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Larsen v. Union Pacific Railroad Co.

Court of Appeals of Missouri, Western District, First Division

August 23, 2016

MARK LARSEN, Appellant-Respondent,
v.
UNION PACIFIC RAILROAD COMPANY, Respondent-Appellant.

         Appeal from the Circuit Court of Buchanan County, Missouri The Honorable Randall R. Jackson, Judge.

          Before: Anthony Rex Gabbert, P.J., Thomas H. Newton, and Alok Ahuja, JJ.

          ANTHONY REX GABBERT, JUDGE.

         Mark Larsen appeals the circuit court's grant of Union Pacific Railroad Company's Motion for New Trial and/or Review for Plain Error Based on the Discovery of Juror Nondisclosure. Larsen asserts four points on appeal. First he contends that the circuit court erred in granting Union Pacific's motion for new trial because there is no competent evidence that Juror LS intentionally failed to disclose his union membership in that it is unclear what Union Pacific was seeking in its voir dire question, was not established that Juror LS did not attempt to respond, and Larsen was prevented from adducing testimony of Juror LS regarding his understanding of the question. Second, Larsen contends that the circuit court erred in granting Union Pacific's motion for new trial because Union Pacific's claim of juror nondisclosure was untimely in that it was made well after the deadline for raising a claim of error and encourages post-trial witch hunts. Third, Larsen contends that the circuit court erred in granting Union Pacific's motion for new trial because the testimony of David A. Giles, Ph.D. is demonstrably not credible in that it is internally inconsistent and self-contradictory. Finally, Larsen claims that the court erred in granting Union Pacific's motion for new trial because the alleged nondisclosure by Juror LS was not prejudicial in that his union membership had little connection to the case and no bearing on his qualifications to act as a juror.

         Union Pacific cross-appeals contending that the circuit court erred in denying its motions for directed verdict and judgment notwithstanding the verdict arguing that Larsen failed to make a submissible case for negligence under the Federal Employers' Liability Act (FELA) because Larsen failed to present substantial evidence that Union Pacific had actual or constructive notice of any supposed dangerous characteristics of the crane that Larsen claims caused his injury, and that evidence was a critical element of a claim under the FELA.

         We affirm the circuit court's judgment granting Union Pacific's motion for new trial, and affirm the circuit court's judgment denying Union Pacific's motions for directed verdict and judgment notwithstanding the verdict.

         Larsen's Appeal

         Factual Background

         We first address Larsen's points on appeal. The facts, in the light most favorable to the circuit court's judgment and as relevant to Larsen's points on appeal, are as follows. On May 6, 2013, Larsen, an employee of Union Pacific and member of a labor union, filed his original petition alleging that he was injured when he fell from a ladder while working for Union Pacific. The case went to trial on December 15, 2014. On that date, a jury panel was called and voir dire was conducted. Juror LS was a member of that jury panel, and eventually became a member of the jury in the case. During voir dire, LS was seated in Row 2, Seat 16.

         The court instructed the panel at some length regarding the panel member's rights and responsibilities as potential members of a jury. Specifically, the court told the panel of the importance of honest and complete answers; that if any member of the panel did not understand a question during voir dire, he or she needed to raise a hand and it would be clarified; that if they did not have an affirmative answer to any question asked, the failure to raise their hand would be the same as affirming under oath that the question did not apply to them; and that if many hands were raised at once, the panel members could lower their hands, and examination would be conducted row by row. The court added: "But be sure we don't pass your row and pass you without getting your hand up and getting your response on the record."

         The court further instructed the panel that, if anyone was experiencing any hardships that would make them unable to participate in the proceedings, they should bring that to the court's attention.

During voir dire, counsel for Union Pacific inquired:
As you understand this is a claim by Mr. Larsen against Union Pacific for some injuries. This is not a labor dispute. But it is a dispute between an individual who happens to be the member of a labor union and a railroad company. Is there anyone else out here who is a member of a labor union? Okay, I see a few hands. Anybody in the front row? I don't see any hands in the front row or the second row. Third row, okay? Let's go ahead and stick with the third row. Is it [Venireman D]?

         Two panel members raised their hands. Counsel for Union Pacific proceeded to question the two panel members regarding the details of their affiliation with labor unions and how it would impact their ability to serve fairly and impartially on a jury in a case involving an on-the-job injury to a union member. Venireman D responded that he was a member of United Food and Commerce Workers, UFCW, and responded to questions regarding that membership. Venireman M expressed an affiliation with the Sheet Metal Workers Union. After questioning these veniremen, counsel for Union Pacific inquired, "I think we've covered all the rows, but I just wanted to make sure. I see no further hands as far as labor unions. How about let's broaden the search to husbands or wives, anyone who has a husband or wife who is a member of a labor union?" Counsel for Union Pacific proceeded to question potential jurors who raised their hand in response to that question. The record reflects that, at no time during this process did Juror LS raise his hand or otherwise indicate that he was a member of a labor union.

         Throughout the remainder of the voir dire process, counsel for both parties questioned the panel regarding any biases or prejudices that would lead any member of the panel to favor one side or the other. While several venire members did respond, Juror LS provided no response. Both the court and counsel for each party questioned the panel regarding any personal hardships that they might be experiencing that would impact their ability to effectively serve on the jury. Juror LS provided no response to any of these questions nor any other questions posed throughout voir dire.

         At the conclusion of voir dire, both Larsen and Union Pacific requested strikes for cause and made peremptory strikes. Neither side struck Juror LS and he became one of the twelve-person jury that considered and ultimately decided the case. The jury panel was sworn, and the trial proceeded for the next 5 days, from December 15, 2014 to December 19, 2014. On December 19, 2014, the jury began its deliberations, and later returned a verdict in favor of Larsen, assessing Larsen's damages to be $3, 200, 000. Juror LS participated in the deliberations and signed the verdict form awarding damages to Larsen. On December 29, 2014, the circuit court entered its Judgment based on the jury's verdict.

         On January 28, 2015, Union Pacific filed a timely "Motion for New Trial or, Alternatively, for Remittitur, together with Suggestions in Support." On that same date, Union Pacific also timely filed a "Motion for Judgment Notwithstanding the Verdict, and Suggestions in Support." On January 29, 2015, counsel for Union Pacific requested that those motions be scheduled for hearing. The motion hearing was scheduled for March 3, 2015.

         On February 26, 2015, Union Pacific filed a "Motion for New Trial and/or Review for Plain Error Based on the Discovery of Juror Nondisclosure, and Suggestions in Support." In that motion, Union Pacific alleged that a manifest injustice or miscarriage of justice had occurred because Juror LS had intentionally concealed that he was a member of a labor union and, even if the nondisclosure was unintentional, Union Pacific was prejudiced because the information withheld had a bearing on the juror's ability to fairly evaluate the evidence. Union Pacific alleged that it had retained Dr. David Giles, a jury researcher and consultant, to assist Union Pacific in learning from the jurors what influenced their decision in the case. The motion alleged that Dr. Giles spoke with Juror LS on January 31, 2015, and during that conversation Juror LS characterized himself to Dr. Giles as the informal leader of the jury who had taken an active role in leading deliberations. The motion alleged that, when asked what factors were most significant to him, Juror LS volunteered, "Look, I am a union guy" and identified himself as a member of a labor union at his place of employment. The motion alleged that Juror LS told Dr. Giles that Larsen "had my vote right off." The motion alleged that Juror LS emphasized to Dr. Giles the point that Larsen was hurt at work and that Union Pacific was trying to find a way not to pay him. Union Pacific sought "plain error" review pursuant to Missouri Supreme Court Rule 78.08 and informed the court of its intention to raise the juror nondisclosure issue at the March 3, 2015 hearing on Union Pacific's Motion for New Trial.

         On March 3, 2015, the court conducted a hearing on Union Pacific's Motion for New Trial or in the Alternative Remittitur and Union Pacific's Motion for JNOV. At this hearing, Union Pacific raised the issue of juror non-disclosure and reiterated Union Pacific's earlier request for plain error review. Union Pacific specifically requested that the court conduct an evidentiary hearing into Juror LS's alleged non-disclosure of his union membership, and in support of this request, Union Pacific submitted relevant portions of the voir dire transcript as well as the affidavit of Dr. Giles. After review, the court determined that the question regarding labor union membership was a clear question and that an evidentiary hearing was warranted to determine whether a nondisclosure by Juror LS had occurred.

         On March 9, 2015, Larsen filed a "Supplemental Brief on the Timeliness of Union Pacific's Motion for New Trial or Review for Plain Error Based on Juror Nondisclosure." Therein, Larsen argued that plain error review of the juror nondisclosure issue was unwarranted because Union Pacific failed to explain why it did not obtain the nondisclosure information prior to the Rule 78.04 thirty-day deadline for moving for a new trial, and delayed filing a motion for plain error review for more than three weeks after Dr. Giles had spoken with Juror LS and had discovered the purported nondisclosure. ...


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