The Missouri Supreme Court has returned to in-person arguments and cleared some long awaited cases off its docket. But its annual output remains below normal.

The Supreme Court issued just 49 written opinions during calendar year 2021. It’s the lowest annual total since at least 2001, according to a database of Supreme Court opinions maintained by Missouri Lawyers Media. The total is nine fewer than the 58 opinions issued in 2020, which was the previous record low.

The pandemic may have exacerbated a long-term trend in the court’s output. The yearly average from 2001 to 2010 was 89.5 cases per year, but it was just 70 opinions per year from 2011-2020.

The count may have been small, but the rulings often were mighty. In the last six months, the court upheld the voter-approved expansion of Missouri’s Medicaid system, allowed lawmakers to set limits on damages in medical malpractice suits and reined in suits against workers who injury a co-employee on the job.

Missouri Lawyers Media’s semiannual Major Opinions section reviews cases from the prior six months from the Missouri Supreme Court, the Missouri Court of Appeals and the 8th U.S. Circuit Court of Appeals that raised significant issues in a variety of practice areas. For reviews of cases earlier in 2021 and before, please see molawyersmedia.com/major-opinions online.

Constitutional

In July, in one of the most-watched cases of the year, the Supreme Court upheld the expansion of MO HealthNet. Voters approved the Medicaid expansion in 2020 as an amendment to the state constitution. The court unanimously said that, because lawmakers still maintain control of the program’s funding, the amendment didn’t violate a separate constitutional provision that says the initiative petition process can’t be used to appropriate money. The case is Doyle et al. v. Tidball, SC99185.

In a less weighty constitutional challenge, the Supreme Court said in November that a man could still be tried for assaulting a police officer after a delay in his second trial. Following a mistrial, the defendant’s new trial wasn’t held during the “same or next term of court,” as specified in the state constitution. The court said it was enough that the new trial be scheduled on time, not that it must occur during that term. The case is State v. Shegog, SC99103.

The 8th Circuit is considering its own momentous constitutional challenge. In June, a three-judge panel upheld an injunction for a Missouri law that severely limits abortions. But the full 8th Circuit vacated that ruling and heard the case again in September. It’s not clear when a ruling will come down, as the U.S. Supreme Court is considering a similar case that could change abortion law at the national level. The case is Reproductive Health Services of Planned Parenthood of the St. Louis Region Inc. et al. v. Parson, 19-2882.

In July, the 8th Circuit held that a St. Louis ordinance against obstructing traffic is constitutional. A woman who was arrested for walking in the street while taking part in the Women’s March in 2017 challenged the local law and won in district court. The 8th Circuit, however, said the ordinance’s primary aim is to regulate conduct, not speech. The case is Langford v. City of St. Louis, 20-1488.

Tort Law

In July, the Supreme Court affirmed the validity of a 2015 law that reinstated a cap on the noneconomic damages that plaintiffs can recover in medical malpractice lawsuits. The 5-1 decision followed nearly a decade of jurisprudence on the circumstances under which lawmakers can set limits on the kinds of suits that were available when Missouri became a state. The Supreme Court has now made clear that lawmakers can transform common-law causes into statutory ones, allowing legislative limits to take effect. The case is Ordinola Velazquez v. University Physician Associates et al., SC98977.

Also in July, the 8th Circuit agreed that the exclusion of a key expert was fatal to a Missouri man’s allegations that he was injured by a defective saw. The plaintiff alleged that the saw’s auxiliary handle spontaneously detached from its body, but the court said his expert’s testimony didn’t back up that story. The case is McMahon v. Robert Bosch Tool Corp. et al., 19-3637.

In August, the 8th Circuit ruled that private medical personnel working for correctional facilities cannot claim qualified immunity in an ongoing wrongful death lawsuit. The ruling puts the 8^th Circuit in line with other federal appellate circuits to have considered the issue. The case is Davis v. Munger et al., 20-1842.

Also in August, the 8th Circuit ruled that real estate agents can’t rely on a copyright exemption for “pictures” to defend against claims that they reproduced floor plans of an unusual house in their online listings for potential buyers. The case is Designworks Homes Inc. et al. v. Columbia House of Brokers Realty et al.,19-3608.

The Western District ruled in August that a fatal flaw in an arbitration agreement allows a class-action lawsuit to proceed in circuit court against a car dealership. The agreement called for any disputes between the dealership and its customers to be resolved through a specific forum, which has since shut down. As a result, the court said an arbitrator with a different group who already had ruled against the plaintiffs had no power to act. The case is Car Credit Inc. v. Pitts, WD84054.

The Southern District in September ended a suit against a sporting goods store where a man charged with murder is believed to have obtained the ammunition used in the fatal shooting. Although someone allegedly bought the ammunition for the suspect because he was in the U.S. illegally, such sales aren’t prohibited by federal law and do not require a background check. The case is Elkins v. Academy I LP, SD36947.

Also in September, the Western District threw out claims against a state university by the parents of two students who died by apparent suicide. The court said neither Missouri consumer-protection laws nor federal campus safety laws allowed the suit, which alleged that a fellow student had encouraged the suicides. The case is Bottorf-Arey et al. v. Truman State University et. al., WD84006.

In October, the Eastern District reinstated a lawsuit by bicyclist who alleges he fell while crossing a bridge in St. Charles. The suit was dismissed because the plaintiff failed to notify the city of his injury within 90 days, but the court said that city ordinance is broader than state law permits and cannot be enforced. The case is Zang v. City of St. Charles, ED109422.

The Eastern District in October said a two-year statute of limitations for medical malpractice actions doesn’t cover a company that provides at-home health services. The court said the types of health care entities covered by the statute are those that operate under the authority of a license or certificate, and in-home personal care services do not require a license. The case is Noelke v. Heartland Independent Living Center, ED109295.

In November, the Eastern District said a law firm that won a substantial medical malpractice verdict can collect its full amount of contingency fees, even though a large part of the award was based on future medical costs that disappeared when the plaintiff died during the appeal. The case is Lowe v. Mercy Clinic East Communities et al., ED108826.

Work Comp and Co-worker Liability

In November, the Supreme Court ended a two-and-a-half-year wait with a ruling that a plaintiff could not hold his former supervisor personally responsible for an injury that crushed his left thumb. The 4-2 ruling, which threw out the plaintiff’s $1.05 million verdict and set a record for the delay between oral argument and decision, is expected to severely limit the instances in which a co-employee can be sued for on-the-job negligence. The case is Brock v. Dunne, SC97542.

The Western District ruled in September that a school district alleged to have fired an employee for filing a workers’ compensation claim cannot claim the protection of sovereign immunity. The ruling held that a series of state statutes waived the district’s sovereign immunity for claims of retaliatory discharge. However, the Supreme Court said in December that it would review the case. The case is Poke v. Independence School District, WD84198.

The Eastern District in December took a first look at Missouri’s Whistleblower’s Protection Act, a 2017 law that codified common-law protections for employees who allege misconduct by their employers. The court said that revised law doesn’t bar an auto mechanic’s claim that he was fired for reporting a co-worker for stealing. The case is Yount v. Keller Motors Inc., ED109503.

In December, the Supreme Court ruled that a cable technician who crashed into a concrete pillar while driving for work cannot recover workers’ compensation benefits, as the “risk source” that led to his injury was the breakfast sandwich that caused him to choke while he was driving. The case is Boothe v. DISH Network Inc., SC98948.

Criminal Law

In August, the Supreme Court declined to halt the execution of Ernest Lee Johnson. The court found that he had failed to prove he suffered from an intellectually disability that would prevent him from being put to death for the murders of three people at a convenience store in 1994. Johnson died by lethal injection on Oct. 5. The case is State ex rel. Johnson v. Blair, SC99176.

Also in August, the 8th Circuit reinstated the death penalty for a Scott McLaughlin, ruling that his trial counsel wasn’t ineffective when they missed a problem in the background of an expert who had been prepared to testify in his favor. The court said McLaughlin’s lawyers had sufficiently inquired into the doctor’s background, and it was unlikely that a substitute expert would have prevented McLaughlin from getting the death penalty for the murder of his former girlfriend in 2003. The case is McLaughlin v. Precythe, 18-3510.

In July, the Southern District threw out a lawsuit against a circuit judge who put a woman in jail for violating the terms of her probation. Under a series of recent court rulings, the woman had earned mandatory credits that would have ender her probation already had the judge applied them. The appeals court, however, said the judge didn’t act without jurisdiction and was protected by judicial immunity. The case is Stalnacker v. Dolan, SD36954.

A split panel of the 8th Circuit in August denied post-conviction relief to a Missouri inmate who was tried simultaneously for two murders that occurred five years apart. The majority said the defendant hadn’t had ineffective assistance of counsel, despite his trial lawyer’s failure to adequately oppose the joinder of the cases. The dissent said the majority and the state appeals court overstated the similarities between the murders. The case is Donelson v. Steele, 20-1094.

The Supreme Court split 4-3 in August on whether to suppress evidence from a defendant’s phone because it was obtained at a location that was not listed on a search warrant. The majority said the evidence was properly suppressed because the detective seized the phone directly from the suspect rather than at his home address as detailed in the warrant. The case is State v. Bales, 19PU-CR00610.

In September, a split panel of the 8th Circuit affirmed a Missouri district court’s sentence for a defendant who had continued to seek out child pornography during treatment. The dissenting judge said that in the context of the defendant’s Asperger’s Syndrome, his conduct did not warrant the decision. The court declined to rehear the case en banc. The case is U.S. v. Michael, 19-1885.

In December, the Eastern District denied a challenge to the practice of setting bond as part of the initial arrest warrant in criminal cases. The defendant argued that because courts have no evidence of the defendant’s ability to pay such a bond at that stage of the case, no cash-only bonds should be set. The case is Nichols v. McCarthy, ED109897.

Juvenile Law

In a pair of decisions in October, the Supreme Court said two 17-year-olds were properly tried as adults despite a recent change in the law that extends the authority of juvenile courts to offenders who are up to 18. The court said that, while the effective date of the law change was Jan. 1, 2021, the funds that the legislature appropriated for the law change did not kick in until six months later, which was several months after their court dates. The cases are Missouri v. R.J.G., SC99034 and State ex rel. T.J. v. Cundiff, SC98951.

The Western District in November held that a defendant’s attorney was not ineffective for failing to ask that her young client be held to the standard of a “reasonable juvenile.” The result wasn’t required under a series of U.S. Supreme Court decisions that have changed how youthful offenders are judged in serious cases. The case is Shaw v. State of Missouri, WD83935.

The same month, the 8th Circuit agreed to reconsider a court-ordered reform of Missouri’s parole review process for inmates sentenced to life without parole for crimes they committed as juveniles. In September, a panel affirmed a district court ruling that found Missouri’s process fell short of constitutional standards. But the court has vacated that ruling and said the court en banc would hear the case in January. The case is Brown v. Precythe, 19-2910.

Also in November, the Southern District considered but did not resolve the standard of review to be applied in claims by juveniles that they received ineffective assistance of counsel. Whether it is under the exacting standard that applies to adult criminal proceedings or the “meaningful hearing” standard used termination of parental rights cases, the court said the teen defendant, who allegedly shot another boy, had adequate representation in juvenile court. The case is In the interest of P.J.T., SD36997.

Family Law

In September, the Western District said a woman could renew an order of protection against a man even though he had since moved out of state. The court said Missouri courts had personal jurisdiction to enter the original order and retain it even though he is now a non-resident. The Supreme Court declined to review the ruling. The case is K.C. v. Chapline, WD83881.

In November, the Eastern District of Missouri awarded custody to the non-biological mother of a same-sex couple, although the woman had never formally adopted the child, who was conceived via in-vitro fertilization with a sperm donor. Because the daughter was born during the marriage, the court said the non-biological mother was her presumed natural parent. The case is Schaberg v. Schaberg, ED109200.

Attorneys and Records

The Eastern District ruled in August that some of a lawyer’s files could be disclosed during discovery in a lawsuit that is attempting to recover the proceeds of a jury verdict from an insurance policy. The court said that in the underlying litigation, the attorney served both as counsel to the insurance company and at times as an attorney for the insurer’s policyholder, waiving the attorney-client privilege for some materials from that case. The case is State ex rel. Kilroy Was Here LLC v. Moriarty, ED109351.

Also in August, the Southern District threw out a sanctions order against a public defender’s office after an attorney’s vacation to a “hotspot” for COVID-19 caused a judge to postpone a trial set to occur shortly after he got back. The appeals court said there was no evidence that the attorney acted in bad faith. The case is State ex rel. Area 25 Trial Office v. Clayton, SD37064.

The Supreme Court ruled in September that a county’s presiding judge didn’t have the authority to indefinitely suspend the local circuit clerk. Despite a disagreement between the two officials, the court said the suspension had “the practical effect of removing an elected circuit clerk from office.” The case is Allsberry v. Flynn, SC99257.

The Western District in December gave an opinion that could help doctors and their attorneys know when they can produce records and when they can’t. The court said neither privacy laws nor Missouri law bar doctors from turning over patient records sought during investigations by state licensing boards. The case is State ex rel. Putnam v. State Board of Registration for The Healing Arts, WD84394.

In July, the Eastern District threw out a default judgment against three pro se litigants whose former law firm had sued them for allegedly failing to pay their bills. The trio appeared at court on the date listed in their summons, only to learn that they’d missed their deadline to file a response. The Eastern District said that deadline doesn’t apply to associate-level cases. The case is Zick, Voss, Politte & Richardson v. Puetz, ED109152.

In November, the Supreme Court ruled that a woman waived her attorney-client privilege of a conversation with her legal counsel by leaving a recording of the meeting for her ex-husband to find. The case is State ex rel. Garrabrant v. Holden, SC98875.

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