Lowe v. Mercy Clinic E. Cmtys.
| Citation | 641 S.W.3d 210 |
| Decision Date | 16 November 2021 |
| Docket Number | ED 108826 |
| Parties | Carol LOWE, Respondent, v. MERCY CLINIC EAST COMMUNITIES, Bryan Menges, D.O., James D. Cassat, M.D., and Mercy Hospitals East Communities, Appellants. |
| Court | Missouri Court of Appeals |
FOR APPELLANT MERCY HOSPITALS EAST COMMUNITIES AND BRYAN J. MENGES, D.O.: William R. Price, Jr., Jeffrey T. McPherson, Paul L. Brusati, 7700 Forsyth Blvd., Ste. 1800, Clayton, MO 63105, Bobbie J. Moon, Kenneth W. Bean, 600 Washington Ave., 15th Floor, St. Louis, MO 63101.
FOR APPELLANT MERCY CLINIC EAST COMMUNITIES AND JAMES D. CASSAT, M.D.: Philip L. Willman, David M. Perron, Teresa M. Young, 800 Market Street, Ste. 1100, St. Louis, MO 63101.
FOR RESPONDENT: Edward D. Robertson, Jr., 109 B East High Street, Jefferson City, MO 65101, David M. Zevan, Rachel L. Roman, Anna E. Haber, Morgan C. Murphy, 211 N. Broadway, Ste. 2675, St. Louis, MO 63101.
This case returns to our Court after the untimely passing of Vincent Lowe, who was the underlying plaintiff in this case. The trial court entered an initial judgment entered upon a jury verdict awarding Mr. Lowe a total of $12,820,990.51 in damages as a result of the alleged medical negligence of defendants Mercy Clinic East Communities, Bryan Menges, D.O., James D. Cassat, M.D., and Mercy Hospitals East Communities (collectively "Defendants") that left Mr. Lowe with short bowel syndrome
.1 In Lowe I ,2 our Court affirmed the $12,820,990.51 judgment, which consisted of a net award of $2,470,990.51 in past economic and past non-economic damages, $900,000.00 in future non-economic damages, and $9,450,000.00 in future medical damages. In Lowe I , our Court also determined Mr. Lowe was entitled to damages pertaining to attorney's fees in the amount of $5,128,396.00 pursuant to a contingency fee agreement entitling Mr. Lowe's attorneys to 40% of Mr. Lowe's net jury verdict of $12,820,990.51, and we remanded the cause with specific directions including giving the trial court the express authority to award litigation expenses. After Lowe I was issued by our Court, Mr. Lowe died, which resulted in Defendants being relieved of liability for a total of $3,115,096.18 plus interest in annual future medical damages installment payments. After Mr. Lowe's death, Respondent Carol Lowe, Personal Representative of the Estate of Vincent Lowe, was substituted as a party for Mr. Lowe. Then, Lowe I was mandated and the cause was remanded to the trial court to determine the impact of Mr. Lowe's death upon the proceedings, which is also the central issue in this appeal.
Defendants Mercy Clinic East Communities (individually "Mercy Clinic"), Bryan Menges, D.O. (individually "Dr. Menges"), James D. Cassat, M.D. (individually "Dr. Cassat"), and Mercy Hospitals East Communities (individually "Mercy Hospitals") appeal the trial court's July 1, 2020 amended judgment ("July 2020 amended judgment") awarding the Estate of Vincent Lowe a total of $9,707,839.62 in damages (consisting of a total of $5,215,330.40 in damages pertaining to attorney's fees and litigation expenses and a total of $4,492,509.22 in past economic damages, past non-economic damages, future non-economic damages, and medical damages). Defendants specifically challenge portions of the July 2020 amended judgment awarding the Estate of Vincent Lowe a total of $5,215,330.40 in damages pertaining to attorney's fees and litigation expenses ($5,128,396.00 and $86,934.40, respectively) and a total of $1,121,518.71 in medical damages.
We affirm the trial court's July 2020 amended judgment awarding the Estate of Vincent Lowe a total of $9,707,839.62 in damages.
As indicated above, this case has a lengthy and unique history. This history consists of: (A) the relevant facts and procedural posture preceding the first appeal; (B) the relevant portions of this Court's opinion in Lowe I , 592 S.W.3d 10 ; (C) the relevant procedural posture occurring after this Court's issuance of the Lowe I opinion and through this Court's mandate of the Lowe I opinion; and (D) the relevant procedural posture occurring on remand and through the instant appeal.
On March 9, 2016, underlying plaintiff Mr. Lowe brought this medical negligence action against Dr. Menges and Dr. Cassat, and their respective employers, Mercy Hospitals and Mercy Clinic. Mr. Lowe specifically alleged in his medical negligence action that because of Defendants’ negligent failure to timely diagnose and treat the condition known as mesenteric ischemia which was causing inadequate blood supply to Mr. Lowe's intestines, a substantial portion of Mr. Lowe's lower bowel had to be surgically removed, and as a result, he suffered injuries including short bowel syndrome3
and required extensive ongoing medical care.
A jury trial took place from October 30, 2017 to November 3, 2017. The evidence at trial presented by underlying plaintiff Mr. Lowe showed, inter alia , that underlying plaintiff Mr. Lowe's life expectancy was 25.7 years and that Mr. Lowe was entitled to a maximum total range of $18,046,815.31 to $19,951,480.81 in future medical damages.4 On November 3, 2017, the jury found in favor of Mr. Lowe, returning a verdict for $1,745,545.01 in past economic damages, $1,000,000.00 in past non-economic damages, $1,000,000.00 in future non-economic damages, and $10,500,000.00 in future medical damages, for a total of $14,245,545.01 in damages. The jury made comparative fault assessments of 65% to Dr. Menges and Mercy Hospitals, 25% to Dr. Cassat and Mercy Clinic, and 10% to Mr. Lowe, resulting in Mr. Lowe obtaining a net verdict of $12,820,990.51.
The trial court then entered an initial judgment against Defendants,5 pursuant to the jury's November 3, 2017 damages and comparative fault assessments, awarding underlying plaintiff Mr. Lowe a net verdict of $12,820,990.51 in damages including a total of $2,470,990.51 in past economic and past non-economic damages to be paid immediately.
With respect to the remaining $10,350,000.00 in future damages (consisting of $900,000.00 in future non-economic damages and $9,450,000.00 in future medical damages), Defendants invoked their right under section 538.220.2 RSMo 20166 to have the future damages paid out in whole or in part in periodic payments. Consistent with the evidence presented by underlying plaintiff Mr. Lowe at trial, the trial court's initial judgment found Mr. Lowe's life expectancy was 25.7 years, a calculation that began on the date of jury's November 3, 2017 verdict. The trial court's initial judgment ordered the $900,000.00 in future non-economic damages to be paid in two annual installments of $450,000.00, with the payment for the first year due on the date of the jury's November 3, 2017 verdict – and the payment for the second year due on November 3, 2018. Regarding the $9,450,000.00 in future medical damages, the trial court's initial judgment established a 26-year periodic payment schedule, based on Mr. Lowe's life expectancy of 25.7 years, that ordered annual payments of: $988,134.76 to be paid for year one immediately (with the payment due on the date of the jury's November 3, 2017 verdict); $778,638.76 to be paid for years two through five (with the payment for year two due on November 3, 2018); $707,486.64 to be paid for years six through ten; $113,117.31 to be paid for years eleven through twenty-five, and $113,117.35 to be paid for year twenty-six. The court also made all future damages payments subject to the fixed interest rate of 1.48 percent derived from section 538.220.2.
Subsequently, Defendants appealed the trial court's initial judgment, and Mr. Lowe cross-appealed.
On October 1, 2019, this Court issued its opinion in Lowe I , reversing the trial court's initial judgment awarding damages only to the limited extent that, (1) the trial court, in violation of section 538.220.2, erred in its calculation of the amounts of periodic future medical damages payments because the periodic payments ordered by the court were in varying, unequal amounts, and (2) the trial court, in violation of section 538.220.4, erred in failing to award underlying plaintiff Mr. Lowe an "immediate payment of a lump sum [of damages] sufficient to cover" "his attorney's fees which amounted to $5,128,396[.00]," pursuant to a contingency fee agreement entitling Mr. Lowe's attorneys to "40% of net to Plaintiff[,]" i.e., 40% of the jury's November 3, 2017 "net [damages] verdict of $12,820,990[.51]." Lowe I , 592 S.W.3d at 16, 17-18, 29-31, 30, 30 n.12, 31, 15-32.7
The trial court's initial judgment was affirmed "[i]n all other respects." Id. at 17-18. In other words, as relevant to this appeal, and taking into account the entirety of the trial court's initial judgment and the entirety of this Court's decision in Lowe I , 592 S.W.3d at 15-32, the trial court's initial judgment against Defendants was affirmed to the extent, (1) the initial judgment awarded underlying plaintiff Mr. Lowe a net verdict of $12,820,990.51 in damages consisting of a total of $2,470,990.51 in past economic and past non-economic damages to be paid immediately, a total of $900,000.00 in future non-economic damages to be paid beginning on the date of the jury's November 3, 2017 verdict, and a total of $9,450,000.00 in future medical damages to be paid beginning on the date of the jury's November 3, 2017 verdict; (2) the initial judgment awarded the future medical damages to be paid pursuant to a periodic payment schedule based on the trial court's finding that Mr. Lowe's life expectancy was 25.7 years, a calculation that began on the date of jury's November 3, 2017 verdict; (3) the initial judgment found the first payment of Mr. Lowe's future medical damages was due on November 3, 2017; (4) the initial judgment...
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