Nemani v. St. Louis University

• Citation: 33 S.W.3d 184
• Decision Date: 05 December 2000
• Docket Number: No. SC 82288.,SC 82288.
• Parties: Rama K. NEMANI, Respondent/Cross-Appellant, v. ST. LOUIS UNIVERSITY, Appellant/Cross-Respondent.
• Court: United States State Supreme Court of Missouri

33 S.W.3d 184

Rama K. NEMANI, Respondent/Cross-Appellant, v. ST. LOUIS UNIVERSITY, Appellant/Cross-Respondent.

No. SC 82288.

Supreme Court of Missouri, En Banc.

December 5, 2000.

Thomas C. Walsh, Robert J. Radice, John M. Horas, Kenneth E. Fleischmann, St. Louis, for Appellant/Cross-Respondent.

Charles A. Seigel, III, Michael A. Wolff, St. Louis, for Respondent/Cross-Appellant.

BENTON, Judge.

Rama K. Nemani, Ph.D, sued St. Louis University (SLU) for appropriation of his name. The circuit court entered judgment on the jury's verdict for $300,000. After opinion by the Court of Appeals, this Court granted transfer. Mo. Const. art. V, section 10. Reversed.

I.

In 1987, SLU hired Nemani as an assistant research professor in the Department of Pharmacological and Physiological Science. He held a joint appointment as a research chemist with the Veterans Affairs Medical Center. Each year from 1988 to 1996, Nemani and SLU signed a "Memorandum of Agreement Research Faculty" specifying as his duties:

To carry out collaborative research with various members of the department, to participate in research-related programs such as journal club, seminars, evening college and advanced graduate courses, and to supervise graduate students in lab rotations and dissertation research.

Nemani was paid only from collaborative research grants, each requiring a prior successful application. From 1987 through 1994, Nemani's main source of income was a research project funded through the VA Medical Center, and carried out in collaboration with other members of the SLU Department. From September 1994 to 1996, he received no compensation for research projects with either SLU or the VA Medical Center. During that same time, however, Nemani and SLU signed annually the "Memorandum of Agreement" stating that Nemani would collaborate on research with members of the Department.

In 1993, the VA applied to renew the grant that had paid Nemani from 1987 to 1994. Although the application did not list Nemani's name, he helped prepare it. The VA application was denied and not funded. Around the same time, Nemani applied (unsuccessfully) for a different grant through another organization.

On September 30, 1993, SLU applied to the National Institute of Health (NIH) for a grant that included continuing the VA project. That application listed Nemani as a "Co Investigator," and as a "Research Assistant Professor" at SLU, with salary and benefits budgeted at about $60,000 yearly over the five-year grant. SLU did not obtain Nemani's express consent before listing him on the application, although Nemani expressed an interest in working on the project before SLU applied for the NIH grant.

In June 1994, NIH awarded SLU a five-year grant, renewable each year. The award, however, totalled $729,864 rather than the $974,290 SLU applied for, a difference of $244,426. NIH initially suggested that SLU use both Nemani and a lab technician at 75 percent "effort" (instead of 100 percent as requested in the grant application). SLU's principal investigator chose the lab technician for the project, instead of Nemani. Informed of this choice, NIH responded that it was the principal investigator's decision. In July 1994, Nemani discovered that his name was in the NIH application.

Nemani sued SLU for invasion of privacy by appropriation of his name. SLU argues on appeal that the trial court should have directed a verdict because Nemani failed to make a submissible case for name appropriation. In reviewing motions for directed verdict and for judgment notwithstanding the verdict, this Court takes the evidence in the light most favorable to the verdict, giving the prevailing party all reasonable inferences from the verdict and disregarding the unfavorable evidence. Duren v. Kunkel, 814 S.W.2d 935, 936 (Mo. banc 1991).

II.

The tort of invasion of privacy includes four separate causes of action: intrusion on the plaintiff's seclusion or private affairs, public disclosure of embarrassing private facts, publicly placing plaintiff in a false light, and appropriation of plaintiff's name or likeness for defendant's advantage. Sullivan v. Pulitzer Broadcasting Co., 709 S.W.2d 475, 477 (Mo. banc 1986). At issue here is SLU's alleged appropriation of Nemani's name.

Not all uses of another's name are tortious. "It is the plaintiff's name as a symbol of ... identity that is involved here, and not ... as a mere name." Haith v. Model Cities Health Corp. of Kansas City, 704 S.W.2d 684, 687 (Mo.App.1986), citing William L. Prosser, "Privacy," 48 Cal.L.Rev. 383 (1960). Name appropriation occurs where a defendant "makes use of the name to pirate the plaintiff's identity for some advantage." Id. The right of privacy, however, does not "subvert those rights which spring from social conditions, including business relations." Munden v. Harris, 153 Mo.App. 652, 134 S.W. 1076, 1079 (1911).

In the business relationship of this case, SLU did not appropriate Nemani's name. Nemani was hired to do research as an assistant research professor at SLU, and a research chemist at the VA. The Memorandum of Agreement required that he collaborate on research projects with other faculty members. Nemani impliedly consented to SLU's use of his name on grant applications. See Johnson v. Boeing Airplane Co., 175 Kan. 275, 262 P.2d 808, 813 (1953); Alonso v. Parfet, 253 Ga. 749, 325 S.E.2d 152, 154 (1985).

Nemani invokes Haith v. Model Cities Health Corp. of Kansas City, 704 S.W.2d 684 (Mo.App.1986). There, doctors were named on a Continuation Grant Application after the applicant/employer terminated them. Id. at 687. The Court of Appeals held that the doctors made a submissible case for invasion of privacy due to name appropriation. Id at 689.

In the Haith case, the doctors were terminated before their names were listed on the grant application. The doctors did not consent, in any way, to the use of their names by the applicant/employer. In this case, Nemani was employed by the applicant/employer on the date of the application (and for nearly three years thereafter), for the purpose of working jointly on research projects funded by grants. SLU thus acted with implied consent. Nemani has no cause of action for name appropriation. The circuit court judge should have directed a verdict for SLU.

The judgment of the circuit court is reversed.

PRICE, C.J., LIMBAUGH, COVINGTON, WHITE, and HOLSTEIN, JJ., concur.

LOWENSTEIN, Sp. J., dissents in separate opinion filed.

WOLFF, J. not participating.

LOWENSTEIN, Special judge, dissenting.

I respectfully dissent. I would hold under the facts here that Nemani made a submissible case for invasion of privacy name appropriation. I would also affirm the denial of a submission for punitive damages and would reverse and remand for trial on the issue of actual damages.

The following facts, viewed in the light most favorable to the verdict are now noted. Washington by Washington v. Barnes Hosp., 897 S.W.2d 611, 615 (Mo. banc 1995). Nemani holds a doctoral degree in chemistry, and from 1981 to 1987 he researched in medicine for the University of Miami, Florida, and the University of Nebraska. In 1987, Nemani was hired by the Veteran's Administration (VA) hospital and by St. Louis University (SLU). Those two entities had a working relationship in medical research. Nemani was hired to work for both entities on a grant project, which was scheduled to end in September of 1994. Those who worked on that project were paid solely from the grant. In 1993, SLU learned that the grant would not be renewed, so Nemani needed to seek other employment. As such, Nemani contacted a former colleague, Dr. Randy Strong, who had moved from researching at SLU to working for a VA hospital in San Antonio.

Strong told Nemani that Nemani was named as co-investigator on a different SLU grant, which was funded by the National Institute of Health (NIH). On a grant, the principal investigator generally devises the research and methodology for the project, while a co-investigator participates in the research but generally has less direct responsibility. Nemani testified that he neither knew he was listed as a co-investigator nor expressly consented to the use of his name for the grant application. Nemani contacted the SLU administrator who handled grants to investigate the matter. Nemani was permitted to see a copy of the NIH grant, but the administrator would not give him a copy. The SLU grant application showed that Nemani was indeed listed as co-investigator on the project, with an annual salary and benefits of more than $60,000 for the duration of the five-year grant.

Nemani filed a formal complaint with SLU, to which SLU never responded. Under the Freedom of Information (FOI) Act he requested all documents relating to the NIH grant. Nemani also contacted the coordinator and principal investigator, Harvey Armbrecht, who was listed on the NIH grant, to inquire whether SLU intended to use him for the grant. Nemani testified that he was told his expertise was incompatible with the project.

Nemani learned from his FOI request that before SLU was awarded the NIH grant, it had applied to the VA for a continuation of this grant, on which Armbrecht had been working for some time. In the application to the VA, SLU did not use Nemani's name, and the VA declined to renew the grant. In the application to the NIH, SLU used Nemani's name, and SLU was awarded substantial funding. Nemani also learned that the NIH had made recommendations to SLU regarding Nemani and a lab technician who was also named on the grant. Specifically, the NIH suggested that SLU use Nemani and a lab technician for 75 percent (instead of 100 percent) of the grant. Ultimately, SLU chose to use only the lab technician and not Nemani.

In support of its contention that Nemani impliedly consented to the use of his name, SLU notes that Nemani testified that he told Armbrecht at least twice before the NIH application was filed that he...