Beetem adds appeals attorney fees to Kerr discrimination costs

With two of her attorneys seated at left, Pat Rowe Kerr, at right, listens to Judge Jon Beetem's jury instruction Monday, July 11, 2016 in her case against Larry Kay in Cole County Circuit Court.
With two of her attorneys seated at left, Pat Rowe Kerr, at right, listens to Judge Jon Beetem's jury instruction Monday, July 11, 2016 in her case against Larry Kay in Cole County Circuit Court.

Cole County Circuit Judge Jon Beetem last week told the state it must pay an additional $60,882 in attorneys' fees and costs, for the appeal in Pat Rowe Kerr's retaliation, gender and age discrimination case.

That brings the state's total bill to $3,877,672.59 - not including interest at 5.5 percent that's still being calculated.

Beetem's five-page order included a finding that "Defendants have not contested the reasonableness of the (fees) calculated by (Kerr's attorneys and) have not challenged the hourly rates of (her) counsel or the number of hours that they expended in connection with the appeal."

Loree Ann Paradise, Attorney General Josh Hawley's deputy chief of staff, said Wednesday: "Consistent with our obligations, the Attorney General's Office vigorously defended the case on behalf of the State of Missouri.

"Now that the litigation is concluded, we respect the court's decision."

Kerr served as the Missouri Veterans Commission's ombudsman until early 2009, when she was transferred to another position.

She was terminated Nov. 10, with then-Director Larry Kay saying her job and some others were cut because of budget issues.

After receiving a right-to-sue letter from Missouri's Human Rights Commission, Kerr sued the Veterans Commission and Kay in 2011.

Beetem heard the case during a 10-day trial in July 2016, and a jury rejected the state's defenses, awarding Kerr $1.3 million in actual damages plus $1.575 million in punitive damages.

Beetem later added the interest charges and attorneys' fees and costs at the trial level totaling $941,790.

The state appealed, and on Oct. 31, the state's Kansas City District appeals court upheld the jury's verdict and Beetem's handling of the trial, ordering Beetem to calculate the appeals costs.

In his ruling adding the attorneys' fees and appeals costs, Beetem noted the Human Rights Act "provides that "[t]he court may award court costs and reasonable attorney fees to the prevailing party as a matter of course," and Kerr was the prevailing party at the trial and appellate levels.

Kerr's attorney, Jerry Dobson, of St. Louis, said Wednesday: "It is our opinion the jury's award was well-justified, because not only did Pat have her career shattered by the actions of the Missouri Veterans Commission and its (former) executive director - her losses over her lifetime (will be) something in the neighborhood of eight or nine years of salary, (and) her pension is going to be significantly diminished."

No money has been paid yet, and when the bills are paid, the money will come from the state's Legal Expenses Fund.

The interest charges don't apply to all of the money awarded.

In fact, Dobson noted, Kerr won't get all of the money the jury awarded, because state law says the state gets half of the punitive damages award that's left after her attorneys' fees are paid - based on whatever contingency fee arrangement was made between the client and lawyer.

Dobson said his firm had a contingency fee agreement with Kerr, but declined to discuss its exact details as being part of his confidentiality agreements.

"The reality is that, in most of these cases on a punitive damages award, the plaintiff winds up with only 30 percent of the amount awarded, because the attorney takes the contingent fee and the state takes one-half of the net," he said.

At best, the plaintiff might get one-third of a punitive damages award, he said.

"I think it's fundamentally unfair," he said, "and I don't know why the state should receive a portion of the punitive damage award, but that unfortunately is the law."

The state's share of the punitive damages goes to the Tort Victims' Compensation Fund.

"I think it is especially important that we have punitive damages against governmental entities," Dobson said, "because government is particularly slow to respond to this kind of behavior."

Some have complained in social media comments that the state's paying the damages is coming unfairly from taxpayer dollars.

However, Dobson noted, if Kerr had not been terminated from a state agency, her salary and benefits also would have come from state funds.

"I think the much larger cost to the state is through the illegal conduct which cost veterans the services of Pat Rowe Kerr and her team, that worked diligently to make the lives of veterans better," he said.

Correction: See Punitive damages sometimes benefit "uncompensated tort victims" for an explanation of a mistake contained in the original version of this article which has since been corrected in the text above.