The Flag, May-June 2020
Vol. 76, No. 3 / May - June 2020
W. Dudley McCarter
W. Dudley McCarter, a former president of The Missouri Bar, is a partner in the St. Louis law firm of Behr, McCarter & Potter, P.C.
WIDE LATITUDE IS GIVEN ON CROSS-EXAMINATION OF AN EXPERT
“Amy Revis (‘Revis’) appeals the trial court’s judgment following a jury verdict in favor of Donald Bassman, M.D. (‘Dr. Bassman’) in her medical malpractice action.” 2 Among her points on appeal, she challenged the trial court’s ruling that precluded cross-examination of Dr. Bassman’s expert witness on his tort reform activities. “[T]he trial court did not reasonably exercise its discretion when it excluded testimony of the expert witness’s tort reform activities.” 3 The Court of Appeals reversed the judgment in Revis v. Bassman, No ED107663 (Mo. App. E.D. 2020).
“Revis fell about three to four feet from a ladder … on her right foot. Revis went to the hospital by ambulance….” 4 The emergency room physician determined Revis fractured her ankle and calcaneus (heel bone). The emergency room physician called Dr. Bassman, the on-call orthopedist. Dr. Bassman indicated Revis needed surgery and contacted the operating room the next morning to schedule the surgery.
Dr. Bassman performed the surgery to repair Revis’s fractures by placing several screws.
The back of Revis’s heel did not heal after surgery. Specifically, the back of the skin of Revis’s heel suffered necrosis, also known as tissue death. Revis required additional treatment and surgeries to heal the wound area, including skin grafts to the back of her heel.
In 2015, Revis filed a medical malpractice action alleging that Dr. Bassman committed medical malpractice by delaying surgery on her heel, thereby causing the tissue necrosis.5
“Dr. Bassman retained Dr. Brett Grebing (‘Dr. Grebing’), who testified the necrosis was caused by the forceful trauma of Revis’s fall resulting in a piece of the calcaneal bone pulling off and moving through the tissue, not the timing of Revis’s surgery. The trial court admitted Dr. Grebing’s causation testimony….” 6
Revis sought to cross-examine Dr. Grebing about his conduct and involvement in past tort reform activities to show bias, interest, and prejudice against plaintiffs in medical malpractice actions. Revis submitted an offer of proof relating to Dr. Grebing’s activities while he was president of a medical society. Dr. Grebing’s alleged conduct included writing legislators advocating for the enforcement of existing statutes of limitations for certificates of merit filed in medical malpractice claims as well as for statutory caps on damage awards as both a member of the medical society and as a medical professional. Revis’s offer of proof revealed Dr. Grebing would have denied he engaged in tort reform activities while he was president of his local medical society, despite the fact he testified in an earlier deposition it was “fair to say” he engaged in tort reform activities in his role as president.7
‘“A trial court enjoys considerable discretion in the admission or exclusion of evidence, and, absent clear abuse discretion, its action will not be grounds for reversal.’ Koelling v. Mercy Hosps. E. Cmtys., 558 S.W.3d 543, 550 (Mo. App. E.D. 2018)….” 8
“During cross-examination of an expert witness, parties are ‘given wide latitude to test qualifications, credibility, skill or knowledge, and value and accuracy of opinion.’ Montgomery v. Wilson, 331 S.W.3d 332, 341 (Mo. App. W.D. 2011)…. ‘The jury in entitled to know information that might affect the credibility of the witness and the weight to give to his testimony.’ Id. (alterations omitted) (emphasis added.)” 9
‘“[I]t is well-settled that the interest or bias of a witness and his relation to or feeling toward a party are never irrelevant matters.’ Mitchell v. Kardesch, 313 S.W.3d 667, 676 (Mo. banc 2010)….” 10
Thus, “Cross-examination about any issues, regardless of its materiality to the substantive issues at trial, is permissible if it shows the bias or interest of the witness because a witness’s bias or interest could affect the reliability of the witness’s testimony on any issue.” Id. (emphasis added). However, while cross-examination regarding bias or prejudice can always be shown, it is ‘subject to the limitations imposed by the trial judge in his sound discretion.’” Wilson, 331 S.W.3d at 341.11
“Our Court recently addressed this issue in Koelling, 558 S.W.3d 543.” 12 “We reasoned, ‘While the trial court may properly limit the scope and extent of cross-examination into the witness’ bias or prejudice, it is not within the trial court’s discretion to prevent it entirely.’ Id. at 552….” 13
While Koelling is factually dissimilar, its context is directly on point. Here, the trial court might have, within its discretion, limited the scope of Appellant’s inquiry about Dr. Grebing’s involvement in tort reform to prevent juror confusion. Instead, the trial court prohibited Appellant from inquiring about Dr. Grebing’s tort reform efforts at all. In doing so, the trial court foreclosed a subject Appellant sought to use to demonstrate Dr. Grebing’s bias. Following Koelling, it was not within the trial court’s discretion to prohibit all inquiry into his involvement with tort reform.14
DEFENDANT DISCHARGED PLAINTIFF IN MISSOURI AND, THEREFORE, WAS SUBJECT TO PERSONAL JURISDICTION IN MISSOURI
“Centene Corporation (‘Centene’) and AcariaHealth Pharmacy, Inc. (‘Acaria’) (‘Appellants’ collectively) appeal the circuit court’s judgment entered on a jury verdict finding in favor of Christine Pitcher on her common-law retaliatory discharge claim against Appellants.” 15 Appellants appeal, contending, among other things, that the circuit court erred in overruling Acaria’s motion to dismiss, arguing the trial court had no jurisdiction over Acaria.
“Pitcher, a licensed pharmacist and Missouri resident, was hired in May 2014 by Acaria as the director of a pharmacy located in Lenexa, Kansas…. Acaria is a corporation incorporated in California with corporate headquarters in Orlando, Florida. Centene is Acaria’s parent company.” 16
“In July 2016, Pitcher raised concerns about the legality of transaction involving a Kansas Medicaid recipient.” 17 “After Pitcher raised concerns about the legality of the virtual transfer of Daraprim, Appellants engaged in a pattern of conduct Pitcher believed was retaliatory for Pitcher having raised concerns.” 18 “Pitcher was issued a ‘Last Chance Agreement’ … stating that her conduct was unprofessional and unacceptable. Prior to this agreement, Pitcher had received no verbal or written discipline or counseling.” 19 Several months later Pitcher was called at her home in Missouri and told she was terminated.
“… Pitcher filed a common law retaliatory discharge claim against Appellants in Jackson County, Missouri.” 20 The jury returned a verdict in Pitcher’s favor. The Court of Appeals affirmed the judgment in Pitcher v. Centene.
…Appellants contend the circuit court erred in overruling Acaria’s motion to dismiss, arguing the trial court does not have personal jurisdiction over Acaria because Acaria did not commit a tort in Missouri and Acaria does not have sufficient minimum contacts with Missouri to establish specific personal jurisdiction. Acaria argues that the fact that Acaria contacted Pitcher at her Missouri residence to advise her she was fired was insufficient to establish personal jurisdiction under Missouri’s long-arm statute.
“[W]hen the issue is whether Missouri courts have personal jurisdiction over defendant, a reviewing court defers to the fact-finding court with regard to any facts that are essential to that determination[.]” Pearson v. Koster, 367 S.W.3d 36, 44 (Mo. banc 2012). “[H]owever, the ultimate question of whether the exercise of jurisdiction meets the standards of the Missouri long-arm statute and the constitution remains a legal question, which is reviewed independently on appeal.” Id. “A plaintiff has the burden to establish that a defendant’s contacts with the forum state were sufficient.” Andra v. Left Gate Property Holding, Inc., 453 S.W.3d 216, 224 (Mo. banc 2015)….21
‘“Section 506.500 is construed to extend the jurisdiction of the courts of this state over nonresident defendants to that extent permissible under the Due Process clause.’ Bryant v. Smith Interior Design Group, Inc., 310 S.W.3d 227, 232 (Mo. banc 2010)….” 22
“Pitcher contends Acaria finalized its tortious act of retaliatory discharge by discharging her in the State of Missouri.” 23 “Here, Acaria internally made the decision to formally communicate Pitcher’s discharge from her employment while Pitcher was home in Missouri.” 24
“Our Missouri Supreme Court stated in Bryant that extraterritorial acts that produce acts that produce consequences in Missouri are subsumed under the tortious act section of Section 506.500. 310 S.W.3d at 232. ‘For the statute to apply, the tortious act may occur outside of Missouri, so long as it produces actionable consequences in Missouri.’ Noble v. Shawnee Gun Shop, Inc., 316 S.W.3d 364, 371 (Mo. App. 2010)….” 25 “Here, viewing the facts in the light most favorable to the trial court’s ruling, Acaria chose to discharge Pitcher at her Missouri home, and it can be inferred from the evidence that the emotional distress Pitcher alleges resulted from the discharge occurred in Missouri as well.” 26
“Acaria argues Pitcher’s mere presence in Missouri at discharge was insufficient to establish personal jurisdiction and relies on State ex rel. PPG Industries, Inc. v. McShane, 560 S.W.3d 888, 892-983 (Mo. banc 2018).” 27
Acaria ignores that, in McShane, the Court distinguished Bryant v. Smith Interior Design Grp., Inc., 310 S.W.3d 227, 232 (Mo. banc 2010), a case finding personal jurisdiction where physical mail, email, and telephone calls were made directly to the Missouri plaintiff, concluding that, “[h]ere, no such direct or individual communication was made to [Plaintiff].” McShane, 560 S.W.3d at 892. In this case, direct communication was made by Acaria to Pitcher in Missouri when she was discharged from employment. 28
“We conclude that the trial court did not err in overruling Acaria’s motion to dismiss for lack of jurisdiction as sufficient evidence in record supports that the retaliatory discharge cause of action arose out of Missouri, and Acaria purposefully availed itself of the privilege of conducting activities within Missouri so as to establish minimum contacts within the State to satisfy due process.” 29
BENEFICIARY OF TRUST VIOLATED THE “NO-CONTEST” CLAUSE AND THEREBY FORFEITED ALL BENEFITS FROM THE TRUST
“After a beneficiary stopped receiving distributions from a trust of which he was the sole beneficiary, he filed suit against the trustee for breach of trust and removal of the trustee. The trustee filed a counterclaim for a judgment declaring that the beneficiary’s petition violated the no-contest clause in the trust instrument and, as a result revoked and cancelled all trust provisions in the beneficiary’s favor.The circuit court sustained the trustee’s motion for summary judgment on its counterclaim.” 30 The Supreme Court of Missouri affirmed in Knopik v. Shelby Investments.
“The circuit court did not err in entering summary judgment in favor of the trustee on its declaratory judgment claim because the beneficiary did not seek relief from the non-contest clause pursuant to section 456.4-420, in which he could have challenged the enforceability and applicability of the no-contest clause to his claims.” 31
Gift L.L.C. (“Settlor”) created the Knopik Irrevocable Trust (“Trust”) in late December 2016. The provisions of the Trust established Shelby Investments, L.L.C. (“Trustee”) as the sole trustee and Samuel Knopik (“Beneficiary”) as the sole beneficiary of the Trust. The Trust was to provide the Beneficiary with a $100-per month distribution, beginning in December 2016 and ending in December 2020. Provision 12 of Trust, denominated “No Contest,” provided:
In case any beneficiary shall (i) contest the validity of this trust, or any provision hereof, in whole or in part; (ii) make a claim against a trustee for maladministration or breach of trust; or (iii) attempt to remove a trustee for any reason, with or without cause; then such contest or claim and such attempt shall cancel and terminate all provisions for or in favor of the beneficiary making or inciting such contest or claim, without regard to whether such contest or claim shall succeed or not; and all and any provisions or provision herein in favor of the beneficiary so making such contest or claim, or attempting or inciting the same, to be revoked and of no force and effect; and the entire trust estate shall revert to the Settlor and be distributed to the Settlor.32
Only one question of law is presented: is the no-contest clause in the trust document enforceable? The Beneficiary asks this Court for relief by making one or both of the following holdings: (1) that no-contest clauses do not apply to actions for breach of trust and/or removal of trustee; (2) that no-contest clauses are subject to a good faith/probable cause exception. Under the facts of this case, this Court declines to make either holding.
A no-contest clause in a trust serves a dual purpose: it permits the settlor to dispose of his own property as he sees fit, and it forces “the grave consequences of a forfeiture upon the beneficiary who attempt[s] to frustrate the intention of donor as expressed in the disposing instrument.” Cox v. Fisher, 322 S.W.2d 910, 913 (Mo. 1959). This Court has long held valid and enforceable provisions in wills and trusts instructing that a contest to the validity of the instrument will result in forfeiture. See, e.g., id.; Commerce Tr. Co. v. Weed, 318 S.W.2d 289, 299 (Mo. 1958); Rossi v. Davis, 133 S.W.2d 363, 372 (Mo. 1939); In re Chambers’ Estate, 18 S.W.2d 30, 37 (Mo. banc 1929). Resolving the issue of whether a beneficiary has violated a forfeiture provision of trust depends on the facts of the case and the language of the forfeiture provision. Cox, 322 S.W.2d at 914. The basic principle is that “a no-contest or forfeiture provision is to be enforced where it is clear that the [settlor] intended that the conduct in question should forfeit a beneficiary’s interest under the [trust].” Id.33
[I]f the Beneficiary wished to challenge the enforceability and applicability of the no-contest clause to the claims in his petition, he should have done so in proceeding under section 456.4-420. Section 456.4-420, enacted by the Missouri legislature in 2014, addresses a procedure by which an interested person can seek to avoid the effect of no-contest clauses in trusts. The statute provides “for an interlocutory determination whether a particular . . . petition . . . by interested person would trigger application of the no-contest clause or would otherwise trigger a forfeiture that is enforceable under applicable law and public policy.” Section 456.4-420.1.34
“Section 456.4-420 provided a “safe harbor” in which the Beneficiary should have invoked a challenge to the enforceability and applicability of the no-contest clause to his claims for breach of trust and removal. But the Beneficiary chose to file his petition asserting the exact claims the Trust unambiguously stated would result in forfeiture.” 35
“Courts cannot ignore the plain language of a no-contest clause. Here, the Beneficiary ignored the means provided by section 456.4-420 for challenging the enforceability and applicability of the no-contest clause to his claims.” 36
“In his concurring opinion, Judge Wilson stated that he hoped ‘this case – and the ramifications and remedies that will follow from the pursuit of a fictitious or collusive suit, though they were not invoked here – come to mind the next time counsel or their clients consider feigning a dispute (or the appearance of one) merely for the purpose of securing an advisory opinion.’” 37
CONTINUING CARE EXCEPTION TO TWO-YEAR STATUTE OF LIMITATIONS FOR MEDICAL MALPRACTICE IS TO BE DETERMINED ON AN OBJECTIVE STANDARD
Sharon and Brian Newton (collectively, “the Newtons”) appeal the judgment of the circuit court sustaining a motion for summary judgment in favor of Mercy Clinic East Communities d/b/a Mercy Clinic OB/GYN (“Mercy Clinic”) and Christina Kay Meddows-Jackson, M.D. (“Dr. Meddows-Jackson”). The Newtons argue the circuit court erred in granting summary judgment because genuine issues of material fact existed as to whether their medical malpractice action was timely because the continuing care doctrine applied to toll the two-year statute of limitations.38
The Supreme Court affirmed the judgment in Newton v. Mercy Clinic East.
“The timeline of this case begins July 5, 2012, when Ms. Newton presented to Dr. Meddows-Jackson with an ovarian cyst. On July 10, 2012, Dr. Meddows-Jackson surgically removed Ms. Newton’s cyst. She then saw Ms. Newton three separate times between July 16, 2012, and August 1, 2012, for post-operative care.” 39 “On February 5, 2013, Dr. Meddows-Jackson saw Ms. Newton again for a post-operation evaluation. Finally, Ms. Newton saw a different Mercy Clinic doctor, Dr. McBride, on June 18, 2013, for treatment.” 40
“After the appointment on February 5, 2013, Ms. Newton did not see Dr. Meddows-Jackson again until January 29, 2015, when Ms. Newton presented for a general gynecological exam,” and she ‘explained she was having difficulty conceiving….’” 41 “That prompted Dr. Meddows-Jackson to order diagnostic testing. The testing revealed Ms. Newton’s fallopian tubes were damaged.” 42 The Newtons then filed this suit on June 1, 2016.
“Mercy Clinic and Dr. Meddows-Jackson argued the Newtons’ claim was time-barred because, even assuming the continuing care tolling doctrine applied, it did not toll the statute of limitations until June 1, 2014, which would be necessary to make the Newtons’ suit timely.” 43 “Under Missouri law, medical malpractice actions must generally be brought within two years of the date of the alleged act of negligence.” 44
This Court first recognized the continuing care tolling doctrine in Thatcher v. De Tar, 173 S.W.2d 760 (Mo. 1943). In that case, the Court explained the statute of limitations does not begin to run if the physician’s “treatment is continuing and of such nature as to charge the medical man with the duty of continuing care and treatment which is essential to recovery . . .” Id. at 762. This exception is to ensure that a patient – facing the short statute of limitations imposed by statute – is not faced with the impossible choice of either disturbing a course of treatment by initiating suit against a caregiver or losing a viable cause of action.45
“[T]he duty to provide ‘continuing care’ ends when the necessity that gave rise to that duty has ended unless, before the cessation of that necessity, the parties terminate that duty by jointly agreeing to end the relationship, the physician withdraws after reasonable notice, or the patient dismisses the physician.” 46 The date on which the necessity that gave rise to the duty ended “is to be determined using an objective standard without inquiry into what the physician knew or should have known.” 47
“The Newtons’ claims against Mercy Clinic and Dr. Meddows-Jackson arise out of the alleged negligent care Dr. Meddows-Jackson provided between July 16, 2012, and August 1, 2012. The necessity that gave rise to Dr. Meddows-Jackson’s duty of continuing care to Ms. Newton was the surgical removal of an ovarian cyst and related post-operative care, including treatment of the surgical site infection.” 48 “[T]he last date on which Dr. Meddows-Jackson treated that infection was February 5, 2013, and … the infection itself ended (at the latest) June 18, 2013.” 49
“[T]he necessity that gave rise to Dr. Meddows-Jackson’s duty of continuing care ceased when the treatment for cyst removal and resulting surgical site infection ended, i.e., June 18, 2013, at the latest. Any tolling under the continuing care tolling doctrine ended that same day, and the Newtons had two years from that date to file suit. Because they failed to do so, their action is time-barred.” 50
1 W. Dudley McCarter, a former president of The Missouri Bar, is a partner in the St. Louis law firm of Behr, McCarter & Potter, P.C.
2 Revis v. Bassman, No. ED107633, 2020 WL 107626 (March 3, 2020).
3 Id. at *1.
7 Id. at *2.
9 Id. at *4.
14 Id. at *5.
15 Pitcher v. Centene, No. WD82564 (Mo. App. W.D. 2020).
30 Knopik v. Shelby Investments, No. SC97985 (Mo. banc 2020).
38 Newton v. Mercy Clinic East, No. SC97686 (Mo. banc 2020).