Trial atty. lists 10 most important cases of 2003

Johnson vs. State, 102 S.W.3d 535 (Mo. banc 2003)

The Missouri Supreme Court abolished the death penalty for defendants who are mentally retarded. Prior to trial, three mental health experts evaluated Johnson and found that his IQ was between mild mental retardation and low average intelligence. Evidence of his mental retardation was presented at trial, and the jury was instructed to consider it as a mitigating circumstance. After Johnson's trials, the U.S. Supreme Court held in Atkins vs. Virginia, 536 U.S. 304 (2002), that death is cruel and unusual punishment for someone with diminished mental culpability.

Under Atkins, if a defendant can prove mental retardation by a preponderance of the evidence, then that defendant shall not be subject to the death penalty. However, Atkins did not define the perimeters of mental retardation but left to the States the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences. Johnson sought post-conviction relief pursuant to Rule 29.15. Missouri's statute defining mental retardation was to apply only to crimes committed after August 28, 2001. Johnson's crimes were committed in 1994. Nonetheless, the Missouri Supreme Court, in light of Atkins, set out a bright-line test that any defendant that can prove mental retardation by a preponderance of the evidence, as set out in Section 565.030.6 RSMo, shall not be subject to the death penalty. Therefore, the Supreme Court held that the trial court erred in not setting aside Johnson's death sentences as excessive under Atkins vs. Virginia, 536 U.S. 304 (2002) and Section 565.030.4.

Johnson's case was remanded to set aside the death sentences and to order a new penalty phase hearing. The court went on to say that this opinion does not hold that all sentenced to death are now entitled to a hearing to determine whether they are mentally retarded. Johnson was entitled to a hearing because he was able to articulate specific facts indicating his mental deficiency, given that he had a long history of significantly subaverage intellectual functioning and poor adaptive skills.

State Board of Registration for the Healing Arts vs. McDonagh, SC85275 (12/23/03) The case involves a disciplinary complaint initiated against Dr. McDonagh alleging that he violated Section 334.100 RSMo for advocating and using chelation therapy.

McDonagh presented expert testimony regarding chelation therapy to which the Board of Registration objected. The Administrative Hearing Commission received the evidence and found no cause to discipline McDonagh. The circuit court affirmed, and the board appealed, arguing that the Frye test applied to the admission of expert testimony. McDonagh argued that the current Missouri standard was either Daubert or Section 490.065 RSMo.

The Supreme Court observed that although Section 490.065 on its face states that it applies in civil actions and sets out the relevant standard for admission of expert testimony in such actions, various opinions since the enactment have expressed confusion as to whether it is the statute, Frye or Daubert that supplies the relevant standard for admission of expert testimony. The court found that such confusion should have been resolved by Lasky vs. Union Electric Co., 936 S.W.2d 797 (Mo. banc 1997), holding that Section 490.065 RSMo provides the applicable standard in evaluating the admission of expert testimony in civil cases.

Judge Wolff concurred making the following suggestion: Forget Frye. Forget Daubert. Read the statute. Section 490.065 is written, conveniently, in English. It has 204 words. Those straightforward statutory words are all you really need to know about the admissibility of expert testimony in civil proceedings. Section 490.065 allows expert opinion testimony where 'scientific, technical, or other specialized knowledge will assist the trier of fact.'

State ex rel. Diehl vs. O'Malley, 95 S.W.3d 82 (Mo. banc 2003) In this case, the Missouri Supreme Court held that a woman who sued her employer in state court only for damages under the Missouri Human Rights Act had a constitutional right to a jury trial, rejecting more than a decade of lower court precedent. Kathleen Diehl worked for NASD Regulation Inc. After her termination, she sued under the MHRA claiming age and sex discrimination and retaliation. She sought damages only and not equitable relief. Diehl filed a motion for a jury trial, which the trial judge overruled. The Missouri Supreme Court issued a writ of prohibition holding Diehl's civil action for damages for a personal wrong is the kind of case triable by juries from the inception of the state's original constitution.

This case makes it easier for victims of discrimination by allowing 12 jurors, rather than a federal judge, to decide a job discrimination claim. Most observers believe that 12 average citizens will be more sensitive to these claims than a federal judge.

Helsel vs. Noellsch, 107 S.W.3d 231 (Mo. banc 2003) The Missouri Supreme Court held that a woman who was divorced after her husband had an affair could not sue his lover for alienation of affection. Katherine and David Helsel divorced, and two months later, Katherine sued Sivi Noellsch, her husband's chiropractor, for alienation of affection claiming that Noellsch intentionally interfered with the marriage causing it to fail.

A jury awarded Katherine $75,000, and Noellsch appealed. The Supreme Court reversed, abolishing the tort. Judge Richard Teitelman ruled, The tort is grounded in antiquated concepts of property interests in a spouse, is presently based upon the faulty presumption that it preserves marriages and is inconsistent with this Court's decision in 1994 to abolish the related common law tort of criminal conversation. The court also found that suits for alienation of affection are almost exclusively brought either after the marriage is dissolved or irretrievably broken. Revenge, not reconciliation, is often the primary motive. Many family practice attorneys agree that these types of lawsuits were often used to get a better settlement in the divorce case and that they were usually filed for nuisance or revenge.

Roth vs. LaSociete Anonyme Turbomeca France, 2003 WL 22231597 (Mo. App. W.D. 2003) The Western District Court of Appeals held that a plaintiff who settled a personal injury case only because the defendant lied about the extent of its insurance coverage could enforce the settlement and sue for fraud. Plaintiff was permanently crippled in a helicopter crash. The helicopter's engine failed because of a defective engine part manufactured by defendant. There were other plaintiffs making claims. Defendant answered interrogatories indicating that the maximum insurance coverage was approximately $50 million.

Fearing that this would not be sufficient to satisfy all of the plaintiffs' judgments, they decided to settle. Less than one month after the plaintiffs settled their claim, they discovered that the actual amount of coverage was $1 billion. They decided not to ask the circuit court to set aside the settlement because the settlement monies had already been distributed and spent. They sued the defendant and its lawyers for fraud, negligent misrepresentation, fraudulent concealment and conspiracy. Following dismissal of their case, plaintiffs appealed. Judge Paul Spinden wrote that plaintiffs could enforce their settlement with the defendant and still maintain an independent tort claim for fraud. The defendant contended that the settlement was void and that the plaintiffs' remedy was to try the personal injury case. Judge Spinden rejected the argument and held, Because the Roths had secured some recovery, they should not be forced to forfeit it at the risk of recovering nothing. This case is significant because it allows the settling plaintiff to retain the settlement and sue for fraud rather than having to void the settlement and risk recovering nothing in a trial.

Wilson vs. Simmons, 103 S.W.3d 211 (Mo. App. W.D. 2003) The Western District Court of Appeals held that a dog-bite victim was not required to prove that the dog had abnormally vicious propensities to recover under a premises liability theory; rather, the victim had to prove that the dog had normally dangerous propensities that presented a foreseeable danger to the victim.

Katie Wilson was bit and seriously injured by the Simmons' Dalmatian at their home while playing with their daughter. The Wilsons sued the Simmons on three alternative theories - strict liability, premises liability and negligence. The Simmons moved for summary judgment arguing that the Wilsons had not proved that the dog had vicious propensities that the Simmons knew or should have known about prior to the incident. The trial court granted summary judgment finding that to recover damages from a dog owner, the victim must prove that the owner knew or at least had reason to know of the dog's tendency to bite people or its dangerous propensities. The Western District reversed, ruling that there was a lower standard of proof for a premises liability claim. The court held that a possessor of land can be held liable to an invitee or licensee entering on the land for a foreseeable danger created by the normally dangerous propensities of a dog.

This case is significant because it creates a lower standard of proof in dog-bite cases for premises liability cases and makes it easier for a victim to recover against a landowner.

Hampton vs. Big Boy Steel Erection, 2003 WL 22889753 (Mo. banc 2003) The Missouri Supreme Court held that the standard of review when reviewing a Labor and Industrial Relations Commission award was for the reviewing court to examine the whole record to determine if it contains sufficient competent and substantial evidence to support the award as set out in the Missouri Constitution, Article V, Section 18.

The administrative law judge found that Hampton had sustained a 25 percent permanent partial disability of the body as a whole, caused by an injury he sustained to his back while working as an ironworker. The Labor and Industrial Relations Commission found permanent and total disability and modified the award. The employer appealed, contending that the commission erred in awarding permanent total disability benefits because the award was not supported by competent and substantial evidence and the award was against the overwhelming weight of the evidence.

On review, the Missouri Supreme Court found that there is nothing in the Missouri Constitution or Section 287.495.1 that requires a reviewing court to view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award. To the extent holding otherwise, this case overruled many cases finding that there was nothing in the state constitution or statutes that required review of workers' compensation awards in that manner. The court eliminated the two-step test set out in Davis vs. Research Medical Center, 903 S.W.2d 557 (Mo. App. 1995), and merged the steps into a single determination whether, considering the whole record, there is sufficient competent and substantial evidence to support the award. This standard would not be met in the rare case when the award is contrary to the overwhelming weight of the evidence.

John Doe a/k/a Tony Twist vs. TCI Cablevision, 110 S.W.3d 363 (Mo. banc 2003) The Missouri Supreme Court held that a hockey player could sue for violation of his right of publicity where a comic book author named a character after the professional hockey player. Todd McFarlane, president of Todd McFarlane Productions Inc., created the Spawn comic book in 1992. He added a fictional character Anthony 'Tony Twist' Twistelli in 1993 who was a mafia don whose list of evil deeds included abduction of children and sex with prostitutes. McFarlane admitted that the Twist character was named after Tony Twist the hockey player. Twist sued McFarlane for misappropriation of name and defamation. The defamation claim was later dismissed.

At trial, evidence was presented that a sports nutrition company withdrew an offer of $100,000 to Twist to serve as the company's product endorser due to the Twist character in the Spawn comic book. The jury found in favor of Twist and awarded him $24.5 million dollars. The trial court granted the defendant's JNOV finding that Twist had failed to make a submissible case on the misappropriation of name count. The Court of Appeals affirmed. The Supreme Court reversed and remanded rejecting McFarlane's argument that Twist had to show an intent to injure to recover. Judge Stephen Limbaugh Jr. wrote the commercial advantage element of the right of publicity focuses on the defendant's intent or purpose to obtain a commercial benefit from the use of the plaintiff's identity.

This case is significant because it clarifies Missouri law by delineating the different standard between misappropriation of name and right of publicity cases.

State ex rel. Amrine vs. Roper, 102 S.W.3d 541 (Mo. banc 2003) The Missouri Supreme Court held, as a matter of first impression, that a writ of habeas corpus is an appropriate means for a defendant sentenced to death to assert a freestanding claim of actual innocence, independent of any constitutional violation at trial.

Amrine was charged with the murder of a fellow inmate Barber in 1985. Three other inmates testified that Amrine was the murderer. Amrine presented evidence that he was not the killer. He was found guilty of Barber's murder and sentenced to death. During the course of his appeals, all three witnesses who testified that Amrine was the murderer recanted their testimony. Amrine filed for habeas relief on the proposition that his continued incarceration and eventual execution for a murder he did not commit constitutes a manifest injustice that entitled him to habeas relief even though his trial and sentencing were otherwise constitutionally adequate.

The Supreme Court found that Amrine has met his burden of providing clear and convincing evidence of actual innocence that undermines confidence in the correctness of the judgment. Under this standard, the evidence supporting the conviction must be assessed in light of all the evidence now available. The sole evidence supporting the conviction was the testimony of three fellow inmates who have completely recanted their trial testimony. Therefore, the court found that this case presents the rare circumstance in which there remains no credible evidence from the first trial to support the conviction; thus, the conviction and sentence cannot stand and must be set aside.

Richter vs. Kirkwood, 111 S.W.3d 504 (Mo. App. S.D. 2003) The Missouri Court of Appeals, Southern District, held that the trial court did not err in allowing plaintiff's attorney to identify the attorney for defendant as an employee of the insurance company during voir dire where the defendant was represented by an insurance company in-house counsel in an auto accident case and the insurance company refused to settle for the policy limits.

Defendant driver rear-ended plaintiff motorist causing her injury. Plaintiff and her husband sought damages. A staff attorney employed by defendant's insurance carrier Allstate represented defendant at trial. The trial court denied defendant's motion in limine, which sought to prohibit plaintiffs from making any reference to the fact of defense counsel's affiliation with Allstate. During voir dire, plaintiff's attorney asked the panel about the lawyer representing defendant at trial, stating, As you know, also representing the defendant is Kevin Stephenson.

Kevin Stephenson is an employee of Allstate. Plaintiff's counsel also named other attorneys who were employed by Allstate and asked, Any of you familiar with those attorneys? and Do any of you provide goods or services of any kind to Allstate Insurance Company? The jury found in favor of plaintiff and her husband, and the Southern District Court of Appeals affirmed. While defendant claimed that there was duplicitous inquiry into the insurance issue, there was no such inquiry, and thus there was no issue to review under Mo. Sup. Ct. R. 84.04(d)(1)(A). The trial court did not err in denying defendant's motion for a mistrial. It was within the trial court's discretion to allow plaintiff's attorney to show that defendant's attorney was an employee of Allstate to ascertain whether that circumstance would result in bias or prejudice on the part of prospective jurors. The court held, [I]f such an inquiry is made in good faith and in a manner that does not transmogrify the issue in the case from whether defendant was liable to whether the defendant had insurance, a trial court does not abuse its discretion in permitting the inquiry.

This case is important because where the defendant is represented by an insurance company staff attorney, inquiry on voir dire regarding defendant's insurance company, beyond the traditional insurance question, is permitted. Since there are many insurance staff attorneys defending cases at trial, plaintiffs' attorneys will want to inquire on voir dire about the defense attorney's affiliation with the insurance company employer. Conversely, staff attorneys will want to file a motion in limine seeking to limit the inquiry.

Leonard P. Cervantes of Cervantes & Associates has practiced as a trial attorney for 30 years. He is a past president of The Lawyers Association of St. Louis, and he has served on the board of governors of the Missouri Association of Trial Attorneys.

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