Case Summary for February 14, 2008

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Case Summary for February 14, 2008

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. Thursday, February 14, 2008

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SC88690
Wesley Leon Joy and Linda Joy, Husband and Wife v. Stephen K. Morrison, M.D., and John Wordy Buckner, III, M.D.
Greene County
Jury selection in medical malpractice case
Listen to the oral argument:

The Joys were represented during argument by David W. Ransin of Springfield, and the doctors were represented by Kent O. Hyde of Springfield.

Wesley Joy's doctor, Dr. Stephen Morrison, recommended he have coronary artery bypass graft surgery, which involved harvesting a vein from one of his legs. Joy told Morrison the vein should not be from his right leg because of vascular circulatory problems in that leg. During surgery, in June 1995, Morrison harvested a vein from Joy's right leg. Morrison and Dr. John Buckner approved Joy's discharge from the hospital, but three days later Joy was readmitted with gangrene, and his leg had to be amputated. In April 2003, Joy and his wife sued the doctors for medical malpractice for the personal injuries Joy sustained. In June 2006, the parties conducted voir dire (asking potential jurors questions to select a jury), and the Joys challenged for cause one potential juror who said he believed that risk is part of surgery, that the patient has to "live with the result" if the doctor makes mistakes, and that he had strong feelings against suing doctors. The doctors objected to the Joys' challenge. The trial court overruled the challenge, and the man sat on the jury. In June 2006, the trial court entered judgment for the doctors. The Joys moved for a new trial, alleging the trial court erred in sustaining the doctor's objection to their challenge to the juror for cause. The trial court overruled their motion. The Joys appeal.

The Joys argue a party constitutionally is guaranteed the right to a fair and impartial jury, They assert section 494.470.1, RSMo, mandates that "no person who has formed or expressed an opinion concerning the matter or any material fact in controversy in any case that may influence the judgment of such person ... shall be sworn as a juror in the same cause." They contend the juror here should not have been placed on the jury after he said, in his opinion, there are too many lawsuits against doctors, the concept of being asked to award a substantial amount of money in this case bothered him, his opinions might affect his ability to listen to experts for both sides and give them fair credence, and he probably would be biased for the doctors unless Joys' counsel could persuade him otherwise. For policy considerations, the Joys contend, the integrity of the right to trial by a fair and impartial jury goes to the essence of the judicial system, there must be an unbiased jury of 12 and, to ensure the efficiency of trial, trial courts should err on the side of caution by sustaining a challenge for cause rather than create the potential for retrial.

The doctors respond that the juror properly was qualified to be on the jury because he indicated he would evaluate the evidence fairly and impartially and he vowed to follow the trial court's instructions. They agree with the Joys' policy arguments but assert the examples used were from a case where a juror lied during voir dire. In this case, the doctors contend, the juror did not lie or intentionally conceal information. The doctors argue it is not the law or policy of Missouri to strike all potential jurors who have any doubt in a case because such a policy would create great difficulty in selecting a jury.

SC88697
State ex rel. Semsa Selimanovic, et al. v. The Honorable Robert Dierker, Jr.
City of St. Louis and St. Louis County
Proper venue in legal malpractice case
Listen to the oral argument:

The Selimanovics were represented during argument by Ted F. Frapolli of St. Louis, and Finney was represented by R.C. Wuestling of St. Louis.

Semsa Selimanovic died in July 2002 after he was injured while working for Brentwood Plastics, Inc. His family hired Daniel Finney Jr. to represent them in a wrongful death claim for medical malpractice. In February 2007, the Selimanovics sued Finney in the city of St. Louis, alleging legal malpractice for Finney's failure to file a wrongful death claim before the statute of limitations ran. They contend venue for the legal malpractice action is proper in the city because the underlying wrongful death suit should have been filed in the city. In April 2007, Finney moved to transfer the case against him to St. Louis County, where his office is located, arguing the city was an improper venue for the legal malpractice action. Ultimately, in July 2007, the circuit court sustained Finney's motion to transfer the case to the county. The Selimanovics seek a writ from this Court prohibiting the trial court from transferring the case.

The Selimanovics argue section 508.010, RSMo, permits venue in the city. They contend venue is proper in the circuit where the plaintiff first was injured by the wrongful acts or negligent conduct alleged in the action. The Selimanovics assert their injury is the financial loss that resulted from their lack of an enforceable judgment against the parties responsible for Selimanovic's death. The Selimanovics argue the financial loss occurred in the city where, but for Finney's negligence, they would have an enforceable judgment. They argue that because Selimanovic was not injured first in Finney's office, the county is not a more appropriate venue than the city and they have a right to choose among proper venues.

Finney responds that venue is proper in the county pursuant to section 508.010. He argues the legislature changed this statute so that venue is determined by where the plaintiff first was injured. In this legal malpractice case, Finney contends, the Selimanovics first were injured in the county where his office is located, because they were injured where the legal malpractice occurred.

SC88776
State of Missouri, ex rel. Jeremiah W. Nixon, Attorney General, State of Missouri v. Richard Dale Peterson
Cole County
Constitutional challenge to Missouri incarceration reimbursement act
Listen to the oral argument:

Peterson was represented during argument by Michael T. George of St. Louis, and the state was represented by Paul Harper of the attorney general's office in Jefferson City.

In February 1995, Richard Peterson was sentenced to 25 years in prison for first-degree robbery. While incarcerated, Peterson worked at the Moberly Correctional Center hobbycraft room from 2002 to 2004, making jewelry boxes, clocks and plaques. He sold these items for profit. The money he earned in sales, plus a wage through state payroll, totals more than $2,800. In May 2006, the state sought reimbursement from Peterson for the costs of his incarceration under the Missouri incarceration reimbursement act. In August 2006, the circuit court granted the state summary judgment for more than $130,600 and ordered the Department of Corrections' inmate treasurer immediately to pay the state 90 percent of all deposits to Peterson's inmate account, including wages and bonuses earned while incarcerated. Peterson appeals.

Peterson argues that this Court has exclusive jurisdiction of his constitutional challenge to the act and that the court of appeals, Western District, should not have heard his appeal first. He asserts the trial court should not have decided the ultimate issue between the parties without first having decided the validity of the act. Peterson contends the trial court erred in implicitly ruling in favor of the constitutionality of the statutes because he raised valid constitutional challenges that were decisive in determining whether the state was entitled to a judgment for the cost of his incarceration. He argues he established the act was unconstitutionally vague and uncertain and denied him due process of law. Peterson asserts the state failed to satisfy the conditions precedent of section 217.831.3, RSMo, thereby rendering the judgment void. He contends without meeting the "good cause" provision of that section, the trial court lacked subject matter jurisdiction.

The state responds that Peterson's point about appellate jurisdiction is moot because the matter currently is pending before this Court. It contends the trial court properly sustained summary judgment because there was no genuine dispute as to a material fact and the state was entitled to judgment as a matter of law when it demonstrated that Peterson is an offender with assets subject to the act. The state asserts that Peterson's constitutional rights were not violated because the act is not vague or uncertain and because Peterson had a sufficient opportunity to be heard. It argues his good cause challenge cause fails as a matter of law because the state is not required to plead or prove good cause to prevail under the act.

SC88899
State of Missouri v. J.W.
City of St. Louis
Listen to the oral argument:

J.W. was represented during argument by S. Kristina Starke of the public defender's office in St. Louis, and the state was represented by Jaime Wilson Corman of the attorney general's office in Jefferson City.

The summary and briefs for this case are not available.

SC88922
State of Missouri v. Phillip Ray Couch
Audrain County
Challenge to witness credibility in sex crime case
Listen to the oral argument:

Couch was represented during argument by J. Kevin Hamlett of Mexico, Mo., and the state was represented by Linda Lemke of the attorney general's office in Jefferson City.

Phillip Ray Couch allegedly molested one of his daughters in March 2003 and another two of his daughters in May 2005. In September 2006, he was convicted of first-degree child molestation and two counts of first-degree endangering the welfare of a child. He was sentenced to 25 years in prison. He moved for a new trial, but the trial court overruled his motion. Couch appeals.

Couch argues the trial court violated his constitutional rights to present a defense, to due process and to a fair trial. He contends the trial court precluded him from presenting proffered testimonies that one of the alleged victims had accused her previous adoptive father of physically abusing her and later recanted, admitting that she had lied so she might live with another relative, and also had accused her uncle of sexually molesting her. Couch asserts this evidence would have been relevant to challenge the alleged victim's truthfulness and would have supported his defense that she had a tendency to make false reports, including allegations of sexual abuse, with the purpose of manipulating her environment. He argues the trial court abused its discretion in allowing the state and a psychologist serving as an expert witness to engage in narrative testimony that vouched for the victims' credibility. He contends the trial court further abused its discretion in overruling his motion for a mistrial when the state said its expert witness's testimony vouched for the credibility of the alleged victims because this testimony invaded the province of the jury.

The state responds that the trial court did not abuse its discretion in excluding testimony from the victim's former adoptive father and uncle about prior false allegations because extrinsic evidence of prior bad acts of the victim are not admissible. The state contends Couch did not lay a foundation for this evidence when he chose not to make an offer of proof regarding the victim's testimony about the allegations. The state argues that the trial court did not abuse its discretion in allowing its expert to testify, that the expert's answers were not narrative, that her testimony did not invade the province of the jury and that, even if it had, Couch's improper cross-examination opened the door to this evidence. The state further responds that Couch was not prejudiced.