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Dieser v. St. Anthony's Medical Center

Supreme Court of Missouri

October 4, 2016

WILLIAM DIESER, Respondent/Cross-Appellant,
v.
ST. ANTHONY'S MEDICAL CENTER, Appellant/Cross-Respondent.

         APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY The Honorable Michael D. Burton, Judge

          PATRICIA BRECKENRIDGE, CHIEF JUSTICE

         William 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.[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 of error.

         This 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.

         Furthermore, 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.

         On 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 of damages.

         Factual and Procedural Background

         On 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.

         Following 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.

         The 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 healed.

         In 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 to trial.

         The 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 post-judgment interest.

         Mr. Dieser appeals, and St. Anthony's cross-appeals.

         This Court Has Jurisdiction

         Prior 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.

         In his 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.

         In its 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.

         This 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).

         St. 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 a reply.

         Section 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 omitted).

          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[2] 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.[3]

         Moreover, 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 defense.

         Given 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.

         This 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).

         The 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 538.300.

         Alternatively, 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.[4]Mo. Const. art. V, sec. 3.

         Section 408.040.1 Does Not Mandate Post-Judgment Interest on All Judgments

         In his 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).

         Mr. 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.

         Section 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 538.300.

         "In 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.

         Section 408.040.1 provides:

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.

         The 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.

         More 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.

         In 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.

         Subsections 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.

         It 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.[5] The trial court did not err in overruling Mr. Dieser's motion for post-judgment interest.

         Mr. Dieser Waived His ...


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