Its only a Holiday if the Legislature Declares it a Holiday

In Heinen v. Healthline Management, Inc., No. 71814 and 7186, Missouri Court of Appeals for the Eastern District, the trial court sustained the defendants motion for new trial on December 2, 1996, 95 days after the motion had been filed. The case hinged on whether the day after Thanksgiving was a legal holiday within the meaning of Supreme Court Rule 44.01(a); if it was, the 90-day period for ruling on the motion was extended to Monday, December 2. If not, the motion for new trial was deemed to have been overruled on Friday, November 29 and the trial courts order on December 2 was a nullity. In a case of first impression, the Court of Appeals held that Friday, November 29, the day after Thanksgiving, was not a legal holiday and, therefore, the motion for new trial was deemed overruled on that day and the trial courts order of December 2 was nullified.

The court determined that the day after Thanksgiving was not a legal holiday as specified by the Missouri Legislature in §9.010, RSMo. The court rejected the defendants argument that two memoranda -- one from the State Courts Administrators office and one from the presiding judge of the Twenty-Second Judicial Circuit -- both permitted circuit courts to be closed for business on November 29, since the Supreme Court and the office of the State Courts Administrator would be closed on that day. The court held that these memoranda did not make the Friday after Thanksgiving a legal holiday, since a legal holiday must be designated by legislative enactment.

The purpose of Supreme Court rules containing time limitations is to set a reasonable but absolute limit on the time during which the trial court may rule on motions, and that purpose is best served by confining the definition of legal holiday to those days specifically designated as holidays by state statute. To permit the definition of legal holiday to turn upon how an appellate court might ultimately interpret the language of a memorandum invites confusion and misunderstanding. In short, a "legal holiday" as used in Supreme Court Rule 44.01(a) means only those days specifically designated as public holidays by proper legislative enactment.

As Rodney Dangerfield Used to Say: You Can Go to a Boxing Match and Watch a Hockey Game Break Out

In McKichan v. St. Louis Hockey Club, No. 72261 and 72267 (Mo.App. E.D. 1998), the jury awarded the plaintiff $175,000 for injuries he sustained as a professional hockey player when one of the players for the St. Louis Hockey Club hit him with his stick after the whistle had blown. The defendants player received a penalty and was suspended. The Court of Appeals agreed that the conduct at issue was a risk inherent in professional hockey and one that was assumed by the plaintiff; it reversed the jury verdict in favor of plaintiff.

Initially, the court found that legal issues involving amateur sports differ from those involving professional sports. Rough play is commonplace in professional hockey. Anyone who has attended a professional hockey game or seen one on TV has observed the violent nature of the sport. Hockey players trip other players, slash them with their sticks and fight on a regular basis -- often after the referee blows the whistle. The court held, as a matter of law, that the conduct of defendants player who injured the plaintiff was, for better or worse, a "part of the game of professional hockey" and was not actionable.

Peer Review Records Discoverable by Doctor who Sued Hospital

In State ex rel. Health Midwest Development Group v. Daugherty, No. 80258 (Mo.banc 1998), the Supreme Court held that any privilege for peer review committee records is strictly construed and does not apply at all when a hospital is sued for its peer review committees actions that restrict staff privileges. In this case, a doctor sued a hospital where he had privileges under several contractual and tort theories. After peer review proceedings, his privileges were initially restricted and later reinstated. During discovery, the doctor requested all peer review committee records pertaining to suspensions or other disciplinary actions taken at the hospital over a 10-year period. The hospital objected on the grounds that §537.035, RSMo. only permitted discovery of peer review committee documents related to the plaintiff doctor. The doctor claimed that he was treated differently from other doctors in similar situations and argued that how peer review committees treated other doctors was relevant to his claim.

In finding that all the peer review committee records requested by the plaintiff doctor were discoverable, the Supreme Court concluded that, since privileges are impediments to the truth, statutes creating them are strictly construed. The peer review privilege in §537.035 RSMo. does not apply at all when an entity is sued for actions of its peer review committee that restrict staff privileges. In response to the hospitals contention that the production of such documents would violate physician-patient privileges, the Court further held that if such privilege was applied to prohibit the discovery of peer review committee records, then the words in §537.035 RSMo. that allowed discovery of such records when an entity is sued for disciplinary action taken against a physician would have no meaning. In the absence of a specific statutory privilege, peer review documents are discoverable in such situations.

The Court did, however, direct that identifying characteristics regarding patients be redacted and that the trial court conduct an in camera inspection of the documents to ensure that patients are protected from humiliation or embarassment. Finally, the Supreme Court determined that a discovery request covering a 10-year period was not per se objectionable. The trial court was, however, instructed to monitor the discovery process and make such orders pertaining to discovery that were warranted upon a showing of good cause.

For Retaliatory Discharge Suit, the Workers Compensation Claim Must be Exclusive Cause of Discharge, Not Just Directly Result in Termination

In Crabtree v. Bugby, No. 80441, (Mo.banc), the Supreme Court reversed a jury verdict for the plaintiff on her claim for retaliatory discharge. The verdict directing instruction allowed the jury to find for the plaintiff if she was terminated as a direct result of her workers compensation claim and did not require the workers compensation claim to be the exclusive cause of the plaintiffs termination. Citing Hansome v. Northwestern Cooperage Co., 679 S.W.2d 273 (Mo.banc 1984), the Court concluded that §287.780 RSMo. allows a civil action by an employee where there was an exclusive causal relationship between the employers discrimination against (or discharge of) an employee and the employees exercise of workers compensation rights under Chapter 287, RSMo. The Court held that the verdict directing instruction using "as a direct result of" language, rather than "exclusive cause" language, misstated the law and would permit an employee who was fired for tardiness, absenteeism, incompetence or other grounds to maintain a cause of action for discharge if the employee alleged that one of the causes of the discharge was for exercising workers compensation rights. Such an interpretation would encourage marginally competent employees to file the most petty clams in order to enjoy the benefits of heightened job security.

While the workers compensation law is given a liberal instruction to compensate workers for job-related injuries, it is not to ensure job security. Nothing in this statute expressed any intent to abolish the employment at will doctrine for those who have filed workers compensation claims and the Court declined the invitation to give the statute such an expansive construction. In his dissent, Judge White commented that nothing in §287.780, RSMo. suggests that an employee must prove that he or she had been discharged "solely" or "exclusively" because they had filed a workers compensation claim.

Corporation has no Right of Privacy or Right of Publicity

In Bare Foot v. Big Foot, No. 72671 (Mo.App. E.D. 1998), the Court of Appeals upheld the dismissal of Bare Foots suit against Big Foot, based on invasion of the right of publicity. The court held that while Missouri courts recognize the privacy right against the appropriation of anothers name or likeness, corporations are not protected by a right of privacy. Since Bare Foot was a corporation, it had no cause of action against Big Foot for Big Foots appropriation of its name or likeness.

The court also addressed Bare Foots claim based on the right of publicity, and observed that Missouri courts had not previously resolved this issue. The right of publicity is recognized as a cause of action distinct from the right of privacy and allows a person to recover damages for pecuniary gain from the misappropriation of his or her likeness. It protects a person from losing the benefit of their work and efforts in creating a publicly recognizable personna. While noting that some states have recognized a right of publicity in individuals or deceased persons, a corporation does not have such a right. The right of publicity creates a cause of action only for the misappropriation of a persons likeness. Since there is no right of publicity in a corporation, Bare Foots suit failed to state a claim upon which relief can be granted, and the trial court properly dismissed it.

Punitive Damages Require Clear and Convincing Evidence

In Cole v. Goodyear Tire and Rubber Company, No. 72045, Missouri Court of Appeals for the Eastern District, the plaintiff obtained a jury verdict of $7,800,000 in compensatory damages and $18,400,000 in punitive damages for injuries he sustained when the tire manufactured by Goodyear exploded, causing him serious head, facial and other bodily injuries. At trial, the plaintiff offered evidence of Goodyears prior knowledge that design and manufacturing defects could cause the tire to explode.

Goodyears attorney had objected to the damage instruction submitted by plaintiff on the grounds that it allowed the jury to award punitive damages without being instructed on the proper burden of proof; Goodyear tendered an instruction to the court that required the plaintiff to prove its punitive damage submission by clear and convincing evidence. Following Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 111 (Mo. banc 1996), the court agreed with Goodyear and reversed the judgment for punitive damages. Under Rodriguez, the new clear and convincing standard for punitive damages applied to all cases in which trial began after February 1, 1997 and to all pending cases in which a proper objection had been preserved. The court found that Goodyear had properly preserved the punitive damages issue for appeal under the Rodriguez guidelines and that the trial court erred by not submitting to the jury the clear and convincing burden of proof standard for punitive damages. Although Goodyear argued that the error on punitive damages entitled it to a new trial on all issues, the Court of Appeals disagreed and remanded the case for a new trial only on the punitive damage issues.