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Case Summary for October 21, 2015

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, October 21, 2015
____________________________________________________________________________________________________

SC95151
Jason D. Dodson and Jason D. Dodson Jr., a Minor, and Eva Raine Dodson-Lohse, a Minor, and August William Davis Dodson, a Minor, Said Minors Appearing by the Duly Appointed Next Friend Jason D. Dodson v. Robert P. Ferrara, M.D., and Mercy Clinic Heart and Vascular LLC
St. Louis County
Challenge to wrongful death verdict, constitutional validity of damages cap

Listen to the oral argument: SC95151.mp3SC95151.mp3
The doctor was represented during arguments by Paul N. Venker of Williams Venker & Sanders LLC in St. Louis; the family was represented by Patrick J. Hagerty of Gray, Ritter & Graham PC in St. Louis.

A mother went to the Mercy Medical Center emergency room in February 2011 and was admitted to the hospital. During a cardiac catheterization test cardiologist Dr. Robert Ferrara performed, the motherís left main coronary artery was dissected, compromising blood flow. She was taken into emergency surgery, but she died. The motherís husband and minor children (collectively, the family) sued Ferrara and his employer, Mercy Clinic Heart and Vascular LLC (collectively, the doctor). Following an August 2013 jury trial, the trial court directed a verdict in favor of the doctor on the familyís claim for damages for aggravating circumstances, and the jury subsequently returned a verdict in the familyís favor on all remaining claims, awarding the family more than $10.83 million in damages, including $9 million in noneconomic damages. In December 2013, the trial court reduced the award for noneconomic damages to $350,000 pursuant to section 538.210, RSMo, and entered its final judgment in the familyís favor, awarding a total of nearly $2.2 million in damages. The doctor appeals; the family cross-appeals.

The doctorís appeal presents multiple issues for the Court. Two involve whether the trial court should have permitted two lines of questioning Ė one about whether local physicians were unwilling to testify against other local physicians in medical malpractice cases and the other about what Ferrara may have asked of the motherís surgeon. Another issue involves whether the court should have given the jury an instruction about the consideration of insurance benefits in determining damages. Other questions involve whether the family made a submissible case for loss of economic support, whether the trial court erred in admitting certain evidence about the motherís future earnings and health insurance benefits, and whether the family presented sufficient evidence to support their claim for damages for aggravating circumstances.

The familyís cross-appeal challenges the constitutional validity of the section 538.210(1) cap on noneconomic damages. For example, they question whether this cap still applies in wrongful death cases in light of this Courtís 2012 decision in Watts v. Cox Medical Center and, if so, whether the trial courtís imposition of the cap violated a constitutional right to a trial by jury in wrongful death cases. Other questions are whether imposing the cap only in wrongful death cases but not personal injury cases violates the equal protection, right to a jury trial or separation of powers provisions of the state and federal constitutions. A related question is whether the cap violates equal protection as applied because it applies only in medical malpractice cases resulting in death rather than just personal injury.

SC95151_physicians_first_brief_filed_in_ED.pdfSC95151_physicians_first_brief_filed_in_ED.pdfSC95151_family_first_brief_filed_in_ED.pdfSC95151_family_first_brief_filed_in_ED.pdfSC95151_physicians_second_brief_filed_in_ED.pdfSC95151_physicians_second_brief_filed_in_ED.pdfSC95151_family_second_brief_filed_in_ED.pdfSC95151_family_second_brief_filed_in_ED.pdf



SC94844
Ruth Mickels, et al. v. Raman Danrad, M.D.
Marion County
Challenge to summary judgment in wrongful death case
Listen to the oral argument: SC94844.mp3SC94844.mp3
The family was represented during arguments by Thomas K. Neill of Gray, Ritter & Graham PC in St. Louis; the doctor was represented by John B. Morthland of Wasinger Parham LC in Hannibal.

A radiologist reviewed two kinds of tests of a manís brain Ė one in December 2008, when he did not diagnose a tumor and the other in February 2009, when he did. The man subsequently was seen by oncologists and underwent brain surgery, radiation and chemotherapy to remove the cancer. After the man died in June 2009, his family members (collectively, the family) sued the radiologist for wrongful death. In February 2014, the circuit court entered summary judgment (judgment on the court filings, without a trial) in favor of the doctor. The family appeals.

The family presents one question for the Court: whether the family presented sufficient evidence or created a genuine issue of fact to establish the doctorís negligence caused or contributed to the manís death and, therefore, to get the familyís case past a summary judgment motion and to trial.

SC94844_Mickels_brief.pdfSC94844_Mickels_brief.pdfSC94844_Danrad_brief.pdfSC94844_Danrad_brief.pdfSC94844_Mickels_reply_brief.pdfSC94844_Mickels_reply_brief.pdf



SC94745
State of Missouri v. Jerri Smiley
Greene County
Constitutional validity of mandatory minimum sentence for armed criminal action as applied to juvenile offenders
Listen to the oral argument: SC94745.mp3SC94745.mp3
The state was represented during arguments by Evan J. Buchheim of the attorney generalís office in Jefferson City; Smiley was represented by James Egan of the public defenderís office in Springfield.

Police arrested 16-year-old Jerri Smiley for allegedly stabbing another woman in the back. Although proceedings were initiated in the juvenile division, the state ultimately tried Smiley as an adult, charging her with first-degree assault and armed criminal action. Before trial, Smiley challenged the constitutional validity of the penalty provision of section 571.015, RSMo, which requires that armed criminal action ďshall be punishedĒ by a mandatory minimum sentence of three years in prison without eligibility for parole, probation, conditional release, or suspended imposition or execution of sentence for at least three calendar years. Before trial, the circuit court declared the penalty provision of section 571.015 unconstitutional as applied to juvenile offenders such as Smiley. The state appeals.

The appeal presents one primary issue for the Court: whether the mandatory minimum sentence imposed by section 571.015 Ė as applied to juvenile offenders Ė violates the due process or clear and unusual punishment provision of the state constitution. The state notes such a sentence is not imposed except for a juvenile offender who commits a felony ďby, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon.Ē

The Juvenile Law Center and others filed a brief as friends of the Court. They point to United States Supreme Court jurisprudence suggesting that children are less culpable than adults and are different from adults in constitutionally relevant ways not limited to a particular crime or sentence. They suggest that, because of reduced culpability of adolescents, section 571.015 cannot be applied automatically to juvenile offenders and that juvenile offenders should not be placed in adult facilities.

SC94745_State_brief.pdfSC94745_State_brief.pdfSC94745_Smiley_brief.pdfSC94745_Smiley_brief.pdfSC94745_State_reply_brief.pdf
SC94745_Juvenile_Law_Center_et_al_amici_brief.pdfSC94745_Juvenile_Law_Center_et_al_amici_brief.pdf



SC94622
Richard D. Davis v. State of Missouri
Jackson County
Post-conviction relief in death penalty case
Listen to the oral argument: SC94622.mp3SC94622.mp3
Davis was represented during arguments by Kent Denzel of the public defenderís office in Columbia; the state was represented by Richard A. Starnes of the attorney generalís office in Jefferson City.

Following a jury trial, Richard Davis was convicted of first-degree murder and multiple counts of first-degree assault, forcible rape and forcible sodomy for his part in the May 2006 death of a woman. The state submitted three statutory aggravating circumstances in the penalty phase of the trial, and the jury recommended a death sentence. The trial court entered its judgment in October 2014 sentencing Davis to death for the murder conviction and to four consecutive life sentences for the other convictions. This Court affirmed the judgment on direct appeal. Davis subsequently filed a motion for post-conviction relief, alleging claims of ineffective assistance of counsel. Following an evidentiary hearing, the circuit court denied relief. Davis appeals.

This appeal raises multiple issues for this Court about whether Davisí trial counsel were ineffective and whether their alleged failures violated Davisí constitutional rights or affected the outcome of Davisí case. Several issues involve whether counsel should have called a psychiatrist to testify that he had diagnosed Davis with bipolar disorder and then should have used this testimony to argue before trial that Davis was incompetent to be tried and during trial to support Davisí defenses that he had diminished capacity or should be found not guilty by reason of mental disease or defect. Another issue is whether counsel should have called this same psychiatrist to testify that Davis had been prescribed a psychotropic medication that should have been taken with an accompanying mood stabilizer and then should have used this testimony to support an involuntary intoxication or diminished capacity defense. Another question is whether Davisí counsel should have called a clinical psychologist who specializes in trauma to present mitigating evidence during the penalty phase concerning Davisí alleged childhood emotional, physical and sexual trauma. Additional related questions involve whether counsel failed to consider Davisí expressed desire to testify, failed to prepare his testimony and failed to call him to testify.

SC94622_Davis_brief.pdfSC94622_Davis_brief.pdf SC94622_State_Brief.pdfSC94622_State_Brief.pdfSC94622_Davis_Reply_brief.pdfSC94622_Davis_Reply_brief.pdf




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