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For the last five years, GOT’s Don O’Keefe has been defending a client from a low-speed, rear-end motor-vehicle accident that resulted in the filing of two substantial personal injury claims asserted by a husband and wife who both treated with the same chiropractor and spinal surgeon. The couple underwent the same multi-level disc replacement procedure in the cervical spine and accumulated more than $130,000 in separate medical bills not including an additional anticipated future surgery. Separate trials resulted in St. Louis County when opposing counsel decided to voluntarily dismiss the wife’s claim shortly before jury selection. Demands in both cases far exceeded policy limits.

The husband’s claim was tried and resulted in a minimal verdict which was appealed by the husband. The Court of Appeals affirmed the verdict. The wife’s case was refiled and tried in 2018 at which time the case resulted in an outright defense verdict for Don’s client. Following the unfavorable verdict, the wife appealed the outcome and asserted various points of trial-court error. In particular, the wife claimed that because the first trial resulted in a finding of negligence against defendant, it was error for the subsequent jury to find in favor of defendant based on the doctrine of collateral estoppel and/or the rear-end collision doctrine.

Don was able to successfully argue to the Missouri Court of Appeals that even under the rear-end collision doctrine, questions of fact remained specifically as to time and distance available for the defendant to view and appreciate the wife’s car and to otherwise avoid the collision. The Court of Appeals ruled that this was not the rare or exceptional case where the evidence was so strong against the defendant as to leave no room for reasonable minds to differ on the outcome of the accident. Therefore, it was appropriate that the jury decide the issue of negligence so the denial of the wife’s motion for directed verdict at the close of evidence was not improper even in a rear-end collision like this.

On the issue of offensive collateral estoppel, the wife argued that her attempt to amend her petition a week before trial was appropriate given the County jury in her husband’s trial already found the defendant negligent. Opposing counsel argued it would be improper and against judicial economy to conduct a second trial with essentially the same evidence and the exact same witnesses. In Missouri, collateral estoppel is required to be affirmatively pled in plaintiff’s petition and potentially resolved by a summary judgment motion. As such, and because there were not unknown or unforeseen facts excusing the wife’s delay in raising collateral estoppel, the trial court ruled the wife’s proposed amendment was untimely so leave of court was denied. Opposing counsel was noted to be well aware of the outcome of the earlier trial which occurred more than 39 months earlier and to allow such an amendment near the time of trial would have prejudiced the defendant and impacted his trial preparations. The Court of Appeals affirmed the trial court’s ruling on November 19, 2019, in the case of Federici v. Halley in an unpublished opinion.

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