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Case Summary for September 2, 2015


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 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


9 a.m. Wednesday, September 2, 2015

City of DeSoto, a Political Subdivision of the State of Missouri, and James Acres v. Jeremiah W. Nixon, Governor of the State of Missouri, and Chris Koster, Attorney General of the State of Missouri
Cole County

This case was removed from the oral argument docket and rescheduled for argument September 30, 2015, by order dated August 27, 2015.

Paul M. Lang, et al. v. Patrick L. Goldsworthy, D.C., P.C. et al.
Jackson County
Constitutional validity of health care affidavit statute in medical negligence cases
Listen to the oral argument: SC94814.mp3SC94814.mp3
Lang’s survivors were represented during arguments by Kenneth B. McClain of Humphrey, Farrington & McClain PC in Independence; the Goldsworthys were represented by Timothy M. Aylward of Horn Aylward & Bandy LLC in Kansas City.

After his death, Michael Lang’s surviving children sued three chiropractors (all with the surname Goldsworthy), alleging the Goldsworthys provided substandard and negligent chiropractic care to Lang, causing Lang to suffer a fractured spine that resulted in his death. The survivors filed affidavits in the circuit court identifying another chiropractor as a legally qualified health care provider under section 538.225, RSMo, and this chiropractor offered his expert opinion supporting the survivors’ medical negligence claims. The circuit court overruled the Goldsworthys’ motion for summary judgment (judgment on the court filings, without a trial), finding disputed facts required submission of the survivors’ claims to a jury. When a witness became unavailable for trial, the survivors voluntarily dismissed their claims without prejudice (so they could be refiled again) and subsequently refiled their action in the circuit court, asserting facts identical to those in their original petition. The Goldsworthys filed a motion to dismiss 182 days later, alleging the survivors failed to comply with section 538.225 because the survivors did not refile the health care affidavit from their expert. The circuit court granted the motion to dismiss. The survivors appeal.

This appeal presents several questions for the Court focusing on whether section 538.225 violates certain provisions of the state constitution. Procedurally, an initial issue is whether the survivors properly preserved their constitutional challenges for this Court’s review. Substantively, one question is whether section 538.225 violates the open courts provision of article I, section 14 by arbitrarily or unreasonably barring the survivors from pursuing their recognized legal claims for wrongful death in Missouri’s courts and by impermissibly placing their right to access the courts in the hands of a third party – an expert witness to opine about the merits of their case within 90 days of filing their suit. Other questions involve whether section 538.225 infringes on a medical negligence plaintiff’s right to a jury trial or is an unconstitutional special law. An additional issue is whether this Court’s 1991 decision in Mahoney v. Doerhoff Surgical Services Inc., upholding the constitutional validity of a prior version of section 538.225, controls the Lang survivors’ challenge to the statute now.

The Missouri Hospital Association and Missouri Organization of Defense Lawyers filed a brief as a friend of the Court. They discuss the historical evolution of the state’s requirement that a medical negligence claim be supported by a qualified expert’s affidavit and question the applicability of certain prior cases decided by this Court in 1979, 2000 and 2012 to the case against the Goldsworthys.


SC94814_Missouri_Hospital_Assoc_and MODL_amici_brief.pdf

Carl Greer v. Sysco Food Services of St. Louis LLC, Treasurer of Missouri as Custodian of the Second Injury Fund
St. Louis
Challenge to worker’s compensation award
Listen to the oral argument: SC94724.mp3SC94724.mp3
Greer was represented during arguments by Jonathan Sternberg of Jonathan Sternberg, Attorney, PC in Kansas City. Sysco was represented by John M. Allen of Restovich Allen LLC in Kirkwood; the treasurer was represented by Tracy E. Cordia of the attorney general’s office in St. Louis.

Longtime Sysco Food Systems employee Carl Greer was injured in a February 2006 workplace accident when a forklift a coworker was operating hit the forklift on which Greer was riding, pinning his left foot between the two forklifts, causing a crush injury. Before this injury, Greer had previous workplace injuries – he injured his neck in 1993, his back in 1995 and his right shoulder in 2003. He tried returning to work after treatment but, due to pain, he re-entered treatment. In April 2007, he again tried to return to work but was unable to meet his job’s physical requirements, and he ultimately left his job. Greer filed a worker’s compensation claim seeking permanent and total disability benefits against either Sysco or the state’s second injury fund (the latter due to the combination of the current and former injuries). Following a May 2013 hearing, an administrative law judge determined Greer was entitled to past medical expenses as well as future medical care furnished by Sysco. The administrative judge determined Greer had sustained a permanent partial disability of his left foot as a result of the 2006 crush injury but had not sustained any permanent and total disability. The administrative judge ordered the second injury fund to pay nearly 41 weeks of permanent partial disability benefits to Greer. The administrative judge further determined that, because Greer’s injury was caused by his failure to obey Sysco’s reasonable safety rules, Sysco was entitled to a 25-percent reduction in all benefits awarded to Greer. Both Greer and Sysco sought review from the labor and industrial relations commission, which modified the administrative judge’s award to provide temporary total disability benefits to Greer. The commission determined Greer was entitled to additional benefits from his June 2010 surgery until his doctor released him in February 2011. The commission found that, because Greer had no actual knowledge of the safety rule at the time of the accident, Sysco was not entitled to a reduction in Greer’s benefits. Both Greer and Sysco appeal the commission’s decision.

Both parties raise issues of whether sufficient and competent evidence support the commission’s award. Greer questions whether the award went far enough, arguing that the substantial evidence supports an award of permanent total disability benefits. Sysco, on the other hand, questions whether the award went too far, arguing there was not sufficient evidence in the record to warrant an award of temporary total disability benefits. The second injury fund questions whether it has any liability to Greer either for permanent total disability benefits or permanent partial disability benefits.

Sysco’s cross-appeal raises questions of whether the evidence it presented and section 287.120.5, RSMo, required the commission to reduce Greer’s benefits; whether benefits may be granted after a claimant reaches maximum medical improvement; whether substantial, competent evidence supports the commission’s decision that Greer was totally disabled during his rehabilitative process; and whether either section 387.140.1, RSMo, or sufficient and competence evidence in the record permit the commission to award Greer future medical expenses.

The Missouri Chamber of Commerce and Industry filed a brief as a friend of the Court. Its discussion focuses on whether there is substantial and competent evidence in the record to support the denial of permanent and total disability benefits and whether the commission relied on an erroneous interpretation of the law when awarding Greer temporary total disability benefits after he reached maximum medical improvement.



The Metropolitan St. Louis Sewer District v. The City of Bellefontaine Neighbors, Sherrell Construction Inc., et al.
St. Louis County
Challenge to dismissal of suit against city for damages to sewer lines
Listen to the oral argument: SC94831.mp3SC94831.mp3
The sewer district was represented during arguments by Christopher R. LaRose of Armstrong Teasdale LLP in St. Louis; the city was represented by Brian J. Malone of Curtis, Heinz, Garrett & O’Keefe PC in Clayton.

The city of Bellefontaine Neighbors had a street improvement and restructuring project in 2009. For the project, the city hired a general contractor and an engineer; the general contractor hired a subcontractor to perform mudjacking services. The Metropolitan St. Louis Sewer District alleges its sewer lines were damaged during that project when the subcontractor pumped pressurized, concrete-like slurry not into empty voids beneath the streets but rather into the sewer lines, and when the slurry hardened, the lines were rendered useless and the sewer district had to replace them. The sewer district filed suit in October 2013 against the city, the contractor, the subcontractor and the engineer, seeking to recover for damages to the district’s sewer lines. In the suit, the district asserted claims for inverse condemnation, trespass and negligence against the city. In May 2014, the circuit court granted the city’s motion to dismiss the district’s suit. The sewer district appeals.

The appeal raises several questions for the Court. One is whether the sewer district has standing (legal ability to sue) to bring a claim for inverse condemnation. Related to that question is whether the district stated a claim for inverse condemnation when it alleged that it owned property that was taken or damaged by the city for public use without just compensation through affirmative acts of the city. Another issue is whether the district’s petition alleged facts sufficient to support the district’s claims for trespass and negligence as well as the district’s allegation that sovereign immunity does not shield the city, as one governmental entity, from liability for tortious acts against the sewer district, another governmental entity.


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