Shifting gears: Missouri Supreme Court pace picks up in 2019

In the last six months of 2018, the Missouri Supreme Court appeared to be gearing up for some big decisions. So far in 2019, that behind-the-scenes work is bearing fruit.

As of the court’s handdown on June 25, the high court had issued 42 written opinions in 2019, according to a database of Supreme Court opinions maintained by Missouri Lawyers Media.

That’s a typical amount for a court that, on average, issues 83 written rulings a year. But it’s far more opinions than the court issued in the last half of 2018. The court issued just 26 opinions between July and December, and just 69 opinions in all of 2018 — the lowest output in at least 18 years.

So far, 17 cases, or 40 percent of the opinions issued in the past 6 months, featured a dissent. In an average year, only a quarter of cases result in a split.

More notable than the quantity, however, is the quality. 2019 has seen a lot of new law, ranging from arcane technicalities to issues that make front-page news. Here are some of the notable cases from the Supreme Court, as well as the Missouri Court of Appeals and the 8th U.S. Circuit Court of Appeals.

Tort law

Certainly the most watched case was a February ruling in which the Supreme Court’s majority said a plaintiff can’t use joinder to establish venue in a place where it otherwise wouldn’t exist. State ex rel. Johnson & Johnson v. Burlison, SC96704.

The immediate result was to prevent a St. Louis County man whose wife’s fatal cancer allegedly was caused by talcum powder from joining other plaintiffs with similar claims in neighboring St. Louis Circuit Court. But the long-term impact could be a reduction in the number of mass tort cases filed in Missouri, often in St. Louis Circuit Court, against out-of-state corporations. Such suits, often featuring a small number of St. Louis residents joined with plaintiffs around the country with similar claims, have resulted in several massive jury verdicts.

Earlier this month, Gov. Mike Parson signed a bill that “expressly adopts” the Johnson & Johnson ruling and makes other changes to the state’s venue and joinder laws. The bill goes into effect Aug. 28.

In January, the Supreme Court held that a statute requiring large medical-malpractice awards to be paid out during long periods of time was unconstitutional in some circumstances. A portion of a $28.9 million verdict had been ordered to be paid out for 57 years at a statutorily required interest rate. Although the court didn’t strike down the interest rate statute, it said the rate was too low for the plaintiff to receive the full value of the judgment and ordered the trial court to recalculate. The case is Williams v. Mercy Clinic Springfield Communities, SC96547.

The following month, the Supreme Court overturned a $2.3 million verdict against a Kansas City-area surgical center. The case, Tharp v. St. Luke’s Surgicenter-Lee’s Summit LLC, SC96528, also had raised issues about the low statutory interest rate on the judgment, but the court focused on what it said was a lack of proof that the facility was negligent in providing credentials to the surgeon who operated on the plaintiff. In an almost-unheard-of move, the court since has agreed to reconsider the effect of the ruling and will hear arguments in September on whether the plaintiff should get a new trial.

Also in February, the 8th Circuit revived a woman’s claim concerning the painkiller Vioxx. The drug company said the woman waited too long to bring her claims, but a split panel said it was for a jury to decide when she was put on notice of a potentially actionable injury. The case is Levitt v. Merck & Company Inc., 17-2630.

That same month, the Western District wiped out most of the damages in a complex case against a defunct Kansas City-area car dealership and ordered part of the case to be retried. In a ruling of first impression, the court said Missouri’s adoption of the Uniform Fraudulent Transfer Act didn’t wipe out a common-law requirement that a creditor must have a lien on the debtor’s property in order to sue a third party for fraudulently converting that property. The case is Lewellen v. Universal Underwriters Insurance Company et al., WD81171.

In March, the 8th Circuit partially revived a lawsuit against the federal government following a mine accident that left a man quadriplegic. The court said that while the government inspector was protected from suits while performing discretionary acts, inspectors are not protected if they fail to perform their duties at all. The case is Buckler v. United States of America, 17-2567.

In April, the 8th Circuit held that a school district couldn’t be held responsible for a former teacher who had secretly videotaped students at a school camp. Distinguishing the case from a prior precedent, the said the district’s alleged lack of supervision of the teacher didn’t rise to evidence of deliberate indifference to an obvious risk. The case is Doe v. Hansen, 18-2093.

Also in April, the Western District said the guardians of a disabled Fulton man whose body was found encased in concrete do not have standing to bring a wrongful-death claim. The court ruled that equitably adopted parents do not have standing as first-class litigants under state law. The case is Martin v. Summers, WD82024.

Employment

The Supreme Court issued a blockbuster pair of cases in February when it allowed employment claims by a gay state worker and equal-restroom-access claims by a transgender student to proceed. The cases are Lampley v. Missouri Commission on Human Rights, SC96828 and R.M.A. v. Blue Springs R-IV School District, SC96683.

The Missouri Human Rights Act doesn’t mention claims of sexual orientation or gender identity. The court’s majority said the claims could proceed at this stage because they were framed as discrimination based on sex.

For more than 20 years, lawmakers have considered versions of a Missouri Nondiscrimination Act that would add explicit protections for LGBTQ Missourians to state anti-discrimination laws. Bills were considered in a House committee late in session this year but never made it to the floor.

In January, in Kader v. Board of Regents of Harris-Stowe State University, SC97069, the Supreme Court reversed a $2.5 million verdict for a former Harris-Stowe State University professor. The professor, who is Egyptian, alleged the university discriminated against her in its handling of the visa that allowed her to work in the United States. The court said there wasn’t enough evidence she would have been able to remain even if the university had pursued her visa more vigorously.

In March, the Supreme Court threw out a $7 million verdict for Matthew Vacca, a former administrative law judge, on claims that he faced retaliation after filing a discrimination complaint related to his muscular dystrophy. The court said the judge’s claims in the discrimination suit were inconsistent with claims he made in his separate marital dissolution case. The case is Vacca v. Missouri Dept. of Labor and Industrial Relations, SC96911.

Vacca wasn’t the only public official on the court’s docket. In April, the court said in Rebman v. Parson, SC97307, that the state legislature could not use the budget process to force the termination of Lawrence Rebman, an administrative law judge who formerly had been the head of the Missouri Department of Labor and Industrial Relations. On the same day, the court said in Cope v. Parson, SC97284, that Gov. Mike Parson had the authority to appoint Mike Kehoe to succeed him as the state’s lieutenant governor.

In April, the Southern District said the family of a minor abused by a pastor couldn’t sue the religious college that recommended the pastor to the church where the abuse occurred. The court said Missouri hasn’t recognized a “negligent recommendation” cause of action. The case is Doe v. Ozark Christian College, SD35573. The plaintiff has asked the Supreme Court to take the case.

Worker’s Compensation

In June, the Supreme Court agreed that permanent partial disability claims no longer can be brought against the Second Injury Fund. Lawmakers limited access to the fund in 2014 in an attempt to keep it solvent, a motivation the court said was rational. But it hinders compensation for workers who suffer a partially debilitating injury after the law went into effect — even if they have preexisting conditions that predate the law change. The case is Cosby v. Treasurer of the State of Missouri, SC97317.

Also in June, the high court took an initial look at a 2017 amendment to section 537.065 of the Revised Statutes of Missouri, which allows plaintiffs and defendants to strike a deal when an insurer declines to defend a defendant without reservation. The revised law allows insurers a chance to intervene in such agreements, but the court said the law came too late for an insurance company opposing a $6.9 million judgment rendered against a nightclub it insured. The case is Desai v. Seneca Specialty Insurance Co., SC97361.

That same month, the Southern District ruled that a former employee alleging he suffered hearing loss at work wasn’t time-barred from receiving benefits from the Second Injury Fund. His claim, the court found, was within two years of when his tinnitus was reasonably discoverable. The case is Guinn v. Treasurer of the State of Missouri, SD35694.

Also, the Western District in June upheld workers’ compensation benefits for the widow of a firefighter who died of cancer. The family alleged that the man’s follicular non-Hodgkin’s lymphoma was linked to smoke and other carcinogens he was exposed to on the job. The case is Cheney v. City of Gladstone, WD81939.

In February, the Eastern District said a nonprofit organization’s sole employee in the state of Missouri was entitled to unemployment benefits, despite the state’s longstanding contrary interpretation of the law. The case is Phoenix v. Summer Institute of Linguistics and Division of Employment Security, ED106937.

And in May, the Eastern District said the family of a man who died from asbestos exposure can recover under a law that gives enhanced benefits for some toxic-exposure diseases — even though the law was enacted decades after the employer went out of business. Insurers now on the hook for the award have asked the Supreme Court to review the ruling. The case is Hegger v. Valley Farm Dairy Company, ED106278.

Criminal law

In March, the Supreme Court held that circuit courts have no statutory authority to impose “board bills” as part of court costs. Instead, counties seeking to recover the cost of jailing defendants can use a separate statutory process to recoup the money, but judges can’t force defendants to appear in court repeatedly for hearings on their debts. The case is State v. Richey, SC97604. Soon after the ruling, lawmakers passed a bill repealing a state law allowing defendants to be jailed for failure to pay a fine. The governor signed the bill into law earlier this month.

The board-bills issue is still being sorted out in courts. In April, the Eastern District ruled that a county where a defendant was tried on a change of venue had no authority to impose incarceration costs against him, so it ordered a refund. The case is State v. Boston, ED107198.

Also in April, the Supreme Court said a suspected drunk driver had a right to speak privately to an attorney so as to make an informed decision about whether to submit to a chemical test. The man lost his driver’s license for refusing the test, but the court said a police officer should not have been allowed to stand next to the man while talking to his lawyer on the phone. The case is Roesing v. Director of Revenue, SC97165.

In May, the Western District denied Patricia “Patty” Prewitt a chance to test newly discovered evidence for DNA. Prewitt is serving a life sentence for the 1984 murder of her husband. She maintains her innocence. The case is State v. Prewitt, WD81759.

In June, the Western District ruled that a recent revision to the state’s expert-witness law prohibiting opinions about a defendant’s mental condition does not block experts from testifying about a DWI suspect’s intoxication. The case is State v. Capozzoli, WD81399.

Other notable cases

In January, the Western District said a circuit judge lacked authority to not apply the state’s “Safe at Home” law, which allows victims of domestic violence to list themselves in official records at P.O. boxes rather than their residential address. The case is Hannah v. Hannah, WD81540.

In February, the Supreme Court ruled against a woman who claimed that Missouri’s informed-consent law for abortion violated her religious rights as a member of The Satanic Temple. The law has a mandatory 72-hour waiting period for abortions, and it gives the woman the opportunity to review an ultrasound and receive a booklet that identifies conception as the beginning of human life. The court said the law doesn’t adopt any religious tenet and that the plaintiff didn’t demonstrate how the law violates her beliefs. The case is Doe v. Parson, SC96751.

Also in February, the Western District issued the final ruling in a years-long fight involving the governance of several entities affiliated with the Missouri Baptist Convention. The litigation began in 2002 and made multiple trips to the Court of Appeals, setting a great deal of precedent regarding Missouri nonprofit organizations. The case is The Executive Board of The Missouri Baptist Convention v. Missouri Baptist University and The Baptist Home, WD81192.

In March, the Eastern District clarified which portions of land are subject to “heritage value” in an eminent-domain case. Heritage value represents special damages owed to a landowner who loses land that has been in the family for a half-century or more. The case is City of Cape Girardeau v. Elmwood Farms LP, ED106181.

In May, the 8th Circuit said a Springfield city ordinance barring women but not men from exposing their nipples in public does not violate the U.S. Constitution. The case is Free the Nipple v. City of Springfield, 17-3467.

In June, the Southern District ruled that public defenders don’t qualify for official immunity from lawsuits. They are, however, covered by the State Legal Expense Fund that generally covers claims against governmental agencies and personnel. The case is Laughlin v. Perry,