The Law Office of Kurt H King

April 22, 2014

When Can You Sue Again?–Res Judicata & Collateral Estoppel

In its April 15, 2014, Xiaoyan Gu v. Da Hua Hu, Ace INA Insurance Company Canada opinion (ED100001), the Eastern District of the Missouri Court of Appeals reversed the trial judge’s summary judgment award in favor of defendant insurer.

Facts of the underlying cases:  Husband and wife  were passengers in a truck rented to haul grapes and carrots between California and Ontario.  Defendant Ace INA Insurance Company of Canada wrote the Garage Automobile Policy which insured the Volvo dealership which rented a tractor truck to the driver (who opted not to purchase insurance coverage on the rental).  However, the garage policy covered additional insureds if that person [the driver] operated any automobile in connection with the business of the dealership, and the court so found since the renting of the truck furthered the business of the dealership.

Note that this is the third trial thus far in this case: the first, a bench trial for personal injuries of the husband and for loss of consortium by his wife  against the trucking companies and the driver.  The court awarded husband nearly $14 million and  wife $1.5 million.

The second trial, judge-tried also, was by husband  only for equitable garnishment on the garage policy issued to  the dealer by defendant Ace INA.  On the first day of trial, the defense moved to amend its pleadings to assert the exclusion in the policy that applied when the ” automobile is being used . . . for the carrying of goods or materials for compensation.”  The court ultimately ruled that such late assertion of the defense was unfair, and denied the motion for leave to add that defense.  Judgment resulted in favor of husband against Ace INA Insurance Company on his garnishment action.

This brings us to the third case which is the subject of this appeal–another equitable garnishment case against Ace INA to obtain payment of the personal injury judgment but this time brought by the wife.  This time around, the defense timely raised the carriage-of-goods exclusion, and the trial judge upheld that defense in granting summary judgment in favor of insurer Ace INA.

On appeal, wife argued that collateral estoppel and/or res judicata barred the insurer from raising the carriage-of-goods exclusion.  The court of appeals rejected the collateral estoppel agrument because that exclusion/defense was not “fully and fairly litigated” in the first garnishment case by husband.

Next, the Eastern District focused on res judicata.  For that doctrine to apply, these four “identities” must co-exist: 1) of the thing sued for; 2) of the cause of action; 3) of the persons/parties; 4) of the quality of the person for or against whom the claim is made.  The fourth identity was undisputed, so the the court analyzed the first three.

The Thing Sued For:  In the court’s eyes, both garnishment cases–that of husband and wife–sought the same thing–“[g]arnishment of insurance proceeds to satisfy a judgment that stems from damages caused by the same motor vehicle accident.  No problem finding this element.

The Cause of Action:   This element is defined as “the underlying facts combined with the law, giving a party a right to a remedy of one form or another based thereon.”   Again, a finding that this element existed since “no different or new facts were required” for [wife] to establish her garnishment case.

The Parties:  This element requires that the parties be the same or in privity.   For privity to exist, the interests of a party and non-party in privity must have been so “closely intertwined that the non-party can fairly be considered to have had his or her day in court.”  Here, this element existed due to Missouri law holding that a judgment creditor “stands in the shoes’ of the judgment debtor, and thus wife has the same rights as the driver under the garage insurance policy from Ace INA.

Since all four identities coexisted, the trial judge erred in allowing insurer Ace INA to raise this defense.  The court of appeals therefore reversed and remanded for entry of judgment in favor of wife.

(Side note:  Res judicata  applies to claims or defenses that could have been raised previously, as well as those which were.)


Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068


Personal Injury, Workers’ Compensation

Chapter 7 Bankruptcy

Family Law

General Matters





New “MOTIVATING Factor” Standard In Missouri For Employment Discrimination and Retaliation Cases

With the amendments to the Missouri Human Rights Act, effective August 2017, the contributing factor standard is no more. 

Claimants now must meet a MOTIVATING FACTOR standard.  “Motivating factor” means “the employee’s protected classification actually played a role in the adverse action or decision and had determinative influence on the adverse decision or action.”   See section 213.010(19), RSMo.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missour



Personal Injury, Workers’ Compensation

Chapter 7 Bankruptcy

Family Law

General Matters

November 18, 2013

Error to Order Plaintiff to Authorize Ex Parte Communications with Treating Physician

Missouri courts clearly hold that it is error for a trial court to order the plaintiff to sign an authorization consenting to ex parte communications with his treating physician.

See Judge Van Amburg’s opinion in State of Missouri ex rel. John Joseph Camillo and Mignon Chismarich v. Honorable James Beck, Slip Opinion ED100427 (October 15, 2013).

Of note:  “An authorization compelled in the course of litigation must be narrowly tailored to protect against ‘the potential risks to the physician-patient relationship’ inherent in the disclosure of confidential medical information.  [Citation omitted.]  Vague, broad, or open-ended authorizations simply will not do.”

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068


Personal Injury, Workers’ Compensation, Chapter 7 Bankruptcy, Family Law

Worker’s Dependents Entitled to His Workers’ Compensation for Their Lifetimes

This post dovetails prior posts regarding Missouri Workers’ Compensation law involving death by other causes of a Permanently Totally Disabled (PTD) worker and the “Schoemehl window.”

The Southern District of the Missouri Court of Appeals recently addressed an appeal by the Second Injury Fund in a case where the PTD employee with a claim within the Schoemehl window died from causes not related to the injury.   The case is Spradling v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Slip Opinion SD31907 (November 5, 2013), and holds specifically for cases within these parameters that the dependents of the deceased PTD worker whose claim was pending and not finally determined as of June 26, 2008 are entitled to the PTD compensation payments FOR THE LIFETIME OF THE DEPENDENT(S).

Note that the employee died from causes unrelated to his injury in November 2005 after having been injured in 1998 and having filed his claim in 1998.  On the date of injury, he was the non-custodial father of two young children who were “conclusively presumed” under 287.240(4) to be his dependents.

Note too that this case falls within the “Schoemehl Window” opened by the Missouri Supreme Court in Schoemehl on January 9, 2007, and continuing until June 26, 2008, when Missouri lawmakers closed the window by revising Missouri workers’ compensation law so that PTD in such a case terminates upon the death of the injured employee.

The bottom line is that in Schoemehl window cases the employer has to pay PTD so long as a dependent lives, but if the claim falls after that window closed the employer only has to pay only so long as the employee lives.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068


Workers’ Compensation, Personal Injury

Chapter 7 Bankruptcy for Debtors, General Matters

Family Law–Dissolution of Marriage, Modification, Paternity, Child Custody, Support, & Visitation

August 22, 2013

The Open and Obvious Defense in Slip and Fall Cases in Missouri

Plaintiff Julie Holzhauzen filed a premises liability case against the St. Louis Cardinals  to recover for personal injuries she suffered when she slipped and fell 20-30 feet from an embankment owned by the Cardinals onto the below-grade Metrolink light rail track area operated by Metro (the other defendant).  The trial court granted defense motions for summary judgment on grounds that the dangerous condition was open and obvious.  Plaintiff appealed to the Eastern District of the Missouri Court of Appeals, resulting in its Opinion ED98252, dated August 13, 2013.

Holzhauzen fell when she attended the Cardinals 2006 parade and rally celebrating the team’s 2006 World Series victory.  Short in stature, this lady found her way to the ledge that dropped off to the Metrolink tracks.  Someone bumped her as she started to take a step and she lost her balance and fell to the tracks below.

Of note was her testimony that she was distracted, looking toward the street to see the parade, and failed to see the drop-off although her view of it was unobstructed.  (Page 3)

On appeal seeking to reverse summary judgment in favor of defendants, the injured plaintiff argued: 1) the dangerous drop-off was not “known or obvious”; and, 2) as the possessor of the premises, the Cardinals have anticipated that the dangerous condition will cause physical harm to the invitee plaintiff even though it is known or obvious–i.e., was the invitee distracted so that she will not discover what is obvious, or would forget what she has discovered, or fail to protect herself against it, OR PROCEED TO ENCOUNTER THE KNOWN OR OBVIOUS DANGER BECAUSE TO A REASONABLE PERSON IN HER POSITION THE ADVANTAGES OF DOING SO WOULD OUTWEIGH THE APPARENT RISK.  (The court quoting RESTATEMENT (SECOND) OF TORTS, section 343A(1) (1965)–my emphasis.)  (Page 11 of the opinion)

In deciding the first issue of whether the drop-off was “known or obvious,” the court of appeals bluntly stated–“whether an invitee may or may not have seen an open and obvious dangerous condition is ‘totally irrelevant”–citing the Western District’s 2005 decision in Crow v. Kansas City Power & Light, 174 S.W.3d 523, 537.  (Page 9)  So much for plaintiff’s argument that the drop-off was not “known” to her as Missouri law simply cares not a wit whether she knew of the dangerous condition.  Rather, the issue is whether the invitee plaintiff “should have reasonably seen the condition.”  Thus, the focus is not a subjective one focused on what each particular invitee actually noticed, but rather a objective test of what was open and obvious to a reasonable person.  Since the drop-off here was truly open and obvious, the court of appeals disagreed with Holzhauzen on her first point.  (Page 11)

Next, the appellate court examined whether some exception applied to excuse the plaintiff from proceeding on to encounter the dangerous condition.  Here, plaintiff gave three reasons why the court should not apply the general rule that the possessor of the premises is not liable to invitees injured by open and obvious conditions, those being: 1) Distraction; 2) Advantage Outweighing Risk; 3) Anticipation of Harm.  The court refuted each of these three.

With regard to Distraction, illustrations 2 and 4 to comment f to section 343A of the RESTATEMENT OF TORTS describe situations when this argument is a viable reason why the possessor of the premises is held liable even when the dangerous condition is open and obvious.  Too, Missouri case law so holds.  See Bruner v. City of St. Louis, 857 S.W.2d 329 (Mo. Ct. App.  E.D. 1993) (person on moving walkway did not see its end because of airport distractions along the walkway and the presence of others on the walkway blocking the view).  However, in Holzhausen’s case, the ledge from which she fell was behind pipes that she ducked through to reach a ledge that was not intended for her use.  A possessor of the premises would not have reason to expect that an invitee would clamber through large pipes and be so distracted by events behind them that they would fail to see and avoid the drop-off to the tracks from the back of the ledge.  Contention therefore denied.  (Pages 12-13)

Plaintiff’s second pitch was also called out of the legal strike zone, as the advantage of walking next to a steep embankment to see the parade and rally certainly do not outweigh the risk of falling off that embankment.  (Pages 13-14)

Perhaps plaintiff’s most logical supposition was that the Cardinals should have anticipated due to the crush of many fans in a limited space, that some would (and apparently did) find their way to this ledge at the edge of the viewing area.  Here the court found the “critical question” to be whether the Cardinals could reasonably rely on their invitees such as Holzhausen to protect themselves from the danger presented by the ledge and drop-off.  The invitee must use ordinary “perception, intelligence and judgment,” which in this case the plaintiff simply failed to do.  (Pages 14-15)

What do we take from this case?  Maybe its discussion of the exceptions to the Open and Obvious defense–the distractions such as cars passing over the crack or hole in the road that we don’t see before stepping into it on the way to the front doors of a store.  Or perhaps that the law allows us to navigate an open and obvious condition if there is no other good way to get to where we are going.  Or, there is an emergency or urgent situation where the benefit of taking the dangerous route outweighs the harm.  The Open and Obvious defense has its holes!

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068


Personal Injury, Workers’ Compensation, General Matters

August 20, 2013

Release Does Not Avoid Liability For Recklessness or Gross Negligence

Filed under: Litigation,Missouri Personal Injury Law — kurthking @ 10:26 pm
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A recent opinion by the Eastern District of the Missouri Court of Appeals shines more light on how exculpatory clauses do not prevent liability for gross negligence (a.k.a., “recklessness”).  Check out Decormier v. Harley Davidson Motor Company Group, Inc., et al., Slip Opinion ED99064, filed August 13, 2013.

There the Eastern District looked back to  Alack v. Vic Tanny Int’l of Mo., where the Missouri Supreme Court cast as “Black Letter Law” the maxim that–

“[E]xculpatory clauses in contracts releasing one from his/her own future negligence may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.  923 S.W.2d at 337.”  (Alack is the subject of another post in this blog.)

Seeing this hole in the armor of exculpatory clauses, plaintiff lawyers seek to plead and prove not only the usual ordinary negligence claim, but also a separate “recklessness claim” seeking damages for defendant’s gross negligence or recklessness.  Such a claim for recklessness was tried to a jury and its verdict for plaintiff upheld on appeal to this same Eastern District in Hatch v. V.P Fair Foundation, 990 S.W.2d 126 (Mo. Ct. App. E.D. 1999).

Before going on, one may ask how did the focus turn to “recklessness” when the Alack case speaks of “gross negligence.”  In Decormier, the defendant made it easy during oral argument on appeal by, in essence, answering “yes, our position is that recklessness is gross negligence.” (Footnote 3 on page 7)  Even without that verbal exchange, the Hatch opinion may well have provided fertile ground for the court to have equated recklessness with gross negligence.

In this new case–Decormier v. Harley Davidson–the plaintiff signed a broad release of Harley Davidson in order to ride the New Rider Course provided by HD.  Sadly, certified instructors sent this new rider out on a course that had turned icy and slippery.  The slick conditions caused plaintiff to lose control of her motorcycle and suffer serious injuries.  Nevertheless, the trial court showed no mercy and granted summary judgment in favor of defendants and against plaintiff based upon the release of liability signed by plaintiff before she rode the course.

However, plaintiff’s petition for damages saved her a day in court because in it her counsel asserted that: (1) defendants knew or should have known that the icy conditions of the [range] created an unreasonable risk of bodily harm; and, (2) defendants knew or should have known that an inexperienced rider on icy or slippery conditions created an unreasonable risk of bodily harm.  These assertions went beyond mere ordinary negligence.  In the Court’s words on page 13, “[t]his language reflects the definition of recklessness.”   And since recklessness/gross negligence is not waived by the exculpatory release of liability, the court of appeals reversed the trial court’s summary judgment for defendants, thereby putting the plaintiff’s case back on track in the trial court.

This appellate court set forth a full description of “recklessness” on page 8 of the opinion.  Boiled down, recklessness exists where there is an unreasonable risk of bodily harm that involves a high degree of probability that substantial harm will result.  To help us distinguish recklessness from ordinary negligence or intentional misconduct, the court gave these signposts:

1.  Ordinary negligence consists of intentionally doing an act with knowledge it contains a risk of harm to others.  Recklessness is a higher, more onerous species of negligence in that there is a high degree of probability that substantial harm will result.   (Page 9)

2.  Intentional conduct is that from which consequences are  “substantially certain” to result; with recklessness, there is just a “strong probability” of harm.  (Page 9)

3.  Put another way: “As the certainty of the consequence decreases, the characterization of the person’s mental state shifts to reckless, then to negligent.”  (Page 9)

The short of all this is that Missouri law now puts a fair sized dent into exculpatory clauses in releases, waivers, contracts, and elsewhere.  These infuriating broad waivers of liability that folks without clout often have to sign are becoming a bit more vulnerable.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068


Personal Injury, Workers Compensation

Chapter 7 Bankruptcy for debtors, Family Law, General Trial and Other Matters

July 12, 2013

Can Hospital Reject Insurance Payment and Put Lien on Patient’s Personal Injury Case for Full Amount Charged by Hospital?

The case of Iretta Morgan v. Saint Luke’s Hospital of Kansas City is the first in Missouri to address whether a hospital may reject payment of a claim by a health insurer in order to put a lien on the patient’s lawsuit for the full amount of the hospital’s charges.

The hospital in this case treated Ms. Morgan’s injuries from a motor vehicle accident before billing her health insurance company which then paid the hospital bill after applying the appropriate discount.  The new twist–after the hospital received payment from the insurer, St. Luke’s returned the check and put a lien on Ms. Morgan’s personal injury claim against the other driver–for the full amount of its bill without the discount given the health insurance company.  This effort by the hospital to increase its revenue caused Ms. Morgan to file a class action lawsuit against the hospital  in the Circuit Court of Jackson County.  Alas, she lost in that court as the judge granted the hospital the rare prize of judgment on the pleadings based on the rationale that the Missouri’s hospital lien statute (430.230) affords hospitals the right to file such a lien “without limitation.”

However, the court of appeals disagreed and reversed and remanded, enabling Ms. Morgan to continue her case against the hospital for violation of the Missouri Merchandising Practices Act (think attorneys fees for prevailing plaintiff), tortious interference with contract/business relationship, and unjust enrichment.  The appellate court’s opinion (WD75098, filed June 28, 2013) discusses the split on this issue in other states, noting that “most courts generally hold that a healthcare provider covered under the hospital lien statute may not assert a lien against the claim of a patient with health insurance for an amount beyond what the contract between the provider and the health insurance company dictates.”

In reversing against the hospital, the Western District found first and foremost that while the hospital’s right to assert a lien on the injured patient’s claim for personal injury is not limited by  the language of Missouri’s hospital lien law (section 430.230), “it is axiomatic that ‘a lien cannot exist in the absence of [a] debt, the payment of which it secures.'”  [Citations omitted.]  In other words, the health insurance company had paid the hospital the entire discounted amount due, leaving no debt on which to place a lien.

After all, why should a hospital make more off one patient who has a personal injury claim, that from a patient that does not?

And so this aggressive lien play by the hospital backfires as the hospital has now returned its payment from the health insurance company, and embroiled itself in defending a class action where it risks having to pay the plaintiffs’ attorney fees and more.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068


Personal Injury, Workers’ Compensation

Chapter 7 Bankruptcy, Family Law, General Matters

May 22, 2013

New Opinion Affirming Award of Punitive Damages in Delacroix v. Doncasters

As of May 7, 2013, the Eastern District of the Missouri Court of Appeals handed down a revised opinion in appeal ED97375, a case captioned Delacroix v. Doncasters which addressed the level of proof necessary for an award of punitive damages in an aircraft product liability case in Missouri.

This court’s first slip opinion issued January 2013 in appeal ED97375 affirmed the trial court’s decision to disavow the jury’s award of $28 million in punitive damages to the plaintiffs who were killed in the crash of the sky diving plane fitted with defective blades sold on the market by a company later purchased by defendant Doncasters.

But the court’s second opinion dated May 7, 2013, turned about to fully uphold the jury’s award of punitive damages.

In reaching its final conclusion that the plaintiffs did in fact sufficiently prove their case for an award of punitive damages, the court stated that plaintiffs in a strict liability products case must present clear and convincing evidence that the defendant placed in commerce an unreasonably dangerous product with actual knowledge of the defect, and that by doing so acted with conscious indifference or reckless disregard for the safety of others.  The court defines “clear and convincing” as being evidence sufficient to permit a reasonable juror to conclude with convincing clarity the truth of the proposition sought to be proven.  These standards and definitions may seem a bit circular and hazy but it seems that the court “knows one when it sees it.”

Here the evidence presented by the plaintiffs to justify punitive damages included expert testimony based on documents produced by the defendant that the blades never passed the FAA tests for durability of the engine prop blades that failed to cause the crash that killed the sky divers, and that the manufacturer knew of the failure but nevertheless made and sold the blades anyway–a mind-boggling mistake.  The blades failed two durability tests and never passed the test in the engine for which they were manufactured.  This the manufacturer knew before the sale of the blades involved in this case.  Not only did the original manufacturer know the blades failed, but so did defendant Doncasters, the purchaser of the manufacturing company.  Despite admitted knowledge of the sale of defective blades, defendant Doncasters never recalled or issued warnings to purchasers of the defective blades.

While a dissenter  wrote against the decision on this appeal, the reasoning of the block of justices upholding the award of punitive damages to plaintiffs rests on solid ground.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068


Litigation–Personal Injury, Workers’ Compensation, and General Matters

January 29, 2013

Pre-impact Terror and Actual Knowledge for Punitive Damages in Aircraft Product Liability Case

The Eastern District of the Missouri Court of Appeals recently issued its opinion ED97375 in Delacroix v. Doncasters, Inc. (01.15.2013), an airplane product liability case.  That court affirmed $4 million of compensatory damages as to each of the five persons killed in the 07.29.2006 crash of a sky-diving plane, but denied plaintiffs $28 million of punitive damages also awarded by the Franklin County jury in a trial bifurcated as a sanction against Doncasters,Inc., for late production of 8000 documents to plaintiffs’ counsel.

Besides the bifurcation sanction, this case holds interest in at least three areas:

1.  Court agrees that plaintiffs are entitled to recover for pre-impact terror during the 52 seconds that it took the plane to hurtle to ground after a defectively coated compression turbine blade failed and destroyed the right engine.  Simply put, the court found the passengers killed by the crash began to suffer injury–terror, distress–when the engine failed and before the physical impact brought death.  Therefore, no error in submitting the case to the jury using MAI 5.01 with language allowing award of damages for the damages that the deceased persons suffered between the time of injury and death.

2.  Plaintiffs sought to offer evidence of twenty-six similar blade failures.  However, the court excluded all, finding cause of blade failure in those incidents did not match that of the blade at issue in this case–substandard coatings which allowed corrosion of the also substandard base metal of the blade.

3.  The court of appeals took away the jury’s $28 million award of punitive damages, finding the testimony of plaintiffs’ experts failed to show the required actual knowledge by the defendant of the defective condition.  Plaintiffs’ experts testified that the company knew that the blades failed to pass–twice–FAA 150 hour endurance tests  in the subject engine type and therefore knew the blades were defective prior to 1986.  Indeed, the company’s representative testified that defendant Doncasters, Inc., knew the blades were defective but claimed to have only first so learned in 2001, some time after Doncasters bought the company that sold these defective blades in 1996.   Why were the blades not recalled and/or warnings sent out by Doncasters after purportedly discovering defects in 2001?

In any event, the dissenting judge opines that plaintiffs’ expert testimony certainly satisfied the burden of proof on actual knowledge of the company that its blades were defective due to inferior anti-corrosion coating and substandard base metals which never passed FAA endurance tests.  Indeed, the jury surely thought that Doncasters’ fault so serious as to be deserving of $28 million in punitive damages to punish it and deter others from such reckless disregard for the safety of others.   A strong point of the dissent is that the jury is free to disbelieve Doncasters’ claim it first learned of the defective condition in 2001, and plaintiffs’ experts testified to defendant’s actual knowledge as being prior to 1986.  [Keep in mind, that the purchaser of the stock of a company, as Doncasters presumably did in this case, generally renders the purchaser liable for the liabilities of the company it so purchased.]

Interesting case handled for the plaintiffs by good lawyers–Gary and Anita Robb of Kansas City.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068


Personal Injury, Workers’ Compensation, General Litigation

January 8, 2013

Missouri’s Position on Statutory Damage Caps in Wrongful Death Cases Involving Medical Malpractice?

Years ago, Missouri lawmakers did an end run to block juries from setting the final amount of non-economic damages due a  wrongfully injured person as a result of improper health care.  To do so, they passed what is now Missouri statute 538.210, which lets the jury determine fault and the amount of damages, but then requires the judge (unbeknownst to the jury) to cap the amount of non-economic damages at $350,000 as of this post.

This fix lasted until July 31, 2012, the date of the Missouri Supreme Court’s opinion SC91867 in Watts v. Lester E. Cox Medical Center, now found at 376 S.W.3d 633.  In that case, Missouri’s Supreme Court struck down damage caps  in a medical malpractice case involving a child born brain damaged, but who survived to need care for life.

In deciding Watts, the high court  found that the Missouri Constitution first adopted in 1820 mandates the right to jury trial as it previously existed at common law.  Since no such damage caps existed then in common law, the damage cap statute first implemented over a century later unconstitutionally curtailed the right to trial by jury in Missouri.  Therefore, the damage cap statute violates the Missouri Constitution and is consequently a nullity as to such common law causes of action.   Good-bye damage caps in medical practice cases?–not quite.

The question remains after Watts: do the caps still apply  where substandard care from a health care provider results in the patient’s death and suit is brought for damages as a wrongful death claim?  On this point, we find the same Missouri Supreme Court deciding in April 2012 (just three months before Watts) that such damage caps are alive and well–and lawfully applied  by the trial judge to reduce the amount of non-economic damages awarded by the jury in a wrongful death case where improper health care caused the patient’s death.  See Sanders v. Ahmed, at 364 S.W.3d 195 (see page 204).

This begs the question, why does the cap apply when the patient dies but not when he or she lives?  The rationale given in Sanders is that wrongful death actions did not exist in common law adopted by the State of Missouri through its Constitution of 1820.  Rather, the Missouri legislature later statutorily established wrongful death as a cause of action in Missouri, and that not until about 1855 according to the court in Sanders.   Thus, it seems that the high court holds that the right to an unrestricted jury verdict of damages due the plaintiff follows only if the cause of action existed in the common law of this state as of 1820.  As wrongful death actions did not then exist in common law, being cast by state statute years later,  the constitution is now read to permit application of damage caps in wrongful death cases based on medical negligence.

One could and should argue that this uneven and unfair application of damage caps runs afoul of the Equal Protection clauses in the Missouri and United States Constitutions and that question and others like it  may well fuel future appeals of such wrongful death cases to the Missouri Supreme Court.

Would it be too simple to remove damage caps entirely where the parties have a right to a jury trial?  Might we better focus on leaving the common law right to jury trial as free of damage caps and the like as it was originally in 1820 here in Missouri and grant all causes of action later adopted (that are entitled to jury trial) the same full right to trial by jury?  Why limit non-economic damages for a patient that dies but not for one who survives improper health care?  Is there really a rational basis for a distinction with that impact?  Or is this just man-made logic?

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068


Personal Injury, Workers’ Compensation, Trial and Appellate Practice

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