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

Eight individuals filed a class action suit in the circuit court of the City of St.Louis against Doe Run Resources Corp., which operated a lead smelter in Herculaneum. The suit alleged that Doe Run violated state and federal environmental laws regarding emissions from the smelter that damaged property within the vicinity of its facility. This suit also named Marvin Kaiser, CFO of Doe Run, and alleged that he participated in Doe Run's tortious conduct by approving budgets that delayed or rejected pollution control measures, as well as remediation of properties within the area. Mr. Kaiser was a resident of the City of St. Louis and the only party to reside there. Doe Run alleged that Mr. Kaiser was joined pretensively, solely to obtain St. Louis City venue. The Supreme Court of Missouri disagreed in State ex rel. The Doe Run Resources Corporation, et al, Relators v. Neill, No. SC 85451 (Mo. banc 2004).

Although plaintiffs may file suit in any statutorily permissible venue, courts will not permit plaintiffs to engage in the pretense of joining defendants for the sole purpose of obtaining venue. The party claiming pretensive joinder bears the burdens of persuasion and proof. There are two tests for pretensive joinder. Under the first, joinder is pretensive if the petition on its face fails to state a claim against the joined defendant. Under the second, joinder is pretensive if there is, in fact, no cause of action against the joined defendant, even though the petition on its face states a cause of action. Both tests are objective, requiring that the plaintiff have a realistic belief under the law and evidence that a valid claim exists.

While simply holding a corporate office does not expose an officer to individual liability for corporate misdeeds, it also does not necessarily shield the officer from individual liability. An individual is not protected from liability simply because the acts constituting the tort were done in the scope and course, and pertain to, the duties of his employment. A corporate officer may be held individually liable for tortious corporate conduct if he or she had actual or constructive knowledge of, and participated in, an actionable wrong. The allegations against Mr. Kaiser stated a cause of action against him in his individual capacity. While it is possible that Mr. Kaiser may eventually succeed in summary judgment or at trial, the ultimate substantive merits of plaintiff's allegations as determined later in the judicial process are not relevant at this stage. The only relevant inquiry is whether the records and pleadings support a realistic belief that there is a claim against Mr. Kaiser. Relators have not carried their burden of showing that the facts pled are, in fact, false. In his dissent, Judge Benton stated that the petition did not state a cause of action against Kaiser because it was not alleged that Kaiser had any discretionary authority over the budget. Judge Benton also stated that the legislature can correct the state of the law by prescribing that, when the corporation is also a defendant, venue is not determined by the personal residence of a corporate officer who does not intend to actively participate in a positively wrongful act.

Section 490.065, RSMo, Governs the Admission of Expert Testimony in Civil Actions

The State Board of Registration for the Healing Arts filed a disciplinary complaint against Dr. Edward McDonagh, alleging that he endangered the health of his patients and violated the Missouri Healing Arts Practice Act by utilizing chelation therapy in the treatment of patients with vascular disease. At the hearing before the Administrative Hearing Commission, the board introduced expert testimony that the use of chelation therapy to treat vascular disease was not generally accepted in the field of treatment of vascular disease and did not meet the standard of care for the treatment of such disease. Dr. McDonagh offered expert testimony that supported his use of chelation therapy. The board objected to Dr. McDonagh's expert testimony. The board heard all the evidence without ruling on the admissibility of this expert testimony, but later ruled that the testimony was admissible and found no cause to discipline Dr. McDonagh. The Board appealed and, in State Board of Registration for the Healing Arts v. McDonagh, No. SC 85275 (Mo. banc 2003), the Supreme Court reversed and remanded to the Administrative Hearing Commission for further review in light of Section 490.065 RSMo.

Since Section 590.065 RSMo. was enacted in 1989, various decisions of Missouri courts of appeal have expressed confusion as to whether it is the statute, Frye, or Daubert that supplies the relevant standard for admission of expert testimony. The Supreme Court expressly holds that to the extent other cases have suggested the standard for admissibility of expert testimony in civil cases is that set forth in Frye or some other standard, they are no longer to be followed. The relevant standard is that set out in § 490.065 RSMo. Moreover, the standards for admission of expert testimony constitute a fundamental rule of evidence applicable in a contested case administered at proceedings such as this one.

To the extent that § 490.065 mirrors Federal Rules of Evidence 702 and 703, as interpreted and applied in Daubert, the cases interpreting those Federal Rules provide relevant and useful guidance in interpreting and applying § 490.065. Section 490.065 expressly requires a showing that the facts or data on which an expert bases an opinion be of a type reasonably relied upon by experts in the field in forming opinions or inferences on the subject and that these facts and data be otherwise reasonably reliable. The court must independently assess their reliability. For this reason, unlike in Missouri, Daubert held that in the federal courts, an expert need not necessarily identify the relevant scientific community or field in which the data and facts are accepted. The differences between § 490.065 and Federal Rule of Evidence 703, as interpreted in Daubert, take on great importance because the relevant scientific field must be identified. This is essential because the statute requires that, to be admissible, expert opinion must be based on facts or data of a type reasonably relied upon by "experts in the field." Here, Dr. McDonagh argued that the relevant "field" was the universe of medical practitioners who utilize chelation therapy. To limit the relevant "field" to only those doctors who have already expressed the view that such therapy is appropriate would make the inquiry into acceptance by experts in the field pointless for, by definition, only those who had accepted the therapy would be asked for their opinion. Since Dr. McDonagh chose to treat patients with vascular disease, the relevant field is doctors treating persons with vascular disease. The facts or data on which Dr. McDonagh's experts rely, therefore, must be those perceived by them at trial, or must be of a type reasonably relied on by doctors treating vascular disease.

Section 490.065 does not state that the conclusions be in conformity with the general medical consensus or be generally accepted. Such acceptance is but one factor of the relevant inquiry. Section 490.065 does not require that an expert opinion be supported by controlled studies in order to be admissible. The lack of controlled studies would be relevant, but not necessarily dispositive, regarding the court's independent duty to determine whether the facts and data relied on are otherwise reasonably relied on. It was up to the Administrative Hearing Commission to consider Dr. McDonagh's expert testimony and determine whether experts in the field could reasonably rely on the data those experts relied on in reaching their conclusions about the use of chelation therapy. Because of the confusion in the cases regarding the standard for admission of expert testimony, the AHC did not apply these standards in evaluating the expert testimony offered. The AHC may permit the parties to supplement the record with additional expert testimony, addressing the issues relevant under the statute.

Default Judgment Not Set Aside, But Amount of Judgment Reduced to Conform to Petition

Eric Jew filed a lawsuit against Home Depot to recover damages for the personal injuries he suffered at its store in the City of St. Louis. His petition prayed for judgment in an amount exceeding $25,000 and less than $75,000. The summons completed by the sheriff of the City of St. Louis showed service on the manager of the Home Depot store where Mr. Jew fell. Four months after service of the summons, plaintiff filed a motion for default judgment when Home Depot failed to file an answer. At the hearing on the default judgment, plaintiff testified that his medical bills were $3,300 and that he expected to receive medical care in the future. Plaintiff's counsel orally moved to amend the prayer for damages to delete the phrase "less than $75,000.00" and asked the court to enter judgment for $250,000, which was granted. Within 30 days after the judgment, Home Depot filed a motion to set it aside, which was denied by the trial court. The Court of Appeals affirmed the entry of the default judgment, but modified it to reduce the amount of the judgment to $74,999 in Jew v. Home Depot, No. ED 82567 (Mo. App. E.D. 2004).

The decision on a motion to set aside a default judgment lies within the trial court's discretion. The appellate court will not reverse the trial court's decision unless the record indicates an abuse of discretion. The motion to set aside must allege facts that demonstrate a defendant's reasonable diligence or good cause for the default and the existence of a meritorious defense. A motion to set aside does not prove itself. The motion must be verified or supported by affidavits or sworn testimony. A defendant is not entitled to have a default judgment set aside if the motion to set aside a default judgment lacks facts relevant and material to a showing of good cause and a meritorious defense. When the meritorious defense is factual in nature, the party in default should recite particular facts that, if proved, would constitute a meritorious defense. Factual detail is required so that the court may judge whether the defense is meritorious and sufficient. Here, the motion did not contain sufficient facts to support the claim of a meritorious defense and the trial court did not abuse its discretion in refusing to set the default judgment aside.

The trial court did, however, lack jurisdiction to enter a judgment in excess of the amount requested in the original petition. In its petition, plaintiff prayed for judgment in an amount exceeding $25,000 and less than $75,000. Relief granted on default may not be other or greater than that which plaintiff demanded in the petition as originally filed and served on defendant. The petition must reasonably notify the defendant of the demand so the defendant would know the consequences of a default. A prayer for such other relief that the court deems just and reasonable does not allow an award or relief on default other or greater than originally demanded. Supreme Court Rule 55.33, which allows pleadings to be amended to conform to the evidence, does not apply in default proceedings. The judgment of the trial court is reduced to $74,999.

Child Support Provisions for Higher Education Are Liberally Construed Under the Dissolution of Marriage Statute

The marriage of Ronald Spencer and Stacy Spencer was dissolved in 1994. In the separation agreement, father and mother agreed to evenly split the college costs for their oldest child, but made no agreement on payment of college expenses for their two younger children. Father retired in 2000 and his income was reduced. In 2001, the second oldest child enrolled at Truman State University and in 2002 the youngest enrolled at Lindenwood University. Mother filed a motion to modify the dissolution decree to seek payment from father towards the college expenses. The trial court granted mother's motion to modify and ordered father to pay one-half of the college costs for the two youngest children. Father appealed and the judgment was affirmed in Spencer v. Spencer, No. ED82432 (Mo. App. E.D. 2004).

The appellate court will not substitute its judgment for that of the trial court on a motion to modify child support, absent a manifest abuse of discretion. Further, on review of a motion to modify child support, the appellate court reviews the evidence and credibility of the witnesses in the light most favorable to the trial court's decision. Section 452.340, RSMo. requires proof of continued eligibility for child support payments on a term-by-term or semester-semester basis. Eligibility for continued support payments during the first semester may be established merely by proof of enrollment in an institution of higher education. It does not appear that the notice requirements apply for the first semester.

The courts liberally construe the provisions of § 452.340 RSMo. to be consistent with the public policy of promoting the pursuit of higher education. Father argues that the statute requires the child, not a parent or grandparent, to send documents confirming the child's enrollment in college. Here, there was sufficient evidence to support the trial court's judgment that the child mailed the required documents to her grandmother, who copied them and forwarded them to the child's father. The fact that the child did not directly mail the documents to her father did not disqualify her from being eligible for continued support. There would be no public policy reason that the continued eligibility for continued parental support should turn on who actually mailed the required information to the non-custodial parent. There was no dispute that the children were enrolled in institutions of higher education and they were eligible for continued support from their father.

Hearing Instrument Specialist is Under Two-Year Statute of Limitations for Health Care Providers

Ella Payne went to Bob Mudd to be fitted for a hearing aid. Mudd inserted material into her ear canal for the purpose of creating a mold. In doing so, he punctured her eardrum, causing injuries to her ear and impairment of her hearing. She filed a personal injury suit against him approximately four years after the incident. Mudd moved to dismiss, contending Payne's claim was barred by the two-year statute of limitations under § 516.105 RSMo. The trial court dismissed Payne's case and the Court of Appeals affirmed in Payne v. Mudd, No. ED 83105 (Mo. App. E.D. 2004).

Under § 538.205 RSMo., the term "health care provider" includes in its list of professions any person or entity that provides health care services under the authority of a license or certificate. As described in Payne's petition, the services provided by Mudd were "health care services" as contemplated by the statute. Hearing instrument specialists such as Mudd are licensed by Missouri and the practice of fitting hearing instruments is a regulated profession in Missouri. The plain and ordinary meaning of health care is a service that maintains or restores the soundness of the human body or mind, or aids to free the body or mind from disease or ailment. Mudd qualifies as a health care provider and Payne's claim for damages based on Mudd's negligence was barred by the two-year statute of limitations contained in § 516.105 RSMo.

Forgetfullness or Inattention Are Not Good Cause to Set Aside Default Judgment

Eric and Joseph Krugh were severely injured when their boat exploded due to a fuel leak. They filed a personal injury action against Millstone Marine, alleging that it negligently de-winterized their boat by failing to check the fuel system and hoses for leaks. The summons was served on the registered agent for Millstone. Millstone failed to file an answer and the Krughs took a default judgment against it of $583,000. Approximately four months later, Millstone filed a motion to set aside the default judgment, which the trial court granted. The Supreme Court reversed, however, in Krugh v. Hannah, No. SC 85392.

Under Rule 74.05, a default judgment can be set aside upon motion stating facts constituting a meritorious defense and for good cause shown. The rule specifies that good cause includes a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process. At the hearing on the Millstone motion, the process server testified that she had served Millstone on other occasions. There was also evidence that other default judgments had been taken against Millstone. Although the trial court found that Millstone's registered agent failed to act because she simply forgot having been served, the evidence leads to the conclusion that Millstone was well aware of the consequences of inattention. The disregard for the system is evident. Millstone's failure to respond to the suit was reckless conduct at the least and more than just the negligent mishandling of paperwork. The only cases in which defendants have been held to have established good cause for failure to file an answer are those, unlike the case here, in which the defendants had taken at least some action in their defense within the 30 day period before default. Here, Millstone did not establish good cause for failing to file a timely answer and the order setting aside the default judgment is reversed.

City Had the Right to Change Its Billing System for Water Service to a Mobile Home Park

In 1998, Greg and Carolyn Coursen purchased the Autumn Acres Mobile Home Park, located outside the city limits of Sarcoxie. At the time of the purchase, there were 28 mobile homes located on rented lots at the site. Each lot in the mobile home park was equipped with an individual meter to record water service from the city. After their purchase of Autumn Acres, the Coursens expanded its size from 28 lots to 80 lots. At their expense, they installed individual lines and water meters for each new lot. The city performed no work on the installation of these lines located within the park. The city incurred increasing expenses in reading water meters at 80 individual lots and in collecting unpaid water bills from tenants of Autumn Acres. City employees made about 30 trips to Autumn Acres each month to turn water meters on and off due to tenants who left with delinquent water bills and new tenants who requested water service. The city sent a notice to the Coursens stating that the Coursens would receive one bill for all water as recorded at a single water meter at the entrance to Autumn Acres and that the Coursens would be responsible for collecting payments from their tenants. The Coursens filed suit against the city seeking injunctive relief, which the trial court denied. The Court of Appeals affirmed the denial of the injunction in Coursen v. City of Sarcoxie, No. 25395 (Mo. App. S.D. 2004).

A municipality's decision to provide water services to an area outside its territorial limits is discretionary. When a municipality decides to sell water or sewer services to non-residents, it does so on a purely contractual basis. In order for any contract with a municipal corporation to be enforceable, it must be in writing. Here, the Coursens had no written agreement with the city regarding the provision of water and sewage services to Autumn Acres. In the absence of a written contract prohibiting changes in the billing system, the Coursens had no legal right to have an injunction issued to prevent the city from making changes to its billing. The Coursens had no legal right to require the city to maintain the water and sewage system in Autumn Acres.

The city had statutory authority to change its billing system. A municipality may exercise those powers either expressed or implied by statute. The city was under no duty to maintain water lines, water meters and sewer lines that were located on the Coursens' private property. There was ample evidence that the new billing system would be more efficient and would save the city both time and money if implemented. The pursuit of efficiency and economy is a manifestly legitimate governmental purpose. The Coursens did not possess any legal right to prohibit the city from modifying its billing system or requiring the Coursens to maintain the water and sewage system within their mobile home park.