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Court Decisions: Protecting the Record and Use of Authoritative Writings:

Snellen v. Capitol Region Medical Center No. WD75787

(Western District, October 15, 2013)

The Missouri Court of Appeals for the Western District handed down an opinion with an interesting procedural  and an interesting evidentiary ruling.  The case involved an obstetrical malpractice claim.  The plaintiff alleged that the physician failed to recognize the signs of fetal distress and inadequate oxygenation, and that as a result, the baby suffered brain damage.  Plaintiff appealed from a defense verdict.

Protecting the Record

The first issue involves what the appellate court may consider on appeal – the official record or affidavits that dispute the official record’s accuracy. The challenged part of the record involved defense counsel’s questioning of her own client.  She asked if the Missouri Board of Healing Arts, which licenses physicians, had ever investigated this claim.  As noted by the Court, such questions are improper when posed to imply that a claim had been investigated by the Board and no malpractice was found to be committed.

An open book laying on a table in a law library.According to the official record, and objection was made to the question, and the witness did not answer.  Plaintiff’s attorney, however, claimed that the physician answered over his objection, stating that the claim was investigated and that she was vindicated.  Plaintiff’s counsel moved for a mistrial, which was denied.

On appeal, plaintiff’s attorney submitted his affidavit swearing that the question had been answered by the physician, and that a juror reacted by nodding their head.  This did not appear in the Court Reporter’s transcript, and the attorney argued that his affidavit should be given the same weight as the transcript.

The Court ruled that the record must be corrected, if at all, at the trial court level.  If there is a dispute on appeal, the disputing party must designate in writing to the appellate Court those portions that are in dispute.  The Appellate court then directs the trial court to settle the dispute and certify the correct contents.  It further stated that the Appellate Court must accept the record as absolute verity.  See Rule 81.15(d).

Here the Court was faced with choosing between the official record and the affidavit of counsel.  It was constrained to accept the official record “even though the court has no reason to doubt counsel’s accuracy.”

It is only for speculation what additional steps counsel could have taken.  Plaintiff’s counsel made an objection, made a record on two occasions and moved for a new trial.  It is unknown if the Court Reporter took or kept a sound recording of the trial.  It is also unknown if the Court would have entertained a mid-trial juror examination. The one step that could have been taken was to use the available rule, challenge the record, and follow the procedure to have the trial court certify the correct contents.

Post Event Literature

The case also discussed the use of post event literature – distinguishing between its use for standard of care, and causation.  Here, the relevant article was published in 2003, and the events occurred in 1998.  The Court noted that post event literature concerning new procedures or developments after the alleged malpractice cannot be used to establish the standard of care at the time of the alleged malpractice.

On the other hand, post event knowledge regarding causation is not limited to the timeframe of the alleged malpractice.  Later scientific breakthroughs that allow determination of causation is both relevant and admissible.

Snellen v. Capitol Region Medial Center No. WD75787 (Western District, October 15, 2013).


NFL / St. Louis Rams Arbitration Clause

NFL/Rams Update: The Missouri Court of Appeals (eastern District) finds that an arbitration clause in the Rams employment contract referring any employment disputes to the NFL Commissioner for Binding Arbitration is unconscionable and unenforceable.  

The Court reasoned that an arbitration provision that allows the selection of an arbitrator, who must be unbiased, to be made solely by an individual who is in a position of bias, is unconscionable.A chalk diagram of a football play on a chalkboard. Here, the Court found that the Commissioner of the NFL is in a position of bias, because he owes his position to the NFL teams that selected him.  It was also concerned because the Commissioner’s decision on the matter is final, binding and unappealable.

“This agreement evidences an irrational and obligatory choice of a potentially biased arbitrator whose decision shall be final, binding, conclusive and unappealable over an impartial and appealable litigation process. Given these facts, we find the Arbitration Provision unconscionable and unenforceable.”

Hewitt v. Honorable Kristine Kerr,  No. ED100479 (Eastern District of Missouri October 22, 2013).  

It will be interesting to see what effect, if any, this has on the provisions of the collective bargaining agreement. There are similar provisions for arbitration, and appeal of the Commissioner’s decisions with regard to discipline.


Dismissal Of Case On The Pleadings Granted Where
Plaintiff Sought To Re-Litigate Probate Court Award

Recently we represented an heir who was sued in Civil Court in Johnson County Kansas by another heir to recover monies and/or land awarded by a Kansas Probate Court in Wyandotte County, Kansas. The plaintiff alleged that she and the defendant had reached a Family Settlement Agreement in the Probate Court, and that the defendant failed to follow through on the agreement.

One of the many fountains in Kansas City, MOThe Probate Court, however, found that that the proffered settlement agreement was not valid and would not be enforced.1 It awarded the heirs their intestate share of the estate. The plaintiff never appealed this Probate Court ruling.

On defendant’s motion for judgment on the pleadings in the civil action, or summary judgment, we successfully argued that the Probate Court’s Order finding that there was no valid settlement agreement could not be attacked collaterally. The Plaintiff’s remedy was, if at all, in the Probate Court and could not be maintained as a collateral action.

In addition we showed that the plaintiff accepted the awards of land and money without objection, and signed receipts with the probate court admitting that she had received her full pecuniary award.

Practice Points:

  1. Probate Court awards and rulings can be res judicata, and can lead to issue preclusion.
  2. The Probate Court’s Award containing the ruling that the putative agreement was not a valid settlement agreement was attached to the plaintiff’s petition. This made Judgment on the Pleadings appropriate.
  3. Plaintiff’s conduct in accepting the benefits of the Probate Award foreclosed her attempt to change the distribution.

1 In Kansas, property can be distributed by a Probate Court in only three ways: by will, by intestate succession, or by valid settlement agreement.  The settlement agreement must meet the requirements of  K.S.A. 59-102 (West).


Electronic Discovery Tips

There are many materials available online, in CLE materials, and in the library that tell us “what”, or the law behind electronic discovery.  Here are some practical tips I have learned on the “how” of finding the documents you need for your case.

For full-blown electronic discovery, try this approach:

  1. Chris and Margot Pickering - Kansas City Business Lawyers - Overland Park and Lenexa, KS, too.Depose the managing agent / corporate representative about the IT system and location of documents. They will testify as to systems, policies, retention and destruction of documents.
  2. Next depose the IT/IS manager.  They will testify as to how the system is actually operated – whether policies are followed, documents deleted, offsite migration of documents (jump drives, lap tops, cloud, email).
  3. E-document Custodian.  Have this person identify persons responsible for the operation, maintenance, data security, expansion and backup of computer systems. Obtain a description of the number and type of servers, local area networks and wide area network servers, desktop and laptop computers in use at your adversary’s offices as well as home computers and personal devices used by the employees for work.
    • Obtain a description of the operating systems and software.
    • Obtain a description of their backup schedule, tape rotation, tape retention dated destruction concerning e-mail systems, e-mail retention schedules and any policies or practices concerning the use of electronic mail.
    • Obtain information concerning any Internet, Internet gateways or software used to connect your adversary’s computer system with Internet and any guidelines or policies issued to their personnel concerning employee use of the Internet.
    • Obtain information concerning word processing systems, database management or project management software, electronic spreadsheets and other software used by their personnel including guidelines for personal use of such software.

4. Requests for production regarding electronic evidence:

  • Written policies procedures and guidelines relating to computers, electronic data and electronic media
  • File naming conventions.
  • Diskette labeling rotation.
  • Electronic media retention, destruction, corporate policies concerning employee use of company computers and data.
  • Organizational charts.
  • Backup tapes containing relevant material.
  • Exact copies of relevant hard drives (including desktops, laptops, notebooks palmtop, phones, tablets, and personal digital assistant computers).

This is a bare bones list, but should help get the process started.  Key your requests to specific allegations in the numbered paragraphs of the petition, answer, counterclaims and affirmative defenses in an effort avoid an “overbroad, burdensome, not reasonably calculated” objection to your requests.  And resist production of paper copies of digital electronic documents in lieu of the native form of the document.

As a last bit of advice, make sure your client’s house is in order.  You may find that your opponent adopts your approach and launches the same discovery in response.

Happy Hunting.


Look at the Whole Document:
Corporate Dispute Litigation

It is Important to Look at the Whole Document In Corporate Dispute Litigation.

Image of Union Station in Kansas City, MO at night.In a recent case involving an LLC with an operating agreement, two of the members voted to expel the third member.  While this was permitted under the terms of the agreement, the next paragraph provided that the expulsion resulted in dissolution of the LLC.  The case involved a dispute between the LLC and the individual about the ability of a current member to be employed by a competing business.  The LLC had pending motions for injunctive relief to prevent the member from working for a competing business.

Once the member was expelled, triggering the dissolution, the Court dismissed all of the pending motions for injunctive relief against the expelled member based upon our motion to dismiss. The Court further dismissed the entirety of the Company’s petition, finding that there was no party to continue the action. The Company is seeking post-judgment review of the Order, and Designation for Appeal.


Advancement of Fees and Costs
for Defense of Counterclaims

Advancement of Fees and Costs for Defense of Counterclaims in Corporate Disputes and Principle Employee Litigation: Look at the Corporate Documents for Advancement and Indemnity Provisions.

An image of a scale (scales of Justice).Most of us are aware that Corporations and LLCs are permitted to advance legal fees and costs to corporate officials.  See K.S.A. §§17-6305 and 17-7670 (2007).  A separate proceeding may be available to enforce these provisions as well.

What we may not realize is the in the event the office or director is required to sue the company, and the company then files a counterclaim, that advancement may be available to cover the costs of defending the counterclaims.  Many shareholder agreements, by-laws, operating agreements and employment agreements are based upon the Delaware statutes that permit such provisions.  Broadly worded, these provisions can provide a source of funds to defend against counterclaims asserted by the company – but not normally for affirmative claims.

See Westar Energy Inc. v. Wittig 44 Kan.App2d 182, P.3d 151 (2010) and Paolino v. Mace Sec. Int’l, 985 A.2d 391 (Del Ch. 2009).  We were able to get the Court to recognize this right to advancement recently in the Johnson County, Kansas, District Court.


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