Lawrence E. Lupien v. Harold W. Clarke

1The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2665
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Richard Allen Williams, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
National Medical Services, Inc.; *
Kevin Ballard, *
*
Appellees. *
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Submitted: February 18, 2005
Filed: March 16, 2005
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Before WOLLMAN, HANSEN, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Richard Allen Williams appeals the district court's 1 dismissal of his negligence
action against National Medical Services, Inc. ("NMS") and its employee Kevin D.
Ballard, M.D., Ph.D. Jurisdiction being proper under 28 U.S.C. § 1291, this court
affirms.

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-2-
While a nurse at the Veterans Hospital in Columbia, Missouri, Williams was
the subject of a criminal investigation into the death of several patients. The
prosecutor retained NMS and Ballard to test tissue samples from 10 patients in order
to determine the cause of death. Relying on Ballard's initial report, the prosecutor
charged Williams with 10 counts of murder in the first degree. NMS and Ballard
wrote the prosecutor — over a year later, but before trial — that the report was
unreliable. Cleared on all charges and released from custody, Williams now sues
NMS and Ballard for negligence.
This court reviews de novo a district court's decision to dismiss a cause of
action for failure to state a claim. Carter v. Arkansas, 392 F.3d 965, 968 (8th Cir.
2004). Williams alleges that NMS and Ballard breached their duty of care by
negligently testing and wrongfully concluding the patients were homicide victims.
The district court dismissed the complaint for failure to state a claim, because, under
Missouri law, NMS and Ballard — as expert witnesses — owed him no duty of care.
In diversity cases applying Missouri law, this court is bound by the decisions
of the Supreme Court of Missouri. Rucci v. City of Pacific, 327 F.3d 651, 652 (8th
Cir. 2003), citing Cassello v. Allegiant Bank, 288 F.3d 339, 340 (8th Cir. 2002).
In Murphy v. A. A. Mathews, 841 S.W.2d 671 (Mo. banc 1992), the Supreme
Court of Missouri permitted a cause of action against a party's own expert witness for
negligently performing litigation support services — as an exception to the general
rule of witness immunity. The court held that because the expert agreed to provide
professional services to a party for a fee, it assumed the duty of care of a skillful
professional. See Murphy, 841 S.W.2d at 682. This decision rested "primarily upon
the commercial relationship assumed by the professional and his or her role as an
advocate." Id.

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-3-
Williams requests expansion of this exception to permit a cause of action
against an expert witness for an adverse party. Although no Missouri court has
decided this precise issue, this court may consider relevant dicta that predict how the
Supreme Court of Missouri would rule. See W. Forms, Inc. v. Pickell, 308 F.3d 930,
933 (8th Cir. 2002), quoting Bass v. Gen. Motors Corp., 150 F.3d 842, 846-47 (8th
Cir. 1998). In Murphy, the court stated:
Our holding would not subject adverse expert witnesses to malpractice
liability because in that situation, the expert owes no professional duty
to the adversary.
Murphy, 841 S.W.2d at 682 n.11.
Accordingly, the Supreme Court of Missouri would find that NMS and Ballard
owed no duty of care to Williams, an adverse party. The district court properly
dismissed his cause of action. The judgment is affirmed.
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