Court of Appeals of Missouri, Eastern District, Fourth Division
THADDEUS THOMAS, a Minor, by and through his Next Friend, Marlin Thomas, and MARLIN THOMAS and MA SHERYLL JOY THOMAS, Individually, Appellants,
MERCY HOSPITALS EAST COMMUNITIES, d/b/a MERCY HOSPITAL - WASHINGTON, and MERCY CLINIC EAST COMMUNITIES, Respondents.
from the Circuit Court of Franklin County, Missouri
13AB-CC00063 Honorable Gael D. Wood Filed: September 13, 2016
M. Dowd, Presiding Judge
medical malpractice action, Appellants appeal the judgment
entered by the trial court in favor of Mercy Hospitals East
Communities, d/b/a Mercy Hospital - Washington, and Mercy
Clinic East Communities (collectively, "Mercy")
following a jury trial. Appellants contend that the trial
court abused its discretion by failing to strike for cause
Venireperson 24 ("Venireperson") after she
expressed during voir dire a disqualifying bias in favor of
Mercy: that she would "start off slightly in favor"
of Mercy in this case because her sister was a registered
nurse at another Mercy facility. Since Venireperson served on
the jury in this case, we reverse and remand for a new trial
because we find that Venireperson's stated bias
disqualified her from jury service on this case and she was
not subsequently rehabilitated.
Factual and Procedural Background
case stems from allegations that the respondent health care
providers were negligent in connection with the
Caesarean-section delivery of Thaddeus Thomas resulting in
brain damage to the newborn. The case proceeded to trial on
March 16, 2015, and the jury returned a verdict for Mercy on
March 26, 2015. Appellants' only point on appeal asserts
that the trial court committed reversible error when it
denied Appellants' motion to strike Venireperson, who was
later seated as a juror and took part in the verdict in this
case. Appellants moved for a new trial, challenging the trial
court's denial of the motion to strike Venireperson. The
court denied that motion, and this appeal follows.
reverse the trial court's ruling on a challenge for cause
if it is clearly against the evidence and is a clear abuse of
discretion. See Joy v. Morrison, 254 S.W.3d 885, 888
(Mo.banc 2008). And where a venireperson or juror clearly
demonstrates a possible bias and is not thereafter
rehabilitated by counsel, the trial court's failure to
strike the venireperson or juror undercuts any basis for the
court's exercise of discretion and constitutes reversible
error. Hudson v. Behring, 261 S.W.3d 621, 624
(Mo.App.E.D. 2008) (holding that where a juror clearly
indicated a possible bias, the trial court unquestionably
abused its discretion by failing to excuse the juror);
cf. Morrison, 254 S.W.3d at 891 (finding that where
a venireperson or juror equivocates about his or her ability
to be fair and impartial, "failure by [the] trial judge
to question independently a potential juror to explore
possible prejudice may undercut any basis for [the] trial
judge's exercise of discretion and constitute reversible
axiomatic that in Missouri civil litigants have a
constitutional right to a fair and impartial jury of twelve
qualified jurors. Mo. Const, art. I, § 22(a);
Williams By & Through Wilfordv. Barnes Hosp.,
736 S.W.2d 33, 36 (Mo.banc 1987). Litigants are entitled to
unbiased jurors whose experiences will not prejudice the
resolution of the case. Hudson, 261 S.W.3d at 624
(citing Williams By & Through Wilford, 736
S.W.2d at 36). It is essential that a competent juror be in a
position to enter the jury box disinterested and with an open
mind, free from bias or prejudice. Id. (citing
Catlett v. Ill. C.G.R. Co., 793 S.W.2d 351, 353
(Mo.banc 1990)). Even though three-fourths of the jury can
decide a civil case, parties are entitled to have that
decision, whether for them or against them, based on the
honest deliberations of twelve qualified jurors. Id.
(citing Piehler v. Kansas City Pub. Serv. Co., 211
S.W.2d 459, 463 (Mo.banc 1948)).
secure the right to an unbiased jury, §
494.470 provides in pertinent part:
1. . . . [N]o person who has formed or expressed an opinion
concerning the matter or any material fact in controversy in
any case that may influence the judgment of such person . . .
shall be sworn as a juror in the same cause.
2. Persons whose opinions or beliefs preclude them from
following the law as declared by the court in instructions
are ineligible to serve as jurors on that case.
difference between subsections 1 and 2 is that the first
precludes from jury service any person who has "formed
or expressed an opinion concerning [specifically] the
matter or any material fact in
controversy" that may influence her
judgment, while the second bars from such service any person
who is manifestly unable to follow the court's
instructions due to her "opinions or
beliefs'" about potentially much broader
issues. See Morrison, 254 S.W.3d at 889 (explaining
the difference between the two subsections).
Appellants assert that the venireperson in question should
have been struck under subsection 1 of § 494.470 for
demonstrating a disqualifying bias-for expressing during voir
dire an opinion concerning the case that posed at least some
risk of influencing her judgment as a juror. We agree.
beginning of voir dire, Appellants' counsel noted that
this case "involves Mercy Clinics, Mercy Clinic
Physicians, . . . and Mercy Clinic Hospital" as
defendants. Counsel then asked the pool of prospective
jurors, "Just knowing that they are defendants in this
case, is there anyone that feels they might start off the
case a little bit more in favor of one party or the
other?" Venireperson raised her hand. The following
exchange between Venireperson ("V") and
Appellants' counsel ("C") ensued:
V; My sister works at the Big St. John's. She's an
R.N. Are they affiliated?
V: Is Big St. John's and this hospital ...