The Missouri Supreme Court heard oral arguments Tuesday regarding the dismissal of the UM System Board of Curators from a lawsuit against Mizzou BioJoint.
Edward “Kip” Robertson III, who argued before the state high court on behalf of former patients who have sued the Missouri Orthopaedic Institute’s BioJoint Center, said “sovereign immunity was never meant to be the sword that the university is wielding now.”
Robertson pointed out that MU spent money developing and researching the Missouri Osteochondral Preservation System, a joint replacement procedure that has been the subject of at least seven lawsuits. He also said the university entered a partnership with BioJoint as a business and has a patent for the proprietary procedure.
The hearing was the latest development in a lengthy legal fight surrounding Mizzou BioJoint and more than 20 former patients who have alleged in lawsuits against two MU doctors and the curators that their joint replacements failed. The topic of sovereign immunity and whether the university has it in this case was the subject of the majority of Tuesday’s arguments.
“The university stands to make money off of the procedure that was performed on the patients,” Robertson said. He told the court that the university has spent millions marketing the procedures and bought a business insurance policy, and, as a result, waived sovereign immunity. It remains unclear when exactly the policy was purchased.
Some of the money the university spent advertising Mizzou BioJoint included a spot that was played locally during a Super Bowl.
The patients are suing the university for “misleading advertisements about a novel, proprietary and experimental preservation system and surgical procedure performed at the Mizzou Biojoint Center,” according to the 115-page brief filed with the Missouri Supreme Court.
The first of now more than 10 lawsuits filed on behalf of former patients against two MU doctors and the curators was filed in 2018. But, the university was dismissed from the case by Judge J. Hasbrouck Jacobs of the 13th Circuit Court for Boone County after attorneys representing MU filed a motion claiming that the university was protected by sovereign immunity.
Darci Madden, who represented the university Tuesday, asserted the court had “recognized the university’s sovereign immunity for more than 70 years.” She argued the university did not waive its immunity, which protects the university for education and research purposes.
The immunity also “protects the money of the taxpayers,” she argued.
Robertson called the claim about education and research a “lie.” He went on to say that the university cannot “research, market and inject the procedure into the market” and then claim immunity when lawsuits are filed. He speculated that the framers of the Missouri Constitution would never have intended for sovereign immunity to become “the Frankenstein” that it is.
The lawsuits against the two MU doctors, James Stannard and James Cook, are ongoing. They allege, among other claims, that patients were not made aware that the surgery they were advised to undergo “had a failure rate as high as 86%,” according to court documents.
Furthermore, the lawsuits state that Stannard was “negligent and carelessly failing to advise plaintiff that defendant Cook was not a licensed physician or an orthopedic surgeon.”
The Missouri Supreme Court did not disclose when it will rule.