In Personal Injury Case, Medical Testimony on the Probability of Future Medical Care is Admissible

W. Dudley McCarter
Behr, McCarter & Potter
St. Louis
Megan Swartz was a passenger in a vehicle driven by Christopher Hobbs that was struck by a school bus owned by Webb Transportation. She sued Hobbs and Webb for damages based on the injuries that she suffered to her pelvis and lower back in the accident. At trial, Ms. Swartz presented deposition testimony of two physicians, an orthopedic surgeon and a family practice physician. Both doctors testified that Ms. Schwartz had an increased risk of surgery in the future. The family practice physician also testified that the pain medication Swartz was taking for her back carried with it a risk of gastric, liver and kidney complications. The orthopedic surgeon also testified that the fracture to her pelvis might cause her more difficulty in giving birth naturally, should she become pregnant. The jury awarded Swartz damages of $335,000 and both Hobbs and Webb appealed on the grounds that the trial court erred in admitting this testimony. The Supreme Court of Missouri affirmed in Swartz v. Gale Webb Transportation Company.¹

“It is Missouri’s well-settled rule that a plaintiff is entitled to full compensation for past or present injuries that the plaintiff has shown by a preponderance of the evidence where caused by the defendant.”² “In accordance with this basic damage instruction, when an expert testifies to a reasonable degree of certainty that the defendant’s conduct placed the plaintiff at an increased risk of suffering possible future consequences, Missouri courts have long held that such testimony is admissible to aid the jury in assessing the extent and value of the plaintiff’s present injuries, even if those future consequences are not reasonably certain to occur.”³ “[M]any . . . Missouri cases . . . have admitted expert testimony of the probability, short of reasonable certainty, that a future surgery may be necessary and of the potential cost of such treatment.”⁴

“Courts of other states also have permitted recovery for the possibility of future injury based on similar testimony. A number of these states, like Missouri, do so by permitting the jury to consider such testimony as an aid in evaluating the extent and nature of a plaintiff’s present injury.”⁵ “In other states, the courts have set out special standards for recovery of a present risk of future injury, requiring the jury to quantify the percent of risk it finds and to separately award damages for it.”⁶ “This complex approach is not consistent with Missouri’s traditional, simple, and easy-to-apply approach of allowing the jury to consider all evidence of past and present injuries, including the increased risk of future injury that those present injuries create, as well as evidence of future injuries that the jury finds are reasonably certain to occur, and to award a single sum of damages for such injuries. See MAI 4.01.”⁷

“Here, as in earlier Missouri cases permitting admission of testimony of possible future consequences, the testimony regarding Ms. Swartz’ increased risk of future harm was admissible for purposes of establishing the extent and nature of her injuries.”⁸ “That Ms. Swartz’ present injury brings with it this increased risk of future injury ‘is information the jury should have in the difficult task of trying to give plaintiff’s condition a dollar value.’”⁹ “Because the testimony of [the two physicians] was admissible for the purpose of establishing the nature and extent of Ms. Swartz’ injuries, the trial court did not abuse its discretion in admitting this testimony. . . .”¹⁰

Non-Modifiable Maintenance Cannot Be Terminated Due to Criminal Acts of the Payee

Joseph Richardson and Ida Richardson divorced in 1997. They signed a separation agreement by which Joseph agreed to pay non-modifiable maintenance to Ida of $2,425 per month, which would terminate only upon Ida’s remarriage or the death of either party. In 2004, Joseph filed a motion to modify the dissolution decree and sought a termination of his maintenance obligation. In his motion he alleged that Ida attempted to hire someone to murder him and contended that this criminal act, in violation of public policy, breached the separation agreement and constituted a waiver of maintenance. The trial court dismissed Joseph’s motion and the Supreme Court affirmed in Richardson v. Richardson.¹¹

“'Dissolution of marriage is a statutory action, unknown to the common law.’”¹² “[The] Court is generally bound by the statutory pronouncements of the General Assembly regarding dissolution law.”¹³ Section 452.325 RSMo. states, in subsection 6, that “the decree may expressly preclude or limit modification of terms set forth in the decree if the separation agreement so provides.”¹⁴ “This case is controlled by Section 452.325.”¹⁵ “Neither the Agreement, nor the decree, nor the statute authorizes a court to modify the terms of the agreement or the decree on account of subsequent circumstances.”¹⁶ “As with all contract terms, a non-modification provision is an agreed allocation of future risk, bargained for and for which consideration is exchanged. The Missouri legislature has seen fit to allow such a clause to be elevated from contractual to judicial status by incorporation into the dissolution decree.”¹⁷

“[T]here is no authority in the dissolution statutes for the court to revisit the issue of conscionability at any time after the decree is entered.”¹⁸ “Killing Joseph might have resulted in the termination of Ida’s ability to collect maintenance, but her alleged acts do not establish a clear and unequivocal attempt to relinquish her contractual right to maintenance so long as Joseph is living.”¹⁹ Although Missouri courts have followed the general rule that no one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own murder, those decisions are not analogous to the present case. “Here, Ida was already entitled to maintenance. Because Joseph’s death would result in Ida no longer receiving maintenance, Ida would not profit . . . if Joseph were murdered. This is a different question than if Ida would be entitled to claim death benefits from an insurance policy or otherwise.”²⁰ It is not necessary to extend to this case the public policy argued by Joseph to discourage murder; this state’s criminal and tort laws already do that.

For Recovery Under Prima Facie Tort, All Elements Must Be Proven By Substantial Evidence

LPP Mortgage sued Marcin, Inc. for the balance due to LPP on a promissory note. Prior to filing suit, LPP and Marcin engaged in settlement discussions for more than a year. Marcin offered to pay $50,000 to settle LPP’s claim of more than $700,000. LPP rejected that offer and, without further contact with Marcin, published a notice of foreclosure on the real estate that was the collateral for the note that was in default. After suit was filed by LPP, Marcin filed a counterclaim alleging prima facie tort due to the publication of the foreclosure notice. At trial, the court directed a verdict in favor of LPP and awarded it $778,000 for the balance due on the note. Marcin’s counterclaim for prima facie tort was submitted to the jury, which returned a verdict in favor of Marcin for compensatory and punitive damages totaling $700,000. LPP appealed and the Court of Appeals reversed the jury verdict in LPP Mortgage, Ltd. v. Marcin.²¹

“In order to make a submissible case of prima facie tort, a claimant must establish: ‘(1) an intentional lawful act by defendant; (2) defendant’s intent to injure the plaintiff; (3) injury to the plaintiff; and (4) an absence of or insufficient justification for defendant’s act.’”²² “Because every claim of prima facie tort is predicated on the intentional commission of a lawful act, a mere legal right to perform that act is not enough to defeat the claim.”²³ “A valid business interest will generally provide sufficient justification to defeat a claim for prima facie tort.”²⁴ Here, “LPP’s actions were attempts to collect on the defaulted note. As such, those actions were justified to the extent that LPP ‘had a valid business interest to protect.’”²⁵

To prove the fourth element of prima facie tort, Marcin was required to establish the absence of any sufficient justification. “In order to make a submissible claim, claimants in prima facie tort must ‘demonstrate that they have substantial evidence on each of the four elements.’”²⁶ “Having failed to offer any evidence that LPP lacked sufficient justification for its actions, Marcin has not established a submissible claim of prima facie tort and the trial court’s denial of LPP’s motion for judgment notwithstanding the verdict must be reversed.”²⁷ “Because punitive damages are not available in the absence of actual damages,”²⁸ the award of punitive damages is also reversed.

Lost Profits Are Recoverable in Breach of Contract and Tort Cases

Cadco was a mobile home retailer with sales and service centers in Arnold and Bonne Terre. Cadco entered into an agreement with Fleetwood, a mobile home manufacturer, by which Cadco agreed to maintain an inventory of Fleetwood’s products and Fleetwood agreed to make Cadco its exclusive retailer in the St. Louis area. After several years, the business relationship deteriorated and Fleetwood notified Cadco that it was awarding to Coachmen, a competitor of Cadco, the right to sell a new Fleetwood product in the St. Louis area. Cadco filed suit against Fleetwood for both negligent and fraudulent misrepresentations. The jury awarded Cadco actual and punitive damages exceeding $1.7 million. Fleetwood appealed, contending that there was insufficient evidence of Cadco’s lost profits, but the Court of Appeals affirmed in Cadco v. Fleetwood Enterprises.²⁹

Cadco’s expert testified that Cadco would have sold all of the Fleetwood units that were sold by Cadco’s competitor. “The relevant standard governing the admission of expert witness testimony is set out in Section 490.065 [RSMo.].”³⁰ “Usually, the opinion testimony of an expert witness is based upon facts that the expert did not personally observe and of which the expert did not have personal knowledge.”³¹ “Under Missouri law, however, the facts or data on which experts rely in forming their opinions need not be independently admissible, as long as the evidence satisfies the two requirements of § 490.065.3.”³² “First, in determining whether the facts and data are reasonably relied upon by experts in the field, the trial court is generally expected to defer to the expert’s assessment of which data is reasonably reliable.”³³ “The practice of allowing an expert to testify as to facts and data of a type reasonably relied upon by experts in the field is justified by the premise that a witness with specialized knowledge is as competent to evaluate the reliability of the statements presented by other investigators or technicians as competent as a fact-finder is to pass upon the credibility of an ordinary witness on the stand.”³⁴ “Second, in determining whether the facts and data otherwise are reasonably reliable, the trial court must look beyond the expert’s testimony to insure that the sources relied upon by the expert are not so slight as to be fundamentally unsupported.”³⁵

“Lost profits are recoverable in a variety of contract, tort and business interruption cases.”³⁶ “The term ‘loss of profits’ refers to the amount of net profits the plaintiff would have realized had its clients not been lost as a result of the defendant’s actions.”³⁷ “An estimate of prospective or anticipated profits must rest on more than mere speculation; however, uncertainty as to the amount of profits that otherwise would have been made does not prevent recovery.”³⁸ “In tort actions, the plaintiff must establish the fact of damages with reasonable certainty, even though it is not always possible to establish the amount of damages with the same degree of certainty.”³⁹ “In cases involving the interruption of an established business, damages for loss of profits may be recovered where reasonably certain proof shows the amount of these profits; the presentation of facts establishing the income and expenses of the business for a reasonable time before its interruption, and the net profits during that previous period is essential to this determination.”⁴⁰ “Accordingly, it is reasonable to require the plaintiff to prove past profits to show how the defendant’s actions affected the plaintiff’s profits.”⁴¹ Here, the opinion testimony of Cadco’s expert concerning Cadco’s lost profits was sufficiently reliable and adequately supported.

Voluntary Annexation Does Not Preempt Prior Involuntary Annexation Proceeding

In December 2004, the city council of the City of St. Joseph introduced an ordinance to proceed with involuntary annexation of an area adjacent to the city limits, following the involuntary annexation procedure set forth in § 71.015, RSMo. During March 2005, certain landowners in the proposed annexation territory initiated efforts to voluntarily annex their land to the Village of Agency. The landowners submitted a petition for that purpose pursuant to § 71.012, RSMo. During April 2005, the Village of Agency adopted ordinances approving the voluntary annexation. Later, the City of St. Joseph filed suit seeking a declaratory judgment that it had prior jurisdiction over the proposed annexation territory. The circuit court agreed with the city and found that it had acquired prior jurisdiction to annex the territory. The Village of Agency appealed, contending the doctrine of prior jurisdiction does not apply to voluntary annexations. The Court of Appeals rejected the contention of the village in City of St. Joseph v. Village of Agency.⁴²

“Missouri statutes set forth the procedures for involuntary and voluntary annexations. Section 71.015 allows a city, town, or village to initiate involuntary annexation of a contiguous, un-incorporated land area by proposing an ordinance.”⁴³ “Voluntary annexations are authorized by Section 71.012. Landowners in unincorporated areas can initiate the procedure by submitting a verified petition for annexation to the governing body of a contiguously located city, town, or village.”⁴⁴ “When two municipalities seek to annex the same territory, Missouri courts generally invoke the doctrine of prior jurisdiction to determine which one has authority to proceed.”⁴⁵ “The doctrine provides that the municipality undertaking the first ‘valid step’ toward annexation has priority over the territory, regardless of which municipality completes its proceedings first. The proposal of an ordinance is the first valid step for an involuntary annexation under Section 71.015.”⁴⁶ “The submission of a verified petition by landowners constitutes the first valid step under the voluntary annexation procedures of Section 71.012.”⁴⁷

Here, “the Village does not dispute that the City took the first valid step,” but “asserts, however, that voluntary annexations are exempt from the common law doctrine of prior jurisdiction based upon the statutory language of 71.012 and the superior protections afforded therein for affected landowners.”⁴⁸

[A] voluntary annexation does not materially differ from an involuntary annexation insofar as the doctrine of prior jurisdiction is concerned. Residents affected by an involuntary annexation proceeding have a voice in the process no different than the voice residents have in a voluntary annexation proceeding. In the involuntary annexation, the voice of the residents is heard through the election process required by Section 71.015.

Both Sections 71.012 and 71.015 guarantee due process to landowners who are affected by annexations. Accordingly, there is no merit to the Village’s claim that voluntary annexations should be given priority because they provide superior protection to landowners.

The Circuit Court properly applied the doctrine of prior jurisdiction in determining that the City took the first valid step towards annexation of the subject territory. The Village had no authority to pursue voluntary annexation of the same territory while the City was proceeding under Section 71.015.⁴⁹

Intervening Cause Will Not Preclude Liability if it is a Foreseeable and Natural Product of the Original Negligence

While working on a construction project, Ed English was electrocuted when the scaffolding he was holding inadvertently touched an energized 69,000 volt power line owned and maintained by Empire District Electric Company. He filed suit against Empire, alleging that Empire failed to eliminate, guard or warn of the risk of accidental contact with its energized lines, despite actual knowledge of the construction and tall equipment being used in the vicinity of the lines. At trial, English offered evidence that Empire knew of many accidental contacts with its electrical lines; during the 10 years prior to this incident, there were six deaths, 10 serious injuries, 32 power line “hits” and 330 “close calls.” Empire submitted an affirmative converse instruction that directed the jury to return a verdict for Empire if it believed the actions of the contractor and subcontractor involved in the project constituted an intervening cause of English’s injuries. The trial court refused this instruction and the Court of Appeals affirmed in English v. Empire District Electric Company.⁵⁰

“The question of causation between concurrent negligent acts is an issue for the jury to determine. The determination of proximate cause is dependent upon the particular facts of each case and is generally an issue reserved for the trier of fact.”⁵¹ “The practical test of proximate cause is whether the negligence is ‘an efficient cause which sets in motion the chain of circumstances leading to the plaintiff’s injuries or damages.’”⁵² “A defendant’s negligence does not need to be the sole cause of the injury, but rather need only be one of the efficient causes thereof without which the injury would not have occurred.”⁵³ “This includes where ‘the purported intervening cause occurs in combination or concurrent with earlier negligence,’⁵⁴ or where the intervening act itself constitutes ‘an act of the plaintiff himself, which is a foreseeable consequence of the original act of negligence.’”⁵⁵

Here, Empire did not properly converse the finding of proximate cause in the verdict directing instruction. Instead, Empire sought to introduce other causes of negligence against non-parties into the converse instructions, claiming the actions of others were an intervening cause of English’s injuries. “The issue of an intervening cause occurs when ‘a new and independent force…so interrupts the chain of events that it becomes the responsible, direct, proximate and immediate cause of the injury, but it may not consist of an act of concurring or contributory negligence.’”⁵⁶ “An intervening cause will not break the chain of causation when it is merely a natural progression of events that were set in motion by the original negligent act.”⁵⁷ “An intervening cause will not preclude liability if it ‘is itself a foreseeable and natural product of the original negligence.’”⁵⁸ Here, the trial court did not err in refusing the instruction proposed by Empire. It “was an improper converse instruction and it injected false issues to the jury.”⁵⁹

Workers' Compensation is Exclusive Remedy Where Employer Fails to Correct an Unsafe Working Condition

Roy Dietiker worked at a Ford automotive plant for more than 30 years until his retirement. Five years after he retired, he was diagnosed with mesothelioma (a type of lung cancer) and died shortly thereafter. Prior to his death, he filed a workers’ compensation claim against Ford and a plant manager, alleging that his cancer was caused by exposure to asbestos in the work place. After his death, his family filed a wrongful death action in circuit court against Ford, alleging that Dietiker’s death resulted from intentional conduct of Ford related to the presence of asbestos in the work place and for fraudulently concealing the presence of asbestos in the work place. Ford and the plant manager filed a motion to dismiss for lack of subject matter jurisdiction, but the trial court denied it. The Court of Appeals, however, made its order of prohibition permanent in State of Missouri, ex rel Ford Motor Company v. Nixon.⁶⁰

Under § 287.120, RSMo., workers’ compensation is the exclusive remedy for an employee’s accidental death or injury arising out of and in the course of his employment. “The Dietikers cannot avoid the exclusive jurisdiction of the Workers’ Compensation Law merely by alleging that Ford intentionally injured Mr. Dietiker by concealing the danger of asbestos in the work place.”⁶¹ “The circuit court lacks subject matter jurisdiction to consider whether Ford’s work-related conduct was intentional or accidental.”⁶² “The trial court should have granted Ford’s motion to dismiss the workplace injury claims. . . .”⁶³

“The circuit court also lacks subject matter jurisdiction to proceed on the work- place injury claims”⁶⁴ that were asserted against the manager of the plant at which Dietiker worked. “Personal lawsuits against a co-employee for breach of the duty to maintain a safe working environment are preempted by the worker’s compensation unless the co-employee performed an affirmative negligent act outside the scope of the employer’s duty.”⁶⁵ “Missouri courts frequently use the ‘something more’ test in considering whether the co-employee’s affirmative act created an additional danger beyond that normally faced in the job-specific work environment.”⁶⁶ “An affirmative negligent act cannot arise from a mere failure to correct an unsafe condition; it must be separate and apart from the employer’s non-delegable duty to provide a safe work place.”⁶⁷ There was “nothing in the Dietikers’ petition to suggest that [the plant manager] committed an affirmative negligent act that was outside the scope of his employer’s duty to provide a safe work environment” and “the circuit court does not have jurisdiction to proceed on the negligence allegations against [him].”⁶⁸

Footnotes

1 No. SC 87890 (Mo. banc 2007).

2 Swatz at 130-131.

3 Swartz at 131.

4 Id. See Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439, 447 (Mo. banc 1998) and Breeding v. Dodson Trailer Repair, Inc., 679 S.W.2d 281, 283-4 (Mo. banc 1984).

5 Swartz at 132. See Feist v. Sears, Roebuck & Co., 517 P.2d 675, 680 (Or. 1973).

6 Swartz at 132.

7 Id.

8 Id.

9 Swartz at 133, quoting Vitt v. Ryder Truck Rentals, Inc., 340 So.2d 962, 965 (Fla. App. 1977).

10 Swartz at 133.

11 No. SC87641 (Mo. banc 2007).

12 Richardson, quoting Cates v. Cates, 819 S.W.2d 731, 734 (Mo. banc 1991).

13 Richardson, citing Cates.

14 Section 452.325(6), RSMo.

15 Richardson.

16 Richardson, citing Thomas v. Thomas, 171 S.W.3d 130 (Mo. App. 2005) and Mason v. Mason, 873 S.W.2d 631 (Mo. App. E.D. 1994).

17 Richardson.

18 Id.

19 Id.

20 Id.

21 No. WD66551 (Mo. App. W.D. 2007).

22 LPP Mortgage at 4, quoting Mazeri v. Missouri Valley College, 860 S.W.2d 303, 315 (Mo banc 1993).

23 LPP Mortgage at 6, citing Mazeri v. Missouri Valley College, 860 S.W.2d at 315-16.

24 LLP Mortgage at 6, citing Rigby Corp. v. Boatmen’s Bank & Trust Co., 713 S.W.2d 517, 545 (Mo. App. W.D. 1986).

25 Id., quoting Luxonomy Cars, Inc. v. Citibank, N.A., 408 N.Y.S.2d 951, 954 (N.Y. App. Div. 1978).

26 LPP Mortgage at 7, quoting Killion v. Bank Midwest, N.A., 987 S.W.2d 801, 808 (Mo. App. W.D. 1998).

27 LPP Mortgage at 7-8.

28 LPP Mortgage at 8, citing Adelstein v. Jefferson Bank & Trust Co., 377 S.W.2d 247, 252 (Mo. 1964).

29 Mo. ED 87066 (Mo. App. E.D. 2007).

30 Cadco at 7, citing State Board of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146, 153 (Mo. banc 2003).

31 Cadco at 7, citing Eagan v. Duello, 173 S.W.3d 341, 351 (Mo. App. W.D. 2005).

32 Cadco at 7, citing Peterson v. National Carriers, Inc., 872 S.W.2d 349, 355 (Mo. App. W.D. 1998).

33 Cadco at 8, citing Goddard v. State, 144 S.W.3d 848, 854 (Mo. App. S.D. 2004).

34 Id.

35 Id.

36 Cadco at 8, citing Ameristar Jet Charter, Inc. v. Dodson International Parts, Inc., 155 S.W.3d 50, 55 (Mo. banc 2005).

37 Id. at 54-55.

38 Id.

39 Id. at 55.

40 Cadco at 8, citing Harvey v. Timber Resources, Inc., 37 S.W.3d 814, 818 (Mo. App. E.D. 2001).

41 Cadco at 9, citing Harvey at 818.

42 No. WD 66205 (Mo. App. W.D. 2007).

43 Id.

44 Id.

45 Id., citing City of St. Joseph v. Village of Country Club, 163 S.W.3d 905, 907 (Mo. banc 2005).

46 Id. at 909.

47 Id., citing State ex rel. Nesslage v. City of Lake St. Louis, 718 S.W.2d 214, 219 (Mo. App. E.D. 1986).

48 Id.

49 Id., quoting State ex inf. Nesslage v. Village of Flint Hills, 713 S.W.2d 210, 213-14 (Mo. App. E.D. 1986).

50 No. 27411 (Mo. App. S.D. 2007).

51 English at 9-10, citing Linton v. Missouri Highway & Transportation Commission, 980 S.W.2d 4, 9 (Mo. App. E.D. 1998).

52 Id. at 10., quoting Simonian v. Gevers Heating & Air Conditioning, Inc., 957 S.W.2d 472, 475 (Mo. App. E.D. 1997).

53 Id., citing Vintila v. Drassen, 52 S.W.3d 28, 41 (Mo. App. S.D. 2001).

54 Id., quoting Collins v. Missouri Bar Plan, 157 S.W.3d 726, 732 (Mo. App. W.D. 2005).

55 Id., quoting Esmond v. Bituminous Cas. Corp., 23 S.W.3d at 732.

56 Id. at 11, quoting Simonian at 475.

57 Id., citing Collins at 732.

58 Id. at 11, quoting Esmond at 753.

59 Id. at 11.

60 No. WD 67518 (Mo. App. W.D. 2007).

61 Id., citing Killian v. J & J Installers, Inc., 802 S.W.2d 158 (Mo. banc 1991).

62 See Ford Motor Company.

63 Id.

64 Id.

65 Id., citing State ex rel. Taylor v. Wallace, 73 S.W.3d 620, 621-22 (Mo. banc 2002).

66 Id., quoting Burns v. Smith, 214 S.W.3d 335. 338 (Mo. banc 2007).

67 Id., citing Burns at 338.

68 Id.