By W. Dudley McCarter
Elizabeth Mitchell filed a medical negligence action against Dr. Milton Kardesch, alleging that Dr. Kardesch deviated from the standard of care while treating her husband and that Dr. Kardesch’s negligence resulted in her husband’s death. One night, Mr. Mitchell had chest pains and a nightmare about death. The next morning, Mrs. Mitchell called Dr. Kardesch, who was her husband’s internist. She spoke with Dr. Kardesch’s medical assistant and relayed the previous night’s occurrence. Dr. Kardesch’s medical assistant testified that she could not specifically recall Mrs. Mitchell’s call, but that she believed she told Mrs. Mitchell to take her husband to the emergency room because of the chest pain. Dr. Kardesch testified that he remembered Mrs. Mitchell’s call and that he had instructed his assistant to tell her to get her husband to the emergency room. Mrs. Mitchell testified that she was never instructed to take her husband to the emergency room. Fourteen days later, Mr. Mitchell again felt tightness in his chest and went to the hospital. He died the next day from complications arising from myocardial infarction and arteriosclerosis. The trial court prohibited Mrs. Mitchell’s counsel from impeaching Dr. Kardesch with his interrogatory answer in which he had denied that his license had been suspended or revoked.
In fact, his Missouri and New York licenses to practice medicine both had been suspended due to a Missouri felony conviction unrelated to his medical abilities, as he later admitted in a deposition. The jury returned a verdict in favor of Dr. Kardesch, but the Supreme Court of Missouri reversed in Mitchell v. Kardesch, No. SC 90370 (Mo.banc 2010).
“It has long been the rule in Missouri that on cross-examination, a witness may be asked any questions which tend to test his accuracy, veracity or credibility…” Sandy Ford Ranch, Inc. v. Dill, 449 S.W.2d 1, 6 (Mo. 1970). Much of the trial turned on whether the jury believed Dr. Kardesch or Mrs. Mitchell. Because credibility was such a central issue, Mrs. Mitchell requested permission to ask Dr. Kardesch about a false answer that he gave in his sworn response to an interrogatory answer regarding the suspension or revocation of his professional license. “As a general proposition, the credibility of witnesses is always a relevant issue in a lawsuit.” State v. Smith, 996 S.W.2d 518, 521 (Mo.App. 1999). Impeachment provides a tool to test a witness’s perception, credibility, and truthfulness, which is essential because a jury is free to believe any, all or none of a witness’s testimony. State v. Hineman, 14 S.W.3d 924, 927 (Mo.banc 1999). Most relevant here, cross-examination also long has been permitted to impeach a witness on his or her character for truth and veracity. This means of impeachment, however, must be directed only toward the ultimate issue of a witness’s credibility; thus, a witness may not be impeached by evidence that his or her “general moral character is bad,” or that his or her “general reputation for morality” is bad. Therefore, this form of impeachment must be confined to the witness’s character for truthfulness and veracity. State v. Gregory, 822 S.W.2d 946, 949 (Mo.App. 1992).
When a person, regardless of whether a party, is being questioned on the witness stand, then long-standing Missouri law holds that the person may be asked about specific instances of his or her own conduct that speak to his or her own character for truth or veracity, even when the issue inquired about is not material to the substantive issues in the case. To the extent that State v. Wolfe, 13 S.W.3d 248, 258 (Mo.banc 2000) and cases following it, hold that a witness may not be impeached by asking him or her about specific instances of conduct relevant to his or her character for truth and veracity, it no longer should be followed. Cross-examination may be had on issues relevant to the witness’s character for truth and veracity, regardless of whether the subject of the falsehood is material. See State v. Zahn, 823 S.W.2d 18, 22 (Mo.App. 1991).
Parties are permitted to introduce extrinsic evidence to impeach a witness by showing his or her inability to perceive the events testified to; prior convictions; or to show bias, prejudice or interest in the proceeding, regardless of whether the subject of the extrinsic evidence is independently material to the case. State v. Johnson, 706 S.W.2d 815, 817-18 (Mo.banc 1985) (bias); State v. Kaston, 509 S.W.2d 39, 41 (Mo.1974) (ability to perceive). The real issue to be decided by the trial court is whether admission of the extrinsic evidence would be more probative or more prejudicial. In cases involving character of the witness for truth and veracity, it will be the unusual case where that balancing weighs in favor of admission of extrinsic evidence, but where it does so, such evidence should be admitted. If a new trial occurs, Plaintiff may cross-examine Dr. Kardesch about his interrogatory answer and, if necessary, impeach him with it and with his deposition testimony, subject to the trial court’s exercise of discretion to limit such testimonies so as to avoid distraction of the jury for undue prejudice to Dr. Kardesch.
PHYSICIAN-PATIENT PRIVILEGE
APPLIES TO ALL ASPECTS OF DISCOVERY
William Stinson was involved in a high-speed automobile collision that resulted in the death of Ricky Young. Young’s daughter filed a wrongful death suit against Stinson and his parents. The suit alleged that Stinson was under the influence of intoxicants at the time of the crash. It also alleged that Stinson’s parents negligently entrusted Stinson with the vehicle involved in the crash; that they knew or should have known that Stinson was addicted to alcohol and drugs that impaired his driving ability. Plaintiff’s counsel submitted a medical records authorization to Stinson, permitting the disclosure of all records pertaining to treatment he had received for alcohol, drug or substance abuse problems during the prior 14 years. The trial court overruled Stinson’s objection and ordered him to execute the medical records authorization. The Supreme Court, however, issued a writ of prohibition in State ex rel. Stinson v. House, No. SC90364 (Mo.banc 2010).
The physician-privilege is established by §491.060 RSMo. The physician-patient privilege “applies to medical records and all aspects of discovery.” State ex rel. Dean v. Cunningham, 182 S.W.3d 561, 567 (Mo.banc 2006). In this case, the medical records sought by Young fall within the protective scope of the physician-patient privilege. There is no evidence that Stinson placed any of his medical conditions in issue or took any other steps to affirmatively waive the privilege.
Also, the mere fact that Stinson has denied liability and is defending against the present suit does not constitute a waiver of the privilege. Rodriguez, 996 S.W.2d 47, 63 (Mo.banc 1999). The mere fact that the privileged medical records may be relevant to Young’s claim for negligent entrustment does not mean that the medical records are discoverable. The very nature of an evidentiary privilege is that it removes evidence that is otherwise relevant and discoverable from the scope of discovery. See Rule 56.01(b)(1). Therefore, the fact that the medical records might be relevant to Young’s claim for negligent entrustment does not alter the conclusion that the records are undiscoverable.
The language of §491.060 does not limit the application of the privilege only to situations in which the confidential medical information will be used against the physician’s patient. Because the legislature did not limit the scope of the privilege only to situations in which the confidential medical information will be used against the patient, the privilege applies to all circumstances in which a physician or psychologist is called on to give testimony or produce records concerning information that was acquired from the patient, regardless of whether the information will be used against the patient. “The purpose of the physician-patient privilege is to enable the patient to secure complete and appropriate medical treatment by encouraging candid communication between patient and physician, free from fear of the possible embarrassment and invasion of privacy engendered by an unauthorized disclosure of information.” State ex rel. Woytus v. Ryan, 776 S.W.2d 389, 392 (Mo.banc 1989).
The public policy of encouraging candid communication between patient and physician would be undermined if patients feared that their physicians or psychologists could disclose their confidential communications in any lawsuit, regardless of whether the information would be used against the patient or a third party. Information contained in a patient’s medical file becomes no less private or potentially embarrassing to the patient, merely because the information will be utilized against someone other than the patient. Stinson faces the same possibility of embarrassment and invasion of privacy that he would face if his medical records were released to prove claims against him personally, rather than his parents. Consequently, the requested disclosure fits squarely within the policy rationale underlying the physician-patient privilege.
IF OBJECT OF UTILITY FEES IS TO FUND A CITY’S
GENERAL REVENUE, THE HANCOCK AMENDMENT IS VIOLATED.
Arbor Investment Co. owns property in the City of Hermann and paid utility charges for gas, electricity, water/sewer and refuse/waste. It filed suit against the City asserting that the City inflated its utility rates to generate revenue to finance its ordinary governmental operations. Arbor alleged that the City had, without a vote of the people, effectively levied hidden taxes on its citizens through the excessive charges for services and utilities. The trial court granted Summary Judgment to the City finding in favor of the City on four of the five factors established by Keller v. Marion County Ambulance District, 820 S.W. 2d 301 (Mo. banc 1991). The Court of Appeals reversed and remanded, however, in Arbor Investment Co. v. City of Hermann, No. ED 92933 (Mo. App. E.D. 2010).
The purpose of the Hancock Amendment is to “limit taxes by establishing tax and revenue limits and expenditure limits for the state and other political subdivisions which may not be exceeded without voter approval.” Rohrer v. Emnons, 289 S.W. 3d 600, 603 (Mo. App. E.D. 2009). The Hancock Amendment attempts to erect a comprehensive, constitutionally-rooted shield to protect taxpayers from government’s ability to increase the tax burden above that born by the tax payers on November 4, 1980, the date the amendment was approved. Id. At its essence, the Hancock Amendment reveals the voter’s basic distrust of the ability of representative government to keep its taxing and spending requirements in check. Id.
Taxes are proportional contributions imposed by the state upon individuals for the support of government and for all public needs. Zahnar v. City of Perryville, 813 S.W. 2d 855, 859, (Mo. banc 1991). Taxes are not payments for a special privilege or a special service rendered. Id. Fees or charges prescribed by law to be paid by certain individuals to public officers for services rendered in connection with a specific purpose ordinarily are not taxes, unless the object of the requirement is to raise revenue to be paid into the general fund of the government to defray customary governmental expenditures rather than compensation of public officers for particular services rendered. Id.
Here, two of the five Keller factors weigh in favor of the City and three involve genuine disputes of material fact. Therefore, the trial court erred in entering summary judgment in favor of the City because there is a dispute of material fact as to whether the City increased utility fees in violation of the Hancock Amendment by setting charges at a level to increase the City’s general revenue and to subsidize general government expenditures rather than to compensate for the provision of services. If it is shown on remand that the object of the fees is to fund the City’s general revenue, then this constitutes a violation of the Hancock Amendment.
IN A MEDICAL NEGLIGENCE CASE, THE REQUIRED
HEALTH CARE AFFIDAVIT NEED NOT BE BASED ON THE
OPINION OF A HEALTH CARE PROVIDER WHO HAS THE
SAME BOARD CERTIFICATION AS THE DEFENDANT
Ann Spradling suffered from compression fractures in her lower back as a result of a fall. She was admitted to SSM Health care d/b/a St. Mary’s Health Center in St. Louis, where Dr. William Sprich, a neurosurgeon, performed a vertebroplasty. Following the vertebroplasty, she became paralyzed in her lower extremities. She and her husband filed a medical negligence lawsuit against St. Mary’s. Their attorney filed an affidavit stating that he had obtained a written opinion from Dr. John Mathis, a board certified radiologist, finding that Dr. Sprich failed to use reasonable care in his treatment. Defendants moved to dismiss the lawsuit, contending that the affidavit filed by the Spradlings’ attorney was insufficient in that it was not based on the written opinion of a “legally qualified health care provider.” The trial court dismissed the Spradling suit, but the Supreme Court of Missouri reversed in Spradling v. SSM Health care, No. SC 90613 (Mo.banc 2010).
The health care affidavit statute, §538.225, first was promulgated in 1986. This court has recognized that the statute was a “legislative response to the public concern over the increased cost of health care and the continued integrity of that system of essential services.” Mahoney v. Doerhoff Surgical Services, Inc., 807 S.W.2d 503, 507 (Mo.banc 1991). Although §538.225 RSMo. 1986, did not define “legally qualified health care provider,” in 2005, the legislature passed House Bill 393, which did include a definition. That definition stated that a “legally qualified health care provider” is one who is “either actively practicing or within five years of retirement from actively practicing substantially the same specialty as the defendant.” The words “substantially the same specialty” must modify “actively practicing,” as well as “within five years of retirement from actively practicing.” Considering the legislature’s intent in passing House Bill 393 and the grammatical construction of the statute, “substantially the same specialty” is as applicable to “actively practicing” as it is to “within five years of retirement from actively practicing.”
The legislature chose to modify “specialty” with the phrase “substantially the same.” By using that phrase, the legislature recognized that there may be situations in which the health care provider who gives an opinion as to the standard of care may not have the exact board certification as the defendant. Instead, the health care provider may have a different board certification, but may practice “substantially the same specialty” because of an expertise in the medical procedure at issue. Many medical procedures are not peculiar to one board certification. While Dr. Mathes is a radiologist rather than a neurosurgeon, his experience establishes that he was actively practicing “substantially the same specialty” as the defendant in that he has sufficient experience in performing vertebroplasties. Dr. Mathes is not board certified in the same field of medicine as Dr. Sprich, but under Webster’s dictionary definition of “specialty,” Dr. Mathes has an aptitude or special skill in performing vertebroplasties, as evidenced by his performance of or assistance in over 3,000 vertebroplasties. In addition, his publications, lectures and seminars exhibit his academic interest and expertise in vertebroplasties. Dr. Mathes is the type of “legally qualified health care provider,” as intended by the legislature when it used the phrase “substantially the same specialty.” By enacting §538.225, the legislature sought to prevent plaintiffs from relying on opinions from health care providers with minimal to no experience in performing the procedure in question. The Spradlings’ reliance on Dr. Mathes’ opinion was the type of reliance the legislature sought to authorize.
PENALTIES UNDER THE MEDICAID
FRAUD STATUTE ARE CONSTITUTIONAL
Stephanie Spilton, a clinical social worker licensed as a Missouri Medicaid Service Provider, was investigated by the Attorney General’s Medicaid Fraud Unit. That investigation revealed that Spilton had committed 325 violations of the Medicaid Fraud Statute. After being served with a subpoena, she met with the Medicaid Fraud Control Unit and admitted that she had submitted claims for services she did not provide. The state of Missouri filed suit against Spilton and the trial court granted summary judgment to the state. The trial court awarded the state actual damages of $45,385.00, civil penalties in the amount of $1,625,000 and treble damages in the amount of $136,155. Spilton appealed contending that the penalties under the Medicaid Fraud Statute violated the due process clauses of the Missouri and the United States Constitutions. The Supreme Court affirmed the judgment against Spilton in State of Missouri v. Spilton, No. SC 90586 (Mo.banc 2010).
Spilton argues that the Medicaid Fraud Statute is impermissibly vague because it provides for a range of penalties without instructing the court whether to select the low or high end of the range in any specific case. However, a statute that provides for a range of penalties is not constitutionally deficient. See e.g. Battis v. Hofmann, 832 S.W.2d 937, 941 (Mo.App. 1992); Pratt v. Missouri Pacific Ry. Co., 122 S.W.1125, 1129 (Mo.App. 1909). A statute is presumed constitutional unless it “clearly and undoubtedly violates some constitutional provision and palpably affronts fundamental law embodied in the constitution.” Board of Education of St. Louis v. State, 47 S.W.3d 366, 368-9 (Mo.banc 2001).
A statute is not vague because it allows for judicial discretion in imposing penalties, but, rather when its language does not convey, to a person or ordinary intelligence, adequate notice of what conduct is proscribed. Cocktail Fortune, Inc. v. Supervisor of Liquor Control, 994 S.W.2d 955, 957 (Mo.banc 1999). Where a law can be supported by “a reasonable or practical construction,” it will be valid. Id. Further, “laws imposing civil penalties rather than criminal are afforded more tolerance.” Harris v. Hunt, 122 S.W.3d 683, 689 (Mo.App. 2003). Although the Missouri and United States Constitutions prohibit the imposition of excessive fines, the Missouri General Assembly has always had wide latitude to decide the severity of civil penalties for violations of law. Missouri Public Service Com’n. v. Hurricane Deck Holding Co., 302 S.W.3d 786 (Mo.App. 2010).
Statutory civil penalties are different than jury-imposed punitive damages, because statutes define, in advance, “the prohibited conduct and…the legislative proscribed penalty.” Carpenter v. Countrywide Home Loans, Inc., 250 S.W.3d 697, 702 (Mo.banc 2008). Further, statutes – like this one – that provide for treble damages in addition to actual damages sustained are not constitutionally invalid. Carpenter v. Countrywide Home Loans, Inc., 250 S.W.3d 697 (Mo.banc 2006). Civil fines within statutory limits will not be considered excessive, as a matter of law, when the statute authorizing the punishment is valid and when the punishment imposed is within the range proscribed by the legislature. State v. Polley, 2 S.W.3d 887, 894 (Mo.App. 1999). This Court is unpersuaded that the $5,000 per violation penalty assessed against Spilton is so grossly excessive as to shock the conscience. A litigant attacking the constitutional validity of a statute bears “an extremely heavy burden.” Linton v. Mo. Veterinary Med. Bd., 988 S.W.2d 513, 515 (Mo.banc 1999).
MECHANIC’S LIEN HAD PRIORITY OVER DEED OF TRUST
Glenstone Block Company supplied blocks that were used in the construction of a block wall during the building of the Parkview Bay Condominiums. When Glenstone was not paid by the subcontractor it supplied the blocks to, it filed a mechanic’s lien and then sued to enforce its mechanic’s lien. At trial, Glenstone contended that its mechanic’s lien was superior to the deed of trust securing a loan for the condominium development that was made by Union Planters Bank. Glenstone presented evidence at trial to show that advancements made by the bank under the previously recorded deed of trust were for construction of condominium buildings. The trial court found that the deed of trust was superior to Glenstone’s mechanic’s lien, but the Court of Appeals reversed in Glenstone Block Company v. Pebworth, No. SD29899 (Mo.App. S.D. 2010).
Mechanic’s liens are legislatively created claims that give a security interest to mechanics and materialmen for labor and materials furnished in the improvement of property, property that often is already encumbered by a mortgage, deed of trust, or similar instrument. Sections 429.010-429.350 RSMo. Under §429.050, a mechanic’s lien for materials furnished “shall attach to the buildings, erections or improvements for which they are furnished…in preference to any prior lien or encumbrance or mortgage upon the land upon which said buildings, erections or improvements…have been erected. Section 429.050. Under §429.060, a mechanic’s lien for materials furnished shall be preferred to all other encumbrances which may be attached to or upon the building or improvement or the land upon which the building or improvement are situated, or either of them, subsequent to the commencement of such building or improvement. Section 429.060.
A lender who knows and contemplates that mechanic’s liens and materialmen’s liens can arise from a construction project for which the loan is being made, waives the claim of priority of its deed of trust as to the mechanic’s lien. Cinco Enterprises, Inc. v. Lake St. Louis Estates Co., Inc., 557 S.W.2d 9, 10 (Mo.App. E.D. 1977). The evidence established that the funds advanced by the bank were to be used for construction. Therefore, the beneficiary of the deed of trust waived its priority as to Glenstone’s mechanic’s lien.
IF YOU PICK A FIGHT IN MISSOURI OVER THE INTERNET,
YOU CAN EXPECT TO SETTLE IT HERE
The Baldwins owned Whispering Lane Kennel, at which they bred dogs for American Kennel Club shows. The Baldwins primarily bred Chinese Crested dogs and have won various awards. Karen Fischer-Smith and Patricia Hall, residents of Arizona and Pennsylvania respectively, also bred and showed Chinese Cresteds in competition with the Baldwins. The Baldwins filed suit against Fischer-Smith and Hall, alleging that the defendants libeled them through an internet web site with a home page titled “STOP WHISPERING LANE KENNEL.” This web site could be viewed by anyone with internet access. The web site stated that Whispering Lane was in Ava, Missouri and was owned by the Baldwins. Google searches for the name of Whispering Lane Kennel returned links to the defendants’ web site, which received some 2,500 “hits” or visits from internet users in one year. At least 25 hits were by Missouri residents involved in the dog business, as owners, breeders and/or exhibitors. Defendants sought dismissal of the suit for lack of personal jurisdiction. The trial court found that the defendants lacked sufficient minimum contacts to satisfy due process, but the Court of Appeals reversed in Baldwin v. Fischer-Smith, No. SD 30235 (Mo.App. S.D. 2010).
Indeed, “the body of law surrounding Internet personal jurisdiction remains unquestionably vague.” Teresa J. Cassidy, Civil Procedure-Effects of the "Effects Test": Problems of Personal Jurisdiction and the Internet; Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063 (10th Cir. 2008), 9 Wyo. L. Rev. 575, 594 (2009). As here, the “key question” in Tamburo v. Dworkin, 601 F.3d 693, 703 (7th Cir. 2010) involved the defendants’ “minimum contacts” with the forum state. Id. at 700-01 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). “Stated differently, each defendant must have purposely established minimum contacts with the forum state such that he or she ‘should reasonably anticipate being haled into court’ there.” Id. at 701 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985). Again, like our case, Tamburo “primarily concern[ed] the question whether the defendants ‘purposely directed’ their conduct at the forum state.” Id. This purposeful-direction inquiry “can appear in different guises.” Id. For intentional torts, however, “the inquiry focuses on whether the conduct underlying the claims was purposely directed at the forum state.” Id. Here, defendants’ contacts were constitutionally sufficient for the trial court to exercise personal jurisdiction over them.
Our Missouri Supreme Court recently expressed a broad jurisdictional view of communication that gives rise to intentional tort claims. “Where ‘the actual content of communications with a forum gives rise to intentional tort causes of action,’… ‘this alone constitutes purposeful availment.’” Bryant v. Smith Interior Design Group, Inc., No. SC 90205 (Mo.banc 2010). To tweak an observation from Revell v. Lidov, 317 F.3d 467, 476 (5th Cir. 2002), if you pick a fight in Missouri, you can reasonably expect to settle it here. Since defendants’ contacts are constitutionally sufficient, jurisdiction is appropriate unless it offends traditional notions of fair play and substantial justice. This is a much easier call and requires no extended discussion. Due process is not offended if Missouri exercises jurisdiction over defendants in this case.
Elizabeth Mitchell filed a medical negligence action against Dr. Milton Kardesch, alleging that Dr. Kardesch deviated from the standard of care while treating her husband and that Dr. Kardesch’s negligence resulted in her husband’s death. One night, Mr. Mitchell had chest pains and a nightmare about death. The next morning, Mrs. Mitchell called Dr. Kardesch, who was her husband’s internist. She spoke with Dr. Kardesch’s medical assistant and relayed the previous night’s occurrence. Dr. Kardesch’s medical assistant testified that she could not specifically recall Mrs. Mitchell’s call, but that she believed she told Mrs. Mitchell to take her husband to the emergency room because of the chest pain. Dr. Kardesch testified that he remembered Mrs. Mitchell’s call and that he had instructed his assistant to tell her to get her husband to the emergency room. Mrs. Mitchell testified that she was never instructed to take her husband to the emergency room. Fourteen days later, Mr. Mitchell again felt tightness in his chest and went to the hospital. He died the next day from complications arising from myocardial infarction and arteriosclerosis. The trial court prohibited Mrs. Mitchell’s counsel from impeaching Dr. Kardesch with his interrogatory answer in which he had denied that his license had been suspended or revoked.
In fact, his Missouri and New York licenses to practice medicine both had been suspended due to a Missouri felony conviction unrelated to his medical abilities, as he later admitted in a deposition. The jury returned a verdict in favor of Dr. Kardesch, but the Supreme Court of Missouri reversed in Mitchell v. Kardesch, No. SC 90370 (Mo.banc 2010).
“It has long been the rule in Missouri that on cross-examination, a witness may be asked any questions which tend to test his accuracy, veracity or credibility…” Sandy Ford Ranch, Inc. v. Dill, 449 S.W.2d 1, 6 (Mo. 1970). Much of the trial turned on whether the jury believed Dr. Kardesch or Mrs. Mitchell. Because credibility was such a central issue, Mrs. Mitchell requested permission to ask Dr. Kardesch about a false answer that he gave in his sworn response to an interrogatory answer regarding the suspension or revocation of his professional license. “As a general proposition, the credibility of witnesses is always a relevant issue in a lawsuit.” State v. Smith, 996 S.W.2d 518, 521 (Mo.App. 1999). Impeachment provides a tool to test a witness’s perception, credibility, and truthfulness, which is essential because a jury is free to believe any, all or none of a witness’s testimony. State v. Hineman, 14 S.W.3d 924, 927 (Mo.banc 1999). Most relevant here, cross-examination also long has been permitted to impeach a witness on his or her character for truth and veracity. This means of impeachment, however, must be directed only toward the ultimate issue of a witness’s credibility; thus, a witness may not be impeached by evidence that his or her “general moral character is bad,” or that his or her “general reputation for morality” is bad. Therefore, this form of impeachment must be confined to the witness’s character for truthfulness and veracity. State v. Gregory, 822 S.W.2d 946, 949 (Mo.App. 1992).
When a person, regardless of whether a party, is being questioned on the witness stand, then long-standing Missouri law holds that the person may be asked about specific instances of his or her own conduct that speak to his or her own character for truth or veracity, even when the issue inquired about is not material to the substantive issues in the case. To the extent that State v. Wolfe, 13 S.W.3d 248, 258 (Mo.banc 2000) and cases following it, hold that a witness may not be impeached by asking him or her about specific instances of conduct relevant to his or her character for truth and veracity, it no longer should be followed. Cross-examination may be had on issues relevant to the witness’s character for truth and veracity, regardless of whether the subject of the falsehood is material. See State v. Zahn, 823 S.W.2d 18, 22 (Mo.App. 1991).
Parties are permitted to introduce extrinsic evidence to impeach a witness by showing his or her inability to perceive the events testified to; prior convictions; or to show bias, prejudice or interest in the proceeding, regardless of whether the subject of the extrinsic evidence is independently material to the case. State v. Johnson, 706 S.W.2d 815, 817-18 (Mo.banc 1985) (bias); State v. Kaston, 509 S.W.2d 39, 41 (Mo.1974) (ability to perceive). The real issue to be decided by the trial court is whether admission of the extrinsic evidence would be more probative or more prejudicial. In cases involving character of the witness for truth and veracity, it will be the unusual case where that balancing weighs in favor of admission of extrinsic evidence, but where it does so, such evidence should be admitted. If a new trial occurs, Plaintiff may cross-examine Dr. Kardesch about his interrogatory answer and, if necessary, impeach him with it and with his deposition testimony, subject to the trial court’s exercise of discretion to limit such testimonies so as to avoid distraction of the jury for undue prejudice to Dr. Kardesch.
PHYSICIAN-PATIENT PRIVILEGE
APPLIES TO ALL ASPECTS OF DISCOVERY
William Stinson was involved in a high-speed automobile collision that resulted in the death of Ricky Young. Young’s daughter filed a wrongful death suit against Stinson and his parents. The suit alleged that Stinson was under the influence of intoxicants at the time of the crash. It also alleged that Stinson’s parents negligently entrusted Stinson with the vehicle involved in the crash; that they knew or should have known that Stinson was addicted to alcohol and drugs that impaired his driving ability. Plaintiff’s counsel submitted a medical records authorization to Stinson, permitting the disclosure of all records pertaining to treatment he had received for alcohol, drug or substance abuse problems during the prior 14 years. The trial court overruled Stinson’s objection and ordered him to execute the medical records authorization. The Supreme Court, however, issued a writ of prohibition in State ex rel. Stinson v. House, No. SC90364 (Mo.banc 2010).
The physician-privilege is established by §491.060 RSMo. The physician-patient privilege “applies to medical records and all aspects of discovery.” State ex rel. Dean v. Cunningham, 182 S.W.3d 561, 567 (Mo.banc 2006). In this case, the medical records sought by Young fall within the protective scope of the physician-patient privilege. There is no evidence that Stinson placed any of his medical conditions in issue or took any other steps to affirmatively waive the privilege.
Also, the mere fact that Stinson has denied liability and is defending against the present suit does not constitute a waiver of the privilege. Rodriguez, 996 S.W.2d 47, 63 (Mo.banc 1999). The mere fact that the privileged medical records may be relevant to Young’s claim for negligent entrustment does not mean that the medical records are discoverable. The very nature of an evidentiary privilege is that it removes evidence that is otherwise relevant and discoverable from the scope of discovery. See Rule 56.01(b)(1). Therefore, the fact that the medical records might be relevant to Young’s claim for negligent entrustment does not alter the conclusion that the records are undiscoverable.
The language of §491.060 does not limit the application of the privilege only to situations in which the confidential medical information will be used against the physician’s patient. Because the legislature did not limit the scope of the privilege only to situations in which the confidential medical information will be used against the patient, the privilege applies to all circumstances in which a physician or psychologist is called on to give testimony or produce records concerning information that was acquired from the patient, regardless of whether the information will be used against the patient. “The purpose of the physician-patient privilege is to enable the patient to secure complete and appropriate medical treatment by encouraging candid communication between patient and physician, free from fear of the possible embarrassment and invasion of privacy engendered by an unauthorized disclosure of information.” State ex rel. Woytus v. Ryan, 776 S.W.2d 389, 392 (Mo.banc 1989).
The public policy of encouraging candid communication between patient and physician would be undermined if patients feared that their physicians or psychologists could disclose their confidential communications in any lawsuit, regardless of whether the information would be used against the patient or a third party. Information contained in a patient’s medical file becomes no less private or potentially embarrassing to the patient, merely because the information will be utilized against someone other than the patient. Stinson faces the same possibility of embarrassment and invasion of privacy that he would face if his medical records were released to prove claims against him personally, rather than his parents. Consequently, the requested disclosure fits squarely within the policy rationale underlying the physician-patient privilege.
IF OBJECT OF UTILITY FEES IS TO FUND A CITY’S
GENERAL REVENUE, THE HANCOCK AMENDMENT IS VIOLATED.
Arbor Investment Co. owns property in the City of Hermann and paid utility charges for gas, electricity, water/sewer and refuse/waste. It filed suit against the City asserting that the City inflated its utility rates to generate revenue to finance its ordinary governmental operations. Arbor alleged that the City had, without a vote of the people, effectively levied hidden taxes on its citizens through the excessive charges for services and utilities. The trial court granted Summary Judgment to the City finding in favor of the City on four of the five factors established by Keller v. Marion County Ambulance District, 820 S.W. 2d 301 (Mo. banc 1991). The Court of Appeals reversed and remanded, however, in Arbor Investment Co. v. City of Hermann, No. ED 92933 (Mo. App. E.D. 2010).
The purpose of the Hancock Amendment is to “limit taxes by establishing tax and revenue limits and expenditure limits for the state and other political subdivisions which may not be exceeded without voter approval.” Rohrer v. Emnons, 289 S.W. 3d 600, 603 (Mo. App. E.D. 2009). The Hancock Amendment attempts to erect a comprehensive, constitutionally-rooted shield to protect taxpayers from government’s ability to increase the tax burden above that born by the tax payers on November 4, 1980, the date the amendment was approved. Id. At its essence, the Hancock Amendment reveals the voter’s basic distrust of the ability of representative government to keep its taxing and spending requirements in check. Id.
Taxes are proportional contributions imposed by the state upon individuals for the support of government and for all public needs. Zahnar v. City of Perryville, 813 S.W. 2d 855, 859, (Mo. banc 1991). Taxes are not payments for a special privilege or a special service rendered. Id. Fees or charges prescribed by law to be paid by certain individuals to public officers for services rendered in connection with a specific purpose ordinarily are not taxes, unless the object of the requirement is to raise revenue to be paid into the general fund of the government to defray customary governmental expenditures rather than compensation of public officers for particular services rendered. Id.
Here, two of the five Keller factors weigh in favor of the City and three involve genuine disputes of material fact. Therefore, the trial court erred in entering summary judgment in favor of the City because there is a dispute of material fact as to whether the City increased utility fees in violation of the Hancock Amendment by setting charges at a level to increase the City’s general revenue and to subsidize general government expenditures rather than to compensate for the provision of services. If it is shown on remand that the object of the fees is to fund the City’s general revenue, then this constitutes a violation of the Hancock Amendment.
IN A MEDICAL NEGLIGENCE CASE, THE REQUIRED
HEALTH CARE AFFIDAVIT NEED NOT BE BASED ON THE
OPINION OF A HEALTH CARE PROVIDER WHO HAS THE
SAME BOARD CERTIFICATION AS THE DEFENDANT
Ann Spradling suffered from compression fractures in her lower back as a result of a fall. She was admitted to SSM Health care d/b/a St. Mary’s Health Center in St. Louis, where Dr. William Sprich, a neurosurgeon, performed a vertebroplasty. Following the vertebroplasty, she became paralyzed in her lower extremities. She and her husband filed a medical negligence lawsuit against St. Mary’s. Their attorney filed an affidavit stating that he had obtained a written opinion from Dr. John Mathis, a board certified radiologist, finding that Dr. Sprich failed to use reasonable care in his treatment. Defendants moved to dismiss the lawsuit, contending that the affidavit filed by the Spradlings’ attorney was insufficient in that it was not based on the written opinion of a “legally qualified health care provider.” The trial court dismissed the Spradling suit, but the Supreme Court of Missouri reversed in Spradling v. SSM Health care, No. SC 90613 (Mo.banc 2010).
The health care affidavit statute, §538.225, first was promulgated in 1986. This court has recognized that the statute was a “legislative response to the public concern over the increased cost of health care and the continued integrity of that system of essential services.” Mahoney v. Doerhoff Surgical Services, Inc., 807 S.W.2d 503, 507 (Mo.banc 1991). Although §538.225 RSMo. 1986, did not define “legally qualified health care provider,” in 2005, the legislature passed House Bill 393, which did include a definition. That definition stated that a “legally qualified health care provider” is one who is “either actively practicing or within five years of retirement from actively practicing substantially the same specialty as the defendant.” The words “substantially the same specialty” must modify “actively practicing,” as well as “within five years of retirement from actively practicing.” Considering the legislature’s intent in passing House Bill 393 and the grammatical construction of the statute, “substantially the same specialty” is as applicable to “actively practicing” as it is to “within five years of retirement from actively practicing.”
The legislature chose to modify “specialty” with the phrase “substantially the same.” By using that phrase, the legislature recognized that there may be situations in which the health care provider who gives an opinion as to the standard of care may not have the exact board certification as the defendant. Instead, the health care provider may have a different board certification, but may practice “substantially the same specialty” because of an expertise in the medical procedure at issue. Many medical procedures are not peculiar to one board certification. While Dr. Mathes is a radiologist rather than a neurosurgeon, his experience establishes that he was actively practicing “substantially the same specialty” as the defendant in that he has sufficient experience in performing vertebroplasties. Dr. Mathes is not board certified in the same field of medicine as Dr. Sprich, but under Webster’s dictionary definition of “specialty,” Dr. Mathes has an aptitude or special skill in performing vertebroplasties, as evidenced by his performance of or assistance in over 3,000 vertebroplasties. In addition, his publications, lectures and seminars exhibit his academic interest and expertise in vertebroplasties. Dr. Mathes is the type of “legally qualified health care provider,” as intended by the legislature when it used the phrase “substantially the same specialty.” By enacting §538.225, the legislature sought to prevent plaintiffs from relying on opinions from health care providers with minimal to no experience in performing the procedure in question. The Spradlings’ reliance on Dr. Mathes’ opinion was the type of reliance the legislature sought to authorize.
PENALTIES UNDER THE MEDICAID
FRAUD STATUTE ARE CONSTITUTIONAL
Stephanie Spilton, a clinical social worker licensed as a Missouri Medicaid Service Provider, was investigated by the Attorney General’s Medicaid Fraud Unit. That investigation revealed that Spilton had committed 325 violations of the Medicaid Fraud Statute. After being served with a subpoena, she met with the Medicaid Fraud Control Unit and admitted that she had submitted claims for services she did not provide. The state of Missouri filed suit against Spilton and the trial court granted summary judgment to the state. The trial court awarded the state actual damages of $45,385.00, civil penalties in the amount of $1,625,000 and treble damages in the amount of $136,155. Spilton appealed contending that the penalties under the Medicaid Fraud Statute violated the due process clauses of the Missouri and the United States Constitutions. The Supreme Court affirmed the judgment against Spilton in State of Missouri v. Spilton, No. SC 90586 (Mo.banc 2010).
Spilton argues that the Medicaid Fraud Statute is impermissibly vague because it provides for a range of penalties without instructing the court whether to select the low or high end of the range in any specific case. However, a statute that provides for a range of penalties is not constitutionally deficient. See e.g. Battis v. Hofmann, 832 S.W.2d 937, 941 (Mo.App. 1992); Pratt v. Missouri Pacific Ry. Co., 122 S.W.1125, 1129 (Mo.App. 1909). A statute is presumed constitutional unless it “clearly and undoubtedly violates some constitutional provision and palpably affronts fundamental law embodied in the constitution.” Board of Education of St. Louis v. State, 47 S.W.3d 366, 368-9 (Mo.banc 2001).
A statute is not vague because it allows for judicial discretion in imposing penalties, but, rather when its language does not convey, to a person or ordinary intelligence, adequate notice of what conduct is proscribed. Cocktail Fortune, Inc. v. Supervisor of Liquor Control, 994 S.W.2d 955, 957 (Mo.banc 1999). Where a law can be supported by “a reasonable or practical construction,” it will be valid. Id. Further, “laws imposing civil penalties rather than criminal are afforded more tolerance.” Harris v. Hunt, 122 S.W.3d 683, 689 (Mo.App. 2003). Although the Missouri and United States Constitutions prohibit the imposition of excessive fines, the Missouri General Assembly has always had wide latitude to decide the severity of civil penalties for violations of law. Missouri Public Service Com’n. v. Hurricane Deck Holding Co., 302 S.W.3d 786 (Mo.App. 2010).
Statutory civil penalties are different than jury-imposed punitive damages, because statutes define, in advance, “the prohibited conduct and…the legislative proscribed penalty.” Carpenter v. Countrywide Home Loans, Inc., 250 S.W.3d 697, 702 (Mo.banc 2008). Further, statutes – like this one – that provide for treble damages in addition to actual damages sustained are not constitutionally invalid. Carpenter v. Countrywide Home Loans, Inc., 250 S.W.3d 697 (Mo.banc 2006). Civil fines within statutory limits will not be considered excessive, as a matter of law, when the statute authorizing the punishment is valid and when the punishment imposed is within the range proscribed by the legislature. State v. Polley, 2 S.W.3d 887, 894 (Mo.App. 1999). This Court is unpersuaded that the $5,000 per violation penalty assessed against Spilton is so grossly excessive as to shock the conscience. A litigant attacking the constitutional validity of a statute bears “an extremely heavy burden.” Linton v. Mo. Veterinary Med. Bd., 988 S.W.2d 513, 515 (Mo.banc 1999).
MECHANIC’S LIEN HAD PRIORITY OVER DEED OF TRUST
Glenstone Block Company supplied blocks that were used in the construction of a block wall during the building of the Parkview Bay Condominiums. When Glenstone was not paid by the subcontractor it supplied the blocks to, it filed a mechanic’s lien and then sued to enforce its mechanic’s lien. At trial, Glenstone contended that its mechanic’s lien was superior to the deed of trust securing a loan for the condominium development that was made by Union Planters Bank. Glenstone presented evidence at trial to show that advancements made by the bank under the previously recorded deed of trust were for construction of condominium buildings. The trial court found that the deed of trust was superior to Glenstone’s mechanic’s lien, but the Court of Appeals reversed in Glenstone Block Company v. Pebworth, No. SD29899 (Mo.App. S.D. 2010).
Mechanic’s liens are legislatively created claims that give a security interest to mechanics and materialmen for labor and materials furnished in the improvement of property, property that often is already encumbered by a mortgage, deed of trust, or similar instrument. Sections 429.010-429.350 RSMo. Under §429.050, a mechanic’s lien for materials furnished “shall attach to the buildings, erections or improvements for which they are furnished…in preference to any prior lien or encumbrance or mortgage upon the land upon which said buildings, erections or improvements…have been erected. Section 429.050. Under §429.060, a mechanic’s lien for materials furnished shall be preferred to all other encumbrances which may be attached to or upon the building or improvement or the land upon which the building or improvement are situated, or either of them, subsequent to the commencement of such building or improvement. Section 429.060.
A lender who knows and contemplates that mechanic’s liens and materialmen’s liens can arise from a construction project for which the loan is being made, waives the claim of priority of its deed of trust as to the mechanic’s lien. Cinco Enterprises, Inc. v. Lake St. Louis Estates Co., Inc., 557 S.W.2d 9, 10 (Mo.App. E.D. 1977). The evidence established that the funds advanced by the bank were to be used for construction. Therefore, the beneficiary of the deed of trust waived its priority as to Glenstone’s mechanic’s lien.
IF YOU PICK A FIGHT IN MISSOURI OVER THE INTERNET,
YOU CAN EXPECT TO SETTLE IT HERE
The Baldwins owned Whispering Lane Kennel, at which they bred dogs for American Kennel Club shows. The Baldwins primarily bred Chinese Crested dogs and have won various awards. Karen Fischer-Smith and Patricia Hall, residents of Arizona and Pennsylvania respectively, also bred and showed Chinese Cresteds in competition with the Baldwins. The Baldwins filed suit against Fischer-Smith and Hall, alleging that the defendants libeled them through an internet web site with a home page titled “STOP WHISPERING LANE KENNEL.” This web site could be viewed by anyone with internet access. The web site stated that Whispering Lane was in Ava, Missouri and was owned by the Baldwins. Google searches for the name of Whispering Lane Kennel returned links to the defendants’ web site, which received some 2,500 “hits” or visits from internet users in one year. At least 25 hits were by Missouri residents involved in the dog business, as owners, breeders and/or exhibitors. Defendants sought dismissal of the suit for lack of personal jurisdiction. The trial court found that the defendants lacked sufficient minimum contacts to satisfy due process, but the Court of Appeals reversed in Baldwin v. Fischer-Smith, No. SD 30235 (Mo.App. S.D. 2010).
Indeed, “the body of law surrounding Internet personal jurisdiction remains unquestionably vague.” Teresa J. Cassidy, Civil Procedure-Effects of the "Effects Test": Problems of Personal Jurisdiction and the Internet; Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063 (10th Cir. 2008), 9 Wyo. L. Rev. 575, 594 (2009). As here, the “key question” in Tamburo v. Dworkin, 601 F.3d 693, 703 (7th Cir. 2010) involved the defendants’ “minimum contacts” with the forum state. Id. at 700-01 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). “Stated differently, each defendant must have purposely established minimum contacts with the forum state such that he or she ‘should reasonably anticipate being haled into court’ there.” Id. at 701 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985). Again, like our case, Tamburo “primarily concern[ed] the question whether the defendants ‘purposely directed’ their conduct at the forum state.” Id. This purposeful-direction inquiry “can appear in different guises.” Id. For intentional torts, however, “the inquiry focuses on whether the conduct underlying the claims was purposely directed at the forum state.” Id. Here, defendants’ contacts were constitutionally sufficient for the trial court to exercise personal jurisdiction over them.
Our Missouri Supreme Court recently expressed a broad jurisdictional view of communication that gives rise to intentional tort claims. “Where ‘the actual content of communications with a forum gives rise to intentional tort causes of action,’… ‘this alone constitutes purposeful availment.’” Bryant v. Smith Interior Design Group, Inc., No. SC 90205 (Mo.banc 2010). To tweak an observation from Revell v. Lidov, 317 F.3d 467, 476 (5th Cir. 2002), if you pick a fight in Missouri, you can reasonably expect to settle it here. Since defendants’ contacts are constitutionally sufficient, jurisdiction is appropriate unless it offends traditional notions of fair play and substantial justice. This is a much easier call and requires no extended discussion. Due process is not offended if Missouri exercises jurisdiction over defendants in this case.
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