Category Archives: Missouri Legal News

Post Ferguson Fear of the Grand Jury: Fox 2 Questions Trial Attorney Michelle Funkenbusch On Move to Grand Jury of Furrer’s Felony Case

Is a Grand Jury still Grand???

Reporter Andy Banker  from Fox 2 stopped by the office this afternoon to talk about the move of Mayor Mark Furrer’s case to a grand jury at the last minute from a preliminary hearing.  As you know, the proceedings are secret and we cannot watch or be part of the process as the law firm for the victim. We represent cyclist Randy Murdick who alleges the Mayor of Sunset Hills intentionally ran him off the road. Reporter Banker was wondering if we have concerns over the last minute move to a grand jury.

While I do not have blind faith in the legal process, I do, in fact, have faith in our justice system that an indictment will follow.  I have personally seen in my criminal defense work, the St. Louis County Prosecutor’s Office fight zealously to protect our streets from people they believe endanger us on the road.  We will find out in the next few days the fate in the criminal court of the Mayor of Sunset Hills. Let us hope that the people that lost faith in the justice system over “Ferguson” will see that the Grand Jury is still grand.

Michelle M. Funkenbusch


Congress did something SMART… no really: St. Louis Trial Lawyer Breaks Down The SMART Act of 2013.

How to Handle Medicare Liens on Personal Injury Cases

While we were all worrying about falling off the fiscal cliff, Congress and the President did something SMART… literally.   The SMART Act was signed by President Obama on January 10, 2013. It makes numerous complicated administrative changes to Medicare that effect personal injury cases where the employee or plaintiff is on Medicare and has had treatment paid by Medicare.  While most of this may be over the average person’s head, if you stop reading now, just know that something “good” happened to reduce bureaucracy and to speed up settlements that need the federal government’s approval.

For example, when a senior citizen covered by Medicare is treated after an accident or an injury, it’s generally paid for by Medicare. Those medical expenses must then be reimbursed through insurance or a legal settlement. But, the process by which that was to happen has not been running smoothly. The Strengthening Medicare and Repaying Taxpayers, or SMART, Act aims to remedy that.

Many claims involving Medicare beneficiaries could not settle because the parties  could not determine their respective obligations to reimburse the federal government in the Medicare Trust Fund.  The result was a lose-lose-lose for the beneficiary, the defendant, and the Medicare Trust Fund – all because under the former law, Medicare had no pathway to provide the amount due the Trust Fund for “conditional payments” – those payments previously made by Medicare for the injury that will be covered by the settlement.

The SMART Act  fixes this problem by creating a process for Medicare to advise parties in the process of settling, before settlement, of how much is owed, so that the parties can appropriately allocate and resolve their Medicare obligations during settlement. By requiring Medicare to provide the amount due within 65 days of a request, the settling parties will know how much money has to be set aside for Medicare, and factor that amount into their final settlement.

There were numerous other changes. I have summarized some of them for you below.  These amendments will require changes to settlement procedure, lien resolution and reporting, and release language.  If you are on Medicare and have a personal injury case, make sure you have a lawyer that knows and understands the SMART ACT.


Access to Information About How Much Medicare Paid

Old Law:   Did not require Medicare to give immediate access to the conditional payments that were made on behalf of a claimant.

New Law:  Up-to-date Conditional Payment Information Available Online

Claimants and responsible reporting entities (RREs, as defined by 42 U.S.C. § 1395y(b)(8)) will now have access to up-to-date information on the claims for which conditional payments have been made by CMS. Again,  conditional payments are those payments previously made by Medicare for the injury that will be covered by the settlement. The SMART Act requires CMS to make claims information—including payment amounts and information regarding claims related to a potential settlement, judgment, or other payment—available to claimants or their authorized representatives and RREs (that have obtained the claimant’s consent) through a secure website. This information must be updated no later than fifteen (15) days after the date that payment is made.

Additionally, claimants or RREs now may provide notice to CMS that a settlement, judgment, award, or other payment is reasonably expected and the date of the expected payment up to 120 days before the reasonably expected date of the payment.

CMS already has a web-based portal for claims information, the Medicare Secondary payer Recovery Portal [], which appears to satisfy the requirements of the SMART Act. Final regulations must be promulgated by  October 10, 2013, nine (9) months after date of enactment, the effective date of this provision.

Pre-Settlement Lien Demands

Old Law:  Medicare could not provide a final lien demand until after settlement.  The inability to finalize Medicare’s reimbursement interest prior to settlement complicated settlement and lien resolution.

New Law: Establishing Conditional Payment Exposure Prior to Settlement

The SMART Act provides a mechanism by which a claimant or RRE (responsible reporting entities as defined by 42 U.S.C. § 1395y(b)(8)) determines liability for conditional payments prior to a settlement, judgment, award, or other payment for conditional payments. To do so:

  • the claimant or RRE (with the claimant’s consent) must obtain a statement of reimbursement amount from the website during the “protected period”—defined as the time, if any, after the expiration of the federal government’s response period following notice of a settlement, judgment, award, or other payment
    • the federal government’s response period is 65 days following notice
    • it may be extended by an additional 30 days if additional time is required to address claims for which payment has been made
    • it does not include any days where there was a failure in the claims payment and posting system due to exceptional circumstances as defined by regulation
  • the related settlement, judgment, award, or other payment must be made during that period, and
  • the last statement of reimbursement downloaded during that period and within three (3) business days of the date of the settlement, judgment, award, or other payment shall constitute the final conditional amount subject to recovery by the federal government related to that settlement, judgment, award, or other payment.

Final regulations must be promulgated by October 10, 2013, nine (9) months after date of enactment, the effective date of this provision.

Minimum Values Established

Old Law: The Medicare Lien reimbursement process currently applies even to settlements of minimal value.

New Law:  The SMART Act establishes a threshold below which the lien reimbursement and Section 111 reporting obligations do not apply.  The threshold will be established each year beginning in 2014.  The minimum threshold exception does not apply to settlements concerning alleged ingestion, implantation or exposure (including asbestos).

UPDATED July 31, 2013:

To further explain the minimum values… the SMART Act requires HHS to set a “single monetary compliance threshold” for certain claims, starting on November 15, 2014.  The purpose underlying that amendment is to avoid expending resources in seeking to recover conditional payments the value of which is less than the expense necessary to recover them. This is sort of a common sense provision as you will.  The “monetary compliance threshold” that the Act contemplates would be a dollar figure that defines the minimum value of a conditional payment for which Medicare could pursue reimbursement without wasting more resources in seeking to recover the payment than the claim itself is worth.  The SMART Act requires the Secretary of HHS to set and adjust that minimum threshold figure no later than November 15 each year, starting in 2014.  Attorneys should calander this date to learn the threshold for that year.

The monetary compliance threshold does not apply to all conditional payments.  More specifically, the monetary compliance threshold applies only to (1) liability TPOC reporting (total payment obligation to the claimant); and (2) conditional payments pertaining to “alleged physical trauma-based incidents,” but not incidents based on alleged ingestion, implantation, or exposure.

§111 Penalty Modification

Old Law: Companies that reported settlements involving Medicare beneficiaries to CMS either late or erroneously were subject to automatic fines of $1,000 per-day, per-claim.

New Law: Such penalties are now discretionary, not automatic.  HHS is directed to create “safe harbors” for companies that report in good faith, despite being late or in error. §203, SMART Act.


Old Law: Claims professionals and settlement parties use claimants’ Social Security numbers (SSNs) or Health Insurance Claim Numbers (“Medicare numbers”) to access claimant health records. This situation has obvious and troubling privacy implications.

New Law: Within 18 months, the Secretary of HHS is to change §111 of Mandatory Insurance Reporting to make use of SSNs and Medicare numbers optional rather than required. Medicare beneficiaries are understandably reluctant to provide this information – given the high incidence of identity theft.  The SMART Act protects beneficiaries’ sensitive personal information while also reducing professionals’ liability exposure in the event of subsequent beneficiary identity theft. §204, SMART Act.

UPDATE:  July 31, 2013

I received a call from a lawyer today asking if SSN’s are still required as his client does not want to give out his SSN. As of this date, SSN’s are still required.   The Act provides that CMS must implement this requirement within 18 months of the SMART Act’s enactment, or by the middle of 2014.  That deadline is not a firm one, however.  The Act permits the Secretary of the Department of Health and Human Services (HHS) (the agency in which CMS operates) to request an extension of that 18-month deadline by “one or more periods up to one year each” if the Secretary believes that eliminating the use of social security numbers and health insurance claim numbers by the operative deadline “threatens patient privacy or the integrity of the secondary payer program[.]”  I will keep monitoring for changes but I suggest if you are an attorney and uncertain that you contact the HHS Department.

Three-Year Statute of Limitations

Old Law:   The MSP statute permits the government to pursue settling defendants for unsatisfied Medicare Liens in certain circumstances, even after the defendant has paid settlement funds to the plaintiff. Unclear law and inconsistent court rulings left settlement parties without a clear answer on the scope of the statute of limitations for the government to bring an action seeking conditional payment.

New Law: The SMART Act codifies a 2010 U.S. District Court decision – U.S. v. Stricker – which held that the government must file a complaint within three years of receiving notice that a judgment or settlement has been reached. §205, SMART Act.

Full Text of H.R. 1845:


A Lawyer’s Timeline Under SMART for Finding Out How Much to Pay Back Medicare

For those lawyer fans of this blog, starting in October 2013, you should follow these rules to obtain a Final Conditional Amount.

  1. T-120 days to settlement – Send an Expected Settlement Notice to the MSPRC;
  2. T-115 days to settlement – Check to see if the MSPRC received the Expected Settlement Notice.  Everyone knows the MSPRC response, “we don’t have that in the file” or “I don’t see that here.”  If you don’t check you might waste the entire process.
  3. T-55 days to settlement – You should receive notice that the Final Conditional Amount is available for download on the MSPRC website, or more likely, the Medicare Secondary Payer Recovery Portal (MSPRP).  If you have not, contact the MSPRC to check the status.  Keep in mind the rule states they have 65 days from receipt of your notice – so we will have to keep track of how they define the word receipt.  If your case qualifies for “exceptional circumstances” the MSPRC will tell you it needs another 30 days to process the Final Conditional Amount.
  4. T-25 days to settlement – You should receive notice that your exceptional circumstances request is completed and the Final Conditional Amount is available for download.
  5. T-3 days to settlement – You must download the Final Conditional Amount from the designated website.  If you do so at 4 days to settlement it is apparently invalid and does not constitute a Final amount.  If you do so more than 3 days after settlement (we believe after is still okay – the rule uses the word “within”) it is also invalid.

-Published January 31, 2013.  Authored by Michelle M. Funkenbusch, St. Louis Trial lawyer

If you know someone in need of a personal injury lawyer, please contact St. Louis Personal Injury Lawyer Michelle Funkenbusch at 314-338-3500 .


 © 2013 The Law Offices of Michelle M. Funkenbusch, LLC.  All Rights Reserved. These materials may not be reproduced in any way without the written permission of The Law Offices of Michelle M. Funkenbusch, LLC. This blog is designed to provide general information on the topic provided and is posted with the understanding that the publisher is not engaged in rendering any legal or professional services. Although this post and the blog is prepared by a lawyer, it should not be used as a substitute for legal advice. If legal advice is required, the services of The Law Offices of Michelle M. Funkenbusch should be sought privately.


Do You Have or Want a Home Office? A New Tax Law May Benefit You!

IRS Announces Simplified Option for Claiming Home Office Deduction Starting This Year; Eligible Home-Based Businesses May Deduct up to $1,500; Saves Taxpayers 1.6 Million Hours A Year

The Internal Revenue Service today announced a simplified option that many owners of home-based businesses and some home-based workers may use to figure their deductions for the business use of their homes.

In tax year 2010, the most recent year for which figures are available, nearly 3.4 million taxpayers claimed deductions for business use of a home (commonly referred to as the home office deduction).

The new optional deduction, capped at $1,500 per year based on $5 a square foot for up to 300 square feet, will reduce the paperwork and recordkeeping burden on small businesses by an estimated 1.6 million hours annually.

“This is a common-sense rule to provide taxpayers an easier way to calculate and claim the home office deduction,” said Acting IRS Commissioner Steven T. Miller. “The IRS continues to look for similar ways to combat complexity and encourages people to look at this option as they consider tax planning in 2013.”

The new option provides eligible taxpayers an easier path to claiming the home office deduction. Currently, they are generally required to fill out a 43-line form (Form 8829) often with complex calculations of allocated expenses, depreciation and carryovers of unused deductions. Taxpayers claiming the optional deduction will complete a significantly simplified form.

Though homeowners using the new option cannot depreciate the portion of their home used in a trade or business, they can claim allowable mortgage interest, real estate taxes and casualty losses on the home as itemized deductions on Schedule A. These deductions need not be allocated between personal and business use, as is required under the regular method.

Business expenses unrelated to the home, such as advertising, supplies and wages paid to employees are still fully deductible.

Current restrictions on the home office deduction, such as the requirement that a home office must be used regularly and exclusively for business and the limit tied to the income derived from the particular business, still apply under the new option.

The new simplified option is available starting with the 2013 return most taxpayers file early in 2014. Further details on the new option can be found in Revenue Procedure 2013-13, posted today on Revenue Procedure 2013-13 is effective for taxable years beginning on or after Jan. 1, 2013.

If you want information on how to create your own home-based business, form a L.L.C., or have other business related questions, do not hesitate to contact the Law Offices of Michelle M. Funkenbusch. Working in conjunction with attorney Joan M. Swartz and reputable accountant advisors, we can answer any question you may have.  Call 314-338-3500 for more information.

Audio Recording of Police Once Again Found to Be Protected By Right to Free Speech. Author: Trial Lawyer Michelle Funkenbusch

Audio Recording of Police: Constitutionally Protected under the First Amendment According to St. Louis Trial Lawyer

First Ammendment
Audio Recordings of Police Protected By First Amendment According to Two Different Courts Of Appeal… U.S. Supreme Court Lets Rulings Stand.

St. Louis Civil Rights Trial Lawyer Michelle Funkenbusch isn’t surprised if this First Amendment ruling makes you scratch your head but simply put… “recording public police speech” = “speech”.  So yes… laws attempting to limit the audio recording of speakers (even though the person recording is not necessarily speaking)  can violate the recorder’s constitutional protections of free speech.

The U.S. Supreme Court on Monday delivered a blow to Illinois’ 50-year-old anti-eavesdropping law according to trial lawyer Funkenbusch.  The Illinois Eavesdropping Act, enacted in 1961, makes it a felony for someone to produce an audio recording of a conversation unless all the parties involved agree. It sets a maximum punishment of 15 years in prison if a law enforcement officer is recorded.   In refusing to hear the appeal, the U.S. Supreme Court let stand a lower court finding that major parts of the eavesdropping law violate constitutional protections of free speech.

The 7th Circuit majority found that the Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny. In particular, the court noted that the statute restricts far more speech than necessary to protect legitimate privacy interests.

THE LAW AT ISSUE: Felony to Record Police Acting in Official Capacity Performing Public Duties

The provision at issue of the Illinois eavesdropping law is 720 ILCS 5/14-4 . It imposes a Class 1 felony penalty upon an individual who, in violating § 14-2 of the statute, records an oral conversation of a police officer or certain other public officials in the performance of their official duties. This provision and its explicit effect has long been criticized. In fact, the Illinois State Bar Association proposed legislation, originating through its Intellectual Property Section Council, amending the Illinois Eavesdropping Statute to eliminate the very effect of § 14-4.

In the appeals court ruling in May, the 7th U.S. Circuit Court of Appeals found that 720 ILCS 5/14-4– one of the toughest of its kind in the country – violates the First Amendment.

[Legal Fact of the Day:  The First Amendment states; “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This case came about when the ACLU of Illinois brought suit against Cook County State’s Attorney Anita Alvarez in 2010, after her office wanted to bring charges against ACLU staff recording audio of police officers performing their public duties in a public place and speaking loudly enough to be heard by a passerby.”

On May 8, 2012, the 7th Circuit U.S. Court of Appeals in Chicago sided with the ACLU, ruling that audio or audiovisual recording of police doing their public duties in a public place, particularly in the case at hand, is indeed a constitutionally protected right under the First Amendment right to free speech.

Civil right’s activists believe the ability to record helps guard against police abuse.   The most notorious incident was the infamous 1991 videotaping of LAPD officers beating Rodney King. The taping created a media scurry and national controversy over the effect of racial tensions between police and crime suspects.

The eavesdropping law’s proponents, however, say it protects the privacy rights of officers and civilians, as well as ensures that those wielding recording devices don’t interfere with urgent police work. Officers argue the recordings are often done by harassing paparazzi-like mobs at scenes where they are attempting to make legitimate investigations and arrests.  People attempting to You-Tube and Facebook arrests can get in the way of legitimate police business.

Nevertheless, based on the U.S. Supreme Courts denial to hear the appeal, free speech has found a win over the need for police to do their job unaffected by surrounding crowds.

On a historical note, it was not until the flag-burning cases of 1989 (Texas v. Johnson) and 1990 (United States v. Eichman), that the Supreme Court accepted that non-speech means of communicating applied to freedom of expression and freedom of speech.  According to St. Louis trial lawyer Michelle Funkenbusch, in the case at hand, we are seeing a new non-speech definition of speech… i.e. the act of recording communications.

This isn’t the first case on the issue of the “Right to Record”. Just last year, the First Circuit Court of Appeals held that the First Amendment provided and protected the right to record police in their official capacity in Glik v. Cunniffe, et al., No. 10-1764 (1st Cir. Aug. 26, 2011).  The First Circuit held, “A citizen’s right to film government officials … in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”

The Seventh Circuit Court of Appeals ruling on the Illinois law is consistent with this First Circuit ruling on recording laws in Massachusetts. This lack of conflict in the Circuits may be why the U.S. Supreme Court rejected hearing the case.

-Published November 27, 2012. Authored by Michelle M. Funkenbusch, St. Louis Trial lawyer

If you know someone who has been arrested or harassed for recording the police, contact trial lawyer Michelle Funkenbusch at 314-338-3500 to have your civil rights case reviewed.

 © 2012 The Law Offices of Michelle M. Funkenbusch, LLC.  All Rights Reserved. These materials may not be reproduced in any way without the written permission of The Law Offices of Michelle M. Funkenbusch, LLC. This blog is designed to provide general information on the topic provided and is posted with the understanding that the publisher is not engaged in rendering any legal or professional services. Although this post and the blog is prepared by a lawyer, it should not be used as a substitute for legal advice. If legal advice is required, the services of The Law Offices of Michelle M. Funkenbusch should be sought privately.


Learn Food Warranty Law Before You take Another Bite: Missouri Personal Injury Lawyer Gives You Some Legal Thoughts to Chew on.

We ALLL have food on the brain the day before Thanksgiving. So Missouri personal injury lawyer, Michelle Funkenbusch sums up Food Hazard/Choking Law for You:


Missouri Personal Injury Lawyer on Food/Choking Hazard Law
Missouri Personal Injury Lawyer on Food/Choking Hazard Law

According to Missouri personal injury lawyer, Michelle M. Funkenbusch,  if you are injured  at a restaurant choking on food hazards (like bones/plastic/toothpicks), Missouri courts follow warranty law to determine liability.  The same is true if you purchase a turkey from your local grocery store, cookies from your local scout troop, or candy from a vending machine, or even a beer from your local pub.  Specifically, Missouri follows the common law principle that there is an implied warranty as between the retail dealer and the consuming purchaser in the sale of food, including a warranty of freedom from foreign substances which may be injurious to the purchaser. Degouveia v. H.D. Lee Mercantile Co., 231 Mo.App. 447, 100 S.W.2d 336, 339 (1936).  A claim for common law implied warranty of fitness for consumption requires that a Plaintiff show:  (1) the defendant sold a food substance meant for human(or animal) consumption;  (2) the plaintiff (or your animal) ate or drank the food/drink; (3) when the defendant sold the food/drink it was not fit for human(or animal) consumption; and (4) the Plaintiff was damaged as a direct result.  See Missouri Approved Instructions (MAI 25.02).

[RANDOM LEGAL FACT OF THE DAY: The MAI is the book of jury instructions relied on by courts to instruct the jury what must be proved in a particular case. The Missouri Supreme Court committee on jury instructions creates this book and it must be reviewed and used in every civil case that goes to trial.]

Grandma’s Food Almost Killed Me!!

What if you are at your Grandma’s house for Thanksgiving and you choke on a foreign substance that you could/would not have inspected in the food?  Assuming it was not added to the food by your grandmother (which of course will be a defense of the seller and manufacturer), you may have a case for a personal injury lawyer to review.  It doesn’t matter that you didn’t buy the food at a restaurant or store.  If the injured party in a choking case was not the purchaser of goods, but is a natural person who is a member of the family or household of the buyer, or was a guest in the buyer’s home, and it was reasonable to expect that such person would consume  the food/drink, then the seller or manufacturer can be liable under the Uniform Commercial Code. In other words, even though you lack “privity of contract” you may be able to recover and should seek the counsel of a St. Louis personal injury lawyer.    And yes, you could sue Grandma for negligent cooking… but that’s just not nice!

Missouri Personal Injury Case Against the Manufacturer??

If you have sustained personal injury  in Missouri as a result of the consumption of a foreign body or substance in a food or beverage sold, you may also, under proper circumstances, maintain an action to recover damages for such injury against the manufacturer of the product, on the ground of breach of an express or implied warranty.  In the absence of an express warranty (something actually written on the product or packaging), the law implies that the manufacturer or packer of foods intended for human consumption warrants that his products are fit for human consumption, and that he has used in the selection and preparation of such products the degree of care ordinarily exercised by persons skilled in the business of preparing and packing food for distribution or sale to the general public.

A  manufacturer, in the proper factual situation, is held as an “absolute insurer against knowable dangers”, and thus has an incentive to keep abreast of scientific knowledge to keep knowable dangers out of their products.  But, in some cases (like in the case of cigarettes), what is knowable can be difficult to prove without a great deal of expense and highly trained personal injury lawyers.  Ross v. Phillip Morris, 328 F.2d 3 (United States Court of Appeals Eighth Circuit 1964).

Other Theories a St. Louis Personal Injury Lawyer May File Suit for in A Food Hazard Case

You may also have the right to sue under other theories of personal injury. For example, you may have a claim under the Uniform Commercial Code for breach of an implied warranty for fitness for a particular purpose or breach of implied warranty of merchantability (fitness for an ordinary purpose) in general.  You may also have a claim for strict liability for a product defect or for failure to warn.   These are complicated claims and require the expertise of an experienced St. Louis personal injury lawyer.

Choking on Bones in the Turkey vs. Glass in the Turkey… why is one a good case and one a bad case?

To have a good case of liability, you usually have to have been injured by something foreign to the food you were eating, but not always.  Liability for injuries caused by a substance in food will often depend on whether the substance in question is considered to be “foreign.”  Under the so-called foreign-natural test that many other states rely on, there is no liability for injury caused by a substance that are considered “natural” to the food sold.  If the object is one that is naturally associated with the type of food in which it is found, it is not considered to be foreign, since the occasional presence of such objects is something to be anticipated by the consumer. Thus, for example, a hardened, crystallized grain of corn has been held not to be foreign to a package of corn flakes, and a bone has been held not to be foreign to a canned food product containing meat of the kind from which the bone came. However, some courts have held that objects which are natural to the type of food involved but which generally are not found in the style of the food as prepared may be deemed to be the equivalent of a foreign substance. Thus, in an action against a packer of canned chicken for injuries sustained from a chicken bone in chicken chow mein served at the plaintiff’s school and made from the defendant’s product, the chicken bone was held to be “something that should not be” in defendant’s product, which defendant had advertised as “boned chicken.” It has also been held in other states that breach of an implied warranty of fitness is shown by proof of a piece of oyster shell in a can of oysters sold by a defendant retailer, even if it appears that shells cannot be entirely eliminated in the canning of oysters.

Several states have rejected the “foreign-natural” test in favor of what is known as the “reasonable expectation” test. This test is based on what is reasonably expected by the consumer in the food as served, not what might be natural to the ingredients of that food prior to its preparation.

The “foreign-natural” test apparently continues to be the rule in most jurisdictions.  In states where the “foreign-natural” test is applied, even if an injured plaintiff can establish an otherwise legally sufficient claim of negligence, breach of implied warranty, or strict tort liability, a food processor may be free from liability as a matter of law if the deleterious object or substance in the food is natural to the ingredients of the product.  However, in states where the “reasonable expectation” test is the rule, liability might be incurred on any appropriate theory even for a “natural” defect if it is one not reasonably anticipated by the consumer. There appears to be a recent trend among several states toward acceptance of  the “reasonable expectation” test.

Missouri has yet to directly adopt either test mentioned above and leaves the fitness for consumption a question for the jury.  This grey area of the law is another reason why you should consult with an experienced Missouri personal injury lawyer.  

Michelle M. Funkenbusch has handled cases involving plastic in pudding, foreign substances on buffets, rat parts in frozen spinach, lead poisoning, and more. Contact her if you would like to discuss your potential case for free at 314-338-3500.

 © 2012 The Law Offices of Michelle M. Funkenbusch, LLC.  All Rights Reserved. These materials may not be reproduced in any way without the written permission of The Law Offices of Michelle M. Funkenbusch, LLC. This blog is designed to provide general information on the topic provided and is posted with the understanding that the publisher is not engaged in rendering any legal or professional services. Although this post and the blog is prepared by a lawyer, it should not be used as a substitute for legal advice. If legal advice is required, the services of The Law Offices of Michelle M. Funkenbusch should be sought privately.

Safety Tips for Halloween from Personal Injury Lawyer Michelle Funkenbusch

Car v. Pedestrian Accidents Safety Checklist for Halloween

Personal Injury Lawyer Warns About Monkeying Around on Halloween Night

According to U.S. Census data, there are about 41 million potential trick-or-treaters between the ages of 5 and 14. Add that statistic to the fact that in 2010, 41 percent of all highway fatalities across the nation on Halloween night (6 p.m. Oct. 31 to 5:59 a.m. Nov. 1) involved a driver or a motorcycle rider with a BAC of .08 or higher, Halloween night requires added attention to safety to all those walking from house to house.

According to statistics from the U.S. Department of Transportation, in four out of six years between 2006 and 2010, more pedestrians under the age of 21 were killed by cars on Oct. 31 than on Oct. 30 or Nov. 1. Taking steps now and remembering them on Halloween night can prevent a pedestrian vs. car accident.

Here a few tips to reduce car v. pedestrian accidents this Halloween from Saint Louis personal injury lawyer Michelle Funkenbusch:

1.  Carry a flashlight or glowstick and wear glow-in-the-dark necklaces or attach reflective tape to costumes, wagons, and bags.

2.  Loose fitting clothing and oversized shoes can trip a trick-or-treater when crossing the street, so they should practice walking/running in their costume safely. Cut any costumes shorter if necessary.  

3.  Pirate swords and masks are cool, but are dangerous and masks can obscure vision. Thus, leave the swords at home (or make one from a poster board and aluminum foil) and use face paint instead of masks.

4. Remind kids to cross at crosswalks or at a corner with you.   They should also always make eye contact with drivers before stepping into the street and ALWAYS look left, right and left again.

5. For parents and kids, take out the headphones and no texting and walking especially when crossing the road.

6.  Avoid the decorative contact lenses — they could blur your vision at night.

7.  Many car accidents happen when a vehicle is pulling out of a driveway; kids should always look for cars when walking by a driveway.

8.  Stay with a group as you and your children are more visible.

9.  In urban areas, make sure children understand they cannot dart out between cars and that they may not see oncoming traffic.

Halloween trick-or-treaters need to be careful, but so do drivers. Drivers need to know that kids will be out of the streets looking for candy and not looking for cars. Avoid a car accident with a child by increasing your look-out for pedestrians. A few extra seconds could prevent a pedestrian vs. car accident!!!

Prepare now to have a safe and enjoyable Halloween. Be safe and watch out for those who aren’t!


Hyperbaric Oxygen Therapy to Treat Nursing Home Patient Wounds


Des Peres Hospital opened a new outpatient wound care center Monday that treats patients with chronic or non-healing wounds associated with, among other things, diabetes, pressure ulcers, trauma, peripheral vascular disease, poor circulation, immobility and other conditions.   The center offers two chambers for hyperbaric oxygen therapy to reduce swelling, fight infection and build new blood vessels, ultimately producing healthy tissue.

Pressure ulcers are the most common cause for a lawsuit against nursing homes, if they are due either to a lack of prevention or improper treatment.  The Wound Care Center by Des Peres Hospital is using some of the most advanced wound care technology available and is setting the standard of care higher for treatment of wounds.

In addition to the hyperbaric chambers, the new center has infectious-disease management, physical therapy, occupational therapy, laboratory evaluation, nutritional management, pain management, diabetic education, radiology testing and wound debridement (removal of dead tissue) to address the patient’s total health.  For more information, visit

Pressure ulcers, also known as bed sores, pressure sores, or decubitus ulcers, are wounds caused by unrelieved pressure on the skin. They usually develop over bony prominences, such as the elbow, heel, hip, shoulder, back, and back of the head. Pressure ulcers are serious medical conditions and one of the important measures of the quality of clinical care in nursing homes.

From about 2% to 28% of nursing home residents have pressure ulcers.

The most common system for staging pressure ulcers classifies them based on the depth of soft tissue damage, ranging from the least severe (stage 1) to the most severe (stage 4).

There is persistent redness of skin in stage 1; a loss of partial thickness of skin appearing as an abrasion, blister, or shallow crater in stage 2; a loss of full thickness of skin, presented as a deep crater in stage 3; and a loss of full thickness of skin exposing muscle or bone in stage 4. Clinical practice guidelines for pressure ulcers have been developed and provide specific treatment recommendations for stage 2 or higher pressure ulcers, including proper wound care.

Statistics from the CDC:

  • In 2004, about 159,000 current U.S. nursing home residents (11%) had pressure ulcers. Stage 2 pressure ulcers were the most common.

  • Residents aged 64 years and under were more likely than older residents to have 

  • pressure ulcers.

  • Residents of nursing homes for a year or less were more likely to have pressure ulcers than those with longer stays. 

  • One in five nursing home residents with a recent weight loss had pressure ulcers. 

  • Thirty-five percent of nursing home residents with stage 2 or higher (more severe) pressure ulcers received special wound care services in 2004.

Data from the national nursing home survey, 2004, published in NCHS Data Brief, No. 14, February 2009.

If a hard-to-heal wound is not treated, it may get bigger and deeper over time.  This may significantly increase the patient’s chances of infection, which if severe enough, may require hospitalization. If the tissue damage from infection is extensive, the patient may need surgery or amputation.

If your loved one has received improper care or you are not certain whether a nursing home has acted below the standard of care, contact Michelle Funkenbusch at 314-799-6602 for a free consultation.  As a trial lawyer, Funkenbusch has been involved in many nursing home cases and has witnessed the lack of training of staff, the improper care, the lack of documentation of records, and the abuse that occurs regularly.   A lawyer needs to be properly trained to read nursing home records. Contact Funkenbusch for more details about her extensive experience in this area.


© 2012 The Law Offices of Michelle M. Funkenbusch, LLC.  All Rights Reserved. These materials may not be reproduced in any way without the written permission of The Law Offices of Michelle M. Funkenbusch, LLC. This blog is designed to provide general information on the topic provided and is posted with the understanding that the publisher is not engaged in rendering any legal or professional services. Although this post and the blog is prepared by a lawyer, it should not be used as a substitute for legal advice. If legal advice is required, the services of The Law Offices of Michelle M. Funkenbusch should be sought privately.


Red Light Cameras… Here to Stay

They are here to stay…

Missouri Red Light Camera Review

The Creve Coeur City Council could hear an ordinance as soon as next week that would move to extend the city’s use of “Red Light” cameras.

As a lawyer, the MOST common question I am asked from friends and family is whether red light camera violations are enforceable.  The answer usually depends on where you got the ticket.

red light camera is a traffic enforcement camera that captures an image of a vehicle which has entered an intersection against a red traffic light.  By automatically photographing vehicles that run red lights, the camera produces evidence that assists authorities in their enforcement of traffic laws. Generally the camera is triggered when a vehicle enters the intersection after the traffic light has turned red. Typically, a law enforcement official will review the photographic evidence and determine whether a violation occurred. A citation is then usually mailed to the owner of the vehicle found to be in violation of the law.

On August 29, 2012, red light cameras survived yet another class-action lawsuit in Missouri.  A Jefferson County judge rejected a suit that aimed to prohibit the use of red light cameras in Arnold, which became the first Missouri city to deploy the cameras in August 2005.

In his ruling August 29, Judge Mark Stoll noted that the arguments of the defendants — the City of Arnold and camera company American Traffic Solution — were the “most persuasive.”

With this Arnold ruling, attorneys with the Simon Law Firm of St. Louis have now lost four decisions that sought to prohibit use of the cameras in Kansas City, Arnold, Florissant and Creve Coeur.

Despite at least a half-dozen legal challenges statewide, only two rulings have gone in favor of those opposed to the cameras.

In February 2012, a St. Louis Circuit Court judge ruled the city ordinance void. (That decision is under appeal.) In his ruling February 17, Judge Mark Neill upheld a partial judgment he made last May that found the city improperly enacted its red-light camera ordinance without enabling legislation from the Missouri legislature.

And in 2010 the Missouri Supreme Court held against the way Springfield enforced its citations.

For more information on the Creve Couer red light camers see:

© 2012 The Law Offices of Michelle M. Funkenbusch, LLC.  All Rights Reserved. These materials may not be reproduced in any way without the written permission of The Law Offices of Michelle M. Funkenbusch, LLC. This blog is designed to provide general information on the topic provided and is posted with the understanding that the publisher is not engaged in rendering any legal or professional services. Although this post and the blog is prepared by a lawyer, it should not be used as a substitute for legal advice. If legal advice is required, the services of The Law Offices of Michelle M. Funkenbusch should be sought privately.

Another Open Container Bill Fails… No Surprise to St. Louis DUI Attorney

Drinking on The Move in Wentzville: Thoughts from a St. Louis DUI lawyer.

It is not shocking that Missouri (whose unofficial state wildlife is the “Busch”) is known for a highly laissez-faire approach to alcohol regulation. For instance, there is no state-wide law against drinking in public. You can even legally let your children drink.  (See RSMO 311.310).   I am not saying this is a good idea by the way.  There is also no state wide law against open containers in the possession of passengers in vehicles.  This pro-alcohol reputation, supported by a strong alcohol industry lobby, continues to grow based on a recent decision by the Board of Alderman in Wentzille.  This is the second time in a few months that the alderman have voted down a proposed open container law supported by the local Police Chief.

The bill would have banned passengers in motor vehicles from drinking from, or possessing, open containers of alcoholic beverages while driving through Wentzville. Drivers are already banned from drinking by state-wide laws.  The Chief argued that the proposed law is a way to catch drunk drivers “in the act”, as they would not be able to just pass a drink off to a passenger. One argument against the law is that this bill is municipal government overreach and that these laws should not differ from municipality to municipality.

A little over 3% of the cities across the state have municipal laws banning open containers in vehicles including, but not limited to:

Bates City, Bellefontaine Neighbors, 

Cabool, Clarence, Clarkson Valley, 

Columbia, Crystal City, Cuba, Elsberry, 

Foristell, Harrisonville, Hermann, Independence,

Lamar, Lake Lotawanna, Lexington, 

Liberty, Licking, Linn, Maryville, 

Neosho,  New Franklin, Normandy, 

Osage Beach, Salisbury, St. Charles, St. John, 

Trenton, Verona,  Warson Woods, Weston.

This list includes those with bans as of 2005.  There is no more recent comprehensive list that I can find at this time. This list of course means that in 96% of the cities in this state… open containers in vehicles are permissible if in possession of a passenger.  Note, that if the alcohol is in the console or cup holder… a prosecutor will argue it is in the driver’s possession, not a passenger.

What About Buses?

There IS a state law against drinking intoxicating liquor of any kind in a passenger bus except a chartered bus.  (See RSMO 578.315) .   

If you are uncertain about the alcohol laws in your municipality, contact St. Louis DUI Attorney Michelle M. Funkenbusch to assist you, 314-338-3500.


Roberts, J. (2005). Missouri State and Local Open Container Laws. Report 30-2005. Retrieved 7/12/12, from University of Missouri Columbia, Institute of Public Policy. Web site:

Read more about the Wentzville decision at:  STLToday Article

Top Ten Things to Do When You Are Hit By a Car on Your Bicycle

Top Ten Things to Do After a Bicycle Accident from St. Louis Bicycle Accident Attorney 

Cyclists are injured and killed by hit-and-run drivers every day. Today, a cyclist was killed while trying to cross the street after exiting a well known bike path in Fullerton, California. Police are searching for a black vehicle involved in a hit-and-run accident that left the bicyclist dead.  Police said the man that was hit appeared to have come off a popular biking trail and was crossing the street.  The vehicle fled the scene, and then the victim was hit by a second vehicle, which stopped.  The bicyclist was rushed to a local hospital, where he was pronounced dead shortly after.

Here is a checklist to follow if you are hit while riding your bicycle and are still able to function. If you were not able to function at the time of the accident, or your loved one was killed, it is imperative you or your family contact an experienced bicycle accident attorney immediately. Make sure your family knows who you want them to call in an emergency.  If you are a witness to an accident, please help the victim with the following top ten things to do after a cycling accident:


1.  Get out of the road to avoid being hit a second time; however, if possible, take pictures (or have someone else take pictures) before the bike or car are moved.

2.  Get the phone numbers and names of all witnesses.

3.  Make sure to remember what if anything the driver, passengers, and or witnesses admit or tell you about the accident.

4.  Call the police immediately and make a police report.  Do not let the driver talk you out of making a report.

5.  Do not ignore your pain and blow it off. People are often hurt way worse than what they thought at the time of the accident due to adrenaline.  Go to an ER or doctor immediately if you have any pain. If you do not document that you are injured in medical records, you have no case for personal injuries.

6.  Ask to see the driver’s license and insurance information. Do not just let them write it down for you. Get the phone numbers to make a claim. Check the policy dates on the card to verify you have the correct insurance card. 

7.  Seek an estimate of your bike damage for repair and replacement value from a reputable shop like Maplewood Bicycle.  Do NOT try to fix it on your own without first getting the estimate.

8. Do not destroy anything that could be evidence such as a cracked helmut, torn clothing, bloody shoes, etc.

9.  Do NOT give a recorded statement to the insurance company. They are NOT on your side and will try to trick you into saying something to use against you in court.  

10.  Call a bicycle accident attorney within 24 hours in order to preserve all evidence, to contact witnesses, to make sure the police have the correct story (in case a supplemental report is needed with your statement), and to let the insurance company for the driver know you are represented and cannot be bullied into a settlement that greatly undervalues your case.

Again, if you or your loved one are hit while cycling, contact Missouri Cycling Advocate and Bicycle Accident Attorney, Michelle M. Funkenbusch at 314-338-3500.   If you would like a FREE hour presentation to your community group, athletic club, or children’s organization, on Missouri bicycle law and safety measures, please contact Michelle.