It is with some degree of apprehension that I assume the duties as author of this column. I hope that I can bring to it the same acute legal analysis, precise reasoning, and insightful wit of my two immediate predecessors (Messrs. Tom Vetter and Dale Doerhoff). Unlike them, however, I vow that I will use a photograph of me that is more recent than my high school graduation photo. If my tenure is marked with only a small fraction of the appreciation and gratitude I have heard expressed for my predecessors, I will be thankful.

In deference to my predecessor, Dale Doerhoff, who served as editor of The Flag from January 1991 to January 1998, I will limit my references to Gunga Din and Waynes World. Looking over some of his past columns, I was impressed with eye-catching headlines such as "Yes, Virginia, there is a Santa Claus." Out of respect to my predecessor, Tom Vetter, I will refrain from commenting on his June 1988 analysis of the "ancient common law Rule of Necessity" -- that a biased judge is better than no judge at all. Tom served as editor of The Flag from November 1969 (before, I think, I was born) to December 1990, and ended his final column with these memorable words: "Any errors of fact or law have been solely mine, save for those originating in the opinions reported." Members of The Missouri Bar are indebted to them for their service, as well as to their predecessors, Henry Andrae, Kelly Pool and Arno Becht.

Expert Testimony Permitted on Medical Causation

The recent case of Landers v. Chrysler Corporation, No. 72028 (Mo.App.E.D. 1997) reaffirmed not only the broad discretion of the trial court to admit expert testimony, but also the expanded scope of expert testimony. In this workers compensation case, the court upheld the trial courts admission of testimony by a psychologist regarding the causal relationship between the claimants mental injuries and his accident. The court noted that other jurisdictions have split on the issue of whether a neuropsychologist is qualified to testify as to causation of a brain injury. Recognizing the intent and purpose of § 490.065 RSMo., the appellate court upheld the admission of this testimony.

Initially, the Landers court noted that evidence of a causal connection between an accident and the injury may be established by the testimony of lay witnesses when the facts fall within the realm of lay understanding. "An injury, however, may be of such a nature that expert opinion is necessary to show that it was caused by the accident to which it is assigned . . ." Medical causation, which is not within the common knowledge of lay understanding, must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and the asserted cause.

While observing that some jurisdictions do not allow psychologists to testify regarding medical causation because they are not medical doctors, the court noted that a majority of jurisdictions have permitted a psychologist to give expert testimony regarding the causation of brain injuries. The court concluded that § 490.065 RSMo. is virtually identical to Rule 702 of the Federal Rules of Evidence and that, under § 490.065, expert testimony is properly admissible if it will assist the trier of fact to understand the evidence or to determine a fact in issue. "The essential test of expert opinion evidence is whether it will be helpful to the fact finder," and "the admission or exclusion of expert opinion testimony is a matter of trial court discretion."

The Landers court further observed that an expert witness may be qualified as such by the experts expeience, not just his or her education or license. Medical personnel, other than medical doctors, may be qualified to testify as to matters within the limited and precise range of their medical specialties. Reviewing the psychologists education, knowledge, and experience, the court concluded that his expert testimony as to the causation of the claimants brain damage should not be excluded simply because he was a psychologist, not a doctor of medicine.

Architects and Engineers Denied Monopoly on Design Build Projects

Prior court decisions have suggested that a general contractor cannot furnish design-build services unless it is registered as an architect or professional engineer. Both Missouri courts and federal courts interpreting Missouri law have broadly interpreted Missouri statutes to invalidate a contract containing architectural or engineering services to be performed by an entity that is not registered in Missouri as a design professional.

In Strain-Japan R-16 School Dist. v. Landmark Systems, Inc., No. 71903, (Mo.App.E.D. 1998), a general contractor was the successful bidder on a school district project. The work called for a pre-engineered metal shell. The cost of the engineering work was included in the contract amount. The plans were signed and sealed by professional engineers registered in Missouri, who were not employees of the general contractor. The court rejected the school districts argument that the contract was void, because it included architectural and/or engineering services provided by a general contractor who was not registered as a design professional in Missouri. The court elected to distinguish this case from the facts in the prior cases.

In this case, the court held that, to adopt the school districts position, would require all general contractors to register as architects or engineers and that this was not what the law intended. The court believed there was no purpose in giving registered architects and engineers a monopoly on the construction business. Here, the general contractor subcontracted with registered professional engineers for the engineering work that was required under the contract. Those engineering services were furnished to the contractor, who presented signed and sealed plans for the owners approval. The school district was entitled to a building that conformed to the specifications in its bid documents and the contractor was entitled to have a registered engineer prepare those plans in order to perform its contract for the school district. Although the owner may retain its own architect or engineer to accomplish this, that is not the only way it can be done.

In short, this decision appears to recognize the dilemma that general contractors had been faced with when the contract (explicity or implicity) required design services. Although there is still some uncertainty due to the inconsistencies between this court decision and the prior court decisions, it does appear that the prohibition against design/build services by a non-registered contractor is being relaxed.