Missouri Court of Appeals Western District says abuse suit must get new trial

By Scott Lauck

Missouri Lawyers Media

A long-running lawsuit against the psychologists who failed to report a father's abuse of his adopted daughter must return to state court for yet another trial.

In a case that began in 1991, Kelly Pope sued Drs. Bruce Strnad and Joel Ray, who treated Lester Pope for the abuse but didn't inform authorities. As a result, the abuse that began in 1981 when Kelly was about 5 years old continued for two more years, until she was in her early teens.

In a 2003 jury trial, the daughter won $5 million in damages plus more than $5 million in prejudgment interest from Ray. The following year, an arbitration panel awarded $8 million in damages and another $8 million in interest against the ad litem for Strnad, who died in 1993.

In a 2005 decision, the Missouri Court of Appeals Western District threw out the damages against Ray and ordered a new trial. However, a Boone County judge substituted the amount of the arbitration award rather than hold another trial, as the arbitration panel had used the record from Ray's trial.

On Tuesday, the Western District said Judge Dennis Allen Rolf couldn't "short circuit the process" and must actually hold a new trial for damages.

"This court's opinion directed the trial court to conduct a new trial on damages; it did not in any way contemplate, over the objection of any of the parties, applying the arbitration award to Dr. Ray," Judges James Smart Jr., Joseph Ellis and James Welsh said in an unsigned opinion.

Pope's attorney, Danieal H. Miller, of Columbia, lamented the continuation of the lawsuit, saying his client, now in her early 30s, has gone two decades without the help she needs.

"We've taken a case that's now basically 20 years old and made sure it's going to last a little bit longer," he said.

Susan Ford Robertson, of the Robertson Group in Kansas City, argued for Ray on appeal. She could not be reached for comment.

This is the third time the Western District has addressed the case. Its first decision, in 1995, recognized for the first time in Missouri that a treating psychologist has a common law duty to warn or protect when there is an identifiable victim. The duty exists apart from a state law requiring people in certain positions to report suspected child abuse.

Although Kelly won the right to continue the case, Kelly's next friend, Norma Bradley, failed to pursue the case after it was remanded. Kelly brought her own suit in 1999, winning the awards from the jury and the arbitration panel.

It was not clear from the Western District's opinion what will happen to the arbitration award, which Miller said has now grown to $22 million. Judge Rolf's decision had essentially made Ray responsible for paying it. The newly ordered trial will now determine a new set of damages.

"A jury is just going to be asked how much being raped multiple times is worth," Miller said.

Meanwhile, a fight over the insurance company's responsibility to pay in the case has produced two decisions in the 8th U.S. Circuit Court of Appeals. The case was argued for a third time in February and has not yet been decided.

The Western District case is Pope v. Ray, WD69384.