Case Summary for February 24, 2016

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Case Summary for February 24, 2016

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.

Attached to the following docketed cases are electronic copies of briefs filed by the parties. These electronic briefs have been converted to PDF to accommodate various word processors. If you do not already have Acrobat reader, which is necessary to open the PDFs, you may obtain it free at the Adobe website. (A set of free tools that allow visually disabled users to read documents in Adobe PDF format is available from access.adobe.com.) These briefs do not reflect any opinion of the Court about the appropriateness of the format of the briefs or the merits of the case, nor are they official court records. Copies of all briefs filed with the Court are available at the Supreme Court Building in the court en banc division.

The attachments below may not reflect all briefs filed with the Court, the complete filing or the format of the original filing. Appendices and other attachments generally will not be posted here. To see what documents have been filed in a particular case, visit Case.net.

DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9:30 a.m. Wednesday, February 24, 2016
____________________________________________________________________________________________________

SC95022
William Dieser v. St. Anthony's Medical Center
St. Louis County
Challenges to statute applied to deny post-judgment interest, evidentiary rulings in medical negligence case
Listen to the oral argument:

SC95022.mp3
St. Anthony’s Medical Center was represented during arguments by Paul Venker of Williams Venker & Sanders LLC in St. Louis; Dieser was represented by Mary Coffey and Genevieve Nichols of Coffey & Nichols in St. Louis.

William Dieser filed a medical negligence suit against St. Anthony’s Medical Center seeking damages for a skin would or pressure injury he alleges he sustained while being treated at the medical center following surgery to treat pancreatic issues in late January 2008. Following a five-day trial in February 2015, the jury found in Dieser’s favor, awarding him a total of $883,000 in damages -- $33,000 for past economic damages, including medical damages; $750,000 for past non-economic damages; and $100,000 for future non-economic damages. In March 2015, Dieser filed a motion for entry of judgment, including a request for post-judgment interest under section 408.040.1, RSMo. The medical center sought a new trial, an amended judgment or remittitur (a trial court reduction of the jury award) and opposed post-judgment interest, arguing section 538.300, RSMo, precludes post-judgment interest for medical negligence cases. In April 2015, the trial court issued its judgment on the jury’s verdict, without post-judgment interest. Both parties appeal.

Dieser’s appeal raises several issues for the Court. Related issues involve whether section 538.300 precludes post-judgment interest in this case or whether section 408.040.1 requires the trial court to award post-judgment interest to Dieser and, if so, at what rate the interest should run. Other issues involve whether denying post-judgment interest violates Dieser’s rights under the state constitution or whether he raised these challenges in a timely manner. If so, then specific questions arise as to whether the denial violated Dieser’s fundamental property rights as provided by article I, section 2; his rights to open courts and a certain remedy as provided by article I, section 14; and his rights to a trial by jury as provided by article I, section 22(A).

St. Anthony’s appeal raises other issues for the Court. One is whether the trial court should have allowed Dieser’s counsel to cross-examine the medical center’s nursing expert about alleged “never events” under Medicare regulations in relation to certain pressure ulcers acquired in a hospital. Another is whether the trial court should have allowed Dieser’s counsel to make certain statements and ask certain questions regarding the burden of proof during jury selection or whether the jury could have been confused about the proper burden of proof as a result. Another question is whether the trial court abused its discretion in allowing Dieser to testify that, as a Catholic, he felt betrayed, deceived and angry toward the medical center because of its Catholic affiliation. An additional question is whether Dieser’s counsel improperly argued to the jury that it should tell the community what constitutes acceptable medical practice. A further issue is whether the jury’s verdict was excessive and, if so, whether the trial court should have granted the medical center’s motion for a new trial.

SC95022_Dieser_first_brief.pdf

SC95022_St_Anthony's_Medical_Center_first_brief.pdf

SC95022_Deiser_second_brief.pdf

SC95022_St_Anthony's_Medical_Center_second_brief.pdf

SC95171
Progress Missouri Inc., et al. v. Missouri Senate, et al.
Cole County
Statutory, constitutional challenges to senate precluding organization from recording video of senate proceedings
Listen to the oral argument:

SC95171.mp3
Progress Missouri was represented during arguments by Christopher Grant of Schuchart, Cook & Werner in St. Louis; the senate was represented by Deputy Solicitor General Jeremiah Morgan of the attorney general’s office in Jefferson City.

In the past, representatives of advocacy organization Progress Missouri Inc. apparently have filmed hearings before state legislative committees in both chambers. The organization has posted recordings of meetings on its website and has live-streamed hearings. In February 2015, representatives of Progress Missouri sought to record video of three senate committee hearings but each time were denied such permission. They were told by the committee chairmen generally that such recording is allowed only for members of the media recognized by the Missouri Capitol News Association and that such a policy is consistent with senate Rule 96. Progress Missouri does not wish to join the association – a private organization that requires its members to be editorially independent of any lobbying entity or interest group – because it does not wish to cease its advocacy activities. In March 2015, Progress Missouri was precluded from recording video of certain senate committee hearings – in one instance, the committee chairman required that all cameras be put away, making no exception for members of the press corps. Another chairman told Progress Missouri that the senate communications office records all of his committee hearings, but the office apparently was unable to provide complete recordings of certain hearings for which Progress Missouri made a request. Progress Missouri and its executive director (collectively, Progress Missouri) subsequently sued the state senate, three senate committees and those committees’ chairmen (collectively, the senate), alleging violations of the state’s “sunshine law” (chapter 610, RSMo) and of its constitutional rights to freedom of speech and association. In its June 2015 judgment, the trial court granted the senate’s motion to dismiss the suit, finding that the sunshine law claims invoked political questions immune from judicial review and that Progress Missouri failed to allege facts establishing any violation of state or federal constitutional rights. Progress Missouri appeals.

This appeal raises several questions for the Court. One is whether the sunshine law’s requirement that a public body shall allow for recording by audio, video or other electronic means of any public meeting applies to and binds the senate and whether the senate’s Rule 96 comports with this law. Another is whether Progress Missouri’s statutory claims invoke political questions regarding the legislature’s rules of its proceedings for which the senate is immune from judicial review under the state constitution. Additional questions relate to whether this Court must decide the constitutional validity of the sunshine law as applied to the senate or whether article III, sections 18 and 31 limit the senate’s authority to adopt a rule governing video recording of senate proceedings. A further issue is whether Progress Missouri stated a claim that the senate, through its Rule 96, denied the organization the right to record the senate’s open meetings under chapter 610 in violation of the constitutional rights to freedom of speech and association.

SC95171_Progress_Missouri_Brief.pdf

SC95171_Senate_brief.pdf

SC95171_Progress_Missouri_reply_brief.pdf

SC95214
Tanisha Ross-Paige v. Saint Louis Metropolitan PoliceDepartment, Steven A. Gori, Michael A. Deeba Sr., Saint Louis Board of Police Commissioners, Richard H. Gray, Bettye Battle Turner, Thomas J. Irwin and Francis G. Slay
St. Louis city

This case was removed from this oral argument docket by order dated December 28, 2015, for rescheduling at a later date.

SC95307
Rachal Laut f/k/a Rachal Govro and John M. Soellner v. City of Arnold
Jefferson County
Entitlement to civil penalty, attorney fees under state’s “sunshine law”
Listen to the oral argument:

SC95307.mp3
Laut and Soellner were represented during arguments by Bevis Schock, an attorney in St. Louis; the city was represented by Allison Sweeney of Robert K. Sweeney LLC in Hillsboro.

In October 2010, Rachal Laut and John Soellner filed a request under the state’s “sunshine law” (chapter 610, RSMo) seeking from the city of Arnold documents related to the city police department and certain employees the pair alleged had accessed, without proper authorization, Laut’s and Soellner’s confidential records in a law enforcement database. In their letter, Laut and Soellner indicated their request regarded potential civil claims against the department and its employees. Three days later, the city responded that there had been no criminal investigation (and so no records) and that, although there had been an internal affairs investigation, such documents are closed personnel records and exempt from disclosure under the sunshine law. In December 2010, Laut and Soellner sued the city for failing to disclose its investigative records under the sunshine law. Following a hearing, the trial court entered its judgment in favor of the city. In December 2013, the appeals court reversed the judgment and remanded (sent back) the case, ordering the trial court to conduct an in-chambers review of the documents. The trial court did so in May 2014 and ordered the city to disclose some of those documents. Laut and Soellner then applied for assessment of a civil penalty and attorney fees against the city. In June 2014, the trial court denied both applications. Laut and Soellner appeal.

This appeal raises one primary issue for the Court – whether the city purposefully or knowingly violated the sunshine law in not disclosing the documents Laut and Soellner sought such that they are entitled, under the sunshine law, to both a civil penalty and attorney fees. A related question involves whether the amount of attorney fees sought was reasonable.

SC95307_Laut_and_Soellner_brief.pdf

SC95307_City_of_Arnold_brief.pdf

SC95307_Laut_and_Soellner_reply_brief.pdf

SC95331
In re: Joel B. Eisenstein
St. Charles County
Attorney discipline
Listen to the oral argument:

SC95331.mp3
The chief disciplinary counsel’s office was represented during arguments by its regional special representative Marc Lapp, an attorney in St. Louis; Eisenstein was represented by Alan Mandel of Mandel & Mandel LLP in St. Louis.

St. Charles attorney Joel Eisenstein represented the husband in a contentious divorce lawsuit in St. Louis County. During the pendency of the lawsuit, the husband, without permission, accessed and obtained from his wife’s personal e-mail account documents including her current payroll document and a seven-page, privileged list of direct examination questions the wife’s attorney had sent to the wife in preparation for the divorce trial. The husband made notes next to some of the questions and then gave both documents to Eisenstein. The parties dispute whether Eisenstein used the payroll document during a settlement conference prior to trial without notifying the wife’s attorney that he had the document. On the second day of the February 2014 trial, Eisenstein gave the wife’s attorney a stack of updated exhibits, including the attorney’s list of direct examination questions with the husband’s handwritten notes. When the attorney realized Eisenstein had her list of questions, she asked for a conference with the trial court in chambers. In chambers, the husband admitted he had accessed the documents from his wife’s e-mail account and given the documents to Eisenstein. The parties dispute whether Eisenstein admitted he had seen the list of questions and knew he should not have it but did not tell opposing counsel he had her outline. The chief disciplinary counsel began disciplinary proceedings, and a hearing was held in July 2015. The husband died before the hearing, but the regional disciplinary hearing panel accepted into evidence his sworn testimony in the underlying lawsuit. In its August 2015 decision, the disciplinary panel concluded that Eisenstein violated several rules of professional responsibility – Rule 4-3.4(a) by unlawfully concealing a document with potential evidentiary value – the wife’s attorney’s direct examination questions of her client – and failing to so notify opposing counsel until the second day of trial; Rule 4-4.4(a) by using methods of obtaining evidence that violated a third person’s rights by receiving illegally obtained communications and work product between the wife and her attorney; Rule 4-8.4(c) by using the illegally obtained evidence of the wife’s pay stub information in settlement negotiations as well as by reviewing the illegally obtained trial outline of the wife’s attorney; and Rule 4-8.4(d) by threatening opposing counsel not to spread rumors of their “spat” because she did not want to make an enemy of him. In accord with the disciplinary panel’s recommendation, the chief disciplinary counsel asks this Court to suspend Eisenstein’s law license with no leave to apply for reinstatement for at least one year.

This case presents two related issues for the Court – whether Eisenstein violated the rules of professional conduct and, if so, what discipline is appropriate.

SC95331_chief_disciplinary_counsel_brief.pdf

SC95331_Eisenstein_brief.pdf