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Appellate courts issue significant decisions on civil, criminal practice

In the first six months of 2016, the Missouri Supreme Court handed down 50 opinions including significant decisions on noneconomic damage caps and co-employee liability. In the second half of the year, the high court’s pace slowed considerably, and the Court of Appeals picked up the slack with decisions interpreting the co-employee liability cases and on a variety of civil and criminal procedural issues.

The high court’s 19 opinions in the second half of the year included several that will significantly affect practices areas.

The impact of the high court’s opinion in State v. Bazell, SC95318, which reduced a defendant’s convictions for stealing guns to misdemeanors, was to downgrade an unknown number of the state’s stealing offenses from felonies to misdemeanors due to a poorly worded legislative amendment in 2002. Although the Missouri Attorney General’s office urged the high court to reconsider the decision, the court merely fixed a typo, leaving the ruling in place. A rewritten statute took effect Jan. 1.

In October, the Supreme Court unanimously upheld a statute barring post-judgment interest on medical malpractice awards. The court disagreed with federal and state constitutional challenges to the bar, which was passed in 2005 during an overhaul of state tort laws. The case is Dieser v. St. Anthony’s Medical Center, SC95022.

In a case of first impression, also handed down in October, the high court held that venue was proper in any county in Missouri if a specific venue provision is not applicable. The case involved a legal malpractice action filed against a Kansas lawyer in Jackson County Circuit Court. The court explained that personal and subject matter jurisdiction were established, and no express provision restricted venue in State of Missouri ex rel Heartland Title Services, Inc. v. Harrell, SC95377.

The court also weighed in on the attorney work product doctrine this year, holding that merely designating someone as an expert does not waive the doctrine’s protections. In Malashock v. Jamison, SC95606, a personal injury case, the plaintiff designated experts but later “de-endorsed” one of the experts. The high court reversed the trial court’s judgment, which granted the defendant’s motion to depose the withdrawn expert. The decision means that parties can withdraw experts without waiving the attorney work product privilege as long as the expert designation is rescinded before disclosure of the expert’s opinions and conclusions.

Also in December, the Missouri Supreme Court struck down as unconstitutional a state law that prevented undocumented immigrants from being granted bail. The case is Lopez-Matias v. State, SC95946.

Finally, the Supreme Court overturned an $8 million punitive damages award in a long-running dispute over soil contamination because the court’s majority found that the suit named the state’s Petroleum Storage Tank Insurance Fund, rather than the board that runs the fund, as a defendant. The case is City of Harrisonville v. McCall Service Stations, SC94115.

In July, Missouri Lawyers Weekly reported on the high court’s weighty workload with 50 opinions handed down between January and July. With the 19 from the second half of the year, 2016’s total was 69. This compares to 78 in 2015, 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 2016.

Court of Appeals

The Missouri Court of Appeals contributed a number of newsworthy decisions in the second half of the year.

In November, the Eastern District made headlines nationwide by finding frozen embryos to be marital property, rather than humans with constitutional rights. The court’s 2-1 ruling required a divorced couple to mutually consent to using the embryos, which were frozen and stored during their marriage.

The decision in McQueen v. Gadberry, ED103138, emphasized the father’s rights not to procreate and to privacy. The appellate court said that while Missouri law holds that life begins at conception, the law “cannot be viewed in a vacuum.”

In December, the Western District entered the debate on transgender issues by blocking a trial court judge’s order that a transgender teen must submit to a mental examination before being allowing to seek a name change.

The teen, who identifies as male, testified that he wanted to legally change his name from Natalie to Nathan since he had been going by Nathan for a couple years. His mother filed a consent to change of name, but Judge R. Michael Wagner of Cass County sought to appoint a guardian ad litem and ordered a mental exam over the teen’s objections. The Western District held that Wagner exceeded his authority in State ex rel. N.N. H. v. Wagner, WD79773.

Criminal procedure

The Court of Appeals was especially busy in the criminal law arena in the most recent six-month period.

In August, the Southern District transferred a case to the Supreme Court on the issue of what level of evidence should be required in Missouri to allow a criminal defendant to argue self defense. The appellate court affirmed a first-degree murder conviction in State v. Bruner, SD33982, finding that the defendant’s self-defense argument was weak. In a dissenting opinion, Judge Gary W. Lynch, joined by Judge Don E. Burrell Jr., said that jurors should have been allowed to consider the self-defense evidence.

In September, a split opinion from the Southern District addressed whether an invocation of the Fifth Amendment in a civil case could be admitted into evidence in a subsequent criminal trial. The appellate court awarded a new trial, finding that the prosecutor’s reference to the defendant’s silence was problematic and that his counsel was ineffective for failing to ask for an instruction that the jury ignore the Fifth Amendment invocation in the civil proceeding. The case is Christian v. State, SD33998.

In October, the Western District found that a criminal defendant’s claim of innocence could not be reviewed in a 1982 murder case. The court said Missouri law does not recognize a “freestanding claim of actual innocence” unless the death penalty has been ordered. The case is In Re Lincoln v. Cassady, WD79854.

In December, the Eastern District handed down a case of first impression, State v. Bolden, ED102965, which held that a trial court should not have allowed an unrepresented defendant to waive his right to counsel when the court doubted the defendant’s competency enough to order a psychiatric examination.

Co-Worker liability

In the second half of 2016, the Court of Appeals began to hand down opinions interpreting the high court’s June decisions on co-worker liability for workplace injuries. In Peters v. Wady Industries, Inc. and Parr v. Breeden, the Supreme Court held that to sue a co-worker, a plaintiff injured at work must show that the co-worker breached a duty apart from those already owed by their employer. The opinions applied only to injuries occurring before a 2012 change to the law that limited suits against co-workers.

Two September decisions from the Eastern and Southern Districts were significant since the courts came to opposite results on virtually indistinguishable facts involving employees injured in forklift accidents. The Eastern District allowed the plaintiff to proceed with his lawsuit, but the Southern District affirmed summary judgment for the defendant, finding that the plaintiff’s allegations of inadequate training described a violation of the employer’s duty to provide a safe workplace. The cases are Fogerty v. Armstrong, ED100947, and Evans v. Wilson, SD33209.

The Eastern District addressed the issue again in December, holding that a janitor paralyzed in a workplace accident could bring a negligence action against his former supervisor and two co-workers for withholding safety equipment. The appellate court said allegations that the defendants asked the plaintiff to mop bleachers without safety rails, although he had requested protection from falls, were sufficient to assert violations of a separate duty of care owed by the defendants. The case is Nolen v. Bess, ED101591.


Several significant opinions from the second half of the year dealt with issues involving jurors.

In August, the Supreme Court unanimously vacated an assault conviction because a prosecutor failed to offer a race-neutral reason for striking a potential juror. A potential juror responded to a question by saying they believed it was more likely that the defendant was guilty, and an outcry came from a woman who was not identified. The prosecutor explained that her use of a peremptory strike to remove a woman from the row from which the comment came was so that “I don’t start out the case where there is a person of Mexican descent and African-American descent upset about racial issues.” The case is State v. Meeks, SC95221.

In September, the high court weighed in on what it takes to show juror misconduct at a time when jurors may be increasingly tempted to conduct prohibited independent research by Googling an issue. In Smotherman v. Cass Regional Medical Center, SC95464, the court ruled that a plaintiff in a slip-and-fall case would not get a new trial even though a juror admitted to conducting independent research by looking up the weather on the date of the accident. Despite the juror’s misconduct, the court found that the plaintiff did not show prejudice.

In a medical malpractice case that will also impact jury selection in criminal cases, the Eastern District held that a trial court’s failure to strike a juror was reversible error where the juror indicated bias but was not asked follow-up questions to show that she could be impartial. The case is Thomas v. Mercy Hospitals East Communities, ED103338.

Most recently, the Southern District ordered a new trial in a wrongful death action, overturning a $19 million verdict, because a potential juror failed to disclose that a son had died in an auto accident when asked a clear question about involvement in motor vehicle accidents. The court said the intentional nondisclosure raised a presumption of prejudice in Spence v. BNSF Railway Company, SD34100. In a dissenting opinion, Judge Nancy Rahmeyer said the defendant would have discovered the information with a search, which she argued was required by a Missouri Supreme Court rule requiring reasonable investigation.

Eighth Circuit

In October, a panel of the 8th U.S. Circuit Court of Appeals overturned its decision to deny requests by the Department of Corrections to block court orders to provide information on a drug used for executions and its suppliers. The court vacated its earlier decision after receiving new information, including a confirmation by the anonymous supplier that it would no longer provide the drug if it were identified. The case is In Re: Missouri Department of Corrections.

In 2015, Missouri Lawyers Weekly reported on an 8th Circuit case that garnered national attention on the issue of mandatory drug testing. In a 2015 panel decision, the court allowed mandatory drug testing for all students at a small technical college, formerly named Linn State Technical College, reversing a district court’s injunction limiting the scope of the testing program.

In 2016, the 8th Circuit reheard the case en banc, and in December affirmed the district court’s permanent injunction prohibiting the college from testing students who were not enrolled in safety-sensitive programs. The case is Kittle-Aikeley v. Strong, 13-3264.