Ronald Sanders v. Iftekhar Ahmed, M.D., et al.
Constitutional validity of medical malpractice non-economic damages cap
Listen to the oral argument:
Sanders was represented during arguments by Steven L. Hobson of The McIntosh Law Firm in Kansas City, and Admed was represented by Timothy M. Aylward of Horn Aylward and Bandy in Kansas City.
Ronald Sanders’ wife was admitted to the hospital in May 2003, where Dr. Iftekhar Ahmed, a neurologist, changed her medication. She was transferred from the hospital to a long-term care facility, and she died in August 2005. In May 2005, Sanders had sued a number of medical defendants on behalf of himself and his wife for medical negligence arising out of his wife’s hospital care. After Sanders’ wife died, her estate was substituted as a plaintiff and the case became a wrongful death suit. In 2008, Sanders dropped his wife’s estate as a plaintiff, added two defendants and amended the allegations, including adding a claim that the negligence of the various medical defendants had combined to cause his wife’s death. Before the case went to trial in September 2010, Sanders dismissed three individual defendants with prejudice, settled with all the remaining defendants except Ahmed and his employer, Dr. Iftekhar Ahmed PA (collectively, Ahmed), and amended his reply to Ahmed’s answer by raising constitutional objections to section 538.210, RSMo 1986, which caps the amount of non-economic damages (those not for actual medical costs or other economic losses) available in medical malpractice actions. Sanders submitted the case to the jury on the theory that his wife had an unusual genetic defect that prevented her body from eliminating properly the ammonia that was produced by the medication that Ahmed gave her, that Ahmed failed to recognize and treat properly her rising ammonia level, and that, as a result, she suffered irreversible brain damage that ultimately caused her death. The jury returned its verdict in favor of Sanders, awarding him nearly $920,750 in past economic damages (including past medical damages), $1.7 million in past non-economic damages and $7.5 million in future non-economic damages. After the verdict was rendered but before the trial court entered its judgment, Ahmed moved – over Sanders’ objection – to reduce the non-economic damages awards to conform to the limits imposed by section 538.210. In September 2010, the court entered its initial judgment reflecting the amounts rendered in the verdict. Subsequently, the parties agreed that the statutory cap on damages was $632,603.82 for each of the two defendants as of the date of trial. In October 2010, the trial court entered its amended judgment, reducing the non-economic damages from $9.2 million to $1,265,207.64 and apportioning the proceeds among Sanders and the couple’s two daughters. Sanders moved to amend the judgment, asserting the statutory cap was unconstitutional and asking that the jury’s non-economic damages awards be reinstated. Ahmed asked the court to reduce the verdict by the $625,000 paid by the former co-defendants in their settlement agreements with Sanders and to allow him to make periodic installment payments toward the future damages award. The court overruled both parties’ motions. Sanders appeals, and Ahmed cross-appeals.
Sanders argues the trial court erred in sustaining Ahmed’s motion to apply section 538.210 and in reducing his non-economic damages, contending the statute violates the Missouri Constitution. He asserts the statute substantially interferes with his article I, section 22(a) right to a jury trial by depriving him of the right to have the jury determine damages, depriving him of obtaining the full and intended effect of the jury’s verdict, and preventing him from a judgment entered in accordance with the verdict on which he could execute his right to recover all his damages. He argues the statute also is an impermissible legislative interference with judicial authority in violation of the article II, section 1 guarantee of separation of powers. Sanders contends it is the courts’ inherent power and duty to enter judgment in accordance with a jury verdict and to enforce that judgment as well as the traditional judicial function of assessing, on a case-by-case basis, whether a jury’s damages award is excessive or against the weight of the evidence. He asserts the statute substitutes a fixed damage ceiling that fails to account for the facts of a particular case and precludes judicial inquiry and a new trial.
Ahmed responds that section 538.210 does not violate the right to a jury trial as it was known at common law (case law developed by courts). He argues that, at common law, actions for personal injuries did not survive the victim’s death and there was no action for wrongful death until it was created by statutes. He contends that the action here is for wrongful death, not a “garden-variety” personal injury action. Ahmed asserts that this Court rejected the argument that section 538.210 violates the right to trial by jury in Adams v. Children’s Mercy Hospital, 832 S.W.2d 898 (Mo. banc 1992), which he argues noted that there is no substantive right under the common law to a jury determination of damages under the Seventh Amendment to the United States Constitution and determined that the legislature can abrogate completely a common-law cause of action. He contends that this precedent should continue to be followed. Ahmed responds that section 538.210 is a valid exercise of legislative prerogative that does not violate separation of powers. He argues the statute’s damages cap does not force the trial court to exercise its judgment in a particular way or determine the amount of damages that can be awarded to a particular plaintiff but merely places a uniform outer limit on the remedy available against any health care provider.
Ahmed argues that the trial court erred in overruling his motion, pursuant to section 537.060, RSMo 2000, to reduce the verdict by the amounts Sanders received from settlements with Ahmed’s former co-defendants. Ahmed argues this statute requires the court to reduce the claim when an agreement was entered between one or more persons liable for the same wrongful death. He contends that, before trial, Sanders entered into settlement agreements with several defendants and that Sanders’ claim against Ahmed should have been reduced by the amounts Sanders received from these other defendants. Ahmed asserts that the trial court erred in overruling his motion, pursuant to section 538.220.2, RSMo 1986, to make periodic payments of the future non-economic damage award. He argues this statute provides that, when more than $100,000 in damages are awarded, a trial court must grant either party’s request, made before the court enters its judgment, to make periodic or installment payments of future damages. He contends that he made such a request here and that, because the damages awarded against him exceeded $100,000, the court was required to grant his request. Ahmed asserts that the trial court erred in overruling his motion for a directed verdict or judgment notwithstanding the verdict because Sanders failed to prove that Ahmed’s alleged negligence caused the claimed injury. Ahmed further argues that the trial court erred when it overruled his motion for a new trial. He contends he was denied a fair trial because arguments made by Sanders’ counsel were improper and so unduly prejudicial that they inflamed the jury’s passions and prejudices.
Sanders responds that the trial court correctly overruled Ahmed’s motion to reduce the damages by the amount Sanders received from settlements with other defendants. He argues this is an affirmative defense that Ahmed waived by failing to plead any facts in his answer to support such a defense and failing to present any evidence to carry his burden of proof on this issue. Sanders contends the court correctly overruled Ahmed’s motion, pursuant to section 538.220, to make periodic payments of future non-economic damages. Sanders responds that this statute violates the state constitution’s article I, section 22(a) right to a jury trial; the article II, section 1 guarantee of separation of powers; the article I, section 26 right not to have private property (here, his right to possess the entire jury award) taken for public use without just compensation; and article III, section 40(4) prohibition against special laws changing the way debts are collected and judgments are enforced. Alternatively, Sanders asserts that if section 538.220 is constitutional, then the court properly exercised its statutory discretion to treat all non-economic damages remaining after the caps were applied as past non-economic damages without allocating them between past and future non-economic damages. Sanders argues that the trial court correctly overruled Ahmed’s motion for judgment notwithstanding the verdict. He contends that because Ahmed did not move for a directed verdict at the close of Sanders’ case, Ahmed could not claim later that Sanders failed to prove his case. Sanders asserts that Ahmed’s motion for a directed verdict at the close of all the evidence failed to include the specific grounds on which it was sought and that, regardless, Sanders presented sufficient direct and circumstantial evidence of causation. Sanders further responds that the trial court correctly overruled Ahmed’s motion for a new trial on the basis of Sanders’ counsel’s opening statement and closing arguments. He argues his counsel did not make an improper “send a message” argument by asking the jury to punish Ahmed with a sizeable damage award. He also contends that Ahmed failed to preserve his claim of error and failed to prove prejudice or manifest injustice.
Estate of Max E. Overbey, Deceased, and Glenna J. Overbey v. Chad Franklin National Auto Sales North, LLC, and Chad Franklin
Constitutional validity of punitive damages cap
Listen to the oral argument:
The Estate was represented during arguments by Douglass F. Noland of Noland Law Firm in Liberty, and Franklin and his auto company were represented by Patric S. Linden of Case and Roberts, P.C. in Kansas City.
Max and Glenna Overbey bought a 2007 Suzuki sport utility vehicle for their grandson and his wife. They purchased the vehicle in September 2007 from Chad Franklin National Auto Sales North LLC in North Kansas City after seeing television commercials about a “test market deal” promotion at the dealership that made certain representations. A salesman at the dealership, which was owned by Chad Franklin, told the Overbeys that their monthly payments would be less than $50, that National Auto Sales would write them a check to cover the difference between what they owed and the regular monthly payment of more than $700 for the vehicle, and that the dealership would provide the Overbeys with a gasoline card to cover their fuel expenses for the first six months. A few days later, the Overbeys completed the purchase. Dealership personnel wrote them a check to make up the difference in the monthly payments and help cover the sales tax and told them they could trade in the vehicle for a new one in six months. The Overbeys did not deal directly with Chad Franklin. When the reimbursement funds were exhausted after six months, the Overbeys tried to return the Suzuki to National Auto Sales. They learned the employees who had helped them no longer worked there and that the new employees had no knowledge of their arrangement with the dealership.
The Overbeys sued Chad Franklin and the dealership. During an August 2010 jury trial, neither Franklin nor a designated representative for the dealership personally appeared. The Overbeys submitted claims under the state’s merchandising practices act. Franklin moved for a directed verdict, alleging the Overbeys had failed to present sufficient evidence to support a verdict holding him personally liable under the act and had not pleaded or proved any claim to pierce the dealership’s corporate veil so as to impose direct liability on Franklin. The trial court overruled the motions, and the jury returned verdicts against both the dealership and Franklin. It awarded the Overbeys $76,000 in actual damages and $250,000 in punitive damages against the dealership and $4,500 in actual damages and $1 million in punitive damages against Franklin. The court entered judgment in accordance with the jury’s verdict. Max Overbey died in September 2010, and his estate was substituted as a plaintiff. Also in September, Franklin moved for judgment notwithstanding the verdict or remittitur (judicial reduction) of the jury’s punitive damages award against him, and the Overbeys moved to amend the judgment to be awarded $67,000 in attorney fees. In November 2010, the court overruled Franklin’s motion but amended its judgment, awarding the Overbeys $72,000 in attorney fees and reducing the punitive damages award against Franklin to $500,000. The Overbeys appeal, and Franklin cross-appeals.
The Overbeys’ appeal
The Overbeys argue the trial court erred in reducing their punitive damage award pursuant to section 510.265, RSMo, which they argue violates the Missouri Constitution. They contend this statute violates the constitutional separation of powers prescribed by article II, section 1 by causing the court to relinquish its discretion to remit (reduce) damages based on the evidence and invading the jury’s province to assess damages. The Overbeys argue the statute – which provides an exception for the cap on damages when the defendant is convicted of or pleads guilty to a felony arising out of the civil action – also unconstitutionally allows the executive (the attorney general or a county prosecutor) to determine whether the limitation on the amount of punitive damages should apply. They contend that because the attorney general brought a civil action against Franklin and his dealership but not criminal charges, and therefore no felony conviction was obtained, the court could not enter judgment on the $1 million punitive damages award but rather was required to reduce the jury award pursuant to the statutory cap. The Overbeys assert that section 510.265 violates their article I, section 22(a) right to a jury trial by substituting the legislature’s mandated maximum punitive damages award in place of the jury’s determination of punitive damages. They argue the statute’s exemption of certain classes from the statutory limitation on punitive damages violates their right to equal protection under article I, section 2 of the state constitution and the Fourteenth Amendment of the federal constitution. The Overbeys contend the statute violates the article III, section 40 prohibition against special legislation because it is based on arbitrary classifications and its legitimate purpose may be served best by a general law applying to all classes. They assert that the statute violates the due process under article I, section 10 of the state constitution and the Fourteenth Amendment of the federal constitutional because it imposes a mandatory and arbitrary limitation of punitive damages even when the award was not deemed excessive under due process standards. The Overbeys contend that, because they were proceeding as private attorneys general in bringing their claim under the merchandising practices act, an exception in section 510.265 applies, making the reduction of the punitive damages award improper. They assert that the statute violates their article I, section 14 right to open courts by limiting the amount of punitive damages available when Franklin was not convicted of a felony arising out of their claim.
Franklin responds that the trial court did not err in reducing the Overbeys’ punitive damages award in accordance with section 510.265, which he argues does not violate either the state or federal constitution. He contends the statute does not violate separation of powers because it is an appropriate exercise of the legislature’s authority to modify or limit causes of action and does not invade the judicial function improperly. He asserts the Overbeys waived any argument that the statute violates the separation of powers between the executive and legislature by failing to raise that argument before the trial court. Franklin responds that section 510.265 does not violate the right to a jury trial because it does not apply until after the jury has finished its constitutional task, does not impact how the jury determines punitive damages and essentially attempts to codify certain due process principles from case law that do not implicate the right to a jury trial. He argues the statute does not violate equal protection because it has a legitimate purpose and the legislature reasonably believed the challenged classification would promote that purpose. As to the Overbeys’ special legislation claim, he contends this Court should deny the claim because the Overbeys failed to raise this challenge before the trial court. To the extent this Court reviews the point, he asserts that the statute is not special legislation because it uses open-ended classifications, it is not arbitrary or without a legitimate legislative purpose, and the legislature reasonably believed the challenged classification would promote that purpose. Franklin responds that the statute does not violate the Overbeys’ right to due process because it does not divest them of any vested property rights. He argues the Overbeys’ claim did not fall within the statutory exception for claims brought by the state because the plain meaning of the statute does not allow “private attorney general” claims to qualify for that exception. Franklin further responds that the Overbeys failed to preserve for appeal their claim that the statute violates the open courts doctrine. He contends that because they did not raise this claim before the trial court, they are barred from raising it now. He asserts this Court should not give the claim plain-error review because the record does not support a determination that section 510.265 restricted the Overbeys’ access to the courts.
Franklin argues the trial court erred in overruling his motions for directed verdict and judgment notwithstanding the verdict. He argues the Overbeys presented no evidence that he personally had engaged in any conduct that violated the merchandising practices act with respect to the Overbey transaction. He contends the Overbeys did not seek to impose individual liability on him by submitting a claim seeking to pierce the dealership’s corporate veil. As such, he asserts, there was no support in the record for the jury to find him liable on this claim, and he was entitled to entry of judgment in his favor notwithstanding the jury’s verdict. Franklin argues the trial court erred in failing to reduce much further the punitive damages award against him. He contends the reduced award of $500,000 still far exceeded the amount permitted under the due process provisions of the federal and state constitutions. He asserts the evidence does not support a punitive damages award that is more than 111 times the amount of actual damages based on his conduct, the disparity between the harm the Overbeys suffered and the punitive damages awarded, and the difference between the punitive damages and comparable civil penalties that could be imposed in similar cases. Franklin further argues the trial court abused its discretion in awarding the Overbeys $72,000 in attorneys fees. He contends that this award was not supported by competent evidence, that the Overbeys sought only $67,000 in attorneys fees and that there was no evidentiary basis for the court to award an additional $5,000 in fees.
The Overbeys respond that the trial court did not err in overruling Franklin’s motions for a directed verdict or judgment notwithstanding the verdict. They argue they presented sufficient evidence that Franklin himself violated the merchandising practices act because he personally advertised the promotion, was aware of the sale to the Overbeys and personally profited from the Overbeys’ sale. As such, they contend, it was not necessary to pierce the dealership’s corporate veil to reach Franklin, who was a separate defendant. The Overbeys respond that the trial court did not violate due process in not reducing further the punitive damages award against Franklin. They assert that the punitive damages award complies with the due process guideposts provided by the state and federal constitutions and the evidence presented at trial and that it is appropriate given Franklin’s conduct. The Overbeys argue that the trial court did not abuse its discretion in awarding them $72,000 in attorneys fees. They contend that this amount was not arbitrary or unreasonable and that Franklin did not preserve this argument for appeal.
Eddie Cluck v. Union Pacific Railroad Company
Liability of railroad for co-employee’s negligence
Listen to the oral argument:
Cluck was represented during arguments by Stephen H. Ringkamp of The Hulverson Law Firm, and Union Pacific was represented by Craig M. Leff of Yeretsky and Maher, L.L.C. in Overland Park, Kansas.
Eddie Cluck, Larry Clark and their fellow Union Pacific Railroad Company locomotive crew members were transported in a crew van provided by the company from Arkansas to Kansas in January 2004. When the van arrived at the hotel provided by the company, Cluck began unloading the employees’ bags. When he dropped Clark’s bag to the ground, a gun inside the bag discharged, hitting Cluck in the knee. Clark apparently had forgotten the loaded gun was in his bag. Cluck sued Union Pacific under the federal employers’ liability act. Another crew member also had a gun on the same trip. At trial, Union Pacific’s corporate representative admitted that the accident was caused by Clark’s carelessness. He also admitted that, by failing to warn Cluck there was a loaded gun with its safety off in his luggage, Clark violated the railroad’s rules, which require employees to warn others of dangerous conditions and which forbid employees from bringing a gun onto Union Pacific property under any circumstances. At trial, Cluck sought to introduce deposition testimony from a railroad manager who said he was aware of incidents in which railroad employees had been disciplined for bringing weapons to work, but the trial court sustained Union Pacific’s objection and would not allow this testimony into evidence. Union Pacific was allowed to introduce, over Cluck’s objection, evidence that Cluck refused to accept any position with the railroad that netted him less than $2,350 per month. At the close of the evidence, both Cluck and Union Pacific moved for directed verdicts. The court overruled both motions. During lengthy discussions regarding the instructions to be given to the jury, Cluck proffered certain instructions based on Missouri Approved Instruction 24.01(A), regarding respondeat superior liability (under which an employer is liable for its employee’s actions that take place within the scope of employment). The court rejected these proffered instructions, as well as other proffered instructions adding the element of the scope and course of employment. The court ultimately submitted an instruction to the jury based on MAI 24.01(B), a direct negligence instruction. Cluck also sought to submit MAI 34.05, which would have instructed the jury not to consider evidence of prior payments to or on behalf of Cluck. The court rejected this instruction. The jury returned a verdict for Union Pacific, and the court entered its judgment in accordance with the jury’s verdict in November 2008. Cluck appeals.
Cluck argues the trial court erred in overruling his motion for a directed verdict on the issue of Union Pacific’s liability. He contends there was no question of fact for the jury to determine because the evidence was undisputed and Union Pacific admitted all the facts necessary to establish each element of his case, including the course and scope of employment. He asserts that the railroad has a statutory duty to provide a reasonably safe work environment, that he and Clark were within the scope of employment as a matter of law, and that the railroad’s lack of care caused the injury, which was foreseeable. Alternatively, Cluck argues that the court committed prejudicial error in refusing to submit any of his proffered instructions based on MAI 24.01(A). He contends he had the right to have the jury instructed as to any theory supported by the evidence, including his theory of Union Pacific’s respondeat superior liability, which he contends was supported by substantial evidence. Cluck asserts that the trial court erred in refusing to withdraw the issue of prior payments made to him because introduction of evidence that he would refuse work that paid less than $2,350 per month created a false issue for the jury. Cluck argues the trial court erred in barring him from introducing the manager’s deposition testimony about other Union Pacific employees bringing weapons to work. He contends that the railroad introduced evidence that it had no knowledge that any of its employees bring guns to work and that the railroad waived its objection to admission of this rebuttal evidence at trial when it did not object to the testimony during the deposition.
Union Pacific responds that the trial court did not err in overruling Cluck’s motion for a directed verdict as to the liability issue or in rejecting instructions based on MAI 24.01(A). It argues the undisputed evidence demonstrated conclusively that the railroad was not liable for Clark’s alleged negligence in bringing a loaded gun to work in his bag. Alternatively, it contends that the issue of whether Clark was negligent and whether he was acting within the scope and course of employment were issues of fact to be determined by the jury and that none of Cluck’s proffered instructions was correct based on the law and the facts. Union Pacific asserts that the trial court did not commit reversible error in rejecting Cluck’s proffered withdrawal instruction based on MAI 34.05. It responds that Cluck did not proffer this instruction at or before the jury instruction conference and that the law does not permit the court to give a withdrawal instruction in response to a question posed by the jury during its deliberations. It argues that the evidence did not support the withdrawal instruction and that, because the jury never reached the issue of damages, Cluck was not prejudiced by the court’s refusal to give this instruction. Union Pacific contends the trial court did not abuse its discretion in excluding portions of the manager’s deposition testimony. It asserts this testimony constituted inadmissible hearsay, was irrelevant, was not probative of any fact, was more prejudicial than probative, and constituted evidence of other incidents for which Cluck did not show substantial similarity.
The Missouri Association of Trial Attorneys, which filed a brief as a friend of the Court, argues that the law does not authorize an employer to exclude negligent acts from the scope of employment when the employer has authorized the employee’s general activity. It contends that the federal employers’ liability act expressly provides that a railroad is liable when its employee is injured due to the negligence of a co-employee and that the act does not require that the specific negligent act be alleged to be done in the course and scope of the co-employee’s work. The association asserts that, if this Court applies the traditional test for course and scope of employment, that test requires only that the general activity in which the co-employee was engaged partially furthers the employer’s business and not that the employer authorized the specific act of negligence.
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