FROM THE CIRCUIT COURT OF STODDARD COUNTY Honorable Stephen
R. Mitchell, Judge
E. SCOTT, J. - OPINION AUTHOR
Spence was killed when a BNSF train struck his pickup at a
rural crossing. His wife Sherry ("Plaintiff") sued
for wrongful death.
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
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.
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.
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.
auto-accident questions were sufficiently clear in context
despite Plaintiff's protests to the contrary,
 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.
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
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. We cannot read Rule 69.025
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
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.
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
W. LYNCH, J. - CONCURS IN PRINCIPAL OPINION
BURRELL, J. - CONCURS IN PRINCIPAL OPINION
WILLIAM W. FRANCIS, JR., J. - CONCURS IN PRINCIPAL OPINION
AND FILES SEPARATE CONCURRING OPINION
STEFFEN RAHMEYER, J. - DISSENTS BY SEPARATE OPINION
W. SHEFFIELD, C.J. - CONCURS IN DISSENTING OPINION
WILLIAM W. FRANCIS, JR., J. - CONCURRING OPINION AUTHOR
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.
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
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)?"
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.
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
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?
Cornell did not respond to this inquiry.
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 ...