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 various pre-trial motions filed by both Defendant (Docs. 167, 169,

171, 173, 175, 177, 180, 210) and by Plaintiffs (Docs. 214).1

I. Defendant’s Motions to Exclude Expert Testimony (Docs. 167, 169, 171)2

First, Defendant seeks to exclude the expert witness testimony of Joseph (Chip) Sheppard,

III; Wade Early; and Zach and Jamie Ball under Federal Rules of Evidence 403 and 702, and

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593 (1993).

A. Legal Standard

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

1 Also pending before the Court are two additional pre-trial motions (Docs. 179 and 184). These

motions will be addressed at a later time.

2 On November 16, 2021, after most all of the parties’ pre-trial motions had been filed, the Court

granted summary judgment in Defendant’s favor on Plaintiffs’ claims for malicious prosecution and abuse

of process. (Doc. 206 (“Summary Judgment Order”).) Further, the Court denied Plaintiffs’ motion for

reconsideration of the Summary Judgment Order as to Plaintiffs’ claim for malicious prosecution on

January 25, 2022. (Doc. 236.) With the exception of a few additional pre-trial motions filed after the

Summary Judgment Order was issued, the parties have not supplemented or re-argued many of these pre-

trial motions in light of the fact that Plaintiffs’ sole remaining claim following the Summary Judgment

Order is Count III, asserting a claim under the Missouri Computer Tampering Act. The Court accordingly

addresses any pre-trial motion not argued in relation to or as concerning Plaintiffs’ computer tampering

claim.

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 applies 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.

At the same time, “[t]he touchstone for the admissibility of expert testimony is whether it will

assist or be helpful to the trier of fact.” Lee v. Andersen, 616 F.3d 803, 808 (8th Cir. 2010) (citation

and quotation marks omitted).

B. Defendant’s Motion to Exclude Expert Testimony of Joseph (Chip) Sheppard, III

(Doc. 167)

Defendant seeks to exclude the expert witness testimony of Joseph Sheppard, a Missouri-

licensed attorney, as to his expert opinions, including: (1) Apex lacked probable cause to file the

Illinois Lawsuit, (2) the Illinois Lawsuit order was “correct,” (3) litigants like Ball and Linebarger

frequently suffer an emotional toll from litigation, and (4) the attorney’s fees incurred in the Illinois

Lawsuit were necessary and reasonable. Following entry of the Summary Judgment Order that

dismissed all counts except Plaintiffs’ claim under the Missouri Computer Tampering Act

(“MCTA”),3 it does not appear this expert testimony would “help the trier of fact to understand

the evidence or to determine a fact in issue” as to Plaintiff’s MCTA claim.

Additionally, to the extent Mr. Sheppard would testify that litigants generally suffer an

emotional toll from litigation, such expert testimony is unnecessary. Expert testimony regarding

whether it is common for litigants to suffer an emotional toll “is neither appropriate nor necessary,

3 Under the Missouri Computer Tampering Act, Plaintiffs are entitled to recover “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,” as well as “reasonable attorney’s fees to a prevailing plaintiff.” Mo.

Rev. Stat. § 537.525.

and would serve only to confuse the jury and bolster the credibility of [Plaintiff]’s witnesses.”

Hammer & Steel, Inc. v. Center Rock, Inc., No. 4:12CV688 JCH, 2013 WL 2321779, at * (E.D.

Mo. May 28, 2013) (citing U.S. ex rel. Anti-Discrim. Ctr. of Metro New York, Inc. v. Westchester

Cty., N.Y., 2009 WL 1110577, at *2 (S.D.N.Y. Apr. 22, 2009) (“It is appropriate, therefore, to

exclude expert testimony offered to bolster the credibility of fact witnesses.”)).4

Further, as to attorney’s fees incurred in the Illinois Lawsuit, such expert testimony does

not appear to help the jury understand the evidence or determine a fact in issue. To the extent

Plaintiffs’ theory of damages recoverable under the MCTA encompasses litigation costs and other

damages sustained by Plaintiffs in the context of the underlying Illinois Lawsuit, such damages

actually suffered must be independently proven. For these reasons, Defendant’s motion to exclude

the expert testimony of Mr. Sheppard is SUSTAINED as to these expert opinions.

C. Defendant’s Motion to Exclude Non-Retained Expert Testimony of Wade Early

(Doc. 169)

Next, Defendant moves to exclude the expert testimony of Wade Early, Plaintiffs’ attorney

in the Illinois Lawsuit. First, the Court notes to the extent Defendant seeks to exclude Mr. Early’s

expert witness testimony concerning Plaintiffs’ malicious-prosecution and abuse-of-process

claims, the motion is moot following the Summary Judgment Order.5 Best the Court can discern,

the remaining arguments to exclude Mr. Early’s expert testimony include: (1) his expert testimony

is not based on a sufficient factual basis due to attorney-client privilege, (2) that Plaintiffs sustained

damages beyond ordinary expenses in the context of the Illinois Lawsuit, and (3) Plaintiffs’

attorneys’ fees in the Illinois Lawsuit were reasonable and necessary. Initially, the Court notes

Mr. Early’s expert testimony that Plaintiffs sustained damages beyond ordinary expenses and that

their attorney’s fees in the Illinois Lawsuit were necessary and reasonable must be excluded for

the same reason as Mr. Sheppard’s expert testimony is excluded – it serves only to bolster the

4 In opposing Defendant’s motion to exclude expert testimony by Mr. Sheppard, Plaintiffs contend

“the lay opinions to be offered by [Mr.] Sheppard ‘that parties to lawsuits frequently suffer emotional

distress and/or health side effects’ . . . are based on his experience and observations as a litigator, and are

admissible.” (Doc. 192 at 6.) Defendant’s motion to exclude Mr. Sheppard’s testimony did not address

anticipated lay testimony from Mr. Sheppard, but only his expert witness testimony. Accordingly, the Court

declines to address the admissibility of any lay testimony by Mr. Sheppard at this time.

5 This appears to include at least Mr. Early’s anticipated testimony regarding (1) legal procedures,

processes, and the law applicable to Apex’s claims in the Illinois Lawsuit; (2) that Apex lacked probable

cause to file the Illinois Lawsuit; and (3) Apex’s abuse of process was intended to cause and did cause

unnecessary expense. (See Doc. 170 at 7-8.)

testimony of Ball and Linebarger as to the damages and attorney’s fees they actually suffered or

paid in the context of the Illinois Lawsuit, and does not appear to help the jury understand the

evidence or determine a fact in issue. Accordingly, Defendant’s motion to exclude the expert

testimony of Mr. Early is SUSTAINED as to these expert opinions and is otherwise DENIED as

moot to the extent Defendant’s motion seeks to exclude Mr. Early’s expert opinions as to

Plaintiffs’ malicious-prosecution and abuse-of-process claims.6

D. Defendant’s Motion to Exclude Non-Retained Expert Testimony of Zach Ball

and Jamie Ball (Doc. 171)

Defendant also moves to exclude the expert testimony of Zach and Jamie Ball on several

issues, including: (1) whether Advanced could have expanded its business operations sooner but

for the Illinois Litigation, (2) whether Apex had a proprietary or confidential interest in documents

on which a claim or claims asserted in the Illinois Litigation were based, (3) whether Zach Ball

experienced emotional injury as a direct result of the Illinois Litigation, and (4) the value of real

property Zach Ball was required to dispose of as a direct result of the Illinois Litigation. In

response, Plaintiffs represent to the Court “the above testimony is not intended to be proffered for

the purpose of, or to qualif[y] as, expert testimony, and instead constitutes admissible lay

testimony.” (Doc. 194 at 2.) Under Federal Rule of Evidence 701, a lay witness may testify

in the form of an opinion . . . that is: (a) rationally based on the witness’s

perception; (b) helpful to clearly understanding the witness’s testimony or to

determining a fact in issue; and (c) not based on scientific, technical, or other

specialized knowledge within the scope of Rule 702.

Based on Plaintiffs’ representation that neither Zach nor Jamie Ball will be proffered to testify as

an expert witness as to these matters, Defendant’s motion to exclude is, at this time, DENIED

without prejudice.7

II. Defendant’s Motion in Limine on Issue of Personal Jurisdiction (Doc. 173)

Next, the Court addresses Defendant’s motion in limine to exclude from trial evidence or

opinions related to the issue of personal jurisdiction in the Illinois Lawsuit. Defendant argues this

6 The Court also recognizes in their opposition to Defendant’s motion to exclude the expert

testimony of Mr. Early, Plaintiffs acknowledge any expert testimony Mr. Early does give at trial, to the

extent any such testimony is offered, must be based on “facts or data . . . that the expert has been made

aware of or personally observed” and that Plaintiffs “do not intend to elicit testimony concerning . . .

matters” for which Mr. Early has invoked attorney-client privilege or work-product protection. (Doc. 193

at 9.)

7 The Court is not making a relevancy ruling at this juncture.

evidence is barred by collateral estoppel, is irrelevant under Federal Rule of Evidence 402,8 and is

unduly prejudicial under Federal Rule of Evidence 403.9 Regardless of whether the issue of

personal jurisdiction remains relevant after the Summary Judgment Order, the Court agrees that

Plaintiffs are collaterally estopped from re-arguing the issue of personal jurisdiction of the district

court in the Illinois Lawsuit.

In the Eighth Circuit, the “collateral estoppel effect of a prior judgment in a diversity action

is a question of substantive law controlled by state common law.” Hillary v. Trans World Airlines,

Inc., 123 F.3d 1041, 1043 (8th Cir. 1997) (citation and quotation marks omitted). This includes

determining the collateral estoppel effect of a judgment of another federal court sitting in diversity.

Id. In determining which state law applies, courts in the Eighth Circuit look to the law of the first

forum: “It is fundamental that the [preclusive] effect of the first forum’s judgment is governed by

the first forum’s law, not by the law of the second forum.” Id. (citations and quotation marks

omitted) (holding “Louisiana law determines the preclusive effect to be given to the dismissal with

prejudice of [plaintiff]’s prior identical action in the federal district court in Louisiana.”).

“Under Illinois law, ‘[c]ollateral estoppel may be applied when the issue decided in the

prior adjudication is identical with the one presented in the current action, there was a final

judgment on the merits in the prior adjudication, and the party against whom estoppel is asserted

was a party to . . . the prior adjudication.’” Sanchez v. City of Chicago, 880 F.3d 349, 357 (7th

Cir. 2018) (quoting Du Page Forklift Serv., Inc. v. Material Handling Servs., Inc., 744 N.E.2d 845,

849 (Ill. 2001)). In addition, collateral estoppel applies when “no unfairness will result to the party

sought to be estopped, that is,” when the party had “a full and fair opportunity to present his case

and an incentive to litigate.” Id. (citation and quotation marks omitted). The Illinois Supreme

Court has further explained, “[f]or purposes of applying the doctrine of collateral estoppel, finality

requires that the potential for appellate review must have been exhausted.” Ballweg v. City of

Springfield, 499 N.E.2d 1373, 1376 (Ill. 1986) (citation omitted).

In the underlying lawsuit before the Southern District of Illinois, Plaintiffs filed multiple

motions seeking dismissal or transfer of that case based on the lack of personal jurisdiction.

Plaintiffs acknowledge the district court denied Plaintiffs’ motions related to lack of personal

8 Under Rule 402, “[i]rrelevant evidence is not admissible,” and is therefore excludable.

9 Under Rule 403, “[t]he court may exclude relevant evidence if its probative value is substantially

outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.”

jurisdiction and, subsequently, granted Plaintiffs’ motion for summary judgment on the merits.

Nevertheless, Plaintiffs argue collateral estoppel does not apply to the issue of personal jurisdiction

because it was not “actually litigated” in the prior action and, at most, the district court “resolved

only the issue of whether Apex made a prima facie showing of personal jurisdiction,” not whether

the district court actually had personal jurisdiction. (Doc. 195 at 4.) The Court does not find

Plaintiffs’ argument persuasive.

Contrary to Plaintiffs’ argument otherwise, the district court did decide the issue of

personal jurisdiction and there was a “final judgment on the merits in the prior adjudication.” First,

neither party – let alone Plaintiffs following their success on summary judgment – appealed the

district court’s summary judgment order. Therefore, there was a final judgment on the merits. See

Ballweg, 499 N.E.2d at 1376. Additionally, the district court (1) denied Plaintiffs’ lack of personal

jurisdiction argument when it denied Plaintiffs’ motion to dismiss and motion for transfer based

on the lack of personal jurisdiction, and (2) entered summary judgment in Plaintiffs’ favor on the

merits. It is axiomatic that “[p]ersonal jurisdiction . . . is an essential element of the jurisdiction

of a district court, without which the court is powerless to proceed to an adjudication” on the

merits. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999). Plaintiffs had a full and fair

opportunity to argue the issue of personal jurisdiction, and they did so before the Illinois district

court.10 The issue decided – that the district court did have personal jurisdiction11 – is the same

issue Plaintiffs continue to attempt to argue and re-litigate in this subsequent action. Therefore,

the Court finds Plaintiffs are collaterally estopped from re-litigating the issue of personal

jurisdiction. Accordingly, Defendant’s motion in limine on the issue of personal jurisdiction (Doc.

173) is SUSTAINED.

10 Also of note, the record in the Illinois Lawsuit indicates Plaintiffs later filed a motion for

summary judgment arguing, again, the personal jurisdiction issue, but withdrew that motion. See Advanced

v. Ball, 3:17-cv-00119-JPG-MAB (S.D. Ill.), Docs. 97, 108.

11 Plaintiffs’ argument that the district court only decided that the complaint sufficiently alleged

personal jurisdiction and not that it actually had personal jurisdiction is not persuasive, even beyond the

district court’s entry of judgment on the merits in Plaintiffs’ favor. Simply, any difference in the “burden

of demonstrating the existence of [personal] jurisdiction” – as determined by whether the district court

“holds an evidentiary hearing to determine [personal] jurisdiction” or whether plaintiff has “establish[ed] a

prima facie case of personal jurisdiction” based on the written materials – Purdue Research Foundation v.

Sanofi-Synthelabo, S.A., 338 F.3d 773, 781-83 (7th Cir. 2003), does not mean the district court’s decision

whether personal jurisdiction exists or not is any less determinative of the issue raised. See id. (affirming

district court’s dismissal of the complaint for lack of personal jurisdiction).

III. Defendant’s Supplemental Motion in Limine (Doc. 210)

The Court now turns to Defendant’s supplemental motion in limine (Doc. 210), seeking to

exclude evidence or opinions as to (1) Apex’s bases for filing the Illinois Lawsuit, (2) damages

Plaintiff suffered other than attorney’s fees incurred in bringing their claim under the MCTA, and

(3) punitive damages. Defendant argues this evidence should be excluded under Rules 402 and

403 of the federal evidentiary rules.

Initially, the Court notes it appears Defendant’s supplemental motion in limine generally

challenges the damages recoverable under Plaintiffs’ MCTA claim. Specifically, Defendant

argues Plaintiff cannot recover under the MCTA damages for Advanced’s attorney’s fees in the

Illinois Lawsuit, Advanced’s lost profits, Ball’s emotional distress, or Linebarger’s emotional

distress or teeth grinding. At this stage, neither party appears to dispute that Plaintiffs’ theory of

damages as to their claim under the MCTA is as described in the Court’s summary judgment order,

that: “but for Apex’s discovery of the marketing log [which violated the MCTA], it would not

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

resulting from the Illinois Lawsuit itself.” (Doc. 206 at 19.) The Court emphasizes that its role in

either the summary-judgment or motion-in-limine stage is not to “pre-weigh[] the evidence on

questions that properly belong to a jury.” Williams v. Sec. Nat’l Bank of Sioux City, IA, 358 F.

Supp. 2d 782, 801 (N.D. Iowa 2005).

For a claim brought under the MCTA, § 537.525.1, RSMo., authorizes recovery for

“compensatory damages.” See W. Blue Print Co., LLC v. Roberts, 367 S.W.3d 7, 20 (Mo. banc

2012) (“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.”) “It is

Missouri’s well-settled rule that a plaintiff is entitled to full compensation for past or present

injuries that the plaintiff has shown by a preponderance of the evidence were caused by the

defendant.” Swartz v. Gale Webb Transp. Co., 215 S.W.3d 127, 130-31 (Mo. banc 2007) (citation

omitted). Of course, compensatory damages are those that “fairly and reasonably compensate a

plaintiff for her injuries,” Bojorquez v. O’Keeffe, 605 S.W.3d 380, 396 (Mo. Ct. App. 2020)

(citation omitted), and “are not recoverable . . . unless defendants’ conduct proximately caused

plaintiffs’’ loss.” Kueffer v. Brown, 879 S.W.2d 658, 665 (Mo. Ct. App. 1994) (citing Creech v.

Riss & Co., 285 S.W.2d 554, 561 (Mo. 1955)). And indeed, § 537.525 permits “a civil action

against any person who violates [the MCTA] for any compensatory damages incurred and

attorney’s fees.” W. Blue Print Co., 367 S.W.3d at 20. Whether Plaintiffs can ultimately satisfy

their burden of proof as to damages is not before the Court at this pre-trial motion-in-limine stage.

The Court does not find at this pre-trial stage that the evidence Defendant seeks to exclude in this

motion in limine is irrelevant or that it will unfairly prejudice the jury regarding the issue squarely

presented before it in this case – whether Defendant violated the MCTA and, if so, whether

Defendant’s violation of the MCTA caused it to file the Illinois Lawsuit against Plaintiffs, and that

the damages Plaintiffs claim were proximately caused by Defendant’s violation of the MCTA.

Defendant argues evidence regarding Apex’s reasons for filing the Illinois Lawsuit should

be excluded as no longer relevant following the Summary Judgment Order. In particular,

Defendant argues “the Court’s Summary Judgment Order . . . fully resolves the issue of whether

there was an independent basis for filing the [Illinois] Lawsuit separate and apart from the

Marketing Log[.]” (Doc. 211 at 10.) The Court disagrees. In the Summary Judgment Order, the

Court held, as a matter of law and in the context of Plaintiffs’ claim for malicious prosecution,

Defendant had probable cause to bring the breach-of-contract action against Plaintiffs in the

Illinois Lawsuit. The issue of whether Defendant had probable cause to file the Illinois case is

different than what information caused the Defendant to file the Illinois case.12 That independent

question of fact (what caused Defendant to file the Illinois case) required the denial of Defendant’s

motion for summary judgment as to Plaintiffs’ MCTA claim. Defendant’s motion in limine is

DENIED as to the evidence or opinions concerning Apex’s reasons for filing the Illinois Lawsuit.

Defendant also argues the Court should exclude “[e]vidence demonstrating Plaintiffs

incurred any cost in verifying the computer was not altered, damaged, or deleted by Apex’s alleged

access.” (Doc. 211 at 15.) Defendant argues “Plaintiffs have maintained they have not incurred

any [such] cost” throughout the proceedings thus far. (Id. at 15 (citing deposition testimony of

Ball as corporate representative); see id. at 16 (citing Linebarger’s deposition testimony).) If

contrary testimony is adduced at trial, Defendant may impeach such testimony pursuant to the

applicable federal rules. Defendant’s motion is DENIED as to evidence or opinions as to damages

Plaintiffs suffered other than attorney’s fees incurred in bringing their claim under the MCTA.

12 Plaintiffs argue: “The question to be presented at trial in this case, in light of the Court’s prior

[Summary Judgment] Order, is whether Apex’s wrongful conduct, in fact, caused or contributed to cause

Apex to file that lawsuit.” (Doc. 233 at 2.)

Finally, Defendant also specifically seeks to exclude “evidence relevant to punitive

damages” because punitive damages are not recoverable under the MCTA. (Doc. 211 at 16.)

Defendant does not specifically refer to any such evidence other than broadly evidence of “Apex’s

alleged malice or evil motive and Apex’s financial status and net worth.” (Doc. 211 at 16.)

Plaintiffs argue in opposition (1) punitive damages are recoverable under the MCTA and (2) the

evidence Defendants broadly seek to exclude is relevant as supporting Plaintiffs’ theory of

compensatory damages under the MCTA.

In support of its argument that punitive damages are not recoverable under the MCTA,

Defendant cites Porters Building Centers, Inc. v. Sprint Lumber, No. 16-06055-CV-SJ-ODS, 2017

WL 4413288, at *4 (W.D. Mo. Oct. 2, 2017), in which the district court granted summary judgment

in defendant’s favor as to plaintiff’s request for punitive damages under a claim asserted under the

MCTA. In Porters, the district court held the MCTA “does not allow for recovery for punitive

damages,” as the statutory language allowed for “recovery of ‘compensatory damages, including

any expenditures reasonably and necessarily incurred by the owner or lessee to verify the computer

system . . . or data was not altered, damaged, or deleted by the access,’ and reasonable attorneys’

fees.” Id. (quoting Mo. Rev. Stat. § 537.525(1)-(2).)13

In opposition, Plaintiff relies on a recent decision by the Missouri Court of Appeals in

Rasmussen v. Illinois Casualty Company, 628 S.W.3d 166 (Mo. Ct. App. 2021), where the

appellate court held that a plaintiff bringing an action under Missouri’s Dram Shop Act, itself silent

on the issue of punitive damages, could otherwise recover punitive damages since “the common

law that existed prior . . . to the Act recognized that punitive damages were a recoverable remedy

on a dram shop liability claim.” Id. at 180; see id. at 180-81 (holding, “because the [Missouri]

legislature did not clarify a different interpretation on the allowance of punitive damages than

established by common law in the dram shop liability context, punitive damages are recoverable

in a statutory dram shop cause of action”). Rasmussen essentially applied the principle in Missouri,

as previously stated by the Missouri Supreme Court, that:

In cases where a statute creates a cause of action unknown to the common law,

punitive damages will not be allowed unless specified in the statute. By contrast,

[where] the conversion claim asserted here is not rooted in a cause of action created

by statute, but in one existing at common law . . . the rule of strict construction

against punitive damages . . . is inapposite.

13 As Plaintiffs point out, in Porters, the plaintiffs “concede[d] the MCTA does not provide for

punitive damages.” 2017 WL 4413288, at *4.

When the legislature wishes to substitute a statutory limitation on punitive or penal

damages for what would otherwise be a common law claim, it makes specific

provision for such limitation. . . . There is no need for courts to infer a limitation,

preemption or immunity where the legislature did not say so.

Estate of Williams v. Williams, 12 S.W.3d 302, 307 (Mo. banc 2000).

Indeed, in Williams, the Missouri Supreme Court held the trial court erred in dismissing

the plaintiff’s claim for punitive damages under statutory cause of action for discovery of assets in

a probate proceeding corresponded to a common law claim for conversion, which had permitted

recovery of punitive damages. The court held:

The self-evident purpose of sec. 473.340 is to channel all claims to specific property

in which an estate may have an interest into the probate division of the circuit court,

including common law claims for conversion. Nothing in the text of the statute

expresses any design to eliminate any common law remedy associated with

conversion of property belonging to a decedent. To construe the statute as intended

to eliminate any aspect of a common law claim for conversion of assets of a

decedent’s estate is not consistent with the statutory purpose.

Id. at 306-07; see also Overman v. S.W. Bell Telephone Co., 675 S.W.2d 419, 425 (Mo. Ct. App.

1984) (noting that statutory cause of action that “neither expressly nor impliedly includes punitive

damages” “does not exclude the preexistent remedy of punitive damages existent at common law,

or limit the damages recoverable” for the claim) (holding because the right to recover punitive

damages existed at common law, plaintiff may recover punitive damages under statutory cause of

action against public utility); see also Hawkins v. Burlington N., Inc., 514 S.W.2d 593, 598 (Mo.

banc 1974) (explaining this “general rule as to exclusiveness of a statutory remedy” followed by

Missouri).

Here, though, the MCTA statute on which Plaintiffs have asserted their claim states: “In

addition to any other civil remedy available, the owner or lessee of the owner or lessee of the

computer system . . . or data may bring a civil action against any person who violates section

569.095 to 569.099 for compensatory damages,” and that “[i]n any action brought pursuant to this

section, the court may award reasonable attorney’s fees to a prevailing plaintiff.” § 537.525.

Plaintiffs argue (1) punitive damages constitute “any other civil remedy available” and that the

claims contained in § 537.525 “are akin to a common law claim for conversion and invasion of

privacy,” for which punitive damages are recoverable. (Doc. 233 at 7, 8.) It does not appear

Missouri courts have specifically interpreted the meaning of this statute. Federal courts are

bound by a state supreme court’s construction of its own law, and even where there

is no case directly on point by a state’s highest court, [the Court] look[s] to relevant

state precedent, analogous decisions, considered dicta, and any other reliable data

to determine how the Supreme Court [of the state] would construe [the state’s] law.

In re W. Iowa Limestone, Inc., 538 F.3d 858, 866 (8th Cir. 2008) (citation and quotation marks

omitted); accord Brandenburg v. Allstate Ins. Co., 23 F.3d 1438, 1440 (8th Cir. 1994) (when an

issue of state law has not been decided, “it is [the federal court’s] responsibility to predict, as best

[it] can, how that [state supreme] court would decide the issue.”)

In Rasmussen, the Missouri legislature codified a claim for “dram shop liability” that had

otherwise existed at common law. See 628 S.W.3d at 79-80 (recognizing the “common law cause

of action relating to tavern owners serving obviously intoxicated persons who subsequently

injur[ed] third persons”); see also Overman, 675 S.W.2d at 424 (the statutes at issue “are but

codifications of the common law duties of public utilities” where “the cases in this state recognize

the propriety of imposing punitive damages against a telephone company in a proper case,”

collecting cases). Here, though, § 537.525 effectively creates a civil cause of action for what is

otherwise only a criminal offense for tampering with computer data, computer equipment, or with

computer users. See § 537.525.1; Mo. Rev. Stat. §§ 569.095-099. In other words, it does not

appear the civil claim statutorily authorized under the MCTA codified a common law analogue in

the same way Rasmussen relied on the statutory codification of a common law claim for dram shop

liability.14

Further, Plaintiffs’ argument that punitive damages are encompassed in the statutory phrase

“[i]n addition to any other civil remedy available,” is not persuasive, either. Plaintiffs’ argument

inaccurately equates “civil remedy” with “punitive damages.” In interpreting statutory language,

Missouri courts rely on the plain language “give effect to the legislative intent.” Truman Med.

Ctr., Inc. v. Progressive Cas. Ins. Co., 597 S.W.3d 362, 367 (Mo. Ct. App. 2020) (citation and

quotation marks omitted). While no Missouri courts appear to have interpreted this particular

statutory language, it appears the statutory term on which Plaintiffs rely does not encompass

14 Plaintiffs’ reliance on the torts of invasion of privacy and conversion is unavailing. In Missouri,

a statutorily created cause of action can exist independent of and “separate and distinct from the underlying

tort.” Lawrence v. Beverly Manor, 273 S.W.3d 525, 527 & 528 (Mo. banc 2009); see Sanders v. Ahmed,

364 S.W.3d 195, 204 (Mo. banc 2012) (confirming that wrongful death is a statutorily created cause of

action existing “independent of the predicate tort”) (citation omitted). Independent of any underlying “tort,”

the cause of action under the MCTA is a creature of statute, existing as a civil cause of action for what is

otherwise solely a criminal violation from which criminal (not civil) liability flows.

punitive damages. The dictionary defines “remedy” as “the legal means to recover a right or to

prevent or obtain redress for a wrong.” Remedy, MERRIAM-WEBSTER ONLINE DICTIONARY,

https://www.merriam-webster.com/dictionary/remedy (last accessed January 24, 2022)15

Similarly, Black’s Law Dictionary (11th ed. 2019) defines “remedy” (and “civil remedy”) as “[t]he

means of enforcing a right or preventing or redressing a wrong; legal or equitable relief.”16

When interpreting statutes, Missouri courts presume “[e]ach word in a statute . . . ha[s]

meaning, and any interpretation rendering language superfluous is not favored.” Atkinson v.

Atkinson, 423 S.W.3d 322, 326 (Mo. Ct. App. 2014) (citation omitted). Here, to conflate “any

other civil remedy available” with “punitive damages” would both violate the rule that a statutorily

created cause of action must specify if punitive damages are permitted as well as render

meaningless the statute’s specific reference to “compensatory damages” and “attorneys’ fees.” For

these reasons, the Court is not persuaded the statutory phrase “other civil remed[ies] available”

refers to punitive damages (an end to a means) but rather it refers to a separate cause of action (a

means to an end).

In this case, Plaintiffs have pursued this claim solely under the MCTA. (See Doc. 16 at

16-17.) It does not appear punitive damages are recoverable under such claim as established by

the Missouri legislature. Although the Court finds punitive damages are excluded in this case,

Defendant’s motion broadly seeks to exclude “evidence relevant to punitive damages.” Defendant

specifically moves to exclude “Apex’s alleged malice or evil motive and Apex’s financial status

and net worth.” (Doc. 211 at 16.) Outside punitive damages, Plaintiffs do not argue how Apex’s

financial status or net worth is relevant. However, because evidence of Defendant’s “alleged

malice or evil motive” could theoretically be relevant as circumstantial evidence of the MCTA

claim, the Court will not at this time broadly exclude “evidence related to punitive damages,” as

Defendant requests.

In sum, Defendant’s supplemental motion in limine (Doc. 210) is SUSTAINED in part as

to evidence of Defendant’s net worth and financial status and is otherwise DENIED inasmuch as

the cited evidence is relevant as circumstantial evidence that supports Defendant’s liability under

the MCTA for compensatory damages.

15 See also Taylor v. Robertson, 485 S.W.3d 393, 396 (Mo. Ct. App. 2016) (looking to the dictionary

definition to discern the plain meaning of a statutory term).

16 See also Buemi v. Kerckhoff, 359 S.W.3d 16, 21 (Mo. banc 2011) (looking to the dictionary

definition of a term in Black’s Law Dictionary).

IV. Defendant’s Motion to Exclude the Summary Judgment Orders from the Illinois

Lawsuit (Doc. 175)

Next, Defendant moves to exclude the summary judgment orders issued by the district

court in the Illinois Lawsuit. Defendant argues the orders are not relevant and are unduly

prejudicial. Defendant argues the summary judgment orders should be excluded because they are

not relevant to Plaintiffs’ malicious prosecution claim or Plaintiffs’ punitive damages claim. The

Court has granted (and has also denied reconsideration of) summary judgment in Defendant’s

favor as to Plaintiffs’ malicious prosecution claim. Additionally, as the Court explained above, it

does not appear punitive damages are recoverable under Plaintiffs’ sole remaining claim under the

MCTA. Thus, Defendant’s motion to exclude the summary judgment orders from the Illinois

Lawsuit is SUSTAINED.

V. Defendant’s Motion in Limine Regarding Other Damages (Doc. 177)

Next, Defendant seeks to exclude as not relevant and unduly prejudicial evidence of “other

damages” including that (1) Ball was deprived of capital he otherwise would have put towards

marketing and development of Advanced, (2) Ball had to sell his family farm to support and

continue the operation of Advanced, (3) Ball did not take a salary during the pendency of the

Illinois Lawsuit, (4) and Linebarger did not receive pay increases as quickly as he would otherwise.

Defendant argues this evidence is not relevant to Plaintiffs’ malicious prosecution claim and

should otherwise be excluded as unduly prejudicial. Defendant’s motion in limine does not

address this evidence in the context of Plaintiffs’ sole remaining claim for computer tampering

under the MCTA, however. Accordingly, Defendant’s motion in limine regarding other damages

is DENIED as moot.

VI. Defendant’s Motion to Bifurcate (Doc. 180)

Defendant filed a motion to bifurcate the damages phase of trial pursuant to Federal Rule of Civil

Procedure 42(b). Given the Court’s ruling as to punitive damages above, Defendant’s motion to

bifurcate (Doc. 180) is DENIED as moot.

VII. Plaintiffs’ Motion in Limine (Doc. 214)

Finally, the Court turns to Plaintiffs’ motion in limine (Doc. 214). Plaintiffs argue the

Court should exclude argument and evidence regarding pre-trial motions and rulings in this case,

including the Court’s entry of summary judgment on Counts I and II. The Court agrees with

Plaintiffs that the Summary Judgment Order did not resolve the factual issues in Count III as to

Plaintiffs’ MCTA claim. Defendant argues “the Summary Judgment Order” is relevant as it

“resolves the issue of whether there was an independent basis for filing the [Illinois] Lawsuit

separate and apart from the Marketing Log.” The Court disagrees with Defendant. An

independent question of fact exists outside the Court’s probable-cause determination at the

summary judgment stage concerning Plaintiffs’ malicious prosecution claim. Therefore, at this

time Plaintiffs’ motion in limine is SUSTAINED as to the Court’s pre-trial rulings.

IT IS SO ORDERED.

s/ Roseann A. Ketchmark

ROSEANN A. KETCHMARK, JUDGE

UNITED STATES DISTRICT COURT

DATED: February 1, 2022