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

Joseph Whitnell was convicted of sexual abuse in 1992. In 2000, the State of Missouri filed a petition to civilly commit Whitnell as a sexually violent predator under § 632.486. At trial, the state presented expert testimony from a psychiatrist. The psychiatrist testified that Whitnell had a mental abnormality that caused him serious difficulty in controlling his behavior: he just can't stop engaging in sexual predatory acts. The psychiatrist based his testimony on interviews with Whitnell and other information, including an allegation made by Whitnell's daughter that he had sexually abused her. The psychiatrist acknowledged that Whitnell had not been charged with abusing his daughter. The jury found that Whitnell was a sexually violent predator and the court entered a commitment order for him. The Court of Appeals affirmed in Whitnell v. State of Missouri, No. ED 82283 (Mo. App. E.D. 2004).

The standard for the admission of expert testimony in civil cases is set forth in § 490.065, RSMo. If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness who is qualified as an expert by skill, knowledge, experience, training or education may testify thereto in the form of an opinion or otherwise. If the witness has some qualifications, the testimony may be permitted. The extent of an expert's training or experience goes to the weight of his testimony and does not render the testimony incompetent. Any weakness in the factual underpinnings of the expert's opinion or in the expert's knowledge goes to the weight that testimony should be given and not its admissibility.

The psychiatrist testified that, in his opinion, to a reasonable degree of scientific certainty, Whitnell's mental abnormality makes him more likely than not to engage in sexual predatory acts in the future. He acknowledged that this was not an absolute certainty. The law does not require absolute certainty of an opinion about future behavior. Missouri only requires that an expert's opinion be reasonably certain. An expert can rely on hearsay information provided that these sources are not offered as independent substantive evidence, but serve only as a background for his opinion. The psychiatrist testified that it was generally accepted in the field of forensic psychiatry to use instances such as the alleged sexual abuse involving Whitnell's daughter, whether or not it resulted in a criminal charge or conviction, as a factor in evaluating whether or not a person suffers from a mental abnormality. The trial court had an independent duty to decide whether the foundational facts met the minimum standard of reliability as a condition of admitting the expert's opinion, i.e. are otherwise reasonably reliable. There were sufficient facts to support the trial court's determination that the daughter's allegations were otherwise reasonably reliable. The trial court did not abuse its discretion in admitting the psychiatrist's testimony. The jury was free to weigh the psychiatrist's testimony and the qualifications that he applied to his testimony under cross-examination. There was sufficient competent and substantial evidence to support the jury's determination.

Insurance Coverage Cannot Be Excluded on the Sole Basis of the Sex of the Insured

Buddy Williams obtained health insurance coverage from National Casualty Company. The certificate of insurance contained an exception that excluded "any disease or disorder of the prostate." Williams was diagnosed with prostate cancer 53 months after the policy was issued and later died of prostate cancer. National Casualty denied the claim for $60,000 in medical expenses incurred by Mr. Williams for treatment of the prostate cancer. National Casualty denied payment and Williams' widow sought recovery from it. The suit against National Casualty contended that the exclusion in its insurance policy was void under § 375.995 RSMo., which states that the availability of any insurance contract "shall not be denied to any insured or prospective insured on the sole basis of the sex or marital status of such insured or prospective insured." The circuit court found in favor of National Casualty, but the Supreme Court of Missouri reversed in Williams v. National Casualty Company, No. SC 85643 (Mo. banc 2004).

The prohibition of exclusions from health insurance coverage on the "sole basis" of sex in § 375.995 RSMo. was enacted in 1986. This is a case of first impression; there are no reported cases, under similar statutes, involving a pre-existing prostatic infection or inflammation as a basis to justify denial of coverage for prostate cancer. On its face, National Casualty's exclusion of "any disease or disorder of the prostate" appears to violate the statute, whose remedial purpose is clear. All canons of statutory construction are subordinate to the requirement that the court ascertain and apply a statute in a manner consistent with the legislative intent. To interpret the statute faithfully to its legislative intent and stated purpose, the court applies the general principle that, where an insurer seeks to escape coverage because of a policy exclusion, the burden is on the insurer to show facts that make the exclusion applicable. Thus, where an exclusion of organs "of only one sex" appears, the insurer has the burden of producing evidence that its exclusion was not based "solely" on sex, but on some other - legitimate - reason.

National Casualty did not produce any evidence on the record - which includes Buddy Williams' medical records - of a pre-existing prostate cancer condition. An exclusion of pre-existing "conditions" - not entire organs or organ systems - would appear to be based not "solely" on sex, even though those conditions affect organs possessed by only one sex. But the exclusion in Buddy Williams' certificate of insurance was of a pre-existing organ, not a pre-existing condition. Since the prostate is a genital organ of only one sex, the "exception" violates the statute in the absence of evidence that the "exception" is also based on a pre-existing condition.

Evidence Illegally Obtained During Traffic Stop Was Inadmissible

A highway patrolman stopped the pickup being driven by Randy Barks when it was clocked at 74 miles per hour in a 55 mile-per-hour zone. The patrolman advised Barks that he was going to issue a citation to him and told him to stay in his vehicle. After writing the ticket, the patrolman returned to Barks' vehicle and asked Barks if he had any questions. Barks appeared nervous to the patrolman, and he asked Barks if he had anything illegal in his truck. Barks stated that he did not, but the patrolman believed he appeared to be getting more nervous and fidgety. Barks then acknowledged that he had a weapon in the vehicle, and the patrolman asked permission to retrieve it. Barks gave permission. After retrieving the weapon, the patrolman asked Barks if he could search him, and Barks said he could. The patrolman asked Barks to empty his pockets and Barks emptied all of them but his shirt pocket, which had an item protruding out of it. The patrolman reached in Barks' pocket and removed a cigarette pack that contained tin foil. Knowing that tin foil was commonly used in the smoking of methamphetamine, Barks was arrested for possession of drug paraphernalia and read his Miranda rights. After further questioning, Barks told the patrolman there was a glass bowl in the truck. The patrolman searched the truck and found the glass bowl, burned tin foil, and plastic bags that contained pseudoephedrine tablets. At trial, Barks objected to the introduction of the exhibits taken after the patrolman wrote and delivered the speeding citation to him and returned his driver's license. The trial court overruled the objections and allowed the evidence to be introduced. Barks was convicted of the Class C felony of possession of methamphetamine. The Supreme Court of Missouri reversed, however, and remanded the case for a new trial in State of Missouri v. Barks, No. SC 85735 (Mo. banc 2004).

The Fourth Amendment to the United States Constitution guarantees the right of all citizens to be free from unreasonable searches and seizures. A routine traffic stop based on the violation of state traffic laws is a justifiable seizure under the Fourth Amendment. So long as the police are doing no more than they are legally permitted and objectively authorized to do, the stop is constitutional. The fact that the police may detain a person for a routine traffic stop does not, however, justify indefinite detention. The detention may only last for the time necessary for the officer to conduct a reasonable investigation of the traffic violation. Here, the initial traffic stop was completed once the officer returned to the vehicle he had stopped and returned the driver's license to Barks. There is no evidence that the patrolman had developed articulable facts that would have supported a reasonable suspicion of criminal activity justifying detention of Barks for further inquiry.

Although the patrolman testified that Barks could have driven away after he issued the traffic citation and began asking questions, that option was not apparent from the circumstances. The patrolman did not tell Barks he was free to go. Considering the totality of the circumstances, a reasonable person in Barks' position would have understood the situation to be one of custody. The trial court erred in admitting evidence obtained following the completion of the traffic stop. The evidence was obtained by exploitation of the illegality of Barks' detention.

Duty of Good Faith and Fair Dealing Implied in All Contracts

Six pediatricians signed contracts with Blue Cross & Blue Shield of Kansas City to provide medical care to low-income families under the Missouri Medicaid program. Payments were made to the program by the state on a "capitation" basis, determined by the number of patients enrolled in the program. Blue Cross agreed to administer the program, and would withhold 25% of each doctor's capitation payments, which were placed into a referral fund. Charges incurred for sending a patient to the hospital or to a specialist were charged against that doctor's referral fund. At the end of the year, if the amount in the referral funds was positive, the amount would be split 50-50 between Blue Cross and the doctors whose individual referral accounts were positive. The doctors believed, under the contract, that if they practiced good preventive care, the program would realize savings in which they would share. Also, as the doctor's preventive practices improved, they expected their capitation rates to increase. After requesting financial information from Blue Cross for the years 1986 through 1996, the doctors realized that the program had been profitable for Blue Cross, even though the doctors had been told previously by Blue Cross that the program was not sufficiently profitable to allow them to increase the capitation rates. The financial documents also disclosed that the administrative expenses charged by Blue Cross increased from 6% and 10% in earlier years to 45.3% in 1996. The doctors filed suit for breach of contract and breach of the duty of good faith and fair dealing. The jury awarded the doctors actual damages of $3,000,000 and punitive damages of $3,090,000. The Court of Appeals affirmed the actual damages, but reversed the punitive damages.

The claims of breach of contract and breach of duty of good faith and fair dealing were not redundant but, instead, were separate and different theories of contract liability. Although a party is not entitled to submit inconsistent alternative claims to the jury, the jury here was presented with two different versions of how to view the contract. Plaintiffs were entitled to submit a claim based upon the interpretation they argued. They were also entitled, to the extent that there was evidence to support this submission and so long as the two theories were not inconsistent, to submit a claim based on the interpretation of the contract urged by Blue Cross. The plaintiffs did not argue inconsistent theories. Plaintiffs were entitled to advise the jury that even if the jury believed defendant's version of the meaning of the contract, there was still a breach of the contractual duty of good faith and fair dealing. The inconsistency, therefore, was only with regard to the version of the contract the jury chose to believe.

The punitive damage claim, however, was not submissible to the jury. All of the duties breached by the defendant arose specifically out of the contract. One exception to the general rule applies when the actions breaching the contract also involved a breach of fiduciary duty separate from the duty created by the contract. In the absence of a breach of a fiduciary duty separate from the obligations created by the contract, punitive damages cannot be recovered. Here there was no breach of any duty apart from the terms of the contract itself.

Transportation Company Had Duty to Make Sure Handicapped Passenger Was Wearing Seat Belt

Donna Bowan suffered from both physical and mental disabilities due to encephalitis, which she developed when she was 8 years old. She had an IQ of 74 and had the mental abilities of a 12-year-old. When she was 33, she was able to live independently, but needed assistance for grocery shopping and managing her finances. She was transported from her residence to a sheltered workshop by Express Medical Transporters, a non-emergency transportation company that contracted with the Missouri Department of Mental Health. As EMT was transporting Bowan home from work one day, the EMT van was involved in a motor accident. Bowan, who was seated behind the driver, was not seat-belted and was thrown toward the driver's seat during the accident. As a result, her spinal column was severed and she became a paraplegic. Bowan filed suit against both the driver of the other vehicle and EMT, alleging that EMT was negligent for failing to make certain she was wearing her seat belt. The jury awarded Bowan $3.5 million dollars and assessed EMT 50% at fault - 20% attributable to the seat belt issue. EMT appealed and the Court of Appeals affirmed in Bowan v. Express Medical Transporters, Nos. ED 82950 and 82944 (Mo. App. E.D. 2004).

When considering if a duty exists, the court looks at several policy factors, including: (1) whether society finds the interest is worthy of protection, (2) the foreseeability of harm and degree of certainty that the protected person suffered injury, (3) the moral blame society places on the conduct, (4) the prevention of future harm, (5)the costs and the ability to spread the risk of loss, and (6) the economic burden on the actor and community. When considering if a duty is owed, the court looks for a relationship between the plaintiff and the defendant that the law recognizes as the basis of the duty of care. Missouri courts recognize that a defendant can assume a duty. If the defendant assumes a duty, he can be held liable for injuries caused by the unsafe performance of that assumed duty. One who acts voluntarily or otherwise to perform an act, even where there was no duty to act originally, can be held liable for the negligent performance of that act.

Here, there was evidence that the EMT driver was told that he had to make sure all passengers wear seat belts. Driver agreed that it was his responsibility to check and make sure that the passengers were seat-belted. Bowan presented substantial evidence to establish that EMT owed her a common law duty to make certain she was seat-belted. This common law duty was established by evidence confirming that the driver voluntarily assumed a duty to make certain Bowan was seat-belted. The issue of Bowan's responsibility to care for herself was dealt with through EMT's submission of a comparative fault instruction to the jury, which assessed 20% of fault to her. Bowan's duty as a passenger did not negate the duty EMT assumed to "make sure" she was seat-belted.

Custodial Parent Seeking to Relocate Minor Child Has Burden of Proving That the Move is in the Best Interest of the Child

Vicki Fohey and Kevin Knickerbocker divorced in 2000, when their daughter Myranda was two years old. Mother was awarded primary physical custody of Myranda and father had extensive visitation rights. During 2002, mother notified father that she wanted to relocate with Myranda to Texas, where mother could obtain a job as a criminal investigator with Federal Protective Services. Father objected and filed a motion seeking a court order to prevent the relocation. During the hearing, father offered evidence regarding his frequent contact with his daughter. Myranda spent every other weekend with her father and also saw him at least once a week when he came to her pre-school to eat lunch with her. Myranda also attended church and Sunday School with her father and step-mother, and participated in many activities at the church attended by her father and step-mother. Mother testified that the job in Texas would double her salary and provide greater opportunity for career advancement. At the job in Texas, she would work five days a week for 10 hours a day, and on emergencies could be called out of the area. Mother testified that the Texas job opportunity would allow her to improve Myranda's living situation, but she did not know where she and Myranda would be living or where Myranda would attend day care or kindergarten. Mother had no family or friends in Texas. The trial court granted mother's motion to relocate, but the Court of Appeals reversed in Fohey v. Knickerbocker, No. ED 82779 (Mo. App. E.D. 2004).

A party seeking to relocate with a minor child bears the burden of proving that the proposed move is made in good faith and is in the best interest of the child. In determining whether to allow a parent to remove a child from the state, the paramount concern is the best interest of the child. It is the public policy of Missouri that frequent, continuing, and meaningful contact with both parents after the parents have dissolved their marriage is in the best interest of the child. Here, the trial court's decision lacks substantial evidentiary support. Mother failed to provide substantial evidence that the relocation was in Myranda's best interests. Mother presented no evidence of what Myranda's living environment would be like in Texas. A good environment and stable home are primary considerations in determining a child's best interest. Mother testified, in conclusory terms, that the relocation to Texas would benefit Myranda because the increased earnings would benefit Myranda's education, but mother provided no other details.

The uncontroverted evidence demonstrated that father was actively involved in Myranda's life. Although the court's visitation schedule provided father with nine weeks of summer visitation, there are questions as to its feasibility and practicality due to the distance between Hannibal and Fort Worth, Texas. A good portion of father's visitation would be taken up in travel time, and father also testified that travel expenses would be a burden to him.

A trial court may properly permit removal of a child, even where removal will make visitation more difficult for the non-custodial parent. Here, however, from the evidence presented, moving Myranda to Texas would deprive her of the frequent and consistent contact that she enjoyed with her father. The trial court was in the unenviable position of having to choose between the mother's desire to relocate and Myranda's consistent contact with her father. There is no doubt the relocation was in the mother's best interest, but it was not shown to be in Myranda's best interest. It was mother's burden to prove the relocation was in the best interest of the child, which she failed to do.

Improper Jury Instruction on Fiduciary Duty Required Reversal

For five years, Stevie Chan was the general manager for the St. Louis office of Skanwell Freight Express, a freight forwarding business. She was an at-will employee and had not signed a non-compete agreement. On March 1, 2001, Chan resigned her position with Skanwell. Skanwell then decided to close its St. Louis office and lay off the entire staff. Approximately one month later, Dimerco Express, Skanwell's competitor, opened its office with Chan as its general manager. Also, Dimerco operated in the same location that Skanwell had occupied, employed the same employees as Skanwell had and used Skanwell's telephone number. Skanwell filed suit against Chan for breach of fiduciary duty and against Dimerco for conspiracy. The jury returned a verdict in favor of Skanwell, assessing $54,000 in damages against Chan and $254,000 in damages against Dimerco. Chan and Dimerco appealed, alleging trial court error in a jury instruction, and the Court of Appeals reversed in Skanwell Freight Express v. Chan, No. E.D. 83035 (Mo. App. E.D. 2004).

Chan's relationship with Skanwell was not a fiduciary relationship as a matter of law, and the jury needed to determine whether she gained some superiority and influence over Skanwell that created a fiduciary relationship due to special circumstances. The submitted jury instructions stated, "A fiduciary relationship is established when one reposes trust and confidence in another in the handling of certain business affairs." The submitted instruction misled the jury, as it did not establish the complete definition of the formation of a fiduciary duty. The refused instruction stated that merely reposing trust and confidence in another does not create a fiduciary duty unless the person alleged to have breached the duty gains superiority and influence over the other. Without the proper definition as submitted in the refused instruction, the jury could determine improperly that a fiduciary relationship arose merely because Skanwell trusted Chan with its business affairs.

A jury instruction becomes a roving commission when it assumes a disputed fact or proffers an abstract legal question allowing the jury to roam freely through the evidence and choose any facts which suited its fancy or its perception of logic and impose liability. If an instruction fails to notify the jury of what acts or omissions of the party, if any, found by them from the evidence, would constitute liability, then it may be considered a roving commission. These instructions did not assist the jury in making its decision because the underlying definition of fiduciary duty was incorrect. Because the instruction constituted a roving commission and misdirected, misled, and confused the jury, the jury verdict is reversed and the cause remanded for a new trial.

Statute of Limitations Commences When Damage is Sustained and Capable of Ascertainment

On July 28, 2000, Mercedes Glover was working at a convenience store when she got into an argument with Glenn Palmer. After words were exchanged, Palmer pushed Glover backward, and she struck her lower back against an electrical box. Glover filed suit for battery against Palmer on October 15, 2002, more than two years after the incident occurred. She alleged in her suit that she did not know the full extent of her injuries until the year 2002. Palmer moved for dismissal of Glover's suit under § 516.140 RSMo., which states that an action for battery must be commenced within two years after the action shall have accrued. The trial court ruled that Glover's suit was time-barred and the Court of Appeals affirmed in Glover v. Palmer, No. 25550 (Mo. App. S.D. 2004).

When a statute of limitations is raised as a defense, the petition may not be dismissed unless it clearly shows on its face that the cause of action is time-barred. Here, Glover's petition, on its face, clearly established that Palmer committed the battery on July 28, 2000, more than two years prior to her suit being filed. Glover's allegation that the extent of her injuries were not discovered until 2002 does not save her case from dismissal. This is because damages are sustained and capable of ascertainment when the damage can be discovered or made known, even if the extent of the damage remains unknown. All possible damages do not have to be known, or even knowable, before the statute accrues. Damages are capable of ascertainment within the meaning of § 516.100, RSMo when the aggrieved party first realizes that it will sustain damage. The term is held to refer to the fact of damage, not the precise amount. Regardless of the extent of Glover's damages, the time limitations for filing her suit began to accrue on July 28, 2000 - the date that her damages were sustained and capable of ascertainment.