Missouri Judge decries 'civil death' of a wrongful death suit

By Scott Lauck BridgeTower Media Newswires ST. LOUIS, MO - A Court of Appeals judge used a concurring opinion to issue a blistering indictment of lawyers and court officials she said turned a "deaf ear" to an incarcerated man's attempt to pursue a wrongful death suit, ultimately dooming the litigation. The suit stems from the Nov. 18, 2009, death of Darrell Williams Jr., who was fatally shot by St. Louis police officers. According to the opinion, Williams was a passenger in a vehicle being chased by the police. The vehicle went out of control and flipped when it struck tire spikes laid by the police, and Williams and another person in the car were shot to death when they emerged. According to media reports, the police alleged that the men had reached for weapons. Williams' grandmother, Delores Henry, filed a wrongful death lawsuit in 2010 alleging the officers had used excessive force. The suit described her as Williams' "next of kin;" it did not mention that his mother and father were alive but incarcerated. The suit was voluntarily dismissed in 2014 shortly before a scheduled trial date. A few months later, Williams' mother, Kathryn Love, filed a new wrongful death suit, in which the grandmother later intervened. But a St. Louis circuit judge dismissed the new suit because it was filed after the three-year statute of limitations had expired. In a short opinion on Nov. 8, the Court of Appeals Eastern District affirmed that ruling. Under the state's "saving statute," a lawsuit that is filed within the statute of limitations can be voluntarily dismissed and then refiled within one year, even if the refiling occurs after the initial time limit has expired. But Henry's initial suit, the judge found, had been invalid, so the saving statute wasn't triggered. Under the wrongful death statute, the primary plaintiffs in such suits are the spouse, children and parents of the deceased. Other relatives can seek to act as plaintiffs, but only if there are no "superior" relatives to bring the case. Henry's original suit should have been filed by Williams' parents. The problem, as Judge Lisa Van Amburg wrote in her concurring opinion, was that Williams' father, Darrell Williams Sr., did try to intervene in Henry's suit in a series of pro se motions filed from prison well before the statute of limitations ended. Had Williams Sr.'s motion to intervene been granted - which, Van Amburg noted, is an "absolute right" and must be granted - Love's later petition would have been timely under the saving statute. "Instead, the record in the original case leaves the impression that the justice system turned a deaf ear to Father's timely and persistent pleas because of his pro se status and incarceration," she wrote. She added that the father effectively was treated as if he'd suffered a "civil death" - a feature of ancient common law in which convicted felons lost all legal rights, including the right to sue. Missouri once had a statute that barred civil suits by prisoners, but it was repealed in 1979. Van Amburg excoriated the attorneys in the original case. She said the grandmother's lawyer knew of the father's attempts to join the suit yet "forged ahead with an unviable plaintiff and then withdrew from the case after the statute of limitations had lapsed." According to court records, the grandmother's initial lawyer was St. Louis attorney MacArthur Moten, who withdrew from the case in February 2013. He did not return a call seeking comment. Van Amburg also scoffed at claims from the Missouri Attorney General's Office, which represented the St. Louis Board of Police Commissioners, that it hadn't received notice of the father's 2011 motion to intervene. The father hadn't asked for a hearing, but in a three-page appendix, Van Amburg detailed 13 entries related to Williams Sr.'s efforts to intervene, all of which provided "undeniable constructive notice" of his interest in joining the case. She also noted that no one made an issue of the grandmother's deficient standing until after the statute of limitations had expired. "Moreover, as a practical matter, the notion that [the attorney general's office] failed to ascertain the status of Darrell's parents over the course of four years of discovery simply defies belief," Van Amburg wrote. "On both sides, counsel could not credibly claim that they neglected to inquire of the deceased's parents at any point in the development of the case." Nanci Gonder, a spokeswoman for the attorney general's office, declined to comment. Williams Sr. first inquired about the case in July 2010 from a federal penitentiary in Florida and again after he was transferred to a facility in Pennsylvania. In the course of his correspondence, he alleged that the family was keeping the status of the suit "secret to me" and repeatedly inquired how he could become a plaintiff. At his request, the court forwarded him copies of the docket sheet and other documents, but the court never ruled on his May 2011 petition to intervene. It was not clear which judge the matter was referred to; in her appendix, Van Amburg noted that eight judges were listed on the case at one point or another due to the St. Louis Circuit Court's complex docketing system. Van Amburg also noted that the docket entry repeatedly referred to Williams Sr. as "offender," "defendant" or "inmate," even though his criminal convictions had nothing to do with his attempt to become a plaintiff in the civil suit over his son's death. The last entry mentioning Williams Sr. was in July 2011, at which point Van Amburg surmised he "evidently threw up his hands" after a fruitless year of trying to intervene. Brian McChesney of McChesney & Ortwerth argued the case on appeal. He took over the case in 2013 after Moten, the initial lawyer, withdrew. At that point, the statute of limitations already had expired, and the case wasn't ready for trial, he said. McChesney became involved because he'd handled a wrongful death case on behalf of the family of Jeremiah Henderson, the other man killed in the November 2009 incident. (McChesney declined to comment on the outcome of the Henderson case; according to court records, it settled in March 2014 for $30,000.) In an interview, McChesney acknowledged that his approach on an appeal was a "creative argument" to resurrect the case despite the expiration of the statute of limitations. "In all fairness to everybody, it's a really unusual issue from a purely factual standpoint," he said. It's unclear at this point whether Williams Sr. could or would seek to reopen the initial suit from which he never should have been excluded in the first place. McChesney noted that he doesn't represent the father, who, according to the opinion, is incarcerated on drug charges and due to be released in 2026. This is at least the second time this year that Van Amburg has used a concurring opinion to highlight an issue underlying an otherwise straightforward legal opinion. In March, she agreed with a decision not to revive a defendant's claim that black jurors had been unfairly excluded as jurors at his trial. But Van Amburg wrote separately to highlight problems in the way claims under Batson v. Kentucky proceed, and how unconscious racial bias can undermine the integrity of the justice system. Published: Mon, Dec 05, 2016