Pope v. Pope

• Decision Date: 20 December 2005
• Docket Number: No. WD 63997.,WD 63997.
• Citation: 179 S.W.3d 442
• Parties: Kelly POPE, Respondent, v. Lester POPE, et al., Defendants, Joel S. Ray, Ph.D., Appellant, Bruce Strnad, Ph.D., Defendant.
• Court: Missouri Supreme Court

179 S.W.3d 442

Kelly POPE, Respondent, v. Lester POPE, et al., Defendants Joel S. Ray, Ph.D., Appellant Bruce Strnad, Ph.D., Defendant.

No. WD 63997.

Missouri Court of Appeals, Western District, En Banc.

December 20, 2005.

COPYRIGHT MATERIAL OMITTED

Priscilla F. Gunn, St. Louis, MO, for appellant and defendant Strnad.

Daniel H. Miller, Columbia, MO, for respondent Pope.

Before EDWIN H. SMITH, Chief Judge, HAROLD L. LOWENSTEIN, Judge, ROBERT G. ULRICH, Judge, PATRICIA BRECKENRIDGE, Judge, PAUL M. SPINDEN, Judge, JAMES M. SMART, JR., Judge, JOSEPH M. ELLIS, Judge, VICTOR C. HOWARD, Judge, THOMAS H. NEWTON, Judge, RONALD R. HOLLIGER, Judge, and LISA WHITE HARDWICK, Judge.

JOSEPH M. ELLIS, Judge.

Joel S. Ray, Ph.D. ("Dr. Ray") appeals a judgment against him and in favor of Kelly Pope ("Ms. Pope") in the amount of $10,668,344. Ms. Pope, who had been the victim of severe sexual abuse perpetrated by her adoptive father, Lester Pope ("Lester"), recovered against Dr. Ray on the theory that he was liable for the negligence of his partner, Bruce N. Strnad, Ph.D. ("Dr. Strnad"), a licensed psychologist who had treated Lester and knew of his proclivity to sexually abuse Ms. Pope, but failed to warn anyone of the ongoing danger presented to her by Lester.

I. Procedural History

In March 1991, Norma Bradley filed an application requesting that the court appoint her as Ms. Pope's next friend to pursue civil litigation relating to the sexual abuse. The application was granted. Thereafter, Ms. Bradley, as next friend of Ms. Pope, filed a petition in tort naming Lester, Lester's ex-wife Nancy Copin ("Nancy"), and Dr. Ray as defendants, seeking money damages for the serious physical and psychological injuries Ms. Pope had sustained as a result of her prolonged sexual abuse by Lester. We need not detail all of the extensive procedural history of the case. It suffices to say that there were numerous dismissals, refilings, a prior appeal to this court (see Bradley v. Ray, 904 S.W.2d 302 (Mo.App. W.D.1995)), and other procedural complexities until May 10, 1999. On that date, Ms. Pope, having attained the age of majority, filed a petition in tort against Lester, Nancy, Dr. Ray, and a yet-to-be-appointed defendant ad litem for Dr. Strnad.¹ Count I of the petition set forth claims against all defendants for aiding and abetting the commission of the intentional tort of child abuse. Count II alleged that Nancy had negligently failed to discover Ms. Pope's sexual abuse earlier than she did. Count III asserted common law negligence for failure to warn of suspected child abuse against Nancy, Dr. Ray, and the defendant ad litem for Dr. Strnad. Counts IV and V alleged claims against Dr. Ray and the defendant ad litem for Dr. Strnad for negligence per se and prima facie tort. The petition also sought punitive damages against Dr. Ray and the defendant ad litem for Dr. Strnad on Counts III, IV, and V, as well as punitive damages against Nancy on Count III.

On June 4, 1999, Dr. Ray filed a motion to dismiss Counts I, IV, and V based on our opinion in the prior appeal, which the trial court subsequently granted. Mrs. Strnad was appointed as defendant ad litem for Dr. Strnad, and, on April 10, 2002, she and Ms. Pope entered into a section 537.065 agreement wherein they agreed to submit all claims against Dr. Strnad to binding arbitration before a panel of three arbitrators pursuant to section 435.012 et seq.² The agreement also provided, inter alia, that Ms. Pope would dismiss her claim for punitive damages against Dr. Ray. Finally, as further provided in the agreement, on July 15, 2002, Mrs. Strnad resigned as defendant ad litem for Dr. Strnad and C. Robert Buckley was substituted to serve as her replacement.

Trial began on September 16, 2003. As provided in her agreement with Mrs. Strnad, at the beginning of trial Ms. Pope dismissed her claim for punitive damages against Dr. Ray. Before the case was submitted to the jury, Ms. Pope dismissed her claims against Lester and Nancy, choosing to proceed solely against Dr. Ray as originally pled in Count III. Dr. Ray's motions for a directed verdict at the close of the plaintiff's case in chief and at the close of all the evidence were denied, and the jury returned a unanimous verdict in favor of Ms. Pope and against Dr. Ray in the amount of $3 million in past non-economic damages and $2 million in future non-economic damages sustained by her after January 23, 1988. In accordance with the jury's verdict, the trial court orally entered judgment in favor of Ms. Pope and against Dr. Ray in the amount of $5 million.

Both parties to the instant appeal filed a variety of post-trial motions, none of which are pertinent at this time. On March 12, 2004, the trial court entered its final judgment in favor of Ms. Pope and against Dr. Ray in the amount of $10,668,344, consisting of $3 million in past non-economic damages, $2 million in future non-economic damages, and $5,668,344 in pre-judgment interest. In accordance with the arbitrators' award of February 13, 2004, the trial court also entered judgment against the defendant ad litem for Dr. Strnad (Mr. Buckley) in the amount of $17,056,119.20, consisting of $3 million in past non-economic damages, $5 million in future non-economic damages, and $9,056,119.20 in pre-judgment interest.

This appeal by Dr. Ray followed.³ After the case was briefed, it was originally heard in division, but before decision and on its own motion, this court granted rehearing en banc and requested that the parties file supplemental letter briefs addressing certain additional questions.⁴

II. Facts

Viewing the evidence adduced at trial in the light most favorable to the jury's verdict, giving the prevailing party below all reasonable inferences from the verdict, and disregarding the unfavorable evidence, Joel Bianco Kawasaki Plus v. Meramec Valley Bank, 81 S.W.3d 528, 537 (Mo. banc 2002), as is required where, as here, there is a challenge to the sufficiency of the evidence supporting the verdict, Scanwell Freight Express STL, Inc. v. Chan, 162 S.W.3d 477, 478 (Mo. banc 2005), or a claim that the trial court erred in failing to enter either a directed verdict or a JNOV, Nemani v. St. Louis Univ., 33 S.W.3d 184, 185 (Mo. banc 2000), the facts are as follows.

Lester and Nancy were married in August 1967. In 1979, at the age of three, Ms. Pope, who was born on August 26, 1976, began living with the couple as their foster child. Ms. Pope was adopted by Lester and Nancy two years later, when she was five years old. Lester began sexually molesting Ms. Pope in 1980, when she was four years old. This sexual abuse which was pervasive and severe, continued until the spring or early summer of 1989, when Ms. Pope was twelve years old.

During the course of their marriage, Lester and Nancy separated on several occasions. On January 23, 1988, at the conclusion of one of these separations, Nancy returned to the marital home and found that the door to the library/study was locked. Nancy broke into the room and discovered pictures of Ms. Pope, which she found in a locked briefcase belonging to Lester. As depicted in the photographs, Ms. Pope was dressed in a see-through negligee that was entirely inappropriate for a child of her age to be wearing. In a filing cabinet located within the room, Nancy also found a sheer, negligee-type outfit.

When Nancy asked Ms. Pope about the pictures, Ms. Pope disclosed to her that she and Lester had been having sexual contact. Nancy then went to a neighbor's house and called Dr. Ray, a friend and a licensed psychologist for whom she had previously worked and with whom she had had other social and professional relationships, using his home telephone number. Even though it was a Sunday afternoon, Dr. Ray, who with Dr. Strnad were the principals of Columbia Psychological Associates in Columbia, Missouri, told Nancy to meet him and Dr. Strnad at their office. Dr. Ray and Dr. Strnad counseled Nancy for approximately thirty minutes. During what the billing statement associated with this event referred to as a "Crisis Intervention" session, Nancy told Drs. Ray and Strnad about the pictures of Ms. Pope and also told them that Lester had been sexually abusing Ms. Pope. Dr. Ray decided it would be necessary for the Pope family to confront Lester about the abuse and to tell him that if he sought professional help, the family would stand behind him, but that if he refused to get such treatment, the family would have him arrested. Dr. Ray expressly acknowledged that if a male sexual abuser such as Lester does not receive proper treatment and is placed in the presence of young females, there is a "high probability" that he will abuse again. However, neither Dr. Ray nor Dr. Strnad reported the information they had received from Nancy to the Division of Family Services or the police department.

Shortly after the January 23 session with Drs. Ray and Strnad, Nancy and the rest of the Pope family confronted Lester. Nancy informed Lester that if he did not seek counseling with Dr. Strnad, she would have him arrested. Nancy also told Lester to apologize to Ms. Pope, which he did. On the condition that Nancy not contact law enforcement authorities, Lester promised to visit Dr. Strnad for therapy and not to have any further sexual contact with Ms. Pope.

On January 26, 1988, Lester began attending counseling sessions with Dr. Strnad, during the course of which Lester admitted that he had been sexually molesting Ms. Pope for a number of years. When Lester asked Dr. Strnad, during the first such session, if Dr. Strnad would keep his sexual abuse of Ms. Pope confidential because he was concerned about his image in the community (he had been a professor at the University of Missouri and was well known in Columbia), Dr. Strnad told him he would, and this was reflected in his notes for the session. Lester stopped seeing Dr. Strnad after attending from four to six therapy...