/or Illinois state bars and able to travel periodically.  

Established and successful Creve Coeur estate planning firm seeks an experienced mid-level trusts & estates associate interested in an eventual leadership/ownership position within the firm.  Qualified candidates will have 5-10 years of experience handling sophisticated estate planning with trusts.  LLM in Taxation a plus.  Missouri license required.  Book of business a plus, but not a requirement.  Ideal position for an associate at a larger firm interested in transitioning to a small, stable, close-knit boutique environment. 

Small (4 attorney, 3 support staff) plaintiff personal injury firm with a sophisticated caseload seeks to add a 1-5 + year associate attorney.  Qualified candidates will have 1-5 + years of personal injury experience (plaintiff or defense) along with strong research and writing skills.  MO license required.  MO + IL preferred.

Small eight attorney workers' compensation defense firm located in Town & Country seeks a full-time associate attorney.  Qualified candidates will have 2-4 years of experience in workers' compensation (plaintiff or defense), personal injury, or insurance defense litigation.  Prior workers' compensation experience preferred.  Missouri and/or Illinois license required.  

10 attorney West St. Louis County law firm with a heavy workers' compensation defense practice is seeking an associate attorney.  Qualified candidates should have 2- 5 years of workers' compensation defense experience.  Missouri license required.  Missouri plus Illinois strongly preferred. 

20 + attorney law firm in Clayton seeks an experienced Trusts & Estates associate attorney.  Qualified candidates will have 2-6 years of experience in estate planning, gift and estate tax return preparation, probate matters and trust administration, along with a strong work ethic, attention to detail, and a desire to continually increase in experience in these fields.  Missouri license required.  Additional Illinois license a plus. 

Mid-sized civil litigation and trial firm located in Clayton seeks a full-time insurance defense litigation associate.  Qualified associates will have 1-5 + years of insurance defense, insurance coverage, and/or general civil defense litigation experience and a Missouri license.  Dual licensure with Illinois preferred.  Candidates must possess strong legal writing skills and have an interest in litigation and trial work.  

Well-respected 9 attorney civil defense law firm located in Lafayette Square is seeking a full-time litigation defense associate.  Qualified associates will have 3-5 years of civil litigation experience in one or more of the following areas:  construction, transportation, product liability, and/or general liability.  Missouri law license is required and dual licensure with Illinois is preferred.  

Well-established, small law firm in St. Louis County seeking a full-time litigation associate.  The firm is mainly an insurance defense litigation practice.  The ideal candidate will become involved in an active caseload.  A current Missouri license is required.  

Large downtown St. Louis based national plaintiffs' law firm that exclusively represents victims of mesothelioma is seeking to hire a litigation associate.  Qualified candidates will have 2-10 years of civil litigation experience, preferably in a med-legal environment (plaintiff asbestos, personal injury, medical malpractice, etc.), and be able to travel frequently.  Ideal candidate will have some trial, research and writing, and deposition experience, along with case management.  Candidates with judicial clerkship experience will be viewed favorably.  MO license required.  Additional licensure (or eligibility for reciprocity) in IL strongly preferred. 

National law firm with more than 110 attorneys in offices coast to coast seeks a defense litigation associate to join their St. Louis (Clayton) based team.  Qualified candidates will have 3-5 years of defense litigation experience; hands-on experience taking a case file from inception through resolution; experience in products liability, toxic tort, and/or general liability; and be admitted to practice in Missouri and Illinois.  

Litigation defense firm headquartered in Chicago is actively seeking an associate attorney for its downtown, St. Louis office.  Qualified candidates will have 2-6 years of litigation experience; be proficient with Lexis and MS Office; be licensed to practice law in Missouri; demonstrate strong legal research and analytical skills; and navigate hearings in state and federal court with poise and professionalism.  

Reputable 20 + attorney law firm in Clayton seeks an experienced senior litigation associate to join the firm's commercial litigation practice.  Qualified candidates will have at least 6 years of experience managing commercial litigation cases, with expertise in discovery, depositions, and motion practice.  Trial experience preferred.  Business development skills and client originations are a plus.  Missouri bar license required.  

PARALEGAL POSITIONS

Law firm located in Chesterfield Valley seeks an experienced paralegal to assist with litigation related to mortgages, foreclosures, and title work.  Qualified candidates will have 1 + year of civil litigation experience.  Real estate litigation preferred.  BA/BS and/or certification preferred.  

Small Clayton law firm seeks a full-time or part-time experienced corporate law/real estate paralegal.  Qualified candidates will have 5 + years of transactional corporate and/or real estate experience in a law firm setting or corporate legal department.

Collegial Clayton business-oriented firm seeks a full-time commercial litigation paralegal to join their team.  Qualified candidates will have 5 + years of civil litigation experience.  

An established and successful estate planning firm located in Creve Coeur seeks an experienced paralegal to draft and prepare estate planning documents.  Qualified candidates will have 2 + years of hands-on paralegal experience; estate planning experience preferred; strong MS Word skills; and a college and/or administrative assistant degree.  Paralegal degree and/or certification a plus.  

SUPPORT STAFF POSITIONS

Established 3 attorney criminal defense, DWI, and traffic law firm located in the heart of Clayton seeks a full-time legal receptionist/legal assistant.  Qualified candidates will have prior clerical experience and strong computer skills.  Writing skills are essential as this position will use templates to draft basic legal pleadings, letters, and e-mails.  Prior legal experience preferred.  Ideal candidate will have experience with CaseNet/e-filing in Missouri; drafting traffic/municipal pleadings; coordinating and communicating with clients; managing attorneys' calendars and court dockets; and computer proficiency in Word, e-mail, electronic files (Google Drive), MyCase, and REJIS.  

Small plaintiff personal injury firm located in Chesterfield seeks a full-time litigation legal secretary/assistant.  Qualified candidates will have 3-5 years of litigation legal secretarial/assistant experience, preferably in the personal injury field; training in paralegal studies; ability to type 85 + WPM; and proficiency with Word, Outlook, Excel, and PowerPoint.  

Well-established and respected 20 + attorney firm located in Frontenac seeks a full-time legal assistant to provide support to attorneys in the firm's employment/commercial litigation department.   Qualified candidates will have at least 5 years of experience in litigation administrative support at a law firm; in-depth working knowledge of MS Office; experience with litigation computer applications; experience with document management systems; and excellent organizational skills.  

Midwest-based law firm seeks an experienced complex litigation legal secretary for their St. Louis (Clayton) office to support a team of civil litigation attorneys.  The caseload will focus on complex business/commercial litigation, labor/employment, and general civil litigation.  Qualified candidates will have at least 5 years of experience as a litigation legal secretary with experience in commercial litigation and/or employment, a thorough understanding of the litigation process and procedures in state and federal courts, experience filing documents in both court systems, and proficiency in Microsoft Word, Outlook, Excel, and document management systems.  Ideal candidate will have sophisticated technology skills with experience supporting a team in a mid-sized or large law firm environment.  

Well-established nine-attorney firm in the Clayton/Ladue area is seeking to add a full-time paralegal/legal assistant to their plaintiff personal injury/medical malpractice team.  Proficiency with MS Office Suite products including Word, Excel, and Outlook required.  2-3 years of significant and substantive civil litigation experience required.  Prior personal injury/medical malpractice experience preferred.  

Well-established mid-sized Clayton firm seeks a full-time experienced legal administrative assistant for its busy domestic litigation practice group. Qualified candidates will have 2 + years experience working as a domestic legal administrative assistant.  Experience with Word required; Excel and ProLaw experience preferred.

COURT OF APPEALS HOLDS THAT COUNTY CANNOT IMPOSE SALES TAX ON MARIJUANA DISPENSARIES LOCATED IN INCORPORATED AREAS OF A COUNTY.

Robust Missouri Dispensary 3, LLC v. St. Louis County, et al., ED112642 (Mo.App. E.D., November 12, 2024).

Missouri voters in 2022 amended the state Constitution to legalize the recreational use and possession of marijuana.  Each licensed retail marijuana business is required to collect a 6% state tax on the retail sale of non-medical marijuana.  Additionally, any “local government” is authorized to impose an additional sales tax in an amount not to exceed 3% on the sales of marijuana sold in the political subdivision.

Subsequently, the City of Florissant voted to impose a 3% sales tax on retail sales of marijuana.  St. Louis County voters also passed a proposition to impose a 3% sales tax on retail sales of marijuana sold in St. Louis County.  Robust operates a marijuana dispensary in Florissant.  Robust collected and remitted the 3% sales tax imposed by Florissant.  The Missouri Department of Revenue issued Robust a sales tax change notification letter informing Robust it was also required to remit the 3% St. Louis County sales tax in addition to the 3% sales tax imposed by Florissant.

Robust filed a declaratory judgment suit against St. Louis County and the Missouri Director of Revenue seeking a declaration that the constitutional provision (1) does not authorize a county to impose an additional sales tax when the dispensary is located within the boundaries of an incorporated village, town or city, and (2) authorizes a county to impose a retail sales tax only at a dispensary located in an unincorporated area of that county.  Robust also sought an injunction to prohibit the Missouri Director of Revenue from collecting St. Louis County sales tax at Robust.  St. Louis County and St. Charles County (which intervened in the suit) claimed that a county could collect a retail sales tax on the sale of marijuana located within the county’s geographical boundaries in addition to any sales tax imposed by an incorporated village, town or city within that county.

The trial court ruled in favor of St. Charles and St. Louis counties, declaring that a definition of “local government” must include a county as to both incorporated and unincorporated areas to avoid an “absurd” interpretation.  

On appeal, the Missouri Court of Appeals, Eastern District, reversed the trial court’s decision.  The court pointed out that Article XIV of the constitution provides: “The governing body of any local government is authorized to impose, by ordinance or order, an additional sales tax in an amount not to exceed three percent on all tangible personal property retail sales of adult use marijuana sold in such political subdivision.”  The court explained that because the constitution vests the power to impose the 3% tax in the relevant local government, the logical starting point for the analysis is to determine whether the county is a “local government,” as that term is used in Article XIV, within an incorporated area.  The court stated that the definition of “local government” turns on whether an area is incorporated or unincorporated, pointing out that the constitutional article states:  “Local government means in the case of an incorporated area, a village, town, or city and, in the case of an unincorporated area, a county.”  

The Court of Appeals held that the plain, unambiguous text of this constitutional provision means, that in an incorporated area like Florissant, “the village, town or city is the ‘local government’, not the county.”  Thus, the court held that the plain language of the constitutional article is unambiguous.  Only one local government is authorized to impose an additional 3% sales tax.  The County is not a “local government,” and it can collect a sales tax on marijuana sales only in unincorporated areas.  The Court ruled Robust was entitled to judgment as a matter of law.

MISSOURI SUPREME COURT HOLDS DRIVER’S BEHAVIOR DURING TRAFFIC STOP FOR BROKEN HEADLIGHT JUSTIFIED OFFICERS’ SEARCH OF VEHICLE 

State v. Chad Thomas, 699 S.W.3d 442 (Mo. banc 2024).

A police officer pulled Thomas over for driving with a broken headlight, walked up to the passenger side of Thomas’ vehicle, and asked him to roll down his window.  Thomas first rolled down the rear passenger window and, when asked to roll down the front passenger window, rolled it down only a few inches.  The officer explained that Thomas was being stopped for a broken headlight and asked for his driver’s license.

Thomas began to search for his license in his wallet but said he could not find it.  The officer then asked him to exit the vehicle.  After he exited the vehicle, the officer asked for permission to conduct a pat-down search, and Thomas consented.  The officer felt a bulge and asked Thomas what it was, and he said he was not sure but it could be “a sharp.”  The officer called for backup and asked if he could reach into Thomas’ pocket and retrieve the object.  Thomas first declined but later consented.  The officer looked in his pocket and confirmed the bulge was a key fob.  The officer asked Thomas to come back to his patrol vehicle and sit in the passenger seat, but Thomas refused.  The officer said he noticed Thomas was speaking rapidly and sweating even though it was cold outside.  The officer then allowed Thomas to go back into the vehicle to try to retrieve his driver’s license.  After going back to the vehicle and sitting in the driver’s seat, he attempted to close the door, but the officer ordered him out of the vehicle and told him he was allowed to go back into the vehicle only to retrieve his license.  When Thomas reached over toward the center console, the officer then ordered him out of the vehicle and placed him in handcuffs and escorted him back to the officer’s parole vehicle.  When Thomas asked if he was being arrested, the officer explained he was not being arrested, rather he was being detained for a traffic violation.

Another officer then arrived at the scene.  The second officer asked Thomas if he could search the center console of Thomas’ vehicle for his driver’s license.  At first Thomas gave his consent but then retracted it.  When asked, Thomas said there were no illegal items in the vehicle.  After the officers obtained Thomas’ name and date of birth, they learned that he did not have a license and there was an active warrant outstanding against him.   Subsequently, a canine unit arrived. In the search performed by the canine officer, the dog alerted the officers of something in the vehicle.  Officers then searched the vehicle, finding in the center console a smoking glass pipe, a drip bottle, and a hypodermic needle. The liquid in the bottle and needle later tested positive for methamphetamine.  Thomas was charged in Saline County Circuit Court with possession of a controlled substance and possession of drug paraphernalia under Sections 579.015 and 579.074, RSMo., respectively.

In a pretrial motion, Thomas moved to suppress the evidence the officer found in his vehicle as fruit of an illegal search.  The trial court held a hearing in which the arresting officer and the other officer at the scene testified.  The court found that the officer had reasonable suspicion to detain Thomas while the canine unit completed the sniff due to the original officer’s conversations with and observation of Thomas during the traffic stop, and that the search was not illegal.  A jury later found Thomas guilty and he was sentenced to 10 years imprisonment as a prior offender.

Thomas appealed to the Missouri Court of Appeals, Western District, which held that the search was improper and that the evidence should have been excluded. The Missouri Supreme Court granted transfer and ultimately affirmed the trial court’s decision.

The Supreme Court explained that an officer may detain an individual only for the time necessary to “conduct a reasonable investigation of the traffic violation.”  When an officer prolongs a stop more than is reasonably necessary to complete the stop’s purpose, the officer must have reasonable suspicion that a crime is afoot to detain the individual.  If the officer does not have reasonable suspicion when he extends the stop, the stop may become unlawful.  The Court further explained that an officer can lawfully detain an individual beyond the time necessary to investigate the trial violation, “[i]f the officer develops reasonable and articulable grounds for suspicion of an illegal activity based upon the behavior and responses of the individual during the traffic stop.”  The totality of the circumstances is considered when evaluating whether the standard for reasonable suspicion has been met.  

Here, the Court held that based on Thomas’ behavior and responses during the traffic stop, the officer developed a reasonable suspicion that criminal activity may have been afoot.  The Court held that the circuit court did not clearly err in finding the officer had reasonable suspicion to detain Thomas, and therefore that the officers did not violate the Fourth Amendment.

MISSOURI SUPREME COURT AFFIRMS DEATH PENALTY FOR FOUR COUNTS OF MURDER.

State of Missouri v. Richard Emery, SC99869 (Mo. banc, November 5, 2024).

Emery was found guilty of four counts of first-degree murder, and the jury imposed the death penalty for each count.

In 2017, Emery began dating, and later moved in with, a woman who had two young children, a son and daughter.  In December 2018, his girlfriend’s mother lived with them while recovering from hip surgery.  On December 28, Emery arrived home from work around 4:30 p.m., ate dinner and had a couple of glasses of wine.  Around 7 p.m. he went to a bar for a poker tournament where he drank seven beers and one shot.  At about 11 p.m. he got in his truck and drove home.  When he returned home, he got into an argument with his girlfriend.  When the argument turned physical, she yelled for somebody to call the police.  He then took a gun from his safe and shot his girlfriend twice.  One shot entered her left shoulder blade and exited through her right side, and the other entered the top of her head and travelled straight down her body.  Her mother, in the second bedroom, heard what was going on and called 911, saying “He shot us, he’s beating us up and shooting…. He has a gun.”  She also said, “I think he shot my daughter and now he’s at the door.”  Screams and gun shots were then heard in the background before everything went quiet.  

Police were dispatched immediately.  They found the girlfriend inside the door of the primary bedroom lying in a pool of blood.  The officers attempted to aid her, but her condition deteriorated quickly, and she died on the way to the hospital.  The primary bedroom and bathroom showed signs of struggle.  Bloody footprints led from the primary bedroom to a second bedroom, and the door to that bedroom had been forced open.  Inside officers found the bodies of the mother, the 8-year-old daughter and the 10-year-old son.  The mother and the 8-year-old daughter had been shot once and the 10-year-old son had been shot three times.  The wounds on all three victims indicated they had been shot from very close range.  

As an officer approached the house responding to the 911 call, he saw a white pickup truck in the driveway.  The truck was empty, but the running lights were on and the engine was idling.  They observed a white male, later determined to be Emery, exit the front door of the house, turn and lock it, and walked to the idling pickup.  His demeanor was calm and casual.  As Emery backed out of the driveway and drove down the street, the officer radioed the truck’s description and plate number and asked other officers to stop the truck.  The other officers that were responding to the scene observed Emery’s truck still in the neighborhood and turned on their emergency lights, but Emery continued to drive away at normal speed.  Emery then turned into a poorly lit street and stopped.  Emery exited the vehicle and began firing at the officers with his pistol.  Neither officer was hit but both returned fire.  Emery then ran between two houses and into the woods.  The police found an assault rifle and duffel bag with more than 900 rounds of ammunition inside the truck.  They also found a 9-millimeter pistol with no bullets remaining in an area where Emery fled.  Blood on the pistol contained DNA consistent with the DNA of his girlfriend, her mother, and her son.

Soon after this shootout, a 911 call came in describing an assault and attempted carjacking at a nearby location.  The victim was leaving a family holiday party and as she walked to her vehicle, she heard someone running behind her.  Before she could lock the door of her vehicle, Emery opened it and attacked her.  She testified that Emery was not panicked but was very deliberate and very insistent.  He began swinging a knife, stabbing her seven times, but she was able to push him away and close the door.  He then began walking away again in a casual manner.  An hour or more later, he walked into a gas station.  He had been shot twice in the shootout with the police and was bleeding from his wounds.

He was charged with four counts of first-degree murder, four counts of armed criminal action related to the homicide counts, three counts of first-degree assault, and three counts of armed criminal action related to the assault and one count of attempted robbery in the first degree.  All charges other than the first-degree murder counts were severed, pursuant to § 565.004, RSMo., and he was tried only on the murder charges.

At trial, Emery acknowledged he intentionally killed his girlfriend, her mother and the two children.  He contended only that he did not deliberate prior to those murders. On appeal, among other arguments, he claimed that the circuit court erred in striking a potential juror for cause, admitting certain evidence during both the guilt and guilty phases, failing to correct the prosecutor’s closing argument, and by exhibiting “religious bias against Emery and sentencing him to death.”  

Emery argued that the trial court erred in striking a prospective juror who was equivocal about his ability to consider the death penalty.  Although the prospective juror initially indicated he would be able to consider the death penalty, when questioned further, he confirmed that he was “somewhat strongly opposed” to the death penalty and would “feel like a hypocrite” if he voted to impose the death penalty.  The Court found there was no err in striking that prospective juror.  

Emery also argued it was error to allow the body camera video footage from officers who first arrived at the murder scene to be admitted into evidence.  The Court held that the trial court did not abuse its discretion in admitting it into evidence.  Portrayals of gruesome crimes necessarily will be gruesome, and this prejudicial effect is not so unfair as to render the otherwise logically and legally relevant evidence inadmissible.  The video presented a full picture of the scene, including the layout of the house, the identity of the victims and the nature and extent of the wounds and the condition and location of their bodies, all relevant to showing evidence of Emery’s deliberation.

Even though he was tried only on the murder charges and not the related assault charges, it was not error to admit the evidence of Emery fleeing the scene and attempting to avoid arrest, because that evidence was essential to give the jury a complete picture of what happened and provide evidence of deliberation.  

The Court further held that the trial court did not abuse its discretion in allowing the officers and the woman who was stabbed to testify during the penalty phase about the impact of Emery’s actions.  The relevant statute governing the penalty phase of trial allows the jury to hear evidence concerning the impact of “the offense” on the “victim” and “others.”  The Court further found that the prosecutor’s closing argument was not improper, pointing out that the prosecutor did not ask the jurors to imagine they personally were suffering graphic aspects of the crime but rather the prosecutor asked jurors to visualize the crime shown in the evidence and empathize with the victims caught up in this horribly violent episode.  

The Court also found that the sentence of death on each of the murder charges was not excessive or disproportional to the penalty imposed in similar cases.  There is no indication Emery was sentenced to death as a result of passion, prejudice or any other arbitrary factor.  The evidence supported the aggravating circumstances that the murders were outrageously and wantonly vile, horrible, and inhuman, and that Emery killed each of his four victims as part of a plan to kill more than one person, thereby exhibiting a callous disregard for the sanctity of human life.

MISSOURI COURT OF APPEALS RULES THAT FAILURE TO GIVE NOTICE OF HEARING ON ORDER OF PROTECTION VOIDS THE ORDER OF PROTECTION.

C.B. v. G.B., No. ED112625 (Mo.App. E.D., November 5, 2024).

The circuit court of St. Louis County granted an ex parte order of protection to Wife, which was personally served on Husband, notifying him that a hearing on a full order of protection would be held on February 22, 2023.  At Wife’s request, the February hearing was continued to March 8, 2023.  Husband did not appear at the March hearing, and Wife again requested a continuance.  The court entered an order granting a continuance and setting a new hearing date for April 12, 2023.

The circuit court faxed a copy of its order to “Ferguson,” but the fax did not identify the location of “Ferguson” or the intended recipient.  There was no evidence in the record that Husband received notice of either continuance.

On April 12, 2023, the circuit court held a hearing, which Wife attended.  Husband did not appear at the hearing (he was incarcerated at the time in the St. Louis County jail).  At the April 12, 2023 hearing, the court entered a full order of protection, and Husband was personally served with the a full order of protection at the jail on April 13, 2023.

Eight months later, Husband filed a Rule 74.06(b) motion to set aside the full order of protection on the grounds that it was void and/or irregular or because of excusable neglect and misconduct by Wife.  The court denied Husband’s motion.  Subsequently, Husband filed a Rule 75.01 motion to vacate, reopen, correct, or modify the order, further requesting that the court denominate its ruling as a judgment for purposes of appeal.  The court issued the final judgment denying Husband’s Rule 75.01 and 74.06(b) motion.  Husband appealed to the Missouri Court of Appeals, Eastern District.

Rule 74.06(b) provides that upon motion “and upon such terms are just,” the court may relieve a party from a final judgment if, among other things, “the judgment is void.”  The Eastern District explained that “a fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”  This fundamental right to be heard is applicable to all adversarial proceedings including a proceeding for an order of protection.  The court stated that a circuit court’s failure to give “notice of a proceeding finally adjudicating the parties’ rights” is a violation that “goes to the heart of due process.”

The court further explained that Husband was not required to file a responsive pleading in connection with Wife’s petition for her protection.  The court’s full order of protection against Husband ordered that he not communicate with Wife, enter or stay at the marital residence, and further deprived him of a property interest by requiring him to pay $500 each month to Wife in maintenance.  The Court of Appeals explained that because Husband was not in default and because the circuit court entered a full order of protection against him, following the April hearing that adversely affected his rights, he was entitled to notice of the date of the hearing.  There was no evidence that Husband was provided notice of the hearing of April 12, 2023, either by the court or by Wife.  

The court noted that although a party has a duty to keep abreast of all proceedings in their case from original service of process until final judgment, this duty does not trump a party’s due process right to notice.  Although Husband did not inquire about his case proceeding nor move for continuance, this did not relieve the court of its fundamental obligation to notify him of the new date for the hearing.  

The Court of Appeals concluded that the full order of protection was void because the circuit court “acted in a manner inconsistent with due process.”  The court reversed the circuit court’s judgment denying Husband’s Rule 74.06(b) motion to set aside the full order of protection and remanded the matter, instructing the circuit court to set a new date for a § 455.040 hearing on a full order of protection with proper notice to all parties.

In a landmark decision, the U.S. Court of Appeals for the Third Circuit recently ruled on a significant case, Schaffner v. Monsanto Corp.,[1] which has sparked considerable debate within the legal community. The court held that a state-law duty to warn claim was expressly preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).[2] This statute[3] is, as the Third Circuit observed, a comprehensive regulatory framework that governs the use, sale, and labeling of pesticides.[4] It regulates pesticides produced and sold in both intrastate and interstate commerce, provides for the review, cancellation, and suspension of registration, and grants the Environmental Protection Agency (EPA) enforcement authority.[5]

In the Schaffner case, the plaintiffs argued that Monsanto had violated Pennsylvania law by failing to include a cancer warning on the label of its widely used herbicide, Roundup.[6] Monsanto countered this by asserting that FIFRA preempts any state-law labeling requirements that differ from or add to federal requirements, emphasizing the need for nationwide uniformity in pesticide labeling.[7] The Third Circuit ultimately sided with Monsanto, concluding that FIFRA preempts Pennsylvania's duty to warn. The court’s reasoning was grounded in the fact that FIFRA regulations mandate pesticide labels to conform to those approved by the EPA during the registration process, thereby ensuring consistency across the nation.[8]

This decision by the Third Circuit has set it at odds with the Ninth and Eleventh Circuits, thereby creating a notable circuit split. Such a division among the circuits presents an opportunity for the U.S. Supreme Court to step in and render a definitive ruling on the issue of FIFRA preemption. Should the Supreme Court choose to adopt the Third Circuit’s reasoning, it would mean that FIFRA would preempt any state-law duty to warn claims that are inconsistent with the EPA’s approved label for products containing glyphosate.

At the heart of this circuit split lies the Supreme Court’s “Parallel Requirements Test” established in Bates v. Dow Agrosciences.[9] This test requires lower courts to identify and compare relevant state and federal labeling requirements to determine their equivalency. According to Section 136v(b) of FIFRA, states are essentially required to enforce the same packaging and labeling standards as FIFRA.[10]

Both the Ninth and Eleventh Circuits have interpreted FIFRA’s statutory definition of misbranding as the only federal labeling requirement pertinent to this analysis. This definition states that a pesticide is misbranded if its label omits a warning necessary for safe use, but it does not specify any particular warning that must be included or omitted. The Ninth and Eleventh Circuit decisions emerged from the cases Hardeman v. Monsanto Co. (Hardeman II)[11] and Carson v. Monsanto Co. (Carson IV),[12] respectively.

In contrast, the Third Circuit concluded that FIFRA’s labeling requirements extend beyond the broad definition of misbranding. They also encompass the more specific regulatory requirement that a pesticide’s label must exclusively contain the specific contents included on its preapproved label, including precautionary statements.[13] Since the EPA had approved labels for Roundup that did not include a cancer warning after reviewing scientific evidence, the alleged violation of state law did not violate federal labeling requirements.[14] Consequently, the state and federal requirements were not equivalent, and the parallel-requirements test was not satisfied.[15] Based on this reasoning, the Third Circuit determined that Schaffner’s claim for failure to warn was preempted under FIFRA.

As of now, the Supreme Court has not yet decided to review this circuit split. However, the resolution of this issue is anticipated to be imminent given the profound implications it holds for FIFRA litigation nationwide. The differing interpretations between the circuits underscore the need for a clear and unified legal standard, which only the Supreme Court can provide. Such a decision would not only resolve the current legal uncertainty but also shape the future landscape of pesticide regulation and litigation in the United States.

Many legal professionals in the “mass tort” [i] realm perceive that judges and litigants are more frequently choosing to utilize the services of a special master to assist in the administration of mass tort dockets than they have in the past.   This is not surprising as the field of mass tort litigation, and the number of mass tort cases filed, has increased substantially over the past decade.[ii]    Special masters play so many different roles in this field of law that one would be hard pressed to name many recent major litigations that did not utilize the services of a special master at some point and at some level.  Indeed, many special masters have proven themselves quite valuable in the mass tort realm, and it appears that judges who have used special masters in overseeing previous mass torts are often inclined to use them again when a new mass tort litigation makes its way to their docket.  

Special masters perform numerous different roles in mass tort cases, ranging from assisting in the resolution of certain pre-trial disputes, trial administration, settlement mediation and administration, to assisting in the resolution of potential fee disputes between attorneys.  Given the potentially disparate nature of some of these roles, some litigations even utilize the services of multiple special masters.   The roles played by a special master and the depth of the services offered within these roles depends largely upon the prerogative of the court and the parties involved in the litigation as well as the unique circumstances presented by each case.  

This article will explore the different roles and benefits special masters offer in mass tort litigations as well as the considerations that should go into determining whether a special master is appropriate or necessary.   Both the court and the attorneys involved in any mass tort litigation should be regularly evaluating these considerations at all phases of a case to determine whether certain services of a special master may be appropriate or, alternatively, may no longer be needed.

Appointment and Roles

Generally, the appointment of a special master in any case should be “the exception and not the rule.”[iii]  Any court appointing a special master should specify and limit the special master’s powers.[iv]  “In appointing a special master, trial courts may not delegate or abdicate their judicial power.”[v] 

While the bar is relatively high to appoint a trial-level special master, the requirements for more limited references are not as restrictive.[vi]  These are the appointments that seem to be becoming more common, or almost routine, in many mass tort litigations both locally and nationally.  The Federal Judicial Center’s Manual for Complex Litigation broadly describes these more limited references as assisting in the “resolution of pretrial or nondispositive matters, mediation of settlement negotiations, or posttrial implementation of a decree.”[vii]    These more limited references are often of great assistance in moving a given litigation forward. 

The appointment of a special master may be of the court’s own accord or follow a motion for such an appointment by the parties.   Many mass tort special masters are retired federal or state judges or well respected attorneys with extensive experience in the mass tort or complex litigation fields.  The best selection for a special master often depends on the role envisioned (e.g., dispute focused, settlement focused, multiple roles). 

The choice of a particular special master is largely judge-driven.  Some judges make their own selections without party input based on their own prior experiences and preferences.  Some judges ask the parties to submit names of potential special masters for the court to consider.  Other judges will ask the parties to agree upon a special master from a list the judge provides.

How the selection is made largely depends on the court and circumstances, but it is important that the appointed special master have the respect and trust of the appointing judge as well as all sides of the litigation in order to serve properly. The wrong choice for a special master can often be counterproductive, with the parties actively trying to avoid the special master and going to the court with all issues, thereby entirely defeating the purpose of the appointment.    

The potential roles for a special master in any mass tort are varied and wide.  Often, these roles will expand and contract, as needed, during the litigation.  The myriad different ways a special master could serve in a mass tort context is beyond the scope of this article, but the court and the parties themselves should give consideration throughout the different phases of the litigation as to whether a special master would be appropriate or inappropriate to address certain issues in each stage of a given litigation.   However, at least in the experience of the author, special masters can be especially beneficial in assisting with discovery disputes, settlement negotiations/mediations, and settlement administration (including fee disputes between various attorneys). 

Discovery Disputes

Mass tort litigations are notoriously rife with constant discovery disputes.   The discovery process in these cases typically involves millions of pages of documents, extensive confidentiality designations and privilege claims, contentious depositions, and compliance deadlines for numerous defendants and thousands of plaintiffs.   Moreover, discovery is often being conducted on behalf of thousands of plaintiffs.  The parties generally try to develop an efficient process whereby certain general discovery items can be used across many cases (and potentially multiple jurisdictions) to save the costs and time of repeating this discovery on a case-by-case basis.  In this framework, it is especially important that disputes are addressed quickly and efficiently, as these disputes have a potential impact across so many different cases.   Having a special master available to assist the Court in handling these discovery disputes, as appropriate, often allows the parties to move through this phase of the litigation with less judicial intervention, thus conserving limited judicial resources, and in a timelier fashion.  

For example, most courts do not have time to do a deep dive into areas like search terms to be utilized for corporate custodial file document production review, or to review privilege designations used to avoid document production, or to conduct an assessment of whether a litigation hold was timely and effectively placed to prevent document destruction.  These are examples of specific areas in which a special master can put in a multitude of hours and, working with the parties, greatly narrow and focus the issues for the judge’s ultimate determination.  

Settlement Negotiations/Mediations

Special masters are often in prime position to assist the parties with settlement negotiations throughout the course of the litigation.  Settlement negotiations in the mass tort context can be complex and involve unique considerations beyond the scope of this article, but involving a special master who is intimately familiar with the critical issues and disputes in a litigation can assist the parties with the complexities inherent in trying to achieve large-scale resolutions in a timely fashion. 

This process involves the examination of extensive data, and some judges request the parties start meeting with a special master about settlement at the outset of the litigation.  Having a special master involved in this process throughout the litigation helps the parties tailor discovery and examine what particular issues may need to be more deeply explored to obtain the type of information necessary to achieve a large-scale/global-type settlement that could help resolve a litigation. 

The large-scale/global-type settlements that frequently take place in mass tort cases generally provide plaintiffs an option not to participate, or “opt-out.”  Beyond helping the parties merely facilitate a large-scale/global-type settlement, the special master’s familiarity with the litigation makes them excellent candidates to mediate potential opt-out cases on an individual basis.  

The administration of these large-scale/global-type settlements in the mass tort context also often calls for the assistance of a special master.   The administration of these settlements can take far longer than the non-mass tort settlements attorneys may be more familiar with, and such delays can lead to frustration on the part of the court, the attorneys, and the parties.   Having a special master already in place, who has been involved with the case prior to the settlement administration phase, can make this process much more efficient.  

The goal of any court should be the timely, ultimate resolution of the cases before it.   Judges often half-jokingly observe that trying all the mass tort cases pending before them in any given litigation would long outlast the careers of the judges and attorneys currently involved (and maybe even their children’s careers).  Having a special master in place who can help facilitate a resolution is of critical importance to the court as well as the parties on both sides.

Fee Disputes

At least at the federal level, many courts levy something known as a “common benefit” assessment upon any resolved claim within a particular mass tort litigation.  This common benefit assessment involves the court ordering that a percentage of any settlement or judgment be placed in an escrow fund to be allocated among attorneys who have conducted “common-benefit work” on behalf of all plaintiffs in a litigation, not just their own clients.   The ultimate allocation decision is made by the Court, and disputes over the allocations when the various attorneys are not in agreement can last for years.  The allocation determination for each attorney seeking a share of the common benefit funds is often based upon time spent and value provided for common benefit work.  As expected, attorneys often have differing views on the value of their contributions to the  litigation of a particular case.  If a special master is involved, they are often in an ideal position to help facilitate an agreement amongst the attorneys involved in an effort to streamline this process and avoid protracted objections and litigation.   

Potential Problems

Despite the many beneficial services they can provide, courts should be careful not to become overly reliant on special masters or use them in situations in which it may not be appropriate.   Judges must be careful not to cross the line of delegating or abdicating their judicial authority.  Practically speaking, if a judge starts approaching that line and has a special master handle tasks parties view as traditionally reserved for the judge, it may produce a counterproductive environment.  And if a litigation is small, and not particularly complex, sometimes the use of a special master can potentially make things more complicated by essentially adding what the parties may consider an unnecessary layer of administration.   

Further, and especially important to consider, is that the appointment of a special master does often result in substantial additional costs for the parties.  If the use of a special master is not truly necessary, this can present litigants with a potentially improper barrier to the courts.[viii]   This concern can be offset in many situations by careful determinations on the appropriate time for a special master appointment (early or late in a case), and a continual examination by the Court and the parties as to whether a special master’s role should be expanded or contracted given the current phase and posture of a given litigation.

Conclusion

In sum, special masters offer many great benefits to the courts and the parties involved in mass tort cases.  Judges and litigants should not be afraid to utilize the services of a special master in the appropriate situation, but they should be mindful that the need for and roles served by any special master will be highly dependent on the particular litigation and the unique circumstances and situations it presents.

Introduction

Mass tort cases often grab headlines in Missouri and across the United States due to their size and scope.  For those who do not regularly practice in this area, their complexity, nuance and, at times, lack of apparent structure, can make these cases seem like an enigma. This article explains, at a high level, how mass tort cases are consolidated, which is often the beginning step in the litigation.

What is a mass tort?

In its simplest form, a mass tort involves numerous individual plaintiffs who were injured in a similar way or by common conduct through the act of one defendant, or a limited number of defendants.  As a point of distinction, a mass tort usually encompasses an injury and each person’s case is treated individually, unlike a class action, which typically involves economic loss, and a very small number of individuals represent the interests of the class as a whole.

While a mass tort can encompass a broad swath of case types, these cases often stem from product liability cases involving harmful or defective pharmaceutical drugs, medical devices, agricultural chemicals, or food products; exposure to hazardous or toxic materials; mass disasters; institutional sexual abuse; and environmental and workplace exposures, to name just a few examples. 

Due to the complexity of these cases, coordination of actions is often beneficial to both plaintiffs and defendant in that it allows both parties to utilize economies of scale and reduces the likelihood of inconsistent rulings. 

Coordination at the federal level

When lawyers think of coordination of mass tort cases, the first thought that likely comes to mind is the Judicial Panel on Multidistrict Litigation (JPML).  The governing statute provides that “when civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings.”[1]  The JMPL “consist[s] of seven circuit and district judges designated from time to time by the Chief Justice of the United States, no two of whom shall be from the same circuit. The concurrence of four members shall be necessary to any action by the panel.”[2]

When similar mass tort cases are filed in various federal district courts across the country, any party may file a new Multidistrict Litigation (MDL) motion for transfer for coordinated or consolidated pretrial proceedings.[3]  Thereafter, all parties must receive notice and will be given a chance to respond, including presenting at oral argument as set by the panel.[4]  Ultimately, the panel will issue a ruling determining whether coordinated or consolidated pre-trial proceedings are appropriate, which if granted, will transfer all actions to one federal court before one federal judge.[5] 

Coordination at the state level

Increasingly, mass torts are being filed in state courts.  California is considered one of the state leaders in coordinating complex, mass tort litigation for cases filed in different California county state courts.[6]  “When civil actions sharing a common question of fact or law are pending in different courts, a petition for coordination may be submitted to the Chairperson of the Judicial Council, by the presiding judge of any such court, or by any party to one of the actions after obtaining permission from the presiding judge, or by all of the parties plaintiff or defendant in any such action.”[7]  Thereafter, California has its own procedures in determining whether coordination is appropriate.[8] 

For purposes of this article, without delving into nuances, several other states have created rules for coordination of mass tort cases filed in different judicial circuits within their respective states, including Illinois,[9] Florida,[10] Minnesota,[11] and New Jersey.[12]

These state court proceedings, whether coordinated or not within the state, are often parallel litigations to a federal court MDL.  Succinctly stated:

MDLs are no longer islands. A transferee judge increasingly confronts the reality of other proceedings and actions, moving forward outside the MDL court’s jurisdiction. Case management strategies must therefore account for the impact of developments in parallel state court litigation, as well as the specter of regulatory or agency actions. The degree to which coordination is possible and the contours of that interaction are driven by case-specific factors − the individuals and personalities involved, the degree of overlap in players between state and federal cases, the procedural devices available in and degree of flexibility available to judges in each of the applicable states for coordination, the extent to which state cases are likely to reach trial during the pendency of the MDL and the degree to which they will be perceived as helpful or distinguishable from the MDL cases, to name just a few.[13]

Further, many MDL courts are now appointing state liaison counsel to be the go between for purposes of communication between counsel in the state and federal proceedings.

The state of the law in Missouri

Missouri does not have a procedural device or Supreme Court rule for coordination of pretrial or trial proceedings for similar mass tort cases filed in different venues across the state.  However, within the circuits themselves, cases have been consolidated (as opposed to coordination) for trial[14] and the Courts have often found ways to efficiently manage their dockets when confronted with a number of similar mass torts pending in their respective circuit.

Conclusion

At the federal level, JMPL statistics show a decreasing number of motions for centralization and hearings from 2014-2023.[15]  The one constant in the world of mass torts is change, and whether coordination continues to be of benefit to plaintiffs and defendants is ever-evolving, tort by tort.