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King v. Sorensen

Court of Appeals of Missouri, Western District, Fourth Division

August 29, 2017

WANDA L. KING, et al., Appellants,
GEORGE B. SORENSEN, et al., Respondents.

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable John M. Torrence, Judge

          Before: Mark D. Pfeiffer, Chief Judge, and Victor C. Howard and Alok Ahuja, Judges


         Wanda King, individually and as plaintiff ad litem for David King, Michael King, Tamara Nuckolls, Lea Ann Roach, and Tracy Rainey ("Plaintiffs"), appeals from the judgment of the Circuit Court of Jackson County, Missouri ("trial court"), entered following a jury verdict in favor of George B. Sorensen, M.D., and Saint Luke's Physician Specialists, L.L.C. ("Defendants") on Plaintiffs' claim of wrongful death and lost chance of recovery. We reverse and remand for further proceedings consistent with our ruling today.

         Factual and Procedural Background[1]

         David King ("King") died from complications after Dr. Sorensen performed surgery to repair a large paraesophageal hernia. King's family brought an action for wrongful death and lost chance of recovery against the Defendants.

         The Circuit Court of Jackson County, Division 6, Voir Dire Jury Services provided a list of sixty-five random potential jurors for King v. Sorensen, 1416-CV23308, on June 20, 2016, the first day of trial. The name of the eleventh person on the list was identified as "J. Paul Willis." On a separate juror questionnaire, Mr. Willis listed his full name as "(John) Paul Willis." In subsequent testimony related to the motion for new trial, Mr. Willis confirmed that his first name is "John"; his middle name is "Paul"; and his last name is "Willis."

         When the venire panel was seated, the trial court explained that the panel would be asked a series of questions to determine whether they have any personal interest in or knowledge of the case that would make it difficult for them to be fair and impartial. The trial court stated that their answers must be truthful and complete because it would be unfair to the parties in a trial for a panel member not to disclose something that should be disclosed when asked about it.

         During voir dire, Plaintiffs' counsel emphasized that it was very important that the venire panel respond to the questions "because if for some reason you weren't to respond to a question that had been asked and give the information, sometimes that means we have to do this all over again. . . . And it is really hard on the system when cases have to be tried twice." Plaintiffs' counsel told the venire panel that he was going to ask them about their experience with lawsuits: "Now this is really an important part of the process. So I want you to be sure and search your mind. And the reason is that a lot of times people forgot to tell us about this part. And what happens is-I think the judge reminded us all of this before-what happens is we end up having to do the case over again."

         When the venire panel was questioned about whether they or any member of their family had made a claim or filed a lawsuit for physical injuries, including workers' compensation claims, Venireperson Willis responded that he had a workers' compensation claim twenty years ago that was resolved to his satisfaction.

         However, when the venire panel was later specifically questioned about "all types of litigation" and specifically "collection cases" that have been "brought maybe against you, " Venireperson Willis did not respond. Later, it was discovered that, in fact, Venireperson Willis had been a defendant in a collection case in which an entity had sued Venireperson Willis for his alleged breach of contract in a case styled: Champion Trim, Inc. v. Paul Willis, et al., 16CV91-32377. In his subsequent testimony about this nondisclosure, Venireperson Willis explained that he "didn't think of it as a collection lawsuit, even a lawsuit." In its ruling on the motion for new trial, the trial court expressly noted certain portions of Juror Willis's testimony that it deemed "honest" and "credible." The trial court expressed some skepticism, however, concerning Juror Willis's explanation for his nondisclosure of the collection lawsuit:

. . . [J]uror Willis failed to disclose that he was a defendant in a 1991 breach of contract lawsuit over his alleged failure to pay for construction services regarding a new house. To be clear, Willis was personally served at his place of employment. Although the case was settled without a court appearance, Willis hired a lawyer to represent the interests of him and his wife.
. . . [I]f Mr. Willis [had been] questioned regarding his failure to answer the prior litigation questions before the jury was sworn on Tuesday morning, the Court would very likely have found that the nondisclosure was intentional. In all likelihood, [J]uror Willis would have been excused from the jury in this case.

         Instead, Venireperson Willis became a member of the jury. Nine of the jurors, one of whom was Mr. Willis, returned a verdict in favor of the Defendants. Mr. Willis signed the verdict form as "Paul Willis." On July 5, 2016, the trial court entered its judgment for Defendants on the jury's verdict.

         Plaintiffs timely filed a motion for new trial. Plaintiffs alleged in pertinent part that they "were severely prejudiced by Juror Willis' nondisclosure of a prior lawsuit filed against him and his wife."

         The trial court conducted an evidentiary hearing on Plaintiffs' new trial motion. At the hearing, the trial court questioned Plaintiffs' counsel regarding the "reasonable investigation" performed by his office to conduct a search. Plaintiffs' counsel explained that they had searched Juror Willis's name as "J. Paul Willis, " but had not conducted a search using "Paul" as Juror Willis's first name. The ...

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