Claims under Federal and State Racketeering Acts And Other Civil Remedies
There are three types approaches to civil remedies a defendant might pursue to inhibit the flow of false claims in products cases. First, a defendant could seek to take on the entire procedure by which these claims have been developed and focus broadly on the alliance between plaintiffs’ lawyers and their medical accomplices. The Federal Racketeering Act, RICO, offers the most likely avenue of attack for such a wide-ranging approach. Indeed, this was the approach that the CSX Railroad took in seeking redress from fraudfeasor radiologist Dr. Ray Harron and his lawsuit industry collaborators.[1] Second, the product liability defendant could select a limited number of bogus claims and file suit related specifically to those claims. Third, the product liability defendant can seek remedies in the specific cases, after prevailing, for bad faith filings or improper conduct by lawyers.
A Challenge under RICO to the Broad Pattern Of Misconduct By Plaintiffs’ Lawyers And Their Medical Collaborators
The federal RICO statute allows a private plaintiff damaged by a “pattern of racketeering activity” to sue those involved in conducting the affairs of an enterprise through a pattern of such unlawful conduct.[2] One of the central aspects of RICO is that it provides a civil remedy for misconduct that would otherwise be subject only to criminal sanctions. On the other hand, to qualify for such unique remedies, a plaintiff must satisfy a number of difficult, technical requirements under the RICO statute.
While a substantial and complex body of case law has developed under RICO, the following are the main issues that bear on the viability of such a claim against the lawyers and medical professionals who are responsible for allegedly bogus claims, such as were seen in the Silica MDL:
- The existence of repeated instances of the misconduct on which the RICO claim is predicated;
- A showing that there has been a pattern or practice of such misconduct;
- Proof that a person has conducted the affairs of an enterprise engaged in interstate commerce through the pattern of racketeering activity.[3]
Putting aside the various – and significant – technical issues, a product liability defendant must meet three fundamental requirements of persuasion before a court will likely allow it to proceed, namely showing that the pattern of false claims the product liability defendant confronts:
(1) falls well outside the normal bounds of litigation misconduct (given that courts are all too accustomed to experts whose testimony conveniently favors their respective sides);
(2) is such a wide-ranging problem that it cannot properly be addressed on a case-by-case basis like most issues of bad faith litigation conduct; and
(3) raises issues that are susceptible of judicial, rather than legislative, redress.
The Predicate Offense
The most central requirement for a RICO plaintiff is the identification of an illegal “predicate act” within the meaning of RICO – that is, an illegal action which, taken together with other instances of similar conduct, constitutes a “pattern” of racketeering activity. The statute contains a long list of enumerated predicate offenses, one of which must occur in a “pattern” over a sufficiently long period of time for there to be a valid claim under RICO. While there are several candidates, the most promising theory here is that the plaintiffs’ lawyers have engaged in repeated acts of bribing witnesses to provide false and/or misleading testimony at depositions and at trial — in particular, the medical professionals whose diagnoses are the linchpin of the false claims, such as those seen in the Silica MDL.[4] It is also possible that the product liability defendant could bring a RICO case based on predicate acts of mail and wire fraud.
“Bribery” of Witnesses; Obstruction of Justice; Witness Tampering
In defining “racketeering activity,”[5] the federal RICO statute expressly refers to certain offenses that pertain to the administration of justice, including obstruction of justice,[6] witness tampering,[7] and bribery.[8] These statutes, however, only apply to offenses committed in the course of federal proceedings.
On the other hand, Section 1961(1)(A), of the federal criminal code, also refers to “bribery. . . .chargeable under State law and punishable for imprisonment for more than one year. . . .” There is substantial authority to the effect that “bribery” is a generic designation and does not limit predicate acts to state laws that are specifically labeled as bribery. Rather, a court need only determine whether the alleged misconduct is the type of activity which falls within a general description of bribery.[9] Product liability defendants may well have a claim that the dealings between plaintiffs’ lawyers and the physicians involved in medical screenings involve an ongoing course of what can properly be viewed as bribes to witnesses to submit materially false evidence in violation of state law. Several points support this position.
There is authority under state law that payments to witnesses to provide favorable testimony do in fact constitute bribery.[10] For example, the Texas Penal Code provides that:[11]
“(a) A person commits an offense if, with intent to influence the witness, he offers, confers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding[[12]] or coerces a witness or prospective witness in an official proceeding:
(1) to testify falsely;
(2) to withhold any testimony, information, document, or thing… .”
Similarly, Mississippi, another jurisdiction where screening activities have taken place with some abandon, has enacted a prohibition against “bribery to induce perjury” which provides as follows:
“Every person who shall, by the offer of any valuable consideration, attempt, unlawfully and corruptly, to procure any other person to commit willful and corrupt perjury as a witness in any cause, matter, or proceeding in or concerning which such other person might by law be examined as a witness, shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding five years.”[13]
In the silica MDL cases, Judge Jack’s opinion did not specifically find that a corrupt payment was made on any particular occasion. Rather than describing the exchange of a specific envelope of cash, the silica MDL opinion described an ongoing course of corrupt remuneration paid to medical professionals who were all too willing to bend their opinions and subvert medical standards. Any attempt to characterize such a pattern of behavior as witness bribery must answer two basic questions:
(1) are the medical witnesses being paid for expert services, rather than the content of their testimony; and
(2) would awarding relief in this case establish a wide-ranging precedent under which legitimate experts would be chilled from rendering opinions and litigants’ access to the courts correspondingly restricted.
There seems no good reason to excuse the collaboration of lawyers and expert witnesses that results in the procurement of convenient, false, and exaggerated testimony from the laws that condemn tendering false evidence.
The proof problem, however, for situations in which the illicit payments take more subtle forms, such as “fees” for hired experts as opposed to envelopes of money for lay witnesses, may become intractable. In practice, it will be easier to persuade a court to consider the payments made for favorable diagnoses (such as silicosis in the silica MDL) as bribes if the evidence shows that the hired physicians’ testimony was perjured. Perjured testimony would certainly encourage courts to permit juries to consider whether the witness payments were for the substance of testimony, rather than for disinterested professional services. Furthermore, a showing of perjury would reduce any judicial concern that the litigation would chill legitimate expert witness opinion testimony, especially in novel contexts.
The federal bribery statute specifically carves out payment of reasonable fees to expert witnesses.[14] But expert witnesses clearly have no immunity from the prohibitions against accepting compensation for the substance of testimony. The proof problems for expert witnesses are differentially greater than they are with lay witnesses. The basic requirement of truthful testimony, however, is a constant. Notwithstanding that expert witnesses are entitled to fair compensation for their expertise, judicial concerns over the corrupting influence of excessive fees and testifying date back to the 19th century.
The difficulty in showing that the procured opinion testimony was deliberately false may be mitigated in cases such as the claimed silicosis cases in the silica MDL by showing that the opinions were given with full knowledge that they were insufficient under professional standards and scientific, medical principles. Furthermore, there is the matter of physicians reading the same X-ray in two, inconsistent ways. In any event, under the federal RICO statute (as opposed to the analogous state RICO statutes) showing perjury in a state court proceeding will not be enough to state a valid claim. A showing of perjury, however, combined with the other aspects of the relationship between the plaintiffs’ lawyers and their cooperating medical screeners may support an inference of bribery, which in turn may serve as a predicate offense for RICO liability.
Fraud
GAF’s claims of frauds discussed[15] earlier focused on the claim that asbestos plaintiffs’ lawyers focused had committed RICO predicate acts of mail fraud,[16] and wire fraud,[17] by submitting fraudulent claims for payment. Much of the GAF litigation focused on arguments about whether GAF’s successive complaints satisfied the requirement of Federal Rule of Civil Procedure 9(b) that allegations of fraud be pled “with particularity.”
Although Judge Jack’s thorough opinion showed that fraud claims certainly had a basis in fact in the context of the silica MDL, that litigation illustrates a central problem; namely, how can a defendant prosecute a civil fraud or RICO case when it knew that the claims were bogus, litigated the soundness of the diagnoses, and prevailed by having the diagnoses excluded. Detrimental reliance is, of course, a key general element of any fraud claim. In the case brought by GAF, this issue was resolved in favor of GAF, but based on GAF’s argument that it had relied on fraudulent affidavits in connection with settlements of cases. Thus, in essence, GAF adequately pleaded that it had relied on the fraudulent misstatements.[18]
Notwithstanding the general requirement that a fraud claim plead detrimental (and reasonable) reliance, there is authority that would support a RICO claim even if the RICO plaintiff did not rely on the fraudulent representations.[19] The reliance of a third party, such as a court or a jury may satisfy the reliance requirement.
“Pattern Of Racketeering Activity”
Apart from the requirement of showing that predicate acts have occurred, a complaint under RICO must plead the existence of “a pattern of racketeering activity.”[20] The RICO statute defines a “pattern of racketeering activity” as requiring a showing of “at least two acts of racketeering activity” committed within a 10-year period. Most courts recognize that a “pattern” usually means more than two, with some courts requiring plaintiffs to show “continuity plus relationship” between or among the predicate acts to establish a “pattern of racketeering activity.”[21] The Supreme Court has stated that RICO plaintiffs can show “continuity plus relationship” for purposes meeting the RICO statutory RICO’s “pattern of racketeering activity” requirement by establishing a nexus between the defendant’s predicate acts.[22]
A plaintiff can establish the nexus by showing that “the criminal acts have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.”[23] The continuity element is basically a temporal connection, satisfied by showing “the predicates themselves amount to, or . . . otherwise constitute a threat of continuing racketeering activity.”[24] RICO plaintiffs can meet their burden by alleging and proving that either
(1) that the defendant’s predicate acts or offenses were part of the defendant’s regular way of doing business;[25] or
(2) that “a series of related predicates extend[ed] over a substantial period of time.”[26]
The Supreme Court has made clear that the proper focus is on long-term criminal conduct, and stated that “[predicate] acts extending over a few weeks or months and threatening no future criminal conduct [would] not satisfy [the continuity] requirement.”[27] The federal circuits have continued to disagree about how to apply this mandate.
To succeed on a RICO claim, a product liability defendant must show that the pattern of activity with which it is concerned satisfies the continuity requirement inherent in the statutory reference to a “pattern of racketeering activity.” The misconduct must have taken place over a significant period of time and over a wide number of cases; it must be ongoing and constitute a basic method of doing business for those involved.
Conducting the Affairs of the “Enterprise” Through the Pattern of Racketeering Activity
A complaint under RICO must also allege that a person has “conduct[ed]” the affairs of an enterprise engaged in interstate commerce through the pattern of racketeering activity.
Distinction between the Enterprise and the Pattern Of Racketeering Activity
An enterprise is a group of persons or entities associating together for the common purpose of engaging in a course of conduct.[28] Under the federal RICO statute, the enterprise may be a legal entity or “any union or group of individuals associated in fact although not a legal entity.”[29] A confederacy of individuals or entities may be a valid “associat[ion] in fact” enterprise. But “[t]he plaintiff alleging an association-in-fact enterprise must adduce evidence demonstrating ‘an ongoing organization, formal or informal, and . . . evidence that the various associates function as a continuing unit.’ ”[30] As one of the Circuits has stated, such an “associat[ion] in fact” enterprise:[31]
(1) must have an existence separate and apart from the pattern of racketeering,
(2) must be an ongoing organization and
(3) its members must function as a continuing unit as shown by a hierarchical or consensual decision making structure.
In considering the plaintiffs’ counsel’s racket in the Silica MDL as a protential RICO case, we must assess whether the network of silica plaintiffs’ lawyers and the cooperating medical screeners can properly be characterized as an “enterprise” within the meaning of RICO. Although the corrupt nature of the enterprise was apparent to Judge Jack, a RICO case will require particularity in pleading and proof of the cross-ties between the participants in the scheme. Beyond the evidence proffered in the Rule 702 hearing in In re Silica, a RICO plaintiff would have to develop further the ongoing relationships between plaintiffs’ counsel and the screening and sham-diagnosing physicians by showing their collaboration in and through professional organizations, joint efforts to influence legislation, and other activities, to define the nature and scope of their enterprise.[32]
Remedies
There are two types of remedies that might be available based on the RICO claim. First, the plaintiff could seek the consequential damages incurred as a result of the pattern of racketeering activity. Second, the plaintiff could seek equitable relief, including an injunctive to halt the illegal conduct.
Damages — Under section 1964(c) a RICO plaintiff must be “injured in his business or property” and “shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee . . .” “[T]he plaintiff only has standing if, and can only recover to the extent that, he has been injured in his business or property.”[33] To seek consequential damages under RICO, an aggrieved product manufacturer would have to prove that the pattern of illegal behavior has imposed reasonably quantifiable costs.
In cases where the product liability defendant already prevailed, the defendant could seek the costs of defending the action. Although the issue is not finally settled, there is strong authority for the proposition that litigation costs can be awarded under RICO notwithstanding the general rule that parties bear their own court costs.[34] This rule is particularly appropriate in cases in which the predicate acts directly increased the difficulty and cost of defense.
If a product liability claim proceeded to jury verdict in favor of the plaintiff, the product manufacturer could not seek damages until it obtained relief from judgment. A final judgment in favor of plaintiff would bar, under the doctrine of res judicata, any RICO claim for the misconduct that went into obtaining the verdict.
Equitable Relief – The product liability defendant might also seek an injunction against a continuation of the pattern of racketeering activity in which the lawyers and medical professionals have engaged. Whether Section 1964(c) authorizes equitable remedies for private litigants is an issue that has divided courts.[35]
Filing Suit against Lawyers and Physicians Involved in Particular Bogus Claims or Groups of Claims
State Fraud and Malicious Prosecution Actions
A defendant facing perjurious testimony in a line of improper product liability cases might also consider filing a test case against those responsible for a particular bogus claim or group of claims. Although a single test case might seem to be easier endeavor than a broad RICO action, that is not necessarily true, due to the difference in the legal theories available. As noted above, RICO and its state counterparts are notable for the fact that they allow civil remedies for misconduct proscribed by criminal law.
To prevail in a suit alleging malicious prosecution of a civil claim, in Texas for instance, a plaintiff must establish the following elements:
“(1) the institution or continuation of civil proceedings against the plaintiff;
(2) by or at the insistence of the defendant;
(3) malice in commencement of the proceedings;
(4) lack of probable cause for the proceeding;
(5) termination of the proceedings in defendant’s favor; and
(6) special damages.”[36]
Texas courts have made clear that “a plaintiff must suffer a special injury before recovering for malicious prosecution of a case.”[37] A party is deemed to have suffered special damages when there is “some physical interference with a party’s person or property in the form of an arrest, attachment, injunction, or sequestration.”[38]
State-law based fraud claims raise the difficulties of proof of detrimental reliance discussed above in the context of RICO; namely, whether the product liability defendant must demonstrate that it detrimentally relied on the fraudulent conduct it alleges. Some of the RICO case law promisingly suggests that third-party’s reliance will suffice, but there is a dearth of precedent for most states’ common law fraud. A number of states have adopted their own state analogues of the federal RICO statute. One potential advantage of proceeding under state RICO is that obstruction of justice may, in some states, serve as a predicate offense, without having to demonstrate bribery.
Common Law Negligence Actions against Testifying Physicians
Although the harm arising from misleading opinion testimony can be substantial and readily foreseen, the law of most states gives testifying expert witnesses immunity from suit for negligently false or misleading testimony.[39] More recent cases have prohibited parties from suing their adversaries’ expert witnesses, but have permitted parties to sue their own expert witnesses.[40]
In 1984, New Jersey took a big step towards permitting actions against adversarial expert witnesses by allowing a suit against an “impartial expert,” jointly appointed by the parties to render a binding asset valuation. The New Jersey Supreme Court, in reversing a summary judgment for the expert, held that such an expert witness has no immunity from claims for breach of agreement, for breach of fiduciary duty, and for negligence.[41]
The Texas Supreme Court has allowed a man involuntarily committed to proceed with a negligence action against the psychiatrist who served as an expert witness for his children.[42] In decades since these narrow exceptions, there has been little movement on reducing the immunity that expert witnesses enjoy for incorrect testimony, negligently or even recklessly given.
Actions or Motions to Disqualify Testifying Expert Witnesses from Participating in Future Proceedings
Under the laws of most states, there is no opportunity to bar an expert witness from participating in future litigation endeavors on the basis of his past derelictions of duty. The closest remedy to such prospective prohibition is a professional sanction such as licensure suspension or revocation, which would be readily discovered and used to impeach the offending expert witness in future cases. As we have seen, such a sanction is quite rare in the United States.
Monetary Sanctions against Attorneys
Both state and federal law contain a variety of remedies for improper litigation conduct, including Federal Rule of Civil Procedure 11, 28 U.S.C. § 1927, and the inherent supervisory powers of the court, and others, to address improper litigation expert witness conduct. Historically, these three approaches have not provided any meaningful remedy against meretricious expert witness testimony.
Conclusion
Encouraged by legal counsel, and fueled by partisan zeal or desire to shape public policy through the workings of tort law, expert witnesses have shaped and distorted the law. The imposition of a reliability standard in Federal Rule of Evidence 702 has ameliorated the situation a bit in federal court, at least when federal district judges are willing to make the effort to understand the science and examine the testimony for its logical and scientific gaps and errors. The situation in many state courts is not so sanguine, and there are situations in all courts where more serious remedies than simple exclusionary rules are needed. The law is catching up with the magnitude of the problem created by the prosecution of mass torts, with fortunes at stake. The solutions will take creativity and persistence from those aggrieved by bogus science and bad medicine in the courtroom.
[1] CSX Transp., Inc. v. Peirce, 974 F. Supp. 2d 927 (N.D. W. Va. 2013), app. dism’d sub nom. CSX Transport., Inc. v. Gilkison (4th Cir. Nov. 6, 2014).
[2] 18 U.S.C. § 1962(c).
[3] Section 1962 contains other prohibitions against racketeering activity. However, the prohibition in § 1962(c) referred to above is the most plausible avenue for relief in the present context.
[4] While the plaintiffs themselves are likely encouraged to give false or unfounded testimony, the medical professionals are a more appropriate subject of attention, for both substantive and tactical reasons.
[5] 18 U.S.C. § 1961(1)(B).
[6] 18 U.S.C. § 1503.
[7] 18 U.S.C. § 1512.
[8] 18 U.S.C. § 201.
[9] “The state law felony offenses listed in § 1961(1)(A) are included by generic designation, and the test for determining whether particular acts fit into the generic category of predicate offense is whether the complaint alleges the type of activity generally known or characterized in the proscribed category.” Heden v. Hill, 937 F. Supp. 1230 (S.D. Texas 1996) (citing United States v. Forsythe, 560 F.2d 1127, 1137 (3d Cir.1977)).
[10] 18 U.S.C. § 201 criminalizes “bribery of public officials and witnesses” in federal proceedings. This language lends further credence to the conclusion that transferring improper benefits to witnesses in exchange for favorable testimony constitutes “bribery” within the meaning of the RICO statute.
[11] Texas Penal Code § 36.05, entitled “tampering with witness,” makes such undue influence on witnesses punishable by a prison term of not less than two years.
[12] The phrase “official proceeding” is no longer defined in the statute. A 1993 amendment to the Texas Penal Code deleted the prior definition, which would have been broad enough to encompass civil cases brought in state court, as well as a variety of other contexts.
[13] Mississippi Statute § 97-9-65. This statute cross-references the Mississippi RICO law.
[14] 18 U.S.C. § 201(d) (“Bribery of public officials and witnesses).” Similarly, Texas and Mississippi both have rules that allow payment of reasonable expert fees in their Rules of Professional Conduct. See V.T.C.A., Govt. Code T. 2, Subt. G App. A, Art. 10, § 9, Rule 3.04 (a lawyer may pay “a reasonable fee for the professional services of an expert witness.”); MS R.P.C. Rule 3.4 Comment (“it is not improper to pay a witness’s expenses or to compensate an expert witness on terms permitted by law. The common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee.”)
[15] “Legal Remedies for Suspect Medical Science in Products Cases – Part One” (June 2, 2020).
[16] 18 U.S.C. § 1341.
[17] 18 U.S.C. § 1343.
[18] See G-I Holdings, Inc. v. Baron & Budd, 238 F.Supp. 2d 521, 539-40, 542-43 (S.D.N.Y. 2002).
[19] See, e.g., Ideal Steel Supply Corp. v. Anza, 373 F.3d 251, 262-63 (2d Cir. 2004) (“a plaintiff who is injured as a proximate result of RICO predicate acts of fraud need not prove his own reliance, rather than that of a third party… .”); Procter & Gamble Co. v. Amway Corp., 242 F.3d 539 (5th Cir. 2001) (upholding RICO claim by Procter & Gamble against competitors that disseminated rumors that plaintiff was linked to Satanism, although plaintiff had in no way relied upon those rumors); City of New York v. Cyco.Net, Inc., 2005 WL 174482 (S.D.N.Y., Jan. 27, 2005).
[20] 18 U.S.C. § 1961(5).
[21] See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, n.14 (1985).
[22] H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239, 251 (1989.
[23] Id. at 240.
[24] Id.
[25] Id. at 240-42. Such allegations established an “open-ended” pattern.
[26] Id. at 242. Such allegations establish a “closed-ended” pattern.
[27] Id.
[28] United States v. Turkette, 452 U.S. 576, 583 (1981).
[29] 18 U.S.C. § 1961(4) (emphasis added).
[30] Whelan v. Winchester Prod. Co., 319 F.3d 225 (5th Cir. 2003)(quoting Turkette, 452 U.S. at 583).
[31] Crowe v. Henry, 43 F.3d 198, 205 (5th Cir. 1995).
[32] See, e.g., State Farm Mut. Auto. Ins. Co. v. Giventer, 212 F.Supp. 2d 639 (N.D. Tex. 2002) (rejecting RICO claim by automobile insurer defrauded into paying claims when plaintiff failed to an enterprise of plaintiffs’ lawyers and chiropractic clinics).
[33] Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985).
[34] See, e.g., Malley-Duff & Assocs., Inc. v. Crown Life Ins. Co., 792 F.2d 341, 354-55 (3d Cir. 1986), aff’d, 483 U.S. 143 (1987); Stochastic Decisions Inc. v. DiDomenico, 995 F.2d 1158, 1167 (2d Cir. 1993). On the other hand, a court may be reluctant to award litigation costs with respect to claims that have not yet been resolved.
[35] Compare Nat’l Org. for Women, Inc. v. Scheidler, 267 F.3d 687 (7th Cir. 2001) (private equitable relief available), with Religious Technology Ctr. v. Wollersheim, 796 F.2d 1076 (9th Cir. 1986) (private equitable relief unavailable).
[36] Fuqua v. Graber, 158 S.W.3d 635, 638 (Tex. Ct. App. 2005), quoting Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 207-08 (Tex. 1996).
[37] Tex. Beef Cattle, 921 S.W.2d at 208-09.
[38] Id. at 209, citing Sharif-Munir-Davidson Dev. Corp. v. Bell, 788 S.W.2d 427, 430 (Tex. App. 1990). Similarly, the elements of a tort of malicious prosecution is Mississippi are: “(1) the institution of a proceeding (2) by, or at the insistence of the defendant (3) the termination of such proceedings in the plaintiff’s favor (4) malice in instituting the proceedings and (5) the suffering of injury or damage as a result of the prosecution.” Williams v. Jungle, — So. 2d – , 2005 WL 43721 (Miss. Jan. 11, 2005), citing McClinton v. Delta Pride Catfish, Inc., 792 So. 2d 968, 973 (Miss. 2001). All of the elements must be proven by a preponderance of the evidence. See Williams, — So. 2d, 2005 WL 43721 at *1, citing Van v. Grand Casinos of Mississippi, Inc., 724 So. 2d 889, 891 (Miss. 1998).
[39] See, e.g., Briscoe v. LaHue, 460 U.S. 325 (1983)(noting that expert witnesses have absolute immunity for harm caused to opposing parties from incorrect or misleading testimony).
[40] See, e.g., LLMD of Michigan, Inc. v. Jackson-Cross Co., 740 A.2d 186, 191 (Pa. 1999) (holding that a party may sue its expert witness for negligence); Murphy v. A.A. Mathews, 841 S.W. 2d 671, 682 n.11 (Mo. 1992).
[41] Levine v. Wiss & Co., 97 N.J. 242, 478 A.2d 397, 402 (1984).
[42] James v. Brown, 637 S.W.2d 914 (Texas 1982) (per curiam).
