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

Tony Twist played in the National Hockey League for nine years. During his career, he was known as an enforcer for his aggressive tactics on the ice. Off the ice, he appeared on radio and television and became involved with charities. Todd McFarlane, an avowed hockey fan, created the comic book Spawn and added to the story line the character of a Mafia Don named Anthony Twistelli, known as Tony Twist. McFarlane acknowledged that his character was based on Tony Twist, the hockey player. Twist filed suit against McFarlane for misappropriation of his name. The jury awarded Twist $24.5 million dollars, but the trial court granted McFarlane's motion for judgment notwithstanding the verdict. The Supreme Court of Missouri, however, reversed and remanded for a new trial in John Doe a/k/a Tony Twist v. TCI Cablevision, et al, No. SC84856 (Mo. banc 2003).

The tort of misappropriation of name is one of four recognized torts falling under the general heading of invasion of privacy. Any interest protected by the misappropriation of name tort is the interest of the individual in the exclusive use of his own identity, insofar as it is represented by his name or likeness, and insofar as the use may be of benefit to him or others. Recently, development of the misappropriation of name tort has given rise to a separate yet similar tort termed the “right of publicity,” which is said to protect a person from losing the benefit of their work in creating a publicly recognizable persona. The elements of the two torts are essentially the same. To establish the misappropriation tort, the plaintiff must prove that the defendant used the plaintiff's name without consent to obtain some advantage. In a right of publicity action, the plaintiff must prove the same elements as in a misappropriation suit, with the minor exception that the plaintiff must prove that the defendant used the name to obtain a commercial advantage. Here, Twist maintains that the use of his name in the Spawn story line created an unmistakable correlation between Twist the hockey player and Twist the Mafia Don. Twist presented sufficient evidence to prove that his name was used as a symbol of his identity. Twist also presented sufficient evidence to establish the intent to gain a commercial advantage by using his name to attract consumer attention to Spawn comic books.

Not all speech is protected under the First Amendment and, in cases like this, courts often will weigh the state's interest in protecting a plaintiff's property right to the commercial value of his or her name and identity against the defendant's right to free speech. The use of a person's identity for purely commercial purposes, like advertising goods or services, or the use of a person's name or likeness on merchandise, is rarely protected. If a product is being sold that predominantly exploits the commercial value of an individual's identity, that product should be held to violate the right of publicity and not be protected by the First Amendment, even if there is some “expressive” content in it that might qualify as “speech” in other circumstances. Here, the use and identity of Twist's name has become predominantly a ploy to sell comic books, rather than an artistic or literary expression; and under these circum-stances, free speech must give way to the right of publicity. The case is remanded for a new trial.

Organ Transplant Service Immune From Liability If It Acted Without Negligence and in Good Faith

Frank Schembre suffered a heart attack and was transported to Jefferson Memorial Hospital. When his wife arrived, she was advised that he had passed away. She and her children were allowed to collect themselves in a quiet room at the hospital. While there, they were asked by a hospital employee about the donation of Mr. Schembre's organs. Initially, she declined to consent to any donation but, after discussing it with her children, agreed to donate his corneas. After further discussion, she agreed to donate approximately two inches of bone from his leg, but insisted that no donated organs be used for research. She completed the consent form and checked the boxes for donation of eyes and bone. When her husband's body was at the funeral home, she learned that her husband's entire eyeballs and all his lower leg bones were removed. She filed suit against the hospital and Mid-America Transplant Services, which harvested the corneas, bone and tissue. The trial court granted summary judgment to the hospital and MTS. The Court of Appeals affirmed for MTS, but reversed as to the hospital in Schembre v. Mid-America Transplant, No. ED 81539 (Mo. App. E.D. 2003).

This is a case of first impression in Missouri. Under the Uniform Anatomical Gift Act, a person who acts without negligence and in good faith is not liable for damages in a civil action. MTS bears the burden of proving it acted without negligence and in good faith in order to receive immunity from civil liability for harvesting the decedent's corneas, bone and tissue. MTS had a duty to follow the requirement set forth under the UAGA in order to complete a valid organ donation. Here, MTS obtained a written consent form. MTS presented testimony that the consent form appeared to be valid on its face with no limitations noted. Additionally, MTS offered evidence of its standard protocol when removing the eyes, bone and tissue, and testified that it followed these protocols. No one from decedent's family contacted MTS to limit or revoke the gift. MTS acted without negligence and in good faith when removing the decedent's eyes, bone and tissue and it was entitled to immunity from claims under the UAGA. The record reflects a factual dispute as to the representations made by a hospital employee to Mrs. Schembre in the course of procuring her consent to donate her husband's eyes, bone and tissue. Because of these factual disputes, the trial court erred in granting summary judgment in favor of the hospital.

Juror Misconduct Did Not Require New Trial

Madonna Williams filed a medical negligence action against Dr. Arthur S. Daus. She alleged that Dr. Daus negligently performed back surgery on her, which caused a cerebral spinal fluid leak and a cyst to develop. The jury returned a verdict for Williams and awarded her $1 million in damages. Dr. Daus filed a motion for new trial, alleging misconduct by a juror who visited the hospital where Dr. Daus worked, overheard comments regarding malpractice claims against him, and related that information to other jurors during deliberation. At the hearing on this motion, Dr. Daus presented the affidavit of one juror and the testimony of four jurors. Williams objected to this evidence. The trial court denied the motion for new trial and the Court of Appeals affirmed in Williams v. Daus, No. 25065 (Mo. App. S.D. en banc 2003).

The general rule in Missouri is that a juror's testimony about juror misconduct allegedly affecting deliberations may not be used to impeach the jury's verdict. A juror's testimony or affidavit may not be used to impeach the verdict as to misconduct inside or outside the jury room, whether before or after the jury is discharged. Courts recognize an exception to this general rule, however, and allow a party to attack a verdict on the grounds that juror misconduct occurred outside the courtroom, such as when a juror gathers evidence extraneous to the trial. A motion for new trial, based on a juror's acquisition of extraneous evidence, is left to the sound discretion of the trial court. A trial court's ruling on a motion for new trial based on juror misconduct is given great weight, and the appellate court may reverse that ruling only if it appears that the trial court abused its discretion in ruling on the issue of extraneous evidence or the issue of prejudice.

Jury deliberation must be guarded to bring finality to the litigation process and, in addition to the rule precluding a juror's testimony about the jury's deliberation, matters inherent in the verdict are not assailable by affidavit for the purpose of impeaching the verdict. When reviewing the denial of a motion for new trial, matters such as the weight of the evidence, credibility of the witnesses and resolution of conflicts in the testimony are not subject to appellate review. The trial court did not abuse its discretion in denying the motion for new trial on the basis of a finding that no juror misconduct occurred. The dissent argued that juror testimony is permissible where the misconduct occurs outside the jury room and that the testimony of the jurors established that one juror gathered evidence extraneous to the trial. The dissent concluded that since the medical competence of Dr. Daus was a critical issue in the case, and the gathered evidence portrayed him as medically incompetent, Dr. Daus was prejudiced and the trial court abused its discretion in denying the motion for new trial.

In Medical Negligence Case, Trial Court Did Not Err in Excluding Videotape Demonstration of Surgical Procedure

Jimmie Davolt filed a medical negligence suit against Dr. Thomas Highland. Davolt's suit alleged that Highland negligently performed neck surgery on Davolt. At trial, Davolt's expert testified that Highland negligently performed an incomplete decompression of Davolt's spinal cord and nerve roots by failing to completely remove the bone spurs from Davolt's vertebrae. Highland's attorney offered an 18-minute videotape demonstration of a similar surgery performed by a different doctor. It was offered for purposes of illustration. The trial court denied admission of the videotape. The jury returned a verdict for $700,000, and the Court of Appeals affirmed in Davolt v. Highland, No. WD 60590 (Mo. App. W.D. 2003).

The trial court is afforded broad discretion in admitting or excluding videotape evidence. Here, the issue is whether the materiality and probative value of the tape was sufficiently clear, and the risk of confusion and prejudice so minimal, that it was an abuse of discretion to exclude it. Although the tape may have aided Dr. Highland in his explanation of the procedure he performed on Davolt, its exclusion did not work a substantial and glaring injustice. Dr. Highland was allowed to explain the surgical procedure in graphic detail through the use of drawings, instruments and anatomical models. Showing the videotape to the jury would have been merely cumulative of his testimony. Also, the videotape was an edited version of a less-complex surgery than Dr. Highland performed on Davolt and was performed by a different doctor, who was a neurosurgeon, not an orthopedic surgeon like Dr. Highland. The trial court could have found the videotape's prejudicial effect far outweighed any probative value to Dr. Highland in assisting the jury to evaluate his testimony. The appellate court could not say that the trial court abused its discretion in excluding the videotape.

Property Owner Cannot Dam Stream to Divert Water From Others

A spring-fed stream flowed across property owned by the Edwards family and over adjacent property owned by the Edmondson family. The Edmondson family had farmed their property for more than 50 years and utilized the stream water for their livestock. Water had flowed continuously in the stream bed and the stream had always provided sufficient water for the livestock kept by the Edmondsons. The Edwards family constructed a dam in the path of the stream and diverted the water to two ponds they constructed on their property; the stream bed became dry on the Edmondson property. The Edmondson family filed suit against the Edwards family to have the pond and dam demolished and the stream bed restored. The trial court ordered the Edwards family to demolish the dam and pond and restore the stream bed. Edwards appealed and the Court of Appeals affirmed in Edmondson v. Edwards, No. 25089 (Mo. App. S.D. 2003).

The rights of the parties are derived from their status of riparian owners. A riparian owner is an owner of land bounded by a water course or through which a stream flows. The rights of a riparian owner in the water of a stream include the right to the flow of the stream in its natural course and in its natural condition, except for a reasonable use by other owners, including the limited right to use the water to irrigate his riparian lands. Defendant constructed the dam for recreational purposes. Although defendant owned the bed of the stream where it crossed his property, he did not have exclusive title to the water flowing in the stream even while it was on his land, nor did defendant have complete freedom of use or control of the water. The owner of the land through which the non-navigable stream flows is subject to the burdens imposed by the stream and is subject to certain limitations imposed in the public interest in the use of the water and control of the land constituting the bed and banks of the stream. One such limitation is that the landowner cannot divert the water in a natural watercourse to the exclusion of others. The use to which defendant put the stream was not reasonable in that it diverted the natural watercourse on his property to the exclusion of its long-standing use on his neighbor's property. Plaintiff was damaged by defendant's damming of the stream, denying plaintiff his riparian right to the flow of water on his land. Defendant's exclusive use of the water that flowed in the stream was unreasonable.

Defamation Action Must Be Based on Statements of Fact

The Southeast Missourian newspaper published an article on an entity called Community Sweat Equity Housing, which rehabilitated housing units for sale or lease. The article quoted comments from people familiar with the program who stated that some tenants were slow to make rent payments. Helen Sterling was one of the tenants identified in the article as being slow on her payments. She filed a defamation action against the newspaper and the trial court dismissed it. The dismissal was upheld by the Court of Appeals in Sterling v. Rust Communications, No. E.D. 81757 (Mo. App. E.D. 2003).

In Missouri, the elements of defamation are: (1) publication, (2) of a defamatory statement, (3) which identifies the plaintiff, (4) that is false, (5) that is published with a requisite degree of fault, and (6) damages the plaintiff's reputation. Whether language is defamatory and actionable is a question of law. The determination of whether a statement is defamatory in character only arises when the statement is an assertion or implication of fact. If the statements are capable of a defamatory meaning, the court must also inquire if one or more privileges would shelter the defendant from legal action. Those privileges offered by the First Amendment to the United States Constitution include the absolute privilege accorded statements of opinion which, even if made maliciously or insincerely, do not give rise to a libel cause of action. The court must examine the totality of the circumstances to determine whether the ordinary reader would have treated the statement as opinion.

Here, the statements which refer to “deadbeats” and “professional delinquents” are general statements by a real estate professional regarding the problems inherent in the business of property rental. In order to be defamatory, a statement must be clear as to the person addressed. Because those statements are not about the plaintiff, they cannot form the basis of her defamation action. Also, considered in context, and giving them their plain and ordinarily understood meaning, the words would naturally be interpreted as opinions which, even if false, have not been published with the requisite degree of fault required for a prima facie defamation action.