Case Summary for April 26-27, 2000

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Case Summary for April 26-27, 2000

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.

DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

Wednesday, April 26, 2000

SC82200
James M. Thomas v. Hollister, Inc.
Adair County
Worker’s Compensation

James Thomas fell in his employer’s parking lot during or after exiting his truck to go to work. He appeals denial of worker’s compensation benefits.

Thomas argues his injury arose out of and in the course of his employment. A causal connection exists because parking and exiting his vehicle on his employer’s lot were necessary to his employment. Thomas’ case is unlike a previous, contrary case (Abel) where the fall was idiopathic rather than a result of slipping.

Employer Hollister, Inc. responds that the injury was not caused by an accident arising out of and in the course of his employment. He fell for an unexplained reason. Nothing about his employment or the premises caused his fall. It is not enough that he was injured on employer premises.

SC82214
Denise Budding v. SSM Healthcare System, et al.
St. Louis City
Products liability--Teflon jaw implants

Denise Budding received Teflon temporomandibular joint dysfunction (TMJ) implants, which were later removed. She sued St. Mary’s Health Center operators on the theory of strict liability for a defective product. The jury found in the hospital’s favor. She appeals.

Budding argues: (1) & (2) The court should have instructed the jury that the hospital could be liable for the “transfer” of the product, not just its sale as the unmodified approved instruction states. Transfer in the course of business is a sale, and the hospital transferred the product to her. At least the court should have defined “sold” to include transfer, because "sold" has a legal meaning different than that understood by lay people.

(3) Budding’s treating surgeon should have been permitted to testify as an expert that the implants were defective. (4) The hospital’s expert should not have been permitted to testify because he had no factual basis for his opinions. And, he earlier based his opinion on a state-of-the-art defense, which is not a defense in this action. (5) The court should have admitted evidence of a manufacturer safety alert and FDA recall on the implants. (6) The court should have stricken the hospital’s expert’s testimony about the type of implant used because he expressed no opinion on it in his deposition. The testimony injected a false issue into the case, misleading the jury.

The hospital counters: (1) Strict product liability does not apply to hospitals for implants selected and implanted by private surgeons, as here. The hospital provides the implant as a health care service, not as a seller in the ordinary course of business. The legislature has determined delivering supplies is a service subject to malpractice, not product liability. The statute of limitation bars this claim.

(2) The court properly instructed the jury. Budding’s proposed instructions failed to include the disputed issue of whether the hospital sold the product in the course of business and failed to require finding a “benefit” to the hospital. (3) Budding’s proposed instruction defining "sold" is not permissible with an approved instruction. (4) Budding’s surgeon was not an expert on the components of the implant. In any event, his testimony would have been cumulative. (5) The manufacturer alert and FDA recall documents were hearsay, lacked foundation, and were inadmissible as a subsequent remedial measure. (6) The court need not strike the hospital expert’s testimony. Budding elicited it and could have examined the expert about it in his deposition.

The Missouri Hospital Association filed an amicus curiae brief. The hospital association states that the court’s instruction was consistent with policies underlying Chapter 538 and products liability cases, which protect the availability of the health care system by shielding it from certain types of liability.

SC82344
Arthur J. Misischia, D.M.C. v. St. John’s Mercy Medical Center, et al.
St. Louis City
Employment dispute

Arthur Misischia, D.M.D., joined the private practice of John Delfino, D.M.D., in oral and maxillofacial surgery, and Dr. Misischia acted as Dr. Delfino's associate residency director at St. John's Mercy Medical Center. Dr. Misischia was suspended then terminated. He sued on various grounds, generally arguing that the adverse employment action resulted from retaliation by Dr. Delfino for Dr. Misischia disclosing Dr. Delfino's allegedly improper activities. The court dismissed and granted summary judgment for defendants on most claims, including all against St. John's, before trial. The jury returned a verdict for Dr. Delfino and his corporation (collectively Delfino) on tortious interference and slander claims, for Misischia on his claim that Delfino fraudulently induced him into Delfino's practice. Misischia appeals; Delfino cross-appeals, and St. John's cross-appeals.

Dr. Misischia argues: (1) St. John's is not entitled to immunity under the Health Care Quality Improvement Act of 1986, because it is unconstitutional.

(2) The wrongful initiation of the administrative proceeding leading to Misischia's suspension and termination supports his claim for malicious prosecution. (3) An abuse of process claim may be based on abuse of the administrative process. (4) Misischia pled all the elements of a claim for retaliation. (5) - (7) Misischia pled the elements of claims for tortious interference and conspiracy. Prior case law does not prohibit a claim for damages or conspiracy by a physician against a private hospital or corporation. (8) The court improperly limited the discovery and presentation of patient records related to Delfino's patient care. (9) The court improperly excluded evidence to impeach defense witnesses and demonstrate Delfino procured Misischia's suspension. (10) Punitive damages should have been permitted because defendants' conduct was outrageous because of their evil motive or reckless indifference to the rights of others. (11) The court should have granted Misischia's motion for additur because the unchallenged evidence demonstrated Misischia's damages on the fraud claims. The evidence showed Misischia's receipts retained by defendants and that they paid no expenses.

Delfino responds: (1) The Health Care Quality Improvement Act provides St. John's immunity. And if there was probable cause to initiate the summary proceeding against Misischia, then Delfino is also entitled to immunity.

(2) There is no cause of action for malicious prosecution based on a peer review proceeding in a private hospital. A judicial proceeding is a prerequisite to malicious prosecution. In addition, St. John's president, not Delfino, had the sole authority to initiate the suspension. Finally, the suspension did not end in Misischia's favor. (3) There is no cause of action for conspiracy to abuse process based on a peer review proceeding in a private hospital. (4) As a contract employee, Misischia cannot maintain a retaliation action against Delfino. Misischia failed to allege he was discharged for refusing to violate a statute, reporting a violation or asserting a right in connection with his contract. (5) The jury's verdict in favor of Dr. Delfino exonerated Delfino, P.C., on the tortious interference claim. In any event, Delfino had an unqualified legal right to terminate contracts with Misischia. (6) Misischia's claim for conspiracy is not viable. (7) The court rightly limited discovery and admission of confidential patient records. Misischia failed to show relevance, such as a link between any alleged Delfino wrongdoing and the incident report that led to Misischia's suspension. The court properly limited mudslinging and considered the interests of the non-party patients in privacy and the physician-patient privilege. (8) The court rightly excluded improper impeachment, cumulative, irrelevant evidence. (9) The evidence failed to establish outrageous conduct to support punitive damages. (10) Misischia failed to demonstrate the jury verdict was inadequate. Misischia's damages calculations were flawed by omitting business expenses he would have otherwise incurred. Misischia knew or should have known St. John's rather than Delfino was paying for his office space and staff.

In cross-appeal of the fraud verdict in favor of Misischia, Delfino argues the fraud claim is barred by the statute of limitations. Misischia knew or should have discovered more than 5 years before filing his action that St. John's provided his office space and personnel. Or, there was no evidence Misischia relied on claimed representations regarding who was paying for office and staff, had a right to rely on the representations, or was harmed by his contract with Delfino.

St. John's responds to Misischia's appeal: (1) The court correctly concluded St. John's is entitled to HCQIA immunity. (2) The court has no subject matter jurisdiction to review medical staff decisions of private hospitals such as St. John's. (3) & (4) There is no cause of action for malicious prosecution based on a private proceeding rather than lawsuit or for abuse of process based on a private hospital's peer review proceedings. (5) Contract employee Misischia has no cause of action for retaliatory discharge. (6) None of the allegedly defamatory statements is actionable. (7) There is no cause of action for tortious interference against a party to the contract absent conduct directed at a third party, and against a defendant who has an absolute legal right to do the allegedly interfering act. (8) There is no cause of action for conspiracy absent an underlying tort. Also, Misischia did not allege more than one person "conspired" as required to have a conspiracy.

St. John's argues the court should have awarded it attorneys fees because Misischia's claims or litigation conduct or both were unreasonable. The claims were legally untenable and clearly precluded by precedent, and his litigation conduct was vexatious and harassing.

Thursday, April 27, 2000

SC82390
Lauren Suffian, etc. v. David R. Usher
St. Louis City
Child support/visitation and guardian ad litem removal

In this child custody modification case, a guardian ad litem was appointed for the children. The father sought to disqualify the guardian under section 452.423, which provides that a parent may remove a guardian within ten days of his or her appointment.

The father contends: (1) The trial court erred in refusing to remove the guardian because the statute grants one automatic disqualification. The court also failed to supervise the guardian or remove the guardian for cause based on misconduct. (2) The court should have modified custody because the mother neglected educational needs by failing to assure school attendance, interfered with the father's custody rights, and kept information from him. (3) He should not have to pay the attorney and guardian ad litem fees. The mother should pay his attorneys’ fees.

The mother contends: (1) The statute permitting the guardian’s disqualification is unconstitutional in this case, considering the children's age, absence of evidence that the guardian was not acting in their best interest, and the proximity of the trial. In any event, the failure to disqualify the guardian was harmless. (2) The children's best interests are served by maintaining primary custody with the mother. (3) The father was properly required to pay attorney and guardian fees.

Nathan Cohen filed an amicus curiae brief. He argues section 452.423.1 is unconstitutional because: (1) It violates the separation of powers in that the guardian functions as an arm of the court, and legislative interference with that role is prohibited. (2) It violates due process rights of children. The statute entitles children to a guardian in cases alleging abuse and neglect. The child has a right to counsel.

The Attorney General filed an amicus curiae brief. The AG argues section 452.423.1 is constitutional. (1) It does not violate separation of powers. No constitutional power reserved to the judiciary is infringed. The legislature granted and, thus, can limit the guardian's statutory power. (2) The statute does not violate due process or deprive the children of a guardian or counsel but, rather, provides for one disqualification or change.

SC82009
Andre Morrow v. State of Missouri
St. Louis County
Post-conviction motion in death penalty case

Andre Morrow shot a man while stealing his vehicle at the Brentwood YMCA on April 13, 1994. This Court affirmed Morrow’s first-degree murder and other convictions and death sentence. Morrow now appeals the denial of his motion for post-conviction relief without an evidentiary hearing.

Morrow argues: (1) His trial counsel was ineffective for failing to (a) present mitigating evidence to warrant a sentence less than death, such as that Morrow’s violent and drug-infused family life, (b) investigate evidence that the state sought death for racially-motivated reasons, and (c) prepare an expert defense witness by providing him Morrow’s confessions, prior convictions, and other information.

(2) Morrow’s appellate counsel failed to raise the issue of non-disclosure of the state witnesses’ arrest records. (3) Morrow’s trial counsel failed to strike a vernireperson who worked at the YMCA, make a gender Batson challenge despite the state peremptorily striking 9 women, and ask the venire whether it could consider mitigating evidence despite another murder charge. (4) Missouri’s lethal injection constitutes cruel and unusual punishment. (5) The time limits in Rule 29.15 are unconstitutional. They are too short for counsel to investigate all claims. (6) Jurors do not understand the penalty phase instructions. (7) The Rule 29.07 examination of Morrow violated his rights to effective conflict-free counsel and to remain silent. His interests in revealing counsels’ ineffectiveness and counsels’ interest in defending their conduct conflict. The motion court should not have relied on this inquiry to deny his claims. (8) The Court's proportionality review is not meaningful.

The state counters: (1) Counsel was not ineffective for failing to (a) present evidence, because no facts entitle him to relief, and/or the record refutes his claims, (b) investigate the state’s decision to seek death, because the record refutes the assertion, and the claim is not cognizable in Rule 29.15 proceedings, (c) prepare an expert, as counsel acted reasonably, and Morrow was not prejudiced.

(2), (3) & (6) Morrow failed to show counsel acted unreasonably in omitting the claim that state witnesses’ arrest records were not disclosed, conducting voir dire, or instructing the jury in the penalty phase. (4) Morrow’s challenge to the state’s manner of execution is not cognizable in the proceeding as it has nothing to do with the validity of his conviction and sentence, instead relating to procedure in carrying out the sentence. (5) The Rule 29.15 time limits have repeatedly been found constitutional, reasonable, and effective. (7) The Rule 29.07 exam did not violate Morrow’s rights. (8) This Court and the U.S. Court of Appeals’ Eighth Circuit have repeatedly upheld this Court’s proportionality review.

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