Case Summary for September 4, 2008

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Case Summary for September 4, 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.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9 a.m. Thursday, September 4, 2008

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SC88890
Cortez Strong v. American Cyanamid Company and Georgia Santos-Jawaid, M.D.
City of St. Louis
Challenge to verdict and to denial of prejudgment interest in products liability case
Listen to the oral argument:

American Cyanamid was represented during argument by Roger W. Yoerges of Wilmer, Cutler, Pickering, Hale and Dorr, LLP, of Washington, D.C.;and Strong was represented by Lisa H. Howe of Clayton, and during cross-appeal by Edward D. Robertson Jr. of Jefferson City.

In June 1997, after receiving a polio vaccine made by American Cyanamid Company, Cortez Strong's left arm became permanently weakened. In 1999, Strong sued American Cyanamid and the pediatrician who administered the vaccine, claiming the vaccine was not tested adequately under FDA regulations. The trial court awarded Strong $8.5 million against the company but held the pediatrician not liable. Strong moved to amend the verdict to add prejudgment interest, and the company moved for judgment notwithstanding the verdict. The trial court overruled both motions. American Cyanamid appeals, and Strong cross-appeals.

American Cyanamid's appeal

The company argues Strong did not present a submissible case for a products liability or negligence claim. It contends that Strong failed to show it violated FDA regulations and that the meaning of those regulations was a question of law for the court and should have been resolved by deferring to the FDA's interpretation of its regulations. The company asserts Strong failed to prove causation. It argues the evidence failed to prove that any negligent act by the company affected the vaccine's safety, that the company violated polio vaccine regulations, or that Strong's expert witness, Tom Bozzo, could not draw a causal connection between the alleged violations and Strong's injury. The company asserts the trial court erred in overruling its motion for remittitur or a new trial because the $8.5 million verdict was excessive compared to awards in similar cases and was not supported by the evidence. It argues documents used in Strong's case were highly prejudicial and irrelevant and should not have been admitted into evidence.

Strong responds that the FDA should not be given deference in interpreting the regulations because of the agency's history of misinterpreting its regulations. He argues the company also failed to place the FDA's interpretation of pre-1991 regulations at issue before the trial court. Strong contends the trial court properly admitted Bozzo's testimony about compliance with the federal regulations because it was consistent with the plain language of the regulations. He asserts that the damages awarded were not grossly excessive and that the verdict is within the range of similar cases.

Strong's cross-appeal

Strong argues the trial court erred in denying his motion to amend the judgment to add prejudgment interest. He contends he is entitled to prejudgment interest because he met all the requirements of section 408.040, RSMo. Strong asserts the trial court erred in excluding the testimony of the pediatrician's retained expert, Dr. Elizabeth Diehl because her testimony rebutted the standard of care evidence offered by the pediatrician who administered his vaccine.

American Cyanamid responds that section 408.040 should not be applied here because the statute's language does not support the award of prejudgment interest on future damages. It argues that awarding prejudgment interest without a hearing to determine whether Strong was at fault for the delay in suing the company would undermine the purposes of the statute.

The pediatrician who administered Strong's vaccine responds that the trial court did not err in excluding Dr. Diehl's testimony. She contends that Dr. Diehl's testimony was not proper rebuttal evidence because it would not have rebutted or disproved any of the pediatrician's testimony offered in the case against the pediatrician.

The United States argues, as a friend of the Court, that the trial court erred in allowing a former federal agency official – Strong's expert witness – to testify about the meaning of federal regulations. It contends that interpreting regulations is a matter of law for the court and that courts are required to give deference to the federal agency's interpretation of its own regulations. The United States further argues there was no evidence of causation. It contends Strong failed to offer testimony that a failure to perform certain testing on specific materials increased the risk of harm to him when it is undisputed that such testing was done on other materials.

SC89119
State of Missouri v. Samuel A. Freeman
Ripley County
Evidentiary challenge in non-capital murder case
Listen to the oral argument:

Freeman was represented during argument by Stephen E. Walsh of Poplar Bluff, and the state was represented by Daniel N. McPherson of the attorney general's office in Jefferson City.

In May 1992, Samuel Freeman was at a bar in Poplar Bluff. A woman to whom Freeman talked at least twice that night later was found dead in her home. She had been struck in the head with an unknown object, sodomized and strangled. No charges were filed until 2005, after the state performed additional DNA testing and charged Freeman with the murder. Part of the state's evidence included his Galliano liqueur bottle, which the state believed was used in the attack on the woman. Two witnesses testified that Freeman was carrying an empty Galliano bottle when he left the bar the night of the murder. The trial court admitted the bottle into evidence over Freeman's objections. The trial court did not admit a note from Freeman's mother, which Freeman's sister allegedly discovered in July 2004, after their mother's death. The note indicated Freeman was home by midnight the night of the murder and, if admitted, would provide him an alibi. Ultimately, following a September 2006 jury trial, Freeman was convicted of first-degree murder and was sentenced to life imprisonment without the possibility of parole. Freeman appeals.

Freeman argues his right to due process was violated because the state failed to produce sufficient evidence. He asserts his Galliano bottle should not have been admitted into evidence because it was not legally or logically relevant to the crime charged. Freeman contends the pathologist testified the victim could have been hit by a fist, not necessarily a Galliano bottle. He argues that the only evidence connecting him to the crime was his DNA found on a tissue and a stocking, that DNA is transferred easily, and that there are four or five other DNA samples on the tissue. Freeman contends his mother's note should have been admitted into evidence as proof of an alibi given that the trial court admitted a deceased evidence technician's notes as testimony for the state.

The state responds there was sufficient evidence to support the verdict, including the DNA found at the murder scene and the woman's neighbor's description of a man approaching the woman's apartment the night of the murder. It argues the trial court did not abuse its discretion in admitting the Galliano liqueur bottle into evidence because it was relevant demonstrative evidence (which is admissible if it is relevant, fairly represents the conditions that it is offered to show, and is not inflammatory, deceptive or misleading) that connected Freeman to the charged murder. The state contends the trial court did not abuse its discretion in excluding the mother's note because it was hearsay (an out-of-court statement offered to prove the truth of the matter asserted) and did not fit within any recognized exception of the hearsay rule.

SC89142
Bryan Dickerson v. State of Missouri
St. Francois County
Postconviction relief in manslaughter case
Listen to the oral argument:

Dickerson was represented during argument by Scott Thompson of the public defender's office in St. Louis, and the state was represented by Richard A. Starnes of the attorney general's office in Jefferson City.

In June 2003, Bryan Dickerson was in a fight in a Farmington bar that resulted in the death of another bar patron. Dickerson was convicted of one count of voluntary manslaughter and was sentenced to life imprisonment as a prior and persistent offender. In September 2006, Dickerson moved for postconviction relief. The circuit court denied the relief without an evidentiary hearing. Dickerson appeals.

Dickerson argues the circuit court should have held an evidentiary hearing on all claims for postconviction relief. He contends his trial counsel was ineffective in failing to object to the medical examiner's testimony that the manner of death was homicide and in failing to object to Dickerson's shackling at trial in front of the jury. Dickerson also asserts his appellate counsel was ineffective in failing to appeal the admission of evidence, at trial, of Dickerson's bar fight earlier the day of the fight at issue here.

The state responds the medical examiner's testimony was admitted properly because the evidence was cumulative of other evidence establishing that Dickerson caused the bar patron's death. It contends Dickerson failed to plead facts warranting relief for ineffective trial counsel. The state asserts Dickerson did not plead that trial counsel was aware of Dickerson's rights to not wear shackles or that he suffered prejudice, and the record refuted Dickerson's claim of prejudice because he only alleged he believed the jury could see the restraints, not that the jury actually saw them. The state argues Dickerson would not have been entitled to relief on direct appeal even had his appellate counsel appealed evidence of a fight Dickerson was in earlier that day.

SC89186
The City of Valley Park v. Matthew Armstrong, et al.
St. Louis County
Annexation of property and boundary changes
Listen to the oral argument:

The commission was represented during argument by David T. Hamilton of St. Charles, and the city was represented by Eric M. Martin of Chesterfield.

In October 2004, Valley Park proposed to annex an area known as Peerless Park. After several public hearings, the St. Louis County Boundary Commission denied the annexation, finding it was not in the best interest of the city or the park. In May 2005, the city sought review of the board's decision as a non-contested case pursuant to section 536.150, RSMo, and as a contested case pursuant to section 536.140, RSMo. The commission moved to dismiss the first count, alleging the city failed to state a claim for non-contested case review. The circuit court determined the case was a non-contested case governed by section 536.150 and, finding the commission's decision was arbitrary, capricious and unreasonable, reversed the commission's decision. The commission appeals.

The commission argues the annexation proceedings qualified as a contested case because the procedure governing boundary change, pursuant to section 72.400, RSMo, was a proceeding before an agency and required a hearing to determine the legal rights of specific parties. It asserts the undisputed evidence demonstrates that it properly denied the annexation because it would result in an elongated protrusion into the county, the annexed area would suffer from increased taxes without significant increased services, and the county would lose more than $122,200 in revenue.

The city responds the trial court properly determined that, pursuant to section 72.400, the annexation was an uncontested case. It asserts there was no adversarial hearing required and no legal rights of specific parties were determined. The city contends the trial court's decision should be affirmed because there is substantial evidence to support the decision and because the trial correctly declared and applied the law.