The materials below are provided solely for the interest and convenience of the reader, are not official Court records, and should not be quoted or cited as such. Once cases are docketed, the briefs filed by the parties typically are posted within a day or so. Summaries of the cases are prepared by the Court’s communications counsel and typically are posted the week before arguments. Audio files and information about attorneys who argued typically are posted within a day or so after arguments.  Further information about the cases may be available through Case.net.


SC95890
Josephine Wilson v. P.B. Patel, M.D., P.C., and Rohtashav Dhir, M.D.
Buchanan County
Challenge to jury, evidentiary and instructional rulings in medical malpractice case
Listen to the oral argument: SC95890.mp3
Wilson was represented during arguments by H. William McIntosh of The McIntosh Law Firm PC in Kansas City; the medical providers were represented by Justin D. Fowler of Horn Aylward & Bandy LC in Kansas City.

Josephine Wilson has been treated for acid reflux and trouble swallowing since about 2000. In 2009, she was referred to Dr. Rohtashav Dhir, a gastroenterologist, who scheduled Wilson for an outpatient endoscopy procedure in December 2009. Dhir found gastritis in Wilson’s stomach and, near the top of her esophagus, a polyp he removed with forceps. His notes from the procedure indicated no other abnormalities. He then performed an esophageal dilation procedure, which uses a guidewire dilator to stretch the esophagus. When Dhir removed the dilator, he noticed the guidewire was kinked, and so he performed another endoscopy and observed a tear in the esophageal lining. In November 2011, Wilson sued Dhir and his employer for medical malpractice, claiming the dilation was unnecessary and tore her esophagus. During a December 2014 jury trial, the doctors argued Wilson had given informed consent for the dilation, for which an esophageal tear was a known complication. One of the doctors’ medical experts also was questioned – during both cross-examination and redirect – about a medical journal article discussing, in part, whether dilation is appropriate for a patient with eosinophilic esophagitis (an allergic reaction that can inflame the esophagus and make it difficult to swallow). Wilson objected to the redirect, arguing authoritative articles can be used only in cross-examination and otherwise are hearsay. The court overruled the objection. Wilson asked the court to give the jury instructions removing from its consideration the issues of informed consent, which she argued was irrelevant to whether the dilation was necessary, and eosinophilic esophagitis, which she argued she never had experienced. She also objected to any argument by the doctors’ counsel of the article discussing eosinophilic esophagitis. The circuit court refused her proffered instructions and permitted the argument. The jury returned its unanimous verdict in favor of the doctors. Wilson appeals.

This case presents several questions for the Court. One involves whether the circuit court abused its discretion in overruling Wilson’s motion to strike two jurors for cause. Related issues involve whether the jurors admitted bias or partiality or whether they indicated they could remain impartial and follow the court’s instructions. Another question involves whether the circuit court abused its discretion in allowing testimony and argument relating to the medical journal article. Additional questions involve whether the circuit court should have given Wilson’s proffered instructions and whether the issues of informed consent and eosinophilic esophagitis were relevant in the case and properly before the jury.

SC95890_Wilson_brief
SC95890_Medical_Providers_brief
SC95890_Wilson_reply_brief


SC95975
In the Matter of the Care and Treatment of Jay Nelson, a/k/a Jay T. Nelson, a/k/a Jay T. Nelson Jr. v. State of Missouri
Jackson County
Challenge to commitment as a sexually violent predator
Listen to the oral argument: SC95975.mp3
Nelson was represented during arguments by Chelsea R. Mitchell of the public defender’s office in Columbia; the state was represented by Gregory Goodwin of the attorney general’s office in Jefferson City.

Jay Nelson was convicted of rape in 1989 and was sentenced to 25 years in prison. While in prison, he received a number of conduct violations for sexual misconduct. He was accused of exposing himself and masturbating in front of female staff, making threatening statements to female staff, calling female staff by degrading names, and inappropriately touching at least two female prison guards. He entered the state’s sex offender program but ultimately was terminated from treatment because of continued masturbation and exposure of himself to corrections officers. He refused a second opportunity to participate in treatment. The state sought to commit Nelson to the department of mental health as a sexually violent predator. Before trial, Nelson moved to dismiss, arguing the sexually violent predator act was unconstitutional for a number of reasons. The circuit court overruled his motion. The court also overruled his request to exclude the term “sexually violent predator” from use in the trial and jury instructions. Following trial, the jury found that Nelson was a sexually violent predator. The circuit court issued its judgment accordingly, ordering Nelson committed to the custody of the department of mental health for control, care and treatment until Nelson’s mental abnormality had changed so that he was safe to be at large. Nelson appeals.

This appeal presents several questions for the Court. One involves whether the sexually violent predator act is unconstitutional. Related issues involve whether the act results in punitive, lifetime commitment; whether it constitutionally is required to offer procedural protections such as proof beyond a reasonable doubt, treatment in the least restrictive environment or unconditional release from confinement; and whether it permits commitment without proof of behavioral impairment or of serious difficulty controlling behavior. Another question involves whether use of the phrase “sexually violent predator” during trial and in jury instructions is permissible or whether it is pejorative, irrelevant and inflammatory. Additional questions involve whether the state presented sufficient evidence to prove Nelson had a mental abnormality that caused him serious difficulty in controlling his behavior, predisposed him to commit sexually violent offenses or made it more likely than not that he will commit future predatory acts of sexual violence if not confined. Further questions involve whether the circuit court erred in excluding evidence of Nelson’s behavior as a child or of his plan, if released.

SC95975_Nelson_brief
SC95975_State_brief
SC95975_Nelson_reply_brief


SC95953
Paul Gittemeier v. State of Missouri
Warren County
Abandonment by privately retained counsel during postconviction proceedings
Listen to the oral argument: SC95953.mp3
Gittemeier was represented during arguments by Richard H. Sindel of Sindel, Sindel & Noble PC in Clayton; the state was represented by Evan J. Buchheim of the attorney general’s office in Jefferson City.

A neighbor called police in July 2010 after he found Paul Gittemeier riding his all-terrain vehicle on the neighbor’s lawn while holding what appeared to be a bottle of alcohol. Gittemeier left but then returned, tipping over the ATV after an apparent attempt to do “donuts” on the lawn. Following an investigation, the state charged Gittemeier with felony driving while intoxicated and misdemeanor first-degree trespassing. The state also alleged Gittemeier was a persistent felony offender and a chronic DWI offender. Following a jury trial, he was found guilty as charged and sentenced to a total of 15 years in prison. After the appeals court affirmed the judgment, Gittemeier sought postconviction relief, and the circuit court appointed the public defender to represent him. The public defender sought an extension to file an amended motion and later sought to withdraw from the case, alleging Gittemeier had failed to return the application for services and had been represented by private counsel in the underlying criminal case. The same day, a private attorney entered his appearance on Gittemeier’s behalf and requested an extension to file the amended postconviction motion. The circuit court granted both attorneys’ motions. Ultimately, following an evidentiary hearing at which Gittemeier presented no evidence regarding his primary claim – that his trial counsel was ineffective for failing to challenge, at trial, whether an ATV is considered a motor vehicle under the state’s DWI law – the circuit court denied Gittemeier relief. Gittemeier appeals.

This case presents two primary questions for the Court involving the abandonment doctrine in postconviction proceedings. One question involves whether the abandonment doctrine applies only to postconviction movants represented by court-appointed counsel or whether state and federal constitutional provisions require that it also apply to movants who are represented by privately retained counsel. Another question involves whether Gittemeier was abandoned by his counsel’s failure to file an amended motion within the time frame permitted by Rule 29.15 and whether the circuit court was authorized to grant a second extension to file the motion.

Several organizations filed briefs as friends of the Court. The American Civil Liberties Union of Missouri Foundation argues that neither of this Court’s rules governing postconviction relief state they apply only to appointed counsel, that these rules must be interpreted consistently with the constitution and that not applying the abandonment doctrine to privately retained counsel will place additional burdens on the state’s public defender system. The Missouri Association of Criminal Defense Lawyers and Missouri Society for Criminal Justice argue applying the abandonment doctrine only to appointed counsel frustrates the purposes of Rule 29.15, creates a disincentive for an inmate to hire private counsel and a disincentive to alleviate burdens on the public defender system. They argue the doctrine should hold all defense counsel, whether appointed or privately retained, to the same minimum standards created by Rule 29.15(e).

SC95953_Gittemeier_brief
SC95953_State_brief
SC95953_Gittemeier_reply_brief

SC95953_ACLU_of_MO_Foundation_amicus_brief
SC95953_MACDL_and_MO_Society_for_Criminal_Justice_amici_brief


SC95939
In the Matter of A.L.R.; K.R. v. A.L.S.
Cooper County
Challenge to judgment appointing guardians for minor child
Listen to the oral argument: SC95939.mp3
The natural mother was represented during arguments by Frank Flaspohler, an attorney in Fayette; the paternal grandfather was represented by Wendy L. Wooldridge, an attorney in Boonville.

A daughter was born in November 2014 to a young couple who lived with the child’s paternal grandfather. After the child’s father was murdered in June 2015, the grandfather asked the mother to move out of his home. She and her child lived with friends and then her own mother, and then she applied for public housing. The grandfather subsequently filed a petition to have the father’s cousin and the cousin’s husband appointed as co-guardians and co-conservators of the child. The grandfather alleged the mother was unfit and unable to care properly for her daughter due to her youthful age, incomplete education and lack of a permanent residence. At the time the petition was filed, the mother was 17 years old, and the child was 10 months old. The mother sought a continuance of the guardianship proceeding, which was scheduled for August 2015. The circuit court overruled the motion and proceeded with a full hearing on the petition. Following the evidentiary hearing, the circuit court granted the petition and appointed the cousin and her husband as co-guardians and co-conservators of the child, finding the mother “is unable and unfit” to care properly for her child. The circuit court overruled the mother’s subsequent motions for a new trial or to terminate guardianship and conservatorship. The mother appeals.

This appeal presents several questions for the Court involving whether the circuit court erred in finding the mother unable and unfit to serve as her daughter’s natural guardian. One question is whether the circuit court misapplied the law in failing to require clear and convincing proof that the mother is unable and unfit to serve as her daughter’s natural guardian. Other questions involve whether the circuit court’s finding that the mother was unable and unfit to serve as the natural guardian is supported by sufficient evidence or is against the weight of the evidence. Another question involves whether the circuit court should have continued the trial. Related issues involve whether sufficient time had passed during which the mother had served as the sole surviving parent and whether it was necessary for the child’s guardian ad litem to meet with the mother before the guardianship hearing.

SC95939_Natural_Mother_brief
SC95939_Paternal_Grandfather_brief
 
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