Case Summary for March 27, 2012

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Case Summary for March 27, 2012

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. Tuesday, March 27, 2012

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SC91867
Deborah Watts as next friend for Naython Kayne Watts v. Lester E. Cox Medical Centers d/b/a Family Medical Care Center, Lester E. Cox Medical Centers and Melissa R. Herrman, M.D., Matthew P. Green, D.O. and William S. Kelly, M.D.
Greene County
Challenge to non-economic damages cap in medical malpractice case

Listen to the oral argument:

Deborah Watts was represented during arguments by Andre Mura of the Center for Constitutional Litigation P.C. in Washington D.C., and Lester E. Cox Medical Center was represented by Deputy Solicitor General Jeremiah Morgan of the attorney general's office in Jefferson City. Judge Sandra C. Midkiff, a circuit judge with the 16th judicial circuit (Jackson County), sat in this case by special designation in place of Judge Zel M. Fischer.

Passed in 2005, House Bill No. 393 included provisions for reducing the non-economic damages (damages additional to actual cost of injury, litigation fees, etc.) awarded in medical malpractice cases for personal injury. Deborah Watts subsequently brought a medical malpractice case against Cox Medical Centers as the next friend of her infant son for injuries suffered at his birth, and the jury awarded her damages. The trial court reduced the non-economic damages from $1.45 million to $350,000 pursuant to section 538.210, RSMo, and set up installment payments totaling more than $3.37 million for future medical damages pursuant to section 538.220, RSMo. Specifically, the court required payment of half the future medical damages to be paid immediately and the rest over the next 50 years, plus interest. Watts filed a memorandum in opposition to the reduction, and the trial court issued an order declaring section 538.210 constitutional. Watts appeals, and Cox Medical cross-appeals.

Watts’ appeal

Watts argues the trial court erred in reducing the non-economic damages awarded to her. She contends the $350,000 cap for non-economic damages in section 538.210 violates the constitutional right to trial by jury by allowing the damages to be reduced from the amount determined by the jury. She contends the right to trial by jury attaches to her suit for damages because it is among the category of cases tried to juries since the state’s constitution was adopted in 1820. Watts asserts section 538.210 also violates separation of powers by invading the traditional judiciary function of assessing, on a case-by-case basis, whether a jury’s damages award is excessive, inadequate or against the weight of the evidence. She asserts the cap amounts to a fixed “legislative remittitur” that takes no account of the facts in a particular case. She argues section 538.210 violates the equal protection clause of the state constitution by arbitrarily and irrationally discriminating against victims of medical malpractice. She argues the cap is not rationally related to a legitimate state interest because there was no malpractice liability crisis or decrease in licensed physicians in Missouri. Watts contends section 538.210 violates the constitutional prohibition against special legislation because it grants special protection to health care providers. She asserts the amendments to section 538.210 violate the constitutional requirement of a clear title and single subject for legislation because the title is too general and some portions of the law apply to things other than damages. Watts argues the court erred by requiring half of all future medical damages be paid in installments that are discounted by a payment schedule because the damages already were reduced to present-day value and this is a violation of due process because of the reduction to present-day value. She contends section 538.220.2 violates equal protection by setting one method for calculating interest on future payments that does not take into consideration all relevant factors.

Cox Medical responds that the trial court was correct in following prior cases and reducing the damages awarded to Watts. It contends the limits set in section 538.210 are within the legislature’s power to create. Cox asserts the jury’s responsibilities are complete by the time section 538.210 is applied to limit the damages awarded. It argues the equal protection clause and separation of powers provisions are not violated by the limitation on damages. Cox Medical contends Watts’ challenges to section 538.210 based on the requirement of a clear title and single subject fail because it is past the deadline for such a claim and the law contains only a single subject. It asserts that requiring future medical damages to be paid in installments is constitutional.

Cox Medical’s cross-appeal

Cox Medical argues the trial court erred by immediately awarding future medical damages. It contends section 538.220 clearly outlines the process for future payment installments. Cox contends there is a difference between future damages and future medical damages. Cox asserts that the past non-economic damages awarded should be treated as past damages under section 538.220.1 and paid in a lump sum instead of installments. In the alternative, Cox medical argues that section 538.220.2 requires future damages to be paid in periodic or installment payments. Cox contends the trial court’s order awarding future medical damages to be paid partially in periodic payments should be upheld.

Watts responds that the legislature’s power is not absolute but is limited by the Bill of Rights. She argues the legislature’s powers should not interfere with the right to a trial by jury. Watts contends this Court has found the legislature has the right to limit punitive damages, but this does not affect the right to trial by jury. She asserts the limits of section 538.210 violate the constitutional provision preventing the legislature from intervening in the judicial process by interfering with the jury’s determinations. Watts also responds that section 538.210 violates the constitution’s separation of powers provision by allowing the legislature to outweigh the judicial power of review and set damage limits. She argues section 538.210 violates equal protection by infringing on her right to a trial by jury without a compelling state interest justifying the infringement. Watts contends the future payment schedule ordered by the circuit court is unreasonable and arbitrary because it does not assure full payment over the period of time allotted. Watts responds the trial court correctly divided the amount of future medical payments by the number of payments to be made in the allotted period. She argues the trial court correctly followed the statute; therefore, Cox Medical’s cross-appeal has no base.

Arguments by friends of the Court

The Missouri Coalition for Quality Care argues, as a friend of the Court, that the trial court erred in reducing the non-economic damages under section 538.210. It contends the limit on damages violates Watts’ right to a jury trial. The coalition asserts the limit removes the decision of non-economic damages from the jury, which is an essential guarantee of the right to a jury trial.

A group of professors from law schools and other institutions around the country argue, as friends of the Court, that the limit on damages in section 538.210 violates the equal protection clause of both the United States and Missouri constitutions. They contend the limit discriminates against certain classes of plaintiffs by having a disproportionate effect. The professors assert that non-economic damages are an important part of compensation for injuries stemming from medical negligence and that limits on such damages traditionally affect disadvantaged groups. They argue the legislature did not have a rational basis for setting the damages cap.

The Missouri AFL-CIO argues, as a friend of the Court, that the damage limit in section 538.210 is unconstitutional because it is not rationally related to any legitimate state interests and presents arbitrary and irrational classifications.

Paraquad argues, as a friend of the Court, that section 538.210 is unconstitutional because it violates both the United States and Missouri constitutions by discriminating against persons with disabilities.

The Missouri Chamber of Commerce along with several other chamber organizations and insurers argue, as friends of the Court, that the trial court correctly found that section 538.210 applies to limit the damages. They argue the statute is a proper exercise of legislative powers. They contend the trial court also correctly applied a payment schedule for future medical damages.

The American Medical Association along with several other healthcare-related organizations argue, as friends of the Court, that the limit on non-economic damages set by section 538.210 does not violate Watts’ right to a trial by jury.

The Missouri Organization of Defense Lawyers argues, as a friend of the Court, that prior cases (precedent) require this Court to uphold the limit on damages. It contends that no decision should be taken lightly when considering whether to overrule precedent and that there is a need for consistent and uniform application of the laws. The organization asserts that Watts’ right to a jury trial has been satisfied and that Watts’ equal protection challenge already has been decided in a prior proceeding. It argues that section 538.210 does not violate the separation of powers.

The three universities argue, as friends of the Court, that the trial court was correct in finding section 538.210 constitutional. They assert that Watts’ constitutional rights were not violated and that, once the jury completes its constitutional function, the trial court is to apply the law. They contend that section 538.210 does not violate separation of powers or equal protection and that it is not a special law that creates an improper classification.

The American Congress of Obstetricians and Gynecologists along with several other healthcare-related organizations and physicians argue, as friends of the Court, that the trial court was correct in finding that the limit on non-economic damages was a valid exercise of legislative power.

SC91948
State of Missouri v. David Bryan Miller
Harrison County
Challenge to conviction and denial of new trial

Listen to the oral argument:

David Miller was represented during arguments by Kent Gipson of the Law Office of Kent Gipson, LLC in Kansas City, and the State was represented by Shaun J. Mackelprang of the attorney general's office in Jefferson City.

David Miller was convicted of six sexual offenses against his minor daughter: statutory sodomy, child molestation, deviate sexual assault, sexual misconduct, endangering the welfare of a child and incest. The daughter alleges Miller abused her for eight years while she was under the age of consent. Miller denies all of the charges. At trial, Miller sought to introduce the testimony of a family friend but was prohibited from doing so because the witness had not been endorsed properly prior to trial. The prosecution questioned Miller as to why he did not provide the police his alibi at the time he was arrested for the charges. The prosecution also questioned Miler regarding the temperature to determine the point in time of one of the alleged abuses. Miller moved for acquittal (dismissal based on the evidence), which the court overruled. Miller appeals.

Miller argues the trial court erred in overruling his motion to be acquitted of the charges against him. He contends the evidence was legally insufficient to support the charges of statutory sodomy, deviate sexual assault, child molestation and endangering the welfare of a child because the state failed to prove every element of the offenses beyond a reasonable doubt. Miller asserts that overruling his motion deprived him of his Fourteenth Amendment right to be acquitted unless the evidence establishes every element of the offenses beyond a reasonable doubt. He further argues that one of the jury instructions was improper because it charged him for a crime that did not exist at the time of the alleged offense and the statute in existence at the time of the offense did not include an element for which he was convicted. Miller contends the charge and sentence for child molestation, therefore, violates the ex post facto clause of article I, section 13 of the state constitution (prohibiting retroactive application of a law). He asserts the trial court erred in not declaring a mistrial because of inadmissible and prejudicial evidence submitted by the prosecution regarding his alibi and the temperature at the time of the abuse in violation of his due process rights and right against self-incrimination. Miller argues the court should not have prevented his witness from testifying because the prosecution was notified of the subject of the witness’s testimony and, therefore, would not have been prejudiced by the testimony. He contends the court allowed evidence of prior acts for which he was not convicted, which allowed the jury to consider inadmissible evidence in reaching its verdict. Miller asserts that the principles of justice require that he be awarded a new trial.

The state responds that the trial court was correct in overruling Miller’s motion for acquittal. It contends there was sufficient evidence to support the conviction for most charges. It concedes, however, that the trial court incorrectly submitted one jury instruction so the conviction for the child molestation count should be reversed and the case remanded (sent back) for a new trial on this charge. The state asserts the court was correct in not declaring a mistrial based on evidence that Miller had omitted facts in his interview with police after he was advised of his right not to speak without first consulting an attorney. The state argues the court was correct in preventing Miller’s witness from testifying because Miller gave late notice of the testimony and it would have merely repeated prior testimony of other witnesses. It contends that the court correctly admitted evidence of Miller’s prior acts and that the evidence was not prejudicial. It asserts the court was correct in overruling Miller’s motion for new trial because there was not cumulative error in the original trial.

SC92145
Deborah Hervey v. Missouri Department of Corrections
Jackson County
Challenge to jury instruction and punitive damages award in disability discrimination case

Listen to the oral argument:

The Missouri Department of Corrections was represented during arguments by Ronald Holliger, general counsel for the attorney general's office in Jefferson City, and Hervey was represented by Anthony Dewitt of Bartimus, Frickleton, Robertson & Gorny, PC in Jefferson City.

Deborah Hervey was employed as a probation officer with the department of corrections for three separate periods of time between 1983 and 2008. When she began her third period of employment, Hervey informed the department and provided documentation that she had been diagnosed with a mental disability and requested accommodations to complete her work. The department honored the initial requests and some of the other accommodations requested over the next two months. Hervey failed her probationary period of employment, however, by not completing the minimum requirement of work in the allotted time period; at that point, her supervisors recommended her employment be terminated. Hervey sued the department for discrimination and retaliation under the state human rights act. At trial, Hervey submitted a jury instruction that did not state that the jury was required to find whether Hervey had a disability or the definition of disability was not included, which instead was included in a different instruction she offered. The jury found in Hervey’s favor and awarded her $127,056 in actual damages and $2,500,000 in punitive damages, which included attorney fees. The department filed a motion for judgment notwithstanding the verdict, which the circuit court partially granted and partially overruled. The court calculated the amount of actual damages, including the attorney fees, to $260,726.50 and calculated a cap for the total amount of punitive damages allowed, awarding $1,303,632.50 . The court overruled the department’s subsequent motion for a new trial. The department appeals.

The department argues the trial court erred in giving the jury an instruction that did not require the jurors to find that Hervey was disabled. It contends the instruction misdirected the jury and allowed it to consider the disability as merely a contributing factor and not a required element of Hervey’s claim. The department asserts the trial court also awarded improper punitive damages. It argues they are improper because the court should not have included attorney fees in the calculation of damages.

Hervey responds that the instruction did require the jury to determine whether she was disabled. She contends the instruction required a determination of disability to satisfy its elements; therefore, the jury had to make the factual determination of disability before it could find the other elements. Hervey asserts that another jury instruction defined disability to assist in determinations, proving that the jury was required to determine whether whether she was disabled. She argues that more than one instruction may be provided to the jury that includes all necessary elements that must be determined. Hervey contends the department’s proffered instruction also included the element of disability to be determined. She asserts that the instruction that she offered and that the court used accurately stated the appropriate law and that the state suffered no prejudice from the instruction. Hervey also asserts the attorney fees were included properly in the punitive damages because, under section 510.265, the fees are awarded to the prevailing party and not to the attorneys directly. She argues the inclusion of attorney fees in the punitive damages did not inflate damages above the statutory limit.

SC91746
Carmen L. Deck v. State of Missouri
Jefferson County
Ineffective assistance of counsel in death penalty case

Listen to the oral argument:

Carman Deck was represented during arguments by Jeannie Willibey of the public defender's office in Kansas City, and the state was represented by Evan Buchheim of the attorney general's office in Jefferson City.

Carman Deck was convicted for two counts of first-degree murder while in the commission of a robbery and, after two new sentencing trials were ordered by this Court and the United States Supreme Court, he was sentenced to two death sentences. Following his most recent sentencing trial, this Court held the sentences were not excessive or disproportionate. State v. Deck, 303 S.W.3d 527, 543 (Mo. banc 2010). Deck subsequently sought post-conviction relief, which the circuit court denied. Deck appeals.

Deck argues the court erred in overruling his claim that his counsel failed to narrow the jurors properly prior to the trial. He contends this failure denied him of his rights to due process, a fair trial, an impartial trial, effective assistance of counsel, and freedom from cruel and unusual punishment. Deck asserts that his counsel’s failure to ask the jurors if they would consider evidence of childhood experiences prejudiced him. He argues the court should have allowed him to interview the jurors to support his case for ineffective assistance of counsel, and the denial violated local rule 53.3 regarding prohibiting all post-trial interviews. Deck contends the court should not have struck his sister’s testimony after finding her incompetent as a witness based on an earlier guardianship judgment. He contends she proved her competence through her testimony. He asserts counsel was ineffective in failing to call several witnesses to testify about abuse and trauma Deck suffered in his childhood. Deck argues counsel should have obtained neurological testing to show he suffered from a defect in reasoning. He contends the court violated Court Operating Rule 27.09 by collecting the jury questionnaires and destroying them, preventing him from bringing all potential post-conviction claims. Deck asserts counsel was ineffective in failing to object when the prosecutor used a harsh term to describe Deck. Finally, he argues counsel was ineffective in failing to object to the prosecutor’s statements that Deck previously had escaped from jail and assisted other inmates in escaping.

The state argues the court correctly overruled Deck’s claim that counsel should have asked the jurors if they would consider evidence of childhood experiences. It contends Deck failed to prove the claims he brought after conviction were insufficient, that counsel was ineffective for not asking this question or that any jurors were biased. The state asserts the court correctly refused to allow Deck to interview the jurors because prior case law states there is no right to contact jurors, their testimony cannot be used to show prejudice and Deck tried to contact the jurors past the deadline to amend his motion based on their testimony. It argues that the court correctly declared Deck’s sister incompetent to testify and that Deck was not prejudiced because her testimony would not have provided a sufficient defense or changed the outcome of the trial. The state contends Deck failed to prove counsel was ineffective for failing to call certain witnesses because it was trial strategy, the testimony would have been repetitive, and the testimony would not have offered a defense and may have conflicted with other testimony. It asserts counsel was correct in not calling a neuropsychologist to test Deck because he showed no signs of mental disability. The state argues the trial court correctly discarded the juror questionnaires because there was nothing to suggest they were needed for appeal or post-conviction litigation. It contends counsel correctly did not object to the harsh term about Deck or statements regarding escape because the prosecutor simply was testing the expert’s credibility, there was a valid reason not to object and Deck was not prejudiced.