FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY The Honorable
Michael D. Burton, Judge
PATRICIA BRECKENRIDGE, CHIEF JUSTICE
Dieser filed an action against St. Anthony's Medical
Center alleging that St. Anthony's provided negligent
medical care that caused him to develop a stage IV pressure
ulcer. The jury ultimately awarded Mr. Dieser $883, 000 in
compensatory damages. On appeal, Mr. Dieser asserts that the
trial court erred by entering a judgment without
post-judgment interest because he was entitled to
post-judgment interest pursuant to section
408.040.1. Mr. Dieser further asserts
that the trial court's application of section 538.300, to
deny him post-judgment interest, violated his constitutional
rights to equal protection, open courts, and a trial by jury.
St. Anthony's cross-appealed, asserting multiple points
Court finds that the trial court did not err in entering its
judgment without post-judgment interest. While section
408.040.1 does provide that judgments shall accrue interest,
it does so in the context of "the judgment balance as
set forth in this section." Subsections 2 and 3 of
section 408.040 then govern the accrual of post-judgment
interest. But section 538.300 prohibits the application of
subsections 2 and 3 of section 408.040 in medical negligence
actions against health care providers. When the relevant
statutes are read together, in pari materia, Mr.
Dieser was not statutorily entitled to post-judgment interest
pursuant to section 408.040.
the application of section 538.300 does not violate Mr.
Dieser's constitutional rights. Mr. Dieser failed to
preserve the equal protection argument he now raises on
appeal because it was not raised before trial court, and the
fact that section 538.300 prevented him from obtaining
interest on his judgment did not affect his access to the
courts. Likewise, the trial court's application of
section 538.300 did not violate Mr. Dieser's right to a
trial by jury because it does not curtail the jury's
determination of damages in that post-judgment interest has
never been assessed by a jury.
cross-appeal, St. Anthony's cannot establish that the
cross-examination of an expert regarding the term "never
event" affected the outcome of the case nor can it show
that it was prejudiced by counsel's discussion of the
burden of proof during voir dire. Additionally, no
reversible error resulted from Mr. Dieser's testimony
that St. Anthony's is a Catholic institution or from
counsel's closing argument regarding acceptable medical
care in the community. Finally, viewing the evidence in the
light most favorable to the verdict, the compensatory damages
award was not excessive. Accordingly, the trial court did not
abuse its discretion in overruling the motion for remittitur
and Procedural Background
January 28, 2008, Mr. Dieser was admitted to St.
Anthony's for surgery to remove a pancreatic pseudocyst.
Two days later, Mr. Dieser developed a pressure wound on his
buttocks. The wound developed into a stage IV pressure ulcer
extending from the surface of Mr. Dieser's skin to the
bone. Surgery had to be performed to cut and remove dead
tissue from the wound. Mr. Dieser was released from St.
Anthony's on February 7, 2008.
his release, the dressings on Mr. Dieser's pressure wound
had to be changed multiple times a day. While home health
care nurses made weekly visits, the majority of the dressings
were changed by Mr. Dieser's wife. To manage the pain
during the dressings, Mr. Dieser's surgeon prescribed
lidocaine to numb the area around the wound.
wound initially healed in five months. Mr. Dieser later began
experiencing severe pain at the wound site when bending over
or sitting down. A plastic surgeon determined the pain
resulted from a band of scar tissue that had formed as the
wound healed. In October 2008, Mr. Dieser had a second
surgery to remove the scar tissue and replace it with a skin
graft taken from his thigh. The skin graft was only partially
successful. By February 2009, the wound had completely
2012, Mr. Dieser filed a medical negligence action against
St. Anthony's. In his second amended petition, Mr. Dieser
alleged that St. Anthony's negligently failed to
adequately follow its own policies, procedures, and protocols
regarding pressure injury prevention when it allowed his body
to be exposed to pressure sufficient to create the ulcer. St.
Anthony's denied the allegations, and the case proceeded
jury returned its verdict in favor of Mr. Dieser. It awarded
him $33, 000 for past economic damages, $750, 000 for past
noneconomic damages, and $100, 000 for future noneconomic
damages for a total of $883, 000 in compensatory damages.
Both parties filed post-trial motions regarding whether Mr.
Dieser was entitled to post-judgment interest under section
408.040. The trial court entered its judgment without
Dieser appeals, and St. Anthony's cross-appeals.
Court Has Jurisdiction
to addressing the merits of Mr. Dieser's appeal, the
Court must first determine whether it has jurisdiction.
Alumax Foils, Inc. v. City of St. Louis, 939 S.W.2d
907, 910 (Mo. banc 1997). Article V, section 3 of the
Missouri Constitution provides this Court with exclusive
appellate jurisdiction in all cases involving the validity of
a statute of this state. This Court's exclusive appellate
jurisdiction "is invoked when a party asserts that a
state statute directly violates the constitution either
facially or as applied." McNeal v.
McNeal-Sydnor, 472 S.W.3d 194, 195 (Mo. banc 2015).
"The constitutional issue must be real and substantial,
not merely colorable." Id.
jurisdictional statement, Mr. Dieser asserts that this Court
has exclusive jurisdiction over this appeal because the trial
court's application of section 538.300, to overrule his
motion for post-judgment interest, violated his
constitutional rights to equal protection, open courts, and a
jury trial. St. Anthony's asserts that there is no basis
for jurisdiction in this Court because Mr. Dieser waived his
constitutional challenges to section 538.300 by not asserting
them at the earliest opportunity. In particular, St.
Anthony's contends that Mr. Dieser waived his
constitutional challenges by raising them in a post-trial
motion instead of in a reply to the answer St. Anthony's
filed. Under the facts and circumstances of this case, Mr.
Dieser did not waive his constitutional challenges by raising
them for the first time in a post-trial motion.
answer, St. Anthony's alleged, as an affirmative defense,
that it intended "to rely upon and obtain the benefits
of Chapter 538[.]" Mr. Dieser did not file a reply to
the answer filed by St. Anthony's. Following the verdict,
St. Anthony's filed a post-trial motion "to Apply
Sections of Chapter 538 of the Missouri Revised
Statutes." In its motion, St. Anthony's alleged that
Mr. Dieser was not entitled to post-judgment interest because
section 538.300 prohibits the award of post-judgment interest
in medical negligence cases against health care providers.
Mr. Dieser also filed a post-trial motion, which was titled
"Plaintiff's Motion for Entry of Judgment Which
Includes Post Judgment Interest." In his motion, Mr.
Dieser alleged that he was entitled to post-judgment interest
pursuant to section 408.040.1 and asserted, for the first
time, that section 538.300's restriction on post-judgment
interest violates his constitutional rights to equal
protection, open courts, and a trial by jury. The trial court
entered its judgment without post-judgment interest.
Court has long held that "in so grave a matter as a
constitutional question it should be lodged in the case at
the earliest moment that good pleading and orderly procedure
will admit under the circumstances of the given case,
otherwise it will be waived." Lohmeyer v. St. Louis
Cordage Co., 113 S.W. 1108, 1110 (Mo. 1908),
overruled on other grounds by City of St. Louis
v. Butler Co., 219 S.W.2d 372 (Mo. banc 1949).
Nevertheless, this Court has recognized that "there can
be no fixed rule as to when or how or at what stage of the
proceedings the [constitutional] question should be raised in
each case." Hohlstein v. St. Louis Roofing Co.,
42 S.W.2d 573, 578 (Mo. 1931).
Anthony's asserts that Mr. Dieser should have raised his
constitutional challenges in a reply because, if the defense
relies upon a statute in its answer, "then the reply
would be the first open door" to raise a constitutional
challenge to the statute. McGrath v. Meyers, 107
S.W.2d 792, 794 (Mo. 1937). If the defendant grounds an
affirmative defense on a statute that plaintiff contends is
unconstitutional, "it would seem he should plead its
unconstitutionality in the reply[.]" Lohmeyer,
113 S.W. at 1110; see also Hanks v. Hanks, 117 S.W.
1101, 1102 (Mo. 1909). It typically follows, therefore, that
if a defendant asserts a statute as an affirmative defense,
constitutional challenges to that statute should be raised in
538.300, however, is not an affirmative defense under the
circumstances of this case. An "affirmative
defense" is "[a] defendant's assertion of facts
and arguments that, if true, will defeat the plaintiff's
or prosecution's claim, even if all the allegations in
the complaint are true." Black's Law
Dictionary 509 (10th ed. 2014). An "affirmative
defense" is a procedural tool "that allows the
defendant to defeat or avoid the plaintiff's cause of
action and avers that even if the allegations of the petition
are taken as true, the plaintiff cannot prevail because there
are additional facts that permit the defendant to avoid the
legal responsibility alleged." Dorris v. State,
360 S.W.3d 260, 268 (Mo. banc 2012) (internal quotation
Section 538.300 does not permit St. Anthony's to avoid or
defeat Mr. Dieser's medical negligence claim. Section
538.300 provides, in pertinent part, that "subsections 2
and 3 of section 408.040 shall not apply to actions under
sections 538.205 to 538.230." Section 538.210.1
addresses actions "against a health care
provider for damages for personal
injury or death arising out of the rendering of or the
failure to render health care services[.]" Section
538.300, therefore, applies to medical negligence actions
against health care providers such as St. Anthony's.
Subsections 2 and 3 of section 408.040 address the accrual of
post-judgment interest. It follows that section 538.300 does
not permit a health care provider to avoid legal liability in
a medical negligence action; rather, section 538.300 simply
provides that subsections 2 and 3 of the post-judgment
interest statute do not apply in medical negligence actions
against health care providers. Because section 538.300 does
not permit St. Anthony's to avoid or defeat the legal
liability alleged by Mr. Dieser, it does not act as an
affirmative defense in this case.
even if section 538.300 could be construed as an affirmative
defense, St. Anthony's failed to properly plead it.
"A pleading that sets forth an affirmative defense . . .
shall contain a short and plain statement of the facts
showing that the pleader is entitled to the defense[.]"
Rule 55.08. The pleading requirements for affirmative
defenses serve to ensure that an opposing party is informed
of and prepared to address the issues being raised by the
defense. Id. at 383. Here, St. Anthony's simply
stated that it intended "to rely upon and obtain the
benefits of Chapter 538, " which has many sections.
St. Anthony's did not specifically identify section
538.300. Such a bare assertion fails to inform Mr. Dieser
that section 538.300 would be an issue in the case.
Accordingly, the pleadings filed by St. Anthony's were
insufficient to assert section 538.300 as an affirmative
that section 538.300 was neither an affirmative defense nor
properly pleaded by St. Anthony's, a reply was not the
earliest moment that good pleading and orderly procedure
would allow Mr. Dieser's constitutional challenges to be
raised. And while orderly and proper procedure typically
results in constitutional issues being raised prior to
post-trial motions, Mr. Dieser timely raised his
constitutional challenges to section 538.300 under the facts
and circumstances of this case.
Court has reasoned that "[a]n attack on the
constitutionality of a statute is of such dignity and
importance that the record touching such issues should be
fully developed and not raised as an afterthought in a
post-trial motion or on appeal." Land Clearance for
Redevelopment Auth. of Kansas City, Mo. v. Kan. Univ.
Endowment Ass'n, 805 S.W.2d 173, 176 (Mo. banc
1991). Nevertheless, the purpose of requiring a
constitutional question to be raised at the earliest
opportunity is "to prevent surprise to the opposing
party and accord the trial court an opportunity to fairly
identify and rule on the issue." Dodson v.
Ferrara, 491 S.W.3d 542, 552 (Mo. banc 2016).
record reflects that, once St. Anthony's raised the
application of section 538.300 in its post-trial motion, Mr.
Dieser raised his constitutional challenges to section
538.300 in his post-trial motion. The trial court
subsequently heard oral argument on whether the judgment
should include post-judgment interest and took the matter
under advisement. Following the hearing, St. Anthony's
filed a written response to the constitutional issues raised
in Mr. Dieser's motion. Consequently, St. Anthony's
suffered no surprise by Mr. Dieser raising the constitutional
challenges in a post-trial motion, and the trial court had a
fair opportunity to identify and rule upon the constitutional
issues. Therefore, the manner in which Mr. Dieser raised his
constitutional challenges satisfies the purpose for requiring
constitutional issues to be raised at the earliest
opportunity. It follows that, under the facts and
circumstances of this case, Mr. Dieser timely raised his
constitutional challenges to the application of section
St. Anthony's asserts that Mr. Dieser's
constitutional challenges to the validity of section 538.300
are merely colorable. St. Anthony's bases its assertion
solely on its belief that Mr. Dieser's constitutional
claims lack merit. "In the context of the 'not
merely colorable' test, the word 'colorable'
means feigned, fictitious or counterfeit, rather than
plausible." Rodriguez v. Suzuki Motor Corp.,
996 S.W.2d 47, 52 (Mo. banc 1999). "One clear indication
that a constitutional challenge is real and substantial and
made in good faith is that the challenge is one of first
impression with this Court." Id. This Court has
not squarely addressed the constitutional validity of section
538.300. Mr. Dieser, therefore, raises sufficiently real and
substantial constitutional claims to invoke this Court's
jurisdiction. Accordingly, this Court has exclusive appellate
jurisdiction over this appeal.Mo. Const. art. V, sec. 3.
408.040.1 Does Not Mandate Post-Judgment Interest on All
first point, Mr. Dieser asserts that the trial court erred in
overruling his motion for post-judgment interest because he
was entitled to post-judgment interest under section
408.040.1, which he asserts mandates that all judgments
accrue post-judgment interest. This Court reviews questions
of statutory interpretation de novo. Macon Cnty.
Emergency Servs. Bd. v. Macon Cnty. Comm'n, 485
S.W.3d 353, 355 (Mo. banc 2016). "The primary rule of
statutory construction is to ascertain the intent of the
legislature from the language used, to give effect to that
intent if possible, and to consider words used in the statute
in their plain and ordinary meaning." Howard v. City
of Kansas City, 332 S.W.3d 772, 779 (Mo. banc 2011).
Dieser asserts that he is entitled to post-judgment interest
because section 538.300 does not prohibit an award of
post-judgment interest mandated by section 408.040.1. He
argues that the prohibition in section 538.300 is only that
"subsections 2 and 3 of section 408.040 shall not apply
to" medical negligence actions against health care
providers. Consequently, section 538.300 does not prohibit
the application of section 408.040.1.
408.040.1 provides that "[j]udgments shall accrue
interest on the judgment balance . . . ." This language,
read in isolation, might be construed to authorize post-
judgment interest on all judgments, but Mr. Dieser's
interpretation of section 408.040.1 is not supported when
section 408.040 is read as a whole and together with section
determining the intent and meaning of statutory language, the
words must be considered in context and sections of the
statutes in pari materia, as well as cognate sections, must
be considered in order to arrive at the true meaning and
scope of the words." State ex rel. Evans v. Brown
Builders Elec. Co., 254 S.W.3d 31, 35 (Mo. banc 2008)
(internal quotation omitted). "The provisions of a
legislative act are not read in isolation but construed
together, and if reasonably possible, the provisions will be
harmonized with each other." Id.
1. Judgments shall accrue interest on the judgment balance as
set forth in this section. The "judgment balance"
is defined as the total amount of the judgment awarded on the
day judgment is entered including, but not limited to,
principal, prejudgment interest, and all costs and fees.
Post-judgment payments or credits shall be applied first to
post-judgment costs, then to post-judgment interest, and then
to the judgment balance.
first sentence of section 408.040.1 instructs that judgments
accrue interest on the judgment balance. The remainder of
section 408.040.1 defines "judgment balance" and
explains the order in which post-judgment payments and
credits are to be applied. Section 408.040.1, therefore,
mandates that post-judgment interest accrue on the
"judgment balance, " defines what the
"judgment balance" is, and instructs on the
application of post-judgment payments and credits.
importantly, while section 408.040.1 does state that
judgments shall accrue interest, it does so in the context of
stating that judgments shall accrue interest "on the
judgment balance as set forth in this section."
(Emphasis added). The first sentence of section 408.040.1,
therefore, directs that post-judgment interest accrues on the
judgment balance as set forth elsewhere in section 408.040.
Accordingly, under its plain terms, section 408.040.1 must be
construed in accordance with section 408.040 as a whole.
addition to subsection 1, there are two other subsections of
section 408.040 that address post-judgment interest -
subsections 2 and 3. They provide, in pertinent part:
2. In all nontort actions, interest shall be allowed on all
money due upon any judgment or order of any court from the
date judgment is entered by the trial court until
satisfaction be made by payment, accord or sale of property;
all such judgments and orders for money upon contracts
bearing more than nine percent interest shall bear the same
interest borne by such contracts, and all other judgments and
orders for money shall bear nine percent per annum until
satisfaction made as aforesaid.
3. Notwithstanding the provisions of subsection 2 of this
section, in tort actions, interest shall be allowed on all
money due upon any judgment or order of any court from the
date judgment is entered by the trial court until full
satisfaction. All such judgments and orders for money shall
bear a per annum interest rate equal to the intended Federal
Funds Rate, as established by the Federal Reserve Board, plus
five percent, until full satisfaction is made. The judgment
shall state the applicable interest rate, which shall not
vary once entered.
2 and 3, therefore, control the judgments on which interest
is allowed and the rate at which interest accrues on those
judgments. Accordingly, when read as a whole, section
408.040.1 provides that post-judgment interest accrues on the
judgment balance as prescribed in subsections 2 and 3.
follows that section 408.040.1 does not allow interest on all
judgments but, instead, speaks to which part of the judgment
interest accrues. It is subsections 2 and 3 that allow the
accrual of interest on judgments. And because section 538.300
provides that subsections 2 and 3 do not apply to medical
negligence cases against health care providers, the accrual
of post-judgment interest is prohibited in this
case. The trial court did not err in
overruling Mr. Dieser's motion for post-judgment
Dieser Waived His ...