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Hale v. Cottrell, Inc.

Court of Appeals of Missouri, Western District, Second Division

December 30, 2014

STEPHEN J. HALE, ET AL., Appellant-Respondents,

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[Copyrighted Material Omitted]

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Appeal from the Circuit Court of Jackson County, Missouri Honorable James Dale Youngs, Judge.

For Appellant-Respondents (WD76726): Charles Armbruster, III, Alton, IL; Michael Blotevogel, Alton, IL; Anthony Dewitt, Jefferson City, MO.

For Respondent-Appellants (WD76765): Daniel Carpenter, Amy Lorenz-Moser, Jeffery McPherson, Clayton, MO.

For Respondent (WD76765): Paul Wickens, William Logan, Kansas City, MO.

Before Division One: Thomas H. Newton, P.J., Lisa White Hardwick, and Anthony Rex Gabbert, JJ. Hardwick and Gabbert, JJ. concur.


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Thomas H. Newton, Presiding Judge

Mr. Stephen and Ms. Cynthia Hale filed a petition for damages against Cottrell, Inc., Pacific Motor Trucking Company (PMT), Auto Handling Corporation (AHC) (collectively, " the Defendants" ), and others.[1] Cottrell filed a motion to dismiss the petition, which the other defendants joined. The trial court invoked its inherent powers and dismissed the case with prejudice on the ground that the Hales, aided by their attorneys, committed fraud on the trial court. Cottrell requested attorney fees, which the trial court denied. The Hales appeal, and Cottrell cross-appeals. We affirm.

Factual and Procedural Background

In August 1996, Mr. Hale sustained an injury to the lower back in an on-the-job accident at Continental Waste Management (CWI). A larger truck driven by a Lochirco Fruit and Produce Company (Lochirco) driver hit Mr. Hale and a coworker, while they were driving in one of CWI's trucks. Mr. Hale went to St. John's Mercy Hospital for x-rays. Thereafter, he went to Washington Memorial for rehabilitation; he was recommended to Dr. David Chalk for follow-up care.

In 1997, Mr. Hale filed for workers' compensation benefits. In July 1997, Dr. R. Peter Mirkin evaluated Mr. Hale on behalf of CWI. Dr. Mirkin opined in a report that Mr. Hale suffered a " very mild [back] strain" from the 1996 accident, but that it had " completely resolved" such that Mr. Hale could " work without restrictions." He concluded that Mr. Hale would experience episodic back pain solely attributed to a preexisting condition (" congenital anomaly . . . on the right" but no spondylolisthesis[2] and " preexisting degenerative

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spine problems" ) and that Mr. Hale was not permanently disabled from the injury. In November 1997, Dr. Charles McGinty, Sr., examined Mr. Hale on behalf of Mr. Hale's counsel. Contrary to Dr. Mirkin, Dr. McGinty issued a detailed opinion that Mr. Hale suffered a severe spraining injury to the preexisting spine condition (partial spondylolisthesis, a congenital deformity, in the lower back and " its subsequent asymptomatic development of arthritic changes" ), and that the injury aggravated or exacerbated this condition. Dr. McGinty observed that Mr. Hale walked with a minimal limp on the right side. He concluded that Mr. Hale had a permanent partial disability of thirty-five percent at the lower back, ten percent of which was due to the preexisting condition, and the remaining twenty-five percent to the spraining injury. In 1998, the parties disagreed as to the " nature, extent of [permanent partial disability], medical causation, . . . [and] past [and] future medical [expenses]," and settled the case. They agreed that Mr. Hale had only a tenpercent disability of the lower back. Mr. Hale remained under the care of Dr. Chalk.

In 2001, Mr. Hale filed a civil suit seeking compensation for the injuries and damages caused by the 1996 accident. Mr. Hale amended the petition in 2003 to seek damages from Lochirco for its driver's negligence and CWI's insurer for contract liability to Mr. Hale as the beneficiary of the underinsured policy. The petition alleged that the injuries Mr. Hale sustained in 1996 were permanent and progressive in nature. The petition further alleged that Mr. Hale " ha[d]. . . suffered great pain, . . . discomfort, inconvenience, and disruption of the enjoyment of life as a proximate result of [Lochirco]'s negligence," and that " [Mr. Hale] ha[d] [thus]. . . incurr[ed] medical expense in excess of $25,000[,] and w[ould] in the future incur further medical expense and require medical treatment." In April 2004, the case was dismissed without prejudice. In October 2004, Mr. Hale obtained the legal file from his counsel for the CWI and the Lochirco cases. The previous litigation file contained all of the medical records.

In September 2005, Mr. Hale was allegedly injured on the job while " performing his normal work duties as a car hauler for [Jack Cooper Transport]" by operating a rig (trailer) manufactured by Cottrell. A few weeks later, Mr. Hale was evaluated by Dr. David Kennedy, who noted in a medical report that Mr. Hale stated that he had no prior injury to the lumbar spine (lower back).[3] Dr. Kennedy noted disc herniation and recommended surgery if the prescribed epidural steroid injections did not alleviate the pain. He opined that the 2005 incident caused Mr. Hale's symptoms and need for treatment. At some point, Mr. Hale had back surgeries.

In 2006, Mr. Hale obtained new counsel, Mr. Jonathan Isbell, for a workers' compensation claim against Jack Cooper Transport. Sometime between 2006 and 2009, Mr. Hale delivered the previous litigation file to Mr. Isbell. In 2007,[4] the Hales obtained other counsel, Mr. Brian Wendler and Mr. Charles Armbruster, III,

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to sue the Defendants and others for damages. Mr. Isbell and Mr. Wendler shared office space, and they also shared Mr. Hale's medical records for the 2005 incident.

In September 2007, the Hales filed a multi-count petition, seeking compensatory damages from the Defendants under several theories, including products liability. The petition was amended in 2008 to include counts for punitive damages. In the amended petition, the Hales claimed that Mr. Hale injured his lower back and related areas during normal operation of a Cottrell rig while working. The Hales alleged that the loading skids on the Cottrell rig were defective and required replacement. They also alleged that the replacement skids from Canaramp USA, LLC, Fixco, Inc., or C.F. Bender, Inc., were defective. They further alleged that AHC improperly maintained the Cottrell rig by using the replacement skids that were ill suited to it, and that PMT tested those replacement skids on the Cottrell rig and approved the modification, knowing that those skids were dangerous. They further claimed that the Defendants' wrongful conduct resulted in injuries to Mr. Hale that deprived Ms. Hale of spousal support and services.

Discovery occurred among the parties, and it was sometimes contentious. In 2007, Cottrell sought medical records for the lower back before and after the 2005 incident by posing two questions in its interrogatories to the Hales. The Hales originally objected to the requests as " overbroad in time" and scope, but stated that " all available medical records and bills for plaintiffs ha[d] been produced." The Hales responded in a similar manner to other defendants, including a statement to Fixco that the 1996 injury was not the same as the 2005 injury.

In February 2009, the Hales later supplemented their responses with records from Dr. Chalk, who began treating Mr. Hale in 1996 for the lower back injury. They did not produce other medical records (Dr. Mirkin's and Dr. McGinty's reports and the St. John's x-ray results) concerning the 1996 injury. Mr. Hale was deposed in August 2008. In November 2008, Mr. Hale's deposition continued, during which he was confronted with his responses to prior interrogatories from the previous litigation concerning which doctors saw him. Mr. Hale acknowledged his responses. None of the attorneys questioned him about any visits with Drs. Mirkin or McGinty, two of the doctors mentioned in the response. Subsequently, the Defendants sought records from those doctors, and both offices reported that any records they had for Mr. Hale were gone due to the passage of time. Thereafter, Dr. Mirkin's report was produced by the Hales.

The jury trial was set for March 23, 2010.[5] At trial, the Hales' counsel stated in the opening statement that the jury would see the medical records from doctors of the prior lawsuit. A few witnesses were presented, and Mr. Hale was called to testify. Mr. Hale experienced an unrelated medical emergency. Thereafter, a mistrial was declared; retrial was initially set for March 7, 2011.

Subsequently, on February 8, 2011, Cottrell filed a motion to dismiss the case, pursuant to Rule 61.01(a), (d),[6] as a sanction against the Hales for violating Rule 56.01(b)(1).

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PMT and AHC joined in the motion. Prior to filing this motion, the trial court was informed that Dr. Mirkin's report was part of a Workers' Compensation Division record received by the Hales and that more than twenty pages of it were not produced. Thus, the trial court ordered Mr. Wendler to produce those pages, despite his representation that nothing of importance was contained in the remaining record. In the produced pages, Cottrell discovered Dr. McGinty's report that summarized and discussed in detail the St. John's records. The Defendants claimed that the Hales violated the discovery rule by failing to produce responsive documents before the 2010 trial.

On February 22, 2011, the Defendants filed a motion to dismiss, but this time they argued that the Hales were judicially estopped from taking a contrary position than their previous one.[7] The Defendants argued that Mr. Hale was " playing fast and loose" with the trial court, which undermined the integrity of the judicial process. The Defendants requested a dismissal, or that Mr. Hale " be estopped from denying that his low[er] back was not permanently disabled (or resolved) from the 1996 injury." Mr. Hale was deposed again; he admitted to seeing Drs. McGinty and Mirkin, but claimed that he did not ...

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