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

The City of Springfield filed a condemnation action against Thompson Sales Company. After entry of a commissioner's award for $3,046,000, both parties requested a jury trial. At trial, the city offered evidence that the damages were $2,400,000, while Thompson presented evidence of damages between $3,630,000 and $5,500,000. The trial court granted the city's motion in limine to exclude evidence pertaining to the commissioner's award and condemnation negotiations. During voir dire, counsel for the city made references to greedy property owners who wanted to up the price and also referred to the possibility of taxes going up. The trial court permitted jurors to submit written questions to the witnesses before they were excused. The jury awarded Thompson $2,543,000. Thompson appealed and the Supreme Court of Missouri reversed in City of Springfield v. Thompson Sales Co., No. SC 83912.

References to jurors as taxpayers are improper. Such remarks necessarily have the effect of making the jurors tax- conscious and are designed to operate upon the self-interest of such taxpayers. While a strong admonition to the jury to disregard such improper comments can be sufficient in some cases to ameliorate the prejudice caused by references to taxes, it was not sufficient here. Counsel for the city appeared to suggest to the jurors that their taxes would be raised to pay the award. Further, these comments were made in the context of other statements referring to property owners being greedy and driving the price up before they sell. While any one of these comments might not be sufficiently prejudicial in isolation so as to require a mistrial, when considered together and in juxtaposition to each other, it is evident that the appeal to the jurors' concern about their taxes could not be cured by merely sustaining the objection. On these particular facts, a mistrial was required.

Also, the court reaffirmed its prior holdings that trial judges have the discretion to permit jury questioning. While excessive questions by one or more jurors of one or more witnesses should be avoided, limited jury questioning according to pre-set rules and clear guidelines may, in a particular case, assist jurors in clarifying and understanding the factual issues presented to them for decision. The judge and the parties should discuss, in advance, the jury questioning procedures to be utilized at trial.

Before Top-Level Employees Are Deposed, Other Factors Should Be Considered

A product liability action was brought against Ford Motor Company for injuries that the plaintiffs sustained when their Ford Bronco went out of control, allegedly due to a sudden tire tread separation. During discovery, Ford produced depositions and other discovery from prior Bronco cases. The plaintiffs then noticed depositions of the top four Ford executives. The trial court denied Ford's motion for a protective order, but the Supreme Court of Missouri issued a writ of prohibition in State ex rel. Ford Motor Co. v. Messina, No. SC83933 (Mo. banc 2002).

Ford sought to protect its "apex" employees from annoyance, embarrassment, oppression and undue burden and expense. Under the "apex" rule, an officer at the apex of the corporate hierarchy cannot be deposed unless the employee has special or unique knowledge, or the information is first pursued by less intrusive means. The Court declined to adopt the apex rule. Instead, depositions of top-level decision-makers should proceed in accordance with Supreme Court Rule 56.01. Opposing litigants may depose top-level executives who have discoverable information. Even so, an opposing litigant may not use the threat of a burdensome deposition as a bargaining chip or annoying tactic. A top-level employee, like anyone else, should not be deposed unless the information sought is relevant or reasonably calculated to lead to discovery of admissible information. The party seeking discovery has the burden of proving discoverability. Even if the top-level employee has discoverable information, the organization or its top-level employee may seek a protective order. The party or person opposing discovery has the burden of showing "good cause" to limit discovery. For top-level employee depositions, the court should consider: (a) whether other methods of discovery have been pursued, (b) the proponent's need for discovery by top-level deposition, and (c) the burden, expense, annoyance and oppression to the organization and the proposed deponent.

Here, the plaintiff did not pursue the same information by available, less burdensome means. Plaintiff had not deposed other employees nor sought the information through less intrusive means. Unnecessarily deposing the top executives at this time is annoying, unduly burdensome, expensive and oppressive. The plaintiffs should not begin a tangential inquiry by deposing Ford's top executives. The undue burden and expense, annoyance and oppression outweigh the need for information, which is available by other means. Based on the record at this time, Ford was entitled to a protective order.

Expert Testimony Cannot Be Used For Res Ipsa Loquitor Case in Medical Negligence Action Unless Missouri Adopts Majority View

Glen Spears was admitted to Capital Region Medical Center, where cardiac bypass surgery was performed on him. He was hospitalized for approximately one week and later determined that he had contracted Hepatitis C. He filed suit against Capital Region, alleging that, based upon the incubation period for the Hepatitis C pathogen, he contracted the disease while hospitalized there. His claim for medical negligence against Capital Region was based on the res ipsa loquitor doctrine. He further requested that he be permitted to present expert testimony in support of his res ipsa loquitor case. The trial court granted summary judgment to Capital Region and the Court of Appeals affirmed in Spears v. Capital Region Medical Center, W.D. 59842 (Mo. App. W.D. 2002).

In a standard medical negligence action, the plaintiff is required to establish: (1) an act or omission by the defendant that was not in keeping with the degree of skill and learning ordinarily used under the same or similar circumstances by members of defendant's profession, and (2) that such negligence or omission caused the plaintiff's injury. Where applicable, however, a plaintiff can invoke the doctrine of res ipsa loquitor and avoid the need for direct proof of negligence and thereby directly proceed to a jury trial. The doctrine serves to aid an injured party who does not know and cannot plead the specific cause of the injury. A plaintiff can make a submissible case under res ipsa loquitor by demonstrating: (1) the occurrence resulting in injury does not ordinarily happen in the absence of negligence, (2) the instrumentalities that caused the injury are under the care and management of the defendant, and (3) the defendant possesses either superior knowledge of or means of obtaining information about the cause of the occurrence.

In Missouri, a plaintiff cannot use expert testimony to establish a res ipsa loquitor case in a medical negligence action. Instead, lay persons must know, based on their common knowledge or experience, that the cause of the injury does not ordinarily exist, but for negligence of the party in control. The prohibition on use of expert testimony in a res ipsa loquitor case is now the minority rule. The issue is hotly debated in academic journals and judicial decisions. The majority view of allowing expert evidence in res ipsa loquitor cases involving medical treatment seems most equitable and the Supreme Court is urged to revisit this area. Until it does, however, expert testimony cannot be used in such cases.

Where Employer Breaches Employment Agreement, It Cannot Enforce Covenant Not to Compete Against Employee

Kimberly Neale worked as an apprentice real estate appraiser for Ozark Appraisal Service for several years before she became a certified appraiser. In 1995, she was paid 50% of each appraisal she completed. In December of 1996, she was told to sign an agreement or she would be fired. The agreement included a covenant not to compete that prohibited her from practicing as a real estate appraiser for a period of one year within 95 miles from the office of Ozark Appraisal Service. The employment agreement also permitted Neale to be terminated for misconduct, such as stealing, misrepresentations or unprofessional conduct. In 1999, Ozark Appraisal Service changed to a centralized accounting system and assessed her $253 for her monthly share of the accounting system charges. She objected to using the accounting system and, after a heated discussion, was informed that she would use the accounting system "or else." She then gathered her things and left. Ozark Appraisal Service then turned off her phone, changed the locks and refused to give Neale her mail. After Neale began operating her own appraisal service, Ozark Appraisal filed suit against her seeking injunctive relief. The trial court found that the non-compete agreement was unenforceable and the Court of Appeals agreed in Ozark Appraisal Service v. Kimberly Neale, No. 24141 (Mo. App. S.D. 2002).

A permissible purpose of a non-compete agreement is to protect an employer against unfair competition by a former employee without imposing unreasonable restraint on the former employee. The burden of demonstrating the validity of a covenant not to compete is on the party seeking enforcement. Where an employer breaches an employment agreement, it is barred from seeking enforcement of a covenant not to compete. A party to a contract cannot seek to enforce its benefits where it is the first to violate the terms of the contract. The question of whether an employer is precluded from enforcing a covenant not to compete as a result of its own breach is largely an issue of fact for the trial court. There was ample evidence to establish that Ozark Appraisal terminated Neale after she objected to the accounting system. She was not terminated for breach of any of the conditions in the employment agreement. Because Ozark Appraisal materially breached the employment agreement with Neale, it was not entitled to enforce the covenant not to compete.

When Statistical Rarity of Injury is Defense to Medical Negligence Action, Evidence of Other Occurrences is Relevant

Deniece Gingerich had delivered two children by Caesarian section. While pregnant with her third child, she was treated by Dr. Kline. At her last regular appointment with Dr.Kline, he scheduled her for labor induction two days later. After she arrived at the hospital, Dr.Kline began the induction, but her water did not break until the following morning. For several hours she was in excruciating pain and was fully dilated. During this time, the baby's heart rate dropped from 150 beats per minute to approximately 60 beats per minute. When Dr.Kline returned to the delivery room, he ordered an immediate Caesarian section. When the baby was born, he was unable to breathe on his own and was intubated. Upon examination, it was determined that the baby was mentally retarded, would have seizures and cerebral palsy, and would have limited life expectancy. Mr. & Mrs. Gingerich eventually consented to having him extubated, and he later died. His condition was caused by oxygen deprivation. Mrs. Gingerich was diagnosed as having suffered from a catastrophic uterine rupture. The Gingeriches brought a wrongful death action against Dr. Kline. Both he and his expert testified that the risk of catastrophic uterine rupture was one in 5,000. The Gingeriches offered evidence that within a year after their son was born, another patient of Dr. Kline's also suffered a catastrophic uterine rupture during a vaginal birth after Caesarian section. The trial court refused to admit this evidence. The jury returned a verdict in favor of Dr. Kline, but the Court of Appeals reversed in Gingerich v. Kline, No. WD 59182 (Mo. App. W.D. 2002).

A plaintiff is not permitted to introduce evidence of allegedly similar instances of prior negligence of the defendant in order to show that the defendant was negligent on this occasion, also. Nevertheless, evidence of similar instances is admissible if relevant on other issues. For example, when a material part of one party's defense is to show the infrequency of an occurrence, or that an occurrence is very rare, an opponent may present relevant evidence to refute the inferences raised by that defense. Here, Dr. Kline and his expert both testified that the risk of catastrophic uterine rupture during a VBAC is only one in 5,000. Dr. Kline made the frequency of the injury a material issue by arguing the statistical rarity of catastrophic uterine rupture during a VBAC. Because Dr. Kline opened up the subject, he cannot complain about evidence offered by the plaintiffs to refute the inferences he raised. Because the statistical rarity of such occurrences was part of his defense, the probative value of the occurrence involving another patient of Dr. Kline's within the same relative time frame as Ms. Gingerich's rupture outweighed the prejudicial effect of such evidence. Thus, the trial court erred in excluding evidence of the catastrophic uterine rupture in another of Dr. Kline's patients. Only the occurrence of the other catastrophic uterine rupture is admissible, however, not the ensuing lawsuit or the settlement of that lawsuit.

In Medical Negligence Action, Physician May Testify as an Expert Without Being a Specialist in the Practice Area

Sally Brooks was given medication known as tissue plasminogen activator ("tPA") while being treated at the emergency room. After receiving this drug, she suffered from bleeding in her spinal canal and also suffered neurological problems that required two surgeries to remove blood clots on her spinal cord. After these operations, she was seriously debilitated, became incontinent and needed a walker to walk. In her medical negligence action against the doctor and hospital, other physicians testified that it was negligent to administer tPA to her because there was no verification of elevated ST segments. The jury awarded her $350,000 against the hospital and her physician. The trial court granted a new trial on the grounds that the physicians testifying for Ms. Brooks were not specialists in this area, but the Court of Appeals reinstated the jury verdict in Brooks v. SSM Healthcare, No. 23664 (Mo. App. S.D. 2002).

To establish a submissible case of medical negligence, the plaintiff must establish, typically by expert testimony, that the physician failed to use that degree of skill and learning ordinarily used by doctors under the same or similar circumstances and that this negligence caused the injury to the plaintiff. Generally, a physician is competent to testify in a specialty field in which he or she has limited experience and training. When an expert from a particular profession is called to testify, it is normally not required that he or she be a specialist in that particular branch of the profession. Here, the combined experience and training of the physicians called by the plaintiff provided a sufficient basis for them to testify about the standard of care for a physician who was treating the plaintiff. The testimony of the doctors offered on behalf of the plaintiff was properly admitted.

Compensable Taking May Result From Unlawful Municipal Regulation

Gwenetha Glenn and four other residents of Grant City filed suit against the city, challenging an ordinance adopted by the city in 2000 that prohibited them from keeping livestock on their property. The ordinance prohibited residents from keeping livestock on land that was not zoned agricultural, and further authorized the city to enter someone's land, seize the animals and sell them if impoundment fees were not paid. In their suit, the plaintiffs alleged that livestock had been kept on their property for more than 100 years prior to the passage of the ordinance. They also alleged that the action of the city constituted a taking in violation of the United States Constitution, the Missouri Constitution and 42 U.S.C. §1983. The trial court dismissed the suit, but the Court of Appeals reversed in Gwenetha Glenn v. City of Grant City, No. W.D. 59807 (Mo. App. W.D. 2002).

The plaintiffs alleged that because they had kept livestock on their property for more than 100 years prior to the adoption of the ordinance, they had a pre-existing, lawful non-conforming use of their land. A regulatory taking can result from the imposition of an invalid regulation. A regulatory taking occurs when a regulation enacted under the police power of the government goes too far. The United States Supreme Court has held that a taking can occur in two situations: (1) when a regulation causes an actual physical invasion of property, and (2) when a regulation denies all economically beneficial or productive use of the land. If the government's action does not fall into one of the per se categories, a factual inquiry into the specific facts of the case is necessary. Missouri courts use the same factors followed by the United States Supreme Court in determining whether a taking has occurred. Those factors are: (1) the economic impact of the regulation, (2) the extent to which the regulation has interfered with distinct investment-backed expectations, and (3) the character of the government action. Missouri courts have also adopted the United States Supreme Court's standard that a compensable taking occurs when the regulation does not substantially advance a legitimate state interest.

Missouri courts have applied the takings analysis in cases involving non-zoning, as well as zoning, ordinances and have even extended the rationale protecting non-conforming uses beyond its traditional application to zoning cases. For example, takings can occur when a municipality's ordinance arbitrarily deprives a property owner of a vested property right to operate an existing, lawful business through a "police power" ordinance. Similarly, zoning cases have frequently recognized that an unconstitutional taking would occur if a municipality was permitted to terminate a pre-existing, lawful and non-conforming use of land. An appropriate exercise of a municipality's police power does not offend the constitution, even though such actions may interfere with an individual's rights. The test of the validity of the exercise of the police power is always reasonableness. Based on the allegations in this suit, it cannot be said that the ordinance in question was a proper exercise of the city's police power.

Arbitration May Be Waived

Loren Watts signed a rental agreement with Getz Recycling for the use of a rock-crushing machine. The rental agreement contained a clause requiring all disputes to be submitted to arbitration. The machine was delivered to Watts and he paid one month's rent, but refused to pay more. Getz filed suit in Jackson County for breach of contract and replevin. Watts filed a counterclaim, asserting breach of warranty and misrepresentation on the grounds that the machine was useless for its intended purposes. Getz filed a temporary restraining order request, along with a request for an order of replevin. At the show-cause hearing, an order was entered requiring Watts to return the machine upon the posting of a $45,000 replevin bond by Getz. Then Getz filed a motion to stay the court proceedings and to enforce the arbitration clause of the rental agreement. The trial court denied that request and the Court of Appeals affirmed in Getz Recycling, Inc. v. Watts, No. W.D. 59717 (Mo. App. W.D. 2002).

Generally, a court must stay litigation if it determines that the parties agreed to arbitrate. The right to arbitrate may, however, be waived. A party waives its right to arbitrate if it: (1) had knowledge of the existing right to arbitrate, (2) acted inconsistently with that right, and (3)prejudiced the party opposing arbitration. There is a strong presumption against waiver of arbitration. Here, Getz acted inconsistently with its right to arbitrate by initiating suit for breach of contract and replevin in the Jackson County Circuit Court. Nonetheless, a court cannot find waiver without also finding prejudice and the burden of showing prejudice is on the party seeking waiver.

Delay in seeking to compel arbitration does not itself constitute prejudice; but delay and the moving party's trial-oriented activity are material factors in assessing prejudice. No case in Missouri has dealt squarely with the issue of whether the grant of injunctive relief or an attempt to replevin would result in a waiver of the right to arbitrate. The federal courts are split on this issue. Here, there was sufficient trial-oriented activity by Getz to effectively waive its right to arbitrate. By filing a lawsuit with the intent to eventually invoke arbitration, Getz deprived Watts of the main goals of arbitration, i.e. speedy and low-cost dispute resolution. In effect, for the purpose of invoking arbitration, Getz misused the judicial process. Getz has waived its right to arbitrate.

Where Amendment to Statute is Procedural, Retrospective Application is Proper

In 1999, the Missouri General Assembly amended §334.655, RSMo, to bar a candidate from taking the physical therapist assistant licensing examination more than three times. Holly Boston failed the licensing examination three times and applied in October of 1999 to take it a fourth time. The State Board of Registration for the Healing Arts denied her application and she sought judicial review, contending that the new "three strike" provision should only be applied prospectively and should not be applied to her. The circuit court allowed her to take the exam, but the Court of Appeals reversed in State Board of Registration for the Healing Arts v. Boston, No. W.D. 59989 (Mo. App. W.D. 2002).

Article I, §13 of the Missouri Constitution bars retrospective application of a statute, except where: (1) legislative intent is clearly manifested that the statute is to be applied retrospectively, and (2) the statute is procedural only and does not affect any substantive or vested right. The amended statute bars any applicant who "has failed" the licensing exam three times. To interpret the "has failed" provision to exclude past examination failures would render the past tense language of the statute a nullity. To give full effect to the plain language of the statute, it must be concluded that the legislature intended to include exam failures that occurred prior to the effective date of the amendment.

Moreover, the amendment did not impair any vested right Boston had. A vested right has been defined as a right that is fixed, accrued or absolute; something more than a mere expectation. Professional licensing in the healing arts is a privilege granted by the state. Given the overriding interest in protecting the public, courts have held that licensing statutes confer no substantive rights upon applicants seeking licensure. The Supreme Court of Missouri has recognized that there is no such thing as a vested right in the practice of medicine. Prior to the amendment, the statute did not confer upon Boston a vested right to take the examination; it merely set forth the procedural requirements of the examination. A statute that is procedural only, affecting no substantive rights, does not fall within the constitutional ban on retrospective laws.

Estoppel Against City Requires Affirmative Misconduct

In 1998, the Baileys purchased land that was partially within and partially outside the city limits of Goodman, Missouri. There were two watering tanks on the property for use by cattle. A city water line ran to the part of the property that was within the city limits and a meter for the water line was also located within the city limits. The Baileys extended the water line an additional 100 feet and connected it to the residence they built, which was outside the city limits. They also connected the line to two new water tanks that they placed on their property outside the city limits. Shortly after these alterations were made by the Baileys, other residences served by the same water line reported a sharp reduction in their water pressure. At times, their water flow was reduced to a trickle. Testing by the city showed that there had been 20 pounds of water pressure in the line prior to the Baileys connecting the line to their house, and afterwards the water pressure dropped to eight pounds. When the city requested that the Baileys cease and desist using the water line for facilities on their property outside of the city limits, they filed suit against the city to prevent it from terminating the water service. The trial court found that the city was estopped from restricting or terminating water service to the Baileys' property, but the Court of Appeals reversed in Bailey v. City of Goodman, No. 23970 (Mo. App. S.D. 2002).

Estoppel is not favored in the law and rarely applies to acts of a governmental body. A party asserting estoppel must prove all required elements of estoppel in order to prevail. Those elements are: (1) a statement or act by the government entity inconsistent with the subsequent government act, (2) the citizen relied on the act, and (3) injury to the citizen. In addition, the governmental conduct complained of must amount to affirmative misconduct. Here, there was no affirmative misconduct by the city. The Baileys connected city water to the improvements they made that were outside the city limits; they did not seek approval from the city before connecting the improvements to the city water line. The city was faced with significant diminished water supply for some of its residents, because the Baileys diverted city water to improvements they made outside the city limits. There was no affirmative misconduct by the city that supports estoppel against it.