Court of Appeals of Missouri, Western District, Third Division
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Appeal from the Circuit Court of Clay County, Missouri. The Honorable David P. Chamberlain, Judge.
Gary C. Robb and Anita Porte Robb, Kansas City, MO, for appellants.
Douglas N. Ghertner and Stephen P. Horn, Kansas City, MO, for respondent Bendix.
Robert T. Adams, Kansas City, MO, for respondent Thomas Built Buses.
Before Division Three: Gary D. Witt, Presiding Judge, Alok Ahuja, Chief Judge, and Joseph M. Ellis, Judge. All concur.
Gary D. Witt, J.
On May 9, 2005, a school bus operated by a driver for the Liberty Public School District crashed into a pick-up truck, instantly killing the driver of the pick-up truck, David Gleason (" Gleason" ), and causing permanent, catastrophic injury to two children who were passengers on the bus, Renna Yi (" Yi" ) and Andrew Hubbard (" Hubbard" ). The families of these victims (collectively, the " Appellants" ) filed a products liability action and proceeded to trial against Bendix Commercial Vehicle Systems, the manufacturer of the air brake system used on the bus, and against Thomas Built Buses, the manufacturer of the bus (collectively, the " defendants" or " Respondents" ). Following a six-week trial in the Circuit Court of Clay County, a jury returned a verdict in favor of the Respondents. Appellants timely appealed, alleging five points of error. We affirm.
FACTS AND PROCEDURAL HISTORY
On May 9, 2005, Irma Thomas (" Thomas" ) was driving a school bus for the Liberty Public School District. Thomas had seven years of experience driving a school bus and was on her normal route with children on board. After Thomas crested a hill along Highway 291 in the city of Liberty, she applied the brakes to slow the bus as it descended the hill towards a busy intersection. Thomas testified that as she pressed the brake, the bus actually accelerated. The harder she pressed, the faster the bus seemed to go. Witnesses testified that the bus appeared to be speeding up as it approached the intersection. Thomas kept pressing the brake to no avail so she began swerving and maneuvering around vehicles to avoid colliding with them. Although she avoided a number of cars in one area, she struck a pick-up truck that was stopped at the intersection of Highway 291 and Highway 152. The driver of the pick-up truck, Gleason, a local attorney, was killed instantly. Two of the children on board the bus were severely injured: Yi, a fourth grader, was rendered a quadriplegic after suffering a broken neck, and Hubbard, a kindergartner, was left permanently brain-damaged after suffering an open-skull fracture. Additional children were injured, but they are not parties to this matter. The bus was estimated to be traveling at a speed between 58 and 68 miles per hour at the point of impact.
Appellants Gleason, Yi and Hubbard each filed suit, and those cases were joined for trial. The cause proceeded to trial against Bendix Commercial Vehicle Systems, the manufacturer of the air brake
system used on the bus, and against Thomas Built Buses, the manufacturer of the bus. Appellants alleged that the air brake system on the bus failed due, in part, to the school district's adherence to a defective maintenance protocol established by Bendix. Appellants presented over fifty witnesses during the trial.
The defense presented evidence indicating that there was no evidence of brake failure. The defense further asserted that the accident occurred due to a pedal misapplication. Pedal misapplication occurs when the driver thinks he or she is depressing the brake but is actually pressing the accelerator. Defendants presented evidence that the accident was consistent with this phenomenon. The jury returned a verdict in favor of the defendants. Appellants filed a motion for a new trial and requested a hearing on the issue of juror nondisclosure. Appellants subpoenaed two jurors who testified at the hearing. The trial court did not issue a ruling and Appellants' motion was denied by operation of law. Appellants timely appealed, alleging five points of error.
Further relevant facts are set forth below as necessary.
In their five points on appeal, Appellants allege that the trial court erred in denying their motion for a new trial, based on (1) allegations of intentional nondisclosure by a juror; (2) the admittance of testimony of Appellants' withdrawn experts Timothy Reust (" Reust" ) and Stephen Irwin (" Irwin" ); (3) allowing an adverse inference to be argued during closing argument regarding Appellants' failure to call Reust and Irwin; (4) the exclusion of evidence regarding experimental brake test results; and (5) the admittance of testimony from expert witness Mark Edwards (" Edwards" ) as to standard of care and causation issues attributable to the driver.
POINT I - JUROR NON-DISCLOSURE
In Point I, Appellants allege that the trial court erred in denying their motion for a new trial " on grounds of juror misconduct because intentional nondisclosure during voir dire deprived appellants of a fair and impartial jury in that juror [C.D.] failed to disclose that he was familiar with the product at issue, his brother-in-law is an attorney, he held a negative belief as to the civil justice system and he had worked as a mechanic on trucks and buses."
Standard of Review
We review the trial court's ruling on a motion for a new trial based on juror nondisclosure for an abuse of discretion. Johnson v. McCullough, 306 S.W.3d 551, 555 (Mo. banc 2010) (internal citations and quotation marks omitted). " A trial court abuses its discretion if its ruling is clearly against the logic of the circumstances then before the court and so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." Id. " When a motion for new trial is denied by operation of the statute it must be presumed that the trial court and counsel knew and intended the consequences of their failure to act." State ex rel. Div. of Family Serv. v. Duncan, 782 S.W.2d 457, 461 (Mo. App. S.D. 1990). We treat such a denial as though the trial court issued a formal order denying the
motion. Id. Therefore, all facts are considered in the light most favorable to the denial of the motion. Smith v. Brown & Williamson Tobacco Corp., 410 S.W.3d 623, 639 (Mo. banc 2013).
" In addressing a motion for new trial based upon juror nondisclosure, the trial court must first determine whether a nondisclosure occurred and, if so, whether the nondisclosure was intentional or unintentional." Bell v. Sabates, 90 S.W.3d 116, 120 (Mo. App. W.D. 2002) (citing State v. Mayes, 63 S.W.3d 615, 625 (Mo. banc 2001)).
" If a juror's thoughts are the same as his voir dire answer, then 'he has disclosed everything that the voir dire question requires and no nondisclosure of any kind occurred.'" Smith, 410 S.W.3d at 644 (citing Wingate v. Lester E. Cox Med. Ctr., 853 S.W.2d. 912, 916-17 (Mo. banc 1973)).
Intentional nondisclosure occurs: 1) where there exists no reasonable inability to comprehend the information solicited by the question asked of the prospective juror, and 2) where it develops that the prospective juror actually remembers the experience or that it was of such significance that his purported forgetfulness is unreasonable. Unintentional nondisclosure exists where, for example, the experience forgotten was insignificant or remote in time, or where the venireman reasonably misunderstands the question posed.
Bell, 90 S.W.3d at 120 (citations and quotation marks omitted).
" The trial court is afforded significant discretion in determining whether a nondisclosure was intentional or unintentional, and its decision in this regard will not be reversed on appeal absent an abuse of that discretion." Id.
A. JUROR C.D.'S RESPONSES IN VOIR DIRE REGARDING AIR BRAKES
Appellants argue that one of the jurors, C.D., intentionally failed to disclose certain information both during general voir dire and during a follow-up voir dire directed specifically to him. Voir dire was conducted over the course of many days. The record shows that C.D. responded in voir dire to several questions regarding his experience with air brakes:
First Response: TR 734-736
Plaintiffs' counsel: Anyone on this jury panel have any specific experience, training or education as a mechanic for heavy commercial vehicles such as those using air brakes, heavy trucks, buses, transit buses? Anyone among you?
Right behind you is No. 39, [C.D.], Mr. [C.D.].
C.D.: Yeah, I know how they work. I've worked with them a lot, but it's been a long time ago.
Plaintiffs' counsel: Did you work with air brake systems?
C.D.: Air brakes and boosters and all that.
Plaintiffs' counsel: It sounds like you know the whole deal.
C.D.: Well a little.
Plaintiffs' counsel: Yeah. Did you ever work professionally in the field, [C.D.]?
C.D.: Not just on that. I worked on heavy construction.
Plaintiffs' counsel: All right. I think you know that the issue in this case is that--whether or not the air brakes on the school bus failed.
Plaintiffs' counsel: Would you be able to decide this case based upon the testimony
that you heard in this case, without allowing some of these experiences to alter your opinion?
C.D.: Yes, what I would think. Whether or not that's right, I don't know.
Plaintiffs' counsel: Okay. That's all you can do. Thank you very kindly, sir.
Second Response: TR 782
Plaintiffs' counsel: Anyone have any experience, themselves, working on any kind -- any type of braking system in any vehicle?
C.D.: Yeah, trucks and heavy equipment, all heavy duty.
Plaintiffs' counsel: Excellent. Thank you.
Third Response: TR 891-895
Plaintiffs' counsel: Good morning, ladies and gentlemen. . . . I realize that at the end of the day, I went so fast, I may have missed a hand, or in this case, a paddle. And so for that reason, just reflecting, perhaps, in the evening, if you did reflect, or this morning, any of you think, " Well, I wonder if maybe I should have raised or responded to one of Plaintiffs' counsel's questions," on any subject. And I just want to give you that opportunity. And it very frequently happens that, you know, you think, " Gee, I guess I should have responded." And I'm asking, if you do have that belief or feeling that you had, please raise your paddle and we can address that. There's no reason not to. Great. Oh, yes, [C.D.], No. 39.
Plaintiffs' counsel: Thank you very much, sir, for raising your paddle.
C.D.: Yes, I don't know if it will make any difference or not, but I have had brakes go out, you know, on the highway.
Plaintiffs' counsel: You've had brakes go out?
C.D.: Yeah, you lose your air brakes.
Plaintiffs' counsel: Okay. On air brakes?
Plaintiffs' counsel: When you were driving?
Plaintiffs' counsel: Did it just come on suddenly?
Plaintiffs' counsel: What kind of vehicle, sir?
C.D.: A semi.
Plaintiffs' counsel: I forgot to use my voice assistance here (indicating microphone). And when you were driving this semi, were you alone in the vehicle?
Plaintiffs' counsel: Was there a crash or a mishap, C.D.?
C.D.: No. Engine blew up.
Plaintiffs' counsel: The which?
C.D.: The engine blew up as a result of that, yes.
Plaintiffs' counsel: Of the brake failure?
Plaintiffs' counsel: How long ago was it?
Plaintiffs' counsel: That's quite a long time ago.
* * *
Plaintiffs' counsel: You understand what the allegations are in this case.
Plaintiffs' counsel: There's no secret that we expect there to be considerable evidence of brake failure on the bus.
Plaintiffs' counsel: And given that this happened a long time ago, and -- you
were not hurt, were you, sir? You weren't hurt or injured?
C.D.: No, not at all.
Plaintiffs' counsel: And the brakes did fail on the air brakes of that large vehicle.
Plaintiffs' counsel: Do you think you could set it aside, or do you think, " This is too close to home, I'm not comfortable" ?
C.D.: No, I just know what happened. That's all. I don't think it would have any effect, but --
Plaintiffs' counsel: Okay. Without getting into the details, you were able to confirm, or someone was able to confirm, after the fact, those brakes went out. I don't want to get into details. It's not appropriate. But is that an accurate statement?
Fourth Response: TR 913
Plaintiffs' counsel: And now we are back to C.D.
C.D.: Yes I was in the operating engineers for 49 years--47 years. I've been retired for 12 years. Married for ten. Moved to the area about ten years ago. No kids.
Fifth Response: TR 949
Plaintiffs' counsel: We have had, I think, one panel member, [C.D.], and maybe I'm wrong, who had indicated that he had had the experience of driving a vehicle when the brakes failed. And, [C.D.], it is truly terrifying, isn't it?
Plaintiffs' counsel: Isn't it?
Sixth Response: TR 1150
Plaintiffs' counsel: Do we have any union members on the jury? . . . I want the union and the number.
C.D.: Operating engineers, 139.
Seventh Response: TR 1456-1457
Defense counsel: Anybody else on the panel heard or familiar with the term " pedal misapplication" ? Stepping on the accelerator when they intended to step on the brake? Any panel members? No hands. Anybody have that experience personally, or any close family member ever have an experience where they intended to step on the brake of their vehicle, but instead stepped on the gas or accelerator? [M.W.], I think you told us that earlier. And, [C.D.].
Defense counsel: Tell me about that experience.
C.D.: Just something you do every once in a while, but it wouldn't last any time, you know. You hear about it all the time.
Defense counsel: That's No. 39. I'm sorry. Say that again.
C.D.: Well, it's -- I've done it different times, but just for an instant. But you hear about it all the time. Somebody runs through the garage wall.
Defense counsel: Speak up, sir. You have to be louder.
C.D.: Somebody will run through a garage wall or garage door or things like that, but -- I've done it myself a couple of times, but not to hit anything or -- just for an instant.
Defense counsel: Thank you.
Eighth Response; Follow Up Voir Dire: TR 1802-1806
Plaintiffs' counsel: This is always kind of a special question because this is the last time that I will speak with any juror, any panel member, because the next time that I'll address any of you will be in your ...