Advanced Physical Therapy, LLC v. Apex Physical Therapy, LLC

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

SOUTHERN DIVISION

ADVANCED PHYSICAL THERAPY, )

LLC, ZACHARY BALL, TODD )

LINEBARGER, )

)

Plaintiffs, ) Case No. 6:20-cv-03043-RK

)

v. )

)

APEX PHYSICAL THERAPY, LLC, )

)

Defendant. )

ORDER

Before the Court are Defendant Apex Physical Therapy’s motions for summary judgment

on Counts I, II, and III of Plaintiffs Advanced Physical Therapy, Zachary Ball, and Todd

Linebarger’s First Amended Complaint. (Docs. 120, 122, 124.) The motions are fully briefed.

(Docs. 121, 123, 125, 126, 143, 144, 145, 148, 159, 160, 161.) Also before the Court is

Defendant’s motion to exclude expert testimony of Brittany Hopp (Doc. 128), which is fully

briefed. (Docs. 129, 136, 153.) After careful consideration and for the reasons explained below,

it is ORDERED that: (1) Defendant’s motions for summary judgment on Counts I and II (Docs.

120, 122) are GRANTED; (2) Defendant’s motion to exclude expert testimony of Brittany Hopp

(Doc. 128) is DENIED; and (3) Defendant’s motion for summary judgment on Count III (Doc.

124) is DENIED.

Background

This is a civil action involving claims of malicious prosecution, abuse of process, and

computer tampering in violation of Missouri law. Plaintiffs Advanced Physical Therapy, LLC

(“Advanced”), Zachary Ball (“Ball”), and Todd Linebarger (“Linebarger”) bring this action

against Defendant Apex Physical Therapy, LLC (“Apex”). Plaintiffs’ malicious prosecution and

abuse of process claims stem from a 2017 lawsuit Apex filed against Plaintiffs in Illinois state

court for breach of contract and tortious interference with business expectancy, among other

claims.

Apex is an Illinois limited liability company that runs a network of physical therapy

rehabilitation locations for various industrial clients or facilities. In December 2016, Apex had

two facilities in southwest Missouri, located in Springfield and Monett.1

Advanced, established in July 2016, is a Missouri limited liability company providing

physical therapy services in northwest Arkansas. Ball is the Chief Executive Officer and sole

owner of Advanced. Linebarger is Advanced’s Director of Business Development. Advanced

opened its first facility in Rogers, Arkansas. In December 2016 this was Advanced’s only facility,

although it has since expanded throughout the region including into southern Missouri. Ball and

Linebarger both reside in Missouri.

On April 30, 2007, Ball began working at Apex as a licensed physical therapist. Ball

worked at Apex’s Springfield location and was the regional manager for Apex’s southwestern

Missouri region (encompassing Apex’s Springfield and Monett locations). Linebarger began

working part-time at Apex’s Springfield location in January 2015 in marketing and as a technician.

Prior to joining Apex, Linebarger (who is Ball’s brother-in-law) did not have any experience in

the physical therapy industry but he did have some prior experience in marketing. (Doc. 148-14

at 4.)

On February 3, 2015, Ball signed an Employment Agreement with Apex. The

Employment Agreement included a confidentiality provision stating, he “will not make personal

use of, nor disclose to any person or entity, any Confidential Information relating to [Apex].” The

agreement defined “Confidential Information” to mean:

Manuals, processes, methods, techniques, templates, documents, electronic files,

contracts, Referral Sources (as defined below), projected results, supplier lists

(including existing and potential supplier information), pricing, marketing,

computer programs, skills, performance specifications, technical and other data,

designs, schematics, equipment, set-up, billing, samples, products and services

information (including information regarding all existing products and services and

any future or planned products or services), financial information and results and

other information and know-how relating to or useful in the business or operations

of any of the APEX Related Parties.

The agreement also included a “Non-Solicitation of Referral Sources” provision:

For a period of two (2) years after the expiration or termination of Employee’s

employment with the Employer for any reason, and whether voluntary or

1 While Apex primarily has facilities in Missouri, its principal place of business is in Highland,

Illinois.

involuntary and whether for cause or without cause, Employee will not, directly or

indirectly, solicit, and will not directly or indirectly contact any existing Referral

Source or identified prospective Referral Source with whom Employee has had

direct or indirect contact or about whom Employee has learned confidential

information and/or trade secrets by virtue of his/her employment with Employer,

other than Referral Sources that Employer has not had contact with within the two

(2) years immediately preceding the expiration or termination of my employment

with Employer. A “Referral Source” is a person or entity which refers or can refer

patients to Employer, such as a physician, a hospital, a physician assistant, a nurse

practitioner, a nurse case manager, or a business.

Linebarger also signed a confidentiality agreement with the same confidentiality provision as

Ball’s employment agreement. (Doc. 126-9 at 24.) Both agreements signed by Ball and

Linebarger also included a provision regarding any breach of the agreement: “In the event of my

actual or threatened breach or default of this Agreement, Employer shall be entitled to an ex parte

injunction (without notice to or service of process upon Employees) restraining Employee from

any such actual or threatened breach or default.”

Ball left Apex on August 12, 2016, followed by Linebarger five days later on August 17,

2016. Around that time, Linebarger texted an administrative assistant at Apex, saying that they

were “coming back to Springfield with a vengeance.”

From 2014 to 2017, one of Apex’s most important customers was Prime, Inc. Apex

considered Prime, a company in the trucking industry, to be a “referral source” as defined in the

Agreements. Ball and Linebarger had been Prime’s primary points of contact with Apex. While

working at Apex, Linebarger became friends with Apex’s contact at Prime, Matt Rachel.

On February 29, 2016, Prime wrote a testimonial regarding the physical therapy services

provided by Apex. This testimonial was regarded as important for Apex’s entry and expansion as

a physical therapy service provider in the trucking industry. Seven months later, in September

2016 – and just one month after Ball and Linebarger had left their employment at Apex – Apex

saw a nearly identical testimonial from Prime on Advanced’s website. Apex was concerned that

whatever interactions or communication Ball and Linebarger had with Prime could adversely

impact Apex’s relationship with the trucking company. (Doc. 126-14 at 6). And in fact, the

contract Apex then had with Prime expired on February 28, 2017, after Prime did not renew the

contract. The non-renewal letter from Prime stated that the reason for the expiration of the contract

was the company had decided to align its post-offer physical practices with its on-site doctor’s

office. (Doc. 148-2 at 19.)

Apex also had a long-standing relationship (since 2005) with Tyson Foods’ Monett,

Missouri, facility (“Tyson-Monett”). (Doc. 126-41 at 2.) In 2011, Apex had submitted a proposal

to provide its services at Tyson Foods’ Noel, Missouri, facility (“Tyson-Noel”).2 While he was

working at Apex, Ball was the main point of contact for Tyson as he spoke with Tyson supervisors

and visited and treated patients at the Tyson-Monett facility.

After Ball and Linebarger left Apex and opened Advanced in Arkansas, Apex learned Ball

and Linebarger had been in contact with Tyson facilities in the region. In November 2016,

Linebarger contacted the Tyson-Noel facility as well as a Tyson Foods’ facility in Berryville,

Arkansas (“Tyson-Berryville”) to discuss Advanced providing on-site physical therapy at those

locations. Ball followed up a few months later.

Following their departure from Apex, Apex learned Ball and Linebarger had opened

Advanced and had begun providing physical therapy services in northwest Arkansas and it

believed the contacts Ball and Linebarger had with Tyson and Prime after leaving Apex was to

procure business for Advanced. (Doc. 126-14 at 7, 9-10.)

Before taking legal action, Apex contacted the Tyson-Berryville facility itself. Apex had

been “looking into” and had “planned” to expand into northwest Arkansas, although at the time it

initiated a lawsuit against Plaintiffs, Apex did not have any locations in Arkansas. Apex viewed

its expansion within southwest and northwest Arkansas as a means to further serve Tyson’s

facilities beyond the Tyson-Monett facility. (Doc. 126-40 at 4.) However, Apex was not aware

of any specific examples of lost business, or that Apex had been directly damaged or injured by

Advanced, Ball, or Linebarger’s actions. (Docs. 148-12 at 20; 148-40 at 8.)

On December 16, 2016, Apex filed a five-count complaint in Illinois state court against

Ball, Linebarger, and Advanced for breach of contract, tortious interference with business

relations, and conspiracy (the “Illinois Lawsuit”). (Doc. 126-1 at 3-13.) Three days later, on

December 19, 2016, the Illinois state court issued three summonses to be served on Ball,

Linebarger, and Advanced. After a private process server was appointed on December 29, 2016,

Plaintiffs were served in Missouri on January 10, 2017. On February 7, 2017, Plaintiffs (as the

defendants in the Illinois Lawsuit) removed the case to the United States District Court for the

2 It is not clear in the summary judgment record what the outcome was, although it is apparent

Apex did not ever provide services to the Tyson-Noel facility.

Southern District of Illinois. See Apex Physical Therapy, LLC v. Ball, No. 17-cv-00119-JPG-

DGW, 2017 WL 3130241 (S.D. Ill July 24, 2017).

On April 18, 2017, Ball and Linebarger filed a declaratory judgment and injunctive relief

action against Apex in Missouri state circuit court. They asked the Missouri court to declare as

invalid and unenforceable the restrictive covenants in the employee agreements they had signed

while working at Apex. The declaratory judgment action was removed to the United District Court

for the Western District of Missouri, Case No. 6:17-cv-03149-BP, and was subsequently

transferred to the Southern District of Illinois. See Advanced Physical Therapy, LLC v. Apex

Physical Therapy, LLC, 2017 WL 9717215 (W.D. Mo. July 6, 2017). On June 25, 2017, the two

cases were consolidated in the Southern District of Illinois.

On March 29, 2018, Apex amended its complaint to add additional breach of contract

claims. Six months later, on October 1, 2018, Apex caused a subpoena to be issued to Victor

Zuccarello to appear for a deposition in St. Louis, Missouri, to be conducted later the same month

on October 26, 2018. The next day, on October 2, 2018, the district court granted, in part, Ball

and Linebarger’s motion for summary judgment on their counterclaims. See Apex Physical

Therapy, 2018 WL 4737053 (S.D. Ill. Oct. 2, 2018). The court held as invalid and unenforceable

the confidentiality provision of the employment agreements and ordered that the breach of contract

claims be narrowed to “apply no longer to any alleged breaches of the aforementioned

confidentiality provisions.” Id. at *3-4.

On October 9, 2018, Apex caused an additional subpoena to be issued to the corporate

representative of a company, Avansic, for a deposition in Tulsa, Oklahoma, to be conducted on

the same day as the other scheduled depositions (October 26, 2018). Six days later, on October

15, 2018, Apex caused three subpoenas to issue to Carr Athletic Performance & Physical Therapy

and Cory and Jill Carr for a deposition in Orem, Utah, to be conducted on the same day as the

other scheduled depositions. (Advanced contends the information and discovery sought through

all of these depositions pertained only to the portion of the litigation involving the confidentiality

provision.)

On February 12, 2019, the district court granted Advanced, Ball, and Linebarger’s motion

for summary judgment as to the remaining claims. Apex Physical Therapy, 2019 WL 571031

(S.D. Ill. Feb. 12, 2019.) The court held Ball did not breach his employment contract with Apex

and “the undisputed record shows that APEX did not have a reasonable expectancy of entering

into a valid business relationship with the Tyson Foods locations in Arkansas and Noel, Missouri.”

Id. at *4.

Plaintiffs filed the instant lawsuit against Apex in Missouri state court on January 3, 2020.

(Doc. 1-1.) Apex removed the action to this Court on February 7, 2020, based on this Court’s

diversity of citizenship jurisdiction under 28 U.S.C. §§ 1332 and 1441. (Doc. 1.) Plaintiffs filed

an Amended Complaint on March 6, 2020, asserting claims against Apex for malicious prosecution

and abuse of process regarding the Illinois Lawsuit Apex instituted against them, and a separate

claim for computer tampering in violation of Missouri law. (Doc. 16.) Apex now moves for

summary judgment on all three counts.

Standard of Review

“Summary judgment is required if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. Ins. Co. v. Great

Am. Ins. Co., 893 F.3d 1098, 1102 (8th Cir. 2018) (citations and quotation marks omitted). A fact

is material in this context when it “might affect the outcome of the suit under the governing law”

and a genuine dispute is one “such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A moving party is ‘entitled

to judgment as a matter of law’ if the nonmoving party fails to make a sufficient showing of an

essential element of a claim with respect to which it has the burden of proof.” Woodsmith Pub.

Co. v. Meredith Corp., 904 F.2d 1244, 1247 (8th Cir. 1990) (quoting Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986)) (other citation omitted). In ruling on a motion for summary judgment, the

Court views the evidence “in the light most favorable to the nonmoving party and giv[es] the

nonmoving party the benefit of all reasonable inferences.” Id. (quotation marks and citation

omitted). At the summary judgment stage, the movant must “support” its motion either by “citing

to particular parts of materials in the record” or by “‘showing’ – that is, pointing out to the district

court – that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp.,

477 U.S. at 325; see Fed. R. Civ. P. 56(c)(1).

In resisting summary judgment, the nonmoving party may not rest on the allegations in its

pleadings, but must, by affidavit and other evidence, set forth specific facts showing that a genuine

issue of material fact exists. Rule 56(c); see also Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir.

2007) (mere allegations, unsupported by specific facts or evidence beyond a nonmoving party’s

own conclusions, are insufficient to withstand a motion for summary judgment). An “adverse

party may not rely merely on allegations or denials, but must set out specific facts – by affidavits

or other evidence – showing [a] genuine issue for trial.” Tweeton v. Frandrup, 287 F. App’x 541,

541 (8th Cir. 2008) (citing Fed. R. Civ. P. 56(e)). In so doing, the nonmoving party “cannot create

sham issues of fact in an effort to defeat summary judgment.” RSBI Aerospace, Inc. v. Affiliated

FM Ins. Co., 49 F.3d 399, 402 (8th Cir. 1995) (citation omitted).

Discussion

I. Count I – Malicious Prosecution

In Count I of the Amended Complaint, Plaintiffs assert a claim against Apex for malicious

prosecution regarding the Illinois Lawsuit. Plaintiffs allege Apex did not have probable cause to

assert any of the three claims raised against them in the Illinois Lawsuit (breach of contract,

tortious interference, and conspiracy), that Apex brought the lawsuit with malice, and Plaintiffs

suffered damages including attorney’s fees, litigation expenses, loss of revenue and business

opportunity, among others. (Doc. 16 at 14.) Apex argues it is entitled to summary judgment

because it reasonably believed it had a basis to file the lawsuit and Plaintiffs have failed to show

they suffered special injury (as required for a malicious prosecution claim under Illinois law).

Generally, a federal court sitting in diversity jurisdiction applies the substantive law of the

forum state (here, Missouri). Chew v. Am. Greetings Corp., 754 F.3d 632, 635 (8th Cir. 2014).

Under Missouri law, a claim for malicious prosecution requires proof that: (1) an earlier suit was

commenced against the party, (2) the suit was terminated in the party’s favor, (3) the filing party

lacked probable cause for filing the suit, (4) malice in the filing party, and (5) the party sustained

damages. See, e.g., Hobbs v. Consol. Grain & Barge Co., 517 S.W.3d 7, 9-10 (Mo. Ct. App.

2016). In this context, probable cause means the filing party had a reasonable belief in both the

underlying facts and the claims asserted against the opposing party (i.e., the original defendant and

the subsequent malicious prosecution plaintiff).3 See, e.g., Impey v. Clithero, 553 S.W.3d 344,

3 Both Apex and Plaintiffs rely on Missouri law regarding the probable cause element of Plaintiffs’

malicious prosecution claim (Plaintiffs after conducting a choice-of-law analysis). As Apex points out in

its motion for summary judgment, however, no conflict exists between Missouri and Illinois law as to the

probable cause element of a malicious prosecution claim. See, e.g. Davis v. World Credit Fund I, LLC, 543

F. Supp. 2d 953, 956 (N.D. Ill. 2008) (under Illinois law, “[i]n a civil malicious prosecution claim, probable

cause is defined as ‘such a state of facts as would lead a person of ordinary caution and prudence to believe

that he has a justiciable claim to prosecute against the defendant.’”) (citation omitted). Unless a “true

conflict” exists on a pertinent issue, no choice-of-law analysis is required. See Bacon v. Liberty Mut. Ins.

Co., 688 F.3d 362, 366 (8th Cir. 2012); Rangeline Capital, LLC v. Preston, No. 4:16-CV-1428-SNLJ, 2018

WL 2321097, at *3 (E.D. Mo. May 22, 2018) (because no conflict between Missouri and Tennessee law as

353 (Mo. Ct. App. 2018) (probable cause to file a civil action is established if “it appears that a

reasonably prudent person would have believed and acted under the circumstances as did the

person who instigated the previous action”) (citation and quotation marks omitted); see also

Hutchison v. Texas Cty., Mo., No. 09-3018-CV-S-RED, 2010 WL 11509270, at *7 (W.D. Mo.

Dec. 1, 2010) (in a malicious prosecution action, probable cause for the initial suit means “‘a belief

in the facts alleged, based on sufficient circumstances to reasonably induce such belief by a person

of ordinary prudence in the same situation, plus a reasonable belief by such person that under such

facts the claim may be valid under the applicable law’”) (quoting Kelley v. Kelly Res. Grp., Inc.,

945 S.W.2d 544, 549 (Mo. Ct. App. 1997)). Dismissal of the underlying action against the initial

plaintiff does not by itself establish a lack of probable cause in a subsequent malicious prosecution

action. Crawford v. Ryan, No. 12-6068-CV-SJ-REL, 2013 WL 2319360, at *5 (W.D. Mo. May

28, 2013). The dispositive inquiry is “whether under the facts as they reasonably appeared at the

time the suits were filed [initial plaintiffs] had a reasonable basis to believe the claim [asserted]

was valid.” McAninch v. Traders Nat’l Bank of Kansas City, 779 F.2d 466, 470 (8th Cir. 1985)

(citations omitted).

Finally, a claim for malicious prosecution requires proof that the initial plaintiff lacked

probable cause for the entire proceeding. Joseph H. Held & Assoc., Inc. v. Wolff, 39 S.W.3d 59,

63 (Mo. Ct. App. 2001). In other words, a malicious prosecution plaintiff “must show a lack of

probable cause for each claim.” Heberlie v. Harriman Oil Co., LLC, 497 S.W.3d 886, 890 (Mo.

Ct. App. 2016) (citation omitted); see Zahorsky v. Friffin, Dysart, Taylor, Penner & Lay, P.C.,

690 S.W.2d 144, 151 (Mo. Ct. App. 1985). It follows, then, a malicious prosecution defendant (or

the plaintiff in the initial action) is entitled to summary judgment in the subsequent action when

the undisputed facts show the malicious prosecution plaintiff “would be unable to establish a lack

of probable cause” regarding one of the claims asserted in the initial lawsuit. Heberlie, 497 S.W.3d

at 891. Thus, if a malicious prosecution defendant (here, Apex) establishes the undisputed facts

show it had probable cause as to even one claim asserted in the initial lawsuit, it is entitled to

to breach-of-contract element of whether the parties entered an enforceable contract, the Court did not apply

a choice-of-law analysis but instead looked to Missouri law as the forum state); Smith v. Aqua-Care

Marketing, LLC, No. 6:15-CV-03489-BCW, 2017 WL 5957814, at *3 (W.D. Mo. Jan. 31, 2017); Harlan

Feeders, Inc. v. Grand Labs., Inc., 881 F. Supp. 1400, 1404 (N.D. Iowa Mar. 31, 1995) (collecting cases).

Thus, as to the probable cause element, the Court will look to Missouri law, as the law of the forum state.

No choice-of-law analysis is necessary at this point in the analysis.

summary judgment. “Where there is no dispute as to the facts underlying a claim for malicious

prosecution, the question of probable cause is one of law for the court.” Zahorsky, 690 S.W.2d at

152 (citations omitted).

Apex asserted several causes of action against Advanced, Ball, and Linebarger in the

Illinois Lawsuit. Plaintiffs argue the record supports a lack of probable cause for both Apex’s

breach of contract claim brought against Ball and Linebarger and the tortious interference claim

brought against Advanced. Apex argues it is entitled to judgment as a matter of law because

Plaintiffs cannot establish Apex lacked probable cause to bring the claims in the Illinois Lawsuit

(or, stated differently, the undisputed facts demonstrate Apex did have probable cause to bring the

claims against Plaintiffs in the initial lawsuit).

The undisputed facts show Ball and Linebarger were employed by Apex and worked in

Apex’s southwest region of Missouri (Ball, as the regional manager). While at Apex, both Ball

and Linebarger were the primary points of contacts for Prime, and Ball was the primary contact

for Tyson-Monett. Both Ball and Linebarger signed employment agreements prohibiting the

personal use of confidential information (including as to “Referral Sources” and other company

know-how and information). Moreover, Ball’s employment agreement included a non-solicitation

provision prohibiting him from soliciting or contacting Apex’s Referral Sources (including

existing and prospective referral sources the employee has had contact with or learned confidential

information about) for two years after his employment with Apex ended. A “Referral Source” was

defined in the agreement as “a person or entity which refers or can refer patients to Employer, such

as a physician, a hospital, a physician assistant, a nurse practitioner, a nurse case manager, or a

business.”

Advanced was established in July 2016, in northwest Arkansas, approximately one month

before Ball and Linebarger left Apex. In September 2016, only one month after Ball and

Linebarger left Apex, Apex saw a testimonial on Advanced’s website from Prime that was nearly

identical to a testimonial Prime had written for Apex just a few months earlier. It is undisputed

Apex considered Prime to be a “Referral Source” under the agreements. Plaintiffs do not show

“how or why it would have been inappropriate for [Apex] to rely on these uncontroverted facts to

support a reasonable belief that [Ball and Linebarger] might be found to have [breached their

employment agreements].” Vescovo, 628 S.W.3d at 659. Having just left Apex and started

Advanced in the same region where Apex planned to expand, it was apparent Ball and Linebarger

had had some contact with Prime since a testimonial from Prime appeared on Advanced’s website.

Apex had probable cause to believe Ball and Linebarger had breached the employment agreements

at least as to Prime. Cf. Brockman v. Regency Fin. Corp., 124 S.W.3d 43, 48 (Mo. Ct. App. 2004)

(malicious prosecution defendant did not have probable cause to initiate breach of contract claim

when it knew or should have known the sales contract was void because the certificate of title was

not assigned).

Plaintiffs argue Apex did not have probable cause it had been damaged by Ball and

Linebarger’s contacts with Prime because the contract Apex had with Prime simply expired

without a renewal and the reason Prime gave for not renewing the contract had nothing to do with

Advanced or Ball and Linebarger. In the context of this malicious prosecution action, however,

Apex need not establish it had actual knowledge it had been damaged, but only that it had probable

cause to believe it had been damaged by the perceived breach of contract regarding Ball and

Linebarger’s contacts with Prime. The undisputed facts show Apex had probable cause or a

reasonable belief it had been damaged by the perceived breach of the employment agreement as

to confidential information (as related to Prime as a referral source and otherwise from

employment at Apex). That Prime did not renew the contract is not the only basis for Apex’s

reasonable belief it had been damaged by Ball and Linebarger’s perceived breach of the

employment agreement. Additionally, Apex did not just seek monetary damages, but it also sought

injunctive relief against Ball and Linebarger (as specifically provided for in the employment

agreements Ball and Linebarger signed for actual or threatened breach of the agreement).

These facts would lead a reasonably prudent business to believe (1) its (recently) former

employees had breached the confidentiality and non-solicitation provisions of their employment

agreement, and (2) the former employer had been damaged by that breach including the non-

renewal of the contract.

Plaintiffs also argue Apex did not have a reasonable belief that the non-solicitation and

confidentiality provisions in the employment agreements were valid and enforceable. For

instance, Plaintiffs state in their suggestions in opposition to Apex’s motion for summary

judgment: “Apex knew, because it was told prior to the filing of the lawsuit that the confidentiality

provision was unenforceable.” (Id. at 128-29.) Other than being wholly unsupported by the

record,4 “[t]he enforceability of any restrictive covenant is a question of law.” Assoc. Ben. Serv.,

Inc. v. Caremark RX, Inc., 493 F.3d 841, 849 (7th Cir. 2007) (applying Illinois law). And even

though the district court later held that the restrictive covenants were in fact not enforceable, in the

context of a subsequent malicious prosecution claim, this is not dispositive. See Impey, 553

S.W.3d at 353 (citation omitted). Plaintiffs have presented no evidence sufficient to raise a genuine

issue of fact for a jury to find Apex did not reasonably believe the provisions were unenforceable.

The Court is generally inclined to agree with Plaintiffs that a genuine issue of fact exists

whether Apex reasonably believed the employment agreement provisions applied to Tyson-Noel

and Tyson-Berryville (that is, whether Apex reasonably believed those facilities were “referral

sources” as defined by the agreement and were “referral sources” that Apex had contact with two

years prior to Ball and Linebarger’s departure). Nonetheless, Apex is entitled to summary

judgment on Count I in light of the forgoing in the context of this malicious prosecution action.

Under the undisputed facts, Plaintiffs cannot establish Apex lacked probable cause to believe its

breach of contract claim (in whole) was valid, regardless of the actual outcome of the claim. See

Impey, 553 S.W.3d at 353 (“probable cause does not require that a plaintiff initiating a suit would

have prevailed on its claim but instead only requires that a reasonable person have an honest belief

that purs[u]ing the claim [was] proper”) (citation omitted).

Because the Court finds that Plaintiffs cannot establish Apex lacked probable cause to

initiate the Illinois Lawsuit as to the breach of contract claims against Ball and Linebarger, Apex

is entitled to judgment as a matter of law on the entirety of Count I. See, e.g., Vescovo v. Kingsland,

628 S.W.3d 645, (Mo. Ct. App. 2020) (holding the trial court did not err in granting summary

judgment in favor of defendants where plaintiff Vescovo could not establish the absence of

probable cause for defendants to bring the claims asserted in the initial underlying federal lawsuit

against the other five defendants (in addition to plaintiff Vescovo in his official capacity)).

Nonetheless, the Court will also consider Apex’s other arguments. Apex also argues it is

entitled to judgment as a matter of law because it had probable cause to assert the claim for tortious

interference against Advanced in the Illinois Lawsuit. Apex asserted a claim for tortious

4 In support, Plaintiffs cite only to an expert report prepared for this litigation that opines the

restrictive covenants in the employment agreements were not enforceable and Apex could not reasonably

believe they were enforceable. Neither the expert opinion nor Plaintiff’s argument opposing summary

judgment on this point appears to have any basis in fact, whether underlying the expert’s opinion or in the

summary judgment record now before the Court.

interference with a business expectancy against Advanced based on its solicitation (through Ball

and Linebarger) of other Tyson facilities in the area including Tyson-Noel and Tyson-Berryville.

(See Doc. 126-1 at 12.) Under Illinois law, a claim of tortious interference with business

expectancy requires proof of: “(1) a reasonable expectancy of entering into a valid business

relationship; (2) the defendant’s knowledge of the expectancy; (3) the defendant’s intentional and

unjustified interference that prevents the realization of the business expectancy; and (4) damages

resulting from the interference.” Chicago’s Pizza, Inc. v. Chicago’s Pizza Franchise Ltd. USA,

893 N.E.2d 981, 993 (Ill. App. Ct. 2008) (citation omitted).

The undisputed facts in this case show Apex had a long-standing relationship with Tyson-

Monett. When Ball worked at Apex, he was not only regional manager for southern Missouri

where Tyson-Monett was located but was also Apex’s main point of contact at this facility.

Plaintiffs raise no genuine dispute as to any material fact from which a reasonable jury could

conclude Apex lacked probable cause (that is, a reasonable belief in the facts and the claim) that it

had a reasonable expectancy of entering into a valid business relationship with Tyson Foods

generally or at least the Tyson-Noel facility. It is undisputed Apex planned to expand its operations

in southern Missouri and northwestern Arkansas based on the regional presence of other Tyson

facilities (given Apex’s longstanding relationship with the Tyson-Monett facility). Regardless of

the ultimate outcome in the Illinois Lawsuit (including the district court’s conclusion that Apex

did not have a valid expectancy sufficient to support a tortious interference claim), Plaintiffs have

failed to raise any genuine dispute as to the material facts on which Apex argues it is entitled to

judgment as a matter of law. Instead, Plaintiffs argue (without legal support) Apex is collaterally

estopped from asserting an “honest and reasonable belief” in a business expectancy based on the

district court’s decision in the Illinois Lawsuit. This unsupported argument is not persuasive,

however. The doctrine of collateral estoppel operates to prevent re-litigation of issues previously

and finally decided on the merits between parties. See, e.g., Air Line Pilots Ass’n Int’l v. Trans

States Airlines, LLC, 638 F.3d 572, 579 (8th Cir. 2011). At a minimum, the operative issue in this

case is not whether Apex did have a reasonable expectancy of a valid business relationship (the

issue previously decided in the Illinois Lawsuit) but instead whether at the time the lawsuit was

filed Apex had probable cause or a reasonable belief it had a claim for tortious interference with

business expectancy against Advanced. And the undisputed facts in this case show Apex did have

probable cause to assert the claim.

Plaintiffs also assert the undisputed facts show Apex only reached out to Tyson’s Berryville

and Noel facilities after Ball and Linebarger had left. Even if true, these facts do not establish

Apex lacked probable cause or a reasonable belief its relationship with Tyson-Monett, interactions

with Tyson’s other regional facilities, and planned expansion into northwest Arkansas in light of

the regional Tyson facilities, combined with Ball and Linebarger’s contact with these Tyson

facilities on behalf of Advanced reasonably supported a tortious interference with a business

expectancy claim. Indeed, the undisputed facts establish Apex had probable cause to assert this

claim for tortious interference against Advanced.5

For the reasons stated above, Apex’s motion for summary judgment as to Count I is

GRANTED.

II. Count II – Abuse of Process

Apex also argues it is entitled to summary judgment on Count II, a claim for abuse of

process. Apex argues it is entitled to judgment as a matter of law because the undisputed facts

show Plaintiffs cannot establish that it misused the legal process in the Illinois Lawsuit or that

Plaintiffs suffered special damages, as required by Illinois law for an abuse-of-process claim.

Under Missouri law a claim for abuse of process requires evidence to establish: “(1) the

present defendant made an illegal, improper, perverted use of process, a use neither warranted nor

5 Plaintiffs also argue Apex is not entitled to summary judgment because it did not have probable

cause to believe the Illinois court could exercise personal jurisdiction over them. Plaintiffs cite no legal

authority in support of this argument, nor is this argument persuasive. Advanced did challenge the personal

jurisdiction of the Illinois courts in the initial proceeding – which the district court rejected. See Apex, 2017

WL 3923368, at *2-3 (S.D. Ill. Sept. 7, 2017). It does not appear Ball or Linebarger asserted a personal-

jurisdiction challenge. In malicious prosecution claims, the existence of probable cause is conclusively

established by “[a] judgment or finding in plaintiff’s favor in the underlying proceeding.” Wolff, 39 S.W.3d

at 63 (citing Ripley v. Bank of Skidmore, 198 S.W.2d 861, 864 (Mo. 1947)). Under this rationale, Apex had

probable cause to believe the Illinois courts had personal jurisdiction over Advanced, an issue conclusively

decided in Apex’s favor within the Illinois Lawsuit. Moreover, to the extent the Illinois Lawsuit was

determined in Ball and Linebarger’s favor, this outcome presumes and indeed rests on the court having

jurisdiction over Ball and Linebarger. Plaintiffs provide no legal authority or support for their argument

that a malicious prosecution claim may be brought on the basis of a lack of personal jurisdiction when the

initial lawsuit was decided on the merits (rather than, for instance, being dismissed for lack of personal

jurisdiction). At least one court has rejected the argument that lack of probable cause in a malicious

prosecution action can be inferred from jurisdictional error such as lack of personal jurisdiction, even where

the jurisdictional error was found to exist in the initial proceedings. See Tomai-Minogue v. State Farm Mut.

Auto Ins. Co., 770 F.2d 1228, 1237 (4th Cir. 1985) (applying Maryland law). The time to challenge the

personal jurisdiction of the Illinois courts over Plaintiffs in the initial lawsuit was then, not now in a

subsequent action for malicious prosecution after the initial litigation was decided on the merits.

authorized by the process; (2) the defendant had an improper purpose in exercising such illegal,

perverted or improper use of process; and (3) damage resulted.” Nichols v. Harbor Venture, Inc.,

284 F.3d 857, 861 n.4 (8th Cir. 2002) (quoting Stafford v. Muster, 582 S.W.2d 670, 678 (Mo. banc

1979)). “The essence of a claim for abuse of process is the use of process for some collateral

purpose.” Vescovo, 628 S.W.3d at 662 (citation and quotation marks omitted). A plaintiff’s

motives in pursuing a lawsuit are relevant only to the second element of an abuse of process claim

(that is, “proof that use of process was employed for an improper purpose”); a plaintiff’s motives

are not relevant “to determining whether process was used in an unwarranted or unauthorized

manner.” Id. at 62-63. Stated differently:

An abuse of process claim is not appropriate where the action is confined to its

regular function even if the plaintiff had an ulterior motive in bringing the action,

or if the plaintiff knowingly brought the suit upon an unfounded claim. It is where

the claim is brought not to recover on the cause of action stated, but to accomplish

a purpose for which the process was not designed that there is an abuse of process.

Stone v. J&M Sec’y, LLC, No. 4:20 CV 352 SPM, 2020 WL 5909788, at *8 (E.D. Mo. Oct. 6,

2020) (citation and quotation marks omitted); see also Pipefitters Health & Welfare Trust v. Waldo

R., Inc., 760 S.W.2d 196, 198-99 (Mo. Ct. App. 1988) (“It must be shown that process has been

used to accomplish an unlawful end or to compel the defendant to do something which he could

not be compelled to do legally. No liability attaches where a party has done nothing more than

pursue the lawsuit to its authorized conclusion regardless of how evil a motive he possessed at the

time.”) (citation omitted); Herring v. Behlmann, 734 S.W.2d 311, 313 (Mo. Ct. App. 1987) (“the

foundation of a suit for abuse of process is that the previous claim was brought for a collateral

purpose”) (citation omitted).6

6 Under Illinois law, an abuse of process claim is established upon a showing (1) a plaintiff

“possessed some ulterior purpose or motive, and (2) performed some act in the use of the legal process not

proper in the regular prosecution of the proceedings.” Neil v. Nesbit, No. 13-cv-03809, 2014 WL 4897315,

at *4 (N.D. Ill. Sept. 27, 2014) (citation omitted). That is, a plaintiff must establish the proceedings were

instituted “for an improper purpose, such as extortion, intimidation, or embarrassment” and that “the

process was used to accomplish some result that is beyond the purview of the process.” Neurosurgery &

Spine Surgery, S.C. v. Goldman, 790 N.E.2d 925, 930 (Ill. App. Ct. 2003) (citations omitted). “When

process is used only for its intended purpose, there has been no misapplication of process.” Id. (citation

omitted). Even if, as Apex claims, Illinois law differs from Missouri law by requiring a showing of “special

injury,” see also Neil, 2014 WL 4897315, at *4, the Court need not undertake a choice-of-law analysis here,

either, where there is no conflict as to the relevant issue – that is, whether process was used to accomplish

an unlawful end or a result beyond the purview of the process.

Apex argues the undisputed facts fail to show it misused process to accomplish an unlawful

or improper end because the “process” underlying Plaintiffs’ claim – the summonses, subpoenas,

and order appointing a process server – were used for their intended purpose.

Plaintiffs first argue the process was used to accomplish an unlawful purpose by forcing

them to defend themselves in the State of Illinois, where the court could not properly exercise

personal jurisdiction over them. Missouri law is clear that “there is no liability for abuse of process

when a party has done nothing more than pursue a lawsuit to its authorized conclusion” and “‘the

action is confined to its regular and legitimate function in relation to the cause of action in the

complaint,’” even if the plaintiff “‘knowingly brought suit upon an unfounded claim.’” Schlafly

v. Cori, __ S.W.3d __, 2021 WL 3729655, at *3 (Mo. Ct. App. 2021) (quoting Wells v. Orthwein,

670 S.W.2d 529, 532 (Mo. Ct. App. 1984)) (other citation omitted). “The difference between a

claim for malicious prosecution and abuse of process is not the commencement of an action

without justification but the misuse of process for an end other than that which it was designed to

accomplish.” Diehl v. Fred Weber, Inc., 309 S.W.3d 309, 320 (Mo. Ct. App. 2010) (citation

omitted). This argument is without merit.

The record in this case is devoid of evidence that would permit a jury to conclude Apex

filed suit against Plaintiffs for an improper purpose. More importantly, even if the court had found

it lacked personal jurisdiction, such finding does not itself satisfy either element of a claim for

abuse of process. A case being dismissed for lack of jurisdiction or, as is the case here, the court

rejecting a jurisdictional challenge and the case being resolved on its merits (indicating the court

had jurisdiction over the parties), represents nothing more than the pursuit of a lawsuit to its natural

conclusion; in either case, a conclusion entirely within the court’s regular and legitimate function.

Were Plaintiffs’ argument correct, it would mean every time a court dismissed a cause of action

for lack of personal jurisdiction, an abuse of process claim would lie. Clearly the law requires

something more. See Pipefitters Health, 760 S.W.2d at 198-99. A tort claim for abuse of process

is not an avenue through which a party can challenge personal jurisdiction of the initial court. This

argument does not show Apex did anything other than “pursue the lawsuit to its authorized

conclusion.” Filing the lawsuit and pursuing it to summary judgment after Advanced challenged

personal jurisdiction (and lost) or waived it altogether by not raising it does nothing to demonstrate

Apex filed the lawsuit to accomplish an improper collateral purpose.7

Second, Plaintiffs argue the subpoenas issued to third parties in this case were used to

accomplish an unlawful end. Specifically, Plaintiffs argue, at the time the subpoenas were

employed (and before some were issued), discovery had been limited to breach of the non-

solicitation provision (by operation of the district court’s first summary judgment order in favor

of Ball and Linebarger, holding the confidentiality provision as unenforceable). Plaintiffs argue

in support of summary judgment the persons and businesses to whom these subpoenas were

directed only had discoverable evidence or information related to the confidentiality provision.

Effectively, Plaintiffs assert the subpoenas were employed or issued regarding evidence that was,

at that time, not discoverable. Apex argues, like the summonses, the subpoenas were issued in

accordance with the law and procedures and were not used in a manner outside their designed

purpose or use. The record is devoid of evidence – indeed Plaintiffs do not attempt to argue – the

subpoenas were used in an unlawful manner to accomplish a collateral purpose outside the course

of litigation. That Apex may have had an improper purpose to the extent that any one of these

subpoenas were issued after the scope of discovery was limited to the non-solicitation provision

of the employment agreements and any of the depositions then occurred is not enough without

facts showing the subpoenas were used to accomplish some improper collateral purpose.

Therefore, Apex’s motion for summary judgment as to Count II (Doc. 122) is GRANTED.

III. Count III – Missouri Computer Tampering Act

Finally, Apex argues it is entitled to summary judgment on Count III of the Amended

Complaint, asserting a claim under the Missouri Computer Tampering Act (“MCTA”). In Count

III, Plaintiffs allege Apex violated the MCTA by accessing, examining, modifying, and taking data

from Linebarger’s email account, including a marketing log he had created, and taking and using

Linebarger’s password to access his email account.

7 Plaintiffs’ argument that, in the course of the ensuing litigation they were required to engage in

exchange of discovery they would otherwise not have been required to produce to Apex fails for the same

reason. Filing a lawsuit and pursuing it to its authorized conclusion (whether dismissal for lack of

jurisdiction, judgment on the merits, etc.) and the incidents of such litigation, including discovery, do not,

without something more, establish a claim of abuse of process. In essence, Plaintiffs’ argument is not that

Apex sought discovery from Plaintiffs for an improper purpose but simply that the discovery itself would

not have occurred but for the lawsuit. In all civil cases, discovery exchanged may not ordinarily be obtained

but for the civil lawsuit and the Federal Rules of Civil Procedure under which such discovery is had. A

claim for abuse of process requires something more.

In the Amended Complaint in this case, Plaintiffs allege Apex produced in the course of

discovery in the Illinois Lawsuit a marketing log Linebarger had prepared. Plaintiffs allege

Linebarger had created the marketing log on his personal computer for Advanced and had emailed

the marketing log only to Ball and his wife, Jaimie Ball. The Amended Complaint further alleges

after the marketing log had been produced by Apex in discovery, Linebarger reviewed his email

account and discovered his personal email account had been accessed, including the email to Ball

and his wife containing the marketing log. Plaintiffs allege the email containing the marketing log

had been forwarded on December 2, 2016, to an email address (“bsimpson80@gmx.com”) which

Linebarger was not familiar with, and that Linebarger had not forwarded the email himself.

The summary judgment record establishes that at some point, Linebarger prepared a

marketing log on his personal computer documenting efforts he had made to introduce himself and

Ball to businesses in northwest Arkansas. Linebarger forwarded the marketing log to Ball and

Ball’s wife at their “@advancedptonline.com” email addresses from his personal email account.

On December 2, 2016, the marketing log was forwarded from Linebarger’s email to another email

address, “bsimpson80@gmx.com.” Apex later produced the marketing log Linebarger had created

in discovery conducted during the Illinois Lawsuit.

Section 569.095, RSMo, establishes “the offense of tampering with computer data” as:

“knowingly and without authorization or without reasonable grounds to believe that he has such

authorization:

(1) Modifies or destroys data or programs residing or existing internal to a

computer, computer system, or computer network; or

(2) Modifies or destroys data or programs or supporting documentation residing or

existing external to a computer, computer system, or computer network; or

(3) Discloses or takes data, programs, or supporting documentation, residing or

existing internal or external to a computer, computer system, or computer network;

or

(4) Discloses or takes a password, identifying code, personal identification number,

or other confidential information about a computer system or network that is

intended to or does control access to the computer system or network;

(5) Accesses a computer, a computer system, or a computer network, and

intentionally examines information about another person;

(6) Receives, retains, uses, or discloses any data he knows or believes was obtained

in violation of this subsection.

Mo. Rev. Stat. § 569.095.1. Section 537.525 creates a civil cause of action for, in part, the violation

of § 569.095 by “the owner or lessee of the computer system, computer network, computer

program, computer service or data.” Mo. Rev. Stat. § 537.525.1. The statute authorizes recovery

of “compensatory damages, including any expenditures reasonably and necessarily incurred by the

owner or lessee to verify that a computer system, computer network, computer program, computer

service, or data was not altered, damaged, or deleted by the access.” Id.

A. Standing as to Ball and Advanced to Assert a Claim under the MCTA

First, Apex argues it is entitled to summary judgment because neither Ball nor Advanced

have standing to bring a claim under the MCTA. Apex argues Ball cannot establish standing

because he is not an “owner or lessee” of Linebarger’s private email account or the marketing log,

which Apex also argues is not “data” under the MCTA. Apex also argues Advanced cannot

establish standing because the marketing log is not “data” under the MCTA.

As defined under Missouri law, “data” in the context of the MCTA means “a representation

of information, facts, knowledge, concepts, or instructions prepared in a formalized or other

manner and intended for use in a computer or computer network,” and includes “any form . . . as

may be stored in the memory of a computer.” Mo. Rev. Stat. § 556.061(21). In part, when data is

modified, destroyed, disclosed, taken, received, retained, used or disclosed in violation of

§ 569.095, § 537.525 authorizes a civil lawsuit by the “owner or lessee of the . . . data.”

As a document attached to an email, the marketing log is “intended for use in a computer

or computer network” and is in a form that “may be stored in the memory of a computer.” Apex

argues in its reply brief, without citation, that Advanced cannot establish standing because “there

is no evidence the marketing log was intended, by Advanced, for use on a computer or computer

network.” (Doc. 161 at 14.) This argument, presented without any citation to legal authority,

bears little persuasive value in light of the statutory language set forth above. Whether something

is “data” under the MCTA is independent from whether an individual person or entity is authorized

to bring a civil lawsuit for a violation of the MCTA. Apex concedes Advanced is an “owner” of

the marketing log created by Linebarger and emailed to Ball at his “@advancedptonline.com”

email address. Advanced has standing to pursue a claim under the MCTA.

Apex also argues Ball does not have standing in his individual capacity to pursue a claim

under the MCTA. This argument is also unpersuasive. Linebarger emailed the marketing log to

Ball at his “@advancedptonline.com” email address. The email and its attached marketing log are

“data” within the context of the MCTA. See, e.g., W. Blue Print Co., LLC v. Roberts, 367 S.W.3d

7, 21 (Mo. banc 2012) (finding substantial evidence defendant violated the MCTA by deleting or

copying “computer data” consisting of documents and emails from a computer). It is undisputed

Linebarger sent the email and its attachment to Ball, Advanced’s owner, at an email account,

“@advancedptonline.com.” The Court finds, viewing the evidence in a light most favorable to

Plaintiffs and giving Plaintiffs the benefit of all reasonable inferences, Ball also has standing under

the MCTA to assert a claim.

For these reasons, Apex’s motion for summary judgment as to Count III based on Ball and

Advanced’s standing to assert a claim under the MCTA is DENIED.

B. Lack of Recoverable Damages under the MCTA

Next, Apex argues it is entitled to judgment as a matter of law because Plaintiffs present

no evidence of recoverable damages under the MCTA. Apex asserts Plaintiffs’ “sole theory of

damages” for this claim is that but for Apex’s discovery of the marketing log, it would not have

filed the Illinois Lawsuit against Plaintiffs, and therefore Plaintiffs’ damages are damages resulting

from the Illinois Lawsuit itself. (Doc. 125 at 8.) Plaintiffs do not dispute this is its theory of

damages. At a minimum, a question of fact exists as to the extent of the role the marketing log

played in Apex’s decision to file the Illinois Lawsuit against Plaintiffs. It is not the role of the

Court at summary judgment to weigh the evidence and determine whether the marketing log

caused or contributed to Apex’s decision to file the Illinois Lawsuit against Plaintiffs. At a

minimum, the record shows Apex obtained the marketing log shortly before the Illinois Lawsuit

was filed and Steven Oravec (as corporate representative for Apex) testified the marketing log in

particular formed the basis, at least in some part, for Apex’s belief Plaintiffs breached a duty owed

the company. (Doc. 151-10 at 24.)

Apex also argues it is entitled to summary judgment because the damages Plaintiffs seek

are not recoverable under the MCTA. Section 537.525.1 authorizes recovery in a civil action for

“compensatory damages.” See Roberts, 367 S.W.3d at 20 (“Section 537.525.1 permits the owner

or lessee of the computer system or network [or data] to bring a civil action . . . for any

compensatory damages incurred and attorney’s fees.”). Apex argues Plaintiffs’ theory of damages

as those connected to the subsequent Illinois Lawsuit (including attorney’s fees expended in that

initial lawsuit, lost profits, lost salary, and mental anguish, among others) is too attenuated from

the alleged violation of the MCTA. Thus, to the extent the claim for compensable damages on

which Plaintiffs’ MCTA claim rests is wrapped up in the issue of causation, it is best left to a fact-

finder to weigh the evidence and conclude whether (1) Apex violated the MCTA concerning the

marketing log and (2) the marketing log caused Apex to file the Illinois Lawsuit against Plaintiffs.

Because the MCTA allows for “compensatory damages,” the Court finds the question of

reasonable damages is best left to a jury.

For these reasons, Apex’s motion for summary judgment as to Count III based on the

damages Plaintiffs seek to recover under the MCTA is DENIED.

C. Lack of Evidence to Support Specific Damages

Finally, Apex argues it is entitled to summary judgment on Count III because Plaintiffs

have failed to (1) present admissible evidence Ball or Linebarger incurred attorney’s fees and lost

profits as a result of the Illinois Lawsuit, (2) establish Advanced’s lost profits with a reasonable

degree of certainty, and (3) present sufficient evidence to establish Ball and Linebarger suffered

financial damages as a result of Advanced’s payment of attorney’s fees in the Illinois Lawsuit.

1. Ball and Linebarger’s Claims for Damages of Attorney’s Fees, Lost

Profits, and Financial Damages

First, there is no dispute that neither Ball nor Linebarger paid attorney’s fees regarding the

Illinois Lawsuit. Plaintiffs concede neither Ball nor Linebarger “seek recovery for those damages

nor . . . of Advanced[’s] lost profits.” (Doc. 144 at 102.) Second, Apex argues Ball and Linebarger

have failed to present sufficient evidence to establish financial damages they suffered because of

Advanced’s payment of attorney’s fees regarding the Illinois Lawsuit including lack of pay

increases, not taking a salary, and Ball’s sale of land because of the expenses Advanced had to

bear to defend against the Illinois Lawsuit.

Generally, “[t]he amount of damages is a question of fact.” Randy Kinder Excavating, Inc.

v. J.A. Manning Constr. Co., Inc., 899 F.3d 511, 520 (8th Cir. 2018) (citing High Life Sales Co. v.

Brown-Forman Corp., 823 S.W.2d 493, 502 (Mo. banc 1992)). “Under Missouri law, the plaintiff

[is] not required to prove the exact amount of his damages, but only to produce evidence which

established [the fact of damages] with reasonable certainty.” Margolies v. McCleary, Inc., 447

F.3d 1115, 1121 (8th Cir. 2006) (citation and quotation marks omitted). Ball testified he had to

sell a parcel of land he owned to “keep the business afloat” because of the Illinois Lawsuit. (Doc.

36 at 15.) Additionally, Ball testified he was unable to take a salary during the pendency of the

Illinois Lawsuit. (Doc. 17 at 15; see also Doc. 143 at 94, ¶ 258 (admitting this fact for purposes

of summary judgment)). Finally, it is undisputed Linebarger testified he did not receive pay

increases as quickly as he would have as a result of the financial burden of the Illinois Lawsuit on

Advanced. (Doc. 143 at 94, ¶ 94.) Given the summary judgment record at this point, Apex’s

motion for summary judgment on Count III as to Ball and Linebarger’s failure to present evidence

as to certain claimed damages is DENIED.

2. Advanced’s Claim for Damages of Lost Profits

Finally, Apex argues it is entitled to summary judgment on Count III inasmuch as

Advanced seeks damages for lost profits. In support of Advanced’s claim for lost profits resulting

from the Illinois Lawsuit, Apex relies solely on expert testimony and an expert report prepared by

Advanced’s retained expert, Brittany Hopp. Hopp calculated the “value of damages to Advanced

Physical Therapy LLC related to the lawsuit brought by Apex Physical Therapy LLC as of March

29, 2021,” at $368,809. The parties appear to agree resolution of this argument on summary

judgment turns on the admissibility of Hopp’s expert testimony in light of a motion to exclude that

Apex has filed under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579 (1993). (Doc. 128). Advanced does not contest the only evidence as to

Advanced’s lost profits is Hopp’s expert testimony. Accordingly, the Court will now turn to

Apex’s motion to exclude, which is fully briefed. (Docs. 129, 136, 153.)

Federal Rule of Evidence 702, amended after Daubert, provides the standard for the

admission of expert testimony:

A witness who is qualified as an expert by knowledge, skill, experience, training,

or education may testify in the form of an opinion or otherwise if: (a) the expert’s

scientific, technical, or other specialized knowledge will help the trier of fact to

understand the evidence or to determine a fact in issue; (b) the testimony is based

on sufficient facts or data; (c) the testimony is the product of reliable principles and

methods; and (d) the expert has reliably applied the principles and methods to the

facts of the case.

Fed. R. Evid. 702. Based on Rule 702, the Eighth Circuit relies on a three-part test to determine

the admissibility of expert testimony:

First, evidence based on scientific, technical, or other specialized knowledge must

be useful to the finder of fact in deciding the ultimate issue of fact. This is the basic

rule of relevancy. Second, the proposed witness must be qualified to assist the

finder of fact. Third, the proposed evidence must be reliable or trustworthy in an

evidentiary sense, so that, if the finder of fact accepts it as true, it provides the

assistance the finder of fact requires.

Lauzon v. Senco Prod. Inc., 270 F.3d 681, 686 (8th Cir. 2001) (internal quotations and citations

omitted). The rules for the admissibility of expert testimony favor admission over exclusion. Id.

Here, Apex challenges only the reliability of Hopp’s expert testimony and report. “To

satisfy the reliability requirement, the proponent of the expert testimony must show by a

preponderance of the evidence both that the expert is qualified to render the opinion[8] and that the

methodology underlying h[er] conclusions is scientifically valid.” Marmo v. Tyson Fresh Meats,

Inc., 457 F.3d 748, 758-59 (8th Cir. 2006). The traditional method for challenging the conclusions

of an expert is through cross-examination. Lipp v. Ginger C, L.C.C., 2017 WL 277579, at *14

(W.D. Mo. Jan. 19, 2017). “Attacks on the foundation of an expert’s opinion and conclusions, and

the completeness of the expert’s methodology, go to the weight rather than the admissibility of the

expert’s testimony.” Id. (citation and quotation marks omitted). However, expert testimony must

be excluded when the opinion “is so fundamentally unsupported that it can offer no assistance to

the jury.” Meterlogic, Inc. v. KLT, Inc., 368 F.3d 1017, 1019 (8th Cir. 2004) (citation and quotation

marks omitted). “Expert testimony is inadmissible if it is speculative, unsupported by sufficient

facts, or contrary to the facts of the case.” Marmo, 457 F.3d at 759.

After review of the motions and their supporting materials, the Court concludes that the

reasoning and methodology underlying Hopp’s methodology can be applied to the facts of this

case. To calculate lost profits, Hopp reviewed Advanced’s tax and financial records, including

monthly income and expense data for each of Advanced’s six locations (other than the Rogers,

Arkansas, location). She calculated a monthly operating profit for each location by subtracting

from that location’s net income certain non-operating expenses (interest income, legal fees for the

Illinois Lawsuit, and charitable contributions) for December 2016 (the first month of the Illinois

Lawsuit) through March 2020 (a year after the lawsuit was concluded). The operating profit of

each location (encompassing the particular location’s opening and operating costs, as well as

profits) was shifted to an earlier time based on when Advanced’s Chief Financial Officer, Jaimie

8 Apex does not argue Hopp is not qualified to render an expert opinion.

Ball, determined the location would have been opened but for the burden (financial and otherwise)

of the Illinois Lawsuit.

This methodology seems to fairly encompass what Apex posits as the correct methodology

for calculating lost profits in Missouri. (See Doc. 129 at 9) (citing Ameristar Jet Charter, Inc. v.

Dodson Int’l Parts, Inc., 155 S.W.3d 50, 55-56 (Mo. banc 2005) (holding lost profits are generally

calculated by deducting overhead expenses (including fixed and variable expenses; and in tort

actions only variable expenses, not fixed expenses) from estimated lost revenues)). To the extent

Apex challenges the completeness of Hopp’s expert analysis, this is a topic to be pursued on cross-

examination and is an issue that goes to the weight of her testimony rather than its admissibility.

Apex also argues Hopp’s expert testimony is inherently unreliable due to her use of

terminology that is more appropriate in a “business valuations” context than a litigious calculation

of lost profits analysis. In addition, Apex points to Hopp’s stated reliance on the Statement for

Standards of Valuation Services that, Apex contends, by its terms does not apply when determining

economic damages including lost profits. These are issues of credibility that go to the weight of

Hopp’s expert testimony, not its reliability or admissibility under Daubert and the Federal Rules

of Evidence. This is particularly so because it does not appear the “standards” Hopp referenced

and those Apex contends she should have referenced otherwise prescribe a particular methodology

for calculating lost profits, but more so concern issues of professional responsibility. While a topic

for cross-examination, this does not go to the admissibility of Hopp’s expert testimony and report

either.

Apex also argues Hopp’s testimony should be excluded because it is not based on sufficient

facts and data. “As a general rule, the factual basis of an expert opinion goes to the credibility of

the testimony, not the admissibility . . . [It is o]nly if the expert’s opinion is so fundamentally

unsupported that it can offer no assistance to the jury [that] such testimony must be excluded.”

Children’s Broadcasting Corp. v. Walt Disney Co., 357 F.3d 860, 865 (8th Cir. 2004) (citation and

quotation marks omitted). Apex argues Hopp’s expert testimony is fundamentally unsupported as

a factual matter because she lacked sufficient data for Advanced’s income and expenses prior to

the lawsuit, her analysis rests on unsupported and unverified assumptions by Advanced that a

location would have opened earlier but for the Illinois Litigation, and she failed to consider

alternative explanations for Advanced’s lost profits.

Generally, under Missouri law “anticipated profits of a commercial business are too remote

and speculative to warrant recovery.” Tipton v. Mill Creek Gravel, Inc., 373 F.3d 913, 918 (8th

Cir. 2004) (citation omitted). Anticipated profits – or more accurately, based on Advanced’s

theory of damages here, profits that could have been received earlier but for Defendant’s violation

of the MCTA – “may be recovered when ‘they are made reasonably certain by proof of actual

facts, with present data for a rational estimate of their amount.’” Indep. Bus. Forms, Inc. v. A-M

Graphics, Inc., 127 F.3d 698, 703 (8th Cir. 1997) (quoting Coonis v. Rogers, 429 S.W.2d 709, 714

(Mo. 1968)) (other citations omitted). Generally, “‘loss of profits’ refers to the amount of net

profits that the plaintiff would have realized in the usual course of business” but for defendant’s

unlawful actions. Refrig. Indus., Inc. v. Nemmers, 880 S.W.2d 912, 920 (Mo. Ct. App. 1994)

(citation omitted). To recover, a plaintiff must establish (1) defendant’s tortious conduct caused

the lost profits, and (2) the amount or extent of the lost profits. Id.

Here, Advanced’s theory of lost profits is not “forward-focused” in the sense that Apex’s

alleged tortious conduct caused Advanced to lose out on a future profit it otherwise would have

obtained. Rather, Advanced’s theory of lost profits is a “back-in-time” theory that, but for Apex’s

alleged tortious conduct in violating the MCTA (which, in turn, caused Apex to file the Illinois

Lawsuit against Plaintiffs), it would have opened the other locations earlier thus receiving profits

from the operation of those location earlier. In this way, the profits Advanced asserts it lost are

not so much “anticipated profits” in the traditional sense, see Wash Solutions, Inc. v. PDQ Mfg.,

Inc., 395 F.3d 888, 893 (8th Cir. 2005) (noting the rule in Missouri “expected future profits may

be extrapolated with reasonable certainty from historical evidence of the income and expenses of

the business prior to the damaging event”) (citing Tipton), but rather Advanced asserts as damages

actually realized profits it could have earned (and been earning) earlier. The Court finds in the

specific factual context of this case Hopp’s expert testimony is not fundamentally unsupported

because it does not rest on Advanced’s income and expenses prior to the Illinois Lawsuit. Instead,

Hopp’s expert testimony rests on the actual profits each location earned after it had been opened,

and to determine Plaintiffs’ “lost profits” shifts them to an earlier time when, according to

Advanced’s Chief Financial Officer, the locations would have been opened but for the burdens of

the Illinois Lawsuit.

Apex further argues Hopp’s expert testimony is fundamentally unsupported because it

relies on unsupported projections from Advanced’s Chief Financial Officer, Jaimie Ball, as to

when each particular location or program would (or could) have been opened but for the Illinois

Lawsuit. “An expert is permitted to rely on assumptions that are supported by the record.” Donner

v. Alcoa Inc., 2014 WL 12600281, at *5 n.10 (W.D. Mo. Dec. 19, 2014) (citation omitted). Stated

differently, “[a]n expert’s opinion, where based on assumed facts, must find some support for those

assumptions in the record.” McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 801 (6th Cir. 2000)

(citing Shaw v. Strackhouse, 920 F.2d 1135, 1142 (3d Cir. 1990)). “The district court must exclude

expert testimony if it is so fundamentally unsupported that it can offer no assistance to the jury,

otherwise, the factual basis of the testimony goes to the weight of the evidence.” Meterlogic, 368

F.3d at 1019 (citation and quotation marks omitted).

The factual assumption on which Hopp’s lost-profits analysis admittedly rests is the point

in time at which Advanced would have opened the other locations and programs but for the burdens

(financial and otherwise) of the Illinois Lawsuit (itself a product of Apex’s alleged violation of

MCTA). Hopp indicated in her deposition testimony that she relied on projections from Advanced

and looked only for a positive – or more specifically a “not negative” – cash flow for the company

at the given projected time in performing her analysis. For support in the record, Advanced points

to deposition testimony by Jaimie Ball, Advanced’s Chief Financial Officer. Jaimie Ball testified

at her deposition that, at least for a few of the locations, she looked at the cash flow that existed

(taking out the attorneys’ fees for the Illinois Lawsuit) and whether it would have been possible to

open those locations at that time but for the Illinois Lawsuit cost.9 (See Doc. 136-10 at 8-10.)

Hopp testified she did a “reasonableness check” on these assumptions based on what Jaimie Ball

told her the earlier opening timeframe would have been, the cash flow that existed at that time, and

the expense of opening the particular location.

“[A party]’s mere disagreement with the assumptions [on which the analysis is performed

or the assumptions underlying the expert’s opinion] . . . does not warrant exclusion of expert

testimony.” Synergetics, Inc. v. Hurst, 477 F.3d 949, 956 (8th Cir. 2007) (citing Daubert, 509

U.S. at 596) (other citation omitted). The underlying assumptions on which Hopp’s expert opinion

and report are based – particularly, Jaimie Ball’s determination as Chief Financial Officer when

9 For other locations, Jaimie Ball testified only speculatively when they would have opened earlier

but for the time and emotional burdens of the Illinois Lawsuit, as well as the opening of other locations that

were not impacted by the burdens of the Illinois Lawsuit. Nonetheless, the question at this stage is not a

matter of quantifying a specific amount of lost-profits damages Advanced may or may not ultimately be

entitled to, but whether it has presented evidence of some amount of lost-profits damages.

specific locations would have opened earlier but for the burdens of the Illinois Lawsuit – are

certainly a topic for cross-examination and adversarial testing at trial. The Court does not find,

however, that Hopp’s reliance on Jaimie Ball’s analysis (which is supported by deposition

testimony in the record) renders her expert testimony and expert opinion so fundamentally

unsupported that it would offer no assistance to the jury. Cf. US Salt, Inc. v. Broken Arrow, Inc.,

563 F.3d 687, 691 (8th Cir. 2009) (holding district court did not abuse its discretion in excluding

expert testimony as to a company’s lost profits that relied on “speculative estimates” provided by

the company’s president in deposition that he had been given “different estimates” as to the volume

of salt the customer expected to buy from the company, admitted he had “no way of verifying

those estimates” until he started production, and “testified that he was not able to obtain a written

commitment from any customer regarding how much they would pay for solar salt”).

Finally, to the extent Apex argues Hopp’s analysis must be excluded because she did not

consider alternative explanations for Advanced’s lost profits, the Court notes Hopp’s expert report

and testimony opine on the amount of lost profits Advanced suffered, rather than whether the

Illinois Lawsuit caused Advanced to suffer lost profits (a key assumption on which her analysis

necessarily relies).

For the reasons explained above, Apex’s motion to exclude the expert testimony of Hopp

(Doc. 129) is DENIED.

Because Hopp’s expert testimony is not excluded at this time, Apex’s motion for summary

judgment as to Count III based on the evidence Advanced has presented to prove its claim for lost

profits is without merit and is DENIED.

Conclusion

Accordingly, for the reasons above, it is ORDERED that (1) Defendant’s motions for

summary judgment as to Counts I and II (Docs. 120, 122) are GRANTED; (2) Defendant’s motion

to exclude expert testimony of Brittany Hopp (Doc. 128) is DENIED; and (3) Defendant’s motion

for summary judgment as to Count III (Doc. 124) is DENIED.

IT IS SO ORDERED.

s/ Roseann A. Ketchmark

ROSEANN A. KETCHMARK, JUDGE

UNITED STATES DISTRICT COURT

DATED: November 16, 2021