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Home / Editor's Picks / Workers’ compensation, wrongful-death issues dominate appellate courts in first six months of 2018

Workers’ compensation, wrongful-death issues dominate appellate courts in first six months of 2018

In a year in which anticipated legislative changes to state tort law failed to materialize, Missouri appellate courts cranked out a series of significant decisions in the first six months of 2018 that will affect attorneys in various practice areas, most notably workers’ compensation and wrongful-death litigation.

Workers’ compensation law returned to the spotlight this year after the Missouri Supreme Court handed down a decision that dramatically limits the popular practice of lump-sum settlement deals. The court said the Labor and Industrial Commission may refuse to approve an agreement to commute future benefits if the proposed amount does not equal the commutable value of the weekly payments being given up by the worker. The case is Dickemann v. Costco Wholesale Corporation, SC96513. The decision resolved a split between the Eastern and Western Districts of the Missouri Court of Appeals.

Also on May 22, the high court approved enhanced benefits for asbestos-exposure claims in a case involving an award to survivors of a man who died from mesothelioma in 2015. The insurer argued that it didn’t cover the employer when the man last was exposed to asbestos, but the Supreme Court found that the policy covered claims filed after the new law took effect. The case is Accident Fund Insurance Co. v. Casey, SC96899.

In February, the Supreme Court emphasized procedure in a premises-liability case with implications for employers responsible for corporate-security measures and significance for civil practitioners regarding preservation for appellate review.

In Wieland v. Owner-Operated Services Inc., SC96210, the high court upheld a $3.25 million verdict against an employer in a suit brought by an employee who was shot by her abusive ex-boyfriend in the company’s parking lot. Amie Wieland testified that she had reached out to the employer’s human-resources department about concerns for her safety. Her attorneys argued that the employer failed to follow its domestic-violence policy to protect her. The 5-2 ruling for the employee marks an exception to the general rule that employers do not have a duty to protect against the criminal acts of third parties unless they know or have reason to know that a specific person may be about to harm someone on its property. The majority narrowly focused on the company’s failure to preserve its challenge to the verdict director, noting that it did not raise the specific challenge during a conference with the trial court or in its motion for new trial.

The high court also continued to address issues of co-worker liability, finding that injured workers’ claims against their co-workers could not proceed in four cases and emphasizing that employers are responsible for workplace accidents that are reasonably foreseeable. The cases are Conner v. Ogletree, SC95995 and Evans v. Wilson, SC95997; Fogerty v. Armstrong, SC96030; and McComb v. Norfus, SC96042.

The Missouri Supreme Court handed down 37 opinions in the first half of this year. Last year the high court handed down 82 opinions; it handed down 69 in 2016, 78 in 2015, 73 in 2014, 75 in 2013, 83 in 2012 and 69 in 2011.

Wrongful-death rulings

Issues arising from wrongful-death claims occupied Missouri appellate courts for the first half of the year. The Missouri Supreme Court began the year with a decision ending the ongoing, wrongful-death-turned-survivorship case, In the Estate of: Joseph B. Mickels, SC96649.

The family of Joseph Mickels filed a wrongful-death case against Dr. Raman Danrad, claiming the radiologist’s failure to diagnose a deadly brain tumor shortened Mickels’ life. The Supreme Court dismissed the claim because there was no allegation that the doctor’s negligence caused the death. The court said, however, that the family could sue for negligence through a representative of the estate. This suit, too, was dismissed as time barred. After the Eastern District suggested an equitable solution might be the answer, the case was transferred to the state’s high court. In the end, the Supreme Court refused to disregard the one-year requirement for appointment of a personal representative and disagreed that an equitable exception could be made.

In May the high court handed down a decision in a negligence action against a railroad clarifying what parties must do to preserve the right to seek post-trial relief on the basis of juror nondisclosure. The court found that the defendant was not entitled to a new trial despite a juror’s nondisclosure of her own wrongful-death lawsuit because the defense team failed to conduct a reasonable investigation and failed to notify the court of any problems before the jury was sworn in. The defendants had argued that the juror’s name was misspelled, which hindered the search for her litigation history. The court disagreed, stating that attorneys became aware of the correct spelling four hours earlier, which was “ample time” for investigation. The ruling in Spence v. BNSF Railway Co., SC96195, affirmed a $19 million jury award to the widow of a driver killed in an accident with a train.

In June the Western District revived a long-running suit brought by the families of five patients who allegedly were killed by a hospital employee with lethal injections, finding that their fraud claims should not have been dismissed as duplicative of those brought in an earlier action. The case is Boland v. St. Luke’s Health System, Inc., WD80928.

Also in June, the Western District upheld an award of $125,000 in economic damages for the death of an unborn child in Mansil v. Midwest Emergency Medical Services, WD79994. A Kansas City woman sued a doctor and an emergency medical practice after she almost died from a hematoma while pregnant. The defendants challenged an expert economist’s testimony, arguing that it lacked foundation. The appellate court, however, said that questions about the source of expert-witness testimony affect the weight of the evidence, not its admissibility, and the jury should evaluate any concerns about the accuracy of the expert’s methodology.

A wrongful-death claim also was at issue in a case in which the Eastern District granted a plaintiff a new trial due to the destruction of an incriminating security video by an employee of the hospital defendant. Judge Roy Richter, who authored the decision, noted that the Missouri Supreme Court may want to take another look at the court rules, which prohibit instructions on spoliation. The case is Hill v. SSM Health Care St. Louis, SC105779.


Several appellate court decisions issued this spring addressed actions against attorneys. The Supreme Court ruled that an attorney could be sued for debt-collection practices in Jackson v. Barton, SC95771. The court said the case could proceed under the Fair Debt Collection Practices Act and split 4-2 in allowing a claim under the Missouri Merchandising Practices Act.

In Adewunmi v. Growe, ED105752, the court said an attorney could not be sued by criminal defendants who claimed his representation resulted in their prosecution. The former clients disagreed with the attorney’s handling of a disciplinary case brought against them by the Missouri Real Estate Commission. Under the exoneration rule, which prohibits criminal defendants from suing trial lawyers unless the criminal conviction is set aside, the clients’ guilty plea to federal charges meant that they couldn’t sue their civil attorney. The court said the law firm also could proceed in its collection of prejudgment interest on money owed by one of the clients. Similarly, a Western District opinion, Barker v. Walkenhorst, WD80700, sent a case back for entry of prejudgment interest for a law firm in its efforts to collect from a client.

Also in the Western District, the court held in Fuller v. Partee, WD80493, that a convicted murderer could sue his attorney for breach of contract. The court dismissed malpractice and fiduciary-duty claims, noting that convicted criminals cannot recover civil damages without demonstrating actual innocence, but the court allowed the claim for breach of contract to proceed based on a contract that clearly set out the legal services to be provided.

Other noteworthy decisions

Issues continue to arise regarding the requirement for medical-malpractice affidavits with the Supreme Court upholding their constitutionality in Hink v. Helfrich, SC96371, in which a plaintiff argued that the law made it too difficult to find a suitable expert in certain cases. The high court disagreed, noting that the phrase “substantially the same specialty” is broadly interpreted and that more than one expert could be used if necessary. The plaintiff’s failure to file an affidavit at all proved fatal.

The Eastern District also weighed in on medical affidavits with a split decision on deficient affidavits. The appellate court held that even though a plaintiff filed only one affidavit to cover multiple defendants when the statute requires one for each named defendant, her affidavit substantially complied with the law. The case is Ferder v. Scott, ED105130.

The Missouri Supreme Court upheld a trial court’s ruling in favor of a man who sought sole custody of his stepdaughter as a third party. The child’s biological father, who intervened in the case, established paternity through a DNA test but had no role in her life. The high court agreed with findings that both biological parents were unfit for custody. The decision in Bowers v. Bowers, SC96545, also reaffirmed that equitable parentage is not recognized in Missouri.

In the criminal-law arena, the Western District affirmed a 12-year sentence for a defendant who argued that his health issues made the prison term a death sentence. The court in Duncan v. State, WD80522, said the sentence was not grossly disproportionate or a violation of Eighth Amendment rights.

The Supreme Court split over nested offense instructions with the majority holding that an appellate attorney was not ineffective for failing to challenge on appeal a judge’s refusal to give a defendant’s requested instructions on lesser-included offenses in a second-degree murder trial. The opinion in Meiners v. State, SC96278, stressed that an attorney’s failure to anticipate a change in the law cannot constitute ineffective assistance.

The high court also addressed gun rights in a 4-3 decision, holding that a convicted felon could not possess a firearm even though his conviction for drug possession was more than 40 years old. The majority found that the plaintiff was not protected by the Second Amendment or the gun-rights provision in the Missouri Constitution. The dissenting judges argued that his constitutional claims were not ripe for review. The case was Alpert v. State, SC96024.