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Spence v. BNSF Railway Co.

Court of Appeals of Missouri, Southern District

December 27, 2016

SHERRY SPENCE, Plaintiff-Respondent,
v.
BNSF RAILWAY COMPANY, Defendant-Appellant.

         APPEAL FROM THE CIRCUIT COURT OF STODDARD COUNTY Honorable Stephen R. Mitchell, Judge

         REVERSED AND REMANDED.

         En Banc

          DANIEL E. SCOTT, J. - OPINION AUTHOR

         Scott Spence was killed when a BNSF train struck his pickup at a rural crossing. His wife Sherry ("Plaintiff") sued for wrongful death.

         During voir dire, BNSF's attorney asked potential jurors whether they or a close family member had been in a motor vehicle accident. Some spoke up, but not panelist Cornell, whose son had died in an auto accident. BNSF's attorney talked with the responding panelists, then asked again: "Anybody else that I've missed, who's been in an automobile accident that we haven't already talked about, or had a close friend or family member, other than what we've already heard from today?" Another panelist answered that her daughter had been in several auto accidents. Ms. Cornell again stayed silent. She made the jury and ultimately joined nine other jurors in awarding Plaintiff $19 million dollars.

         After trial, the court rejected without explanation all juror-nondisclosure claims asserted by BNSF. One of BNSF's six points on appeal challenges this ruling as to Juror Cornell and the auto-accident questions. We need not reach any other point. The auto-accident questions were sufficiently clear, so Juror Cornell was duty-bound to answer them fully, fairly, and truthfully. J.T. ex rel. Taylor v. Anbari, 442 S.W.3d 49, 56 (Mo.App. 2014). Her intentional nondisclosure raises a presumption of prejudice (id.) which Plaintiff does not even claim to have overcome. We must reverse and remand for a new trial.

         Legal Principles

         "Evaluation of a nondisclosure claim involves two steps." Id. The threshold issue is whether the question was sufficiently clear. Id. If not, there has been no nondisclosure and the inquiry can end. Id. This court evaluates de novo the threshold issue of question clarity. Id.

         If the question was clear, step two is to determine whether the nondisclosure was intentional. Id. If so, prejudice is presumed; otherwise, the party seeking relief must show prejudice. Id. We review these findings, if any, for abuse of discretion. Id.

         Analysis

         BNSF's auto-accident questions were sufficiently clear in context despite Plaintiff's protests to the contrary, [1] and to Plaintiff's credit, she never even suggests that Juror Cornell's nondisclosure was anything but intentional, and thus presumptively prejudicial. Id. Even if we inferred from the trial court's ruling that it found no prejudice, we would find abuse of discretion. Compare Groves v. Ketcherside, 939 S.W.2d 393, 396 (Mo.App. 1996), where, as here, there was no trial court finding whether nondisclosure was intentional or unintentional, but any inference that the trial court found no prejudice was rejected (abuse of discretion) because the questions were clear and any purported juror "forgetfulness" would be unreasonable. Id.

         The same holds true for Juror Cornell, her son's auto-accident death, and BNSF's auto-accident questions. "[T]he questions asked were not vague and should have been sufficient to have caused [Juror Cornell] to inform the court and attorneys of [her son's fatal auto accident]." Id. That she would have forgotten her son's fatal auto accident "unduly taxes our credulity." Id.[2]

         A presumption of prejudice thus arises (J.T. ex rel. Taylor, 442 S.W.3d at 56) that Plaintiff makes no real effort to overcome. Instead, Plaintiff asserts that a second Case.net search would have revealed Juror Cornell's lawsuit for her son's death, so Missouri Court Rule 69.025 (2015) should waive any complaint that Juror Cornell did not answer voir dire questions about auto accidents.[3] We cannot read Rule 69.025 so broadly.

         Rather, we share our Western District's view that Rule 69.025, like its case-predecessor Johnson v. McCullough, 306 S.W.3d 551 (Mo. banc 2010), addresses and expressly relates "to juror nondisclosure on the topic of litigation history only." Khoury v. ConAgra Foods, Inc., 368 S.W.3d 189, 202 (Mo.App. 2012). Likewise, we agree that

the day may come that technological advances may compel our Supreme Court to re-think the scope of required "reasonable investigation" into the background of jurors that may impact challenges to the veracity of responses given in voir dire before the jury is empaneled - [but] that day has not arrived as of yet.

Id. at 203.[4]

         Conclusion

         With comparable regret, we borrow the words of our supreme court:

Under the circumstances of this case, we are constrained to reverse and order a new trial. We are fully aware that this regrettable situation was not one of respondent's making. We fully appreciate the apparent harshness of the remedy. Yet, as we have said, the fair and impartial operation of the jury is a guarantee to which every litigant rightfully makes claim. Until a better solution is found, we are left with no option but to deal harshly with a venireman's disregard for his responsibilities as a potential juror.
Only a new trial will preserve inviolate appellant's constitutional entitlement to a fair and impartial jury.

Williams by Wilford v. Barnes Hosp., 736 S.W.2d 33, 39 (Mo. banc 1987). Declining to address other points which may not recur on retrial, we reverse the judgment and remand the case for further proceedings.

          JEFFREY W. BATES, J. - CONCURS IN PRINCIPAL OPINION

          GARY W. LYNCH, J. - CONCURS IN PRINCIPAL OPINION

          DON E. BURRELL, J. - CONCURS IN PRINCIPAL OPINION

          WILLIAM W. FRANCIS, JR., J. - CONCURS IN PRINCIPAL OPINION AND FILES SEPARATE CONCURRING OPINION

          NANCY STEFFEN RAHMEYER, J. - DISSENTS BY SEPARATE OPINION

          MARY W. SHEFFIELD, C.J. - CONCURS IN DISSENTING OPINION

         CONCURRING OPINION

          WILLIAM W. FRANCIS, JR., J. - CONCURRING OPINION AUTHOR

         I concur in the majority opinion and write separately to note ample evidence in the record before us to conclude there was intentional nondisclosure by Juror Cornell.

         While the failure to affirmatively respond to the auto-accident questions is sufficient for reversal, there were other incidences in the record in which Juror Cornell was required, while under oath, to affirmatively respond and failed to do so.

         Prior to trial, juror questionnaires were mailed to each prospective juror, including Juror Cornell. She was required to complete the forms by swearing/affirming under penalty of perjury. Two of the questions in the juror questionnaire pertained to prior lawsuits and recovery of monies for physical injuries or property damage. Question 14 asked, "Have you or any member of your immediate family been a party to any lawsuit (as a plaintiff or defendant, not merely as a witness)?"

         Question 15 asked, "Have you ever made a claim or had a claim made against you to obtain or recover money, either for physical injuries or for damage to property?" Juror Cornell answered "No" to both questions, even though her son had been killed in a car accident, and she had been the plaintiff in a wrongful death action arising out of the accident. Juror Cornell was also involved in eight other cases, including several suits on account, breach of contract, an application for protective order, and a guardianship regarding Juror Cornell's minor son. Of these cases, four were dismissed, two resulted in default judgments against Juror Cornell, one resulted in an ex parte order of protection against Juror Cornell, and one terminated her son's guardianship.

         After the venirepersons were sworn to tell the truth, the trial court emphasized to all potential jurors the importance of knowing a juror's litigation history, and specifically admonished and questioned the panel about any information that might not have previously been disclosed on the juror questionnaires:

Let me remind everyone that under Missouri law, a juror's failure to disclose his or her litigation history is presumed to be prejudicial. So in view of the time and expense involved in preparing for a jury trial and considering the sacrifices that you jurors endure to make this trial possible, we need to know whether any of you have been involved in any prior or civil court cases or lawsuits in order to determine whether those might be relevant today in this case. Is there anyone on the panel who has been a party to a criminal or civil court case or lawsuit that you have not already disclosed on the juror questionnaire that was mailed to you ahead of time?

         Juror Cornell did not respond to this inquiry.

         There were three discrete instances in time where Juror Cornell was asked questions that she either answered falsely, or wrongfully remained silent while under oath. Our jury trial system requires venirepersons to answer questions truthfully and accurately, and the trial court and parties have a right to expect truthful answers. The record before us ...


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