Court of Appeals of Missouri, Western District, Fourth Division
WANDA L. KING, et al., Appellants,
GEORGE B. SORENSEN, et al., Respondents.
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
D. PFEIFFER, CHIEF JUDGE
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.
and Procedural Background
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.
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
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.
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."
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.
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
. . . [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.
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
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."
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 Case.net 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