Case Summary for October 9, 2002

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Case Summary for October 9, 2002

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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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

Wednesday, October 9, 2002

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SC84449
Willie Harvey v. Eric Washington, M.D., Denise Taylor, M.D., and Wendell Williams, M.D.
St. Louis city
Medical negligence in wrongful death action

In September 1995, Mary Harvey was admitted to Deaconess Medical Center so orthopedic surgeon Dr. Eric Washington could replace her right knee. The day following the surgery, she was able to walk about 30 feet with minimal assistance. The next day, she suffered several seizures, one of which was a grand mal seizure. Neurologist Dr. Denise Taylor examined her and prescribed anti-seizure medication, to which she responded. About a week later, doctors discovered Mary Harvey had fractured her right hip while in the hospital, possibly during the grand mal seizure. After delays while other doctors, including cardiologist Dr. Wendell Williams, examined Mary Harvey and cleared her for surgery, Washington performed a second surgery in which he partially replaced her hip. The next day, she began having seizures again, and over the next few days, her neurological condition worsened. She fell into a coma by October 1, 1995, subsequently was placed on a ventilator and life support system, and died October 21, 1995, at age 67. Her husband, Willie Harvey, filed a wrongful death action, and the case proceeded to trial against Taylor, Washington and Williams.

At trial, one doctor testified for Harvey that renal failure and an untreated pseudomonas urinary tract infection present before the hip surgery contributed to the neurological deterioration that eventually resulted in Mary Harvey's death. Experts testifying for the doctors concluded that she did not have a urinary tract infection and that the doctors followed the standard of care in treating Mary Harvey. Over objection, Willie Harvey submitted a verdict director instructing the jury to find in his favor if it found the doctors failed to treat Mary Harvey's pseudomonas urinary tract infection, were thereby negligent and that this negligence directly caused or contributed to Mary Harvey's death. The court declined to clarify whether the jury also was required to determine whether Mary Harvey had the infection. The jury returned a verdict in Harvey's favor and awarded him $1.2 million in damages, determining that each of the doctors was one-third at fault. The doctors appeal.

Taylor, Washington and Williams argue the court should have granted their motions for directed verdict or for judgment notwithstanding the verdict because Harvey failed to present substantial evidence that, but for the doctors' alleged negligence, Mary Harvey would not have died. They contend the court erred in submitting Harvey's verdict director because it assumed as true the disputed issue of whether Mary Harvey had a pseudomonas urinary tract infection, despite evidence to the contrary, and because it did not conform to the Missouri Approved Instructions. Taylor also contends the verdict director was improper because it used an unusual, broad, vague and imprecise verb that gave the jury the ability to speculate as to what she might have done to cause Mary Harvey's death. The three doctors assert the court should not have permitted Harvey's expert to testify that the doctors' failure to treat a urinary tract infection caused or contributed to Mary Harvey's death because his testimony at trial differed substantially from his testimony during his deposition. They argue one juror prejudiced them when she intentionally failed to disclose prior and pending lawsuits in which she was involved. Taylor and Williams also argue the court should not have allowed Harvey to use an exhibit during closing argument because it misstated the evidence and improperly introduced new evidence.

Harvey responds that the court properly denied the doctors' motions for directed verdict and judgment notwithstanding the verdict because he established that the doctors' negligence directly caused or contributed to Mary Harvey's death. He argues the verdict director was proper because it did not assume a disputed fact, was modified at the doctors' request and did not contain an unusual or vague term in context of the evidence in the case. Harvey contends the court properly allowed his expert to testify and that this testimony was consistent with that given during the deposition. He asserts he presented substantial evidence at trial that Taylor's failure to advocate dialysis and to treat the urinary tract infection breached the appropriate standard of care and caused or contributed to Mary Harvey's death. Harvey responds that the court did not err in allowing him to use and exhibit during closing argument because it merely was a demonstrative aid to elucidate his argument. He argues the court did not abuse its discretion in determining that the juror's failure to disclose prior lawsuits was not intentional or prejudicial. Harvey also questions this Court's jurisdiction to hear this appeal because it does not involve a matter of general interest or importance and does not involve an opinion contrary to a previous opinion of an appellate court of this state.

SC84527
Floyd J. Sill and Billye D. Sill v. Burlington Northern Railroad and Santa Fe Railway Company
Greene and Webster counties
Negligence case against railroad company

Floyd Sill was injured in April 1999 when the vehicle he was driving hit a horse on Highway 60 in Webster County, about a half-mile from Burlington Northern Railroad's right-of-way. He and his wife filed a lawsuit alleging in part that the horse escaped through a fence owned by Burlington Northern, that the railroad was negligent in maintaining the fence pursuant to section 389.650, RSMo, and that this negligence caused his injury. The court dismissed, with prejudice, the claim against Burlington Northern for failure to state a claim because the accident occurred outside the railroad right-of-way. The Sills asked the court to reconsider and for leave to file another amended petition. The court denied both motions and designated its judgment as final for purposes of appeal, finding there was no just reason for delay.

The Sills appeal, arguing the court erred in dismissing their claim against the railroad and in finding, as a matter of law, that the failure to maintain the fence could not be the proximate cause of his injury. They contend their allegations show that, but for the railroad's negligence, the horse would not have escaped and Floyd Sill would not have been injured. The Sills assert that section 389.650 and common law required Burlington Northern to erect and maintain fences along roads adjoining or crossing railroad tracks. The Sills argue the court should have permitted them to file a fourth amended petition because Rule 55.33 provides that leave to amend shall be granted freely, particularly after a motion to dismiss is sustained. They also contend the court should have granted their oral motion to add to the count regarding Burlington Northern that the horse escaped through the fence.

Burlington Northern responds that under section 389.650, Burlington Northern does not owe a duty to the Sills because it has no duty to prevent injury outside the right-of-way. It argues many court decisions have upheld this argument and, because the legislature has reenacted the statute without substantive change, the legislature must have adopted the courts' interpretation of the statute. The railroad argues the Sills cannot sue it for common-law negligence because it has no common-law obligation to fence its property or keep persons or animals out. It also contends that, because there is no duty owed, as a matter of law it cannot be held responsible for Floyd Sill's injuries. The railroad further responds that the court properly denied the Sills' motion to file a fourth amended petition because the proffered amendments would not have helped state a claim that could be supported by law.

SC84401
Glen Spears v. Capital Region Medical Center, Inc.
Callaway County
Res ipsa loquitur negligence claim in medical malpractice case

In August 1997, Glen Spears was admitted to Capital Region Medical Center for treatment of cardiac distress. He had coronary by-pass surgery, and fewer than two months later, he developed symptoms of acute hepatitis. Ultimately, he was diagnosed with hepatitis C. Spears sued, claiming the hospital negligently infected him with hepatitis C. The court dismissed the medical negligence count, leaving only a negligence count under res ipsa loquitur (a legal theory by which, under certain circumstances, the wrongdoer's negligence can be inferred by the very fact that the accident or injury occurred). The hospital then moved for summary judgment on the grounds that Spears could not prove he contracted hepatitis C in the hospital without expert testimony, which is not permitted in a res ipsa loquitur case. The court granted summary judgment in the hospital's favor, and Spears appeals.

Spears argues summary judgment was not appropriate because Capital Region failed to demonstrate there was no genuine issue of material fact and that it was entitled to summary judgment as a matter of law. He contends a majority of courts permit a plaintiff to present expert testimony in support of a res ipsa loquitur claim and that he presented evidence supporting his claim, particularly where a person ordinarily does not contract hepatitis C where due care is used.

Capital Region responds that the court properly entered summary judgment in its favor. The hospital argues it showed there was no genuine dispute of material fact and that it was entitled to judgment as a matter of law. It contends that the applicable case law, as this Court stated in Hasemeier v. Smith, 361 S.W.2d 697 (Mo. banc 1962), does not permit res ipsa loquitur to be applied in medical negligence cases requiring expert testimony and that even if it did, Spears failed to establish evidence sufficient to support such a claim.

Two organizations filed briefs as amicus curiae in support of the hospital's position. The Missouri Health Care Association argues that res ipsa loquitur requires that people must commonly know that the occurrence ordinarily is caused by negligence and that here, it is not commonly known that contracting hepatitis C ordinarily is caused by negligence. The Missouri Hospital Association argues that public policy supports following current Missouri law, which prohibits the use of expert testimony to prove a res ipsa loquitur claim in a medical malpractice case.

SC84036
State of Missouri v. Michael A. Tisius
Boone and Randolph counties
Direct appeal of murder convictions and death sentences

In June 2000, 19-year-old Michael Tisius was incarcerated in the Randolph County jail in Huntsville in a cell with Roy Vance. Vance apparently convinced his girlfriend, Tracie Bulington, and Tisius to break him out of jail. When Tisius was released, he called Bulington, who picked him up in Columbia. About a week later, they returned to the jail shortly after midnight under the guise of delivering cigarettes to Vance. Tisius was carrying a gun Bulington had taken from her parents' house. Tisius chatted with Deputy Jason Acton and then shot Acton, killing him, and another deputy, Leon Egley. Neither officer was armed. Tisius took some keys to Vance's cell, but none worked, so he returned to where the jailers were. Egley grabbed Bulington's leg, and Tisius fired more shots at Egley, who apparently died on his way to the hospital. Tisius and Bulington then ran to her car, and they drove away into Kansas, where the car died and they subsequently were arrested. Tisius was tried on two counts of first-degree murder on a change of venue to Boone County, with a jury from St. Charles County. The jury convicted him of both counts and recommended that he be sentenced to death on each count, finding one statutory aggravator in the murder of Acton and three in the murder of Egley. The court entered judgment accordingly, and Tisius appeals.

Tisius argues that the court improperly permitted evidence and arguments during the penalty phase of his trial that, in the days before the killings, he repeatedly played a particular rap song filled with profanity, references to violence, and racially and sexually disparaging lyrics. He contends that playing this song for the jury violated his constitutional rights, including his First Amendment rights to freedom of thought, speech, expression and ideas, and that his enjoyment of this music was not logically or legally relevant to the issues in the penalty phase. Tisius asserts that the court improperly allowed the state to strike for cause a juror who in fact said she could vote for the death penalty in certain circumstances. He argues there was no evidence he deliberated on the shooting or on killing Acton or Egley. Tisius contends the court lacked jurisdiction to sentence him to death because the state failed to plead any aggravating circumstances that would support the death penalty. He asserts the court should have let his mother testify, during the penalty phase, that he had expressed remorse over his actions. He argues the court should have let him enter into evidence a letter from Vance to a third person because it was relevant as to his intent. Tisius contends the court erred in giving two instructions regarding aggravating circumstances because they were not supported by evidence, were duplicative and varied from the charges. He asserts the court erred in permitting cameras in the courtroom under Court Operating Rule 16 because notice was not given in advance, he objected to camera coverage and one witness did not wish to be videotaped. Tisius argues the court should have allowed him to present expert testimony from a doctor that he would not be dangerous to others if sentenced to life in prison because the state put the issue of future dangerousness at issue. He further argues the court improperly submitted two instructions that failed to advise jurors of a crucial third step in weighing whether to give the death penalty.

The state responds that the rap song did not violate Tisius' First Amendment right to enjoy music of his choice because it was relevant to support the inference that Tisius had abandoned the original plan to lock the jailers in a cell and instead had decided to kill them. It argues it was not obligated to tell Tisius that Bulington had told prosecutors the morning she testified at trial that she could identify the song. The state contends the court properly excluded the juror because it reasonably concluded from her testimony that she was substantially impaired in her ability to consider imposing the death penalty. It asserts there was sufficient evidence presented at trial that Tisius had deliberated on the murders of the two officers and that the death sentences should be affirmed because they were not imposed in an arbitrary manner, are not excessive or disproportionate considering the crimes. The state responds that it is not required to plead the statutory aggravating circumstances it intended to submit in the punishment phase. It argues the court did not err in excluding testimony from Tisius' mother because her testimony would have constituted inadmissible hearsay and was cumulative to other statements of remorse previously admitted in the trial. The state contends the court did not abuse its discretion in excluding a letter from Vance soliciting the help of a third person to help him break out of jail because the letter would have been inadmissible hearsay and was irrelevant. It asserts this Court should affirm the death sentences because the evidence supports the statutory aggravators found by the jury and are not duplicative. The state responds that the court did not err in permitting cameras in the courtroom because the filming was conducted under the safeguards of Court Operating Rule 16 and there is no evidence that Tisius was prejudiced by their presence. The state also argues the lack of notice to the parties, as contemplated by Court Operating Rule 16.03(b), did not prejudice Tisius and does not entitle him to a new trial. The state contends that Tisius' claim that his expert witness should have been permitted to testify is meritless because his attorney withdrew the line of questioning after being assured the state would not argue Tisius would present a future danger. The state further responds that the verdict mechanics instruction does not mislead the jury about its duty in weighing mitigation against aggravators, and the jury received a separate instruction about what all the steps it had to go through in considering whether to impose the death sentence.