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

David Wicklund was being treated for abdominal pain at SouthPointe Hospital after being admitted there for psychiatric treatment. When his condition worsened, he was admitted to intensive care. He was placed on a respirator, but died as a result of a major colon infection. His parents filed a medical malpractice and wrongful death suit against the doctors who treated him. At trial, David's parents presented expert testimony from a board-certified physician in general surgery. The expert testified that David should have undergone surgery to remove the infected portion of his colon and that there was a good chance surgery would have saved his life. He admitted, however, there was a small chance that he might not have survived surgery. The expert also testified on the standard of care as follows: "The strict definition of standard of care is what a reasonable and prudent physician would do in similar circumstances." He added, "What I think the standard of care really means is what's sensible care, what's good for the patient." The jury returned a verdict for the plaintiff and defendants filed post-trial motions for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court denied defendants' motions and the Court of Appeals affirmed in Wicklund v. Handoyo, No. ED 85595 (Mo. App. E.D. 2005).

A plaintiff in a medical malpractice case must introduce evidence from an expert witness establishing that the defendant failed to meet the requisite standard of care. The expert may not, however, simply testify that the defendant's conduct did not measure up to the standards of an individual member of the profession. Rather, the expert must testify that the defendant failed to meet the standards of the profession at large in order to make the plaintiff's case. Missouri's Approved Jury Instruction defines negligence as the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by the members of defendant's profession, and this statement must appear in the expert's testimony. Here, while plaintiff's expert could have stated the standard of care with greater precision, it sufficiently defined the standard of care. It is not necessary that the legal standard be recited in ritualistic fashion; his definition was sufficiently close to the standard of care set forth in MAI 11.06. Furthermore, the expert's second statement regarding his thoughts on the standard of care did not so confuse the jury as to eviscerate his first statement on standard of care.

In order to make a prima facie case of medical malpractice, the plaintiff must establish three elements: (1) proof that the defendant's act or omission failed to meet the requisite standard of care, (2) proof that the act or omission was performed negligently, and (3) proof of a causal connection between the act or omission and the injury sustained. To satisfy the causation element of his prima facie case, the plaintiff must establish that the defendant's conduct was both (1) the cause-in-fact, and (2) the proximate, or legal, cause of his son's death. In virtually all negligence actions, "cause-in-fact" causation is determined by applying the familiar "but for" test. The plaintiff must establish that, "but for the tortfeasor's conduct, the injured party would not have been damaged." More specifically, in failure to diagnose cases, such as here, causation is established through expert testimony that there is a reasonable degree of medical or scientific certainty that defendant's negligence caused the harm. When an expert merely testifies that a defendant's action or inaction might or could have yielded a certain result, such testimony is devoid of evidentiary value and fails to establish causation. Here, plaintiff's expert testified that there was an overwhelming probability that David would have survived surgery. When asked whether this opinion was to a reasonable degree of medical certainty, he responded in the affirmative. This testimony presented sufficient evidence of causation. While the expert admitted that the patient may not have survived surgery, this acknowledgement of medical reality does not constitute an inherent contradiction in his testimony regarding causation.

Fraudulent Sale of Unsafe Truck Supported Punitive Damages of $500,000

The Krysas went to Payne's Car Company to purchase a truck that could pull a 28-foot trailer. They were shown a 1991 Ford diesel that had the engine running. When they asked why the engine was running, they were told that it was to charge the battery. Mr. Krysa noticed that the hood was a different color than the rest of the truck and was told that it was because the truck had recently been repainted. The Krysas put down a deposit on the truck and came back several days later to make the final payment and pick it up. When they arrived, the engine on the truck was again running and they were told that this was done to warm it up because it was a cold day. Shortly after purchasing the truck, the Krysas had numerous problems with it. The heater did not work, it consumed excessive oil, and they had difficulty getting it started. They discovered the thermostat was missing and also found broken glass underneath the seats. The Krysas obtained a "CARFAX" report on the truck and discovered that it had 13 prior owners. They then had it inspected by an automotive expert, who determined that the truck was actually two vehicles welded together. He advised the Krysas to avoid driving the truck because of safety concerns. The Krysas filed suit against Payne for fraudulent misrepresentations and violation of the Missouri Merchandising Practices Act. The jury awarded the Krysas $18,000 in compensatory damages and $500,000 in punitive damages. The Court of Appeals affirmed in Krysa v. Payne, No. W.D. 64589 (Mo. App. W.D. 2005).

The assessment of damages is primarily a function for the jury. The appellate court should exercise its power to interfere with the judgment of the jury in trial court with hesitation and only when the verdict is manifestly unjust. The well-established purpose of punitive damages is to inflict punishment and to serve as an example and a deterrent to similar conduct. The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor. To the extent an award is grossly excessive, it furthers no legitimate purpose and constitutes an arbitrary deprivation of property. With regard to whether a punitive damage award is grossly excessive, the relevant constitutional line is inherently imprecise rather than one marked by a simple mathematical formula. The amount of punitive damages should reflect the enormity of the defendant's offense and be related to actual or potential harm resulting therefrom. The reprehensibility of the defendant's actions is the factor considered to be the most important indicium of the reasonableness of a punitive damage award. While the damage actually sustained by the Krysas was relatively small and was economic in nature, the record clearly supports a finding that Payne acted indifferently to or in reckless disregard of the safety of the Krysas in selling them a vehicle that Payne knew or should have known was not safe to drive.

Payne was aware that the truck had significant structural and mechanical problems or he recklessly disregarded obvious signs of such problems. Such behavior was particularly reprehensible in light of the potential danger to the safety of his customers. The record also supports a finding that this was not an isolated incident, but was part of a larger pattern of behavior on the part of Payne. The United States Supreme Court has recognized that repeated misconduct is more reprehensible than an individual instance of malfeasance and, therefore, a recidivist may be punished more severely than a first offender. Evidence that a defendant has repeatedly engaged in prohibited conduct while knowing or suspecting that it was unlawful provides relevant support for an argument that strong medicine is required to cure the defendant's disrespect for the law. Here, the jury could reasonably have determined that Payne had a pattern of selling vehicles without disclosing the previous damage to the vehicle. The evidence also supports a finding that harm sustained by the Krysas was the result of intentional malice, trickery or deceit.

Infliction of economic injury, especially when done intentionally through affirmative acts of misconduct or when the target is financially vulnerable, can warrant a substantial penalty. Low awards of compensatory damages may properly support a higher ratio than high compensatory awards if, for example, a particularly egregious act has resulted in only a small amount of economic damage. Given the egregious nature of Payne's acts and the magnitude of potential harm that could have been sustained by the Krysas had the problems with the truck not been discovered, the ratio of punitive to actual damages does not offend due process.

Evidence of Alcohol Consumption is Admissible if Otherwise Relevant and Material

R. J. Slater drove his vehicle to the intersection of Route B and Seeburger Road in St.Charles County and stopped at the stop sign. After traffic cleared, he looked both ways and pulled into the intersection. Before he pulled through the intersection, there was a crash. A motorcycle operated by Richard Zempel, traveling on Route B, collided with Slater. Zempel did not have a stop sign or other traffic signal. Slater said that he never saw the motorcycle and had no explanation as to why he had not. Police officers responding to the accident measured the motorcycle's skid marks at 84 feet from the intersection to the point where the motorcycle was lying in the eastbound lane of Route B. Zempel filed a personal injury action against Slater. At trial, a police officer testified that he detected a slight odor of alcohol on Slater when he was talking to him after the accident. He further testified that Slater acknowledged drinking a couple of beers. Slater passed a portable breath test and the officer determined that Slater's blood alcohol content was not above the legal limit, nor was it a probable contributing cause to the accident. Slater denied drinking anything prior to the accident and denied telling the officer that he had. The jury assessed 60% of the fault to Slater and 40% to Zempel, and awarded Zempel damages. The Court of Appeals affirmed in Zempel v. Slater, No. ED 85109 (Mo. App. E.D. 2005).

Evidence of a party's alcohol consumption is admissible if otherwise relevant and material. A witness's alcohol consumption is relevant and material to his ability to see, hear, perceive and observe. Any possible impairment of a witness's ability to recall is relevant to his credibility. For those reasons, Slater's alcohol consumption was relevant in this case. Moreover, because the case was submitted on the parties' comparative fault, the evidence of his alcohol consumption is especially relevant. The absence of evidence of erratic driving or other circumstances showing impairment go to the weight of the officer's testimony, not to its admissibility. The probative value of the officer's testimony was not outweighed by the possibility that the testimony would be prejudicial. The trial court took measures to diminish any undue prejudice by giving a limiting instruction, at Slater's request, which precluded the jury from considering the evidence that he had consumed two beers as an independent act of negligence.

Also, the trial court did not err by admitting evidence that Zempel had a habit of obeying the speed limit. From the rare occasions on which Missouri courts have addressed the admissibility of habit evidence, the following principles emerge. Habit evidence is relevant to prove that the conduct of the person on a particular occasion was in conformity with a habit or routine practice. The admissibility of habit evidence should be restricted and kept within narrow limits. A habit is a person's regular practice of meeting a particular kind of situation with a specific type of conduct, the doing of habitual acts may become semi-automatic. To be admissible, the habit must be sufficiently regular and uniform, or the circumstances sufficiently similar to outweigh the danger, if any, of prejudice or confusion. Here, the evidence that Zempel always obeyed the speed limit when riding his motorcycle was proper habit evidence and was admissible.

The Right to Poll the Jury is Absolute

Walton Construction, a general contractor, subcontracted with MGM Masonry to perform the masonry work on the construction of a new Home Depot store in Kansas City. During construction, Walton claimed that MGM failed to properly perform its work and withheld $242,000 from it. When Walton filed suit against MGM, MGM counter-claimed, alleging that Walton had mismanaged the project and delayed MGM's work. The jury returned a verdict against Walton on its claim and in favor of MGM on its counter-claim. Nine jurors signed each verdict form, but only eight of the jurors were the same on both verdicts. Counsel for Walton requested that the jury be polled, but the trial court refused that request. Walton appealed and the Court of Appeals reversed in Walton Construction Co. v. MGM Masonry, No. WD 63735 and WD 63771 (Mo. App. W.D. 2005).

Each party has the right to poll the jury. The procedural right to poll a jury has a purpose - and the right to poll is properly invoked whenever a party has a concern, even if based only on a hunch, that one or more jurors may not have actually intended or desired to vote as the verdict form indicates. Although there is no statute or court rule addressing the polling of civil juries, the right to poll a civil jury has long existed in Missouri. In any case, upon the appearance of any uncertainty or contingency in a jury's verdict, it is the duty of the trial judge to resolve that doubt.

Here, to the extent there was an apparent inconsistency in the verdicts, it could have been clarified at any time before the jury was discharged. The trial court can resolve inconsistencies or ambiguities by returning the jury to further deliberations or by polling the jury. Here, because the real reason for the apparent inconsistency cannot be determined, there is substantial doubt about the validity of the verdict. The failure to poll the jury eliminated the court's ability to address the apparent inconsistency. The failure to poll the jury in this case leaves a verdict of doubtful legitimacy. The court need not determine whether it agrees with Walton's argument that a failure to poll the jury upon request is per se reversible error in a civil case. In this case, because it is reasonable to believe that a jury poll would have addressed the apparent inconsistency, and because the court did have authority to poll the jury, it reversed and remanded the case for a new trial.

If This Ain't an Excited Utterance, Nothing Is

At 8:30 a.m. one morning, Michael and Laura Johnson heard the screams of a woman who was knocking on their door. When Mr. Johnson opened the door, he saw Jackie Washington, who was only half-dressed, in the street, frantically crying and shaking. Washington told him that her boyfriend had held her hostage all night at gunpoint. Johnson took Washington to his apartment, where Mrs. Johnson had called 911. The 911 operator asked questions of Ms. Washington through Mrs. Johnson, who then repeated the question to Ms.Washington. The answers of Ms. Washington could be heard on the 911 tape. Excerpts from the 911 tape were admitted into evidence during the trial against Ms. Washington's boyfriend, Lamont Kemp. In the excerpts from the 911 tape, Ms. Washington identified her boyfriend as Lamont Kemp and stated that he had a gun on her all night. Ms. Washington could be heard sobbing on the tape. Officers responding to the 911 call arrested Kemp in his apartment and found three stolen guns. A jury found Kemp guilty and he appealed. His conviction was affirmed in State of Missouri v. Kemp, No. W.D. 64501 (Mo. App. W.D. 2005).

The statements made by Ms. Washington to the 911 operator were not testimonial in nature and, therefore, did not violate Mr. Kemp's right under the confrontation clause. The statements were obtained right after Ms. Washington was running down the street half-naked in an hysterical state. The statements were made for the purpose of obtaining help and not for the purpose of aiding a police investigation or prosecution. The 911 operator was acting as a source of emergency help, not as a detective. All of the questions asked by the 911 operator were intended to gain an understanding of the emergency; the operator was not attempting to build a case for prosecution. Most state and federal courts have held that 911 calls are not considered testimonial in nature. Not only was there no indication here that there was an attempt to conduct an interrogation for prosecution purposes, but also the trial court extensively redacted the tape to leave only the rudimentary elements of the call, which largely overlapped with the spontaneous statements Washington made to Mr. Johnson when he found her hysterical on the street. Similarly, statements made by Ms. Washington to the Johnsons as they responded to this emergency did not fall within the category of statements prohibited under the Confrontation Clause.

The statements Ms. Washington made to the Johnsons fell within the excited utterance exception to the hearsay rule. That exception applies when a statement results from a startling or unusual occurrence sufficient to overcome normal reflection and the declaration is a spontaneous reaction to the startling event. The essential test for admissibility of a spontaneous statement or excited utterance is neither the time nor place of its utterance, but whether it was made under such circumstances as to indicate it is trustworthy. There are four factors to consider in deciding whether or not an excited utterance exists: (1) the time between the startling event and the declaration, (2) whether the declaration is in response to a question, (3) whether the declaration is self-serving, and (4) the declarant's physical and mental condition at the time of the declaration. Here, Ms. Washington made her statements to the Johnsons as she was frantically running down the street, barely clothed, tripping and crying. She did not have time for reflective thought. Under these conditions, the statements made to the Johnsons could not be characterized as anything other than an excited utterance, which clearly falls within the exception to the hearsay rule.

City Not Liable for Seizure of Car

After receiving complaints about junked vehicles in a lot owned by Travis Benton, the City of Higginsville sent him a certified letter notifying him that the vehicles must be disposed of within 30 days. Benton requested and received two three-week extensions. After the second extension expired, the city towed a junked vehicle from his property. Benton's lot was partially fenced and down the street from his home. After the car was towed, its ownership was checked and it was found to have been last titled in the name of a Kansas resident. Benton filed suit against the city, alleging violation of his civil rights under 42 U.S.C. §1983. The trial court granted summary judgment to the City and the Court of Appeals affirmed in Benton v. City of Higginsville, No. W.D. 64861 (Mo. App. W.D. 2005).

The car that was towed was visible from the street and located on a partially fenced, vacant lot. The lot did not contain Benton's residence or any other residence. The seizure of automobiles in open spaces does not involve any invasion of privacy. Here, the car that was towed was located in an open field where no one resided. Missouri courts have upheld city ordinances that authorize the towing of inoperable vehicles from private property. Benton did not have a legitimate privacy interest in the land where the car was seized and, therefore, had no basis for a § 1983 claim.

Moreover, the car was not titled in Benton's name. To determine whether an individual has received the process that the Constitution finds "due," the United States Supreme Court has set forth three factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. There may be a violation of due process where the procedures employed by governmental agents are so unreasonably careless to individual rights that they create the likelihood of an erroneous deprivation of the private interest of a citizen. Benton failed to notify the city of any interest he had in the vehicle. Section 1983 was enacted for the vindication of civil rights where there has been a true violation of a right. It does not exist so that citizens can find a reason to litigate and, thereby, to seek to recover attorney's fees under § 1988. Because Benton did not assert his rights to the city after he became aware that the vehicle had been towed, there is no reason he should be entitled to sue upon his claim that he was denied the right to additional procedures.

Affirmative Converse Jury Instruction Confused and Misled the Jury

Richard Jone went camping with his nephew. They went to sleep in a tent with the "windows" of the tent open. Later, they woke up because it was cold and Jone lit a propane-fueled lantern to warm the tent. The next morning, Jone woke up and found his nephew dead. Jone was treated at a hospital for carbon monoxide poisoning, which was the cause of his nephew's death. The lantern was the source of the carbon monoxide. Coleman manufactured the propane cylinder that was placed in the lantern, but did not manufacture the lantern. Jone filed suit against Coleman, alleging failure to warn based on strict product liability. At trial, Coleman submitted an affirmative converse instruction, stating that the verdict must be for defendant Coleman if the jury believed that plaintiff used a faulty lantern that emitted excessive carbon monoxide. The jury returned a verdict for Coleman, but the Court of Appeals reversed in Jone v. Coleman Corporation, No. ED 85710 (Mo. App. E.D. 2005).

A judgment will be reversed because of instructional error if the error materially affected the merits and outcome of the case. The party claiming instructional error has the task of showing that the instruction misdirected, misled or confused the jury. The use of an affirmative converse instruction is appropriate where the verdict director assumes as true or omits a disputed ultimate issue. A defendant may submit its theory of the case through the use of such an instruction, but the defendant must then produce independent evidence supporting those facts submitted in the instruction, and the facts must be sufficient in law to defeat plaintiff's claim. The affirmative converse instruction, although an approved MAI instruction, has generally been disfavored by Missouri courts and for good reason. The instruction tends to resemble a prohibited sole cause instruction, it often is a resubmission of the issues found in the verdict director, and it tends to mislead the jury. Here, Coleman's evidence was insufficient to support the affirmative converse instruction given to the jury. It did not meet its burden of presenting independent evidence to support its hypothesized issue of fact that the lantern was faulty. Further, its evidence did not establish that its warning was not a contributing cause in plaintiff's injuries.

In addition, the affirmative converse instruction confused and misled the jury. The instruction was, in essence, a sole cause instruction. It instructed the jury that if it found the lantern to be faulty, then it could not find Coleman in any way responsible for the cause of the injuries and death, despite a less than perfect warning on its propane cylinder. The instruction did not allow the jury to reach the crux of the case: whether Coleman failed to warn of the dangers of carbon monoxide on its propane canister when used in a reasonably foreseeable manner. The instruction also was confusing because of the adjective "faulty." Ordinarily, the word "faulty" would be considered a commonly used word that is easily understood by jurors. The dictionary defines "faulty" as "marked by fault, blemish or defect; imperfect." In a products liability action, however, faulty may be construed as a technical term, warranting a definition. Plaintiff's claim against Coleman was that Coleman failed to warn against the known hazards of carbon monoxide and that the lantern was used in a reasonably foreseeable manner by plaintiff, regardless of the lantern's imperfections. Due to the confusing affirmative converse instruction, the jury was unable to reach this issue.

Rape Shield Law Incorrectly Applied

James Davis was charged with statutory sodomy; it was alleged that he arranged for his 15-year-old daughter, M.C.D., to engage in sexual activity with Mr. Rogers. During discovery, Davis requested M.C.D.'s records from a hospital psychiatric center. He wanted to determine if she made any inconsistent statements. The state filed motions to quash the subpoena for these records and the trial court granted the motion, denying the records request. The jury convicted Davis, but the Court of Appeals reversed in State of Missouri v. Davis, No. WD 64128 (Mo. App. W.D. 2005).

Davis contends that the trial court erred in refusing to review, in camera, the psychological counseling records of M.C.D. He claims that his constitutional right to due process and right to confront witnesses overrides the privilege of confidentiality. The United States Supreme Court has held that a general privilege of confidentiality can be set aside for the court to conduct an in camera review when a defendant demonstrates a specific need for evidence in a criminal trial. The trial court could have determined if the records were actually privileged before quashing the subpoenas. An in camera review could easily identify records that are privileged, but the requesting party must make an adequate showing. A showing must be more than a mere possibility that the material contains relevant or exculpatory evidence. Here, Davis made a plausible showing of prior inconsistent statements by M.C.D. Thus, the psychological and counseling records should be reviewed in camera for relevancy and materiality after a determination of their privileged status.

Second, Davis contends the trial court erred when it prevented him from cross-examining M.C.D. about false allegations of rape and excluded extrinsic evidence of false allegations of rape. The trial court ruled that counsel for Davis could not question or admit extrinsic evidence of the prior false allegation because the matter was protected under the rape shield law. To exclude evidence of prior false allegations on the basis of the rape shield law is erroneous. Evidence of prior allegations by an alleged victim of sexual abuse, if that evidence is offered to impeach the credibility of the victim as a witness, does not violate the rape shield law. To determine whether the exclusion of evidence was harmless beyond a reasonable doubt, we examine the facts and circumstances of the particular case, including the nature of the charge, the evidence presented, and the role the excluded evidence would have played in the theory of defense. Here, Davis' defense was that M.C.D. fabricated the allegations against him and had a history of making false sexual assault allegations. We conclude that Davis was prejudiced by the exclusion of the prior false allegation. A prior false allegation made by a complaining witness is crucial to credibility. We cannot state that it was harmless error beyond a reasonable doubt to exclude the otherwise admissible evidence of M.C.D.'s prior false allegation.