Opinion
Nos. ED75291 and ED75292.
Opinion filed: November 2, 1999.
Appeal from the Circuit Court of the City of St. Louis, Hon. Patricia L. Cohen.
Robert J. Radice and John M. Horas, 1600 South Brentwood Boulevard, Suite 770, St. Louis, MO 63144-1335, for appellant.
Charles A. Seigel III and Michael A. Wolff, 7701 Forsyth Blvd., Ste. 950, St. Louis, MO 63105, for respondent.
William H. Crandall, Jr., P.J. and Mary K. Hoff, J. concur.
Defendant, St. Louis University ("SLU"), appeals judgment in favor of plaintiff, Rama K. Nemani ("Nemani"), for $300,000 entered in accordance with a jury verdict. Subsequently, the trial court denied SLU's Motion for Judgment Notwithstanding the Verdict, or Alternative Motion for New Trial, or Alternative Motion for Remittitur. Nemani also cross-appeals the trial court's directed verdict in favor of SLU on his claim for punitive damages. We affirm on defendant's appeal and affirm on plaintiff's cross-appeal.
Nemani filed a one-count petition against SLU for "Invasion of Privacy — Wrongful Appropriation." Nemani alleged that he was employed as a Research Chemist with the Veterans Affairs Medical Center ("V.A.") and also employed as an Assistant Research Professor in the Department of Pharmacological Science at SLU. He further alleged that SLU, by and through Dr. Harvey Armbrecht ("Armbrecht"), listed him on an application for a National Institute of Health Grant ("NIH Grant") without his knowledge or consent. He also alleged that SLU received the NIH Grant "based on the specific representation of SLU, through Armbrecht, that [he] would act as Co-Investigator for the project."
Specifically, Nemani alleged for his actual damages:
12. As a direct and proximate result of SLU's wrongful appropriation of Nemani's name, Nemani has sustained damages in excess of $300,000.00 representing the amount of funds received and to be received by SLU under the NIH Grant for the salary and other benefits which were to be paid to Nemani but were retained unlawfully by SLU. Nemani also has suffered damages for humiliation and loss of professional progress in an amount which he presently can not ascertain, but shall prove at trial.
Nemani also sought punitive damages alleging that SLU acted with an evil motive and reckless indifference.
SLU filed its Motion for Summary Judgment arguing that it had an implied right or implied consent to use Nemani's name, with or without his express consent, in that Nemani was SLU's employee at the time of the NIH Grant. Alternatively, SLU argued that Nemani could not claim for his damages, the amount of money listed on the NIH Grant as his proposed salary and benefits. The motion court entered partial summary judgment for SLU, which precluded Nemani from claiming the proposed salary and benefits as his damages.
The evidence supports finding the following facts. During the relevant period, SLU and the V.A. had a joint working relationship for the goal of medical research, wherein an individual would be employed by both institutions simultaneously. The employees' income came solely from research grants. On the application, both institutions had to be listed as the Applicant Organization for a grant. Nemani worked a joint appointment wherein he was a Research Chemist for the V.A. and an Assistant Research Professor for SLU.
Armbrecht also held a joint appointment. He hired Nemani to work on a project funded by a V.A. grant, which was scheduled to end in September 1994. Armbrecht also worked on a different project funded by a V.A. grant on which Nemani had never worked. Armbrecht submitted an application renewing this grant and also applied for funding listing SLU as the Applicant Organization. The V.A. grant renewal did not list Nemani's name, however the SLU NIH Grant application did. Nemani was listed in his capacity as an assistant professor at SLU. Armbrecht testified that he obtained Nemani's consent prior to listing him on the application. Nemani testified that although he never gave his consent, he expressed his interest in working on the project prior to Armbrecht sending the application.
On August 30, 1994 Armbrecht's NIH Grant was awarded, but underfunded by $244,000. As the Principal Investigator in charge of budgetary and personnel decisions, Armbrecht decided not to use Nemani on the project and use a lab technician instead. Armbrecht informed the NIH of his decision not to use Nemani on the project, and the NIH replied by stating that it was Armbrecht's decision as Principal Investigator. The NIH Grant was awarded for a projected five-year period contingent on renewal each year.
Nemani testified that he discovered his name on the NIH Grant in July 1994. Nemani and Armbrecht discussed a job under the NIH Grant in October 1994 at which time there was no mention of Nemani's name on the application. Nemani testified that he would have had no problem with his name on the application if he received a job under the NIH Grant. Over objection, Nemani testified that as a result of being listed on Armbrecht's NIH Grant, he suffered shock and humiliation. He offered no medical evidence. Nemani testified as to the amount listed on the grant as his proposed salary and benefits, which totaled approximately $300,000 over the life of the grant.
At the close of all evidence, the trial court sustained SLU's motion for a directed verdict on the issue of punitive damages, thereby leaving only the claim for humiliation and loss of professional progress. During voir dire, the issue of punitive damages was discussed. During the instruction conference, and after SLU's motion for a directed verdict as to punitives was sustained, SLU requested a withdrawal instruction on punitive damages to inform the jury that punitives should not be considered. The trial court refused to approve such an instruction. During the jury's deliberations, they sent a message to the trial court asking if they could consider punitives to which the court responded "[t]he jury must follow the instructions as given by the Court."
On appeal, SLU argues that the trial court erred in failing to direct a verdict or grant JNOV where Nemani failed to make a submissible case for name appropriation because SLU had an implied right to use an employee's name and where Nemani failed to make a submissible case for actual damages. Additionally, SLU argues: (1) the trial court erred in failing to grant a new trial because the verdict was excessive; (2) the trial court erred in failing to remit the jury verdict because it was excessive and against the weight of the evidence; (3) the trial court erred in refusing to instruct the jury not to consider punitive damages; and, (4) the trial court erred in submitting Nemani's verdict director because it did not correctly state the law. Nemani cross-appeals arguing that the trial court erred in directing a verdict in favor of SLU on punitive damages where there was substantial evidence to support an award.
In its first point, SLU argues that the trial court erred in failing to direct a verdict or grant JNOV where Nemani failed to make a submissible case for name appropriation because SLU had an implied right to use an employee's name. Our review of a motion for directed verdict and the denial of a judgment notwithstanding the verdict is a question of law viewed in the evidentiary light most favorable to the non-moving party, in order to determine whether a submissible case has been made. Skinner v. Thomas, 982 S.W.2d 698, 699 (Mo.App.E.D. 1998); Fricke v. Valley Prod. Credit Ass'n., 721 S.W.2d 747, 752 (Mo.App. 1986). "One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy." Haith v. Model Cities Health Corp. of Kansas City, 704 S.W.2d 684, 687 (Mo.App. 1986) quoting Restatement (Second) of Torts, section 652C (1977). Appropriation of another's name or likeness is one of four generally recognized tort actions for the invasion of privacy. Id.
Another district of this court was presented with nearly identical facts in Haith v. Model Cities Health Corp. of Kansas City, 704 S.W.2d 684 (Mo.App. 1986) where a health center used physicians' names in a research grant application without prior authorization. Haith, 704 S.W.2d at 687. The court held that whether the names of physicians were wrongfully appropriated by a health center for its own advantage was a genuine issue of fact to be decided by a jury. Id. at 687-88. Moreover, Haith did not rely on the plaintiffs' employment status in finding that they stated a claim for invasion of privacy based on wrongful name appropriation. Instead, the court found "that a jury could find that there was an advantage to defendant in using plaintiffs' name to procure a government grant, within the fourth category of privacy actions." Id. at 687. Here, there is no evidence to support a finding that the NIH Grant would have been partially or totally funded without Nemani's name. Thus, whether SLU derived any advantage from the use of his name is a question of fact for the jury.
Contrary to SLU's assertion that the shop-right doctrine applies, we have held that it does not extend to intangible personal property. Corrigan v. Armstrong, Teasdale, Schlafly, Davis Dicus, 824 S.W.2d 92, 95 (Mo.App. 1992). "Thus, the `right' the employer acquires is more accurately described as a non-exclusive license or privilege to replicate the invention or trade secret, without payment for that license or privilege." Id. (further citations omitted). Nemani only claims that SLU misappropriated his name, but does not claim that SLU misappropriated some tangible work product while he was an employee. As a matter of law, SLU did not have an implied right to use Nemani's name on the NIH Grant application. The evidence supports a finding that Nemani made a submissible case for invasion of privacy — wrongful appropriation. Point denied.
In Point II, SLU argues that the trial court erred in failing to direct a verdict or award a JNOV in SLU's favor because Nemani failed to make a submissible case for actual damages "in that Nemani failed to present any evidence of any medically significant emotional injury, and there was no evidence of any other actual damages." We disagree. SLU cites Bass v. Nooney Co., 646 S.W.2d 765 (Mo.banc 1983) for the proposition that Nemani was required to adduce evidence of a medically diagnosable injury before he could recover damages for humiliation, embarrassment, disgrace and mental suffering. However, in Fust v. Francois, 913 S.W.2d 38 (Mo.App.E.D. 1995), we held that the case law made a distinction for intentional tort cases, thereby distinguishing Bass. Fust v. Francois, 913 S.W.2d 38, 48 (Mo.App.E.D. 1995). "When an intentional tort is involved . . . there is no need to use the Bass standard, and the jury is free to consider such damages as embarrassment, humiliation, disgrace and mental suffering without medical proof thereof." Id. citing Signorino v. Nat'l. Super Markets, Inc., 782 S.W.2d 100, 104 (Mo.App. 1989).
Nemani offered evidence to support finding the required elements of his invasion of privacy cause of action and, therefore, may recover without specific proof of injuries. He testified that he was shocked and humiliated upon learning that SLU used his name on the NIH Grant application for a project on which he would not be employed. He testified on the importance of grants to the reputation of research scientists and the damage to his reputation from SLU's conduct. The Haith court, quotingMunden v. Harris, 134 S.W. 1076 (Mo.App. 1911), recognized general damages for the tort action for invasion of privacy.
We therefore conclude that one has an exclusive right to his picture, on the score of its being a property right of material profit. We also consider it to be a property right of value, in that it is enjoyment of life and the exercise of liberty, and that novelty of the claim is no objection to relief. If this right is, in either respect, invaded, he may have his remedy either by restraint in equity or damages in an action at law. If there are special damages, they may be stated and recovered; but such character of damage is not necessary to the action, since general damages may be recovered without a showing of specific loss; and if the element of malice appears, as that term is known to the law, exemplary damages may be recovered.
Haith, 704 S.W.2d at 687 quoting Munden v. Harris, 134 S.W. 1076, 1079 (Mo.App. 1911) (emphasis added). Whether Nemani was humiliated or otherwise generally damaged is a question of fact for the jury and, thus, the trial court did not err when it submitted the issue of damages. Point denied.
In its third point, SLU argues that the trial court erred in failing to grant a new trial because the jury verdict was excessive due to jury passion and prejudice based on numerous errors. We review for abuse of discretion and will not disturb the trial court's decision "unless there is a complete absence of probative facts to support it." Smith v. Wal-Mart Stores, Inc., 967 S.W.2d 198, 208 (Mo.App.E.D. 1998). "The complaining party cannot direct the appellate court to the size of the verdict alone to show passion and prejudice by the jury." Id. quoting Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 872 (Mo. 1993). "Instead, he or she must show some other error was committed during trial." Id. SLU asserts error when the trial court: (1) allowed the discussion and highlighting of Nemani's proposed salary and benefits under the NIH Grant application; (2) refused to give a withdrawal instruction, which stated that the jury was not to consider Nemani's proposed salary and benefits pursuant to the grant; (3) disallowed counsel for SLU to cross-examine Nemani on the extent of his emotional distress; and, (4) precluded from entering into evidence a federal complaint filed by Nemani against the V.A. that alleged emotional distress.
The evidence supports a finding that Nemani did not offer the proposed salary and benefits listed on the NIH Grant application as his damages. In fact, the trial court granted a partial summary judgment in favor of SLU, which precluded Nemani from offering the proposal as damages. Nemani only alleged that he was entitled to compensation for humiliation and damage to reputation. The trial court did not err when it allowed the proposal into evidence because it was relevant to support that SLU derived a benefit from the wrongful appropriation of Nemani's name, which goes to the submissibility of a cause of action for name appropriation. As noted, the court in Haith found "that a jury could find that there was an advantage to defendant in using plaintiffs' names to procure a government grant, within the fourth category of privacy actions." Haith, 704 S.W.2d at 678.
The failure to submit an instruction to the jury is error only if it could materially affect the merits. Allison v. Barnes Hosp., 873 S.W.2d 288, 291 (Mo.App.E.D. 1994). SLU proffered "Instruction No. D," which stated that "[i]f you find in favor of plaintiff, in determining plaintiff's damages you must not consider any amount of money listed on the NIH grant application as wages or benefits to plaintiff." Nemani never claimed that he was entitled to the proposed salary and benefits under the grant or that he was entitled to compensation for work on the project. The trial court was not required to withdraw an issue never argued to the jury as the proper measure of damages.
SLU also argues jury misconduct based on the post-trial remarks of one juror as to the calculation of damages. We are not persuaded because although a verdict can be attacked on the basis of jury misconduct during deliberations, a juror generally cannot impeach a verdict. Mann v. Nat'l. Supermarkets, Inc., 820 S.W.2d 91,93 (Mo.App. 1991). Finally, SLU's argument that counsel was precluded from cross-examining Nemani regarding the nature and extent of his emotional distress is without merit. The trial court merely precluded SLU from adducing evidence regarding Nemani's complaint filed in federal court alleging employment discrimination against the V.A. Exclusion of evidence is not an abuse of discretion "unless the materiality and probative value of the evidence were sufficiently clear, and the risk of confusion and prejudice so minimal." Still v. Ahnemann, 984 S.W.2d 568, 572 (Mo.App.W.D. 1999); see Mead v. Grass, 461 S.W.2d 708, 710 (Mo. 1971). SLU fails to demonstrate how the introduction of the complaint into evidence would be more probative than prejudicial. Point denied.
SLU's point IV argues that the trial court erred in failing to remit the jury verdict because it was against the weight of the evidence and exceeded fair and reasonable compensation. We review for an abuse of discretion. Smith, 967 S.W.2d at 208. We are "limited to a consideration of the evidence which supports the verdict excluding that which disaffirms it." Wright v. Fox-Stanley Photo Prod., Inc., 639 S.W.2d 407, 410 (Mo.App. 1982). Remittitur is appropriate to correct an honest mistake by the jury in weighing the evidence, fixing the damages or awarding an excessive sum in comparison to similar injuries. Nussbaum v. Kansas City Stock Yards Co. of Me., 359 S.W.2d 335, 341 (Mo. 1962). In its order, the trial court opined that although the verdict seemed high, the rule of uniformity cannot be applied in the unusual case where the NIH Grant application, unknown to Nemani until after approval, was purportedly not only for the benefit of SLU but also for his benefit. We do not find the verdict manifestly unjust.
In Point V, SLU argues that the trial court erred in refusing to instruct the jury not to consider punitive damages. "A trial court's refusal to submit a tendered instruction is reviewed only for an abuse of discretion." Hackman v. Kindrick, 882 S.W.2d 157, 159 (Mo.App.E.D. 1994). In order to reverse a jury verdict on instructional error, we must find that the offending instruction or lack thereof, "misdirected, misled or confused the jury.'Cornell v. Texaco, Inc., 712 S.W.2d 680, 682 (Mo.banc 1986). SLU's proffered "Instruction No. A" stated that, "[t]he issue of punitive damages is withdrawn from the case and you are not to consider such issue in arriving at your verdict." The trial court refused to submit the instruction.
At the close of all evidence, SLU's motion for a directed verdict as to the issue of punitive damages was sustained. Nemani did not state during closing arguments that he was entitled to punitives, and SLU argued that he was not entitled to punitives. The trial court submitted a standard damage instruction. During deliberations, the jury forwarded a question to the court asking if they could consider punitive damages. The court responded that "[t]he jury must follow the instructions as given by the Court." SLU argues this created a "false light" to the jury. We disagree. The trial court never instructed the jury that it could consider punitive damages, and the presumption is that the jury followed the instructions. The jury was instructed to award such sum that would fairly and justly compensate Nemani for any damages the jury believed he sustained as a direct result of SLU's conduct. Thus, Nemani, SLU and the trial court all took affirmative steps not to submit the issue of punitive damages to the jury. Point denied.
SLU argues in Point VI that the trial court erred in submitting Nemani's verdict director because it misstated the law. His verdict director read as follows:
INSTRUCTION NO. 6
Your verdict must be for plaintiff if you believe:
First, defendant used plaintiff's name for its own advantage, and
Second, plaintiff did not consent to the use of his name by defendant, and
Third, as a direct result of such use of plaintiff's name by defendant, plaintiff was damaged.
SLU submits that the instruction failed to require the jury to find that SLU acted intentionally in its appropriation of Nemani's name and that it benefited from the use of his name. "To establish reversible error, the complaining party must show that under all the evidence the instruction was a misdirection to the jury resulting in prejudicial error." Hackman, 882 S.W.2d at 159.
The submitted instruction required that in order to find for Nemani, the jury had to believe that SLU used his name for its own advantage, that the use was unauthorized, and that as a direct and proximate cause of such use he suffered damage. Clearly the phrase "for its own advantage" is synonymous in meaning to SLU deriving some benefit for the use. SLU also argues that the instruction is defective because it failed to require the jury to find that it acted intentionally in its misappropriation. SLU cites Haith for the proposition that the tort of invasion of privacy — wrongful name appropriation involves the element of intent. Missouri case law, including Haith, recognizes that "[o]ne who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy." Bear Foot, Inc. v. Chandler, 965 S.W.2d 386, 389 (Mo.App.E.D. 1998); Haith, 704 S.W.2d at 687. There is no separate, but necessary, element requiring a finding that "one acted intentionally in its misappropriation of another's name." SLU's appeal is affirmed in its entirety.
On cross-appeal, Nemani argues that the trial court erred in directing a verdict in favor of SLU on punitive damages because there was substantial evidence to support an award. We affirm for failure to comply with the requirements of Rule 84.04(d). Nemani's point on appeal reads:
The trial court erred in directing a verdict in favor of St. Louis University on Nemani's claim for punitive damages because under the law and facts before the court Nemani was entitled to submit to the jury the issue of punitive damages in that there was substantial evidence to support an award of punitive damages.
The point fails to alert this court to wherein and why the trial court committed error, as required by Rule 84.04(d). A point relied on must contain: (1) a concise statement of the challenged ruling of the trial court; (2) the rule of law which should have been applied; and (3) the evidentiary basis to support application of the rule of law. Crabtree v. Bugby, 967 S.W.2d 66, 72 (Mo. banc 1998) citing Thummel v. King, 570 S.W.2d 679, 685-86 (Mo. banc 1978). We may decline to consider any point relied on which does not comply with Rule 84.04(d). Id.
The point provides only a general statement that under the law and the facts Nemani was entitled to submit punitives. Although he asserts "substantial evidence" exists, the point fails to identify any evidence. The argument portion of the point does not provide guidance that is significantly better. Nemani has acknowledged the evidence will not support a finding of scienter. However, he fails to identify what other evidence will support a submission of punitive damages, and, therefore, leaves this court and SLU to discern what he contends is error. Point denied.
Gratuitously, assuming we were to reach the merits, we would find no trial court error in refusing to submit the issue of punitive damages for several reasons. First, Nemani's point on appeal correctly argues what the court stated. At the close of all the evidence the court granted SLU's motion for directed verdict as to Nemani's claim for punitive damages. However, the court really did not advise the jury on this issue. In fact and law, the court's action was a refusal to submit to the jury on the issue of punitive damages where Nemani proffered MAI 36.11. Thus, the proper issue is whether the trial court erred when it refused to submit on punitive damages.
The standard to be applied for the imposition of punitive damages in an intentional tort case is set forth in MAI 10.01, which requires conduct that is "outrageous because of defendant's evil motive or reckless indifference to the rights of others." MAI 10.01; Burnett v. Griffith, 769 S.W.2d 780 (Mo.banc 1989). The evidence would not support a finding that SLU acted with the requisite indifference or evil motive. The evidence would support a finding that SLU used Nemani's name to assist in securing grant money for a research project, and that upon receiving the funds, SLU used them for the intended purpose without including Nemani in the project.
We affirm on defendant's appeal and affirm on plaintiff's cross-appeal.