Case Summary for January 4, 2011

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Case Summary for January 4, 2011

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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The attachments below may not reflect all briefs filed with the Court, the complete filing or the format of the original filing. Appendices and other attachments generally will not be posted here. To see what documents have been filed in a particular case, visit Case.net.

DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9:30 a.m. Tuesday, Jan. 4, 2011

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SC90835
Sohrab Devitre v. The Orthopedic Center of Saint Louis, LLC, and Mitchell B. Rotman, M.D.
St. Louis County
Challenge to trial court’s denial of motion to strike defendant’s reliance on statutes
Listen to the oral argument:

Devitre was represented during arguments by James S. Collins II of the Law Office of James S. Collins II in St. Louis, and Rotman was represented by Robert J. Amsler of David I. Hares, esq. & Associates in St. Louis.

After Sohrab Devitre sued a driver whose vehicle collided with Devitre’s vehicle, the driver requested that Devitre consent to a medical examination. Devitre agreed, and in August 2006, Dr. Mitchell B. Rotman of The Orthopedic Center of Saint Louis examined Devitre. Subsequently, Devitre sued the orthopedic center and Rotman, alleging Rotman injured him in the course of the medical examination. The trial judge dismissed the case because Devitre did not file a health care affidavit, as required by section 538.225, RSMo. Devitre refiled the case and later filed a motion to strike Rotman’s ability to rely on chapters 537 and 538, RSMo, claiming Devitre was never a patient of either Rotman or the orthopedic center. The orthopedic center moved to dismiss for improper service. The orthopedic center and Rotman then jointly filed a motion to dismiss, claiming Devitre did not file a health care affidavit within 90 days as required by section 538.225. The trial judge dismissed Devitre’s case against the orthopedic center for insufficiency of service. The judge then overruled Devitre’s motion to strike and dismissed the case against Rotman, with prejudice, under section 538.225. Devitre appeals the judge’s dismissal of his case against Rotman.

Devitre argues the trial court abused its discretion and committed reversible, prejudicial error in denying his motion to strike Rotman’s ability to rely on chapters 537 and 538. Devitre contends he was not a patient of Rotman but only was seen for an independent medical examination. Devitre asserts the trial court abused its discretion and committed reversible, prejudicial error in dismissing the case with prejudice.

Rotman responds that the trial court properly dismissed the case. He argues Devitre failed to file a health care affidavit as required by section 538.225 because Rotman never obtained the written opinion of a legally qualified health care provider stating that Rotman failed to use reasonable care in examining Devitre and that Rotman’s failure to do so caused Devitre’s claimed damages. Rotman contends that, within the meaning of chapter 538, Devitre was his patient.

SC91009
State ex rel. Anwar Yousuf v. The Honorable Michael Jamison
St. Louis County
Injunctive relief in "non-compete" clause case

This case has been removed from the docket.

SC90995
Russell Stevenson v. Holland-Binkley Company
Warren County
Wrongful termination
Listen to the oral argument:

Stevenson was represented during arguments by Todd M. Boehlje of Todd M. Boehlje, P.C. in St. Louis, and Holland was represented by Bryan M. Kaemmerer of McCarthy, Leonard, Kaemmerer, L.C. in St. Louis.

Between 2000 and 2002, Russell Stevenson filed four workers’ compensation claims against his employer, Holland-Binkley Company. Stevenson claims that in December 2004, Holland’s representatives approached Stevenson about settling his workers’ compensation cases and suggested Holland might be willing to increase its settlement offer if Stevenson resigned under a separation agreement. Further, Stevenson claims that in February 2005, Holland told him its attorneys had advised that a settlement offer could not be conditioned on a separation agreement under section 287.780, RSMo (part of the state’s worker’s compensation act). In the spring of 2005, Stevenson settled his claims without a separation agreement. In July 2005, Holland suspended Stevenson, pending his termination, for making personal telephone calls in violation of company rules. In July 2007, Stevenson filed suit, alleging Holland wrongfully discharged him under section 287.780. Holland filed a motion for summary judgment, which the trial court granted. Stevenson appeals.

Stevenson argues the trial court erred in entering summary judgment in favor of Holland. He contends the court erred in applying the “exclusive causation” standard, which states a wrongful discharge claim only can be maintained under section 287.780 if there is “an exclusive causal connection between” the employee exercising his rights and the employer’s discharge of the employee. Stevenson asserts that this Court recently held the “exclusive causation” standard is no longer proper and that section 278.780 contains no reference to such a standard. Alternatively, Stevenson argues the trial court erred in entering summary judgment in Holland’s favor because there are genuine issues of material fact whether Stevenson’s exercise of his rights was the exclusive cause for his termination or, rather, whether Holland’s reason for his termination was pretextual.

Holland responds that the trial court properly granted its motion for summary judgment. It argues Stevenson’s claim that the “exclusive causation” standard is improper cannot be brought before this Court because this is the first time Stevenson has raised the issue. Holland contends that the trial court correctly applied the “exclusive causation” standard and that legislative intent and judicial precedent make the standard proper. Holland asserts the evidence supports the trial court’s finding that Holland discharged Stevenson for making personal telephone calls in violation of company rules. Holland further responds that the trial court’s judgment should be affirmed because Stevenson’s brief fails to comply with Missouri rules of civil procedure by failing to explain why his stated legal reasons support his claim.

The St. Louis and Kansas City chapters of the National Employment Lawyers Association argue, as friends of the Court, that the Court should abandon the “exclusive causation” standard for claims under section 287.780. They contend the standard is inconsistent with the plain language of the statute and fails to fulfill the statute’s purpose. They argue the Court should adopt a “contributing factor” standard that would fulfill the statute’s purpose and be consistent with the standard used for other types of employment discharge claims.

SC90649
State of Missouri v. Donald R. Nash
Crawford County
Challenge to murder conviction
Listen to the oral argument:

Nash was represented during arguments by Frank K. Carlson of The Carlson Law Firm in Union, and the state was represented by Theodore A. Bruce of the attorney general's office in Jefferson City.

In March 1982, police responded to a report of a dead body. A pathologist determined that the victim died by strangulation from a shoe string and that she was shot in the neck after she was dead. A police officer took fingernail clippings from the victim. In 2007, police reopened the case. In March 2008, police visited Donald Nash – the victim’s live-in boyfriend at the time of the murder – and obtained a DNA sample. A criminal analyst determined DNA detected from the victim’s fingernail clippings was consistent with Nash’s DNA sample. In March 2008, the prosecuting attorney filed a complaint charging Nash with capital murder under a 1977 statute. In October 2009, the jury found Nash guilty as charged. The trial court sentenced Nash to life imprisonment without the possibility of probation or parole for 50 years. Nash appeals.

Nash argues the statute under which he was charged, tried and convicted was repealed and not subject to the Missouri criminal “saving statute.” Nash contends the trial court erred in denying his motions for judgment of acquittal and a new trial because the evidence was insufficient to sustain a conviction. He asserts the court erred by not allowing him to present a defense that a third party committed the crime. Nash argues Missouri’s evidentiary rule not allowing for such a defense, unless the proof “directly connects” the third party with the victim, infringes on a criminal defendant’s fundamental rights. Nash contends the current rule requires a greater amount of proof to obtain admission of evidence of third-party guilt than proof necessary to obtain a murder conviction. He asserts the current rule violates the Sixth Amendment of the United States Constitution and the parallel provisions of article I, section 18(a) of the Missouri Constitution. Nash argues the court erred in not submitting his proposed jury instruction. He contends this error violates his due process rights because the trial court ex post facto (retroactively) altered the rules of evidence applicable in March 1982. He asserts this error violates section 565.001.2, RSMo – which requires a case to be “punished, charged, tried and reviewed” according to provisions in effect at the time of the charged crime. He argues that the state’s case rests on circumstantial DNA evidence and that there are explanations for why his DNA was under the victim’s fingernails that are not inconsistent with reasonable theories that Nash is innocent. Nash argues, therefore, that his conviction violates the legal requirements in effect in March 1982 and that this Court must apply those requirements to a avoid violating his due process rights.

The state responds that Missouri did not repeal or abolish the crime of capital murder because all amendments to and revisions of that crime expressly state the statute outlawing and punishing capital murder shall remain in effect. The state argues the trial court did not err in refusing Nash’s evidence that a third person committed the murder. It contends Nash offered no evidence “directly connecting” a third person to the crime and failed to demonstrate the admissibility of the alleged facts he wished to offer. The state asserts the Missouri rule requiring proof of a third party’s culpability by establishing a “direct connection” does not violate the Missouri or United States constitutions. The state responds that the trial court did not err in denying Nash’s motion for judgment of acquittal and a new trial because there was sufficient evidence to convict Nash. The state argues the trial court did not err in not using Nash’s proposed jury instruction because it was an improper statement of the law and the rules of evidence