Objective Standard for Capable of Ascertainment Test Applies to Repressed Memory Cases

W. Dudley McCarter
Behr, McCarter & Potter
St. Louis

During the 1970s, Michael Powel was a student at Chaminade College Preparatory School in St. Louis. In February 2000, he was diagnosed with a brain tumor. During treatment for his tumor, he regained previously repressed memories of sexual abuse at the hands of two teachers at Chaminade. During June of 2002, he filed suit against Chaminade for intentional failure to supervise clergy. He alleged that he was abused by the two teachers at Chaminade from 1973 to 1975 (when he was between the ages of 15 and 17) and that he had repressed his memory of the abuse. Chaminade filed a motion for summary judgment, contending that Powel’s suit was barred by the statute of limitations. The trial court granted Chaminade’s motion, but the Supreme Court of Missouri reversed in Powel v. Chaminade College Preparatory, No. SC 86875 (Mo. banc 2006).

In Missouri, the statute of limitations begins to run when the damage resulting from a wrong is sustained and capable of ascertainment. In other words, before a claim accrues, there must be a wrongful act, resulting damages, and the damages must also be capable of ascertainment. Missouri courts have given the phrase “capable of ascertainment” a practical construction. Until the plaintiff has sufficient knowledge to be put on “inquiry notice” of the wrong and damages, that standard is not met. The statute of limitations begins to run when the evidence was such to place a reasonably prudent person on notice of a potentially actionable injury. It is not the existence of a nominal claim for damage, but the occurrence and capability of ascertaining actual and substantial damage, that begins the running of a statute.

The capable of ascertainment test is an objective one. The issue is not when the injury occurred or when plaintiff subjectively learned of the wrongful conduct, and that it caused his or her injury, but when a reasonable person would have been put on notice that an injury and substantial damages would have occurred and would have undertaken to ascertain the extent of the damages. At that point, the damages would be sustained and capable of ascertainment as an objective matter.

When relevant facts are uncontested, the statute of limitations issue can be decided by the court as a matter of law. When, however, contradictory or different conclusions may be drawn from the evidence as to whether the statute of limitations has run, it is a question of fact for the jury to decide. In some cases, the victim may be so young, mentally incompetent or otherwise innocent and lacking in understanding that the person could not reasonably have understood that substantial harm could have resulted from the wrong. Here, additional discovery may clarify whether a reasonable person in Powel’s situation would have been capable of ascertaining the substantial nature of the damages he suffered and for which he now seeks recompense. Thus, summary judgment is reversed and the cause remanded.

When the Predominant Purpose for the Use of Someone's Name or Identity is for Commercial Expoitation, Rather Than Artistic or Literary Expression, Such Use is Not Entitled to First Amendment Protection

Todd McFarlane created the successful comic book series, Spawn. One of the characters in the Spawn comic books was “Anthony ‘Tony Twist’ Twistelli.” McFarlane acknowledged in response to fan letters and in interviews that he named this character after Tony Twist, the former professional hockey player who played for the St. Louis Blues. Tony Twist filed suit against McFarlane for misappropriating his name and obtained a jury verdict for $24.5 million dollars. The Supreme Court reversed the verdict for instructional error in Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. banc 2003), and remanded the case for a new trial. In its decision, the Supreme Court found that Twist had made a submissible case on his right of publicity claim and further concluded that the use of Twist’s name was predominantly a ploy to sell comic books, rather than an artistic or literary expression. At the second trial, the jury also rendered a verdict in Twist’s favor and awarded him $15 million dollars in damages. On appeal, the verdict was affirmed in John Doe a/k/a Tony Twist v. McFarlane, No. ED 85283 (Mo. App. E.D. 2006).

In the first appeal of this case, the Supreme Court adopted a predominant use test for determining whether the use of a person’s name and identity is protected speech under the First Amendment. The Court rejected other tests that grant First Amendment protection to the use of another’s name if it is expressive in any way, regardless of commercial exploitation, and instead found a more balanced test. On the record here, the use and identity of Twist’s name has become predominantly a ploy to sell comic books and related products, rather than an artistic or literary expression. The thrust of the predominant use test is to distinguish between commercial exploitation and genuine expressive comment. It is unnecessary to determine the name’s particular commercial value in a monetary sense by reference to the plaintiff’s fame at a particular time. Whether the defendant’s predominant purpose was to exploit the commercial value of the plaintiff’s name cannot depend on how much monetary value the name had. The evidence established that MacFarlane named the character in his comic book after Tony Twist, the hockey player, and that use of the name was part of his marketing efforts to hockey fans. The predominant purpose of the use of the name “Tony Twist” was to sell comic books and related products, and not to make an expressive comment about Twist, the hockey player. Therefore, the use of the name was not entitled to First Amendment protection.

Expert Testimony is Admissible if Based on Reasonably Reliable Data and Will Be Helpful to the Jury

In the Tony Twist case, discussed above, Twist presented expert testimony to show that he lost between $3 million and $50 million dollars in endorsements as a result of MacFarlane’s associating him with the Spawn comic book. Twist also presented expert testimony that because he had spent time developing his hockey career and building good will with hockey fans, he was due compensation equal to 15% of the revenues generated by the Spawn products that used his name. MacFarlane contended on appeal that the trial court erred in admitting this expert testimony because it was speculative and unreliable. The Court of Appeals rejected MacFarlane’s argument.

In determining the admissibility of expert opinions under § 490.065, RSMo, trial courts generally are expected to defer to the expert’s assessment of what facts or data are reasonably reliable in their field. But the court must also independently determine whether the facts and data on which an expert’s opinion is based are otherwise reasonably reliable. In this determination, the trial court looks beyond the expert’s assessment of reliability. As a rule, questions as to the sources and bases of the expert’s opinion affect the weight, rather than the admissibility, of the opinion, and are properly left to the jury. Only in cases where the sources relied on by the expert are so slight as to be fundamentally unsupported should the opinion be excluded because testimony with that little weight would not assist the jury.

Still, an expert’s opinion must be founded on substantial information, not mere conjecture or speculation and there must be a rational basis for that opinion. Here, the experts testified that the materials they relied on were the kind of materials that people in their profession rely on in forming opinions and find reliable to forming these opinions. Defendant put on no evidence to contradict these assertions. In this situation, the expert’s own assessments are entitled to deference.

Otherwise, admissible expert testimony is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. The testimony must, nevertheless, be helpful to the jury. While cross-examination of the experts highlighted other information that the experts did not consider, these matters go to the weight of the testimony, not to its admissibility. The sources the experts relied upon were not so slight as to render their opinions fundamentally unsupported. There was substantial information to support the opinions, they were not based on mere conjecture or speculation, and there was a rational basis for the conclusions. Thus, it was not an abuse of discretion to admit the expert testimony.

Expert Witness May Be Cross-Examined About Censure By a Professional Organization

Sharon Miller went to St. Mary’s Health Center in Jefferson City after her water broke. Her obstetrician was Dr. Robert Ferris. Dr. Ferris decided to administer the drug Pitocin to speed up the labor process. Shortly after doing so, he went home. Approximately thirty (30) minutes later, the obstetrical nurse noted decelerations of the fetal heart and discontinued the Pitocin. Dr. Ferris advised the nurse to hydrate the patient and add oxygen. The nurse later paged Dr. Ferris and informed him that the fetal heart rate decelerations were continuing. Dr. Ferris returned to the hospital and did an emergency cesarean section. When Sharon’s daughter, Lindsey, was delivered, the baby was not breathing and had no heartbeat. Lindsey suffered a brain injury from lack of oxygen due to the compression of her umbilical cord prior to her birth. A medical negligence suit was filed on behalf of Lindsey Miller by her mother and against St. Mary’s Health Center and Dr. Ferris. During trial, the defendant’s attorneys cross-examined plaintiff’s expert, Dr. Barry Schifrin, about the censure he received from the American College of Obstetrics and Gynecology (ACOG). Dr. Schifrin’s curriculum vitae listed membership in, and resignation from, ACOG. The jury returned a verdict in favor of the defendants and the Court of Appeals affirmed in Miller v. SSM Healthcare Corporation, No. E.D. 86975 (Mo. App. E.D. 2006).

The admissibility of evidence lies within the sound discretion of the trial judge and will not be disturbed absent an abuse of discretion. It is well-established that the extent and scope of cross-examination in a civil action is also within the sound discretion of the trial judge and will not be disturbed unless an abuse of discretion is clearly shown. This is especially true for cross-examinations of expert witnesses. There is wide latitude to test qualifications, credibility, skill and knowledge, and value and accuracy of opinion. The jury was entitled to know about the censure because if might have affected Dr. Schifrin’s credibility as an expert witness. The jury is entitled to know information that might affect the credibility of the witness, and the weight to be given his testimony. Action taken by an organization with which the expert was once affiliated is a subject matter that goes to the credibility of that expert witness. Dr. Schifrin’s censure by ACOG for making false representations as an expert went directly to his credibility as an expert witness.

Plaintiff’s characterization of the ACOG censure as a collateral matter does not change the outcome. The trial court has discretion to allow cross-examination on collateral matters affecting the credibility of a witness. ACOG’s censure of Dr. Schifrin goes directly to his credibility as an expert and is an appropriate subject for cross-examination. The sources of information used to cross-examine a witness to test qualifications, credibility, skill or knowledge, and the value and accuracy of the expert’s opinion can include hearsay and do not need to be admissible as evidence. The evidence was properly admitted by the trial court because the evidence of the censure related to Dr. Schifrin’s credibility as an expert witness.

Drunk Driving, By Itself, Does Not Create Exception to the Firefighter's Rule

Police officer John Hallquist arrived at the scene of an accident, placed flares in the area and positioned his patrol car to block traffic. A drunk driver then entered the accident scene and was placed under arrest. Officer Hallquist went inside his patrol car approximately 15 minutes later and was then rear-ended by another drunk driver. Hallquist filed a personal injury suit against the first drunk driver, alleging that this driver’s conduct put Hallquist in a position of peril that resulted in his injuries. Hallquist further alleged that this reckless conduct fell under the exception to the firefighter’s rule. The trial court granted the defendant’s motion to dismiss and the Court of Appeals affirmed in Hallquist v. Midden, No. ED 86836 (Mo. App. E.D. 2006).

In considering whether a duty exists in a particular case, the court must weigh the foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against it and the consequences of placing that burden on defendant. No duty is owed to persons outside the orbit of the danger as disclosed to the eye of reasonable vigilance. When a person takes it upon himself or herself to engage in a risk-laden behavior, such as driving while intoxicated, there are a myriad of foreseeable consequences that may result from this behavior. Even upon application of the exception to the firefighter’s rule, there is only a mere probability that a consequence of driving while intoxicated would result in the arresting officer being struck by another drunk driver. This outcome is not foreseeable.

Assuming, arguendo, that a duty existed, the defendant’s conduct does not fall under the exception to the firefighter’s rule. That rule provides that a firefighter (or police officer) brought in contact with an emergency situation solely by reason of his or her status as a firefighter (or police officer) who is injured while performing his or her duties may not recover against the person whose ordinary negligence created the emergency. The firefighter’s rule safeguards a defendant’s liability in cases involving ordinary negligence, but it does not provide a license to act with impunity or without regard for the safety officer’s well-being. Exceptions to the application of the firefighter’s rule are: (1) acts involving reckless or wanton negligence or willful conduct, (2) separate and independent acts, and (3) intentional torts. The officer failed to allege any basis to support the wanton or reckless behavior exception, other than the defendant’s driving while intoxicated. It was not foreseeable that, while being arrested for drunk driving, the drunk driver’s conduct would cause a third party to collide with the officer. The mere allegation of drunk driving, without something more, is not legally sufficient to plead wanton or reckless behavior.

Workers' Compensation Act is Constitutional

Steven Watson worked as a lineman for Tri-County Electric Cooperative. While climbing an electric pole, without proper protection, to repair the lines, he was killed when he touched the wires. His parents filed a wrongful death suit against Tri-County and his supervisor, Bobby Newland. The trial court denied Tri-County and Newland’s motions for dismissal on the basis of the exclusive jurisdiction of the Workers' Compensation Act. The Supreme Court of Missouri, however, issued a writ of prohibition in State ex rel. Tri-County Electric Cooperative Association v. Dial, No. SC 87279 (Mo. banc 2006).

The workers' compensation law provides the exclusive remedy against employers for injuries covered by its provisions. This immunity from suit extends to employees of the exempt employer, albeit in a more limited fashion. Suits against employees personally for breach of the duty to maintain a safe working environment are preempted by the workers' compensation remedy. However, an employee may sue a fellow employee for affirmative negligent acts outside the scope of an employer’s responsibility to provide a safe workplace. The question of whether the employee’s injuries were the product of an accident or of an intentional act by the employer lies within the exclusive jurisdiction of the Labor and Industrial Relations Commission. The courts of Missouri cannot make that determination.

The workers' compensation law is not unconstitutional under Article I, Section 14 of the Missouri Constitution. That section does not create rights, but is meant to protect the enforcement of rights already acknowledged by law. The right of access means simply the right to pursue in the courts the causes of action the substantive law recognizes. While, traditionally, the common law may have provided a remedy against an employer, any rights that a plaintiff might have had at common law have been supplanted and superceded by the Workers' Compensation Act. The Workers' Compensation Act is an exercise of legislative authority rationally justified by the end sought and, hence, valid against the constitutional challenge presented here. The legislature has replaced any common law remedy that the plaintiffs may have had here against their son’s employer with the remedies provided by the workers' compensation law.

Property Owner is Deemed to Have Notice of Validly Adopted Zoning Ordinances

For many years, Larry Williams operated a salvage yard on property located within the City of Springfield. In 1995, the zoning ordinance that applied to his property was changed to allow salvage or automobile wrecking yards only if they were located more than 500 feet from a residential district. The salvage yard operated by Williams did not comply with this 500-foot requirement. In 1997, Williams added to his building without obtaining a building permit for the new construction. After receiving a complaint about the addition, the Springfield Department of Building Development Services notified Williams that his building constituted a nuisance in violation of the city’s code and requested that he cease his business operations. Williams appealed to Springfield’s Board of Adjustment, which denied relief to him. The Court of Appeals affirmed the board’s decision in Williams v. Department of Building Development Services, Case No. 27330 (Mo. App. S.D. 2006).

The scope of judicial review of a board of adjustment decision is limited to determining whether the decision was authorized by law and supported by competent and substantial evidence upon the whole record. Although the interpretation of a city ordinance is a question of law, the interpretation given to the language by the body in charge of its enactment and application is also entitled to great weight. HHC Medical Group v. City of Creve Coeur, 99 S.W.3d 68 (Mo. App. E.D. 2003). The term “non-conforming use” means a use of land that lawfully existed prior to the enactment of a zoning ordinance and which is maintained after the effective date of the ordinance, even though not in compliance with the new use restrictions. The prior use establishes a vested property right, and a new or modified ordinance may not be applied to require cessation of that use. The theory behind the non-conforming use doctrine is that applying new zoning restrictions to established uses of land would constitute a taking of private property without just compensation or due process. As such, the prior use, which is now considered “non-conforming,” is deemed legal or lawful and is allowed to continue, albeit in violation of current zoning laws.

Once an ordinance is validly enacted, a property owner is deemed to have notice of the existence and content of those regulations. Succinctly stated, every property owner in a city is charged with notice of the city’s zoning ordinances. As applied here, this simply means that when the city followed the statutory procedure for rezoning plaintiff’s property in 1995, he was deemed to have notice of (a) the zoning change, (b) the fact that his property became non-conforming upon the effective date of the zoning change, and (c) that his right to continue a non-conforming use was conditional and could last only so long as the non-conforming activity was lawful and nuisance free. To the extent plaintiff claims he was entitled to written notice of the changes in the zoning ordinances, because he was entitled to actual notice, such claim is refuted by these principles. Thus, when Williams enlarged the building at his auto salvage business without getting a permit, he was deemed to have knowledge of his legal non-conforming use of the land.

Juror Nondisclosure Was Unintentional

Sam Bradford filed a medical negligence action against BJC Corporate Health Services, alleging that physicians employed by it failed to properly diagnose an injury to his thigh. During voir dire, the attorney for BJC asked the panel whether anyone had ever been sued by a doctor or hospital for any reason or “for collection or something like that.” No one responded to this question. The jury returned a verdict against BJC for $250,000. BJC discovered that one of the jurors who participated in the verdict was a defendant in a collection action filed by her dentist five years earlier. BJC filed a motion for new trial on the basis of juror nondisclosure. At the hearing on the motion, the juror testified that she did not recall the suit at the time of voir dire and further testified that the lawsuit occurred as a result of an insurance dispute. She also testified that she had not been dissatisfied with the dental care she received and that had she recalled the lawsuit by her dentist, it would not have had any impact on her ability to sit as a juror in this case. The trial court found that the nondisclosure by this juror was unintentional and denied BJC’s motion for a new trial. The Court of Appeals affirmed in Bradford v. BJC Corporate Health Services, No. ED 86339 (Mo. App. E.D. 2006).

"[T]he trial court’s ruling with respect to juror misconduct [is reviewed] for abuse of discretion. . . . Voir dire affords counsel the opportunity to discovery potential biases of the members of the panel relevant to the type of suit being tried." " Parties to a lawsuit have a constitutional right to a fair and impartial jury. Voir dire is designed to ensure the selection of such a fair and impartial jury by allowing counsel to ask questions that permit counsel to learn facts which may form the basis for challenges for cause and which may be useful in executing peremptory challenges."

[V]enirepersons have a duty to answer the questions posed of them fully, fairly, and truthfully.

Juror nondisclosure will only be found after a clear question unequivocally triggers a duty to answer. Here, the question posed by counsel for BarnesCare was clear; therefore, [the court] must next determine whether the nondisclosure was intentional or unintentional.

Intentional nondisclosure occurs if the juror is reasonably able to comprehend the information solicited by the question asked by counsel, and where the potential juror actually remembers the experience or it is unreasonable for the potential juror to have forgotten it. If a court finds intentional nondisclosure, it effectively per se requires a new trial.

Considering the fact that the suit against the juror "occurred almost five years prior," coupled with the evidence that she "did not recall the suit at the time of voir dire," and that the lawsuit arose

from an insurance dispute, we do not believe the court abused its discretion in [concluding that the juror’s] nondisclosure was unintentional. "If the trial court finds the nondisclosure was unintentional, a new trial is not warranted unless the party seeking it proves prejudice that may have influenced the verdict. If the information withheld has no bearing on the present case, or on the ability of the potential juror to fairly evaluate the evidence, no prejudice results."

Here, the trial court did not abuse its discretion in denying BJC’s motion for new trial, based upon juror misconduct.

A School Does Not Have a Duty of Care to Students When They Are Traveling to an Off-Campus School Activity

The girls’ softball team at Lutheran South High School in St. Louis was playing in the championship game in Columbia. The school announced that students would be given an excused absence if they attended the game, but they would have to bring in a permission slip confirming their parents’ permission and they had to provide their own transportation to the game. Lee Davis, a student at Lutheran South, was killed in a collision while traveling to Columbia to see the game. He was a passenger in a car driven by another student. His parents filed a wrongful death suit against Lutheran South High School on the theory of negligent supervision and/or failure to supervise. The trial court granted the school’s summary judgment motion and the Court of Appeals affirmed in Davis v. Lutheran South High School Association, No. ED 86449 (Mo. App. E. D. 2006).

To successfully prove the tort of negligent supervision, a plaintiff must plead and prove: (1) a legal duty on the part of the defendant to use ordinary care to protect the plaintiff against unreasonable risks of harm; (2) a breach of that duty: (3) a proximate cause between the breach and resulting injury; and (4) actual damages to the plaintiff’s person or property. An often misunderstood aspect of the doctrine of negligent supervision, and which when ignored often leads to confusing analysis, is that the duty to supervise runs not to an activity, but rather to an individual. With regard to negligent supervision of a child, the gravamen of the cause is the supervisor’s obligation and ability to control the child and not the supervisor’s control over the instrumentality that causes the harm. The existence of a duty is a question of law for the court to determine.

This is a case of first impression in Missouri. Other jurisdictions, however, have addressed this issue and have found that when a school does not have physical control or custody of its students, the school does not owe a general duty of care to those students. Attendance at the championship game at Columbia was not mandatory. The accident did not occur at Lutheran South High School, but occurred on a highway while the student was traveling to the game. The school merely provided an opportunity for the students to attend the game without penalty of losing credit for a day’s worth of classes in order to support the girls’ softball team. The school did not have physical custody or control of the student on the morning of the accident and, under these circumstances, owed no duty of care to the student.