News Articles

By Lisa R. Brown
      Staff Writer

The two-year statute of limitations in a slander case did not begin until a plaintiff found out that allegedly defamatory remarks were made, found the Missouri Court of Appeals, Eastern District, on Tuesday.

The decision reverses a Circuit Court of St. Louis County judgment that dismissed Dr.David Kennedy's action for slander, injurious falsehood grid injunctive relief based on the lower court's finding that the filing of his suit surpassed the two-year statute of limitations provided in Section 516.140 RSMo.

Kennedy did not find out about the allegedly slanderous remarks made by Dr. Gregory Bailey until September 1998, when a former patient of Kennedy's sued him for medical malpractice and he received a copy of a deposition.

According to the appellate opinion, Kennedy's former patient's wife revealed in the deposition that in 1996 Bailey told her and her husband repeatedly over a five-month time period that Kennedy performed unnecessary spinal fusion surgery on her husband solely for monetary gain.

Kennedy brought suit against Bailey six weeks after learning of the remarks in the deposition, in October 1998.

Bailey argued, and the circuit court agreed, that since the remarks were made between May 1 and September 1996, the two-year statute of limitations found in Section 516.140 barred Kennedy from filing his suit.

The Court of Appeals; relying on Dice vs. Darling, reviewed the lower court's dismissal of Kennedy's petition examining the pleadings and allowing them their "broadest intendment, regarding all facts alleged as true, and construing the allegations in favor of the plaintiff." The appellate court found that there was no dispute that the two-year statute of limitations found in Section 516.140 applied to Kennedy's slander claim, but the issue was when that statute began to run.

Relying heavily on a comparison to Jones vs. Pinkerton's Inc., where the Court of Appeals held that "the statute of limitations is tolled when factors outside the plaintiff's control prevent his ascertainment of any legal wrong," the appellate court found that the lower court had erred in dismissing the suit.

The appellate court held that the former patient and his wife had erected an "intervening screen" that hid any wrong against Kennedy when they told him they were switching doctors in 1996 because their insurance company would no longer pay for his medical services.

"Dr. Kennedy's petition sufficiently shows that the actions of [the] patient and his wife, which were outside Dr. Kennedy's control, prevented Dr. Kennedy from ascertaining he had been slandered," wrote Judge Mary Rhodes Russell for the appellate panel.

The court held that the statute of limitations was tolled until Kennedy was aware that he had suffered a legal wrong when he received a copy of the deposition that revealed Bailey's remarks.

Al Johnson, Kennedy's attorney, said that he handles a lot of defamation cases and that typically, people don't find out for a long time that somebody is bad-mouthing them.  He said the court arrived at the correct slander and libel over the past decision, adding, "I think that any other decision by the court would have essentially judicially abrogated defamation as a tort because it would force the plaintiffs in defamation cases, slander or libel, to essentially do their own investigation to find out if someone was making false statements about them.  And then you have essentially a duty to discover and act on them almost instantly.

"I think it's a good case to highlight.  Courts have kind of whittled away at the torts of slander and libel over the past 10 or 15 years, and this decision, hopefully, will, be one that would have essentially judicial- turns the tide a little bit," Johnson said.

The Court of Appeals ruled that not enough evidence was presented for it to rule whether Bailey's remarks were statements of fact or expressions of opinion and remanded the slander case back to trial for further proceedings.

The medical malpractice case brought by the former patient against Kennedy is scheduled for trial in May in St. Louis County.

Joseph Mueller, attorney for Dr. Bailey, was out of the country and could not be reached for comment.

Judge Lawrence G.  Crahan and Chief Judge Robert E. Crist concurred with Russell's opinion.

David O. Kennedy M.D. and David O. Kennedy M.D., P.C., plaintiffs/appellants, vs. Microsurgery and Brain Research Institute and Gregory J. Bailey M.D., defendants I respondents; No. ED 76513; handed down March 21.