Western District Court of Appeals rules exhibit flaunted insurance coverage
By Denise G. Callahan
St. Louis Daily Record-St. Louis Countian
A $10.6 million recovery is on remand from the Missouri Court of Appeals, Western District, due to an unfair admission of insurance evidence.
This case - Kelly Pope vs. Lester Pope and Joel S. Ray, PhD - has been bouncing around the Missouri judicial system for 14 years now. So long in fact that the plaintiff can now stand on her own, when it all began Pope needed a next friend to stand in her shoes.
Pope, who is now 29, began living with Lester and Nancy Pope when she was 3-years-old and was adopted by the couple two years later.
According to the opinion, Pope began sexually abusing his daughter when she was 4 and continued to do so - performing unspeakable acts that are outlined in the case - until she turned 12, when her mother discovered the abuse.
Nancy Pope knew Ray both socially and professionally. She called him at home, and he asked her to join him and his partner, Dr. Bruce Strnad, at their offices in Columbia.
After a brief discussion, it was agreed that rather than alerting authorities, the matter would be handled privately. Lester kept a handful of therapy session appointments with Strnad, who apparently agreed not to tell the authorities. Pope was a professor at the University of Missouri and apparently was well known in the community.
Lester continued abusing his daughter. The abuse ended in the spring/summer of 1989, about the time the Popes divorced.
The mother took Kelly to Ray and Strnad's practice for help in November 1989, when she began acting out both at home and at school. There she met with Lynn Ogden, a clinical social worker.
During counseling, both the mother and the daughter told Ogden about the sexual abuse, and Ogden called the Boone County Division of Family Services' hot line to report the abuse. An investigation finally ensued.
"After receiving Ms. Ogden's call, the Division of Family Services immediately contacted the Boone County Sheriff's Department to investigate the allegations," opinion author Judge Joseph M. Ellis wrote. "Shortly thereafter, a SAFE-trained physician with the Boone County Health Department, Dr. Kivlahan, performed a detailed sexual assault examination on Ms. Pope, which revealed that she had a 'very positive' history of sexual molestation, which was corroborated by several photographs taken by Dr. Kivlahan showing a severely traumatized vaginal area consistent with sexual abuse. The examination also showed that Ms. Pope had contracted a communicable venereal disease (chlamydia) and was also suffering from abdominal pelvic pain, dysuria, vaginal itching, vaginal discharge, and vaginal bleeding.
"It further revealed that Ms. Pope was also having sleeping and eating disturbances, was acting out sexually, and was experiencing fear, anger, and depression arising from her sexual abuse," Ellis continued. "At trial, Dr. Ray agreed that Ms. Pope's sexual abuse would have stopped in January 1988 had the investigation (and related medical examination) taken place then, rather than in December 1989."
Pope was subsequently arrested and charged with three counts of sodomy and one count of attempted rape. He pled guilty to one count of sodomy and was sentenced to nine years. He ended up serving about five years.
Ellis declined to muse over all the machinations that have occurred in this case through the years. Initially, the defendants in the case included Lester, the mother, Ray and Strnad. Strnad died in 1993, so his wife was substituted as the defendant; she was later replaced by defendant ad litem C. Robert Buckley.
According to a prior appellate decision in this case, the trial court dismissed Ray and Strnad. The Western District, in a case of first impression, found Ray and Strnad had a duty to warn of suspected child sexual abuse.
In May 1999, Pope filed her own action, it included all of the defendants at first, but as the case continued, Strnad's stand-in and Pope agreed to binding arbitration, and Pope ended up dropping her parents from the suit, leaving only Ray in the case by the time it went to trial.
The jury found for Pope, awarding her $3 million for past economic damages and $2 million in future damages. With pre-judgment interest, Ray was on the hook for more than $10.6 million. The arbitrators' award, handed down in February 2004, came out to a little more than $17 million with $3 million for past damages, $5 million for future and more than $9 million in interest.
Ray filed the instant appeal.
"Ray asserts that the trial court erred in submitting verdict-directing Instruction No. 7 and in failing to grant his motions for directed verdict and for JNOV because insufficient evidence was presented to the jury to support its finding that Ray and Strnad had entered into a partnership known as Columbia Psychological Associates," Ellis wrote. "Ray contends Instruction No. 7 directly conflicted with oral instructions the trial court had previously received and resulted in a fundamentally unfair trial for Ray, who detrimentally relied on the oral instruction to the jury that they would not be deciding issues related to Strnad and, therefore, did not present any evidence refuting the allegations brought against Strnad.
"Ray contends, in relevant part, that the trial court erred in overruling his motion for new trial because the jury's $5 million award of compensatory damages was excessive in that it exceeded a fair and reasonable amount of compensation for Pope's injuries inasmuch as he was unfairly prejudiced by the trial court's decision to permit Exhibit 17 to be published to the jury during its deliberations."
At the outset of its discussion, the court found fault with Ray's motion for a directed verdict. The motion was nonspecific and in fact never even mentioned the word "partnership." The court went through a pretty lengthy discussion of case law and said Ray ignored the law and instead relied on a case - Gillenwaters Building Co. vs. Lipscomb - that has been rendered bad.
"Ray's motion for a directed verdict at the close of all the evidence stated merely bare generalities that did not comport with the 'specific grounds' requirement of Rule 72.01(a)," wrote Ellis. "Consequently, it failed to preserve for appellate review the complaint Ray attempts to raise in his first point on appeal. Likewise, Ray's motion for JNOV was also entirely ineffective to preserve that issue for appellate review.
"We decline to exercise our discretion to review the claimed error as plain error under Rule 84.13(c) since it does not facially establish substantial grounds for believing that a manifest injustice or miscarriage of justice has resulted," Ellis added.
Next, the court found the trial judge committed no foul as regards several references to Strnad throughout the trial. The court tossed down the various complaints saying they had no merit and thus would not be considered.
The introduction of one bit of evidence sent the case back for a new trial on the damages awarded. Exhibit 17, the doctors' liability insurance policy, was admitted at trial to bolster Pope's partnership theory. However, when the jury asked for a copy of the policy during their deliberations, the court said the judge should not have acquiesced.
"This was an abuse of discretion because the logic of the circumstances demanded, at a bare minimum, that before being allowed to conduct a detailed examination of Exhibit 17 within the jury room, Exhibit 17 should not only have been redacted (as it was), but the jury should also have been instructed that Exhibit 17 could only be considered on the issue of whether Ray and Strnad were partners and could not be considered for any other purpose," the opinion reads. "The trial court's ruling was also arbitrary and unreasonable and indicated a lack of careful consideration since its practical effect was 'to flaunt insurance coverage in the jury's face,' which is prohibited even when, as here, evidence of such coverage is admissible. As this made it quite likely that the amount of damages awarded to Pope by the jury was substantially higher than it would have been had a proper limiting instruction been given, reversal and remand for a new trial on the issue of damages only is required."
Ray wanted a new trial on both liability and damages, but the appeals court said the error wasn't egregious enough to warrant a complete new trial, just a new trial on the damages portion.
The attorneys for the parties could not be reached for comment.
Kelly Pope, respondent, vs. Lester Pope, et al., defendants, Joel S. Ray, Ph.D., appellant, Bruce Strnad, Ph. D., defendant; No. WD63997; handed down Dec. 20.