10:37 AM

The Flag: Expert testimony, fee-splitting, and more

Vol. 79, No. 6 / Nov. - Dec. 2023

W. Dudley McCarter, a former president of The Missouri Bar, is a partner in the St. Louis law firm of Behr, McCarter, Neely & Gabris.


Forester v. May, No SC99928 (Mo. banc 2023). 

Christina Forester appealed the circuit court’s judgment dismissing her petition for wrongful death of her granddaughter on grounds Crystal May is entitled to official immunity. Forester claimed the circuit court erred in sustaining May’s motion to dismiss Forester’s petition because the petition alleges facts that, if true, were sufficient to prove May breached her duty to perform the ministerial task of completing and emailing a form within 72 hours of beginning a child abuse investigation. The Missouri Supreme Court affirmed the judgement.i 

Forester claims the circuit court erred in dismissing her petition because May owed M.S. a ministerial duty to make a timely SAFE CARE referral and had no official immunity for her failure to do so in that she lacked any discretion about whether, when, or how to make such a referral.  

In the opinion, the court noted “Official . . . immunity protects public officials sued in their individual capacities from liability for alleged acts of negligence committed during the course of their official duties for the performance of discretionary acts.”ii 

In addition, the court said it recognized “a narrow exception to the application of the official immunity doctrine-i.e., when a public officer fails to perform a ministerial duty required of him by law, he may be personally liable for damages caused.”iii 

The language of the Department of Social Services Child Welfare Manual granted May the discretion, after receiving a child abuse report: (1) to complete and email the form; (2) not to complete the form because “the child has already been seen; or (3) not to complete the form because “it is known the child will be referred to a local SAFE-CARE provider.”iv 

The court found that because there was ‘room . . . for variation in when and how’ May would respond to the reports of abuse, including whether to make a referral at all, her acts were not ministerial.v Therefore, the factual allegations of Forester’s petition establish May is entitled to official immunity and fail to establish the ministerial-duty exception to immunity applies.  



Huett v. Branson, ED 110991 (Mo. App. E.D. 2023). 

Jessica Huett, the natural mother and Next Friend of J.H., appealed the judgment entered on the jury’s verdict finding that Kent D. Branson, M.D., (“Defendant”) was not liable for medical negligence in the delivery of Huett’s son, J.H. On appeal, Huett contended that the circuit court erred in permitting a biomechanical engineer to testify as an expert about the general and specific causes of J.H.’s injury. The Missouri Court of Appeal-Eastern District reversed the verdict.vi  

In the opinion, it was noted that "[e]xpert testimony in civil cases is only admissible if it satisfies the evidentiary requirements of § 490.065.”vii The court has previously held that the “admissibility of expert testimony under [§] 490.065.2 requires simply that it be relevant and reliable and proffered by a qualified expert.”viii  

Further, the court wrote, “Reliability is determined by considering whether the testimony is based on sufficient facts or data, reliable principles and methods and reliable application thereof.”ix  

The causation opinion of the defendant’s expert was inadmissible because it was not based on sufficient facts and data about the particular delivery in this case and because she did not reliably apply her computer program to the particular facts of this case as required by § 490.065.  

 The specific causation testimony discussed above was not only outside the expert’s qualifications, but also was based on insufficient facts and unreliable methods. Her opinion that J.H. was more susceptible to brachial plexus injury was based solely on the fact that he incurred that injury. This circular reasoning is not only an insufficient factual basis for the conclusion about J.H.’s susceptibility, it is not a reliable method for reaching this conclusion. It does not appear to have utilized any method at all in violation of § 490.065.2(1)(c). 

Additionally, the expert’s conclusion that J.H.’s injury was due primarily to maternal forces is based on speculation and conjecture and lacks any application of her modeling to the facts of this case as required by § 490.065.2(1)(d). The expert’s computer simulation program was not a reliable method for analyzing this specific case and was not reliably applied to the facts of this case as required by § 490.065.2(1)(c)-(d). 

“An expert witness’s opinion must have a ‘rational basis,’ the court noted, “and be founded on substantial information, not ‘mere conjecture or speculation.’x 



Sullivan v. City of University City, No ED111084 (Mo. App. E.D. 2023). 

Thomas Sullivan and David Harris appealed the circuit court’s judgment dismissing with prejudice their first amended petition for a declaratory judgment against University City and numerous individual respondents. The appellants argued their petition sufficiently stated a cause of action under § 115.646, which prohibits public officials from expending public funds to advocate for or against any ballot measure. 

Finding that the appellants do not have a private cause of action under § 115.646, the Missouri Court of Appeal-Eastern District affirmed the judgment.xi 

Appellants argued that the trial court erred in dismissing their first amended petition because they believe § 115.646 provides taxpayers as a protected class with a private right of action to sue to enforce its provisions. Theappellants maintained such a right must be implied for the statute to achieve its purpose because the statute prohibits both purposeful conduct, which constitutes a crime, and nonpurposeful conduct, which is prohibited but not criminalized.  

In the opinion, the court noted, “We decline to depart from the general rule that, ‘when the legislature has established other means of enforcement, we will not recognize a private civil action unless such appears by clear implication to have been the legislative intent.’xii ‘[T]he legislature would have manifested its intent in like manner had it intended to create additional or alternative means of enforcement.’xiii Conversely, when the legislature does not manifest this intent, the designated agency has the exclusive right to sue.xiv  

The appellants’ suit concerns solely a violation of § 115.646, and the court found the appellants have not demonstrated taxpayers’ interests are not protected adequately by the remedies provided by the legislature.  

The court added, “Appellants urge this Court to fashion a remedy ‘appropriate to further the purpose and ensure the effectiveness’ of section 115.646, citing American Eagle Waste Industries, LLC v. St. Louis County, 379 S.W.3d 813, 830 (Mo. banc 2012). Appellants contend, because taxpayers have a legally protected interest in the proper use and expenditure of tax dollars, they should be afforded a private right of action under section 115.646.” 

Appellants admitted that the legislature has provided a method by which the Secretary of State, upon the complaint of a citizen, may investigate a possible violation of § 115.646 under § 115.642. This is their remedy. 

The court noted, “Because Appellants’ petition did not demonstrate a clear indication of legislative intent to create a private cause of action under section 115.646, Appellants’ petition does not give rise to a cognizable cause of action.” xv 



Nationwide Transfer LLC v. Neally Law LLC, No SD37267 (Mo. App. S.D. 2023).  

Nationwide Transfer had an arrangement with Neally Law, LLC, to assist Nationwide Transfer customers with release from their timeshares. After a few years, the relationship soured and both sides sued each other. 

Nationwide referred customers to the law firm and customers entered into a separate engagement agreement with the law firm for legal representation. At the successful conclusion of the matter, the law firm was to transfer earned legal fees into its operating account and remit two-thirds of those fees to Nationwide. 

Nationwide filed suit for an accounting. After a bench trial, the circuit court denied Nationwide’s claims, and held that the agreement to split fees is unenforceable under Missouri law (§ 484.150) and public policy. 

On appeal by Nationwide, the Missouri Court of Appeal-Southern District affirmed the judgment.xvi 

The court determined the appellants had no right to any portion of legal fees paid by its customers to the law firm under a legal representation agreement to which appellants were not a party. Missouri law, disciplinary rules, and firm public policy clearly forbid such fee-splitting arrangements between an attorney and a lay agency.xvii  

The court noted that the inability to recover in law or equity on the basis of an illegal agreement has been a fixture for more than a century: 

If there be one principle of the law well settled, it is this: That a contract, 

expressed or implied, based on an illegal consideration, whether that  

consideration appear on the face of the contract or be proved aliunde, 

cannot be enforced either at law or in equity; that the moment the illegality 

of the contract is disclosed the gates of legal and equitable relief and  

remedy are at once shut against the party who seeks to enforce such a  


The court noted, “Appellants also cite general principles of equity and an out-of-state case to argue that equitable relief should provide a remedy in cases where an attorney consents to or drafts an illegal fee-splitting agreement with non-attorneys. As an intermediate court of appeal, we are limited in function and authority.xix . . . We are bound constitutionally to follow Miller, the most recent, controlling decision of the Supreme Court of Missouri. ”xx