Divided Eastern District rejects new trial

A St. Louis judge should not have granted a new trial in a premises liability lawsuit against a gas station where a man alleged he was stabbed, the Missouri Court of Appeals Eastern District said in a divided opinion.

This case, March v. Midwest St. Louis, marks the first time since 1958 that an appellate court has overturned a trial judge’s decision to grant a new trial on the basis of perjury, said Jonathan Sternberg, a Kansas City lawyer hired to pursue further appeals. And that 1958 case was the one exception in a century of caselaw, he added.

“Missouri appellate courts, as the Supreme Court has said since time immemorial, simply do not have the ability to second-guess a trial judge’s determination of credibility,” Sternberg said. “But that’s exactly what happened here.”

“If the opinion stands … what’s the point of this age-old doctrine of giving great deference to trial court judges?” asked William E. Taylor, the plaintiff’s lawyer.

But St. Louis attorney Russell Watters, who represents the defendant, said credibility was not an issue before the trial court because there was no competing evidence that what the witness said was false.

“There was nothing in this record before the trial court or before the appellate court which even contradicted what this guy said,” Watters, of Brown & James, said Tuesday in a telephone interview.

The main issue at trial in Phillip H. March’s case against The Gas Mart was whether March was stabbed near a trash Dumpster on the station’s property or in the alley behind it. If March was stabbed in the alley, the station wouldn’t be liable for March’s injuries.

The station’s blood-spatter expert, Louis Akin, said unequivocally that March was stabbed in the alley.

March’s expert, Iris Dalley, testified that the eight photographs police took after the stabbing did not give sufficient information to determine where the crime occurred.

The jury believed Akin and issued a defense verdict.

In a motion seeking a new trial, March, represented by Taylor & Taylor’s William Taylor and Joseph M. Taylor, argued Akin lied about his credentials.

St. Louis Circuit Judge Edward Sweeney granted the motion for a new trial in May 2011, finding that Akin misled the jury into believing he worked for the federal government in its prosecution of the alleged shooter in the Fort Hood massacre.

According to Sweeney’s order, the lawyer for Midwest St. Louis, which owns the gas station, asked Akin near the beginning of direct examination: “Now, can you give — just to give the jury an example of who you work for and what you do, are you currently involved in any major investigation where you’ve been retained by the U.S. Government?”

Akin responded: “I recently just finished reconstructing the Fort Hood shooting by Maj. Malik Hasan.” A little later, Akin described his function in the Fort Hood massacre investigation as: “Blood spatter and crime scene reconstruction,” according to Sweeney’s order.

The problem with the testimony, however, is that it sounded as if Akin was helping the prosecution when he was, in fact, hired to work for the defense, the judge said. The answer “gave him an impressive credential and obviously was something that would be expected to be considered significant by the jurors,” he said in his order.

Sweeney admitted in the order that Akin’s testimony “made an immediate and favorable impression on the Court, and it no doubt also made a similar impression on the jury.”

But that didn’t matter to the appellate court majority. Judge Sherri B. Sullivan wrote in the Oct. 2 opinion that Akin didn’t commit perjury because he was, in fact, paid by the federal government. Judge Clifford H. Ahrens joined in the majority opinion.

Even if the testimony was misleading, that’s not the test for perjury, Watters said.

“The test, and this is where I think the plaintiff’s attorney got bogged down, the test is, is the statement false or true? … Perjury is knowingly making a false statement that is not true. He never made such a statement at this trial,” Watters said.

The plaintiff’s lawyer did not even cross-examine Akin on this point, Watters said.

William Taylor said Tuesday he had been unaware of Akin’s involvement in the Fort Hood case, even though he scoured the expert’s website when the defense disclosed the expert. After the trial, he learned Akin had posted on his website a one-paragraph article announcing his appointment on behalf of the defense, but the article had been removed after several days.

“The implication to everyone on the jury was he was there helping the prosecution,” he said.

In addition, Taylor said Akin didn’t do any blood-spatter analysis for the Fort Hood case, so his testimony about that was also false.

The appellate court looked only at Akin’s statement about his credentials.

The majority also concluded that the testimony was not perjury because it wasn’t about a material fact, specifically where March was stabbed.

To be perjury, the testimony has to be “material to an ultimate issue in the case,” Watters said.

Sternberg disagrees with the majority’s assertion that the testimony was immaterial.

“Credibility is part of the materiality of someone’s testimony, always has been,” he said Tuesday in a telephone interview. “And the Eastern District doesn’t cite any law to say it’s not.

“If I give some great testimony on the substance of something, but I’m a liar, the jury has to know that,” he added.

Judge Glenn A. Norton, who dissented, said Sweeney was in a better position than the appellate court to judge Akin’s credibility and the effect his testimony had on the jury. Norton also said he disagrees with the majority’s conclusion that Akin’s testimony about his qualifications didn’t relate to a material fact. Had the jury not been misled about the expert’s qualifications, it might not have given as much weight to his testimony about the stabbing, Norton said.

The majority also rejected March’s claim that newly discovered evidence — specifically, Akin’s article about his involvement in the Fort Hood case — entitles him to a new trial.

According to March’s brief, the article was posted on Jan. 15, 2010. Dalley, the plaintiff’s blood-spatter expert, copied the article on Jan. 18. When she checked the site again a few days later, she discovered it had been removed. Dalley said in an affidavit that she didn’t give the article to Taylor before the trial or discuss it with him.

But the appellate court majority said the article would not have led to a different jury verdict because of the evidence supporting the conclusion that the plaintiff was stabbed in the alley.

The case is March v. Midwest St. Louis, ED96722.