FROM THE CIRCUIT COURT OF STODDARD COUNTY The Honorable
Stephen R. Mitchell, Judge
C. Wilson, Judge.
Railway Company ("BNSF") appeals the judgment of
the circuit court, entered upon a jury verdict, in favor of
Sherry Spence ("Spence") on her wrongful death
cause of action for the death of her husband, Scott Spence
("Decedent"). This Court has jurisdiction under
article V, section 10 of the Missouri Constitution, and the
judgment is affirmed.
sued BNSF for the wrongful death of Decedent, who was killed
in 2012 after a BNSF train struck his pickup truck at a
railroad crossing. Spence alleged BNSF was negligent for
failing to trim the vegetation around the railroad crossing,
which prevented Decedent from being able to see the
approaching train. Spence also pursued a claim of
respondeat superior liability against BNSF, alleging
its train crew members were negligent for failing to stop or
slow the train because the crew members, from their higher
vantage point, should have seen Decedent's pickup truck
as he was approaching the railroad crossing. In response,
BNSF alleged Decedent was negligent in driving his vehicle
onto the railroad crossing as the train was approaching.
case went to trial in April 2015. The jury found in
Spence's favor, assessing 15 percent of the fault to BNSF
for the conduct of its train crew, 80 percent of the fault to
BNSF for its failure to maintain the railroad crossing, and 5
percent of the fault to Decedent. The jury awarded Spence $20
million, which the circuit court reduced to $19 million for
the fault of Decedent. After the verdict was rendered, BNSF
filed a motion for new trial based on juror nondisclosure as
well as other grounds. The circuit court overruled BNSF's
motion, and BNSF appeals.
appeal, BNSF asserts the circuit court erred in overruling
BNSF's motion for a new trial based upon a juror's
intentional nondisclosures. BNSF also claims the circuit
court erred in overruling BNSF's motion for a new trial
because it should not have submitted (over BNSF's
objections) the verdict directors in Instruction Nos. 6 and 7
and the corresponding Verdict Form A. Finally, BNSF claims
the circuit court erred in overruling BNSF's motion for a
new trial because it should not have submitted (over
BNSF's objection) Instruction No. 8 dealing with
BNSF's duties and because it should have granted a
mistrial during opening statement when Spence's counsel
referred to BNSF's removal of certain sight tables from
its traffic engineering instructions.
center of BNSF's motion for a new trial is the conduct of
Juror Kimberly Cornell ("Juror Cornell"). Before
trial, each juror received a juror questionnaire with their
name preprinted at the top. On Juror Cornell's
questionnaire, however, her name was spelled incorrectly as
"Kimberly Ann Carnell." Juror Cornell did
not correct this misspelling at the top of her questionnaire,
but plainly wrote "Steven D. Cornell" in the space
reserved for the name of her husband and her signature at the
bottom of the questionnaire appears to be "Kim Cornell,
" not "Kim Carnell." On her questionnaire,
Juror Cornell answered Questions 14 and 15 in the negative,
indicating she had never been a party to a lawsuit and she
had never made a claim against another to recover money for
physical injuries or damage to property. After filling out
her questionnaire, Juror Cornell returned it to the circuit
days before trial, the circuit clerk's office distributed
the juror questionnaires, the pool selection report, and a
seating chart to both sides. On each of these documents Juror
Cornell's last name was misspelled "Carnell."
Relying on these documents, BNSF claims it conducted a
Case.net search for "Kimberly Carnell" and found no
litigation in which she was listed as a party.
Juror Cornell reported for jury selection, she informed
circuit court staff that her name had been misspelled at the
top of her questionnaire. Upon learning this, the court's
deputy clerk informed counsel for both parties of the correct
spelling of Juror Cornell's name. The deputy clerk also
made a handwritten correction to Juror Cornell's name on
the master list of venirepersons and provided that list to
counsel on both sides. The deputy clerk took these measures
prior to 8:28 a.m., when the venire was seated and voir dire
counsel began questioning members of the venire, the trial
judge explained how important it was for prospective jurors
to be truthful and forthcoming. The trial judge then asked
specifically whether any member of the venire had been a
party to a lawsuit (their "litigation history") and
not disclosed that fact on their juror questionnaire. Juror
Cornell did not answer in the affirmative even though she had
been a party to several lawsuits, including - most notably -
a wrongful death lawsuit in which she had been the plaintiff.
Later, BNSF's counsel asked whether any member of the
venire, or any of their close friends or family members, had
been involved in a motor vehicle accident (their
"accident history"). Juror Cornell did not answer
in the affirmative even though her son had been killed in the
accident that gave rise to her wrongful death lawsuit. BNSF
repeated this question at various times and in various ways,
 but each
time Juror Cornell remained silent.
dire concluded at 11:23 a.m., at which time the court took a
recess. When court resumed, the trial judge took up the
parties' motions to strike for cause and their peremptory
challenges, as well as other matters. At 12:35 p.m., the jury
- including Juror Cornell - was seated and
days later, the jury rendered a verdict in Spence's
motion for new trial, BNSF claimed that immediately after
trial a BNSF representative overheard Juror Cornell tell
Spence she could relate to Spence because she had a son who
was killed in a motor vehicle accident. The representative
introduced himself to Juror Cornell, who replied with her
full (and correct) name. A Case.net search for "Kimberly
Cornell" revealed a number of lawsuits in which Juror
Cornell had been a plaintiff or respondent, including her
wrongful death action arising out of the death of her son in
a motor vehicle accident. Based on this evidence, BNSF
claimed Juror Cornell had engaged in intentional misconduct
by failing to respond truthfully to questions concerning her
litigation history and accident history.
responded that, pursuant to Rule 69.025(e), BNSF had waived
any claim for relief based upon juror nondisclosure because
it failed to conduct a reasonable investigation (i.e., by
searching Case.net for "Kimberly Cornell") and
informing the court of Juror Cornell's undisclosed
litigation history prior to the jury being seated and sworn.
BNSF claimed it had done a Case.net search for "Kimberly
Carnell, " the name it had been given, and it had no
reason to suspect her name was "Kimberly Cornell"
until after the verdict was rendered. At an evidentiary
hearing, the circuit court received testimony from the deputy
clerk who said she advised counsel for both parties orally of
the misspelling of Juror Cornell's name and provided them
a master list of the venire on which she manually had
corrected this misspelling. The circuit court specifically found this
testimony credible and overruled BNSF's motion for new
trial. On appeal, BNSF claims this was error requiring this
Court to vacate the judgment and remand for a new trial.
Court will not disturb the circuit court's ruling on
motion for a new trial based on juror nondisclosure unless
the trial court abused its discretion." Johnson v.
McCullough, 306 S.W.3d 551, 555 (Mo. banc 2010)
(citation omitted). "A trial court abuses its discretion
if its 'ruling is clearly against the logic of the
circumstances then before the court and so arbitrary and
unreasonable as to shock the sense of justice and indicate a
lack of careful consideration.'" Id.
(citation omitted). Moreover, any question regarding the
proper construction of Rule 69.025 and its reasonable
investigation requirement is reviewed de novo
because "this Court interprets its rules by applying the
same principles used for interpreting statutes."
McGuire v. Kenoma, LLC, 447 S.W.3d 659, 662 (Mo.
banc 2014) (citation omitted).
69.025 provides, in full:
(a) Proposed Questions. A party seeking to inquire as to the
litigation history of potential jurors shall make a record of
the proposed initial questions before voir dire. Failure to
follow this procedure shall result in waiver of the right to
inquire as to litigation history.
(b) Reasonable Investigation. For purposes of this Rule
69.025, a "reasonable investigation" means review
of Case.net before the jury is sworn.
(c) Opportunity to Investigate. The court shall give all
parties an opportunity to conduct a reasonable investigation
as to whether a prospective juror has been a party to
(d) Procedure When Nondisclosure Is Suspected. A party who
has reasonable grounds to believe that a prospective juror
has failed to disclose that he or she has been a party to
litigation must so inform the court before the jury is sworn.
The court shall then question the prospective juror or jurors
outside the presence of the other prospective jurors.
(e) Waiver. A party waives the right to seek relief based on
juror nondisclosure if the party fails to do either of the
following before the jury is sworn:
(1) Conduct a reasonable investigation; or
(2) If the party has reasonable grounds to believe a
prospective juror has failed to disclose that he or she has
been a party to litigation, inform the court of ...