Case Summary for May 19, 2010

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Case Summary for May 19, 2010

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 a.m. Wednesday, May 19, 2010

_________________________________________________________________

SC90676
State ex rel. Lawrence J. Fleming v. The Honorable Dale W. Hood
St. Louis County
Privilege against self-incrimination
Listen to the oral argument:

Fleming was represented during argument by J. Richard McEachern of St. Louis, and the company was represented by Gary Seltzer and Diane M. Gray of Seltzer & Associates, L.C. in Clayton.

C.F. Sign Company sued Lawrence Fleming in December 1999 for legal malpractice. Fleming filed for bankruptcy in November 2000, but the malpractice claim was not discharged. Fleming entered into an agreement in May 2001 in the bankruptcy court to pay the company $25,000 to settle the case, but he never made a payment. In April 2006, the company sued Fleming for failing to pay the settlement. Fleming signed a consent judgment in August 2006 for more than $36,000. Fleming never made any payments. In August 2009, the company moved for examination of judgment debtor (an order requiring Fleming to appear in court regarding what he owed the company) pursuant to section 513.380, RSMo, and sent interrogatories (written discovery questions) to Fleming. In October 2009, Fleming contested the company’s ability to bring the action and asserted his right against self-incrimination, refusing to answer the interrogatories. When Fleming did not answer the questions, the company moved to compel him to answer the interrogatories. In November 2009, the trial court ordered Fleming to answer and stated that Fleming “may not claim any privilege” to avoid answering the questions. The trial court overruled Fleming’s motion to reconsider and held he waived his right against self-incrimination because he failed to assert that privilege in a timely manner. Fleming seeks this Court’s writ prohibiting the trial court from forcing him to answer the interrogatories.

Fleming argues the trial court’s orders for him to respond to the interrogatories violate his rights against self-incrimination as provided in the United States and Missouri constitutions. He contends he did not waive his rights against self-incrimination because the interrogatories’ certificate of service by mail was dated September 21, 2009, and he appeared in court October 7, 2009, to assert his rights to not answer the questions, which was within the 30-day answer period under Rule 57.01 to assert the privilege. He argues he is entitled to an order prohibiting the trial court from requiring him to state why a particular answer may incriminate him. He asserts that, pursuant to article I, section 19 of the Missouri Constitution, there is a presumption that a witness’ answer may tend to incriminate him and that it is the company’s burden to show there is no possibility of incrimination based on his answer to a particular question.

The company responds the trial court’s order was within its authority, did not exceed its jurisdiction and did not abuse its discretion. The company contends that Fleming’s claim of privilege was made too late and that he offered no explanation on record for his untimely claim of privilege. The company argues the court’s overruling of Fleming’s late claim of privilege was not an abuse of discretion given the context of this case and Fleming’s continuous disregard of court orders. It asserts, in the alternative, that the trial court is within its authority and jurisdiction to order Fleming to submit individual answers to each of the company’s interrogatories in the form required by Rule 57.01 and to demonstrate how answering the interrogatories posed a genuine threat to his privilege against self-incrimination.

SC90610
State of Missouri ex rel. Bobbie Jean Proctor and Vincent Proctor v. The Honorable Edith L. Messina, Circuit Judge, Sixteenth Judicial Circuit, in Jackson County, Missouri
Jackson County
Medical malpractice and ex parte communication
Listen to the oral argument:

Proctor represented during argument by Hans van Zanten of Yonke & Pottenger, L.L.C., of Kansas City, Missouri; the hospital of Sean T. McGrevey of Adam & McDonald, P.Z. of Overland Park, Kansas; and the doctor was represented by Jana V. Richards of Sanders Conkright & Warren, LLP of Overland Park, Kansas.

In March 2004, Bobbie Jean Proctor was admitted to St. Joseph Medical Center for chest pain and a possible heart attack. A doctor performed surgery on her and gave her blood thinners. The night after the operation, Proctor developed post-surgical hemorrhaging, but the nurses were unable to get a hold of her doctor. As a result of complications, Proctor alleges she sustained numerous injuries, including damage to her right leg resulting in a permanent loss of her ability to walk normally. Proctor filed a medical malpractice action against her doctor and St. Joseph Medical Center. In January 2009, the doctor sought an order authorizing ex parte communication (communication taking place off the record and out of the presence of the other parties or their attorney) with Proctor’s treating physicians and other health care providers. In February 2009, the hospital moved for the same order. Proctor opposed the motions, arguing the doctor and hospital could not have ex parte communication about her protected health information. The trial court disagreed and entered its order allowing the doctor and hospital to have ex parte communications with Proctor’s health care providers. Proctor seeks this Court’s writ prohibiting the doctor and hospital from speaking with her treating physicians and other health care providers without her attorney present.

Proctor argues the privacy rules of the federal health insurance portability and accountability act (HIPAA) and Missouri law preclude a trial court from authorizing informal disclosure of protected health information. She contends the doctor and the hospital are prohibited from meeting with her treating physicians and health care providers who are not a party to her lawsuit without her attorney being present unless she gives her express authorization. Proctor asserts that even if the discovery rules authorize the order, Missouri law requires access to protected health information be restricted in time and scope and be addressed to specific providers and that the trial court’s order was not so restricted.

The doctor responds Proctor is not entitled to a writ prohibiting the trial court’s order because the trial court did not act in excess of its jurisdiction. He contends HIPAA does not prohibit access to patients’ files through ex parte communication when a qualified protective order is granted. The doctor asserts the trial court had the authority to enter the order because the rights of due process and equal protection require that both parties have equal access to fact witnesses and are allowed to conduct informal discovery. He argues the order is limited in time and scope of the allegations made by Proctor in her pleadings in that Proctor alleges her entire life has been affected by his alleged negligence.

The hospital responds the trial court had the explicit authority under HIPAA and inherent authority under Missouri common law to issue its order. It contends Missouri law allows ex parte communication after the patient waives her privacy rights by bringing a lawsuit where her medical condition is at issue.

The American College of Radiology argues, as a friend of the Court, that the trial court properly entered an order notifying the parties and fact witnesses of the conditions on which relevant non-privileged information could be disclosed in connection with the lawsuit. It contends that under Missouri law, plaintiffs waive privilege and relinquish their ability to require fact witnesses to maintain confidentiality when they publicly put their health at issue in a lawsuit. The college asserts the trial court’s order provided Proctor with an opportunity to challenge the scope of the waiver and addressed the disclosure issues presented in the case.

The Missouri Association of Trial Attorneys argues, as a friend of the Court, that Proctor is entitled to a writ of prohibition. The association contends that ex parte communication is a means of informal discovery and that the trial court does not have authority to issue an order concerning informal discovery outside Rule 56.01. The association asserts any information that can be obtained through ex parte discussion with treating physicians also can be obtained through discovery.

The Missouri Hospital Association argues, as a friend of the Court, that HIPAA permits, without patient consent, the use and disclosure of protected health information to carry out treatment, payment or health care operation within certain limits. It contends HIPAA also permits hospitals to disclose protected health information in various contexts, including litigation.

The Missouri Organization of Defense Lawyers argues, as a friend of the Court, that this Court should deny Proctor’s petition for writ of prohibition because HIPAA does not prohibit ex parte communications with treating physicians and other health care providers and Missouri law permits it.

SC90647
Beverly Brewer v. Missouri Title Loans, Inc.
City of St. Louis
Enforcement of arbitration clause and bar on class action
Listen to the oral argument:

The company was represented during argument by Jonathan F. Andres of Clayton, and Brewer was represented by John Campbell of The Simon Law Firm, PC of St. Louis.

Missouri Title Loans is a consumer credit loan company and a title loan company. Beverly Brewer took out a $2,215 consumer loan from the company and signed a loan agreement, promissory note and security agreement in December 2006. The loan was secured by Brewer’s title to her vehicle and the finance charge for the 30-day loan. The loan agreement included an arbitration clause, waiver of jury trial, and limit on class action and class arbitration participation. Brewer made two payments to the company of more than $1,100, but these payments only reduced her loan principal by six cents. Brewer sued the company for violating Missouri loan laws and she brought a class action alleging the company, among other things, systematically violated Missouri statutes pertaining to title loans and omitted disclosures and notices on the loan agreement. The company moved to compel individual arbitration of the case. Brewer argued the class waiver in the contract is unconscionable (unusually harsh or grossly unfair) and sought to resolve the dispute through class arbitration. The trial court sustained the company’s motion to compel arbitration but held Brewer may proceed with a class arbitration. The company appeals.

The company argues the trial court erred in striking the class action waiver in the arbitration clause. It contends there was insufficient evidence to support a finding that the class arbitration was unconscionable. The company asserts that the federal arbitration act preempts the trial court’s decision. It further asserts that the trial court’s finding of “unconscionability” was outside the federal act’s requirement that, to revoke a contract or any parts of a contract, there must be “such grounds as exist as law or in equity for the revocation of any contract,” and no such grounds exist here. The company argues that, to the extent the class arbitration waiver acts as an exculpatory clause, it is not prohibited as against public policy. It contends that the waiver is worded clearly and unambiguously and that there is not unexpected surprise advantage.

Brewer responds the trial court did not err in striking the company’s contract clause that waived her right to bring any class action or class arbitration. She contends this “class waiver” immunized the company and therefore was unenforceable because it was procedurally and substantively unconscionable and it violated Missouri public policy. Brewer asserts the waiver functioned as an improper exculpatory clause because the class waiver was not clear, conspicuous or unambiguous with regard to the scope of claims being waived by customers.

SC90601
Ashlee Ruhl, on Behalf of Herself and All Others Similarly Situated v. Lee's Summit Honda
Jackson County
Enforceability of arbitration agreement in class action for fee in vehicle purchase
Listen to the oral argument:

The company was represented during argument by Patric S. Linden of Case & Roberts P.C. of Kansas City, and Ruhl was represented by Mitchell L. Burgess of Burgess and Lamb, PC of Kansas City.

Ashlee Ruhl bought a motor vehicle for more than $20,000 from Lee’s Summit Honda in November 2006. In the sale, the company charged her a dealer administration fee of $199.95. Also as part of the transaction, the parties executed an arbitration agreement requiring the parties to submit to binding arbitration in all disputes involving the purchase of the vehicle. The agreement also required that the company would pay for the filing fee if it initiated the proceeding and that Ruhl would pay any administrative costs in excess of $750 regardless of who initiated the arbitration. In January 2008, Ruhl sued the company. She argued the dealer administration fee charged for the preparation of legal documents in the purchase transaction constituted the unauthorized practice of law and violated the Missouri merchandising practices act. She filed a class action against the company on behalf of all those whom the company charged the fee. The company moved to enforce the parties’ arbitration agreement. The trial court refused to require arbitration, finding the claim of unauthorized practice of law was not subject to arbitration. It also found the agreement was procedurally and substantively unconscionable because Ruhl was in a significantly inferior bargaining position and was presented with a take-it-or-leave-it preprinted agreement. The company appeals.

The company argues the trial court erred in overruling its motion to compel arbitration. It contends Ruhl’s claims alleging the unauthorized practice of law and a violation of the Missouri merchandising practices act fall within the scope of the arbitration agreement and can be resolved in arbitration. The company asserts that Ruhl sought to invalidate one of the terms of the parties’ purchase agreement and that the parties agreed to submit all disputes regarding the terms of the parties’ purchase agreement to arbitration. The company contends that Ruhl presented no evidence supporting a finding of procedural unconscionability and that the arbitration agreement was not substantively unconscionable.

Ruhl responds the trial court did not err in overruling the company’s motion to compel arbitration because her claims do not fall within the scope of the arbitration agreement. She contends Missouri courts are the sole arbiters of what constitutes the practice of law in violation of sections 484.010 and 484.020, RSMo. Ruhl argues the arbitration agreement was substantively and procedurally unconscionable because of the unequal bargaining power between the two parties. She asserts she did not have a lawyer with her when she bought the motor vehicle and was presented several preprinted documents during the process of buying a motor vehicle from a corporation.