Case Summary for October 7, 2008

Your Missouri Courts - Supreme Court

Home

Case Summary for October 7, 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.

Attached to the following docketed cases are electronic copies of briefs filed by the parties. These electronic briefs have been converted to PDF to accommodate various word processors. If you do not already have Acrobat reader, which is necessary to open the PDFs, you may obtain it free at the Adobe website. (A set of free tools that allow visually disabled users to read documents in Adobe PDF format is available from access.adobe.com.) These briefs do not reflect any opinion of the Court about the appropriateness of the format of the briefs or the merits of the case, nor are they official court records. Copies of all briefs filed with the Court are available at the Supreme Court Building in the court en banc division.

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 a.m. Tuesday, October 7, 2008

_____________________________________________________________________________________

SC89282
State ex rel. BJC Health System v. The Honorable Donald L. McCullin
City of St. Louis
Venue in medical malpractice case
Listen to the oral argument:

BJC was represented during argument by Paul N. Venker of Williams, Venker & Sanders, LLC, of St. Louis, and Qamar was represented by Joan M. Lockwood of St. Louis.

Dr. James Pitt performed an operation on Sadaf Qamar in May 2004 at Boone County Hospital in Columbia. Five months later, Qamar and her husband sued Pitt; CH Allied Services Inc., which does business as Boone Hospital Center; BJC Health System and others, alleging the surgery was performed negligently and resulted in brain damage. BJC's registered agent is in the city of St. Louis. Qamar filed her case in the city on the basis that BJC, which is leasing Boone Hospital, holds itself out to the public as an integrated delivery system and exercises control over the hospital in many areas including those that affect the medical care provided to her. BJC and the hospital are incorporated separately. In November 2004, BJC moved to transfer venue of the lawsuit to Boone County. In February 2008, the city circuit court overruled BJC's motion. BJC sought a writ to prohibit the city circuit court from taking any further action except to transfer the entire case to Boone County. In May 2008, this Court entered three preliminary orders in prohibition. BJC seeks to make the writs absolute.

BJC argues that Qamar pretensively joined it as a defendant and that the circuit court should have dismissed it as a party. It contends there is no evidence or information in the record to support that BJC participated in conduct that affected the health care at issue or that caused Qamar's alleged injuries. BJC asserts venue is proper in Boone County pursuant to section 355.176.4, RSMo, because the hospital – a nonprofit corporation – is located there and maintains its registered agent there and because the cause of action accrued there. It further argues that this Court should revisit its holding in State ex rel. BJC Health System v. Neill, 121 S.W.3d 528 (Mo. banc 2003), and hold that, pursuant to section 355.176.4, even if BJC was not joined pretensively, the entire case must be transferred to Boone County as the only proper venue for Qamar's claims against all defendants.

Qamar responds that she adequately pleaded a cause of action against BJC. She contends she alleged BJC and other defendants were agents of one another, that BJC controlled the health care at issue, and that the hospital was the alter ego of BJC. Qamar asserts venue in the city of St. Louis is proper because the facts of the case support a reasonable legal opinion that a cause could be made against BJC. She argues the facts in BJC's affidavits are controverted and provide no basis for a judicial determination that joining BJC was pretensive. She further responds that venue in the city was proper pursuant to section 355.176.4 and that the 2005 revision to section 508.010, RSMo, was not in effect at the time she filed her cause of action. Qamar contends the state constitutional ban on retrospective laws bars retrospective application of the 2005 venue statute. She asserts that even if section 538.305 and the 2005 revision were applied, the application would not result in a change of venue because her amended petition did not constitute a new cause of action and the claims against the new parties were based on the same set of operative facts underlying the original claim. Qamar argues that the facts and issues of this case are a direct parallel to those decided by this Court in State ex rel. BJC Health System v. Neill, and that this Court should adhere to its prior holding that the not-for-profit corporation venue statute governs all cases in which a not-for-profit is a defendant, even if individuals or for-profit corporations are named as additional defendants.

SC89283
State ex rel. CH Allied Services, Inc., d/b/a Boone Hospital Center v. The Honorable Donald L. McCullin
City of St. Louis
Venue in medical malpractice case
Listen to the oral argument:

The hospital was represented during argument by Kenneth W. Bean of St. Louis, and Qamar was represented by Joan M. Lockwood of St. Louis.

This case involves the same factual scenario in Case No. SC89282, above. Boone Hospital seeks a writ to transfer the entire case to Boone County.

The hospital argues that venue is proper in Boone County because the joinder of BJC Health System was pretensive. It contends section 508.010.4, RSMo, as modified by House Bill 393, is determinative of the venue issue because Qamar's first amended petition caused the entire action to be rebrought, triggering a de novo (starting over, or anew) venue analysis under State ex rel. Linthicum et al. v. Calvin, 57 S.W.3d 855 (Mo. 2001).

Qamar makes the same arguments in response here as she did in Case No. SC89282, above.

SC89284
State ex rel. James Bruce Pitt, D.O., and Columbia Surgical Associates v. The Honorable Donald L. McCullin
City of St. Louis
Venue in medical malpractice case
Listen to the oral argument:

Pitt was represented during argument by Brent W. Baldwin of St. Louis, and Qamar was represented by Joan M. Lockwood of St. Louis.

This case involves the same factual scenario in Case No. SC89282, above. Dr. James Bruce Pitt seeks a writ to transfer the entire case to Boone County.

Pitt argues that the action must be filed in Boone County. He contends that Qamar's filing of a first amended petition invoked section 508.010, RSMo, which provides that venue is appropriate only in the county where Qamar first was injured, which was in Boone County. He also argues BJC was joined pretensively because Qamar's petition did not plead the necessary elements to set out a claim for relief from BJC and because the information did not support a reasonable objective legal opinion that a case could be made against BJC.

Qamar makes the same arguments in response here as she did in Case No. SC89282, above.

SC89571
John C. Middleton, et al. v. Missouri Department of Corrections, et al.
Cole County
Application of administrative procedure act to lethal injection protocol
Listen to the oral argument:

Middelton was represented during argument byJoseph W. Luby of the Public Interest Litigation Clinic in Kansas City, and the state was represented by Michael J. Spillane of the attorney general's office in Jefferson City.

Missouri executions are by lethal injections or lethal gas and must be carried out through an "execution protocol" developed by the Missouri Department of Corrections. The protocol was prepared by the department in July 2006 in part in response to federal litigation over Missouri's execution method. In July 2008, John Middleton and 16 other Missouri inmates sentenced to death, five relatives of the inmates, three members of the clergy, and two members of the Missouri legislature (collectively "Middleton") filed a lawsuit challenging the execution protocol, arguing the department did not promulgate its execution protocol through the state's administrative procedure act. They argued the protocol is a rule under the act and should have been promulgated as an administrative regulation pursuant to sections 536.010(6) and 536.021, RSMo, which provide that, when the department issues rules of general application, it is required to file a notice of the proposed rulemaking with the secretary of state for publication in the Missouri Register, invite public comment for or against the proposal, publish a "final order of rulemaking," explain why it either followed or rejected comments made by the public, and submit the proposed and final rule to the joint committee on administrative rules, through which the legislature has an "effective opportunity" to be advised of the regulations being proposed. In August 2008, the circuit court dismissed the lawsuit for lack of jurisdiction, holding the protocol was exempt from the act's definition of a rule because it was a matter of "internal management" pursuant to an exception in section 536.010. It determined the protocol instead is an agency statement "concerning only inmates of an institution under the control of the department of corrections." Middleton appeals.

Middleton argues the circuit court erred in exempting the department's protocol from the act under the act's "internal management" exception. He contends the court impermissibly broadened the exception and applied it because of the court's view that the protocol does not affect any specific rights of the public. Middleton asserts the protocol extends beyond the department's "internal management" by relying on outside medical personnel for its implementation (given that non-department medical professionals aid in carrying out the lethal injections), by affecting outside parties witnessing the injection pursuant to the protocol, and by deciding for all Missourians the politically and legally salient issue of how the state will carry out executions. He further argues the circuit court failed to give effect to all words of the statute because the protocol concerns and affects individuals beyond the prisoners against whom it will be enforced, including non-department parties who will carry out and witness executions.

The state responds the injection protocol is not a rule that must be promulgated under the act. It asserts that whether the challenged policy was a "rule" under section 536.010(6) is a jurisdictional question and that the circuit court did not have jurisdiction to determine whether the department followed the notice and comment requirements for promulgating a rule under the act. The state contends the court lacked jurisdiction because the injection protocol is not a "rule" pursuant to section 536.010(6) because it does not have an impact on the substantive or procedural rights of the public, it concerns only the internal management of the department, and it is directed only to inmates.

The Missouri Press Association argues, as a friend of the Court, that the protocol is a rule. It contends that the openness of the process of selecting the execution method is an issue of broad public interest and that such a policy should not be relegated to the department's internal management policymaking.