# Smith v. Brown & Williamson Tobacco Corp.

> Missouri Court of Appeals · December 16, 2008 · 275 S.W.3d 748

URL: https://www.frixlaw.com/law-library/cases/1450809

## Case

- **Full name:** Lincoln SMITH, Et Al., Respondents, v. BROWN & WILLIAMSON TOBACCO CORPORATION, Appellant
- **Court:** Missouri Court of Appeals
- **Decided:** December 16, 2008
- **Citations:** 275 S.W.3d 748; 2008 Mo. App. LEXIS 1719; 2008 WL 5211857
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Lowenstein, Smart, Ulrich
- **Cited by:** 64 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1450809

## How later opinions describe it (automated extraction)

- finding that a wrongful death action under Missouri statute was not barred by the decedent’s "personal injury action during her lifetime for injuries resulting from the same cause of her death”
- discussing of negligent failure to warn and strict liability failure to warn in the context of products liability
- discussing products liability claims under Missouri law

## Opinion text

275 S.W.3d 748 (2008)
Lincoln SMITH, et al., Respondents,
v.
BROWN & WILLIAMSON TOBACCO CORPORATION, Appellant.
No. WD 65542.
Missouri Court of Appeals, Western District.
December 16, 2008.
Rehearing Denied January 27, 2009.
*757 Robert H. Klonoff, Washington, DC, Casey O. Housley, Kansas City, MO, for Appellant.
Kenneth B. McClain, II, Independence, and Gregory A. Leyh, Gladstone, MO, for Respondents.
Before: HAROLD L. LOWENSTEIN, P.J., JAMES M. SMART, J., and ROBERT G. ULRICH, SR. J.
ROBERT G. ULRICH, Senior Judge.
Brown & Williamson Tobacco Corporation (B & W) appeals the judgment entered in favor of the survivors of Barbara Smith and against B & W under Missouri's wrongful death statute for claims of personal injury based on negligence and product defect. § 537.080. [1] B & W presents ten points on appeal. B & W asserts in its first five points and ninth point that the trial court erred in denying its motion for *758 judgment notwithstanding the verdict for various reasons. B & W asserts in its sixth point that the trial court erred in instructing the jury on comparative fault after B & W withdrew the affirmative defense. B & W asserts in its seventh and eighth points that the trial court erred in denying its motion for a new trial on punitive damages. Finally, B & W asserts in its tenth point that the trial court erred in denying its motion for judgment notwithstanding the verdict, its motion for new trial, and its request for remittitur on punitive damages. The judgment is affirmed in part, reversed in part, and the case is remanded.
FACTS
This case involves a wrongful death action brought by the survivors of a deceased longtime smoker against a tobacco company. § 537.080. In the light most favorable to the jury verdict, the facts are as follows. Barbara Smith was born on May 13, 1927. She began smoking Lucky Strike cigarettes in 1942. After smoking Lucky Strikes for one to two years Ms. Smith switched to Kool cigarettes, manufactured by B & W.
In January 1964, the Surgeon General of the United States issued his first report on smoking and health. The report concluded that smoking causes fatal diseases, including cancer. The report also advised the public that the best way to reduce the risk of death and diseases associated with smoking is to quit smoking. Congress enacted the Federal Cigarette Labeling and Advertising Act (FCLAA) in 1965. The FCLAA required every package of cigarettes to bear the warning: "Caution: Cigarette Smoking May Be Hazardous To Your Health." The warning was modified in 1969 to read: "Warning: The Surgeon General Has Determined That Cigarette Smoking Is Dangerous To Your Health." The warning was changed again in 1985 to a system of four rotating warnings, including: "Smoking Causes Lung Cancer, Heart Disease, Emphysema, And May Complicate Pregnancy" and "Quitting Smoking Now Greatly Reduces Serious Health Risks."
Ms. Smith developed angina in the early 1980s. [2] In 1990, a physician informed Ms. Smith that she had "respiratory trouble" that was the beginning stage of emphysema. The same doctor told Ms. Smith that she was "going to have to quit smoking because it was going to kill her if she didn't." She quit smoking that year. Ms. Smith was diagnosed with lung cancer in 1992. Part of one lung was removed, and Ms. Smith was apparently cancer free thereafter.
Ms. Smith brought suit against B & W in Jackson County, and the case was transferred to the United States District Court, Western District of Missouri, in 1996. B & W was granted summary judgment as to certain of her negligence and strict liability claims. On May 12, 2000, Ms. Smith died from a heart attack at age 73. After her death, all remaining claims in federal court were dismissed with prejudice.
In March 2003, the survivors of Barbara Smith, her husband Lincoln Smith [3] and their children, brought suit against B & W in Jackson County under the Missouri Wrongful Death Act (section 537.080) to recover damages for her death, which resulted from heart disease. The petition alleged claims for negligence, strict liability, *759 fraudulent concealment, and conspiracy.
B & W plead comparative fault as an affirmative defense and performed discovery regarding Ms. Smith's fault. After completion of discovery, B & W withdrew its comparative fault affirmative defense. At trial, B & W protested the jury's receiving a comparative fault instruction. Over B & W's objection, the court gave the jury a comparative fault instruction.
Trial was had in January 2005. [4] The jury returned a verdict for B & W on the fraudulent concealment and conspiracy claims. It returned a verdict for Ms. Smith's survivors on the negligence and strict liability claims, awarding $2 million in compensatory damages. The jury further found that Ms. Smith was 75% at fault; accordingly, the trial court reduced the compensatory damages to $500,000. The jury also found that B & W was liable for "aggravating circumstances" and assessed $20 million in punitive damages. B & W's timely appeal followed.
Additional facts are set forth in the analysis as needed.
STANDARD OF REVIEW FOR POINTS I-V
The standard of review for a trial court's denial of a motion for judgment notwithstanding the verdict is whether a submissible case was made. Payne v. Cornhusker Motor Lines, Inc., 177 S.W.3d 820, 832 (Mo.App. E.D.2005). In order to make a submissible case, the plaintiff must present substantial evidence for every fact essential to liability. Id. "In determining whether a submissible case was made, this court views the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the prevailing party." Id. The jury is the sole judge of witness credibility and the weight and value of testimony. Moran v. Hubbartt, 178 S.W.3d 604, 609 (Mo.App. W.D.2005). Further, the jury may believe or disbelieve any portion of witness testimony. Id. Review of whether substantial evidence exists is de novo. Kenney v. Wal-Mart Stores, Inc., 100 S.W.3d 809, 814 (Mo. banc 2003). Substantial evidence is evidence, "which if true, has probative force upon the issues, and from which the trier of fact can reasonably decide the case." Id. (quotation marks and citations omitted). A motion for judgment notwithstanding the verdict should be granted "only when reasonable minds cannot differ as to the ultimate disposition of the case." Moran, 178 S.W.3d at 609 . (quotation marks and citations omitted). Granting a judgment notwithstanding the verdict is a drastic action, and an appellate court will not overturn a jury's verdict unless there are no probative facts to support it. Blue v. Harrah's N. Kansas City, LLC, 170 S.W.3d 466, 472 (Mo.App. W.D.2005).
POINT I
In its first point, B & W claims the trial court erred in denying its motion for judgment notwithstanding the verdict on Ms. Smith's survivors' claim for failure to warn and for heart disease, COPD/Emphysema, and addiction. It asserts that Ms. Smith's survivors failed to state a claim as to those theories and injuries under the Wrongful Death Act because those claims were fully adjudicated on the merits against Ms. Smith during her lifetime when the federal district court dismissed her complaint with prejudice.
Before her death, Ms. Smith brought suit against B & W and another tobacco *760 company in federal court alleging multiple claims. B & W was granted summary judgment as to certain of these claims. Ms. Smith brought four strict liability claims: (1) Count I alleged cigarettes were unreasonably dangerous; (2) Count II alleged that there were inadequate warnings prior to 1970; (3) Count III alleged a defective design because cigarettes are addictive and cause health problems; and (4) Count VI alleged that cigarettes are defective because they are addictive. B & W was granted summary judgment as to Count II. The court determined that Ms. Smith could not prove causation; that is, had there been warnings prior to 1970, Ms. Smith would not have altered her behavior and, thus, the lack of warning prior to 1970 did not cause Ms. Smith's health problems. Ms. Smith brought three negligence claims: (1) Count IV alleged negligent testing, research, advertising, and promotion; (2) Count V alleged defendants negligently warned consumers of health hazards in a manner that diluted the effect of the Surgeon General's warning; and (3) Count IX alleged negligent misrepresentation through concealment. Ms. Smith voluntarily withdrew Count V. B & W was granted summary judgment as to part of Count IV and Count IX. Regarding Count IV, B & W was granted summary judgment as to the claims of negligent advertising and promotion. The court determined no evidence was presented that Ms. Smith saw or was motivated to smoke Kool cigarettes by advertising and promotion. B & W was further granted summary judgment as to Count VII, which alleged a breach of express warranty, Count XI, which alleged fraudulent misrepresentation, and Count X, which alleged civil conspiracy.
Ms. Smith's survivors' wrongful death petition contained four counts. Count I alleged negligence. It asserted that B & W breached three duties: (1) the duty to warn before 1969; (2) the duty to establish a reasonable dose; and (3) the duty to create a safer cigarette. Count II alleged a strict liability claim that cigarettes were defective and unreasonably dangerous. Count III alleged fraudulent concealment, and Count IV alleged conspiracy.
The causes were presented to the jury in three verdict forms. Part I was for the concealment claim, Part II was for the conspiracy claim, and Part III was for the failure to warn, negligent design, and failure to warn claim. The jury returned the following verdict: Part I in favor of B & W, Part II in favor of B & W, and Part III in favor of Ms. Smith's survivors.
At issue in this point are the negligence and strict liability failure to warn claims. These claims were asserted in both the federal action and the subsequent wrongful death action. [5] B & W was granted summary judgment on these claims in the federal court action after the trial court determined that Ms. Smith was unable to prove causation, that she would have altered her behavior had she been warned. Because of this, B & W argues that Ms. Smith's survivors were statutorily prohibited from asserting the same claims against it under the Missouri wrongful death statute. Section 537.080 states, in relevant part:
1. Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in *761 respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for. . .
(emphasis added). B & W asserts that, as her claims were adjudicated in federal court, Ms. Smith would have been precluded from asserting them in Missouri state court. Because Ms. Smith would have been precluded from asserting them, B & W reasons, her survivors are also precluded from asserting them. Thus, they conclude that JNOV should have been granted as to the failure to warn claims.
History of Wrongful Death Statutes
The first wrongful death statute appeared in England in 1846. [6] Elizabeth Clark, Impacts of Modern Life Support Techniques on Wrongful Death Actions Brought After Final Personal Injury Judgments, 16 U. PUGET SOUND L.REV. 711, 715 (1993). Known as Lord Campbell's Act, it is the progenitor of wrongful death statutes in the United States and Canada. Id. Entitled "[a]n act for compensating the families of persons killed by accidents," the act provided as follows:
[W]hensoever the Death of a Person shall be caused by wrongful Act, Neglect or Default, and the Act, Neglect, or Default is such as would (if Death had not ensued) have entitled the Party injured to maintain an Action and recover Damages in respect thereof, then and in every such Case the Person who would have been liable if Death had not ensued shall be liable to an Action for Damages, notwithstanding the Death of the Person injured.
Id. Nearly all states' wrongful death statutes utilize wording from Lord Campbell's Act. Id. at 715-16. Despite this, and as will be shown, infra, this language has been interpreted in wildly divergent ways.
Missouri Cases Addressing This Issue Are Not Dispositive
In support of its argument, B & W cites three cases, which are categorized into two groups. The first two cases involve situations where the decedent, had he or she lived, would not have been able to bring suit because the defendant's actions were protected by some form of immunity. In Campbell v. Callow, 876 S.W.2d 25 (Mo. App. S.D.1994), a father brought suit under the wrongful death act against the mother of their deceased child. Id. at 26 . The child was killed in an automobile accident wherein the vehicle, driven by mother, collided with a bridge while child was a passenger. Id. The trial court dismissed the suit because of the parental immunity doctrine. Id. The Southern District relied upon the following language from Klein v. Abramson, 513 S.W.2d 714, 717 (Mo.App. 1974):
The clear meaning of [the wrongful death statute] is that the legislature saw fit to condition the right to sue for wrongful death upon the primary fact that the decedent could have maintained an action for damages for the injuries had he survived. If such condition cannot be shown, no cause of action for the wrongful death exists.
Id. at 28. The Southern District then noted that the child died before the parental *762 immunity doctrine had been abolished. Id. It stated that, had the child survived, the parental immunity doctrine would have precluded the child's suit against her mother. Id. The dismissal was affirmed. Id.
In Miller v. Smith, 921 S.W.2d 39 (Mo. App. W.D.1996), parents filed a wrongful death action against a police officer. Id. at 42 . The parents' son committed suicide by fatally shooting himself in the head after being arrested for driving while intoxicated. Id. The parents alleged the police officer negligently failed to restrain and protect the son after placing him under arrest and, with deliberate indifference, deprived the son of his right to be protected while in custody. Id. at 42-43 . The trial court entered summary judgment in favor of the police officer. Id. at 43 . This court noted that the "clear intent of [the wrongful death statute] is to restrict the right to sue under the wrongful death statute to situations where the decedent could have brought a suit for damages for decedent's injuries." Id. at 44 (citing Campbell, 876 S.W.2d at 28 ). On appeal, parents challenged the grant of summary judgment on the basis of the official immunity doctrine. Id. at 45 . The appellate court upheld the trial court's determination that the police officer's actions were protected by the official immunity doctrine. Id. at 46 . The grant of summary judgment was affirmed. Id. at 48 .
These cases do not resolve the issue presented and are not applicable in the case sub judice. In the immunity cases, the decedent would never have been entitled to bring a cause of action because a form of immunity protected the defendant's actions. In this case, however, Ms. Smith was entitled to bring a cause of action. In fact, she did so in federal court before her death. The question presented is not whether Ms. Smith's survivors should have been prevented from bringing a wrongful death action because Ms. Smith was never entitled to bring suit for her damages. Instead, the question is whether Ms. Smith's survivors should have been prevented from asserting claims based on failure to warn because Ms. Smith adjudicated these claims during her lifetime and, thus, would have been precluded from reasserting them.
The third case B & W relies upon involves a situation where the decedent settled with the defendant prior to his death and the decedent's family was precluded from bringing a wrongful death action because of the settlement. In Strode v. St. Louis Transit Co., 197 Mo. 616 , 95 S.W. 851 (1906), the deceased driver was driving a wagon that was struck by a streetcar. Id. at 851. The driver did not appear to be injured initially but died 54 days after the accident from injuries caused by the accident. Id. A few days after the accident, the driver entered into a settlement with the streetcar company wherein the driver released any claims he might have against the streetcar company. Id. at 852. At the time he entered into the settlement, the driver was aware that he had sustained injuries from the accident. Id. Despite this, he signed the settlement. Id. Under the terms of the settlement, the driver's employer was compensated while the driver received no compensation. Id. The driver's children brought suit against the streetcar company. Id. at 851. The Missouri Supreme Court determined that the release was valid and, had the driver survived, would have precluded the driver from bringing suit against the streetcar company. Id. at 853. The driver's children argued that the driver's cause of action and their cause of action, under the wrongful death statute, were two independent causes of action. Id. The Missouri Supreme Court stated:
*763 In other words, the contention is made that our statutes create two separate and independent causes of action, one in the deceased, and another and different one in the widow and minor children, the latter of which cannot be compromised, settled, or adjusted by the deceased in his lifetime, and this is the only seriously contested point in the case here. . . .
Id. Because of the settlement, the Missouri Supreme Court determined that the driver's children could not bring a wrongful death action against the streetcar company. Id. It stated:
We then confront, in direct and unmistakable terms the question as to whether or not, where a person is injured through the negligence or default of another, and before death, makes a settlement with the wrongdoer, can his widow or children yet maintain an action for the death and accrued damage, if any, by reason thereof. This question, we feel constrained, under the authorities and our statutes to answer in the negative. Such answer is right in principle and in our judgment right under a fair and reasonable construction of the statutes. Our statutes never contemplated that there should be two such independent and distinct causes of action in cases of death resulting from a wrongful act, as would authorize a recovery by the injured party in his lifetime, and afterwards another and further recovery by the widow and children in case of his death. Yet this is the force and effect of plaintiff's contention. If, one injured by the negligence of another, can, before death, settle with the tort-feasor, and yet leave a cause of action against the tort-feasor in favor of his wife and children, he can bring suit, recover judgment and receive payment of the judgment, and yet leave this cause of action, if death was in any way a result of the alleged tort. In other words, the alleged negligence might have reduced him to a condition nigh unto death, but with sufficient time before death to sue for and collect damages for his bodily ailments, and he thereafter die, and still leave in full force an action for damages for injuries growing out of the same negligent act, to be enforced by his wife and children as the case may be. To this proposition we have been unable to give our assent. Whether the cause of action given to the widow or children, be denominated a transmitted right, a survival right, or an independent cause of action, it yet remains true that the foundation and gist of each and all is the negligent act which produced the injury. The negligent act was the basis at common law for the cause of action in the husband, and it is likewise the gist and basis of the cause of action in favor of the widow or children, or of the administrator as in some states provided.
Id. It further stated that Missouri courts "look upon the right of the widow and children as a transmitted right and not strictly an independent right of action." Id. After reviewing prior Missouri cases, the court concluded:
From the above it clearly appears that our court recognizes the right of action involved in the case at bar as purely a transmitted right of action. That is to say, the right of action which first existed in deceased, but which, under the terms of the common law, would have died with the deceased, but for these statutes which have preserved and transmitted the same. Our court has not looked upon it as a separate and distinct cause of action. Being a right of action which first existed in the deceased, it necessarily follows that this right of action could be terminated by the deceased in his lifetime either by an adjustment and settlement thereof or by *764 an adjudication in the courts. In either of which cases, at the death of the deceased, whether a settlement of the right of action was made by an adjustment out of court or by adjudication in court, there would be no right of action to be transmitted. And such adjustment or adjudication would be a bar to any subsequent action.
Id. at 854. It quoted, with approval, language from the Supreme Court of Indiana:
[The Indiana wrongful death statute] provides in terms that the action may be maintained by the personal representatives of the deceased for the wrongful act or omission of another if the deceased might have maintained an action, had he lived, for such wrongful act or omission; that is to say, if the deceased, at the time of his death, might have maintained such action, but the deceased having prosecuted to final judgment an action for such wrongful act or omission, and the judgment having been paid and received by him, he at the time of his death could not have maintained an action for such wrongful act or omission, as the right of action in his favor had merged into the judgment which was satisfied, hence no action exists in favor of the personal representatives of the deceased by virtue of the latter section.. . . It was certainly not the intention of the Legislature that where the person guilty of the wrong has been once subjected to a suit by the injured party in his lifetime, and compelled to pay all the damages resulting from the injuries sustained by the wrongful act, he should again be liable to an action in favor of the personal representatives of the injured party after his death, and be again compelled to respond in damages for the same act. . . . It is contended that the [Indiana wrongful death statute] gives a new right of action in favor of the administrator for the benefit of the widow and children, if any, or the next of kin. This is true in a certain sense. Without the statute the action could not be maintained, but in order that it may be maintained the intestate must have had a right of action against the person whose wrongful act or omission caused the injury which he could have maintained had he lived, and when, as in this case, the injured party has prosecuted an action for damages on account of the injury to final judgment, and the judgment has been satisfied prior to his death, he, if he had lived, could not have prosecuted an action against the person causing the injury for the same act or omission.
Id. at 854-55. It also noted:
Whether the right of action is a transmitted right or an original right; whether it be created by a survival statute or by a statute creating an independent right, the general concensus of opinion seems to be that the gist and foundation of the right in all cases is the wrongful act, and that for such wrongful act but one recovery should be had, and that if the deceased had received satisfaction in his lifetime, either by settlement and adjustment or by adjudication in the courts no further right of action existed. There are, however, a few cases to the contrary.
Id. at 856. The Missouri Supreme Court concluded:
We therefore conclude, whether the action is under the second or third section of the damage act, a settlement and adjustment or an adjudication in court, by deceased during his lifetime, is a bar to any action by the widow or children, and in this case the release in evidence is a complete bar to this action. . . .
Id.
Initially, Strode appears to be applicable to this case and to resolve the issue. It *765 does not answer the question presented, however, because the Missouri Supreme Court has changed its understanding of the wrongful death statute. O'Grady v. Brown, 654 S.W.2d 904 (Mo. banc 1983), greatly impacts the utility of Strode as precedent. "In 1983, the Supreme Court of Missouri announced a major shift in its interpretation of Missouri's wrongful death statute." Howell v. Murphy, 844 S.W.2d 42, 46 (Mo.App. W.D.1992). "In O'Grady v. Brown, 654 S.W.2d 904 (Mo. banc 1983), the court announced that the wrongful death statute should not be so strictly construed as to avoid the wrongful death statute's purposes." Id. The Missouri Supreme Court stated:
Respondents assert that this statute must be "strictly construed" because it is "in derogation of the common law." We do not agree. The wrongful death statute is not, strictly speaking, in "derogation" of the common law. Derogation is defined as "[t]he partial abrogation or repeal of a law, contract, treaty, legal right, etc." or as a "lessening, weakening, curtailment, impairment," detraction or taking away of a power or authority. 3 Oxford English Dictionary 232 (1933). Wrongful death acts do not take away any common law right; they were designed to mend the fabric of the common law, not to weaken it. Remedial acts are not strictly construed although they do change a rule of the common law. Steggall v. Morris, 363 Mo. 1224 , 258 S.W.2d 577, 582 (1953). We must therefore apply the statutory language "with a view to promoting the apparent object of the legislative enactment." United Air Lines v. State Tax Commission of Missouri, 377 S.W.2d 444, 451 (Mo. banc 1964).
O'Grady, 654 S.W.2d at 907-08 . The O'Grady court identified three purposes of Missouri's wrongful death statute: (1) providing compensation to bereaved plaintiffs for their loss; (2) ensuring that tortfeasors pay the consequences of their actions; and (3) generally deterring harmful conduct that might lead to death. Howell, 844 S.W.2d at 46 . It determined that providing compensation to bereaved plaintiffs was the "manifest purpose" of the statute. O'Grady, 654 S.W.2d at 908 .
The issue in O'Grady was whether parents could maintain a wrongful death action for the death of a stillborn child. Prior caselaw held that an action for the wrongful death of an unborn fetus could not be maintained because a fetus was not a person within the meaning of the statute. Id. at 906 . The O'Grady court determined that a fetus is a person within the meaning of the statute. Id. at 910 . It examined what it meant for a decedent to be "entitled. . . to recover damages" from the defendant "if death had not ensued." Id. At the time of injury and death, the child was not yet born and, thus, could not maintain a cause of action. Before the wrongful death statute was amended in 1979, the statute used the phrase, "entitled to maintain an action and recover damages." Id. This earlier version had been interpreted to require that the decedent be able to "maintain an action" at the time the injury was sustained. Id. Other prior cases interpreted the earlier version to require that the decedent be able to maintain an action at the time of death as opposed to the time of injury. Id. The O'Grady court's interpretation of the revised version rejected both of these interpretations. Id. It stated that the wrongful death statute creates a new cause of action and does not revive an action belonging to the decedent. Id. In contrast to the holding of Strode , the Missouri Supreme Court held that: "The right of action thus created is neither a transmitted right nor a survival right." Id. It determined that the statute "does not condition recovery *766 upon the existence of a right to sue at either the time of the injury or the time of the death." Id. The test set forth by the O'Grady court is that "a cause of action for wrongful death will lie whenever the person injured would have been entitled to recover from the defendant but for the fact that the injury resulted in death." Id. at 910-11 . The court stated: "But for the fact that the injuries resulted in death, the child would have been born and `entitled to recover' from respondents." Id. at 911 . It determined that the cause of action asserted by the parents were included within the terms of the Missouri wrongful death statute. Id.
The impact of O'Grady is to nullify the reasons asserted for the holding in Strode . Thus, while the Missouri Supreme Court has not specifically stated that Strode is no longer to be followed, its holding is premised upon an interpretation of the Missouri wrongful death statute that no longer applies. Strode does not resolve the issue presently before the court.
Neither is the test set forth in O'Grady and re-articulated in subsequent caselaw helpful. Under Missouri's wrongful death statute, "the right to sue for wrongful death is conditioned on the fact that the decedent could have maintained an action for damages for the injuries sustained had he or she survived." Super v. White, 18 S.W.3d 511, 515 (Mo.App. W.D.2000)(citing Campbell, 876 S.W.2d at 28 ). One interpretation of this standard is that, had Ms. Smith survived, she could not have maintained an action for damages because she had previously asserted such action in federal court, which was resolved by the court's dismissal with prejudice, and thus her survivors were precluded from re-asserting a second action against the same tortfeasors for the same conduct. Another interpretation of this rule is that Ms. Smith could have, and in fact did, maintain an action for damages. This second interpretation is supported by Super , which relied upon an immunity case, and stated: "Hence, for the appellants to succeed on their wrongful death actions against the respondents, based on their claims of medical malpractice, they were required to show the requisite elements of a medical malpractice claim." Id. at 515 . This interpretation suggests that survivors need only show the elements of an underlying cause of action the decedent could have brought, regardless whether the decedent had already asserted the cause of action before death.
B & W also cites, without elaborating, Schmelzer v. Central Furniture Co., 252 Mo. 12 , 158 S.W. 353 (1913). Notably, some sources cite Schmelzer for the proposition that Missouri has adopted the view that personal injury litigation prevents a wrongful death action for the injured person's death. 22A AM.JUR.2D Death § 141 (2006); 22A AM.JUR.2D Death § 144 (2006); Vitauts M. Gulbis, Annotation, Judgment in favor of, or adverse to, person injured as barring action for his death, 26 A.L.R.4th 1264 , § 3[a] (1983). Gulbis also cites Schmelzer as being a case "in which the prior personal injury litigation was decided adversely to the injured person apparently in a trial on the merits" where the court "held that the wrongful death beneficiaries were precluded from relitigating the issue of liability in a subsequent wrongful death action, and that therefore the wrongful death claim was barred." Vitauts M. Gulbis, Annotation, Judgment in favor of, or adverse to, person injured as barring action for his death, 26 A.L.R.4th 1264 , § 6 (1983).
Although not acknowledged by these outside sources, O'Grady greatly decreases Schmelzer 's value as precedent just as it does with Strode . The first section of the Schmelzer opinion bears the heading: "1. *767 Transmitted Cause of Action." The first sentence of the opinion is: "Plaintiff concedes that if a final and valid judgment on the merits has been rendered against her husband in the former case she could not recover in this action. This is undoubtedly true." 158 S.W. at 354 . Strode is cited for this proposition. The issue in Schmelzer was whether a final and valid judgment on the merits had been rendered against the plaintiff's husband as plaintiff claimed that the judgment entered against her husband was void because it was entered fifteen days after his death without suggestions of death having been filed and without the cause being revived in the name of his widow, children, or administrator. Schmelzer, 158 S.W. at 354 . The court concluded that the judgment entered against plaintiff's husband was not void. Id. at 355. It held that a final judgment had been entered against plaintiff's husband, and it was a bar to the prosecution of a wrongful death action. Id. The court reached its conclusion after relying on Strode and the interpretation of the wrongful death statute discussed in Strode . O'Grady impacts Schmelzer in the same manner that it impacts Strode and, thus, Schmelzer does not resolve the issue presented.
A Survey Of Cases From Other Jurisdictions Reveals No Clear Rule
With Missouri caselaw providing little guidance, jurisprudence from other states is examined. [7] A survey of caselaw on this *768 issue reveals a majority and a minority rule. The issue in most of the cases reviewed turned on statutory construction. Vitauts M. Gulbis, Annotation, Judgment in favor of, or adverse to, person injured as barring action for his death, 26 A.L.R.4th 1264 , § 1[a] (1994). Likewise, the issue before this court must be determined by construing Missouri's wrongful death statute.
The Restatement of Judgments summarizes the rule as follows:
When a person has been injured by an act which later causes his death and during his lifetime brought an action based on that act:
(1) If the action resulted in judgment against the injured person, it precludes a wrongful death action by his beneficiaries to the same extent that the person himself would have been precluded from bringing another action based on the act, unless the judgment was based on a defense that is unavailable against the beneficiaries in the second action.
(2) If the action resulted in judgment in favor of the injured person:
(a) If a wrongful death action is permitted only when the decedent had a claim at the time of his death, the judgment precludes such an action to the same extent that the person himself would have been precluded from bringing another action based on the act.
(b) If a wrongful death action is permitted even though the decedent had obtained a judgment for his personal injuries, the judgment precludes recovery of damages in the wrongful death action for such elements of loss as could have been recovered by the decedent in his action.
(3) Issues determined by a judgment for or against a person in an action based on an act which later causes his death are conclusive in a subsequent action for causing his death.
RESTATEMENT (SECOND) OF JUDGMENTS § 46 (1982). Its Comment summarizes the rationales employed as follows:
b. Rationale. The claim for wrongful death that arises in favor of the decedent's family, dependents, or representative can be characterized as either "derivative" from the injured person's own claim or "independent" of it. If the claim for wrongful death is treated as wholly "derivative," the beneficiaries of the death action can sue only if the decedent would still be in a position to sue. In this approach, the decedent's *769 action for personal injuries during his lifetime has the same consequences as it does under the survival statute. See § 45. Accordingly, settlement of the decedent's personal injury claim or its reduction to judgment for or against the alleged tortfeasor extinguishes the wrongful death claim against that tortfeasor. Similarly, issue preclusion applicable against the decedent is applicable also against the claimant in the wrongful death action. If, on the other hand, the claim for wrongful death is treated as wholly "independent," the decedent's disposition of his personal injury claim would have no effect on the wrongful death claim. The situation would be as though the injured person and his beneficiaries each had a separate legal interest in his life, assertable by separate action.
The authorities dealing with the question are in profound conflict. (Moreover, they frequently confuse survival of the decedent's personal injury claim and the incidence of the wrongful death action.) In the distinct majority of jurisdictions, the rule is that the wrongful death action is "derivative," i.e., an action by the beneficiaries under the wrongful death statute is permitted only if the decedent had a claim at the time of his death. On this interpretation of the applicable wrongful death statute, the injured person and his statutory beneficiaries are in effect successively eligible representatives to bring an action for loss resulting from the tortious act. A judgment in an action by the decedent for his injuries has the same preclusive effects on them as it has on him.
Id.
The Majority Position
The majority rule generally holds that personal injury litigation prevents a wrongful death action for the injured person's death. [8] This rule has several variations. Several cases "have expressed the view that a judgment in prior personal injury litigation either in favor of or adverse to the person injured extinguishes any claim for the injured person's wrongful death which might otherwise have been brought by the decedent's survivors and thus bars a subsequent wrongful death action." Vitauts M. Gulbis, Annotation, Judgment in favor of, or adverse to, person injured as barring action for his death, 26 A.L.R.4th 1264 , § 3[a] (1983). Courts expressing this view include interpretation of wrongful death statutes in the following states: Arkansas, [9] Illinois, [10] *770 Indiana, [11] Kentucky, [12] Mississippi, [13] New York, [14] North Carolina, [15] Pennsylvania, [16] South Carolina, [17] and Vermont. [18]
Other cases state that the wrongful death action is barred when the personal injury litigation results in a judgment favorable to the injured person. [19] Courts expressing this view include interpretation of wrongful death statutes in the following states: Arkansas, [20] Florida, [21] Indiana, [22] Illinois, [23] Kentucky, [24] New York, [25] North Carolina, [26] Texas, [27] and Vermont, [28]
Some cases hold that where "the prior personal injury litigation was decided adversely to the injured person apparently in a trial on the merits, . . . the wrongful death beneficiaries were precluded from relitigating the issue of liability in a subsequent *771 wrongful death action, and that therefore the wrongful death claim was barred." Vitauts M. Gulbis, Annotation, Judgment in favor of, or adverse to, person injured as barring action for his death, 26 A.L.R.4th 1264 , § 6 (1983). Courts expressing this view include interpretation of wrongful death statutes in the following states: California, [29] Florida, [30] Louisiana, [31] and Washington. [32]
The majority rule also encompasses releases. If the injured person releases his or her personal injury claims while alive, the majority rule holds that a subsequent wrongful death action is barred. Vitauts M. Gulbis, Annotation, Judgment in favor of, or adverse to, person injured as barring action for his death, 26 A.L.R.4th 1264 , § 2[b] (1983). States with cases asserting this proposition include New York [33] and Rhode Island. [34]
A series of Mississippi cases "taken together appear to have adopted the rule that a judgment in a revived personal injury action in favor of the decedent's representative does not bar a subsequent wrongful death action, although actual recovery of personal injury compensation during the injured party's lifetime bars a subsequent suit for wrongful death." Vitauts M. Gulbis, Annotation, Judgment in favor of, or adverse to, person injured as barring action for his death, 26 A.L.R.4th 1264 , § 3[b] (1983)(citing Hamel v. S. Ry. Co., 108 Miss. 172 , 66 So. 426 (1914); Harris v. Illinois Cent. R.R. Co., 111 Miss. 623 , 71 So. 878 (1916)).
The general rule barring the subsequent wrongful death action is reached for a number of reasons. Some cases cite multiple rationales, while others rely on a sole rationale. Certain courts hold the view that the death statute at issue does not confer a new cause of action but instead provides for the survival of the decedent's cause of action. 22A AM.JUR.2D Death § 142 (2006)(citing Kling v. Torello, 87 Conn. 301 , 87 A. 987 (1913)). This view also holds that the adoption of true survival statutes "did not affect the principle that a release or a recovery by the injured party in his or her lifetime will bar a suit, by his or her next of kin or personal representative, for the death." 22A AM. JUR.2D Death § 142 (2003)(citing Fontheim v. Third Ave. Ry. Co., 257 A.D. 147 , 12 N.Y.S.2d 90 (N.Y.App.Div.1939), appeal granted, 257 A.D. 948 , 13 N.Y.S.2d 281 (N.Y.App.Div.1939)). Courts in Arkansas [35] and Texas [36] have softened this rationale, *772 by finding that the wrongful death action is to some extent derivative.
Other courts interpret the wrongful death statute at issue to require that the decedent have a right of action against the tortfeasor at the moment of death for a suit to be brought for the decedent's wrongful death. [37] Courts expressing this rationale for applying the majority rule include interpretation of wrongful death statutes in the following states: Illinois, [38] Indiana, [39] Kentucky, [40] Mississippi, [41] New York, [42] Oklahoma, [43] and Vermont. [44]
The court in Littlewood v. Mayor of New York, 89 N.Y. 24 (N.Y.1882), held that New York's wrongful death statute did not intend to allow a wrongful death suit where the injured person received a judgment for his personal injuries within his lifetime. While acknowledging that the damages for the two causes of action are different and distinguishable, it found legislative intent to allow a wrongful death suit only if no personal injury suit had been brought during the decedent's lifetime. The condition precedent is that, but for the injured person's death, he or she would have been entitled to maintain an action and recover damages.
In Variety Children's Hospital v. Perkins, 445 So.2d 1010 (Fla.1983), a wrongful death action was brought by the decedent's personal representative. The court held that the suit was barred by a personal injury action prosecuted during the decedent's lifetime, which had been based on the same tortious conduct. In the personal injury action, the minor decedent had recovered damages for injuries that included future expenses, and decedent's parents had recovered for past and future medical expenses. The court stated: (1) the decedent did not have a right of action against the tortfeasor at the moment of death because of the prior cause of action; (2) the paramount purpose of Florida's wrongful *773 death state is to prevent a tortfeasor from evading liability and that purpose is not served by allowing a double recovery; and (3) allowing the case to be relitigated in a wrongful death action would create many additional problems involving the lack of repose, discouragement of settlement, interests of unborn heirs, and res judicata. Id. at 1012 .
Variety reveals two other rationales used for the general rule. Some courts reason that the purpose of the wrongful death statute is to prevent a tortfeasor from evading liability, and allowing double recovery from the tortfeasor does not serve this purpose. Courts expressing this rationale for applying the majority rule include interpretation of wrongful death statutes in Florida, [45] New York, [46] and Pennsylvania. [47] Others cite the problems raised by allowing relitigation. These dangers include lack of repose, discouragement of settlement, interests of unborn heirs, and res judicata. Courts expressing this rationale for applying the majority rule include interpretation of wrongful death statutes in Florida [48] and North Carolina. [49]
Where the courts follow the majority rule in situations where the personal injury litigation during the decedent's life resulted in a judgment for the alleged tortfeasor defendant, issues of res judicata and collateral estoppel are often mentioned in subsequent wrongful death litigation involving the same cause of injury. A judgment for the defendant in an action for personal injuries brought by the injured persons has been held to preclude an action for wrongful death alleged to have resulted from those injuries. 22A AM. JUR.2D Death § 144 (2003). This conclusion can be based "either on the analogy furnished by the rule and its reasons prevailing in the case of a judgment in favor of the injured party, or on independent grounds, such as res judicata or collateral estoppel." [50] Courts reaching this conclusion include interpretation of wrongful death statutes in Arkansas, [51] California, [52] Florida, [53] Illinois, [54] New York, [55] and Texas. [56]
*774 In Frescoln v. Puget Sound Traction, Light & Power Co., 225 F. 441 (D.C.Wash.1915)(applying Washington law), the court held that under the doctrine of estoppel by judgment, a judgment against the injured person in his personal injury suit precluded relitigation of the issue in a subsequent wrongful death action. In Frescoln , the decedent, within his lifetime, brought suit for personal injuries. The matter was decided after his death by the court's entry of JNOV in favor of the defendant. Although the court recognized that the elements of recovery were different in the wrongful death action, it stated that the plaintiff's right of recovery under both claims was based on the assumption that the defendant was negligent. Given that the prior adjudication found in favor of the defendant as to the negligence count, the court held that the adverse judgment in the first suit was res judicata as to the wrongful death action. Unless and until the first judgment was reversed, the court concluded, the wrongful death claim could not be maintained. Id. at 444 .
In Evans v. Celotex Corp., 194 Cal. App.3d 741 , 238 Cal.Rptr. 259 (1987), a worker filed a personal injury suit for injuries resulting from occupational exposure to asbestos products manufactured by defendant. A general defense verdict was entered in defendant's favor. The worker subsequently died as a result of his occupational exposure to asbestos. The worker's widow and children brought a wrongful death suit against the defendant. The court held that the suit was barred by collateral estoppel. The issues regarding the cause of injury in the wrongful death action were identical to the issues in the personal injury action, even though the causes of action were different. Further, the plaintiffs' interests in the wrongful death action were identical to the worker's interests in his action and had been adequately represented.
The Minority Position
The minority rule generally holds that the prosecution or satisfaction of either a personal injury action or wrongful death action does not bar prosecution of, and recovery on, the other. [57] As with the majority rule, the minority rule is stated in a variety of ways. Some courts utilizing the minority rule "express the view that a judgment in favor of an injured person in personal injury litigation does not bar a subsequent claim for the injured person's wrongful death." [58] Courts expressing this *775 view include interpretation of wrongful death statutes in the following states: California, [59] Georgia, [60] Illinois, [61] Massachusetts, [62] Nebraska, [63] New Jersey, [64] Ohio, [65] and Oklahoma. [66] The federal maritime wrongful death statute is also interpreted in this manner. [67]
Other courts apply the minority rule when the judgment in the personal injury action is adverse to the injured party. [68] Courts expressing this view include interpretation of wrongful death statutes in the following states: California, [69] Georgia, [70] Massachusetts, [71] and Ohio. [72]
*776 In New Jersey, when a person has been injured by an act that later causes the person's death and for which the person successfully sued, if a wrongful-death action is permitted even though the decedent had obtained a judgment for his or her personal injuries, the judgment precludes recovery of damages in the wrongful-death action for such elements of loss as could have been recovered by the decedent in his or her action. Alfone v. Sarno, 87 N.J. 99 , 432 A.2d 857, 867 (1981), overruled on other grounds by LaFage v. Jani, 166 N.J. 412 , 766 A.2d 1066 (2001).
The general minority rule allowing the subsequent wrongful death action is followed in several jurisdictions for numerous reasons. Some courts focus on the fact that the damages recoverable differ in personal injury and wrongful death cases. [73] Courts in California, [74] Georgia, [75] and Nebraska [76] have expressed this rationale. In Winding River Village Condominium Ass'n, Inc. v. Barnett, 218 Ga.App. 35 , 459 S.E.2d 569 (1995), a child who nearly drowned when she gained access to a condominium swimming pool recovered for the injuries she sustained in a suit against the condominium association and realty service. The child subsequently died, allegedly from the same genesis of her injuries, and a wrongful death suit was brought. The Georgia court held that that wrongful death action was not extinguished because of the suit during the child's life because the damages recoverable in the wrongful death action, consisting of the full value of the life of the child and expenses resulting from the death of the child, were not recoverable in the prior personal injury action. Id. at 571. A New Jersey court applied the minority rule after determining that the purpose New Jersey's wrongful death statute is to compensate for the survivor's pecuniary losses. Alfone v. Sarno, 87 N.J. 99 , 432 A.2d 857 (1981), overruled on other grounds by LaFage v. Jani, 166 N.J. 412 , 766 A.2d 1066 (2001). Other courts have stated that the "danger of double recovery does not offer a persuasive public policy reason for barring a subsequent wrongful death action, since courts are capable of distinguishing the elements of damage attributable to the injuries and the elements of damage sustained by the injured person's survivors on account of his death." Vitauts M. Gulbis, Annotation, Judgment in favor of, or adverse to, person injured as barring action for his death, 26 A.L.R.4th 1264 , § 2[a] (1983). Some courts find that the wrongful death beneficiaries are not in privity with the injured party who brought the earlier personal injury suit and, accordingly, an adverse determination in the *777 personal injury suit does not bar the subsequent wrongful death suit. Id. Courts in California [77] and Massachusetts have expressed this view. [78]
Other courts hold that a release of personal injury claims does not bar a subsequent wrongful death action because the wrongful death action is wholly distinct from the personal injury claim. [79] Courts in the following states have expressed this rationale: California, [80] Massachusetts, [81] Oklahoma, [82] and Ohio. [83] The federal maritime wrongful death statute is also interpreted in this manner. [84]
The Restatement of Judgments Comment summarizes the rationales for the minority rule as follows:
c. Beneficiaries' claim "independent." In a substantial minority of states, the wrongful death statute has been construed as creating a cause of action in favor of the beneficiaries that is independent, in some degree, of the decedent's claim for his injuries. The question is how "independent" the claim should be. In a very few jurisdictions, the claim is wholly independent in that the beneficiaries under the death statute can recover even though the decedent had prosecuted an action for his personal injuries and suffered adverse judgment on the merits. In the other jurisdictions, the beneficiaries' claim is independent only in that a recovery by the decedent in his personal injury action does not preclude a further action *778 by the beneficiaries. The decedent is in effect treated as having represented the beneficiaries so far as concerns determining the liability of the alleged tortfeasor.. . .
In any event, double recovery of damages is not permitted. In some jurisdictions this is done by defining the measures of recovery in the respective actions in mutually exclusive terms. In others, where the measures of damage overlap, the beneficiaries are precluded from seeking items of damage recoverable by the decedent in his action.
As between treating the death action as wholly independent (so that the beneficiaries can recover even if the decedent lost his action) and treating it as independent in that the beneficiaries can recover their additional damages, the latter view is not only predominant but more just. To allow the beneficiaries to sue when the decedent lost his personal injury action subjects the defendant to two suits over the question of his liability, with the possibility of inconsistent results. It also allows what seems worse than double recovery, an opportunity by one member of a family to recover a loss that was legally refused when sought by another. Furthermore, such a rule has the result that the alleged tortfeasor is bound by the determination of liability if he loses, under the rule of § 29, but does not gain exoneration if he wins, which is anomalous given the community of interest among his adversaries. To preclude the beneficiaries by the outcome of the decedent's action, on the other hand, gives recognition to the substantial coextensiveness of the social and economic interests in the two actions and to the fact that the decedent had every incentive to litigate effectively. At the same time, it permits a "second look" at the damage question when death has intervened after the first action went to judgment.
RESTATEMENT (SECOND) OF JUDGMENTS § 46 CMT. C (1982).
Many courts applying the minority rule recognize that collateral estoppel is still applicable. This includes courts interpreting the wrongful death statute of the following states: California, [85] Indiana, [86] Massachusetts, [87] New Jersey, [88] and North *779 Dakota. [89] This also includes interpretation of the federal maritime wrongful death statute. [90] Courts in California [91] and Georgia [92] have determined that collateral estoppel is not applicable.
Similarly, courts disagree regarding whether res judicata is available. Courts in California, [93] Indiana, [94] and South Carolina [95] have determined that res judicata is not applicable to bar a subsequent wrongful death action because the personal injury action and wrongful death action do not have an identity of causes of action. A court in California [96] has stated that the parties in the two actions are not in privity with one another. A court in Louisiana [97] determined that res judicata is not applicable because the wrongful death cause of action does not exist until the decedent's death. Courts in Indiana [98] have found that res judicata is applicable.
The Restatement of Judgments Reporter's Note states the following:
The problem of issue preclusion does not arise if a wholly "independent" action is allowed; there is no issue preclusion against the beneficiaries. See Kaiser *780 Foundation Hospitals v. Superior Court, supra . The question can arise, however, when the beneficiaries may bring a "supplemental" action for wrongful death after the decedent has brought a personal injury action. If the decedent lost on the question of liability in his personal injury action, that determination is preclusive against the beneficiaries. If the decedent won, the beneficiaries can invoke issue preclusion in their favor under the rule of § 29. They are bound, however, by issues resolved adversely to the decedent, particularly determinations concerning the amount of damage he sustained. Their contentions as to damage must take the prior determination as an established premise. See Sea-Land Services, Inc. v. Gaudet, supra .
RESTATEMENT (SECOND) OF JUDGMENTS § 46 REPORTER'S NOTE (1982).
As is abundantly clear from the above survey of the law, courts in other jurisdictions have applied diverse rules for divergent reasons. Courts in the same state have applied contradictory rules for differing reasons, explaining the lack of consistency by noting that cases holding otherwise are distinguishable. An examination of caselaw from other jurisdictions provides many options, but no clear answer to the question.
The Wrongful Death Action Was Not Barred By The Terms of Section 537.080 In This Case
After considering the exhaustive research, this court concludes that section 537.080 does not bar the wrongful death action filed in this case, despite Ms. Smith having brought a personal injury action during her lifetime for injuries resulting from the same cause of her death. A wrongful death cause of action is created by statute. State ex rel. Griffin v. Belt, 941 S.W.2d 570, 572 (Mo.App. W.D.1997). The language of the statute governs when a wrongful death action may be brought.
The language at issue in section 537.080 is "which, if death had not ensued, would have entitled such person to recover damages in respect thereof." This is strikingly similar to the following language from Lord Campbell's Act: "would (if Death had not ensued) have entitled the Party injured to maintain an Action and recover Damages in respect thereof." Suber by Suber v. Ohio Med. Prod., Inc., 811 S.W.2d 646, 653 (Tex.App.1991). One interpretation of this language, utilized by early English cases is that the decedent must have been able to bring suit at the time of injury or death. Sea-Land Serv., Inc. v. Gaudet, 414 U.S. 573, 580-81 , 94 S.Ct. 806 , 39 L.Ed.2d 9 (1974), overruled on other grounds by Miles v. Apex Marine Corps., 498 U.S. 19 , 111 S.Ct. 317 , 112 L.Ed.2d 275 (1990). "Since Lord Campbell's Act became the prototype of American wrongful-death statutes, most state statutes contained nearly identical language and have been similarly interpreted by state courts." Id. at 581, 94 S.Ct. 806 .
Dean Prosser articulates a different interpretation. Prosser asserts that this language simply means that the underlying act committed by the defendant must be tortious. Id. at n. 8. He has stated:
It is not at all clear, however, that such provisions of the death acts ever were intended to prevent recovery where the deceased once had a cause of action, but it has terminated before his death. The more reasonable interpretation would seem to be that they are directed at the necessity of some original tort on the part of the defendant, under circumstances giving rise to liability in the first instance, rather than to subsequent changes in the situation affecting only the interest of the decedent.
*781 Id. (citing WEST PROSSER, THE LAW OF TORTS, § 127, at 911 (4th ed.1971)). Although acknowledging that it was adopting a minority view, this is the approach endorsed by the United States Supreme Court in interpreting a federal maritime wrongful death action. Id. at 579-82, 111 S.Ct. 317 . The Prosser interpretation of the language at issue seems more logical.
Moreover, in O'Grady the Missouri Supreme Court declared that Missouri's wrongful death statute should not be so strictly construed as to avoid the wrongful death statute's purposes. It directed courts to apply the wrongful death statutory language "`with a view to promoting the apparent object of the legislative enactment.'" O'Grady, 654 S.W.2d at 908 (citation omitted). The O'Grady court identified the three purposes of Missouri's wrongful death statute: (1) providing compensation to bereaved plaintiffs for their loss; (2) ensuring that tortfeasors pay the consequences of their actions; and (3) generally deterring harmful conduct that might lead to death. Id. at 909 . It determined that providing compensation to bereaved plaintiffs was the "manifest purpose" of the statute. Id. at 908 . Finding that Ms. Smith's survivors' wrongful death cause of action was not barred by Ms. Smith's suit in federal court is consistent with this "manifest purpose."
Review of the majority rule reveals that a vast number of courts employing the majority rule hold that a wrongful death action is barred by personal injury litigation because they interpret the wrongful death statute at issue to be transmitted or derivative. [99] Another popular interpretation is that the wrongful death statute at issue requires the decedent to have been able to bring a cause of action at the time of his or her death. O'Grady firmly establishes that neither of these two interpretations applies to the Missouri wrongful death statute. It stated that the wrongful death statute creates a new cause of action and does not revive an action belonging to the decedent. Id. at 910 . The Missouri Supreme Court stated: "The right of action thus created is neither a transmitted right nor a survival right." Id. It also determined that the statute "does not condition recovery upon the existence of a right to sue at either the time of the injury or the time of the death." Id. Thus, these two rationales are not applicable and do not weigh in favor of holding that Ms. Smith's survivors' wrongful death action was barred by the language in section 537.080.
Rationale used by courts adopting the minority approach include that the damages recoverable in a wrongful death action *782 differ from damages recoverable in a personal injury cause of action and that the wrongful death action is wholly distinct from the personal injury claim. This is compelling. Pursuant to section 537.085, damages may be recovered in a wrongful death action for, among other things, pecuniary losses incurred by decedent's death, including, as provided by section 537.090, funeral expenses, and for "the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support" the decedent would have provided. Moreover, section 537.100 provides a statute of limitations for wrongful death action, separate from the statute of limitations applicable to the underlying personal injury action. See, e.g., Denton v. Soonattrukal, 149 S.W.3d 517 , 519 n. 4 (Mo.App. S.D.2004).
Likewise, there is a logical inconsistency in holding that something a decedent does during his or her lifetime bars a wrongful death cause of action. The following language from the South Dakota Supreme Court in Rowe v. Richards, 35 S.D. 201 , 151 N.W. 1001, 1006 (1915), is insightful:
We must confess our inability to grasp the logic of any course of so-called reasoning through which the conclusion is drawn that the husband simply because he may live to suffer from a physical injury and thus become vested with a cause of action for the violation of his own personal right, has an implied power to release a cause of action-one which has not then accrued; one which may never accrue; and one which from its very nature cannot accrue until his death; and one which, if it ever does accrue, will accrue in favor of his wife and be based solely upon a violation of a right vested solely in the wife.
For these reasons, we hold that, pursuant to the language employed in section 537.080, the wrongful death action is not barred in this case, despite the fact that Ms. Smith brought a personal injury action for the injuries eventually resulting in her death during her lifetime. [100]
*783 Section 537.085 should be addressed. It states:
On the trial of such action to recover damages for causing death, the defendant may plead and prove as a defense any defense which the defendant would have had against the deceased in an action based upon the same act, conduct, occurrence, transaction, or circumstance which caused the death of the deceased, and which action for damages the deceased would have been entitled to bring had death not ensued.
In its reply brief, B & W cites this statute and indirectly argues that the wrongful death action should be barred because it would have been able to assert the defense of res judicata against Ms. Smith and, via *784 this statute, against her survivors. B & W fails to clearly articulate this argument. It does not set forth the elements of res judicata and demonstrate that they have been satisfied. It does not claim that section 537.085 encompasses the defense of res judicata. [101] Moreover, it cites section 537.085 for the first time in its reply brief. "[I]ssues not raised in an appellant's opening brief cannot be raised for the first time in the reply brief, and are not properly preserved." Mo. Dep't of Transp. ex rel. PR Developers, Inc. v. Safeco Ins. Co. of Am., 97 S.W.3d 21, 39 (Mo.App. E.D.2002).
The point is denied.
POINT II
In its second point, B & W claims the trial court erred in denying its motion for judgment notwithstanding the verdict on Ms. Smith's survivors' failure to warn claim. [102] It asserts that Ms. Smith's survivors failed to present sufficient evidence to make a submissible case on the claim because they failed to prove that the lack of any warning prior to 1969 [103] that smoking Kool cigarettes was dangerous caused Ms. Smith's death. B & W's second point is focused on the issue of causation.
In an action for negligence, generally, a plaintiff must demonstrate: (1) the defendant has a duty to protect the plaintiff from injury; (2) defendant failed to perform the duty; and (3) the failure to perform the duty resulted in injury to plaintiff. Hill v. Gen. Motors Corp., 637 S.W.2d 382, 384 (Mo.App. E.D.1982). In Missouri, a plaintiff may assert a negligent failure to warn claim pursuant to section 388 of the Restatement (Second) of Torts or a strict liability failure to warn claim pursuant to section 402A of the Restatement (Second) of Torts. Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 383 (Mo. banc 1986). While the defendant's standard of care, knowledge, and fault are relevant considerations in a negligence claim, the defendant may be found liable under a strict liability claim without regard to his knowledge or conduct. Id. Section 388 of the Restatement (Second) of Torts states:
One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
*785 (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
"Missouri has long recognized that a manufacturer has the duty to warn ultimate users of its products or articles which are inherently dangerous or are dangerous because of the use to which they are put." Hill, 637 S.W.2d at 384 . The duty to warn for foreseeable and latent dangers is attendant to the proper and intended use of a product. Id. at 385 . Causation in failure to warn cases requires two elements. Arnold v. Ingersoll-Rand Co., 834 S.W.2d 192, 194 (Mo. banc 1992). First, the product from which the warning was missing must have caused the injured person's injuries. Id. Second, the plaintiff must demonstrate "that a warning would have altered the behavior" of the injured person. Id.
"If there is sufficient evidence from which a jury could find that the plaintiff did not already know the danger, there is a presumption that a warning will be heeded." Tune v. Synergy Gas Corp., 883 S.W.2d 10, 14 (Mo. banc 1994). This rebuttable presumption "assumes that a reasonable person will act appropriately if given adequate information." Arnold, 834 S.W.2d at 194 . "Thus, a preliminary inquiry before applying the presumption is whether adequate information is available absent a warning." Id. It is not enough for the defendant to show that the plaintiff knew of the general dangers associated with the activity; rather, the defendant must show the plaintiff knew of the specific danger that caused the injury. Cole v. Goodyear Tire & Rubber Co., 967 S.W.2d 176, 185 (Mo.App. E.D.1998).
Prior courts have recognized a presumption that a "warning would be heeded only after finding that there was a legitimate jury question whether the plaintiff did not already know the danger." Arnold, 834 S.W.2d at 194 . "[W]hen the defense is raised that the injured plaintiff had adequate knowledge of the risks so as to obviate the duty to warn, the question of the adequacy of the knowledge is a question for the jury." Duke v. Gulf & W. Mfg. Co., 660 S.W.2d 404, 418 (Mo.App. W.D.1983). Given that causation is a required element of Ms. Smith's survivors' case, the burden is on them to show that lack of knowledge. Arnold, 834 S.W.2d at 194 . "In this instance, the term `presumption' is used to mean `makes a prima facie case,' i.e., creates a submissible case that the warning would have been heeded." Tune, 883 S.W.2d at 14 .
As to any assertion that the plaintiff was contributorily negligent, the Missouri Supreme Court has determined that it is "for the jury to say here whether plaintiff was negligent or not." Bean v. Ross Mfg. Co., 344 S.W.2d 18, 28 (Mo. banc 1961). It further found that it is "pure speculation" to hold that, if plaintiff ignored the warnings that were available at the time of injury, he or she would have ignored warnings of the injury actually sustained had they been given. Id. A reviewing court may not "sift" a plaintiff's testimony, "so long as a reasonable probability appears that [the plaintiff] would have heeded a different and more adequate warning." Id. It concluded: "The question of causation here was for the jury." Id.
The second element of failure to warn causation is at issue in this point. B & W asserts that the evidence is uncontroverted that no warning prior to 1969 would have altered Ms. Smith's smoking decisions. [104] *786 It further claims that Ms. Smiths' survivors failed to present evidence of what warning should have been given or that, if given, the warning would have altered Ms. Smith's smoking decisions. Because of this, it claims insufficient evidence was presented demonstrating that failure to warn prior to 1969 caused Ms. Smith's injuries.
B & W asserts four arguments. The first three arguments posit that Ms. Smith would not have heeded a warning, had it been issued prior to 1969, for various reasons. In essence, B & W argues the presumption is inapplicable to this case. First, it argues that Ms. Smith did not stop smoking from 1969 until 1990, when consumers were warned that smoking has adverse health consequences. This is because, according to her testimony, she was completely unaware of the warnings on cigarette packages or any of the research pertaining to smoking and illness until the 1990s. [105] Because Ms. Smith was completely unaware of the research or warnings until the 1990s, she would have been similarly unaware of any warning given prior to 1969. Thus, the presence of warnings would not have impacted Ms. Smith's smoking behavior. Second, B & W asserts that Ms. Smith did not quit smoking because she enjoyed smoking. B & W cites testimony given by Ms. Smith in her deposition wherein she stated she did not pay attention to research regarding the tobacco industry because she enjoyed cigarettes. Ms. Smith also testified that she never tried a low tar or low nicotine cigarette because she liked the cigarette she was smoking. Because she enjoyed smoking, B & W claims, she would not have quit if warned prior to 1969. Third, it argues Ms. Smith was unable, when asked, to specifically identify anything that anyone could have told her that would have convinced her to try quitting smoking any sooner than she did. Ms. Smith never attempted to quit smoking at any time prior to 1990, and she was successful in 1990 when she did attempt to quit.
A closer examination of the presumption, the circumstances under which it arises, and the manner in which it is rebutted is required. The rebuttable presumption as to causation in failure to warn cases is that the injured person would have heeded the warning if the injured person knew of the danger. Cole, 967 S.W.2d at 184 . The presumption arises when sufficient evidence is presented from which a jury could find the injured person did not already know of the danger. Id.
Each of B & W's first three arguments assert that Ms. Smith was unaware of the health risks associated with smoking or do not claim that Ms. Smith was aware of the health risks associated with smoking. Ms. *787 Smith's survivors presented sufficient evidence that Ms. Smith was unaware of the specific injuries that can result from smoking. B & W did not provide any warning to consumers about the health consequences of smoking until 1966. Thus, Ms. Smith was not given any warning from 1942, the time she began smoking, until 1966. From 1966 until 1969, the FCLAA required every package of cigarettes to bear the warning: "Caution: Cigarette Smoking May Be Hazardous To Your Health." Ms. Smith testified that she remembered warnings first appearing on the side of cigarette packages in approximately 1992, and was not aware of warnings on cigarette packages before that time. She also testified that she remembered nothing about the Surgeon General's Report or what it concluded. Ms. Smith never had any rules about smoking in her home. She was permitted to smoke in her work office and the lounge of the dental school where she was employed. She testified she never worked at a place where she was not allowed to smoke. Ms. Smith testified that she did not remember her parents or her doctors talking to her about smoking. She never talked with her children about cigarette smoking and health. She testified that she did not remember any doctor ever telling her to quit smoking before the 1990s. Ms. Smith did not remember reading anything in a newspaper or magazine about cigarette smoking and health until the late 1990s.
Mike Smith, Ms. Smith's son, testified that his mother "didn't have a clue" about how Kool cigarettes were designed. Toni Parker, one of Ms. Smith's daughters, testified that she had no reason to believe that her mother knew at the time she started smoking that cigarettes caused disease. She further testified that she had no reason to believe her mother learned this in the 1950s and 1960s. Ms. Parker further testified that her mother was unaware that Kool cigarettes were nicotine delivery devices.
Given that sufficient evidence was presented from which a jury could determine that Ms. Smith did not already know of the danger of smoking Kool cigarettes, the rebuttable presumption arose. The next inquiry is whether B & W rebutted the presumption. In rebutting the presumption, simply showing that the injured person knew of the general danger is insufficient. Id. at 185 . Instead, the defendant must show that the injured person knew of the specific danger resulting in injury. Id. B & W does not argue or cite evidence demonstrating Ms. Smith knew of the specific danger. [106] Once sufficient evidence *788 is presented from which the jury could determine the injured person was unaware of the specific danger causing his or her injury, the presumption that the injured person would have heeded the warning if given applies. Id. Accordingly, the injured person has made a submissible case that he or she was injured as a direct result of the defendant's selling the product without a warning. Id.
B & W asserts that Ms. Smiths' survivors relied solely upon the presumption that a warning would have been heeded. As noted, supra, the presumption alone is sufficient to make a submissible case, and relying solely on the presumption is not error.
In Tune v. Synergy Gas Corp., 883 S.W.2d 10 (Mo. banc 1994), the defendant contended that the injured person did not make a submissible case on a strict liability failure to warn claim. [107] The defendant asserted that the injured person "failed to show causation because the evidence fails to establish that a warning would have prevented the accident." Id. at 13 . Specifically, the defendant argued that the second prong of causation, that a warning would have altered the behavior of those injured, was not shown. Id. at 14 . The appellate court found that sufficient evidence was presented from which the jury could determine that the injured person did not know of the specific danger causing his injury. Id. Thus, the presumption that warning would have been heeded, if given, arose. Id. The court concluded: "In this instance, the term `presumption' is used to mean `makes a prima facie case,' i.e., creates a submissible case that the warning would have been heeded. Synergy's claim to the contrary is without merit." Id. This is precisely what occurred in the case sub judice.
Arnold v. Ingersoll-Rand Co., 834 S.W.2d 192 (Mo. banc 1992), is also illustrative. In Arnold , the defendant claimed there was insufficient evidence that the failure to warn was a cause of the injuries suffered by the plaintiffs. Id. at 193 . Plaintiffs claimed a warning would have been heeded had it been given. Id. The Missouri Supreme Court discussed the presumption that a warning will be heeded if given. It stated: "The presumption that plaintiffs will heed a warning assumes that a reasonable person will act appropriately if given adequate information." Id. at 194 . Therefore, before the presumption is applied, the court must determine whether adequate information was available absent a warning. Id. Courts recognize the presumption that a warning would be heeded "only after finding that there was a legitimate jury question whether the plaintiff did not already know the danger." Id. The plaintiff is required to prove causation and, thus, bears the burden of showing the lack of knowledge. Id. The court determined that the plaintiffs' evidence failed to demonstrate that a warning would have imparted additional information. Id. The evidence showed that the plaintiffs were aware of the risk of injury resulting from their actions. Id. The Missouri Supreme Court found that, because a warning would not have imparted any additional information, *789 the presumption was rebutted and the cause should not have been submitted to the jury. Id. Unlike Arnold , evidence was presented in this case demonstrating that a warning regarding the health risks of smoking would have imparted additional information to Ms. Smith.
B & W's first three arguments assert that a warning, had it been given, would not have been heeded for assorted reasons. Showing with certainty that the warning would have succeeded in preventing the injury is not necessary in a failure to warn case. Hill v. Air Shields, Inc., 721 S.W.2d 112, 119 (Mo.App. E.D.1986). "It also is not necessary to demonstrate with certainty that warnings placed directly on the product would have been seen and heeded." Id. This is why the presumption exists. Id.
The argument that Ms. Smith's continued smoking until 1990, some 21 years after warnings federally mandated by the FCLAA preempted failure to warn claims, demonstrates that she would not have quit smoking had she been warned prior to 1969 seems compelling at first glance. B & W argues that because Ms. Smith failed to heed the warnings given after 1969, she would have ignored them if they had been given prior to 1969. It asserts that the presumption is rebutted when there is evidence that a smoker ignored warnings that were given, citing Waterhouse v. R.J. Reynolds Tobacco Co., 368 F.Supp.2d 432, 438 (D.Md.2005). This case is not binding on this court, and this court declines to follow it.
B & W also states: "Missouri law is clear that, when a person fails to heed warnings that were given, the heeding presumption is overcome," citing Klugesherz v. American Honda Motor Co., 929 S.W.2d 811, 814 (Mo.App. E.D.1996). Klugesherz does not stand for this proposition. In Klugesherz v. American Honda Motor Co., 929 S.W.2d 811, 814 (Mo.App. E.D.1996), the plaintiff conceded that he was not contending that his child, who was injured in an all terrain vehicle (ATV) accident, would have heeded a warning that he was too young to drive the ATV had it been given. Further, both the owners of the ATV and the child's parents had previously decided that their child was not permitted to ride the ATV and the child rode the vehicle in violation of this decision. Id. The court stated:
Inasmuch as the purpose of the warnings was to communicate that the ATV was not suitable for someone of [the injured child's] age and those in authority had already reached and acted upon their conclusion that [the injured child] should not be permitted to use it under any circumstances, the warning was effectively already being heeded but it did not prevent the accident.
Id. It concluded: "In short, on this record, there is no basis for concluding that additional warnings would have altered the behavior of anyone involved in the accident. Plaintiff's own evidence refutes the presumption." Id. The plaintiff in Klugesherz conceded that the presumption did not apply. That is not the case here.
In Grady v. American Optical Corp., 702 S.W.2d 911 (Mo.App. E.D.1985), employee's safety glasses, provided by his employer, shattered and injured him. The glasses had a warning that was easily removed; the warning did not state that the glass could shatter and injure the wearer's eyes, though. Id. at 914 . The employee asserted a strict liability failure to warn claim against the safety glasses manufacturer. Id. at 915 . The court determined that the question of whether the warning given was adequate was for the jury to decide. Id. at 917 . Pertinent to B & W's argument, the eyeglass manufacturer in Grady observed that employer required its *790 employees to wear safety glasses while working. Id. at 917-18 . Because of this, the manufacturer argued, if there had been a warning, employee would have nonetheless worn the glasses pursuant to the manufacturer's policy and, thus, the warning would not have altered employee's actions. Id. at 918 . In analyzing this argument, the Eastern District observed that the rebuttable presumption arose that the warning would have been heeded because evidence was presented that the employee did not know that the safety glasses could shatter and injure his eyes. Id. It then stated, "In failure-to-warn cases generally, certainty that the existence of the warning would have prevented injury is not required. In the absence of compelling evidence establishing that the absence of a warning did not cause the injury the causation question becomes one for the jury." Id. (citation omitted). It concluded that a submissible case was presented. Id. The same is true here. [108]
B & W's fourth and final argument, though somewhat obliquely made, is that Ms. Smith did have actual notice of the health hazards associated with smoking. It argues that Ms. Smith was warned to stop smoking, but that she ignored these warnings. B & W cites testimony that Ms. Smith's children admonished her to quit smoking and she ignored the admonishment. As summarized, supra, though, evidence was presented that Ms. Smith was unaware of the danger of smoking. The presumption arises if such evidence was presented; it does not require that all the evidence indicate the injured person was unaware. Whether the injured person was unaware of the danger and thus entitled to the presumption is for the jury to decide, assuming sufficient evidence was presented from which it may conclude the injured person was unaware. Such evidence was presented in this case.
Moreover, as to all four arguments, evidence was presented from which the jury could have concluded that, independent of the presumption, Ms. Smith would have heeded a warning had it been issued prior to 1969. Linda Franco, another of Ms. Smith's daughters, testified that her mother seemed to be in very good health until 1990. In 1990, her mother was diagnosed with respiratory problems, which were identified as the beginning stages of emphysema. At this time there was also a concern that Ms. Smith might have cancer, although she was not diagnosed with cancer until 1992. Ms. Franco testified that her mother's doctor recommended that she quit smoking in 1990, and she quit immediately. Thus, evidence was presented that Ms. Smith quit smoking immediately upon being advised to do so by her doctor. The jury could have determined that she would have done likewise had she been warned by B & W prior to 1969.
The point is denied.
POINT III
In its third point, B & W claims the trial court erred in denying its motion for judgment notwithstanding the verdict on Ms. Smith's survivors' strict liability product defect and negligent design claims. It asserts that Ms. Smith's survivors failed to present sufficient evidence to make a submissible case on those claims because they *791 failed to identify or prove any specific defect in the design of Kool cigarettes that rendered them defective or unreasonably dangerous in a manner that caused Ms. Smith's death.
B & W claims that to establish liability for strict liability design defect or negligent design, Ms. Smith's survivors were required to prove that there is "something wrong" with Kool cigarettes that caused Ms. Smith's death. Instead of presenting evidence establishing this, according to B & W, Ms. Smith's survivors attacked all cigarettes in general as inherently dangerous. B & W concludes that, because Ms. Smith's survivors failed to identify or prove any specific defect in the design of the Kool cigarettes smoked by Ms. Smith that rendered them unreasonably dangerous, they failed to make a submissible strict liability defect or negligent design case.
Strict Liability Product Defect
A manufacturer is liable under a strict liability product defect claim "if the product was in an unreasonably dangerous defective condition when put to a reasonably anticipated use, and the plaintiff was damaged as a direct result of such defective condition as existed when the product was sold." Richcreek v. Gen. Motors Corp., 908 S.W.2d 772, 775 (Mo.App. W.D.1995); § 537.760. [109] The Missouri Supreme Court first adopted strict tort liability in Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362 (Mo.1969). Richcreek, 908 S.W.2d at 775 . Keener involved a defect in a product's manufacturing process and the court adopted the strict liability rule set forth in section 402A of the Restatement (Second) of Torts. [110] Id. Strict liability was extended to design defects in Blevins v. Cushman Motors, 551 S.W.2d 602 (Mo. banc 1977). Id.
A manufacturing defect occurs when "`something goes wrong in the manufacturing process and the product is not in its intended condition.' The product is evaluated against the producers' own standards, *792 and compared to like products." Richcreek, 908 S.W.2d at 776 . In a design defect case, however, "there is no doubt that the product is in the condition intended by the manufacturer." Id. In such a case, the defect is in the design given that "`[t]he manufacturer had deliberately added or omitted the challenged component and has presumably made that decision after balancing a variety of factors.'" Id. (citation omitted). Manufacturing defect refers to the improper assembly of an individual product whereas design defect refers to a product, by nature of its design, being unreasonably dangerous. Id.
In Blevins , the Missouri Supreme Court "took care to stress that under a theory of strict tort liability, the focal point of the litigational process is the condition or character of the product and not the character of the defendant's conduct." Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 375 (Mo. banc 1986). "Although the focus of a products liability suit brought under a theory of strict tort liability is on the condition or character of the product rather than on the nature of the defendant's conduct, the doctrine of strict tort liability is not, nor was it ever intended to be, an enveloping net of absolute liability." Id. A manufacturer is not an insurer for all injuries caused by its products. Id.
"[T]he primary inquiry in a design defect case is whether the product— because of the way it is designed—creates an unreasonable risk of danger to the consumer or user when put to normal use." Id. In a design defect case, the plaintiff must demonstrate "that the product, as designed, is unreasonably dangerous and therefore `defective', and that the demonstrated defect caused his injuries." Id. at 375-76 . The "heart and soul" of a strict liability design defect case is unreasonable danger and causation. Id. at 376 . While a plaintiff must establish that a product is defective by proving that it was unreasonably dangerous as designed, he or she "is not required to show that the manufacturer or designer is at fault." Ray v. Upjohn Co., 851 S.W.2d 646, 655 (Mo.App. S.D. 1993).
Under Missouri law pertaining to strict tort liability "the concept of unreasonable danger, which is determinative of whether a product is defective in a design case, is presented to the jury as an ultimate issue without further definition." Nesselrode, 707 S.W.2d at 378 . Given this, the approved jury instruction for a design defect claim does not contain a definitional paragraph giving independent content to the concept of unreasonable danger. Id. Instead, the "jury gives this concept content by applying their collective intelligence and experience to the broad evidentiary spectrum of facts and circumstances presented by the parties." Id. In Missouri, there is not an external standard by which to determine unreasonable danger. Id. "Nothing prevents the litigants from arguing that the utility of a design outweighs its risks, or that consumer expectations were violated, or any other theory of unreasonable dangerousness supported by the evidence." Newman v. Ford Motor Co., 975 S.W.2d 147, 154 (Mo. banc 1998).
"Under Missouri's strict tort liability, a product's design in deemed defective when a preponderance of evidence shows that the design renders the product unreasonably dangerous." Stinson v. E.I. DuPont De Nemours & Co., 904 S.W.2d 428, 431 (Mo.App. W.D.1995). As noted by the Stinson court:
In Wilson v. Danuser Mach. Co., 874 S.W.2d 507 (Mo.App.1994), the Southern District recently reviewed the evidence in a design defect case to determine if the plaintiff made a submissible case *793 under strict liability-product defect. The court explained that "[plaintiff] had no burden to establish product failure or malfunction." Wilson, 874 S.W.2d at 513 . He met his required burden by showing the product, a log splitter, as designed, was unreasonably dangerous and therefore "defective." Id.
Id. In Stinson , the defendant argued that the plaintiff must prove the defective condition and dangerous character of a product as two distinct elements of a strict liability claim. Id. It contended that the plaintiff did not prove that the product was defective and, therefore, did not make a submissible strict liability product defect case. Id. It cited a manufacturing defect case for this proposition. Id. The court concluded: "In Missouri, the burden of proving that a product's design is defective is satisfied when the product is proven unreasonably dangerous." Id. This court found that a submissible case had been presented:
The Stinsons presented evidence that DuPont's activators, 192S and VGY1421, contained isocyanates; DuPont's products were designed to contain isocyanates; isocyanates are the second most toxic substance known in the world today; isocyanates are the most common cause of occupational asthma in this country; isocyanate exposure can create permanent lung damage; and seven percent of the people who are exposed to these kinds of isocyanates become sensitized. The Stinsons made a submissible case that DuPont's paint containing isocyanates was unreasonably dangerous and therefore "defective."
Id. Similarly, the court in Ray v. Upjohn Co., 851 S.W.2d 646, 655 (Mo.App. S.D. 1993), found that the plaintiff presented sufficient evidence to establish the product at issue was unreasonably dangerous:
Plaintiff presented evidence that PAPI was designed to contain isocyanates; that isocyanates are the leading cause of occupational asthma; that isocyanate exposure can create permanent disability and irreversible pulmonary injury; and that 5% of the population exposed to isocyanates will acquire permanent asthma. Plaintiff sufficiently established that PAPI was unreasonably dangerous.
B & W argues that in order to establish a strict liability design defect claim Ms. Smith's survivors were required to prove the existence of a feasible and safer alternative design. This court addressed this issue recently in Thompson v. Brown & Williamson Tobacco Corp., 207 S.W.3d 76 (Mo.App. W.D.2006). In Thompson , B & W and another tobacco company [111] claimed that the plaintiff failed to make a submissible case on his strict liability product defect and negligent design claims. Id. at 89 . B & W claimed that the plaintiff failed to identify an actionable defect in their cigarettes because he did not introduce evidence of an alternative design that would have prevented his injuries. Id. B & W argued that the mere fact a product is dangerous is not sufficient to establish liability; instead, B & W asserted that plaintiff must also prove that the injury was caused by a failure to use a feasible alternative design. Id. This court concluded: "In doing so, B & W and PM USA misstate the law in Missouri as to strict tort liability, and cite no Missouri authority that alternative design is a requirement in a negligence claim." Id. This court noted that Missouri has rejected both the "reasonable alternative/risk-utility" test set forth in the Restatement (Third) of Torts; Products *794 Liability, section 2(b) and the "consumer expectation test." [112] Id. at 89-90 . In both this case and in Thompson , B & W cited Siebern v. Missouri-Illinois Tractor & Equipment Co., 711 S.W.2d 935, 939 (Mo.App. E.D.1986), as authority for its assertion that proof of an alternative design is required. This court stated in Thompson : "Certainly, the plaintiff may introduce such evidence in support of showing the design was defective and therefore unreasonably dangerous, but under Nesselrode, Newman, and Rodriguez [ v. Suzuki Motor Corp., 996 S.W.2d 47 (Mo. banc 1999)], such is not required." Id. at 90 n. 5. Thus, proof of an alternative design is not required, and B & W's argument is without merit.
B & W next argues that Ms. Smith's survivors presented evidence demonstrating that Kool cigarettes are dangerous, not because of anything particular about their design, but because they are part of a category of products called "cigarettes." It asserts that Ms. Smith's survivors' evidence showed that there is nothing about Kool cigarettes that is different from any other cigarette. It cites Richardson v. Holland, 741 S.W.2d 751, 753 (Mo.App. S.D.1987). In Richardson the plaintiff claimed that a gun was defective and unreasonably dangerous because it belonged to a class of guns known as "Saturday Night Specials." [113] Id. The petition alleged neither a defect in manufacturing nor a defect in design causing the gun to malfunction. Id. The court stated:
It was not the intention of the drafters of § 402A to propose strict liability for all harm caused by the use of products. Nor was it their intention to propose liability for all harm caused by products that might be considered (by some) to be socially undesirable because of the hazards they pose when they are perfectly made. The liability they proposed then was limited to harm caused by products because there was `some thing wrong' with them.
Id. (citation omitted). The court concluded that plaintiff needed to allege a defect in the gun's manufacture or design in order to state a cause of action. Id. at 754. [114]
*795 B & W notes that the federal government and the State of Missouri define a cigarette as tobacco wrapped in paper. 15 U.S.C. § 1332 (1)(A); § 149.011(2). It asserts that Ms. Smith's survivors merely presented evidence that Kool cigarettes are dangerous solely because they belong to a class of products labeled cigarettes. [115] B & W cites certain evidence presented at trial to support its point. It claims that some of this evidence was uncontradicted. Under the standard of review, this court examines whether evidence was presented so that a submissible case was made. Appellate courts do not consider contrary evidence. Payne, 177 S.W.3d at 832 . "The jury, as the trier of fact, was free to believe or disbelieve all, part or none of the testimony, even if it was unimpeached or uncontradicted." Harmon v. Hamilton, 903 S.W.2d 610, 613 (Mo.App. S.D.1995)(emphasis added). The following evidence was presented.
Dr. Jeffrey Wigand, a biochemist and former director of research at B & W, testified that Kool cigarettes contained more free nicotine than any other cigarette on the market. He further stated that Kool cigarettes were traditionally known for their harshness and impact. Impact referred to the effect of nicotine on the body. Because of their harshness, the body naturally rejects the inclination to smoke them. In order to overcome the body's reaction, menthol was added to Kool cigarettes. Dr. Wigand stated: "Menthol allows you to defeat the body's normal processes and to breathe it in, not only breathe it in, but also breathe it in deeper." He further testified that B & W clearly knew that adding menthol to cigarettes ameliorated their harshness. Spearmint and peppermint were also added to ameliorate the harshness of Kool cigarettes. Dr. Wigand also stated that B & W added cumarin to its cigarettes until 1987 or 1988. Cumarin is a sweet tasting chemical substance shown to be toxic in animals. He testified that Kool cigarettes were safer after cumarin was removed from them. Moreover, he stated that different types of tobacco were blended in certain ways in Kool cigarettes to ensure certain nicotine delivery. B & W also devoted research efforts to determining how to release more nicotine in its cigarettes. Dr. Wigand testified that when he became employed by B & W he signed an agreement to not disclose trade secrets, indicating that Kool cigarettes were different from other cigarettes and their formula required protection.
Dr. David Burns, a professor of medicine and author, reviewer, or editor of every United States Surgeon General's Report on smoking and health published since 1975, testified that Kool cigarettes contain nicotine, which creates the addiction to cigarettes. He stated nicotine is the reason people smoke. He also stated *796 that the earlier in life one starts smoking, the harder it is to break the addiction. Dr. Burns concluded that Ms. Smith was addicted to smoking.
He also testified that, since the 1950s, cigarettes have been "a highly engineered product." He stated that "very precise specifications" are used by the manufacturer with respect to what the smoker perceives she inhales when smoking a cigarette. He determined: "That's to make the cigarette more attractive, more palatable, easier to smoke." In describing the manufacturing process, Dr. Burns stated that the tobacco leaf is taken apart so that the stems and ribs can be used to make paper. It is chopped up, processed, and the constituents are removed. Then chemicals, flavoring agents, and the slurry from tobacco are added. The paper made from this process is chopped up to precise specifications and mixed back in with some of the remnants of the tobacco leaf. That is then used to make the cigarette. Dr. Burns stated that, due to the engineering of the cigarette, cigarettes made as of the time of trial "are capable of causing as much or more lung cancer than the cigarettes forty years ago."
He testified that Kool cigarettes were different from other cigarettes in the blend of tobacco used and some of the flavoring agents. He further stated that the smoke from Kool cigarettes is one of its distinguishing characteristics. This is because it contained menthol, an anesthetizing agent that numbs the back of the throat. This makes it easier to inhale more deeply and allows more nicotine to be delivered to the body. Dr. Burns concluded that Kool cigarettes are unreasonably dangerous. He stated that he held this opinion to a reasonable degree of medical certainty. Dr. Burns also testified that B & W claimed that Kool cigarettes had the most scientifically tested filter in the world, indicating it was safer than other cigarettes.
Dr. Burns stated that about 40,000 chemicals are in cigarette smoke and that approximately 60 of these have been shown to cause cancer. He testified that these chemicals are a combination of anything that is added to native tobacco, anything that changes in the native tobacco as the cigarette is manufactured. Thus, these chemicals are the result of Kool cigarettes being more than mere tobacco wrapped in paper.
He also testified about Project Ariel, an effort by B & W in the 1960s to reduce the toxicity of smoke delivered to smokers by making engineering changes to cigarettes. B & W abandoned the project because of the difficulty in marketing a safer cigarette without admitting the current cigarette presented risks.
This is sufficient evidence to make a submissible case on the claim that B & W's cigarettes were unreasonably dangerous. The evidence presented went beyond a categorical attack on the danger of cigarettes in general. Instead, it demonstrated specific design choices by B & W that had the potential to affect Ms. Smith's health during the time period she smoked. See Thompson, 207 S.W.3d at 94-96 .
B & W argues in its reply brief that the evidence presented indicating that Kool cigarettes are different from other cigarettes does not demonstrate that these differences rendered Kool cigarettes more likely to cause Ms. Smith's death than any other cigarette. This argument is raised for the first time in the reply brief, and is not considered on appeal. Mo. Dep't of Transp. ex rel. PR Developers, Inc. v. Safeco Ins. Co. of Am., 97 S.W.3d 21, 39 (Mo.App. E.D.2002).
*797 Negligent Design
B & W's second point also asserts that Ms. Smiths' survivors failed to make a submissible case on their claim of negligent design because they failed to identify a specific defect in the design of Kool cigarettes that caused Ms. Smith's death. B & W's briefs, however, are focused upon the strict liability product defect claim. As to the negligent design case, B & W states: "To succeed on a negligent design claim, plaintiffs were required to prove that B & W did something wrong that caused Mrs. Smith's death." It does not articulate an argument that a specific defect is required in a negligent design case or provide authority for this assertion as to negligent design claims.
In its original briefs, B & W cites three cases as authority for its negligent design argument. [116] B & W cites Hatch v. V.P. Fair Foundation, Inc., 990 S.W.2d 126, 139 (Mo.App. E.D.1999), for the proposition that "negligence is `predicated upon failure to observe a prescribed standard of care.'" It does not set forth the standard of care governing its conduct or argue that the standard was observed. Moreover, this language is taken from a discussion in Hatch of a cause of action for recklessness.
B & W also cites Callahan v. Cardinal Glennon Hospital, 863 S.W.2d 852, 862-63 (Mo. banc 1993), for the proposition that "`but for' causation is required." Perhaps this statement could be interpreted as an argument that but for causation was not demonstrated in the case sub judice. This is different from the argument asserted in the point relied on, however. Further, the plaintiffs in Callahan asserted a medical malpractice, and not a negligent design, cause of action.
Finally, B & W states the rule that a manufacturer is not an insurer for all injuries caused by its products, citing Nesselrode, 707 S.W.2d at 375 . This rule does state that a manufacturer is not liable for any injuries caused by its products, though. B & W fails to set forth what the delineation is pertaining to injuries for which a manufacturer is liable and those for which it is not in a negligent design case. It also does not articulate why Ms. Smith's injuries fall within the category of injuries for which it is not liable.
In its reply brief, B & W cites Stevens v. Durbin-Durco, Inc., 377 S.W.2d 343, 346 (Mo.1964), for the proposition that a manufacturer is not liable as an insurer. As noted by this court in Thompson, Stevens goes on to say: "The manufacturer of a [dangerous product] properly made and free of latent defects and concealed dangers, may not be held liable merely because someone was injured while using the product." Id. at 347 (emphasis added). As in Thompson , B & W fails to address the applicability of this aspect of Stevens. See Thompson, 207 S.W.3d at 96 n. 10.
B & W has provided this court with little to review regarding the submissibility of the negligent design claim. It fails to cite specific relevant Missouri authority or corresponding relevant evidence to support its claim. See Id. at 96 . B & W has not set forth the elements of a negligent design claim or argued in what manner the evidence presented was insufficient as to the elements. Appellate courts cannot become advocates for parties by speculating on arguments not clearly made. See, e.g., Nelson v. Nelson, 195 S.W.3d 502, 514 (Mo.App. W.D.2006).
The point is denied.
*798 POINT IV
In its fourth point, B & W claims the trial court erred in denying its motion for judgment notwithstanding the verdict on Ms. Smith's survivors' strict liability product defect and negligent design claims. It asserts that Ms. Smith's survivors failed to make a submissible case on those claims because claims based upon the inherent risks of cigarettes are barred by federal conflict preemption.
B & W asserts that federal policy precludes banning ordinary cigarettes. Congress has expressly permitted the manufacture, sale, and marketing of cigarettes despite their well-known health risks. Because of this, according to B & W, federal law precludes liability under state law tort theories that assess damages for the general health risks of cigarette smoking, as opposed to liability for specific defects in the design of a particular cigarette.
B & W relies upon FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 , 120 S.Ct. 1291 , 146 L.Ed.2d 121 (2000), wherein the Unites States Supreme Court stated:
Congress, however, has foreclosed the removal of tobacco products from the market.... More importantly, Congress has directly addressed the problem of tobacco and health through legislation on six occasions since 1965. When Congress enacted these statutes, the adverse health consequences of tobacco use were well known, as were nicotine's pharmacological effects. Nonetheless, Congress stopped well short of ordering a ban.
Id. at 137-38 , 120 S.Ct. 1291 (citations omitted). B & W argues:
Theories of liability that seek to recover damages on the ground that all cigarettes carry health risks, or that they are inherently dangerous to smoke simply because they are cigarettes, are preempted because the only way that a cigarette manufacturer could avoid liability would be to stop selling cigarettes altogether. Federal law precludes this result because it amounts to a constructive ban.
B & W claims that, as set forth in its third point, Ms. Smith's survivors' evidence demonstrated only that all cigarettes carry the same health risks, and nothing distinguishes Kool cigarettes from ordinary cigarettes, defined as tobacco wrapped in paper. Because of this, according to B & W, federal law preempts the claim.
This court need not determine whether B & W's statement of the law is accurate. Even if it were, it must fail because, as discussed in the analysis of Point III, Ms. Smith's survivors did more than present evidence that all cigarettes carry the same health risks. Instead, they demonstrated that B & W made specific design choices that had the potential to negatively impact Ms. Smith's health. Thus, by the terms of its own argument, the point fails.
Moreover, the strict liability product defect and negligent design claims are not preempted. The Supremacy Clause of the United States Constitution provides state laws conflicting with federal laws have no effect. Cipollone , 505 U.S. at 516, 112 S.Ct. 2608 . "Consideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law." Maryland v. Louisiana, 451 U.S. 725, 746 , 101 S.Ct. 2114 , 68 L.Ed.2d 576 (1981). Congress' intent to override state law is shown in several ways:
We have recognized that a federal statute implicitly overrides state law either when the scope of a statute indicates that Congress intended federal law to occupy a field exclusively, English v. General Elec. Co., 496 U.S. 72, 78-79 , *799 110 S.Ct. 2270, 2274-2275 , 110 L.Ed.2d 65 (1990), or when state law is in actual conflict with federal law. We have found implied conflict pre-emption where it is "impossible for a private party to comply with both state and federal requirements," Id. at 79 , 110 S.Ct. at 2275 , or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67 , 61 S.Ct. 399, 404 , 85 L.Ed. 581 (1941).
Freightliner Corp. v. Myrick, 514 U.S. 280, 287 , 115 S.Ct. 1483 , 131 L.Ed.2d 385 (1995). "Congress' enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted." Cipollone, 505 U.S. at 517 , 112 S.Ct. 2608 .
This court addressed this argument recently in Thompson, 207 S.W.3d at 92-93 , wherein it stated:
We find that the opinion in FDA was specifically addressing the regulatory authority of the FDA, in light of its jurisdiction under the FDCA, to regulate nicotine in cigarettes as a drug, as compared with the specific statutes regulating tobacco enacted by Congress. We find nothing in our reading of FDA that supports B & W and PM USA's argument that Congress has preempted state law liability claims. Furthermore, we decline to accept B & W and PM USA's leap of logic that because the FDCA regulations require that products the FDA regulates must either be safe for intended use, have a therapeutic benefit that outweighs the potential for injury, or, if not, that the product be removed from the market, means that the only way for them to avoid liability for inherently dangerous components of their cigarettes in a state law claim would require an outright ban on their products, a result precluded under federal law.
Id. at 93. [117]
B & W further argues that Ms. Smith's survivors' claims are implicitly preempted. It cites Geier v. American Honda Motor Co., 529 U.S. 861 , 120 S.Ct. 1913 , 146 L.Ed.2d 914 (2000), for this proposition. As stated by this court in Thompson :
For the first time in their reply brief and in support of their claim that the opinion in FDA prohibits any state law claims which would amount to a ban on the sale of cigarettes, B & W and PM USA rely on Geier v. American Honda Motor Co., 529 U.S. 861 , 120 S.Ct. 1913 , 146 L.Ed.2d 914 (2000), for differentiation of express preemption and implied conflict preemption. They contend that the holding in Cipollone refers to only express preemption of the duty to warn, but that implied conflict preemption read into FDA supports their claim. We decline to venture such a broad reading of FDA .
Thompson, 207 S.W.3d. at 93 n. 9. Ms. Smith's survivors' strict liability product defect and negligent design claims are not preempted.
The point is denied.
POINT V
In its fifth point, B & W claims the trial court erred in denying its motion for judgment notwithstanding the verdict on Ms. Smith's survivors' negligent failure to warn and negligent design claims. It asserts that Ms. Smith's survivors failed to make a submissible case on those claims because *800 they failed to show that B & W owed any duty to Ms. Smith in light of the evidence that the dangers of smoking are commonly known.
As noted, supra, in an action for negligence, generally, a plaintiff must demonstrate: (1) the defendant has a duty to protect the plaintiff from injury; (2) defendant failed to perform the duty; and (3) the failure to perform the duty resulted in injury to plaintiff. Hill, 637 S.W.2d at 384 . At issue in this point is the first element, that B & W had a duty to protect Ms. Smith from injury. B & W asserts there is no duty as to a negligent design claim if the risk of injury was open, obvious, and apparent, citing Stevens v. Durbin-Durco, Inc., 377 S.W.2d 343, 347 (Mo.1964). As to a negligent failure to warn claim, B & W asserts there is no duty if the risk of injury was open and obvious to the plaintiff or commonly known, citing Young v. Wadsworth, 916 S.W.2d 877, 878 (Mo.App. E.D.1996). It contends the health risks associated with smoking have long been matters of public knowledge and were well known during the period Ms. Smith smoked. B & W further claims that this common knowledge negates the first element of Ms. Smith's survivors' negligence claims for failure to warn and design defect.
In Stevens , the plaintiff was injured while using a load binder. Stevens, 377 S.W.2d at 344 . Plaintiff was a truck driver with 16 or 17 years experience. Id. Plaintiff and another driver were securing a load onto a flatbed truck trailer with a chain and load binder. Id. The load binder's purpose was to take the slack out of the chain, allowing a tight attachment of the load to the trailer. Id. Plaintiff was familiar with load binders, as they were generally used in the trucking industry. Id. at 345 . He was also aware of the risks posed by using load binders. Id. Immediately prior to the accident, plaintiff warned the other driver to get his head out of the way "before it tears it off." Id. A pipe used with the load binder struck plaintiff on the face, causing serious injury. Id. Plaintiff brought a negligence cause of action against the manufacturer of the load binder. Id. at 346 . The court noted that plaintiff was a remote user of the load binder. Id. The Missouri Supreme Court reviewed relevant cases and stated: "the manufacturer may be liable if the defect or danger is latent or concealed, but where the danger is open, obvious and apparent, or the user had actual knowledge of the defect or danger, there is no liability on the manufacturer." Id. at 347 . The court further stated:
Accordingly, where the product is free of latent defects and concealed dangers; where the perilous nature of the product and the danger of using it is obvious and not concealed; where its normal functioning creates no danger not known to or appreciated by the user; where it is properly manufactured to accomplish the function for which it is designed, the manufacturer has `satisfied the law's demands' and is under no duty to make it `more' safe by providing a built-in safety device.
Id. at 348 . The court determined that the "perilous nature" of the load binder was obvious and apparent to plaintiff and that use of the load binder "created no danger not known to and appreciated by plaintiff, an experienced trucker who had used load binders for years and knew and appreciated full well their dangerous characteristics and propensities." Id. The court held that plaintiff failed to show the existence or breach of any duty owned by the manufacturer. Id.
In Young , patient consulted a doctor, giving a history of recent complaints of light headedness, nausea, vomiting, episodes *801 of shaking and tremors, that he experienced a "near" blackout while driving his vehicle approximately six weeks prior, and that he had an "acute blackout and fainting spell" the previous day while using a telephone at his residence. Young, 916 S.W.2d at 878 . The doctor prescribed Xanax, recommended patient increase his meals to six per day, equipped patient with a monitor so as to monitor his heart rhythms, and encouraged patient to go on about his normal activities. Id. Xanax is a medication commonly used to treat depression and anxiety; it has known medical side effects of drowsiness or light-headedness. Id. At trial, there was no evidence that patient had filled the prescription or taken the Xanax. Id. That afternoon, after leaving the doctor's office, patient suffered a blackout spell while driving his vehicle and crashed into a vehicle with three occupants. Id. The driver of the second vehicle was killed and the two passengers were injured. Id. A suit for the driver's wrongful death and the passengers' injuries followed. Id. Plaintiffs alleged the doctor was negligent because he did not warn patient to not drive a car while taking Xanax. Id. The court noted that no evidence was presented that patient was of other than normal intelligence. Id. It further observed that patient had suffered two previous episodes of blackouts, one while driving and one the day before the accident. Id. Patient reported both of these episodes to the doctor so that the doctor knew patient was aware of the blackouts. Id. The court stated:
It is common knowledge based on common sense that a person subject to sudden unexpected blackouts should not operate a motor vehicle. The cause of the accident was the action of [patient] in operating his vehicle when he was subject to blackouts and he knew he was subject to blackouts. There is no duty or need to warn of dangers which are open and obvious or which are commonly known.
Id.
This issue was addressed recently in Thompson, 207 S.W.3d at 96-106 . [118] The court noted that the duty owed in negligence cases "`is based on the foreseeable or reasonable anticipation that harm or injury is a likely result of acts or omissions.'" Id. at 97 (quoting Blevins v. Cushman Motors, 551 S.W.2d 602, 607-08 (Mo. banc 1977)). "Whether a duty exists is a matter of law, and `[f]or purposes of determining whether a duty exists, [the Missouri Supreme Court] has defined foreseeability as the presence of some probability or likelihood of harm sufficiently serious that ordinary persons would take precautions to avoid it.'" Id. at 98 (quoting Lopez v. Three Rivers Elec. Co-op., Inc., 26 S.W.3d 151, 156 (Mo. banc 2000)). Per Thompson , the issue presented is whether B & W had a duty to inform Ms. Smith of the dangerous properties of Kool cigarettes or whether it was relieved of that duty, as a matter of law, because it had a reason to believe she would realize the dangerous condition of its cigarettes. Id. at 99 .
After reviewing Missouri law, this court concluded in Thompson that the "open and obvious" danger limitations sufficient to bar a negligence claim, as a matter of law, "relate primarily to those dangers which are visibly ascertainable." Id. This court noted:
Barring a claim as a matter of law is a drastic step, and the court must be certain that the danger was so obvious that the defendant should not bear any responsibility *802 for resulting damage, and visual evidence is a verifiable confirmation of what is or should have been known to the injured party. This is especially so in light of Missouri's adoption

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1450809. Public record. Not legal advice.