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Appellate courts pick up the pace in the second half of 2015

Missouri appellate courts made up for a lackluster start to 2015 by handing down four critical opinions that could shape the employment law landscape for years to come and will undoubtedly influence the 2016 legislative agenda.

Most recently, on Dec. 8 the Missouri Supreme Court dismantled a pillar of workers’ compensation law by ruling that maximum medical improvement should no longer automatically end the payment of temporary total disability payments to injured workers. Instead, the court said that MMI should be used more as a guideline than the bright-line test it has been since 1991.

The court’s en banc decision in Greer v. Sysco Food Services means that claimants, who seek additional medical treatment despite evidence that they have reached maximum medical improvement, are entitled to a factual determination as to whether they are still undergoing rehabilitation. The issue is already shaping up to be a hot-button one for lawmakers next year.

The high court issued 78 opinions in 2015. This compares to 73 in 2014, 75 in 2013, 83 in 2012 and 69 in 2011. This issue includes summaries of the most important opinions from the second half of the year. Summaries of all of these opinions can be found in our archives at


Three other significant appellate opinions this fall focused on interpreting the Missouri Human Rights Act.

In September, the high court in a 5-2 opinion found that “me too” evidence was admissible in an employment discrimination case brought under the act.

A former employee of the Kansas City Chiefs, who claimed that he was fired due to his age, will get a new trial because the lower court should not have excluded evidence of the firing of other older employees, who were also allegedly replaced by younger people.

The plaintiff’s claim was not one of pattern or practice but focused only on his firing. In such cases, instead of issuing a blanket exclusion of “me too” circumstantial evidence, the high court held that the trial court must make individualized determinations on the admissibility of the testimony of each witness.

Another issue in the case was the trial court’s ruling that the plaintiff could not depose or call the Chiefs’ CEO to testify about his alleged statement that he wanted to take the organization “in a more youthful direction.” The Supreme Court allowed the deposition, noting that it’s not a fishing expedition when there are specific questions that can only be answered by the high-ranking employee. The case is Cox v. Kansas City Chiefs Football Club Inc.

Two other appellate decisions favored employers on issues arising under the MHRA.

In Diaz v. AutoZoners LLC, the Missouri Court of Appeals held that a parent company was not liable for the acts of its subsidiary in a third-party sexual harassment case. Under a modified “economic realities” test, the Western District said that the parent company did not meet the definition of employer under the act because it was not “directly acting in the interest” of the plaintiff’s employer.

The 41-page decision stressed that separate corporations should be considered as distinct legal entities even when one owns the other. The Western District also threw out the $1.5 million punitive damages award against the parent company.

Also in the Western District, a divided court held in October that the MHRA does not prohibit sexual-orientation discrimination. The majority agreed that the plaintiff, a gay man, failed to state a cause of action against his employer for discriminatory discharge or hostile environment based on sexual preference. Judge James Welsh noted that the legislature simply did not include sexual orientation as a protected class. He wrote that the prohibition against discrimination based on sex refers to discrimination based on gender and not sexual orientation.

In a dissenting opinion, Judge Anthony Gabbert noted that the MHRA is a broad, remedial statute and claims of discrimination based on sexual orientation or preference are encompassed by the term “sex” in the act.

The majority decision also left open a possibility that a properly pleaded gender stereotyping claim might succeed as a cause of action. The case is Pittman v. Cook Paper Recycling Corp.

Newsworthy cases

Another Western District case from August is being touted as progress for gay rights. In McGaw v. McGaw, the court found that a woman lacked standing to sue her partner for custody of the twin children they had raised together because she did not adequately plead a breach-of-contract claim, and Missouri has not recognized an equitable parentage theory. The court, however, found that the plaintiff had a statutory remedy for asserting third-party custody and visitation claims.

In both McGaw and Pittman, the Missouri appellate courts directly confronted issues involving same-sex individuals. The decisions stand in marked contrast to the first half of the year when the 8th U.S. Circuit Court of Appeals deferred argument and decision on four same-sex marriage cases, and the Supreme Court handed down a very narrow decision confined to the issue of jurisdiction in a same-sex divorce case.

In an 8th Circuit case that has garnered national attention, the court gave the green light to mandatory drug testing for all students at Linn State, a small technical college, reversing a district court’s injunction limiting the scope of the testing program. The appellate court found that the testing program was reasonable, and thus constitutional, because of the school’s unique and potentially dangerous curriculum, which may limit the application of the case to other situations.

The American Civil Liberties Union is seeking an en banc hearing of the decision in Kittle-Aikeley v. Claycomb.

More employee wins

Two Court of Appeals’ cases from this fall highlight lessons for employers. First, the Eastern District handed down a reminder on the importance of careful drafting of noncompete agreements in Whelan Security Co. v. Kennebrew.

In Whelan, a security company manager won a new trial on whether he violated a customer solicitation ban and a 50-mile clause after the appellate court found that evidence in the summary judgment record could support a finding that he was solicited by a former customer, rather than the other way around. The court also considered the issue of the employer’s apparent tolerance of the manager’s competing business. The decision resulted in reversal of both the $69,375 judgment and a $165,000 attorney’s fee award for the employer.

In the Western District, a Texas employer remained on the hook for injuries suffered on a Texas job site by a Missouri man in 1995 based on the court’s holding that an extension of the time period for filing claims was not limited to workers with Missouri employers. In Small v. Red Simpson Inc., the appellate court agreed with the claimant that the statute of limitations was extended to three years from two since the employer failed to file a report of injury. The Western District also held that the employment contract was made in Missouri since the claimant accepted the job offer by phone from his home in Missouri.

In October, the Missouri Supreme Court upheld a controversial requirement that plaintiffs in medical malpractice cases must file an affidavit from a health care provider stating that the defendants breached the applicable standard of care. The 5-2 decision found that the plaintiffs’ failure to attach their health care affidavit was fatal to their case when they refiled their identical petition in the same court following a voluntary dismissal of their first suit.

Opponents of the affidavit requirement call it a violation of the “open courts” clause of the Missouri Constitution because it allegedly burdens injured parties seeking access to the courts. The requirement, which came into effect as part of the 2005 tort law changes, was intended to eliminate non-meritorious cases.

The case, Lang v. Goldsworthy, is not dead yet since the plaintiffs have said they intend to refile.

What’s next

Another — and even more critical — issue arising from medical malpractice law is the continuing dispute over noneconomic damage caps. The debate began with Sanders v. Ahmed when the court upheld the wrongful death damage cap as created by statute rather than by common law. In 2012 in Watts v. Cox Medical Centers, medical malpractice damage caps in non-wrongful death cases were found to be a violation of the right to trial by jury.

Now the high court is considering claims in Dodson v. Mercy Hospitals East Community that the current state of Missouri law violates equal protection rights. The expected decision is especially intriguing in light of new noneconomic damage caps with higher limits that went into effect Aug. 28.

Missouri appellate courts have also entered the divisive debate over gun rights and liability in the second half of this year. In October, the 8th Circuit held that a gun manufacturer can be sued by a widow who claimed a defective rifle trigger caused her husband’s death even though she had destroyed the gun before filing suit. The decision, O’Neal v. Remington Arms Company, is significant in the products liability area for plaintiffs who want to bring a defect claim without the product.

Pending in the Supreme Court is an action against a Missouri gun store brought by the family of a mentally ill woman who killed her father after buying a gun. The family had already taken one gun from the woman and had asked the gun store not to sell her another. The issue in Delana v. CED Sales Inc. is whether Missouri law allows a negligent entrustment action against a seller who has reason to believe the buyer may be dangerous.

Finally, in October the high court heard arguments in three cases involving challenges to the constitutional validity of the state’s felon-in-possession law in light of Amendment 5, which subjects laws restricting gun rights to strict scrutiny.

Rulings are expected in these cases in the next few months.