Donna M. Bersett v. K-Mart Corporation

I respectfully dissent. In my view the only issue before us is whether the new rule adopted by the Supreme Court of Missouri in Cox v. J.C. Penney Co., 741 S.W.2d 28 (Mo.1987) (en banc), should be applied retroactively. I believe that it should not, as the case was properly submitted to the jury under Missouri law existing at the time of the trial. I would therefore affirm the judgment of the district court.

In diversity cases, the Supreme Court of Missouri is the ultimate source of the law in Missouri. We are compelled to follow and apply its decisions. While we must do so with Cox, the…