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2021 Highlights from the Illinois Courts

January 26, 2022 | Lisa Larkin and Kameron Fleming

In this 2021 year-end summary, the Illinois Law Blog analyzes several of the most impactful decisions from the Illinois courts. This past year was a dynamic one in The Prairie State marked by several significant appellate decisions affecting insurance defense, medical malpractice, patient privacy, school teacher tenure rights, and the power of the Illinois Educational Labor Relations Board. As with most states, Illinois continued to see a substantial number of COVID-19 exposure claims. The integrity of Governor Pritzker’s executive order shielding COVID-19 responsive health care facilities from liability may be compromised by decisions in both the Northern and Southern District of Illinois. 

Biometric Information Privacy Act

In West Bend Mutual Insurance Company v. Krishna Schaumburg Tan, Inc., 2021 IL 125978, a customer filed a class action lawsuit against West Bend Mutual Insurance Company’s insured, Krishna Schaumberg Tan, Inc. The customer alleged Krishna violated Illinois’ Biometric Information Privacy Act, 740 ILCS 14/1, et seq., (BIPA) by scanning customers’ fingerprints and disclosing biometric information containing those fingerprints to an out-of-state third-party vendor. Krisha tendered the lawsuit to West Bend, which had issued to businessowners’ liability policies to Krishna, and requested a defense.

West Bend filed a declaratory judgment action contending that it did not owe a duty to defend Krishna against the class action lawsuit. West Bend argued that the class action complaint did not allege a publication of material violative of privacy rights because the Illinois Supreme Court has defined publication as communication to the public at large, not to a single party, as had occurred here. West Bend alternatively argued that the policies’ “violation of statutes” exclusion applied and barred West Bend from having to provide coverage to Krishna for the BIPA violations. Krisha argued that sharing biometric identifiers and biometric information with a single party is a publication covered by the policies. Further, Krishna argued that regardless of whether the violation of statutes exception applied, the policies also provided coverage for a violation of BIPA under the policies’ Illinois data compromise coverage endorsement.

The trial court entered summary judgment in Krishna’s favor on its counterclaim, finding that “publication” simply means the dissemination of information and that the sharing of biometric identifiers constitutes a publication within the purview of the policies. The trial court also found that the exclusion for violation of statutes does not apply because the exclusion only applies to statutes that regulate methods of sending information and not the collection, retention, disclosure, and destruction of biometric identifiers and information. The First District Appellate Court affirmed. The Illinois Supreme Court then allowed West Bend’s petition for leave to appeal and affirmed the entry of summary judgment for Krishna.

The West Bend policies defined “personal injury” as an injury “other than a bodily injury” that arises out of an “oral or written publication of material that violates a person’s right of privacy.” The Supreme Court found the complaint alleged a “personal injury,” other than a “bodily injury” in that it alleged emotional upset, mental anguish, and mental injury when Krishna disclosed biometric identifiers and biometric information in violation of the right to privacy under BIPA.

The Court then looked to whether Krishna’s sharing of biometric identifiers and biometric information with the out-of-state third-party vendor was a “publication” that violated the customers’ right to privacy. The West Bend policies did not define “publication.” The Supreme Court, after considering dictionaries, treatises, and the Restatement, concluded that the term “publication” has at least two definitions and means both the communication of information to a single party and the communication of information to the public at large. When a term has multiple reasonable definitions or is subject to more than one reasonable interpretation within the context in which it appears, it is ambiguous. The Court, therefore, strictly construed the term against West Bend, as the insurer who drafted the policies. Accordingly, the Court adopted the construction used by Krishna as the insured and construed the terms publication to include a communication with a single party, like the out-of-state vendor.

The West Bend policies also failed to define the term “privacy.” BIPA codifies (1) an individual’s right to privacy in their biometric identifiers (such as fingerprints, retina or iris scans, voiceprints, or scans of hand or face geometry), and (2) an individual’s right to privacy in their biometric information. The Supreme Court found that BIPA protects a secrecy interest – the right of an individual to keep his or her personal identifying information like fingerprints secret. Disclosing a person’s biometric identifiers or information without their consent or knowledge, therefore, necessarily violates that person’s right to privacy in biometric information. Accordingly, the allegation that Krisha shared biometric identifiers and information with the third-party vendor alleged a potential violation of the right to privacy within the purview of West Bend’s policies.

Having made all these findings, the Court concluded that West Bend had a duty to defend. This did not, however, end the Court’s inquiry in that West Bend asserted the policies’ “violation of statutes” exclusion barred coverage because the exclusion applies to statutes that prohibit the communicating of information and BIPA limits the communication of information. The exclusion, however, specifically listed certain statutes to which the West Bend policies do not apply – the TCPA (which regulates the use of certain methods of communication), CAN-SPAM (which regulates electronic mail) and statutes “other than” the TCPA or CAN-SPAM that prohibit or limit the communication of information. The Court construed the violation of statues exclusion to apply only to statutes like the TCPA and the CAN-SPAM act, i.e., those which regulate methods of communication. BIPA, however, does not regulate methods of communication but rather the collection, use, safeguarding, handling, storage, retention, and destruction of information, which is fundamentally different from the two statutes mentioned in the policies’ exclusion. The exclusion, therefore, is inapplicable.

Medical Negligence

In Steed v. Rezin Orthopedics and Sports Medicine, 2021 IL 125150, plaintiff Glenn Steed suffered a partial tear of his Achilles tendon. He sought treatment from Dr. Stephen Treacy at Rezin Orthopedics. Glenn was 42 years old and borderline obese. Dr. Treacy’s treatment plan included placing Glenn’s lower right leg in a plantar flexion position, set in a plaster cast for six weeks. Dr. Treacy memorialized his recommendation for Glenn to return for a follow-up appointment in two weeks in an invoice and directed the receptionist to schedule a two-week follow-up appointment. The receptionist scheduled Glenn’s casting appointment for at another office on that same day, but did not schedule a two-week follow-up appointment as Dr. Treacy had directed. After Glenn’s leg was casted, another receptionist scheduled Glenn’s follow-up appointment for a date more than three weeks after his initial appointment. About 6 days before that three-week appointment, Glenn experienced discomfort and achiness in his leg and one day experienced pain in his thigh. One day after experiencing thigh pain and 4 days before that three-week follow-up appointment, Glenn experienced a deep vein thrombosis and died of a pulmonary embolism.

Glenn’s wife, Susan Steed, filed suit against defendants Rezin Orthopedics and Sports Medicine, S.C. and Stephen H. Treacy, M.D., alleging medical negligence for failing to prevent a deep vein thrombosis and resulting pulmonary embolism that caused Glenn's death. The negligence claim brought against Rezin Orthopedics centered on its failure to timely schedule a follow-up appointment within two weeks of the casting of the decedent’s leg pursuant to the physician’s order. The plaintiff claimed that, as a direct and proximate result of that failure, the deep vein thrombosis and resulting pulmonary embolism were not discovered, diagnosed, and/or treated, resulting in the decedent’s death. Plaintiff’s expert testified that the risk of developing a deep vein thrombosis is low, that a blood clot in the leg is not life threatening, and that had the decedent been examined and diagnosed within two weeks as ordered, he likely would have survived.

Rezin Orthopedics presented expert testimony that whether the decedent’s follow-up appointment was scheduled within two weeks or three weeks was inconsequential. It also presented expert testimony that the decedent was not high risk for the development of a DVT; that the incidence of DVT formation following an Achilles tendon rupture is very low, less than 3%, probably less than 1%; and that virtually none of those incidents result in a fatal pulmonary embolism.

The case was tried and the jury returned a defense verdict. Plaintiff chose to appeal only the verdict in favor of Rezin Orthopedics. The appellate court reversed with directions to enter judgment notwithstanding the verdict in favor of the estate, but the Illinois Supreme Court reinstated the verdict. In an opinion written by Justice Overstreet, the Court reiterated the Pedrick standard, which provides that judgment notwithstanding the verdict should be granted only when “all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors [a] movant that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967). The court found that the evidence in this case supported a conclusion that Rezin Orthopedics’ failures did not proximately cause Glenn’s death. Accordingly, Glenn’s death was not a reasonably foreseeable result of Rezin Orthopedics’ failure to schedule his follow-up appointment within two weeks of his initial appointment and a judgement notwithstanding the verdict was improper.

Disclosure of Protected Health Information

In Haage v. Zavala, 2021 IL 125918, the Illinois Supreme Court decided liability insurers are prohibited from using or disclosing protected health information (PHI) for any purpose other than the litigation at issue and are required to return or destroy the PHI at the conclusion of the litigation.

In each of two automobile personal injury actions, plaintiffs moved for entry of a qualified protective order (QPO) pursuant to the Health Insurance Portability and Accountability Act (HIPAA), and its implementing regulations (45 C.F.R. 160, 164) (Privacy Rule). Plaintiffs’ proposed QPOs ordered: 1) that the PHI may not be disclosed for any reason without the party’s prior written consent or by way of court order specifying the parameters of the disclosure; and 2) that the PHI be destroyed or returned within 60 days after the conclusion of the litigation. State Farm, the liability insurer for the named defendants in each case, intervened in each lawsuit and sought entry of its own protective order, which expressly allowed insurance companies to use, disclose, and maintain PHI for purposes beyond the litigation and expressly exempted insurers from the “return or destroy” requirement.

In both cases the circuit court granted the plaintiffs’ motions and entered the plaintiffs’ proposed QPOs. The Cook County standard protective order, however, permits insurers to disclose, maintain, and use PHI for purposes beyond litigation and further exempts insurers having to return or destroy the PHI at the conclusion of the case. For these two reasons, the trial court found that the Cook County standard protective order violated HIPAA. The appellate court and Illinois Supreme Court affirmed.

The Illinois Supreme held that the Privacy Rule applies to State Farm and any other insurer – the reason being that an insurer, while not the disclosing party, is the party seeking Plaintiffs’ PHI and can only do so by complying with a QPO containing the “use and disclosure” prohibition and “return or destroy” requirement. As a result, the Court held that the Cook County standard protective order conflicted with HIPAA and was preempted by the Privacy Rule. The Court similarly rejected State Farm’s arguments that Illinois insurance law mandates the use, disclosure, and retention of PHI. Instead, the Court noted that in order to comply with state law, all State Farm would have to do is maintain a copy of the QPO in the file, which would explain why the documents (medical records and bills) were no longer in the file – because it is not permitted to be kept following the close of litigation.

Illinois School Code

In Board of Education of the City of Chicago v. Moore, 2021 IL 125785, an action arising from disciplinary proceedings to terminate the employment of a tenured Chicago school teacher, the Supreme Court addressed whether the School Code authorized the Board of Education of the City of Chicago to opt for suspension rather than either dismissal or reinstatement. In a unanimous decision, the court interpreted the applicable statutory provisions in the School Code to provide the board with the implied power and authority to issue alternative sanctions when a teacher’s conduct is determined to be negligent but remediable.

The CEO of the Chicago Public Schools approved dismissal charges against the teacher, Daphne Moore, following an incident in which she allegedly did not respond appropriately to a student’s overdose on medication in the classroom. Moore was suspended without pay pending the outcome of a dismissal hearing. Finding that Moore had alerted the administration of the incident and that, contrary to the charges, she did not lie during the investigation, a hearing officer concluded that the board did not establish cause for the teacher’s dismissal. The board partially rejected the hearing officer’s findings; it found that Moore should have taken additional steps to meet the standard of satisfactory conduct. In the board’s view, the circumstances called for a suspension and a reduction in the back pay Moore would receive, but not dismissal.

Moore challenged the authority of the board to impose discipline short of dismissal where the board commenced termination proceedings and contended that the proceedings could end only in dismissal or reinstatement. Administrative review led to an appellate decision reversing the board’s decision. The appellate court concluded that no provision in the School Code empowered the board, after exercising its statutory power to seek termination, to act other than to dismiss or to reinstate Moore with full back pay.

The Supreme Court reached the opposite conclusion and found that the School Code, 105 ILCS 5/34-85, provided the board with the implied authority to suspend tenured teachers with less than full back pay at the conclusion of a disciplinary action seeking dismissal. The court rejected the notion that the legislature required a second, separate action. The court found no conflict in two other sections of the School Code addressing different sanctions—dismissals and suspensions. A harmonious reading of the cited sections of the statute, rather than a reading of portions of the Code in isolation, supported the board’s authority to manage its school system by protecting both the safety of students and the rights of tenured teachers. The Supreme Court also found satisfactory the board’s articulation of its findings and no statutory prohibition of the board’s reduction of back pay.        

Employment Law

Western Illinois University v. Illinois Educational Labor Relations Board, 2021 IL 126082, involved a 2017 arbitrator finding that Western Illinois University violated its collective bargaining agreement with respect to layoffs. In 2018, the arbitrator entered a supplemental award, finding that the University failed to comply with the earlier award. The Illinois Educational Labor Relations Board then found that the University committed an unfair labor practice in violation of the Illinois Educational Labor Relations Act, 115 ILCS 5/14(a)(1), (8), by failing to comply with the two arbitration awards. The Act requires that public education employers arbitrate disputes arising under a collective bargaining agreement. Refusal to comply with the provisions of a binding arbitration award is an “unfair labor practice” under the Act. The appellate court vacated the Board’s decision.

At issue was whether the arbitrator was within his rights to issue a supplemental award in March 2018, after he found the university failed to implement the terms of his earlier award in July 2017. The arbitrator was weighing the University Professionals of Illinois Local 4100's grievances challenging the university's layoffs of ten bargaining unit members.

During the appellate court oral arguments, it was argued that the arbitrator did not exceed either his statutory or his contractual authority when he retained jurisdiction over the implementation of the July 2017 award. The board reasoned that the statute didn't deprive arbitrators of their “widely accepted” authority to retain jurisdiction over an award's implementation, and it properly deferred to his interpretation of the collective bargaining agreement. The board further contended that both the arbitrator and the board each properly performed their statutory functions here.

The University argued that it is “statutorily predetermined” that a party's refusal to comply with an award is an unfair labor practice within the board's jurisdiction. It further argued that an arbitrator can retain jurisdiction in some regard and weigh in if there is an error in the award or if clarification is needed, but the responsibility belongs to the Labor Board with respect to who decides whether an employer has complied with a binding arbitration award.

The Illinois Supreme Court agreed with the University. An arbitrator in the public educational labor relations context exceeds his authority by reviewing a party’s compliance with his own award in contravention of the Act, which vests exclusive primary jurisdiction over arbitration awards with the Board. The Board may not limit the evidence it will consider in an unfair labor practice proceeding under the Act to the evidence before the arbitrator. Under the Act, arbitrators retain limited jurisdiction of the awards for the sole purpose of resolving remedial issues that may arise from the award itself.

COVID-19 Direct and Indirect Exposure

Direct Exposure Claims

Over the last year, Illinois courts also faced questions over the extent to which Governor Pritzker’s Executive Order No. 17 shielded nursing homes from liability against COVID-19 litigation. According to Section 3 of that Order, during the pendency of Governor Pritzker’s disaster proclamation related to COVID-19, health care facilities shall be immune from civil liability for any injury or death alleged to have been caused by any act or omission by the health care facility, if the injury or death occurred at a time when the health care facility was engaged in the course of rendering assistance to the State by providing health care services in responsive to the COVID-19 outbreak, unless the injury or death was caused by gross negligence or willful misconduct. On April 1, 2021, the District Court for the Northern District of Illinois declined to dismiss a lawsuit based upon Executive Order No. 17 immunity. 

In Claybon v. SSC Westchester Operating Co., 20-cv-04507, 2021 U.S. Dist. LEXIS 64067 (N.D. Ill. Apr. 1, 2021), the plaintiff alleged that while the decedent resided at the defendant’s nursing home, members of the nursing staff began to show symptoms of COVID-19, one staff member tested positive, and one staff member was hospitalized for the virus. According to the plaintiff, despite these developments, the defendant instructed its employees to report to work. Plaintiff’s decedent died after developing a dry cough, fever, and shortness of breath. Plaintiff alleged defendant was liable for decedent’s death because it required symptomatic employees to report to work, failed to provide adequate PPE, and failed to implement pandemic-related guidelines issued by the Center for Medicare & Medicaid Services. 

The defendant nursing home moved to dismiss the complaint, asserting immunity under Section 3 of Executive Order No. 17. In rejecting defendant’s argument, the court explained that the “problem” with the defendant’s argument was that whether it was assisting the State in response to the pandemic when it committed the allegedly tortious conduct was a question of fact that could not be resolved at the pleadings stage. Moreover, the plaintiff died on March 30, 2020, but the Executive Order upon which the defendant relied was not filed until April 1, 2020, and it was unclear whether the Order applied retroactively.

In a related case, the Northern District of Illinois again declined to dismiss a complaint against the same nursing home defendant based upon immunity under Executive Order No. 17. In Brady v. SSC Westchester Operating Co., 20CV4505, 2021 U.S. Dist. LEXIS 68920 (N.D. Ill. Apr. 9, 2021), the court explained that Section 3 immunity applies when a healthcare facility is engaged in the course of rendering assistance to the State; thus, immunity applies where a facility spreads COVID-19 while affirmatively treating or trying to prevent its spread, but does not apply where a facility allows the virus to spread through inaction. The court determined that it was unclear from the face of the plaintiffs’ complaint, where plaintiff alleged that Westchester failed to protect its residents from infected nursing staff spreading the virus, whether plaintiffs’ claim triggered the immunity provision.

The Northern District also found that the plaintiffs’ claim survived because they sufficiently alleged a willful and wanton misconduct claim, which are specifically excluded from the immunity provisions of the Executive Order. The court found the plaintiffs sufficiently alleged that the defendant knew about the risks of exposing its residents to infected nursing staff by mid-March 2020 and, despite that knowledge, required employees who had tested positive for, or were displaying symptoms of, COVID-19 to report to work. The court rejected Westchester’s argument that it could not have known the symptoms of COVID-19 so early in the pandemic. According to the court, by March 2020, at least two of the defendant’s employees had tested positive for the virus, so it had objective knowledge that members of its staff were carrying the virus, and official guidance issued by mid-March 2020 listed symptoms of a respiratory infection (e.g., fever, cough, shortness of breath, or sore throat) as signs of the virus, all symptoms reported by staff members who were nevertheless required to report to work.

The District Court for the Southern District of Illinois also allowed a similar COVID-related lawsuit to proceed beyond an initial review. In Brown v. Watson, 21-cv-00138-JPG, 2021 U.S. Dist. LEXIS 65560 (S.D. Ill. Apr. 5, 2021), the plaintiff claimed he developed COVID-19 due to conditions at the jail, including being forced to sleep in proximity to COVID-positive inmates. According to the complaint, jail staff were provided with masks and gloves to prevent infection, but inmates were not. Additionally, incoming inmates were not tested for COVID-19, separated from one another, or allowed to use protective gear. The plaintiff alleged that a COVID-19 outbreak occurred due to conditions at the jail, resulting in 300 inmates testing positive for the virus. Finally, the plaintiff claimed that he was denied adequate testing and medical care for COVID-19. The plaintiff asserted claims against the St. Clair County Sheriff and the jail’s doctor.

Under federal law, the court was required to conduct what is known as a preliminary review to filter out non-meritorious claims. See, 28 U.S.C.§ 1915A. The court determined that the plaintiff satisfied the conditions necessary to survive a preliminary review by setting forth allegations suggesting that each defendant acted objectively unreasonable or deliberately indifferent to the conditions of his confinement and/or medical condition. 

In another Northern District of Illinois case, several McDonald’s employees and their relatives filed suit alleging negligence and public nuisance arising from its decision to remain open during the pandemic without implementing certain health and safety standards. The plaintiffs sought injunctive relief in the lawsuit, including that McDonald’s provide its employees with certain protective equipment and implement various workplace safety measures. McDonald’s subsequently filed suit against its insurer Austin Mutual, arguing that it owed a duty to defend McDonald’s in the underlying lawsuit. On February 22, 2021, the District Court for the Northern District of Illinois denied Austin Mutual’s motion to dismiss, finding that the complaint in the underlying lawsuit potentially gave rise to coverage. McDonald’s Corp. v. Austin Mut. Ins. Co., No. 20C5057 (N.D. Ill. Feb. 22, 2021). The primary issue in that case was whether the underlying lawsuit sought “damages because of bodily injury.” Austin Mutual argued that the underlying case did not trigger coverage because the plaintiffs sought injunctive, not monetary relief. In response, McDonald’s argued that if it was forced to expend money to comply with injunctive relief granted in the underlying case, such would constitute “damages” that would only arise because the plaintiffs in the underlying case contracted COVID-19, a “bodily injury.” Noting that the case was a “very close call,” the District Court concluded that if the plaintiffs in the underlying lawsuit succeeded in obtaining injunctive relief, it would only be because they contracted a bodily injury. The court found that an alternative avenue for coverage existed; namely, that exposure to COVID-19 is itself a bodily injury that McDonald’s would be forced to expend “damages” to remedy.

Secondary Exposure Claims

In Erika Iniguez v. Aurora Packing Co., 20-L-372, the Circuit Court of Kane County dismissed the plaintiff’s complaint with prejudice. In that case, the plaintiff alleged that the decedent’s husband worked for the defendant, contracted COVID-19 at work, and passed the disease on to the decedent, resulting in her death. The court found that the defendant did not owe a duty of care to the decedent. In reaching that conclusion, the court explained that the decedent and the defendant did not stand in a “special relationship” that would give rise to a duty of care. According to the court, the decedent’s relationship to the defendant was no different from the relationship of any other citizen of the world who might encounter an employee of the defendant who had contracted COVID-19 while at work.

The court also found it important that the Illinois legislature and Illinois Appellate Court have refused to extend the duty owed by employers and physicians to third parties that are not part of the employer-employee and physician-patient relationships. As to employers, the court explained that in its most basic sense, the plaintiff’s claim was based on the defendant’s alleged failure to protect its employees from contracting COVID-19 at work. According to the court, Illinois policy regarding employee exposure to dangerous workplace conditions is reflected by the Illinois Workers’ Compensation Act, which provides that the statutory remedies afforded by the Act serve as an employee’s exclusive remedy for compensable injuries. Thus, the court questioned whether Illinois policy would be served by imposing upon employers a common law duty owed to an unlimited pool of potential claimants, “mediated only by the travels and uncontrolled contacts of employees outside the workplace[.]” As to physicians, the court relied upon prior court opinions in which plaintiffs filed suit against physicians, alleging that they developed communicable diseases due to the physicians’ failure to diagnose third-party patients. In those cases, the Illinois appellate court refused to extend the physicians’ duty beyond their patients. See Britton v. Soltes, 205 Ill. App. 3d 943 (1st Dist. 1990); Heigert v. Riedel, 206 Ill. App. 3d 556 (5th Dist. 1990).

Finally, the court distinguished the plaintiff’s claim from “take home asbestos” cases (i.e., where plaintiffs allege that they developed cancer due to asbestos exposure they experienced through the work clothes of a spouse or relative). The court reasoned that in those cases, the alleged injuries resulted from contact with a byproduct of the defendant’s very business, the use or manufacturing of asbestos or asbestos-containing products, whereas the plaintiff in this case based her claim on the relationship between the defendant and its employee. 

By contrast, the Circuit Court of Will County allowed a plaintiff’s secondary exposure case to proceed beyond the pleadings stage. In Miriam Reynoso v. Byrne Schaefer Electrical, No. 20-L-620, the plaintiff alleged that she developed COVID-19 from her husband after he contracted the virus through his employment with the defendant. In ruling on the defendant’s motion to dismiss, the court denied the motion as to Count I of the plaintiff’s complaint, while granting the motion as to Count II. The court, however, granted the plaintiff leave to amend Count II of her complaint.

We will continue to keep our eyes on The Land of Lincoln in 2022.

* Danielle Allo, a law clerk in the firm's St. Louis office, assisted in the research and drafting of this post. 

2021: A Whirlwind Year for Labor & Employment Law

January 19, 2022 | Thomas Rice, David Eisenberg, Nicholas Ruble, Madeline Nagel and Elizabeth Miller

As in 2020, a major theme of the past year has been the Covid-19 pandemic, and the response of employers and governments, as the economy began to re-open and vaccines became widely available. But Covid-19 litigation was not the only activity in the labor and employment law arena in 2021.


The saga of the OSHA “vaccine-or-testing” Emergency Temporary Standard (ETS) has been extensively documented on this Blog. However, as the new year dawns, the story is merely entering a new chapter.               

In the first week of 2022, the Supreme Court held oral argument on the two Covid-19 vaccine mandates and issued two unsurprising opinions on January 13th. First, the Court overturned the decision of the Sixth Circuit and reinstated the Fifth Circuit’s stay of the OSHA ETS, regarding vaccine mandates for private employers with 100 or more employees. Although the Court did not strike down the ETS, as a practical matter, the ETS in its current form is dead. OSHA has stated that it will not enforce the ETS as currently written (although OSHA has indicated that it will still hold employers to the OSH Act’s “general duty” clause in ensuring workplace safety). In its opinion, the Court stated forcefully that if it reviewed the ETS in the merits, the ETS would be struck down. Importantly, the concurring opinion written by Justice Gorsuch (and joined by Justices Thomas and Alito) relied upon the “major questions” doctrine. Justice Gorsuch described the doctrine as “closely related to the nondelegation doctrine.” The Biden administration is certainly not eager to see a robust application of the doctrine over the next three years.

Although the Court held that the petitioners were likely to succeed in overturning the ETS on the merits, a more tailored ETS, focusing on particular industries could pass muster. For example, work environments where many people are compressed in a small area may pose the necessary “grave danger” justifying OSHA intervention. You may read the full opinion here: National Federation of Independent Business v. OSHA

In the companion case concerning vaccine mandates for healthcare workers, the Court held that in certain environments, vaccine mandates are authorized. In Biden v. Missouri , Missouri, Kansas, and several other states challenged a Center for Medicare and Medicaid Services (CMS) rule requiring all facilities receiving Medicare or Medicaid funds to require vaccination of all employees. The Court wrote, in its per curiam opinion, that the Secretary of Health and Human Services was enabled by statute to place detailed conditions with which facilities must comply to receive Medicare or Medicaid funds. Those conditions have also included a requirement that healthcare providers maintain and enforce an “infection prevention and control program designed … to help prevent the development and transmission of communicable diseases and infections.”

Finding that the Secretary could enact the final interim rule, the Court vacated the injunction issued by the Eastern District of Missouri. For healthcare providers, the window for compliance with the CMS rule is narrow, and immediate action is required. Here are the major features of the CMS rule:

  • For the 25 petitioner states (except Texas), which include Missouri and Kansas, healthcare workers must receive their first vaccine dose by February 14, 2022, and be fully vaccinated by March 15.
  • For all other states, covered healthcare workers must receive their first vaccine dose by January 27, 2022, and be fully vaccinated by February 22.
  • Healthcare facilities are required to keep records of employees’ vaccination status.
  • Employers must develop policies to include medical and religious exemptions or accommodations.
  • The CMS rule does not apply to healthcare workers who provide exclusively telehealth services.
  • Employers face serious consequences for noncompliance, including hefty fines and revocation of eligibility to receive Medicare or Medicaid funds.

While litigation surrounding CMS’s authority to issue the vaccine mandate appears to be resolved for all practical purposes, there will be no shortage of litigation over its implementation. Baker Sterchi attorneys anticipate that the litigation areas to watch over the coming year include: denial of religious or medical accommodations (including requests which employers deem to be “insincere”) and federalism concerns in states enacting laws purporting to contravene the CMS Rule.


Missouri, et al. v. Biden, 4:21-cv-01300 (E.D. Mo. 2021)

On October 29, 2021, Missouri and nine other states filed suit against President Biden, the United States, and 13 other defendants seeking to stop Executive Order 14042, 86 Fed. Reg. 50,985 (Sept. 14, 2021) which required that all employees of federal contractors be vaccinated. The contractor mandate includes all full-time and part-time employees of any employer who has a contract with the federal government, including those employees who are not themselves working on or in connection with a federal contract. Unlike the OSHA ETS, EO 14042 applies to all employers with federal contracts, regardless of size. Employers must ensure that their employees are fully vaccinated by no later than December 8, 2021.

The States assert that they and their state agencies have contracts with the federal government and therefore would be required to ensure that their employees are vaccinated. Their lawsuit alleges that the mandate violates the federal Procurement Act, Procurement Policy Act, Administrative Procedures Act, and violates the States’ police powers, as well as the Tenth Amendment’s anti-commandeering doctrine, separation of powers, and various other constitutional provisions.         

On December 13, 2021, the Eighth Circuit Court of Appeals denied the States’ motion to stay enforcement of the Executive Order pending appeal. Like the litigation surrounding the OSHA ETS, this case seems destined to be decided by the Supreme Court.


The Supreme Court Will Hear Eighth Circuit Case Involving Employment Arbitration

The Supreme Court granted certiorari in an Eighth Circuit case involving employment arbitration. In Morgan v. Sundance, Inc., (read the Opinion here) the District Court held that the employer had waived the right to compel arbitration where the case had been in litigation for more than eight months. A divided Eighth Circuit panel reversed the decision of the District Court, holding that the defendant had not waived its right to compel arbitration. According to the Eighth Circuit, the defendant had not slept on its rights, because much of the eight months in court had been devoted to trying to stay the case on procedural grounds, rather than litigating the merits. Therefore, the plaintiff was not prejudiced by the motion to compel arbitration. One circuit judge dissented, questioning why the defendant would wait eight months to even mention arbitration.

According to the Morgan majority, the nine federal circuit courts that have adopted the “prejudice” standard for finding waiver of arbitration rights, contradict the 2011 Supreme Court decision in AT&T Mobility LLC v. Concepcion which requires lower courts to evaluate arbitration agreements “on an equal footing with other contracts.” Adding the “prejudice” requirement to waiver of arbitration rights is an additional step that is not used in other contract cases. Therefore, the Supreme Court should weigh in on the appropriate standard in order to ensure consistency across all federal circuits.

The Supreme Court is likely to decide the case in fall 2022.

Eighth Circuit Clarifies that Attendance is Generally an Essential Job Function for ADA Purposes

Throughout its history interpreting the ADA, the EEOC has generally been reluctant to state unequivocally that regular attendance is an essential job function. Rather, in recent years, the EEOC has suggested that an extended leave of absence can constitute a reasonable accommodation in many instances.

Bucking that trend, the Eighth Circuit held in May that regular attendance is generally an essential job function for many jobs. In Evans v. Cooperative Response Center, Inc., No. 19-2483 (8th Cir. May 4, 2021), the plaintiff sued for violations of the ADA and FMLA, and retaliation. Evans suffered from reactive arthritis. Due to complications from her medical condition, Evans exhausted her FMLA leave, and when she could not report to work, she was assessed points under a “no fault” attendance policy and terminated. The Court evaluated the requirements of Evans’ position as well as the employer’s testimony, job descriptions, and policies regarding attendance. Because she was the only office assistant for the company, and the employer was not required to reassign existing workers to fill her job duties, attendance was essential. Under these circumstances, the Court found that intermittent FMLA leave and the ADA did not excuse her from the essential job requirement of regular and reliable attendance.

As always, ADA accommodation claims must be evaluated on a case-by-case basis. With the increasing practicability of remote work, not all jobs require in-person attendance, and for many, remote work may be a reasonable accommodation.             

Post #MeToo, a Hostile Work Environment Must Still Be “Severe and Pervasive”

In Lopez v. Whirlpool Corp., No. 19-2357 (8th Cir. Mar. 4, 2021), the Eighth Circuit affirmed the grant of summary judgment to an employer on claims of hostile work environment and retaliation. The district court found that the alleged conduct of a co-worker which included touching the employee on her back, invading her personal space, and blowing on her finger while calling her “baby” was not severe or pervasive enough to rise to a hostile work environment. The court also affirmed summary judgment on the retaliation claim, finding although the employee complained about feeling unqualified for an assigned task, she did not tie that complaint to sex discrimination or harassment.

Plaintiff Lopez worked at a Whirlpool manufacturing plant in Amana, Iowa, where she made refrigerators. Lopez claimed her co-worker Brian Penning, made multiple unwanted advances, touched her, and stared at her for long periods of time. To raise a triable fact on whether the complained of harassment affected a term, condition, or privilege of employment, the claim triggering conduct must be severe or pervasive enough to create an objectively hostile or abusive work environment. The court found that although her co-worker should be embarrassed and ashamed of his behavior towards Lopez, it did not meet the exacting standard that must be applied when determining an employer’s liability for a hostile work environment. The court further concluded that Lopez failed to provide evidence that Whirlpool knew or should have known about Penning’s conduct. Lopez admitted to not informing superiors of the unwanted touching, and she resigned four days after filing a formal complaint, which did not give Whirlpool reasonable time to address the complaint.


Eastern District Finds McDonald’s and Franchisee were Joint Employers

In Johnson v. McDonald Corp., No. 4:20-cv-1867-RWS (E.D. Mo. June 3, 2021), the plaintiff worked at a McDonalds franchise located in St. Louis. Plaintiff claimed she was exposed to sexual harassment and assault during the few weeks she worked at the McDonalds. Plaintiff brought a Title VII suit against not only the franchisee, Tenaj, LLC, but also McDonald’s Corp. and McDonald’s USA, LLC, which both moved to dismiss arguing Plaintiff was not their “employee” under Title VII.

Applying the pleading standard required by Fed. R. Civ. P. 8, the Court determined that Plaintiff satisfied the standard when pleading that the Defendants were her employers under either a joint employer or agency theory. The Court reasoned that since the employee had only worked for the McDonald’s franchise for a short period of time, she may not have been aware of the entities that provided oversight of the franchise, or the individual role each entity played within the corporate structure. The court readily distinguished these facts from cases cited by Defendants, finding Plaintiff’s allegations of Defendants’ involvement in the day-to-day operations of the franchise was sufficient to raise a reasonable expectation that discovery will lead to relevant evidence of the claim.

The parties disagreed on which joint employer standard the Court should apply. The Defendants urged the Court to adopt the Baker test (Baker v. Stuart Broadcasting Co., 560 F.2d 389, 392 (8th Cir. 1977), which requires courts to consider: (1) interrelation of operations (2) common management (3) centralized control of labor relationship and (4) common ownership or financial control. Again, the Court determined that Plaintiff had pleaded sufficient facts to plausibly allege that McDonald’s USA and/or McDonald’s Corp. was a joint employer with the franchisee. Under the Twombley standard, the Plaintiff raises a reasonable expectation that one or more of these factors would become apparent during the course of discovery.

Although this decision is not binding outside of the Eastern District of Missouri, it is a sobering result that may attract potential plaintiffs to the district and require national franchisors to defend local employment disputes beyond the motion to dismiss stage.


Arbitration Clauses with “Unfettered” Modification Rights Are Unenforceable

In July, the Western District Court of Appeals affirmed that a delegation provision in an arbitration agreement must be supported by consideration. An “unfettered” right vested in management to modify its terms is an illusory promise, which is not adequate consideration to support a contract.

In Johnson v. Menard, Inc., WD 84138 (Mo. Ct. App. W.D. July 27, 2021), the court of appeals held that reference to AAA rules is “clear and unmistakable” evidence that the parties intended threshold questions of arbitrability to be determined by the arbitrator. However, whether an arbitration agreement is formed remains within the province of the courts. The question then was whether the delegation provision was supported by consideration. The Agreement stated “I UNDERSTAND THAT THIS AGREEMENT CANNOT BE MODIFIED EXCEPT BY THE PRESIDENT OF MENARD, INC.” The court held that vesting unilateral authority to modify the agreement without limit or notice meant it was “unfettered,” and made Menard’s promise illusory.

Because the delegation provision was not enforceable, the Court had authority to determine enforceability of the entire arbitration agreement. The Court held that unfettered modification provision meant entire agreement lacked consideration, and motion to compel arbitration was denied.

A Leave of Absence May be a Reasonable Accommodation under the MHRA

In Sherry v. City of Lee’s Summit, Missouri, WD 83635 (Mo. Ct. App. W.D. Mar. 9, 2021), following a trial for disability discrimination under the Missouri Human Rights Act, the City of Lee’s Summit moved for judgment notwithstanding the verdict. The City argued that Sherry did not prove he was disabled because the MHRA defines “disability” as “a physical or mental impairment which substantially limits one or more of a person's major life activities, being regarded as having such an impairment, or a record of having such an impairment, which with or without reasonable accommodation does not interfere with performing the job.” According to the City, since Sherry could not report to work for an extended period of time, his disability interfered with performing the essential functions of his job.

The City relied on Medley v. Valentine Radford Communications, Inc., 173 S.W.3d 315 (Mo. App. W.D. 2005) for the proposition that “an employee who cannot regularly come to work is not able to satisfy any functions of the job, let alone the essential ones.” However, the Court of Appeals held that Medley does not hold that a leave of absence is an unreasonable accommodation as a matter of law. In a footnote, the Court holds open the possibility that in some cases, “a factfinder may determine that a requested leave started out as a reasonable accommodation but becomes unreasonable as time wears on or as circumstances change.” But ultimately whether an employee meets the definition of disabled under the MHRA is a question of fact for the jury.

This case illustrates some of the difficulties employers may face in accommodating disabilities, particularly where an extended leave of absence may be a reasonable accommodation. Like the EEOC, the Western District is reluctant to state that regular attendance is always an essential job function. Disability accommodations must therefore be evaluated on a case-by-case basis.


District of Kansas Compels Arbitration where Employer’s Right to Modify is not “Unfettered”

A recent District of Kansas decision is worth revisiting, given how few arbitration cases are published in the District. In Braden v. Optum RX, Inc., the Court held that an arbitration provision which limited the employer’s right to modify terms was not one that granted “unfettered” discretion, and so it did not lack consideration. The provision at issue required the employer to provide at least 30 days’ notice to its employees of impending modifications, and only went into effect on January 1 of the following year. The employer’s promise to arbitrate was not “illusory.” More on this case can be found in a recent post on Baker Sterchi’s Kansas Employment Law Blog.


St. Louis “Ban the Box” Went into Effect on January 1, 2021

In 2020, the City of St. Louis enacted Ordinance No. 71074, a ban-the-box ordinance applicable to private employers with ten or more employees. The Ordinance went into effect on January 1, 2021. Under the ordinance, employers cannot inquire about an applicant’s criminal history until after the employer has interviewed the applicant and determined that the applicant is otherwise qualified for the position. Employers cannot base a hiring decision on the applicant’s criminal history unless the decision was based on all the information available, including the frequency, recency, and severity of the crime and the crime was reasonably related to or bears upon the duties and responsibilities of the position. However, the Ordinance is inapplicable where local, state, or federal law or regulation excludes applicants with certain criminal convictions. A similar ordinance was enacted in Kansas City in February 2018.

U.S. Department of Labor Issues Regulations to Benefit Tipped Employees

A new DOL regulation will likely mean that tipped employees will see larger paychecks in 2022. The Fair Labor Standards Act contains an exception to the standard minimum wage for tipped employees. Employers may take a “tip credit” and pay tipped employees as little as $2.13 per hour, as long as they earn at least the standard minimum wage of $7.25 (with tips included). In a final rule published by the DOL on October 29, 2021, the DOL revived the so-called “80/20 Rule” for tipped employees. The Trump administration had rescinded the rule in favor of a “reasonable time” standard.

Under the 80/20 Rule, tipped employees’ duties are divided into three categories: 1) tip-generating duties (e.g., taking orders, talking to customers, serving drinks, delivering food to tables); 2) directly-supporting duties (e.g., rolling silverware, clearing tables); and 3) non-tipped duties (e.g., cleaning bathrooms, washing dishes, taking out trash). Employers may only claim a tip credit for a tipped employee’s work where at least 80 percent of the employee’s time that week is spent on tip-generating duties and no more than 20 percent is spent on directly-supporting duties. If an employee’s time spent on directly-supporting duties exceeds 20 percent of the work week, all time above 20 percent must be paid at the minimum wage rate. Additionally, if directly-supporting work is performed for a continuous period of 30 minutes or more, the employer cannot claim the tip credit. Under the new rule, any time spent on non-tipped duties must be paid at the minimum wage rate.  

For example, assume a bartender works 40 hours in a week. If no more than 8 hours is spent on directly-supporting work, then the employer may take a tip credit for all hours worked. However, if she spends 12 hours on directly supporting work, then the minimum wage must be paid for the 4 hours in excess of 20%.

The Rule also prohibits employers from keeping any portion workers’ tips, regardless of whether the employer takes a tip credit. Employers face a fine of up to $1,100 for each instance the DOL finds that the employer retained employee tips. The Rule goes into effect on December 31, 2021, and litigation of the Rule appears likely.


As in 2020, the Illinois legislature was once again busy in the Employment Law arena. The Illinois Freedom to Work Act, (820 ILCS § 90). which limits employers’ use of noncompete and non-solicitation restrictive covenants for employees who are not highly compensated, takes effect on January 1, 2022. Specifically, the law:

  • Prohibits employers from entering into noncompete agreements with employees earning $75,000 or less, and from entering into non-solicitation agreements with employees earning $45,000.
  • Contains an escalator clause which provides that for noncompete agreements, the salary threshold amount will increase every five years by $5,000 until January 1, 2037, when the amount will equal $90,000. For non-solicitation agreements, the threshold amount will increase every five years by $2,500 until January 1, 2037, when the amount will equal $52,500.
  • Prohibits employers from entering into noncompete or non-solicitation agreements with employees who were terminated, furloughed, or laid off due to the Covid-19 pandemic, unless compensation is provided, in an amount equaling the employee’s base salary at the time of termination for the period of enforcement minus compensation earned from outside employment during that same period.

Illinois employers who utilize restrictive covenants in employment agreements should review those agreements, to ensure compliance with the new law.

Earlier in the year, the legislature amended the Illinois Human Rights Act to place new restrictions on employers’ ability to consider criminal conviction records when making employment decisions. The amendments allow employers to consider applicant and employee criminal conviction records in only two circumstances: (1) where a “substantial relationship exists between the conviction and the employment action being taken, and (2) where granting or continuing an individual’s employment would pose an unreasonable risk to safety or property of specific individuals, or to the public. Employers must consider the following factors in determining whether a conviction is disqualifying:

i.     The length of time since the conviction;

ii.    The number of convictions represented in the conviction record;

iii.   The severity of the conviction and its relationship to the safety of others;

iv.   The circumstances surrounding the conviction;

v.    The age of the employee at the time of conviction; and

vi.   Any evidence of rehabilitation.

Further, before an employer takes any adverse action based on a criminal conviction, it must engage in an interactive process with the applicant or employee, giving that individual notice of the potentially disqualifying conviction, providing a copy of any relevant criminal history report, and explaining the individual’s right to respond (within five days), including any challenge to the accuracy of the conviction record or evidence of mitigation. A final decision by the employer must be accompanied by a notice of the disqualifying conviction and reason for the decision, and notification of the person’s right to file a charge with the Illinois Department of Human Rights.

Note that these amendments do not alter and are in addition to the state’s Ban-the-Box law, which dictates when and how during the hiring process an employer my obtain criminal conviction information about an applicant.


2021 was a lively year for labor and employment law, taking center stage not only in the courts but also in the court of public opinion. In 2022, we can expect much of the same. Baker Sterchi attorneys will be following these developments with great attention and providing updates and analysis on this rapidly developing legal landscape.

In 2021, a Record Setting $1 Billion Dollar Verdict was Rendered Against a Trucking Company - Demonstrating that Nuclear Verdicts in Trucking Cases Continue to Rise

January 11, 2022 | James Jarrow and Joanna Orscheln

The trucking industry has experienced a continuous rise in “nuclear verdicts” since 2011. The American Transportation Research Institute (“ATRI”) defines a “nuclear verdict” as a verdict in excess of $10 million dollars.

In 2011, a $40 million dollar verdict was awarded to victims of a trucking accident in Georgia, where a semi-truck driver failed to stop, striking a passenger vehicle, killing two people and severely injuring a third. In 2012, a $281.6 million dollar verdict was initially handed down (reduced to $105.2 million), in a case where a drive shaft off a commercial truck went through the windshield of a passenger vehicle, killing the driver. The Court determined that the semi-truck driver was not negligent, but that the company was.

In 2014, a $90 million dollar verdict was awarded in Texas, where a semi-truck was driving under the speed limit in inclement weather conditions, and a passenger vehicle traveling in the opposite direction lost control and veered into the truck’s path. The trucking company denied all fault, arguing that the cause of the accident was the pickup truck that had lost control, nonetheless, the jury found the trucking company liable for the crash. The collision resulted in the death of a 7-year-old, and a paralyzed 12-year-old. In 2016, a semi-truck driver in Georgia fell asleep at the wheel, crossed over the centerline of a two-lane highway, causing a crash that killed five individuals including two young children, resulting in a $280 million verdict.

The 2021 Landmark $1 Billion Dollar Verdict

In 2021, a Florida jury awarded a landmark $1 billion dollar verdict in a wrongful death trucking case. The jury placed blame on two trucking companies, Kahkashan Transportation Inc. (“Kahkashan”) and AJD Business Services Inc. (“AJD”), for the death of the 18-year-old decedent, and awarded $100 million to the parents for the decedent’s pain and suffering, and $900 million in punitive damages for negligent hiring and retention of the AJD semi-truck driver.

The driver for AJD, was on his cell phone, driving over the legal limit of hours, and without a Commercial Driver’s License, when he caused an accident, flipping his semi-truck, and creating a massive back up on the interstate. An hour later a driver for Kahkashan was traveling the speed limit on cruise control, and collided into the line of stopped traffic killing the decedent. Further, his truck’s data recorder showed he did not attempt to break until one second before the impact.

The $100 million dollar verdict to the parents was split by the jury, 90% against Kahkashan and its driver, and 10% against AJD and its driver. The $900 million in punitive damages verdict was solely awarded against AJD. However, AJD is no longer in existence, and had not participated in the court proceedings for the previous 2 years. Additionally, AJD’s insurance was canceled in 2019.

Even if no money is collected from AJD, this case still has a great deal of impact on the trucking industry. It shows that juries believe these high awards are acceptable, and warranted in certain cases. Further, verdicts like this continue to tarnish the public image of trucking companies, and their safety procedures and policies. Nuclear verdicts like the ones mentioned above, have resulted in skyrocketing insurance premiums, which in some instances have put trucking companies out of business. Additionally, these nuclear verdicts motivate Plaintiff’s lawyers to take on trucking cases, and seek punitive damages against trucking companies.

What Factors Impact the Size of Jury Awarded Verdicts in Trucking Cases?

The ATRI analyzed data obtained from 600 cases to determine the variables that impacted verdicts in the trucking industry. See Dan Murray, “Understanding the Impact of Nuclear Verdicts on the Trucking Industry,” American Transportation Research Institute. Some of the variables include unfortunate outcomes that are outside of a trucking company’s control. For example, research showed that an increase in overall verdict amounts was witnessed in cases involving the death of a minor, spinal injuries, and roll-over accidents.

However, the research also shows that there are numerous factors which increase the value of verdicts that are within a trucking company’s control, either in the way company is run, or the manner in which the case is litigated.

Cases involving the following factors yielded verdicts in favor of the Plaintiff 100% of the time: a semi-truck driver being over hours of service or having logbook violations, lacking a clean driving history, driving under the influence of controlled substances, a semi-truck fleeing the scene of a crash, and/or an accident being caused by a driver’s health-related issues. In cases that involved cell phone use, only one case yielded a defense verdict, which was the result of Plaintiff being unable prove that the phone was actually in use at the time of the crash.

The ATRI’s research showed that successful implementation of post-crash and pre-trial tasks such as case evaluation, mediation, and pre-trial preparation played a critical role in successful litigation results.

During the stages of an accident investigation, and case evaluation, it is critical that attorneys and insurance professionals work together to determine the verifiable facts, and assess the potential problems in the case. A thorough examination must be conducted as it relates to factors that may have contributed to the incident.

Next, assessing the reasonableness of an early settlement, based on the facts known at the time, generally helps promote a more reasonable settlement. Finally, pre-trial preparation is paramount. Having an attorney who is experienced, and familiar with the trucking industry will ensure that the necessary actions are being taken to combat arguments Plaintiff attorneys will raise, especially reptilian theory arguments, which lead to nuclear verdicts in trucking cases.

Despite Nuclear Verdicts Being on the Rise, Great Outcomes in Trucking Cases are Obtainable

In 2021 Baker Sterchi member, James R. Jarrow, secured a defense verdict in a week-long wrongful death trucking case that was tried in Missouri state court. Plaintiff alleged that the driver could have avoided the interstate accident, which resulted in the death of her husband. After significant pre-trial motion practice, and multiple experts testifying on both sides, the Plaintiff asked the jury for $3 million dollars in damages. But the jury agreed with the defense’s position, and rendered a verdict in favor of the trucking company.

Additionally, Baker Sterchi member, Joseph Swift also received a favorable outcome in 2021 in a challenging jury tried trucking case where liability was admitted, and the case was tried solely on the extent of damages. This case was initially filed in Cook County, Illinois state court, but was successfully removed to the federal District Court for the Southern District of Illinois. The truck’s dash camera (capturing both inward and outward views) showed 9 seconds of driver inattention, and a violent crash. Plaintiff sought to recover over $1.65 million in general and special damages. However, the jury awarded $145,000 in overall damages for cervical and lumbar surgeries, a very favorable verdict given the circumstances of the case.


Despite the upward trend of nuclear verdicts in the trucking industry, 2021 has proven that when cases are properly investigated, prepared, and tried, trucking companies can still obtain favorable jury verdicts.


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