Case Summary for January 14, 2010

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Case Summary for January 14, 2010

THE FOLLOWING DOCKET SUMMARIES ARE PREPARED BY THE COURT'S STAFF FOR THE INTEREST AND CONVENIENCE OF THE READER. THE SUMMARIES MAY NOT INCLUDE ALL ISSUES PENDING BEFORE THE COURT AND DO NOT REFLECT ANY OPINION OF THE COURT ON THE MERITS OF A CASE. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION. SUMMARIES ARE UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9:30 a.m. Thursday, January 14, 2010

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SC90275
All American Painting, LLC, Consolidated Construction Group, Inc., Goodland Foods, Inc., and Titan Tube Fabricators, Inc. v. Financial Solutions and Associates, Inc.
St. Louis County
Telephone consumer protection act
Listen to the oral argument:

All American was represented during argument by Alan Mandel of St. Louis, and Financial Solutions was represented by Steven Koslovsky of St. Louis.

In 2005, Financial Solutions and Associates Inc. hired a company to send faxes promoting its services. All American Painting LLC received the fax. All American and others sued Financial Solutions pursuant to the federal telephone consumer protection act, alleging unsolicited advertising faxes were sent by or on behalf of Financial Solutions. In March 2006, All American moved for summary judgment. The trial court overruled the motion. After both parties had finished presenting evidence during the May 2008 jury trial, All American moved for directed verdict (asking the court to rule as a matter of law, rather than the jury), which the trial court overruled. During Financial Solutions’ closing argument, its attorney made statements about the company and its lawyers abusing the legal system and bringing frivolous lawsuits and argued the jury should “send a message.” The trial court overruled All American's objection to the argument. The jury returned a verdict in favor of Financial Solutions and, in September 2008, the trial court overruled All American’s motions for judgment not withstanding the verdict and for a new trial. All American appeals.

All American argues it is entitled to a new trial because Financial Solutions was allowed to argue for jury nullification (to acquit the Financial Solutions of the charges regardless of the strength of evidence against it) over All American’s objections. It also asserts it was entitled to a directed verdict. All American contends that it proved the facts necessary to recover under the telecommunications consumer protection act, that Financial Services did not rebut these facts, and that because Financial Solutions did not present any legally recognized defense, no facts remained to be submitted to the jury.

Financial Solutions responds that its argument that the jury should “send a message” to All American was not improper and was supported by evidence. It asserts the trial court properly overruled All American’s motions for directed verdict and judgment notwithstanding the verdict because the evidence presented jury issues concerning whether the faxes were sent to All American and whether All American consented to receive such faxes.

SC90107
James Klotz and Mary Klotz v. St. Anthony's Medical Center, Michael Shapiro, M.D. and Metro Heart Group, LLC
St. Louis County
Constitutional validity of statute capping non-economic damages and its retrospective application
Listen to the oral argument:

The Klotzes were represented during argument by Louis Bograd of the Center for Constitutional Litigation, P.C., in Washington D.C., and Mary Coffey of Coffey & Nichols, LLC in St. Louis; and Shapiro and Metro Heart Group were represented by Tad Eckenrode of Eckenrode-Maupin of St. Louis.

In March 2004, James Klotz went the St. Anthony’s Medical Center for chest pain and was treated by Dr. Michael Shapiro provided medical care. An EKG showed Klotz had suffered a heart attack. Shapiro inserted a pacemaker and later discharged Klotz from the hospital. While on vacation in April 2004 in Arizona, Klotz went to a hospital and was diagnosed with a staph infection. As a result of the infection, Klotz suffered sepsis, organ failure and other complications. In December 2004, Klotz and his wife, Mary Klotz, sued St. Anthony’s Medical Center, Shapiro and Metro Heart Group LLC for medical malpractice. In April 2005, they amended their petition to include Mary Klotz’s loss of consortium. In 2005, the Missouri legislature passed House Bill No. 393, amending section 538.210, RSMo, by capping non-economic damages against health care providers to $350,000 per occurrence from the defendant for all cases filed after August 28, 2005. In December 2005, the Klotzes voluntarily dismissed their case and re-filed in December 2006 only against St. Anthony’s. The Klotzes amended their petition in March 2007 to add Shapiro and Metro Heart Group. In July 2008, the jury awarded James Klotz damages totaling nearly $2.1 million, including non-economic damages of $760,000. The jury awarded Mary Klotz damages of $513,000, which included non-economic damages of $329,000 for loss of consortium. The jury assessed 33 percent of the fault to St. Anthony’s and 67 percent to Shapiro and Metro Heart Group. In January 2009, the trial court found the non-economic damages were capped pursuant to the amended section 538.210 and, accordingly, reduced the non-economic damages awarded against Shapiro and Metro Heart Group for the Klotzes by $274,700. The trial court granted, over the Klotzes’ objections, a reduction of James Klotz’s non-economic damages from $509,200 to $234,500 and reduced Mary Klotz’s non-economic damages from $220,430 to $0. The Klotzes appeal, and Shapiro and Metro Heart group cross-appeal.

The Klotzes’ appeal

The Klotzes argue section 538.210, RSMo Supp. 2008, as amended by 2005 H.B. 393 violates the Missouri Constitution. They contend the statute violates the prohibition against retrospective legislation pursuant to article I, section 13, because their claim arouse before the section became effective. The Klotzes assert H.B. 393 violates article III, section 23 because the title is not clear and the bill contains more than one subject. They argue the amendment violates numerous provisions of the state constitution, contending that the revised cap on non-economic damages differs significantly from the prior cap and that the legislature lacked a rational basis for enacting the revised cap. The Klotzes assert that there was not a malpractice liability crisis in Missouri, that malpractice liability insurance premiums were not high by historic standards nor increasing due to increased tort liability, and that the number of health care providers in Missouri had been increasing steadily. They contend the revised cap on non-economic damages interferes with the ability of malpractice victims who suffer primarily non-economic injury to obtain counsel to represent them in violation of their fundamental right to be represented by counsel. The Klotzes assert the amendment to the statute violates the equal protection clause in article I, section 2. They argue the revised cap arbitrarily and irrationally discriminates against all victims of medical malpractice; violates the prohibition against special legislation contained in article III, section 40; violates the due process clause of article I, section 10; violates Mary Klotz’s right to open courts and certain remedies in violation of article I section 14 to the extent the amended section 538.210 eliminates the award of non-economic damages for a loss of consortium claim; violates the right to trial by jury in article I, section 22(a) because judges could change the jury awards; and violates the separation of powers of provisions of article II, section 1 because the legislature was taking away the function of a trial court assessing on a case-by-case basis whether a jury’s damages award is excessive or inadequate.

Shapiro and Metro Heart Group respond that the Klotzes never raised any constitutional issues in their suit until appeal and that the issues were raised after Shapiro and Metro Heart Groups’ presented their affirmative defenses in April 2008. They contend the constitutional challenges must be dismissed because they were required to be raised at the earliest possible opportunity. They further respond the amendment is not unconstitutional because, while James Klotz was injured prior to August 2005, the “right” of non-economic damages did not occur until the jury found he was entitled to non-economic damages. They assert that the bill does not violate the clear-title and single-subject mandates and that the Klotzes’ challenge is untimely because, pursuant to section 516.500, RSMo 2000, a challenge to a procedural defect must be asserted before the next legislative session adjourns and the Klotzes did not meet the exceptions to this timeline. Shapiro and Metro Heart Group argue the legislature had a rational basis for adopting the revised cap. They assert parties provided evidence during legislative hearings about the malpractice liability crisis in Missouri. They assert the evidence before the legislature showed that malpractice liability insurance premiums were increasing because of the increases in tort liability and that doctors were leaving Missouri. Shapiro and Metro Heart Group contend the cap does not violate equal protection because it is a rational response to a health care crisis, there is not a fundamental right at stake in the statute, and the Klotzes cannot prove that there was a protected interest to which due process protection applies or that the governmental action was irrational. Shapiro and Metro Heart Group further respond that the amendment to section 538.210 is not a “special law” because it applies to all persons who bring actions against health care providers and, therefore, is not “special legislation.” They contend a cap on non-economic damages does not deny a litigant access to the courts and still permits a trial by jury as the jury still determines the facts and the damages. They argue the amendment does not take any power from the judiciary but prescribes, as a matter of law, the outer limit of the remedies available to a litigant.

Shapiro and Metro Heart Group’s cross-appeal

In their cross-appeal, Shapiro and Metro Heart Group argue the trial court erred in allowing an expert to testify for the Klotzes and offer expert opinion when the expert was not a licensed physician and, therefore, was not legally qualified to offer medical opinion testimony. They assert the trial court erred in allowing testimony and evidence regarding projected future damages and medical expenses because such evidence was speculative. Shapiro and Metro Heart Group further argue the Klotzes’ future damages award should have been reduced to “present value” as required by section 538.215, RSMo 2008. They assert the statements by James Klotz’s doctors in Arizona, unsworn and made out of court, should not have been admitted into evidence regarding the source of his infection because doing so denied Shapiro and Metro Heart Group the ability to cross-examine the doctors about their statements. Shapiro and Metro Heart Group contend they should have been permitted to cross-examine one of the Klotzes’ experts about the income he makes from expert witness work. They assert the trial court improperly allowed the Klotzes to show the jury, during closing arguments, printed portions of Shapiro’s pre-trial deposition that had not been introduced to the jury as evidence. They argue that the verdict director was vague and overbroad and that the words “added risk of infection” it contained assumed a disputed fact in the case. Shapiro and Metro Heart Group contend the trial court violated their right to due process and a fair trial in overruling their motion for a mistrial when the jury was deadlocked and the trial court sent a second “hammer instruction” (ordering the jury to decide the case) that was not given to the jury in writing. They contend the Klotzes did not make a submissible case because they failed to prove the alleged negligence caused the claimed injury. Shapiro and Metro Heart Group assert the trial court erred in allowing speculative and prejudicial evidence when it allowed the Klotzes to ask witnesses about whether Shapiro knew about St. Anthony’s infection-rate data. Finally, they argue the trial court erred in allowing testimony and evidence regarding the full amount of any medical bill that was adjusted or not paid by the Klotzes.

The Klotzes respond that their constitutional objections are properly before the Court and that they presented their constitutional objections in a timely manner. They contend the trial court did not err in allowing a medical expert witness testify because he was qualified pursuant to section 490.065, RSMo 2008. The Klotzes argue evidence of future damages and medical expenses properly were admitted into evidence because they were based on a reasonable degree of medical certainty and the damages and future expenses were a result of the infection. They argue an objection made now to evidence regarding future damages and future medical expenses was not preserved for review. They contend there is no requirement that evidence of future damages be offered at present value. The Klotzes assert Shapiro and Metro Heart Group cannot show any errors regarding experts or approved jury instruction had a prejudicial effect on the lawsuit. They further respond statements from James Klotz’s Arizona medical records properly were admitted as business records. The Klotzes contend the trial court did not commit reversible error when it refused to allow cross-examination of an expert witness about the amount of money he makes from other expert witness work. They contend this ruling was within the trial court’s discretion, the information was before the jury and no substantial impeachment was shown in the offer of proof. They assert part of Shapiro’s pre-trial deposition was used during properly closing argument because it had been admitted into evidence and there was no prejudice. The Klotzes further respond the trial court did not err in submitting the verdict director regarding “added risk of infection” because it did not mislead the jury, no prejudice was shown, and Shapiro and Metro Heart Group did not brief adequately the claim of failure to make a submissible case. The Klotzes assert that the trial court properly encouraged the jury to continue deliberating when it was deadlocked and that doing so is within the court’s discretion, there was no objection to the instruction and it did not prejudice Shapiro or Medical Heart Group. The Klotzes assert the verdict director was supported by their expert’s testimony that Medical Heart Group’s negligence directly caused or contributed to the Klotzes’ damages and the expert testimony on causation was not necessary because the issue was what a reasonable person in the patient’s position would have done. They argue the testimony regarding Shapiro’s knowledge of St. Anthony’s infection rate properly was permitted because it described what Shapiro should have known under normal medical practice and, therefore, was relevant to the issue of negligence. Finally, the Klotzes contend the full amount charged for the medical bills properly was admitted and was within the trial court’s discretion to find that the amounts charged represented the value of the medical treatment pursuant to section 490.715.5, RSMo 2008.

Friends of the Court arguing in support of the Klotzes

AARP argues that caps on non-economic damages unfairly discriminate against people with limited incomes, including older people, because they can collect only minimal economic damages and older people are more likely to be victims of medical malpractice.

Missouri AFL-CIO argues that the cap on non-economic damages is not rationally related to a legitimate state interest because it presents arbitrary and irrational classifications.

The Missouri Coalition for Quality Care argues the trial court erred in reducing the Klotzes’ non-economic damages. It contends section 538.210 cannot survive a rational basis review of its constitutionality because its the cap is arbitrary, capricious and bears no reasonable relationship to the state’s objectives.

The National Association for the Advancement of Colored People argues that the trial court erred in reducing the Klotzes’ non-economic damages and that this Court should find section 538.210 unconstitutional under strict-scrutiny review. It contends the statute disproportionately affects minorities, which constitute a suspect class requiring strict-scrutiny review; denies the fundamental right of open access to the courts; and is not the least-restrictive means of lowering medical malpractice premiums in Missouri. In the alternative, the association asserts, section 538.210 fails rational-basis review because it does not achieve the state’s objectives but instead contributes to the health care problem.
Paraquad, Inc. argues that section 538.210 violates the 14th Amendment to the United States Constitution and article I, section 2 of the Missouri Constitution by placing a discriminatory and irrational burden on persons with disabilities by capping the recoverable amount to $350,000 regardless of the number of defendants.

Friends of the Court arguing in support of Shapiro and Metro Heart Group

The American College of Obstetricians argues the statute is constitutional. It contends that there is a medical liability crisis and that the new cap on non-economic damages is a way to limit medical liability and continue to allow Missouri’s medical professionals to afford medical malpractice liability.

The Missouri Hospital Association argues this Court should reject the Klotzes’ constitutional challenges because the legislature is entrusted to debate public issues and remedies.

The Missouri State Medical Association and American Medical Association argue that non-economic damages limits are constitutional and that the legislature here constitutionally implemented the non-economic damage limit.

The Missouri Chamber of Commerce and Industry, NFIB Missouri, Missouri Motor Carriers Association, Health Coalition on Liability and Access, Chamber of Commerce of the United States of America, American Tort Reform Association, Physicians Insurers Association of America, American Insurance Association, Property Casualty Insurers Association of America and National Association of Mutual Insurance Companies argue that the non-economic damages statute represents legitimate, constitutional legislative policy.

Missouri Professionals Mutual argues that the non-economic damages cap is constitutionally valid because the legislature had a rational basis for adopting the revised cap.

Saint Louis University, the University of Missouri and Washington University, and argue the trial court correctly concluded the amended section 538.210 is constitutional and does not violate the equal protection clause. They contend the amendments are rationally related to the state’s legitimate interest in preserving adequate, affordable health care for all Missourians.