Stockmann v. Frank, ED 89167.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtKathianne Knaup Crane
Citation239 S.W.3d 650
PartiesDolores STOCKMANN and Greg Stockmann, Plaintiffs/Appellants, v. Joseph FRANK, Defendant/Respondent.
Docket NumberNo. ED 89167.,ED 89167.
Decision Date04 December 2007
239 S.W.3d 650
Dolores STOCKMANN and Greg Stockmann, Plaintiffs/Appellants,
Joseph FRANK, Defendant/Respondent.
No. ED 89167.
Missouri Court of Appeals, Eastern District, Division One.
December 4, 2007.

[239 S.W.3d 652]

Gary A. Growe, Devereux Murphy, LLC, St. Louis, MO, for appellants.

Daniel G. Tobben, Kevin B. Behrndt, Laura Gerdes Long, Danna McKitrick, P.C., St. Louis, MO, for respondent.


Plaintiffs, Dolores and Greg Stockmann, appeal from a judgment of the trial court dismissing with prejudice their cause of action for legal malpractice against attorney Joseph Frank as a sanction for plaintiffs' violation of the trial court's order compelling plaintiff to appear for Rule 60.01 independent medical examination (IME). We affirm.


On June 16, 2006 plaintiffs filed a Second Amended Petition against defendant Joseph Frank in the Circuit Court of the City of St. Louis, Cause No. 05401212. Mrs. Stockmann sought damages for legal malpractice, alleging that defendant's failure to timely refile her products liability/personal injury lawsuit against the manufacturer of latex gloves resulted in the loss of her cause of action, and Mr. Stockmann sought damages because he was thereby deprived of his loss of consortium claim against the latex glove manufacturers. Plaintiffs alleged that Mrs. Stockmann had developed a latex sensitivity that caused her to become permanently and totally disabled.

On February 23, 2006, defendant filed a Rule 60 motion to compel plaintiff to present herself for a previously scheduled IME at the offices of H. James Wedner, M.D., Chief of the Division of Allergy and Immunology at Washington University and Medical Director of the Asthma and Allergy Center of the Washington University School of Medicine. Plaintiffs opposed the motion on the grounds that a medical examination at the Asthma and Allergy Center would be inherently dangerous for Mrs. Stockmann because of her purported latex allergy, and they requested that any physical examination of Mrs. Stockmann take place in her home. Defendant's position was that the type of examination needed could not be done at a home.

In response to the trial court's request, defendant filed a letter from Dr. Wedner that addressed Mrs. Stockmann's safety concerns about the presence of latex products and the isolation of air circulation in his office building and that explained why the proposed tests were necessary and why they had to be performed on equipment available only in an office. Dr. Wedner also advised that the Asthma and Allergy Center had served "numerous patients with a known latex sensitivity and true latex allergy here at The Asthma and Allergy Center without significant physical harm coming to them." Dr. Wedner also referred to an October, 2004 laboratory report from IBT Reference Laboratory (October 2004 IBT Report) that he had reviewed and that was provided to the

239 S.W.3d 653

court that showed that Mrs. Stockmann was not allergic to latex.

On June 22, 2006, the trial court issued an order compelling Mrs. Stockmann to appear for a medical examination. In its written order, the trial court found that plaintiffs did not establish that Dr. Wedner's office was potentially dangerous to plaintiff. However, it set forth specific procedures for Mrs. Stockmann to follow as precautionary measures. It required that prior to the examination, Mrs. Stockmann was to provide her medical history to Dr. Wedner by telephone and to have her blood drawn by her family physician and sent to the Mayo Clinic for evaluation. It further required that when Mrs. Stockmann arrived at Dr. Wedner's office building, she was to call Dr. Wedner's office staff from her car to inform them she had arrived. She would meet a registered nurse at a back ambulance entrance who would escort her upstairs by elevator, and would proceed directly to an examining room to change into a cotton gown. Dr. Wedner was directed to arrive promptly and to perform quickly the physical exam, blood pressure, and pulmonary function test. If Mrs. Stockmann's Mayo Clinic test was negative, then he could perform a skin test for latex allergy, but he could not perform a "use" test.

By September 8, 2006, Mrs. Stockmann had not yet completed the court-ordered blood draw, and defendant filed another motion to compel and a motion for sanctions. The trial court denied the motion for sanctions but entered an order setting forth additional requirements for the blood draw, telephone interview, and examination, including the removal of all powdered latex gloves from Dr. Wedner's office at least a day prior to Mrs. Stockmann's appointment.

Mrs. Stockmann thereafter had her blood drawn by her family physician and tested by The Mayo Clinic. The Mayo Clinic issued a Laboratory Service Report indicating that the September 19, 2006 test for IgE latex was negative. Based on this test result and the October 2004 IBT Report showing that Mrs. Stockmann was not allergic to glove latex extract, Dr. Wedner attested by affidavit that to a reasonable degree of medical certainty, Mrs. Stockmann "does not suffer from a latex allergy at the present time."

On October 17, 2006, plaintiffs, accompanied by Barb Thuet, a nurse hired by plaintiffs, parked outside Dr. Wedner's office building. Prior to entering the building, Nurse Thuet checked Mrs. Stockmann's oxygen levels. Mrs. Stockmann did not call Dr. Wedner's office when she arrived, and did not allow a nurse from Dr. Wedner's staff to escort her to Dr. Wedner's office. Rather, she entered with Nurse Thuet. She did not go directly to Dr. Wedner's office but stopped in the building's restroom, even though she did not know what was in it. When Mrs. Stockmann exited the restroom, her cheeks and chest were red. Instead of taking the elevator upstairs, as directed by the court, she walked up the stairs. When Mrs. Stockmann reached the second floor, she complained of breathing difficulty. Mrs. Stockmann injected herself with an Epi-pen. She decided to leave the building, descended the stairs, and took medication. Nurse Thuet measured Mrs. Stockmann's oxygen level, and it was the same as when she entered.

Mrs. Stockmann called Dr. Wedner's office from the parking lot and left a message that she had a reaction coming into the building. Dr. Wedner's patient service representative, Cheryl Mayer, met Mrs. Stockmann in the parking lot. Mr. Stockmann prevented Ms. Mayer from approaching Mrs. Stockmann, claiming Mrs. Stockmann had experienced an allergic reaction

239 S.W.3d 654

"in the elevator." Dr. Wedner, having been advised of the situation, also attempted to approach Mrs. Stockmann in the parking lot, but Mr. Stockmann prevented him from reaching her, claiming that Dr. Wedner might be contaminated by latex. Dr. Wedner asked Mrs. Stockmann to return to the office, but Nurse Thuet refused to allow her to return. Mrs. Stockmann did not seek any medical help for her purported allergic reaction that day. Dr. Wedner did not examine Mrs. Stockmann. However, Ms. Mayer and Dr. Wedner each attested that Mrs. Stockmann did not appear to be in distress.

Thereafter, defendant filed a motion for sanctions and for dismissal of plaintiffs' claims based on Mrs. Stockmann's failure to submit to an IME as ordered. In the motion, defendant recited the history of attempts to compel Mrs. Stockmann to...

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    ...fact as to whether [the plaintiff's gender or age] was a 'contributing factor' in [her] [e]mployer's termination decision." Korando, 239 S.W.3d at 650 (citing Daugherty, 231 S.W.3d at 820). B. Count II—Gender Discrimination: As a female, Plaintiff is in a protected group and she suffered an......
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    ...not disturb the circuit court’s imposition of discovery sanctions unless we find the court abused its discretion. Stockmann v. Frank , 239 S.W.3d 650, 655 (Mo. App. 2007). "A ruling constitutes an abuse of discretion when it is ‘clearly against the logic of the circumstances then before the......
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    ...and deliberate disregard for authority of the trial court; and (2) the opposing party was prejudiced thereby. Stockmann v. Frank , 239 S.W.3d 650, 656 (Mo. App. E.D. 2007) ; Scott v. LeClercq , 136 S.W.3d 183, 190–92 (Mo. App. W.D. 2004) ; Norber v. Marcotte , 134 S.W.3d 651, 659–61 (Mo. Ap......
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    ...managers questioned the appropriateness of hiring a "diversity employee," she was the only one terminated and she was the only female. 239 S.W.3d at 650. Similarly, the plaintiff in Marez v. Saint-Goban Containers, Inc., No. 4:09-cv-999, 2010 WL 3719927, at *8 (E.D.Mo. Sept. 13, 2010) survi......
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