1. law, govt and politics

Missouri Organization
of Defense Lawyers
Œ
P.O. Box 1072
Jefferson City, MO 65102
Phone: (573) 636-6100
Website: www.modllaw.com
Œ
Fall, 2003
President’s Report
By Lisa Weixelman, MODL President
Our new year began with
the Annual Meeting at
the Chateau on the Lake
in Branson, Missouri, in
June 2003. If you missed
the meeting, you missed
a great opportunity for
high quality, timely CLE,
an enjoyable venue and
time spent in the company of good
friends. MODL had a good year in 200203. Under the leadership of President Clark
Cole, MODL reached out to defense
lawyers across the state increasing its
membership, getting more members
involved in organization activities, and
effectively lobbying for the passage of a
tort reform bill in the Missouri Legislature,
which although vetoed by the Governor,
represented comprehensive legislation
addressing issues of critical importance to
the defense bar, including venue, joint
and several liability, and limitations on
damages.
This year, we hope to continue the positive
trend, improving on existing programs,
rethinking those that may be outdated by
changes in society and our legal
environment, and looking at new ways to
meet member needs and serve our
organizational purposes. As I began my
preparations for this year as President I
considered again the purposes of our
organization as stated in the bylaws.
Those purposes include (and I am
paraphrasing): to bring together the
lawyers of the state who devote a
substantial amount of their professional
time to representation of defendants in
civil litigation; to provide for the exchange
among the members of the organization
of information, ideas, and techniques as
are calculated to enhance the knowledge
and improve the skills of defense lawyers;
to elevate the standards of trial practice
and advocacy in the state; to secure
adoption of a high standard code of trial
conduct and courtroom demeanor; to
support and work for improvement of the
civil adversary system of jurisprudence in
our courts; to promote improvements in
administration of justice; and to the
increase the quantity and quality of legal
service and community participation with
the defense bar of the state. Obviously,
MODL can only fulfill its purposes through
active involvement of its members. Thus,
my primary goals this year include:
successfully assessing and structuring
organization programs to meet member
needs; increasing MODL involvement in
activities that provide legal services to our
clients and the community and improve
our legal system and laws directly
affecting our clients, through legislation,
court
decisions
and
educational
programs; and, better informing the legal
community and the public in general as to
the role of MODL.
To that end, I solicited input from the
membership on ideas for committees and
committee structure. As a result of your
responses, MODL has created two new
substantive law committees in the areas of
technology and construction law. In
addition, the structure and responsibilities
of several of the standing committees
have been modified. Traditionally, the Vice
President has chaired the Legislative
Committee. As you know, the Legislative
Committee is charged with responsibility
for legislative efforts on behalf of the
organization. While it has always been our
goal to perform comprehensive legislative
service, our committee has for many years
focused more on reviewing proposed
legislation, offering comments, providing
member testimony at legislative hearings,
and voicing support or opposition for
specific bills of interest to the defense bar.
In order for MODL to be truly effective in
the legislative process, our Legislative
Committee needs to do more by
becoming proactive in proposing and
drafting legislation and participating to a
higher degree in legislative efforts. For
that reason, the committee chair will now
have a two-year term and the committee
membership has been expanded. In
addition, the committee will work with the
substantive law committees on specific
legislation. Already, Legislative and
Professional Liability Committee members
have been extensively involved in
discussions regarding a compromise bill
addressing the current need for reform in
medical malpractice.
The focus of the CLE Committee will also
change in the upcoming year. In past
years, in addition to the CLE at the Annual
Meeting, MODL actively sponsored CLE
programs on federal procedure and areas
of substantive interest. With the increase in
the number of CLE providers, MODL has
decided to readjust its focus. CLE will still
be a vital part of the Annual Meeting
agenda. However, on a going-forward
basis, the CLE Committee will focus its
attention on sponsorship of regular and
periodic membership lunches with the
judiciary and educational opportunities
with non-legal industry partners. One such
program already scheduled includes cosponsorship of an employment law and
human resources conference with
Associated Industries of Missouri. The twoday seminar scheduled in November will
feature numerous MODL members as
speakers. Attendees at the conference
will include human resource personnel for
employers located throughout the state.
The Membership Committee is now the
Membership
Services
Committee.
Committee responsibilities have been
expanded to reflect our promise to
improve services the organization provides
to its members. The committee will be
specifically charged with making
recommendations on how to
accomplish our goal.
Closely tied to this project
is a goal to improve
communications with
our members and with
the public.
“President’s Report” >p3
Recent Cases of Importance
By Lou Leonatti, Leonatti & Baker, P.C., Mexico, MO
Medical
Negligence
Mast v. Surgical Services of Sedalia
107 S.W.3d 360 (Mo.App.W.D. 2003)
This is a decision by the Court of Appeals
En Banc, with four dissenting judges. Mrs.
Mast suffered from Gastroesopageal
Reflux Disease. There was a surgical
correction with complications, which
required 3 additional surgeries. The patient
was placed on Total Perineal Nutrition
(TPN). She subsequently lost 53 pounds
and died of complications. The Plaintiff's
expert witness testified that she died of
malnourishment, which was not properly
diagnosed and treated. The trial court
rejected the Plaintiffs' tendered jury
instruction for "failure to treat" as a roving
commission. It instead submitted the
defendants' proposed instructions. The
Plaintiffs' expert had stated that TPN was an
appropriate treatment. The instructions
submitted to the jury were concerned with
when it was appropriate to administer this
treatment. The Majority and Dissenting
Opinions contain an excellent discussion
of the verdict directing instruction in a
medical negligence situation and should
be a required reading for lawyers who
practice in this area.
Worker's CompensationCerebral Aneurysm
McDermott v. City of Northwoods
Police Department
103 S.W.3d 134 (Mo.App.E.D. 2003)
The employee went from the night shift to
the day shift. As part of his job, he was
required to wear a bulletproof vest. The air
conditioning
in
his
police
car
malfunctioned
and
the
outside
temperature was 89 degrees, when he
went to investigate an open door at a
residence. He collapsed due to a ruptured
aneurysm. There was no indication of any
prior health problem. The Commission
found the matter to be work related and
compensation benefits were awarded. It
should be noted that this incident
occurred before the statute was
amended, 287.020.2 RSMo. to require that
employment be a substantial factor in the
injury.
Page 2
Uninsured Motorist Coverage
Claims File is the Insured's File
Pink v. Knoche
103 S.W.3d 221 (Mo.App.W.D. 2003)
Greenwell v. State Farm
2003 WL 1908429 (Mo. 2003)
Rear-end collision where the driver failed
to defend due to his subsequent
incarceration. Plaintiffs filed an Amended
Petition adding their uninsured motorist
carrier claiming that the defendant was
uninsured. Allstate denied coverage to the
defendant claiming a non-permissive use
because the vehicle was stolen. The
Defendant owned a truck, which was
insured by Farmers. Farmers was informed
of this about a month before trial and
issued a reservation of rights letter. The trial
court ruled that the reservation of rights
was a denial of coverage and the only
issue for the jury was the amount of
damages. The Court of Appeals reversed
holding that it was a question of fact to be
determined by the jury as to whether the
Defendant's vehicle was uninsured and
that a Reservation of Rights is not
automatically construed to be a denial of
coverage.
State Farm insured two individuals involved
in the same collision. The Claims Specialist
assigned
to
Greenwell
originally
determined they were 20% at fault but
changed this to 50% when State Farm
Claim Specialist representing the other
driver determined he was 50% at fault. The
Greenwells requested a copy of their
claim file after the assessment changed.
State Farm denied the request so the
insured filed a Declaratory Judgment
action. Judge White writing for the
Supreme
Court
analyzed
the
insured/insurer relationship to be similar to
the attorney/client relationship. As a result,
the insured was entitled to a copy of their
claim file.
Demonstrative EvidenceVideotapes and Crash Test
Reports
Daniel v. Indiana Mills & Mfg.
103 S.W.3d 302 (Mo.App.S.D. 2003)
Plaintiff claimed that his seat belt failed
when his truck jackknifed and he was
ejected from the vehicle. Defendant
asserted that he wasn't wearing the seat
belt. The paramedic testified that there
was bruising consistent with seat belt use,
and Plaintiff's daughter testified that her
father had leaned over to open the
passenger door a few minutes before the
accident and she saw his seat belt.
Defendant asserted that it was not possible
to open the passenger door with your seat
belt
engaged.
Plaintiff
presented
evidence concerning GM crash tests of
"inertial releases of side-release buckles"
because the case at bar involved an endrelease buckle. In upholding the jury's
verdict in favor of Plaintiff, the Court held
that this was proper rebuttal evidence and
any inaccuracies could be pointed out in
cross-examination.
Merchandising Practices Act
Clement v. St. Charles Nissan Inc.
103 S.W.3d 898 (Mo.App.E.D. 2003)
This case is a car dealer's nightmare.
Plaintiff entered into a car lease with St.
Charles Nissan for a VW Beetle. She
claimed that the sales rep told her that she
could return the Beetle at anytime prior to
the expiration of the 5-year lease without
penalty. She attempted to return the Beetle
several months later and was informed
that there would be a substantial penalty.
To avoid the penalty, she continued to
make the lease payments but filed suit
under Missouri's Merchandising Practices
Act (Chapter 407 RSMo.). In reversing the
dismissal of her claim by the trial court, the
Court held that the Act supplements the
definition of common-law fraud and
preserves honesty and fair play and thus
Plaintiff's Petition set forth a cause of action
under the Merchandising Practices Act.
Alienation of Affections
This long standing tort cause of action is
abolished by the decision in Helsel v.
Noellsch 107 S.W.3d 231 (Mo. 2003).
“Recent Cases” >p3
Fall, 2003
MODL and AIM Co-SSponsor
Employment Law Conference
MODL is pleased to co-sponsor the 2003 Human Resource and
Employment Law Conference along with Associated Industries of Missouri.
The Conference is scheduled for November 13 and 14, 2003
at the Holiday Inn SunSpree Resort at Lake of the Ozarks.
14.1 CLE and 14 CPE credits are available and the cost for MODL members is $275.
If you have any questions please call the MODL Office at 573-636-6100
or to register for the Conference call the Associated Industries of Missouri
at 573-634-2246. Hope to see you there!
Recent Cases
(Cont’d from page 2)
Class Action
In State ex rel. American Family Ins. v.
Clark 106 S.W.3d 483 (Mo. 2003), the
Supreme Court denied a request to certify
a
nationwide
class
action
for
policyholders of American Family. It limited
the class to policyholders in the state of
Missouri. This case concerned the
provisions of American Family's policy,
which promises to "pay loss in money or
repair or replace damaged or stolen
property." American Family's guidelines
require Original Equipment Manufacturer
(OEM) replacement parts for repairs to
vehicles in the latest three model years.
For older vehicles, adjusters were
encouraged to use non-OEM crash parts
or salvage parts. Plaintiffs claimed that this
provision violates the insurance contract.
Since the McCarran-Ferguson Act leaves
insurance regulation to the states, the
state law in each state in which American
Family
does
business
separately
determines the question of interpretation
of the insurance contract. As a result,
certification of the class is only
appropriate for the contracts, which are
subject to Missouri law.
Fall, 2003
President’s Report (Cont’d. from page 1)
In that regard, the Publications
Committee will also be responsible for
improving communication with MODL
members and to the community.
Membership Services and Publications
will work closely together to make sure
that opportunities and services within the
organization are communicated to all
members and that the public is advised
of the work done by MODL to further the
interests of the defense bar.
Finally, at the suggestion of the Long
Range Planning Committee, the Board of
Directors is considering a recommendation
to the membership that the number of
directors serving on the board be
increased.
We anticipate that this
recommendation will be finalized and
presented to the membership for its
consideration at next year's Annual
Meeting. While the specifics of this
recommendation have not yet been
finalized, expansion of the board is being
recommended as a way to provide more
meaningful
participation
in
the
organization to the members and to
ensure that membership interests are
adequately
represented
by
the
organization's management. In addition,
the Long Range Planning Committee is
working on job descriptions for each of
the MODL standing committees in
conjunction with recommendations for
the long-term growth and development
of the organization.
As you can see from this lengthy report,
the 2003-04 Board of Directors has a long
list of goals and is already hard at work.
A list of the existing committees and
chairpersons for each of the committees
is printed in this newsletter. If you are not
already participating in a committee, I
encourage you to contact the committee
chairs or the MODL office and sign up.
We are looking forward to an exciting
and productive year.
The MODL Newsletter is a quarterly publication of the Missouri Organization of Defense
Lawyers. If you have any comments or questions about the MODL Newsletter, please
contact the MODL Newsletter Chair Judy Curran; Missouri Highway and Transportation
Commission; 600 N.E. Colbern Rd.; Lee’s Summit, MO 64064; Phone: 816-622-6385;
Fax: 816-622-0399; Email: [email protected].
Page 3
Using Amended Rule 57.07 to Make Opposing Counsel
Think Twice about Noticing up Corporate Designee
Depositions of Your Clients
By Paul M. Brown, Thompson Coburn, LLP, St. Louis, MO
Effective January 2, 2002, the Missouri Supreme
Court amended Rule 57.07, Mo. R. Civ. P., to allow
any party to read into evidence at trial any portion of
a deposition provided that the testimony "is admissible
under the rules of evidence applied as though the deponent
were testifying in court" and the party against who it is offered
"was present or represented at the taking of the deposition or ...
had proper notice thereof." This amendment abolished the
traditional requirement that a deposition could be used at trial
only if the deponent was "unavailable" to testify at trial, meaning
that the witness was dead, incapacitated, or beyond the court's
subpoena power, or the witness came within one of a few
exceptions to the unavailability rule, such as a physician
engaged in treating patients on the day of trial, or if deponent
was an opposing party.1
When the 2002 amendment to Rule 57.07 was adopted by the
Missouri Supreme Court, many defense attorneys feared that the
new rule would put defense lawyers at a disadvantage for a
couple of reasons. First, the new rule allows a party to present the
testimony of his witnesses, including the party himself,2 at trial by
deposition without a showing that the witness is unavailable to
testify at trial. This is a considerable boon to the party who has the
burden of bringing forth evidence at trial in order to prove his
case.
A second reason many defense attorneys were not particularly
pleased with the new rule is that under the new rule, corporate
defendants are no longer able to block the admission of
unfavorable deposition testimony of its employees by bringing
the employee witness to trial, thus making the witness "available."
Under the former rule, a corporate defendant could produce an
employee for a discovery deposition confident that if the
deposition went poorly for the defense, the defendant could
1
Rule 57.07 (prior to 2002 amendment); §492.400, RSMo.
2
Under the former Rule 57.07, simple unavailability to testify at
trial was not sufficient grounds for a party to introduce their own
deposition into evidence at trial. The deposition of a party
deponent could be introduced into evidence by that party at
trial only upon a showing that the party deponent was dead or
incompetent or not able to safely testify in court because of the
party deponent's sickness, bodily infirmity or imprisonment.
3
The exception to this rule was if the deponent was an officer or
managing agent of the corporate defendant, or a corporate
designee under Rule 57.03(b)(4), such that the deponent's
testimony constituted an admission of the corporation. In that
event, plaintiff's counsel could introduce the deponent's
deposition testimony into evidence at trial even though the
deponent was in court and "available to testify."
Page 4
block the use of the deposition at trial by bringing the employee
witness to court.3
Furthermore, although the employee's deposition gave plaintiff's
counsel an opportunity to discover the employee's testimony in
advance of trial, it also provided defense counsel a useful tool
for preparing the witness to testify at trial, and allowed the witness
to learn from mistakes made in the deposition, provided that
defense counsel could block the deposition from being read into
evidence at trial.4 Under the amended rule, defense counsel
may no longer block the introduction of a corporate employee's
deposition into evidence at trial by bringing the employee
witness to court.
Although the 2002 amendment to Rule 57.07 made life a little bit
easier for plaintiffs' counsel and, arguably, a little more difficult
for defense counsel, it may also provide some help for defense
counsel in the challenging area of corporate designee
depositions, also known as Rule 57.03(b)(4) depositions,5 by
allowing corporate defendants to present the testimony of their
own corporate designee witnesses at trial. This article will discuss
why corporate designee depositions often pose a challenge for
corporate defendants in personal injury litigation and how
defense counsel can use amended Rule 57.07 to make plaintiff's
counsel think twice about noticing up such depositions, by
creating some potential downside for plaintiffs when they take
such depositions.
The original purpose of the rule authorizing corporate designee
depositions was to simplify the discovery process by giving the
discovering party an opportunity to efficiently secure the
testimony of a corporation on specified subjects without
expending time, effort, and money to determine which officers,
directors, agents or employees of that corporation have the
“Think Twice” >p5
4 Under the former Rule 57.07, Plaintiff's counsel could use an
employee's discovery deposition at trial to impeach the
employee witness with "prior inconsistent statements" even
though the deposition itself could not be introduced into
evidence; however, such impeachment was permitted only
when the witness's trial testimony was flatly contradicted by what
the witness testified to in his deposition. See St. Louis Southwestern
Railway Company v. Federal Compress & Warehouse Co., 803
S.W.2d 40, 43-44 (Mo. App. 1990). Since problems with a witness's
deposition testimony frequently is a matter of form over
substance, damaging testimony in a deposition more often than
not could be corrected at trial without subjecting the witness to
impeachment with "prior inconsistent testimony" from his
deposition.
5 Sometimes referred to as Rule 30(b)(6) depositions, which is the
equivalent federal rule.
Fall, 2003
Think Twice (Cont’d. from page 4)
information that is being sought in a form that is admissible into
evidence. Advisory Committee Comments to 1970 Amendment
to Subpart (b)(6), Fed. R. Civ. P. Prior to adoption of Rule
57.03(b)(4) and its federal counterpart, a party seeking discovery
from a corporation might have to undertake extensive written
discovery plus numerous depositions of named officers,
directors, agents and employees of the corporation before
finding the witness who had personal knowledge of the
information sought to be discovered in a form that would be
admissible at trial. Id.
A corporate designee deposition is taken pursuant to notice
under Rule 57.03(b)(4), that names a corporation, partnership,
association, or governmental agency as the deponent and lists
the subjects upon which the deponent is to be examined. The
deponent corporation is required to designate "one or more
officers, directors, or managing agents, or other persons" to
testify on its behalf with respect to the matters listed in the
deposition notice. The person or persons designated by the
corporation are required to testify as to "matters known or
reasonably available" to the corporation. Parties and non-parties
alike may be deposed pursuant to a corporate designee
deposition notice.
The testimony of a corporate designee on the subjects specified
in the deposition notice constitutes an admission of the deponent
corporation.6 Mitsui v. Puerto Rico Water Resources Authority, 93
F.R.D. 62 (D. Puerto Rico 1981); Protective National Insurance Co.
of Omaha v. Commonwealth Insurance Co., 137 F.R.D. 267 (D.
Neb. 1989). See also Wright & Miller §2103; 23 Am. Jur. 2d §145.7
In designating persons to appear on behalf of the corporation,
the corporation must make a conscientious, good faith effort to
designate persons having knowledge of the matters specified in
the deposition notice. Protective National Insurance Co. v.
Commonwealth Insurance Co., 137 F.R.D. 267 (D. Neb. 1989).
The burden is on the corporation to identify, locate and analyze
the information sought by the discovering party and to designate
a corporate spokesman to respond to specific questions posed
by plaintiff's counsel on the topics listed in the corporate
designee deposition notice. Unfortunately, the process is not as
simple as envisioned by the drafters of the rules on corporate
designee depositions. It simply is not realistic to expect that any
human being can intelligently answer "on-the-fly" wide-ranging
6 Testimony of a corporate designee deponent is not a judicial
admission that formally and finally decides an issue. Admissions
by a corporate designee deponent may be explained or
contradicted by other evidence. W.R. Grace & Co. v. Viskase
Corporation, 1991 U.S. Dist. LEXIS 14651 (N.D. Ill. 1991).
7 Most of the reported court decisions on corporate designee
depositions are by federal district courts construing Rule 30(b)(6),
Fed. R. Civ. P., which is the federal rule on corporate designee
depositions. However, the language of the Missouri rule is virtually
identical to the federal rule, and Missouri courts have held that
federal case law is persuasive authority for Missouri courts in
construing Missouri rules that track a corresponding federal rule.
Myers v. Ries,, 84 S.W.3d 137 (Mo. App. 1999). Therefore, given a
dearth of Missouri case law on the subject, federal case law
construing federal Rule 30(b)(6) will be cited in this article in
discussing corporate designee depositions under Missouri Rule
57.03(b)(4).
Fall, 2003
questions regarding a corporation's operations, sometimes
covering a period of many years, particularly under
circumstances where the witness does not have personal
knowledge of the matters at issue.8
A corporation responding to a corporate designee deposition
notice must prepare the persons who are designated to testify on
behalf of the corporation to answer fully, completely and
unevasively questions relating to the topics listed in the
deposition notice. Id. The corporation is not relieved of its
obligation to designate a witness to testify regarding the topics
listed in the deposition notice simply because the persons having
knowledge of such matters are no longer employed by the
corporation or are deceased. U.S. v. Taylor, 166 F.R.D. 356
(M.D.N.C. 1996), aff'd 166 F.R.D. 367. The corporation must
prepare a designee to testify to the extent such information is
reasonably available, whether from documents, former
employees, or other sources. Id. Although a corporation may
plead lack of memory with respect to particular topics listed in
the deposition notice, if the corporation wishes to assert a
position in the lawsuit with respect to a topic listed in the
deposition notice based on the testimony of third parties or the
documents of third parties, the corporation must present
testimony as to why the corporation believes the facts should be
so construed. Id. Furthermore, and probably more importantly,
an "I don't know" response by a corporate designee, when
played to the jury at trial, can be devastating to the corporation's
credibility, particularly if information responsive to the question is
later found to be in the constructive possession of the
corporation.
There is a split of authority on whether a corporate designee may
be instructed by counsel for the corporation not to answer a
question on the grounds that the question exceeds the scope of
the deposition notice; that is, the question is not confined to the
topics of inquiry listed in the deposition notice. At least one court
has declined to order a corporate designee to answer a
question for which the witness had not been designated by the
corporation to testify on behalf of the corporation. Lapenna v.
Upjohn Co., 110 F.R.D. 15 (E.D. Pa. 1986). Other courts have held
that the examining party is not limited to matters within the scope
of the deposition notice in its questioning of a corporate
designee. Overseas Private Investment Corporation v.
Mandelbaum, 185 F.R.D. 67 (D.D.C. 1999); King v. Pratt & Whitney,
A Div. of United Technologies Corp., 161 F.R.D. 475 (S.D. Fla.
“Think Twice” >p6
1995).9
8
"If it is a useful fiction to imagine that an organization's access
to information is as rich as the collective input of its members, it
is a pernicious fiction to assume that the entity possesses an
inherent capacity to weed through those disparate sources to
produce a single, unified account of the facts." Kent Sinclair &
Roger P. Fendrich, "Discovering Corporate Knowledge and
Contentions: Rethinking Rule 30(b)(6) and Alternative
Mechanisms," Alabama Law Review, Spring 1999.
9
The author's solution to this dilemma is to explain to the
corporate designee witness before commencement of the
deposition that the witness has been authorized by his employer
to testify only on specific topics and that if the questions exceed
the scope of those topics, or if the witness feels he is not
prepared or qualified to answer a question, he should respond to
the question by explaining that he did not anticipate that
particular question being asked based on the topics listed in the
deposition notice and that he is not prepared to give an answer
on behalf of the corporation at the present time, but would have
to first research the precise question to see if information is
available to answer the question.
Page 5
Think Twice (Cont’d. from page 5)
Rule 57.03(b)(4) has been abused by some attorneys who have
used the rule to blindside and whipsaw corporate designee
deponents in an effort to saddle the corporation with admissions
by a witness who does not know the answers to the questions that
are ultimately posed at the deposition. See Kent Sinclair & Roger
P. Fendrich, "Discovering Corporate Knowledge and Contentions:
Rethinking Rule 30(b)(6) and Alternative Mechanisms," Alabama
Law Review, Spring 1999. It is not unusual today for plaintiffs'
counsel in a personal injury lawsuit to serve a corporate
defendant with a corporate designee deposition notice that is
10, 20 or even 30 pages long, replete with a glossary of terms,
demanding that the corporate defendant produce a corporate
designee to testify on every conceivable factual or legal issue in
the lawsuit, including conditions that existed over a period of
many years or even decades, inspections and analyses that took
place over that period of time, warnings and instructions issued
during that period of time, documents generated during that
period of time, communications inside and outside the
corporation during that period of time, injuries during that period
of time, corporate "knowledge" of certain conditions, risks, or
safer methods of work, and so on. Obviously, no witness can
knowledgeably or accurately testify regarding such a wide
range of topics over a period of many years, particularly since
the rule does not require that specific questions be listed in the
deposition notice, just the topics of inquiry. Indeed, an article
that appeared in the National Law Journal a few years ago
encouraged attorneys to use corporate designee deposition
notices to force corporate defendants to prepare an omnibus
witness to testify on all issues in a lawsuit and bind the
corporation with the admissions of such witness. Jerold Solovy &
Robert Byman, "Discovery: Invoking Rule 30(b)(6)," National Law
Journal, October 25, 1998 at B 13.
Various grounds exist for challenging onerous corporate
designee depositions by motion for a protective order, including
the grounds that such discovery is more appropriately pursued
through interrogatories and requests for production.
Unfortunately, many judges decline to hear legal objections to
such deposition notices in advance of the deposition and
require the corporation to produce a witness to testify to the best
of their ability. This, of course, puts the corporation in the
untenable position of having to tender a witness for deposition
who will be forced to answer, "I don't know" to many questions, or
who may give inaccurate or otherwise damaging responses to
questions at the deposition. Such responses potentially put the
corporation at risk for sanctions for failure to fairly respond to
discovery. See U.S. v. Taylor, 166 F.R.D. 356 (M.D.N.C. 1996), aff'd
166 F.R.D. 367 (producing an unprepared witness for deposition
is tantamount to failure to appear, warranting imposition of
sanctions). Even if the court is tolerant of the corporate
designee's inability to answer some (or even many) questions in
response to an overly broad and vague corporate designee
deposition notice, such responses by the corporate designee
may be used against the corporation at trial. In other words,
plaintiffs' counsel may propound overly broad and vague
corporate designee deposition notices to a corporate
defendant not caring whether or not the corporate designee
can answer the questions posed at the deposition, so long as the
corporate designee is forced to admit that he, as the official
representative of the corporation, doesn't know the answers to
the questions and doesn't know where to find the answers. This
kind of questioning is usually accompanied by insinuating
comments by plaintiffs' counsel such as "are you aware that you
Page 6
are here today as the company's official corporate
representative" and "didn't the company provide you with the
information you needed to testify on behalf of the corporation in
this lawsuit?"
If the trial court fails to grant relief to a corporate defendant
when it is served with an overly broad and vague notice of
corporate designee deposition, it is imperative that defense
counsel explain to the corporate defendant the importance of
devoting adequate time and resources to identify and prepare
a witness to serve as the corporation's representative at the
deposition. A carefully selected corporate designee, who has
been adequately prepared to tell the company's story in an
intelligent and persuasive fashion, may be able to frustrate the
efforts of plaintiff's counsel who wants only to use the corporate
designee as a punching bag to make the company look bad.
Under these circumstances, the well-prepared corporate
designee, who testifies not just from personal knowledge, but
based on "corporate knowledge," including hearsay information
contained in documents and gleaned from interviews with past
and present company employees, may provide a corporate
defendant its most effective means for presenting the
corporation's "company story" at trial.
Prior to the 2002 amendment to Rule 57.07, a corporation could
not introduce into evidence at trial any portion of the discovery
deposition of its corporate designee10 except as necessary to
insure that portions of a deposition introduced into evidence by
another party were not out of context.11 As long as no other party
in the lawsuit introduced any portion of a corporation's corporate
designee deposition into evidence, the corporation itself could
not put the deposition into evidence. Thus, plaintiff's counsel in a
personal injury lawsuit could serve a corporate defendant with
an overly broad and vague corporate designee deposition
notice and examine the corporate designee at length, secure in
the knowledge that only those portions of the deposition that
were favorable to the plaintiff would be heard by the jury, and
that if the deposition went badly for the plaintiff, it could not be
used at trial against the plaintiff.
With the 2002 amendment to Rule 57.07, the situation described
above no longer exists. Now that a corporate defendant has the
right to introduce its own corporate designee deposition into
evidence at trial including testimony elicited by the party
deponent's own counsel, plaintiff's counsel faces the possibility
that defense counsel will turn plaintiff's discovery deposition of
the defendant's corporate designee into a vehicle for telling the
defendant's "company story" at trial. Therefore, plaintiff's counsel
will want to think twice before serving a corporate defendant with
an overly broad and vague notice of corporate designee
deposition, since such a notice gives the corporate designee
more opportunity to tell the corporation's "company story" without
exceeding the scope of the topics listed in the plaintiff's
deposition notice. Likewise, plaintiff's counsel now has reason to
keep his questioning focused on discovering facts instead of
trying to extract corporate "admissions" from the deponent, since
a well-prepared corporate designee can use such openings to
tell the corporation's "company story." Thus, the 2002
amendment to Rule 57.07 may eventually solve some of the
problems corporations have had to wrestle with in defending
corporate designee depositions.
10
See footnote 9 infra and associated text.
11
Myers v. Ries,, 84 S.W.3d 137 (Mo. App. 1999) (Once a party
reads a portion of a deposition, the opposing party may read
some or all of the remaining deposition in explanation.)
Fall, 2003
Multiple Caps for Non-EEconomic Damages
in Medical Malpractice Cases
By John Morthland, Wasinger, Parham, Morthland, Terrell, & Wasinger,
Hannibal, MO
For those of us who defend physicians,
hospitals or other healthcare providers in
medical negligence cases, one of the
first things that needs to be determined
after being assigned a case is what is our
maximum exposure for non-economic
damages under Missouri's statutory
scheme. Even if you have a very
defensible case and the likelihood of a
voluntary settlement being entered into is
minimal, you, as your client's attorney, still
need to know what the worst-case
scenario in regard to damages.
Unfortunately, the courts of Missouri have
for a long time failed to interpret the
applicable statutes so that attorneys
know where they are in terms of
maximum exposure and/or recovery
when discussing settlement.
There are several areas in which the issue
of "caps" can arise. In my experience, the
following scenarios are most common:
1. If the patient died and a wrongful
death action is being pursued, is
there a separate cap for each of the
individuals identified in the class of
persons allowed to proceed with an
action under Missouri's Wrongful
Death Statute?
2. If one of the defendants is a
hospital, is there a separate cap for
each of the hospital's employees that
allegedly committed a negligent act?
At first blush, it appears that the answer to
each of these questions should be
relatively simple and should be readily
apparent. Unfortunately, this is not always
the case.
Plaintiffs advance the argument that in a
medical negligence wrongful death
action, there should be a separate cap
for non-economic damages for each
individual who can bring an action
pursuant to Missouri's Wrongful Death
Statute at Section 537.080 (1991).
According to plaintiffs' reasoning, if the
patient is only survived by a spouse and
not survived by either parent or any
children, then only one cap for noneconomic loss would apply since the
Fall, 2003
surviving spouse would be the only
individual entitled to bring the action.
However, if his or her father, his or her
spouse, and four children survive the
deceased patient, the plaintiff's bar
would argue that there are six separate
caps for non-economic loss. If you
assume the applicable cap at the time of
trial is $538,000.00, you could have a
situation where the exposure for noneconomic damages could be anywhere
from $538,000.00 to $3,228,000.00 even
if the special damages were exactly the
same in each of two separate cases. The
plaintiff's bar would argue that since
there are more "loved ones" of the
decedent who are entitled to sue for the
decedent's wrongful death, there should
in fact be more damages available for
non-economic loss. The defense bar
would argue to the contrary. The defense
bar would point out the legislative history
of Chapter 538 that indicates that one of
the main reasons for statutory caps on
non-economic damages at Section
538.210.1 (2000), is to keep healthcare
costs down and medical care available
to the public at large. Fortunately, one
division of the Missouri Court of Appeals
has addressed this issue head on.
In Burns v. Elk River Ambulance, Inc., 55
S.W.3d 466 (Mo.App. S.D. 2001), the
decedent was an 18-year-old man. At
the time of his death, he was survived by
both parents and did not have any
children nor was he married. Thus, under
Missouri's Wrongful Death Statute, both his
mother and father were entitled to be in
the class of individuals who could recover
for their deceased son's wrongful death.
In Burns, supra, the plaintiff was the
deceased's mother, the deceased's
father never having been made a party
in the cause of action and never having
intervened. However, after a large verdict
was rendered in favor of the plaintiff
mother, she argued that the trial court
erred in applying only one monetary limit
(cap) for non-economic damages per
Section 538.210.1 because there were
two individuals entitled to recover for the
decedent's wrongful death pursuant to
Missouri's statutory scheme. Both the
plaintiff and the non-party father of the
decedent should each receive damages
for non-economic loss up to the
applicable cap at the time of trial.
538.210 RSMo. provides that "No plaintiff
shall recover more than $350,000.00 per
occurrence for non-economic damages
from any one defendant." This cap
changes annually and is tied to the
"Implicit Price Deflator For Personal
Consumption Expenditure" as published
by the Bureau Of Economic Analysis of
the United States Department of
Commerce. In Burns, supra, the Southern
District reviewed several Missouri cases
that went into the legislative history of
Chapter 538. In all of the cases cited,
one of the pre-eminent reasons for
healthcare reform and the passage of
538.210 RSMo. was to impose specific
limitations on the traditional tort causes of
action against a healthcare provider.
The Court also felt that it was significant
that prior Missouri case law had
interpreted Missouri's Wrongful Death
Statute to allow for only one separate
cause of action:
"Long before the enactment of
Chapter 538, the Supreme Court
of this state said 'The Wrongful
Death Statute creates but one
indivisible cause of action which
remains the same whether
enforceable by the surviving
spouse, by the minor child or
children, or by the others named
in the statute." Burns, supra, at
page 486.
At page 486, the Court determined that if
you accepted the argument of plaintiff's
counsel, it would totally defeat the
legislative intent that existed and was the
reason for the adoption of Chapter 538 in
the first place.
"If plaintiff's argument is accepted,
a widow could sue for her
husband's wrongful death and
recover a separate cap for herself
and each of the couple's six
children. This interpretation does
not further the legislative goal of
harnessing increasing healthcare
costs nor does it square with the
legislature's awareness of the
application of Section 537.080
when Chapter 538 was enacted."
“Malpractice” >p8
Page 7
Malpractice
(Cont’d. from page 7)
Thus, in Burns, supra, the trial court
applied the cap of $538,000.00
indicated for the year of 2000 even
though the jury found the decedent's
damages for non-economic loss to be
much higher. Obviously, it would be nice
if the Missouri Supreme Court had issued
the opinion in Burns, supra, or some
similar case, which unfortunately has not
happened. However, it seems likely that
any trial court in the State of Missouri
would be impressed by the reasoning in
Burns, supra, and would follow its lead.
How many statutory maximum caps
should there be when one entity employs
two or more individuals who allegedly
committed medical negligence? It
appears that the first case that dealt with
this issue in Missouri was Romero v. United
States of America, 865 F.Supp. 585 (E.D.
MO. 1994). Romero is a somewhat
unusual case. The United States of
America was being sued under the
Federal Tort Claims Act for medical
negligence that allegedly occurred at a
Veteran's Administration Hospital. The
plaintiff alleged two instances of medical
malpractice against two different
physicians employed by the subject
Veteran's
Administration
Hospital.
Surprisingly, the parties entered into a
Joint Stipulation of Fact wherein the
defendant admitted the two separate
acts of medical negligence by the two
different physicians. After waiving a jury
trial, the matter was tried to the court. The
Stipulation stated that a physician
committed medical malpractice on June
9, 1988, for misdiagnosing a biopsy and
a different physician committed medical
negligence on June 24, 1988, during the
surgical procedure that occurred as a
result of the biopsy. The defendant
argued that only one cap for noneconomic damages was applicable
since there was only one defendant. The
plaintiff argued that since there were two
separate acts of medical negligence
committed by two different physicians, a
separate cap should be applied for
each of the two acts of medical
negligence.
The Court went into great detail in
analyzing whether there were in fact two
separate causes of actions for medical
negligence. The Court concluded from
the stipulated facts that the improper
pathology diagnosis was in fact one,
separate cause of action. The pathologist
determined that the biopsy specimen
Page 8
contained a poorly differentiated
"squamous cell carcinoma" while in fact
the
biopsy
specimen
contained
"lymphoma",
not
squamous
cell
carcinoma. As a result of this improper
pathologist
report,
surgery
was
performed on the supposed squamous
cell carcinoma. However, lymphoma
cannot be treated surgically so the
surgical procedure should not have
occurred in the first place. The Court
concluded that while the surgery was
initially predicated upon the improper
pathology diagnosis, other independent
and separate events subsequent to the
improper pathology diagnosis made the
surgery inappropriate and improper and
should not have been done anyway. The
Court then concluded that the improper
pathology diagnosis and the improper
surgery were two separate occurrences
and as such, two separate caps for noneconomic loss applied.
This issue has most recently been
addressed by the Eastern District of the
Missouri Court of Appeals in Scott v. SSM
Healthcare St. Louis, 70 S.W.3d 560
(Mo.App. E.D. 2002). Scott, supra, is an
important case for several reasons. One
issue addressed by the court was whether
or not an agency relationship existed
between the hospital and a radiologist
who read radiographic studies at the
hospital but was employed by a separate
corporation. I think that the defense bar
would agree unanimously that the Court's
decision in finding the existence of an
agency relationship in that regard was
somewhat of a stretch. The other
significant issue, and the one dealt with in
this article, was whether or not the
hospital was subject to two statutory caps
rather than one cap for non-economic
damages. The plaintiff alleged that Dr.
Koch, the radiologist employed by
Radiologic Imaging Consultants, was
negligent in misreading a CT scan of the
patient's brain. The plaintiffs also alleged
that Dr. Doumit, admittedly an employee
of the hospital in its emergency room,
was medically negligent in failing to
instruct the patient's parents to bring the
patient back to the emergency room
after the patient's parents had called
back with new information and concerns.
Section 538.210.1 provides as follows:
"In any action against a
healthcare provider for damages
for personal injury or death arising
out of the rendering of or the
failure to render healthcare
services, no plaintiff shall recover
more than $350,000.00 per
occurrence for non-economic
damages
from
any
one
defendant as defendant is
defined in subsection 2 of this
section."
The Eastern District of our Court of
Appeals concluded that the issue was the
statutory interpretation of the meaning of
"occurrence" as used in Section 538.210.
The Court reviewed several cases
interpreting the legislative history of
Chapter 538 and acknowledged that our
Supreme Court stated in Mahoney v.
Doerhoff Surgical Services, 807 S.W.2d
503, 507 (Mo. banc 1991) that "It is
readily understood from the history and
text of Chapter 538 that its enactment is
a legislative response to the public
concern over the increased cost of
healthcare and the continued integrity of
that system of essential services".
However, the Court thereafter ignored the
legislative history and decided that the
issue before them was "to what extent"
and "in what manner" did the legislature
intend to limit the exposure for noneconomic damages.
The Court did review Romero, supra, and
found it to be persuasive but also felt it
was significant that the words "per
occurrence" were in the text of Section
538.210 and had not been removed. The
Court concluded that if the legislature
truly wanted to allow only one cap on
non-economic damages for one
resulting injury, it could simply have
removed the words "per occurrence"
from the statute. The Court then stated,
"We presume that the legislature did not
insert superfluous language in a statute".
Not surprisingly, the defendant in Scott,
supra, filed an application to have the
case transferred to the Missouri Supreme
Court, which was denied. It is hard to
understand why the Court did not accept
transfer of Scott, supra, when the case
contained such an important issue that
both the plaintiff and defense bar
confront on a regular basis. One can only
assume that the Missouri Supreme Court
wants the legislature to decide this issue,
and not the courts.
Our Supreme Court's failure to address
the issues as set out in Scott, supra, opens
up a whole new can of worms. It is not
uncommon to have a case where it is
alleged that two or more nurses
employed by a hospital breached the
applicable standard of care. Perhaps
one nurse should have called the
physician earlier whereas another nurse
“Malpractice” >p9
Fall, 2003
MODL Trial Academy Report
By Susan Ford Robertson, MODL Trial Academy Chair
The Thirteenth Annual MODL Trial Academy was held
March 26-28, 2003 in Columbia, Missouri. The trial
academy offers lawyers who have been practicing
five years or less an invaluable opportunity and
experience to perform as defense lawyers in a
complete civil trial. The program offers a combination
of demonstration and lecture by veteran defense
attorneys and individual learning by direct
participation by the student registrants. The case used
this year was Mary Jane Dyke King v. David J. Gilbert
and David Wayne Mallory (an actual case tried
several years ago in the circuit court in Jasper County,
Missouri). The trial academy qualified for 20.20 hours
of Missouri CLE credit.
Thank you to the wonderful faculty who again
provided such generosity in time, advice and
wisdom. The faculty demonstrations were outstanding.
The faculty always comes prepared as though the
jury and case were real. Their enthusiasm,
knowledge, advice and humor are invaluable to the
student lawyers, as well as to the other faculty
members. Thanks again to this year's faculty
members:
Larry Grebel
Joe Winget
Robert. A. Wulff
Jack Bangert
Cathy Dean
Gerard Noce
Doug Richmond
Malpractice
This year's students were outstanding. These lawyers
came prepared from the beginning to the very end.
The faculty believes that each of the following lawyers
are well on their way to becoming tremendous
attorneys:
Paul Andersen
Lisa Chase
Kristin Figge
Troy Groat
Matt Himich
Laura M. Jordan
Eric G. Kukowski
Emily Little
Mark F. Mueller
Garrett S. Taylor
Jacqueline P. Ulin
Karen M. Volkman
Justin Assouad
Mark Fendler
Jack Green
Julie Gwinn
Jim Humphrey
Matt Koehler
Garrett Lambert
Fredrick Ludwig
Holly Streeter-SSchaefer
Holly Turner
Joe Van Ackesen
(Cont’d. from page 8)
failed to properly administer the
medication ordered. All of these
allegations of negligence lead to one
ultimate result: the death or permanent
injury to the patient. Under Scott, supra,
is a separate statutory cap for noneconomic damages available to
plaintiffs for each nursing employee of
the defendant hospital who plaintiffs
allege acted negligently or does only
one cap apply? Although I'm sure the
Missouri legislature did not intend to
allow a separate cap in a scenario such
as this, under the reasoning of Scott,
supra, it would be hard to argue that
separate caps would not apply.
Fall, 2003
Kent Lowry
Karl Blanchard, Jr.
Sherry Doctorian
Mariam Decker
Leo Leonatti
Mary O'Connell
Stacey Campbell
A special thanks to The Honorable Ronald Holliger
from the Missouri Court of Appeals for the Western
District who presided over the trial academy this year.
Judge Holliger provided invaluable insight, wisdom
and advice for the students as well as the faculty. His
love of the law and dedication to educating lawyers
on trial skills was evident and most appreciated.
What if there is only one defendant, towit, the admitting physician of the
patient to the hospital? What if plaintiff's
evidence and expert testimony is that
this sole defendant physician violated
the standard of care on the date of
admission to the hospital by prescribing
improper treatment and thereafter
violated the applicable standard of
care by not ordering a certain
radiological study while the patient was
in the intensive care unit three days later.
Are there two caps for non-economic
damages available to the patient or is
there simply one cap? Once again, it
would be hard to argue that the
rationale adopted by the court in Scott,
supra, wouldn't allow for two separate
caps.
All attorneys realize that there is a great
deal of movement afoot on the issue of
tort reform this past legislative session
and special session. This tort reform not
only concerns medical negligence
cases but also addresses the general
nature of our liability system on all types
of tort actions. Different factions have
proposed different reforms, some of
which I am sure the defense bar finds
intolerable. Hopefully, our legislature will
address the issues set out in this article or
both the plaintiff and defense bars and
their respective clients will continue to
suffer from the uncertainty that exists in
this area.
Page 9
Summary Judgment: Changes to Rule 74.04
Effective January 1, 2003
By Scott Bellm, Turner, Reid, Duncan, Loomer & Patton, P.C., Springfield, MO
The Missouri Supreme Court recently made rather significant
amendments to Rule 74.04 that became effective as of January
1, 2003. Although the specific amendments are discussed in
more detail below, the major changes affect the technical form
of the motion and additionally allow for the filing of a reply and
sur-reply after the response has been served. The amended
sections are 74.04(c)(1)-(6) and 74.04(e).
Motions for Summary Judgment
Rule 74.04(c)(1)
The technical form of the pleading will be very different than
what most practitioners have grown accustomed to. Under the
old rule, the motion itself contained the facts to which the movant
claimed there was no issue. A legal memorandum explaining
why the movant was entitled to summary judgment was then
attached separately. The new rule is very different, in that it
requires the pleader to state the legal basis for the motion
therein. A separate statement of the uncontroverted facts is to be
attached to the motion, along with a copy of all discovery,
exhibits and affidavits upon which the motion relies. Finally, the
movant must file a separate legal memorandum explaining why
the motion should be granted.
Responses to Motions for Summary Judgment
Rule 74.04(c)(2)
With respect to the technical form of the response, the new rule
is not drastically different. One difference is that the responding
party must attach a copy of all discovery, exhibits or affidavits he
or she relies upon in the response. Although it was fairly common
practice to do so in the past, it was not actually required under
the rule. Additionally, the new rule requires that each denial of a
factual issue be supported by specific references to discovery,
affidavits or other exhibits. A denial cannot be supported solely
by references to allegations contained in the pleadings. Further,
a response that fails to comply with these requirements as to any
numbered paragraph in the movant's statement of
uncontroverted facts, will be deemed an admission of the truth
of that fact.
There is one final difference found in this section. The old rule
specifically allowed the non-moving party to request time to
conduct additional discovery if it was needed in order to
respond to the motion. Interestingly, the new rule contains no
similar provision, although one must assume that in the
appropriate situation, a responding party would still be entitled
to request relief in the form of additional time to respond. Such a
request would likely need to be made by filing an affidavit
pursuant to Rule 74.04(f).
Replies in Support of Motions
for Summary Judgment
Rule 74.04(c)(3)
This section is entirely new. The old rule contained no provision
that would allow the moving party to submit any additional
pleadings after the response was filed. The new rule now allows
the movant to file a reply and accompanying legal memoranda
within 15 days after being served with the opposing party's
response. If the response sets forth additional disputed material
facts, the movant must file a statement admitting or denying
each such fact in the same manner and form as prescribed by
Rule 74.04(c)(1). Additionally, the movant may also file a
statement of additional facts to which there is no genuine issue,
along with a copy of the discovery or affidavits upon which the
supplemental statement relies.
Sur-R
Replies in Opposition to Motions
for Summary Judgment
Rule 74.04(c)(4)
In the event that the movant files a reply in support of his or her
motion, within 15 days from service of the reply, the non-moving
party may file a sur-reply in opposition. If new facts are alleged
in the movant's reply, the non-moving party must respond by
admitting or denying each new factual matter. As with the
response and the reply, any discovery relied upon in the sur-reply
should be attached. A memorandum of law may also be
attached in support thereof. Any new factual matters raised in
the movant's reply will be deemed admitted if the sur-reply does
not follow the form prescribed in Rule 74.04(c)(2).
Additional Papers
Rule 74.04(c)(5)
After the filing of the sur-reply, no other papers can be filed
without leave of the court.
Rulings on Motions for Summary Judgment
Rule 74.04(c)(6)
The substance of this rule has not been changed. The only real
difference between the old rule and the new one is that the court
now must wait for the filing of the reply and sur-reply, or the
deadlines for their filing to expire, before it can rule on the
motion.
“Summary Judgement” >p11
If the eyes are the window to the soul,
the mouth is the doorway.
Page 10
Fall, 2003
Judiciary Committee
Report
Report from DRI State
Representative
By Dale Beckerman
Deacy & Deacy, LLP, Kansas City, MO
By Clark H. Cole
MiODL State DRI Representative
There are openings this year on the Western District Appellate
Commission and the Circuit Court Commission for Jackson
County and St. Louis City.
There are two matters worthy of mention on the DRI front. First, the
2003 DRI Annual Meeting will be held in Washington, D.C.
October 15-19 at the Hilton Washington & Towers. The meeting
features excellent CLE programming and outstanding speakers
such as former U.S. Senator and presidential candidate Bob Dole,
columnist George F. Will, U.S. Senator Orrin G. Hatch, and political
pundits Mary Matalin and James Carville. All MODL members are
welcome and encouraged to attend.
Rich McLeod of Kansas City filed for the Western District Appellate
Commission and MODL has endorsed his candidacy. Rich is
opposed by Jack Norton, a former MATA President.
Cindy Reams Martin of Blue Springs filed for the Jackson County
Circuit position and MODL has also endorsed her. Cindy is
opposed by Steve White, also a former MATA President.
We need to have all eligible voters support Rich and Cindy!
To date, the only candidate for the City of St. Louis position is Tom
Stewart of the Halloran Firm. At this point it appears that he will be
unopposed.
In addition, MODL is honored to be hosting the 2003-04 meeting
of the DRI Mid Region State Representatives. The Mid Region is
composed of the state defense organizations from Iowa, Kansas,
Missouri, Nebraska and Utah. State Representatives and officers
from each member state will be meeting in St. Louis June 4-5,
2004. This will be an opportunity for MODL to extend Missouri
hospitality to fellow defense bar representatives from our region.
More details will be forthcoming in the next Newsletter.
I hope to see you at future DRI and MODL meetings.
2004 TRIAL ACADEMY
March 24-26, 2004
University Of Missouri
School Of Law
MODL Presents W. James Foland
with the
2003 Ben Ely, Jr. Outstanding
Defense Lawyer Award
Summary Judgement
(Cont’d. from page 10)
Form of Affidavit
Rule 74.04(e)
The new rule is essentially the first two sentences of the old rule.
The rest of the old rule, relating to the supplementation and
opposition of affidavits, has been deleted. Presumably, there
was no need for this provision now that the parties will be
allowed to file a reply and sur-reply.
The balance of Rule 74.04 remains unchanged. Obviously, the
new sections represent a significant departure from the old. Not
only has the form of the motion itself changed, but because the
parties now are allowed to file replies and sur-replies, a new set
of deadlines will have to be recognized and calendared after
the response is filed. Although only time will tell, the new
additions to the rule may render the process somewhat
unwieldy. Given the nature of some of these changes, one
should carefully review these new provisions before filing or
responding to a motion for summary judgment.
Fall, 2003
K Presenting the Award to Jim Foland (center) are Joe Roper
(left) of Jim's Firm and MODL President Clark Cole (right) of
Armstrong Teasdale, St. Louis, MO.
The Board of Directors wishes to honor W. James Foland for
demonstrating the high moral, ethical and professional
standards exemplified by Ben Ely, Jr., and for his outstanding
achievement and contribution in support of the goals and
objectives of the legal profession and of the Missouri
Organization of Defense Lawyers.
Page 11
St. Louis Mayor Slay Recognizes Juror Appreciation Week
Shortly after our last publication date and at the request of Clark
H. Cole, a partner at Armstrong, Teasdale, LLP and Immediate
Past President of the Missouri Organization of Defense Lawyers
(MODL), St. Louis City Mayor Francis G. Slay, issued a
proclamation designating the week of April 28 through May 2 as
"Juror Appreciation Week." This corresponds with a national
recognition of this same week as Law Week by the American Bar
Association.
Cole received the Proclamationn from Mayor Slay saying, "Trial
Lawyers are especially aware of the important contributions
made by the folks who sit on our juries. They don't get thanked
enough for the important role they play. MODL is very pleased
with the Mayor's proclamation.”
K Clark H. Cole, a partner of Armstrong Teasdale LLP and
Immediate Past President of the Missouri Organization of Defense
Lawyers presents a mayoral proclamation to Presiding Judge
Michael P. David of the 22nd Judicial Circuit. Judge David
indicated the proclamation would be prominently displayed in
the Jury Assembly Room or some other appropriate location.
During the American Bar Association's Law Week, the
organization encourages leaders and local courts to recognize
the importance of jurors to the American System of justice. Cole,
as President of the Missouri Organization of Defense Lawyers, had
asked the Mayor to proclaim "Juror Appreciation Week" in
recognition of the role of jurors.
On Friday, April 25, Cole presented the proclamation to Presiding
Judge Michael P. David of the 22nd Judicial Circuit. Judge David
indicated the proclamation would be prominently displayed in
the Jury Assembly Room or some other appropriate location.
Everyone Was A Winner At The
Annual MODL Conference!
Page 12
Fall, 2003