DOCKET SUMMARIES
SUPREME COURT OF MISSOURI
9 a.m. Thursday, May 11, 2017
SC96151
Miasia Barron, et al., and Maddison Schmidt, by Next Friends, Garry Schmidt and Tammy Schmidt v. Abbott Laboratories Inc.
St. Louis City
Venue, choice of law challenges to personal injury suit tried in Missouri
Listen to the oral argument: SC96151.mp3
Abbott Laboratories was represented during arguments by Paul F. Strain of Venable LLP in Baltimore, Maryland; Schmidt was represented by Edward D. Robertson Jr. of Bartimus, Frickleton, and Robertson PC in Jefferson City.
Minnesota resident Maddison Schmidt was born, in April 2003 in Minnesota, with birth defects related to spina bifida after her mother took, in Minnesota, the anti-epileptic drug Depakote, sold by Abbott Laboratories Inc., which has headquarters in Illinois and a registered agent in St. Louis County. At the time Schmidt’s mother took the drug, its label had a “black box” warning that Depakote could cause spina bifida if taken during pregnancy. Schmidt’s mother took the drug before and during her pregnancy. Schmidt joined with other out-of-state plaintiffs and several Missouri plaintiffs – including twins born in St. Louis city – in filing a single personal injury case against Abbott in May 2012 the St. Louis circuit court. Abbott filed motions to sever the claims into individual cases, alleging they were joined improperly, and to transfer venue over the case to St Louis County. The circuit court overruled the motions, and the case proceeded to trial in the city. Rather than conducting a joint trial, the circuit court ordered the parties to nominate plaintiffs for individual trials. Schmidt’s claims were tried first, in May 2015, and the circuit court applied Minnesota law. During trial, Abbott twice moved for a directed verdict in its favor, both as to liability and punitive damages. The circuit court overruled Abbott’s motions. The jury found Abbott liable, awarding Schmidt $15 million in compensatory damages and $23 million in punitive damages, and the circuit court entered judgment accordingly. The circuit court overruled Abbott’s motions for judgment notwithstanding the verdict or for a new trial. Abbott appeals.
This appeal presents several questions for the Court. One is whether venue in St. Louis city was proper under section 508.010, RSMo. Related issues involve what effect, if any, joinder of additional parties has on venue and how venue should be selected in cases involving multiple plaintiffs. Another question is whether the plaintiffs’ claims arose out of different occurrences and, if so, whether the claims should have been severed from one another. An additional question involves whether the Depakote label was adequate as a matter of Minnesota law and, if so, whether the circuit court should have granted Abbott a directed verdict or judgment notwithstanding the verdict on Schmidt’s failure-to-warn claim. A further question is whether Schmidt presented – in support of her claim for punitive damages – clear and convincing evidence that Abbott deliberately disregarded the rights and safety of others in its warnings about Depakote and whether Abbott had fair notice that Minnesota law required comparative warnings.
Several organizations filed briefs as friends of the Court. The Pharmaceutical Research and Manufacturers of America argue there is extensive federal government oversight over prescription medication labeling and, when a manufacturer has warned about a specific risk in a “black box” warning, punitive damages should not be available. The St. Louis Regional Chamber, the Chamber of Commerce of the United States of America and the National Association of Manufacturers argue that venue was not proper in St. Louis city and that the claims of out-of-state plaintiffs first injured outside Missouri should not have been joined into a case against an out-of-state defendant filed in Missouri.
SC96151_Abbott_Laboratories_brief
SC96151_Schmidt_et_al_brief
SC96151_Abbott_Laboratories_reply_brief
SC96151_Pharmaceutical_Research_and_Manufacturers_of_America_amicus_brief
SC96151_chambers_and_manufacturers_ass'n_amici_brief
SC95949
State ex rel. Fogle Enterprises Inc. and Nolan Fogle v. The Honorable Laura Johnson
Christian County
Propriety of certifying a lawsuit as a class action
Listen to the oral argument: SC95949.mp3
Fogle Enterprises was represented during arguments by Jason C. Smith of Spencer Fane LLP in Springfield; Richard McMillin was represented by Eric L. Dirks of Williams Dirks Dameron LLC in Kansas City.
Nolan Fogle owns Fogle Enterprises Inc. (collectively, Fogle Enterprises), which owns and operates restaurants in the Branson area. In the 1990s, certain Branson-area restaurants, hotels and other businesses began collecting a voluntary fee for a community development fund. Fogle Enterprises alleges it posted notice of the fee at its restaurants’ cash registers and trained its employees to explain the fee to customers and to remove it from the bill of customers who did not wish to make such a contribution. Fogle Enterprises stopped collecting the fee at the end of 2013. In February 2014, Richard McMillin sued Fogle Enterprises over its collection of the fee on behalf of himself and members of a proposed class, which he defined as Fogle Enterprise customers in the preceding five years who paid the fee. He proposed identifying class members from information and records to be discovered from Fogle Enterprises. Fogle Enterprises opposed certification of the class, alleging, in part, it served between 3.75 million and 5 million customers from 2009 through 2013, many of its customers paid in cash and, even for those customers who paid using a credit card, it did not maintain records that would identify which customers paid the fee. In response, McMillan suggested a “fluid recovery” plan by which the circuit court would determine the total amount of damages available to the class, then create an aggregate judgment fund from which proposed class members could apply for payment. The circuit court certified the class action. Fogle Enterprises seeks relief from this Court.
This case presents several questions for this Court relating to whether the circuit court properly exercised its discretion in certifying the class. One is whether the class meets the requirements of Rule 52.08. Related issues include whether the class is defined specifically enough, includes only persons with cognizable claims against Fogle Enterprises and has members who feasibly can be ascertained. Another question is whether the “fluid recovery” plan for determining liability and class-wide damages is constitutional or whether it alters the parties’ substantive rights or deprives Fogle Enterprises of the ability to present legitimate defenses. An additional question involves whether there was a rational basis for the circuit court to find McMillin satisfied the requirements of Rule 52.08 regarding typicality, commonality, predominance or superiority.
SC95949_Fogle_brief
SC95949_McMillin_brief
SC95949_Fogle_reply_brief.pdf
SC96079
Vivian R. Hall v. State of Missouri
Barton County
Whether incorrectly stated prior conviction can form the basis for establishing a defendant is an aggravated offender
Listen to the oral argument: SC96079.mp3
Hall was represented during arguments by Christian E. Lehmberg of the public defender’s office in Columbia; the state was represented by Daniel N. McPherson of the attorney general’s office in Jefferson City.
The state charged Vivian Hall with driving while intoxicated. In August 2012, she pleaded guilty, and the state offered information that she previously had been convicted of driving while intoxicated twice in the Lamar municipal division and once in the Jasper County circuit court and, therefore, was an aggravated offender. The circuit court accepted her plea and ultimately sentenced her, as an aggravated offender, to seven years in prison and ordered her to participate in a long-term treatment program. She alleged she was delivered to the department of corrections in early March 2013. Hall filed a pro se motion to set aside the judgment in mid-June 2013. Appointed counsel entered an appearance on her behalf in July 2013. In October 2015, new counsel entered an appearance and filed an amended motion on Hall’s behalf, alleging the circuit court should not have accepted her plea as an aggravated offender because only two of the three prior convictions the state listed were correct. The motion alleged Hall’s third prior conviction was in the Barton County circuit court, not the Lamar municipal division. The circuit court found Hall had been abandoned by her original postconviction counsel and allowed the untimely filing of her amended motion, which it then overruled after a hearing. Hall appeals.
This appeal presents two questions for the Court – whether Hall’s motion was timely and whether she is entitled to relief from her sentence as an aggravated offender based on the incorrect information presented to the sentencing court about her prior convictions.
SC96079_Hall_brief
SC96079_State_brief
SC96079_Hall_reply_brief
SC96223
In re: Ryan J. McMillin
Clay County
Attorney discipline
Listen to the oral argument: SC96223.mp3
The chief disciplinary counsel, Alan D. Pratzel of Jefferson City, represented his office; Ryan McMillin was represented by Robert G. Russell of Kempton and Russell in Sedalia.
In May and June 2013, the chief disciplinary counsel’s office received bank notices that Kansas City attorney Ryan McMillin’s trust account was overdrawn. Following an investigation, the chief disciplinary counsel’s office determined, based on the transaction history in McMillin’s accounts, that McMillin had a gambling addiction. It suggested he participate, beginning in September 2013, in a 12-month diversionary program that would require him to seek professional help for his addiction, to learn the proper use of a trust account, and to undertake other steps to improve his case management, calendaring and client communication. In December 2013, McMillin failed to provide a quarterly report of his financial information and respond to inquiries from a monitor. His trust account became overdrawn again in May and July 2014. The chief disciplinary counsel’s office terminated McMillin’s diversion agreement in August 2014 and subsequently received three more bank notices that his trust account was overdrawn. An investigation revealed McMillin had maintained three different trust accounts from which he had made nearly $245,000 in cash or Internet withdrawals, with a number of cash withdrawals occurring at ATMs located near gambling facilities. The investigation also revealed more than $75,000 in deposits from his operating or personal account into his trust account. In addition, the chief disciplinary counsel’s office received complaints from several of McMillin’s clients alleging he took fees from them but failed to pursue their cases diligently or communicate appropriately with them. During an August 2016 hearing, McMillin admitted he violated some rules of professional responsibility but denied other allegations. He also alleged, as mitigating factors, he had emotional problems, a physical disability, and alcohol and drug dependency that may qualify as a mental disorder. In its December 2016 decision, the disciplinary hearing panel determined McMillin had violated rules of professional responsibility by commingling personal and client funds in his trust account, making cash withdrawals from his trust account, failing to keep accurate trust account records, intentionally misappropriating advanced fees, failing to respond to the chief disciplinary counsel’s demands for information, and failing to pursue his clients’ cases diligently, communicate with them or earn the fees they had advanced. The panel further found McMillin had been sober since the summer of 2015. It recommended McMillin’s law license be suspended with no leave to apply for reinstatement for at least one year. The chief disciplinary counsel rejected the panel’s recommendation and now asks this Court to suspend McMillin’s law license for at least three years or to disbar him.
This case presents two questions for the Court – whether McMillin violated rules of professional responsibility and, if so, what discipline, if any, is appropriate.
SC96223_Chief_Disciplinary_Counsel_brief
SC96223_McMillin_brief
SC95907
In re: Michael P. Kelly
Washington County
Note: By Court order dated March 24, 2017, this case was removed from the oral argument docket and will be submitted on the brief filed by the chief disciplinary counsel.