Case Summaries for September 5, 2018


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.


DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9:30 a.m. Wednesday, September 5, 2018
 

 
SC96528
Thomas E. Tharp, et al. v. St. Luke's Surgicenter-Lee's Summit LLC
Jackson County

Challenges to constitutional validity of statute under which future damages are reduced and subjected to periodic payments; sufficiency of evidence supporting verdict
Listen to the oral argument: SC96528 MP3 file
Tharp was represented during arguments by H. William McIntosh of The McIntosh Law Firm PC in Kansas City; St. Luke’s was represented by Teresa M. Young of Brown & James PC in St. Louis.

Thomas Tharp sued St. Luke’s Surgicenter-Lee’s Summit LLC, alleging the surgical center negligently granted surgical privileges to the surgeon who laparoscopically removed his gall bladder there in December 2011 and allegedly damaged Tharp’s hepatic and common bile ducts, causing bile leakage into Tharp’s abdomen, peritonitis, pancreatitis and permanent liver damage. Following a January 2017 trial, the jury rendered its verdict in Tharp’s favor. It awarded him $256,000 in past medical and other economic damages; $500,000 in past noneconomic damages; and a total of $1.5 million in future damages – $1 million in future medical damages and $500,000 in future noneconomic damages. Because the amount of future damages awarded exceeded the $100,000 statutory threshold, St. Luke’s asked the circuit court to apply section 538.220, RSMo. Following briefing, the circuit court entered its amended judgment. It first reduced the future damages award by the amount Tharp had received from a prior settlement with the surgeon and his employer and by the amount of his counsel’s attorney fees and expenses. It then ordered St. Luke’s to pay the remaining $550,000 in future damages in five equal periodic payments. Tharp appeals; and St. Luke’s cross-appeals.

Tharp’s appeal

Tharp’s appeal presents one primary question for this Court – whether section 538.220 is enforceable under the state constitution and whether the circuit court properly applied it to Tharp’s award of future damages. A related issue involves whether the statute unconstitutionally interferes with the right to a trial by jury, either by requiring entry of a judgment materially different from the verdict or by imposing a cap prohibiting recovery of unpaid damages if Tharp dies before St. Luke’s finishes paying the full amount of future medical damages awarded. Other related issues include whether section 538.220 unconstitutionally allows the legislative branch to interfere with or usurp judicial branch powers; is an unconstitutional taking without just compensation; or violates the constitutional prohibition against the enactment of special laws.

St. Luke’s appeal

St. Luke’s cross-appeal presents two evidentiary questions for the Court. One involves whether Tharp presented sufficient evidence to support his claim St. Luke’s negligently credentialed the surgeon. The other question involves whether Tharp proved future expenses were reasonable and necessary to treat his injuries and, if not, whether the jury’s award of future damages was against the weight of the evidence.

SC96528_Tharps_first_brief
SC96528_St._Luke's_first_brief
SC96528_Tharps_second_brief
SC96528_St._Luke's_second_brief
 


SC96547
Emilee Williams v. Mercy Clinic Springfield Communities, f/k/a St. John's Clinic Inc.
Greene County

Constitutional and other challenges to award of future damages and failure to award post judgment interest
Listen to the oral argument: SC96547 MP3 file
Williams was represented during arguments by Steve Garner of Strong-Garner-Bauer PC in Springfield; Mercy was represented by William Ray Price Jr. of Armstrong Teasdale LLP in St. Louis.

Emilee Williams sued Mercy Clinic Springfield Communities, alleging she sustained catastrophic brain damage after her doctor failed to refer her promptly to a neurologist when, on multiple occasions beginning when she was 20 years old, she went to her doctor about abnormal neurological issues, diagnosed as Wilson’s disease when she went to a neurologist months later. During the trial, evidence was presented that, if timely diagnosed and treated, Wilson’s disease can be managed and the patient can live a normal, productive life. Evidence also was presented that Williams’ brain damage will require her to be observed around the clock for the remaining years of her life expectancy. In March 2017, the jury returned its verdict in Williams’ favor, awarding her $511,000 in past medical and other economic damages; $1 million in past noneconomic damages; and a total of $27.4 million in future damages – $21 million in future medical damages, $3.2 million in future wage loss and $3.2 million in future noneconomic damages. Because the amount of future damages awarded exceeded the $100,000 statutory threshold, Mercy asked the circuit court to apply section 538.220, RSMo. Following evidentiary hearings about how to subject future medical payments to periodic payments, the circuit court entered its judgment in March 2017. It required more than $17.7 million of the future medical damages, plus Williams’ attorney fees, to be paid immediately in a lump sum. It required the remaining amount of future medical damages – nearly $3.25 million – to be paid in periodic payments over the course of Williams’ life expectancy, plus post-judgment interest accruing at 5.75 percent. Mercy twice moved to amend the judgment – first to reduce the amount of the jury’s verdict and for judgment notwithstanding the verdict and, more than 30 days after the court entered judgment, to exclude post-judgment interest. Williams moved to strike Mercy’s second motion, alleging it was untimely and the circuit court lacked authority to consider it. In June 2017, after arguments, the circuit court entered its final amended judgment. It modified the future periodic payment schedule by requiring $11 million in future medical damages to be paid in a lump sum and allocating the remaining $10 million to be paid in future periodic payments at an interest rate of 1.2 percent; removed its prior award of post-judgment interest; and did not appear to address attorney fees. Williams appeals; Mercy cross-appeals.

Williams’ appeal

This appeal presents several questions for this Court. One involves whether the circuit court’s final amended judgment requiring periodic payments of future medical damages at an interest rate below what the jury used to discount the future damages to present value will prevent Williams from receiving the full amount of the verdict or otherwise is unreasonable, arbitrary or an abuse of discretion. Another question involves whether section 538.220 violates due process by permitting Mercy to pay, periodically over 58 years, future medical damages that were reduced to a present value at a different interest rate than what was used to compute the present value of the jury’s award. An additional question is whether the final amended judgment violated section 538.220’s requirement that attorney fees be paid in an up-front lump sum. Further questions involve whether the circuit court still had authority to remove post-judgment interest and, in not awarding Williams post-judgment interest, the circuit court violated her state constitutional property rights to equal protection under the law as an unconstitutional taking of the full value of her verdict. 

Mercy’s appeal

Mercy’s cross-appeal presents several questions for the Court. One involves whether the circuit court should have submitted a particular instruction to the jury. Related issues include whether Mercy preserved this claim and, if so, whether the instruction constituted a “roving commission” allowing the jury to find Mercy liable after Williams’ experts testified she already had suffered her injuries before her doctor’s alleged negligence; whether part of the instruction is vague and confusing; and whether substantial evidence supported the instruction. Another question involves whether two doctors’ testimony at trial materially differed from their deposition testimony and, if so, whether the circuit court should have granted a mistrial or new trial as a result. An additional question involves whether Williams showed she had a specific medical need requiring a portion of future medical damages to be paid in a lump sum and, if not, whether the circuit court erred in requiring a lump-sum payment of $11 million in future medical damages.

SC96547_Williams_first_brief
SC96547_Mercy_Clinic_Springfield_first_brief
SC96547_Williams_second_brief
SC96547_Mercy_Clinic_Springfield_second_brief
 


SC96138
State of Missouri v. Andrew Barnett
St. Louis city

Challenge to circuit court’s refusal to give jury self-defense instruction
Listen to the oral argument: SC96138 MP3 file
Barnett was represented during arguments by Heidi L. Leopold of Martin, Malec & Leopold PC in St. Louis; the state was represented by Gregory L. Barnes of the attorney general’s office in Jefferson City.

The state charged Andrew Barnett with first-degree assault and armed criminal action for stabbing a man in May 2014 after an altercation between the two in a bar. At trial, Barnett sought to argue he acted in self-defense. The circuit court refused to give the jury the self-defense instruction he proposed. The jury found Barnett guilty as charged and recommended he be sentenced to 30 and 25 years in prison. The circuit court sentenced him in accordance with the jury’s recommendation, ordering him to serve the prison sentences concurrently. Barnett appeals.

This appeal presents one primary question for this Court – whether the circuit court erred in refusing to give the jury Barnett’s proposed self-defense instruction. Related issues include whether there was substantial evidence Barnett did not provoke the attack or was the aggressor, attempted to avoid the confrontation, reasonably believed he was defending himself from serious bodily harm, and used no more force than necessary. A further related issue involves whether Barnett denied stabbing the man and, if so, whether such a denial precludes a self-defense claim.

SC96138_Barnett_brief
SC96138_State_brief



SC96548
Terrance Anderson v. State of Missouri
Cape Girardeau County

Challenge to denial of postconviction relief in a death penalty case
Listen to the oral argument: SC96548 MP3 file
Anderson was represented during arguments by William J. Swift of the public defender’s office in Columbia; the state was represented by Richard A. Starnes of the attorney general’s office in Jefferson City.
 
Following a trial, a jury found Terrance Anderson guilty of two counts of first-degree murder for the July 1997 shooting deaths of the parents of a young woman with whom he has a child and with whom he lived briefly in Poplar Bluff during the woman’s pregnancy. The circuit court sentenced Anderson to death for the wife’s murder and to life in prison without the possibility of parole for the husband’s murder. On direct appeal, this Court affirmed the circuit court’s judgment. Anderson twice sought postconviction relief, and each time the circuit court denied relief. On appeal, this Court twice reversed the circuit court’s judgment as to the penalty phase, remanding (sending back) the case for a new penalty phase trial. Each time, the circuit court sentenced Anderson to death in accordance with the jury’s recommendation. He again sought postconviction relief. This Court appointed a new judge to preside over the third postconviction relief proceeding. The circuit court again denied relief. Anderson appeals.

This case presents a number of questions for this Court. Most concern whether Anderson’s counsel provided him ineffective assistance by failing to take certain actions and, if so, whether such failures violated Anderson’s constitutional rights or otherwise prejudiced him. One related issue includes whether Anderson’s counsel should have presented evidence of his stepfather’s alleged past violence toward Anderson and other family members, in an attempt to mitigate Anderson’s actions as a different strategy from the first trial, when the stepfather was portrayed as a model father. Other issues include whether Anderson’s counsel should have called certain psychiatrists to provide mitigating evidence about Anderson’s mental health diagnoses or certain lay witnesses to testify, in mitigation of punishment, about their observations of Anderson’s disoriented, distressed mental state shortly before and after the couple’s murders. Another issue involves whether Anderson’s counsel should have objected to the admission into evidence of the ex parte petition for an order of protection the mother of his child had sought days before her parents’ murders and the accompanying protective order or at least should have asked to have the petition’s factual allegations redacted because Anderson had not been afforded the opportunity to challenge the accusations it contained. Additional issues involve whether Anderson’s counsel properly advised him to testify and whether counsel should have objected to portions of the state’s cross-examination of him. A further issue is whether Anderson’s counsel on direct appeal should have challenged the proportionality of his death sentence. A final issue involves whether the circuit court clearly erred in adopting the findings of fact and conclusions of law made in a prior postconviction relief proceeding by a prior judge whom this Court later determined should have disqualified himself from Anderson’s case.

SC96548_Anderson_brief
SC96548_State_brief

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