The best movie I saw from last year was “Darkest Hour,” which was the story of those critical days in May 1940 when Winston Churchill, as prime minister of Great Britain, had to decide whether to negotiate with Germany while over 300,000 British soldiers were desperately waiting on the shores of Dunkirk trying to make it back to England.
If you haven’t seen this great movie and “Dunkirk,” I strongly encourage you to do so. Churchill’s decision not to negotiate terms with Hitler was one of the great moments in modern history. If England had surrendered, who knows what would have happened?
There is a scene in “Darkest Hour” that is Hollywood drama and probably never occurred as portrayed. Churchill was known to wander around the streets of London to talk to common folk. In the movie, while the Churchill is deciding what to do under intense pressure, he is on an underground subway riding along with common folk of London.
At the high moment of the movie, Churchill asks those on the “tube” if England should negotiate with Hitler, and each one boldly says to never give in. Although the scene in the movie probably never occurred, the famous words of Churchill thereafter did.
He said: “We shall defend our island, whatever the cost may be, we shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender.” The Brits had no quit in them.
My former partner, the Honorable Mike Manners, is a longtime student of movie history. During our 20 years together, we would spend many hours after work sharing a drink together and talking about great moments in movies. I have often thought he patterned his courtroom style after Jimmy Stewart in “Anatomy of a Murder.” One of my most vivid memories of trying cases with Mike did not occur in the courtroom but on a journey to Warrensburg, where we were getting ready to try a case. We were riding along U.S. 50, and Mike reached in his glove box, pulled out a cassette tape and stuck it in the tape player. This was obviously long ago.
I had no idea what we were about to listen to, but it soon became apparent. Mike and I listened to George C. Scott’s portrayal of General George S. Patton famous “blood and guts” speech in the movie about his life. Patton was addressing his troops in front of a huge American flag and getting them ready for battle, and the theme of his speech was the essentially the same theme of the scene from “Darkest Hour.” Mike was preparing for war in the courtroom.
I reflected back on that day this week when my former partner sent me an email message with an appellate opinion attached to it. The subject line of the email was “Never Surrender,” and as I began to read the opinion I realized why Mike was telling me to never surrender.
Since Mike left the bench a few years ago, he has been doing a lot of appellate work for a very fine firm in Lexington, Missouri. I had been following Mike on another case arising out of the same facts involving five deaths in a hospital in Chillicothe in 2002. Mike and his firm had filed wrongful death cases in 2010 and 2011.
Although the deaths occurred back in 2002, the ordinary time for filing a wrongful death lawsuit is three years. Mike argued in the earlier case that the defendants had fraudulently concealed the facts supporting a wrongful death cause of action which “tolled” or suspended the statute of limitations.
Mike was successful in the lower court of appeals, but the case was ultimately decided in the Missouri Supreme Court. That court decided the statute of limitations was not suspended despite of the defendant’s fraudulent conduct. However, the court specifically stated that it was not commenting on whether another cause of action exists, which some think was a very pregnant statement perhaps suggesting that there might be.
Mike and his firm never surrendered. A second series of lawsuits was filed against the same defendants in 2016. The petitions alleged that after the death of the relevant decedents, the hospital was vicariously liable when its employees fraudulently misrepresented the true nature of the 2002 deaths in an intentional effort to mislead the survivors to prevent the timely filing of wrongful death claims. The damage from the fraudulent conduct did not occur until the Supreme Court denied the right to file a wrongful death claim in 2015 and since the statute of limitations for fraud is five years from the date of discovery of the fraud, the time had not yet expired for filing a fraud case.
The decision last week was from a three-judge panel of the Western District Court of Appeals. There will undoubtedly be further appeals, as there were in the earlier case. Ultimately, it may be decided in the Missouri Supreme Court. The only certainty now is that the lawyers for these five families will not surrender. There is no “quit” in them even in the darkest hour.
Bob Buckley is an attorney in Independence, www.wagblaw.com . Email him at firstname.lastname@example.org.